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Tag: "constitutional interpretation"

Refusing to Defend the Constitutionality of the Unconstitutional

[ 61 ] February 23, 2011 |

The Obama administration is refusing to defend this constitutionality of DOMA as it applies to legally married same-sex couples. Sometimes, elections can have positive consequences!


Standing, Federalism, and the Tenth Amendment

[ 8 ] February 23, 2011 |

Dahlia Lithwick and Adam Liptak have good articles about yesterday’s oral argument in Bond v. U.S. The substantive issue of the case is whether a law implementing the 1993 Chemical Weapons convention can be used to bring federal charges against a woman who poisoned a woman who was impregnated by her husband.   Like most people, I don’t much care about “federalism”; unlike many people, I’m candid about it.    But even to me, this is an exceptionally dubious exercise of federal authority, stretching the meaning of a federal statute to reach criminal activity that’s within the purview and competence of the states without any relationship to a larger regulatory objective.   While the law itself isn’t problematic — actual trafficking in chemical weapons could require federal intervention — it’s hard to justify its application in this particular case.   Certainly, it’s a much better example of federal “overreach” than the ACA.

The Court may not reach the substantive issue, however, because the 3rd Circuit ruled that Bond did not have the standing to challenge her conviction, because only states can raise 10th Amendment claims.   While I would normally agree with Lithwick “standing doctrine is where all interestingness goes to die,” in this case I think it is of some interest — because the lower court holding strikes me as nutty.   This doesn’t mean, I should add, that the fault lies with the 3rd Circuit, which was arguably bound by a New Deal-era precedent arguing that a utility lacked the standing to bring a 10th Amendment challenge.   But the point of standing doctrine is to ensure that the courts only resolve concrete cases, and as Clement says “it is hard to imagine an injury more particularized or concrete than six years in federal prison.”   The argument that Bond lacks standing to challenge the constitutionality of a law that could result in her being sent to jail is bizarre, and it looks as if the Court will sensibly agree and either distinguish or overrule the precedent.

One final point is that I don’t understand the distinction between “10th Amendment claims” and claims that Congress exceeded its Article I powers that several justices apparently discussed. As the Court correctly argued seven decades ago (“The amendment states but a truism that all is retained which has not been surrendered”), by definition if Congress is acting within its authority there’s no 10th Amendment violation, and if Congress exceeds its Article I authority it violates the 10th Amendment. I remain puzzled by what else the 10th Amendment could mean.

Another Judge Holds That ACA is Constitutional

[ 4 ] February 23, 2011 |

D.C. federal district judge Gladys Kessler issued the latest ruling, reinforcing the partisan trend.   Her opinion is a very solid piece of work, and provides a good account of the existing doctrine if you’re interested in such things.

Balkin on the Commerce Clause

[ 34 ] February 15, 2011 |

I cited it in my Prospect piece yesterday, but for people interested in the history of the Commerce Clause, I strongly recommend Jack Balkin’s forthcoming article. I would add the caveat that I don’t think that Balkin’s liberal originalism overcomes the objections I have to originalism (in whatever variant). I don’t believe his evidence is sufficient to establish that there was an uniform “original meaning” of the commerce clause. There is, as Paul has argued several times recently, no technical legal answer to whether the individual mandate is unconstitutional. (And I don’t think that Balkin would disagree.)

However, in context, his debunking of conservative attempts to establish an alternative original meaning are more than sufficient. Some conservatives would like to portray the debate as one between “federalists” who are bound by the Constitution and defenders of the constitutionality of the ACA, who are merely being expedient. But the very narrow conception of the Commerce Clause that the Supreme Court adopted in the late 19th and early 20th centuries was not the dominant view at the time of the founding. Marshall’s approach in Gibbons v. Ogden was, if anything, more prevalent at the time of the founding. And I certainly agree with Balkin that seeing the central purpose of the Commerce Clause as giving “Congress power to legislate in all cases where states are separately incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action” is both more normatively attractive and provides a better explanation for the Court’s actual jurisprudence than alternative approaches do. And under this standard, the constitutionality of the mandate is an easy case: the regulation is essential to a legitimate broader regulatory regime and solves am obvious “free rider” problem.

The Commerce Clause and the Slippery Slope

[ 63 ] February 14, 2011 |

I have an article up at the Prospect on the hot new trend in arguments that policies that Republicans supported until Obama started supporting them represent a massive threat to liberty and the Constitution: if the Supreme Court upholds the mandate, the broccoli tyrants will be knocking down your door.    The argument, of course, makes no sense on several levels, not least because you can make similar arguments about any possible government power:

But the most important problem with this argument is that it proves too much. If the federal government cannot be permitted any power it might potentially abuse, there would be nothing left. Utterly uncontroversial powers that are explicitly stated in the Constitution give the federal government the authority to pursue policies that would be far more foolish and destructive than even the dreaded broccoli mandate. Congress could, for example, declare war on Canada, or the president could use nuclear weapons to pulverize the entire European Union. The idiocy and gross immorality of such policies doesn’t mean that Congress’s power to declare war or the president’s status of commander-in-chief of the military should be written out of the Constitution.

And the same goes for the power that Congress has to regulate interstate commerce. Ultimately, the best check against unwise legislation is politics.

Arguments that the ACA is unconstitutional have to stand and fall on their own merits, not based on laws Congress could but won’t pass if the law is upheld. And the merits of these arguments are very weak.

An LGM Venn Diagram

[ 79 ] February 8, 2011 |

Group A: People who argue that the individual mandate in the ACA is unconstitutional because it must be unconstitutional to force people to “purchase a private product” irrespective of its effect on interstate commerce.

Group B: People who strongly support gutting Social Security and replacing to with a system where people are forced to purchase products from private money managers.

The Overlap Group: People whose opinions about the constitutionality of the ACA should be greeted with some mixture of laughter and contempt.

Estimated Extent of Overlap: >95%

How Will the Supremes Vote on ACA?

[ 14 ] February 4, 2011 |

Having discussed the limitations of positivist political science, I attempt to figure it out using my highly sophisticated “educated guess” method. Although it’s a “sovereign immunity” case and not a commerce clause case, I think that Hibbs is a better guide to Scalia’s vote than Raich.  Upholding a law that’s about federal hippie-punching is one thing.   Actual progressive legislation is another, and of course to conservatives the individual mandate might be even more oppressive tyranny than the Family and Medical Leave Act.    Even so, my gut says that Kennedy won’t go along, at least fully.   As long as he doesn’t vote to strike the whole act, I can live with it.

For Its Next Trick, the Wall Street Journal Will Cite Earl Warren and Thurgood Marshall to Demonstrate That the Civil Rights Act is Unconstitutional

[ 11 ] February 1, 2011 |

There’s a lot of egregious hackery in Vinson’s opinion yesterday. The Wall Street Journal has crossed some of Vinson’s hackery with some of its own. I’m not sure if this Vinson/WSJ law office history has topped Vinson’s assertion that not buying health insurance has no effect on markets in health insurance — it’s a high bar — but this attempt to enlist John Marshall [!] in the service of a narrow commerce clause some pretty impressive hackwork:

Congressional Democrats and the Obama Administration justified this coercion under the Commerce Clause, so it is fitting that Judge Vinson conducts a deep investigation into its history and intent, including Madison’s notes at the Constitutional Convention and the jurisprudence of the first Chief Justice [sic!], John Marshall. The original purpose of the Commerce Clause was to eliminate the interstate trade barriers that prevailed under the Articles of Confederation—among the major national problems that gave rise to the Constitution.

Did Marshall believe that the Commerce Clause should be essentially limited to the elimination of trade barriers? Well, I happen to have John Marshall right here, and:

The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.

Implying that Marshall shares the modern libertarian conception of the commerce clause is an act of remarkable ignorance. More on this later this afternoon, but citing Marshall on behalf of the side he spent his career arguing against is embarrassing. I can’t wait to see the Journal op-ed citing Marshall in defense of Hudson’s interpretation of the necessary and proper clause…

Today’s Health Care Ruling

[ 32 ] January 31, 2011 |

As expected, Vinson struck down the mandate, and also argued that it couldn’t be severed. My initial thoughts are up on TAPPED. The short version is that it probably doesn’t mean much but having a judge argue that the entire ACA is unconstitutional is worthy of notice.

My Annual Lecture on the Hyde Amendment and “Positive Rights”

[ 69 ] January 29, 2011 |

It seems as if at least once of year a conservative comes to explain that it’s silly that any liberal would complain about the Hyde Amendment, because it’s absurd to think that there could be any “right” to taxpayer funding.    We’ve just gotten another example. So I guess once again I have to explain that the constitutional problems with the Hyde Amendment reflect banal principles that people across the political spectrum subscribe to.

The argument made by people who don’t understand the issues is that there couldn’t possibly be a constitutional problem with the Hyde Amendment because American constitutionalism only protects “negative” rights — it’s a contradiction in terms for there to be a “right” to taxpayer funding.   The problem with this argument is that it isn’t true.   First of all, there are explicit “positive” rights in American constitutionalism, most prominently the Sixth Amendment’s right to counsel.    In addition to this, there are plenty of other examples of cases where there isn’t a right to government assistance per se, but when a program is created it cannot arbitrarily exclude people.    There isn’t a right to education, but states cannot provide (at least in theory) an unequal education to some groups.   Of even more direct relevance, the Supreme Court has held that if a state university funds secular publications it must also fund religious publications, although there’s obviously no right to taxpayer-funded publications per se.    (And that’s a tougher case, because there’s a plausible argument that such subsidies violate the First Amendment.)   Indeed, the Court’s conservatives have pushed this reasoning even further, recently arguing in dissent that religious groups are entitled to taxpayer money even if they refuse to comply with neutral antidiscrimination criteria.

So the constitutional arguments against the Hyde Amendment are hardly based on some alien, un-American reasoning.    There isn’t a constitutional right to health care, per se, but having established a health care program the government can’t arbitrarily exclude a class of persons from the benefit.   Proponents of the Hyde Amendment don’t even pretend that the exclusion of funding for most abortions is based on a legitimate neutral criterion (such as expense or medical necessity); its core purpose is to obstruct the exercise of a fundamental right.   The constitutional problems with this are obvious, and don’t require arguments different than those that have been advanced by Scalia, Thomas, Rehnquist, Alito et al. in different contexts.

But even if for the sake of argument we say that the Hyde Amendment is constitutional, it doesn’t change the fact that it’s disgraceful public policy.   There’s no good reason to prevent poor women from obtaining a medical procedure that is often necessary to preserve their health.  As for the arguments that it’s wrong to subsidize behavior that some taxpayers consider immoral, please.   I’ll entertain that line of reasoning as soon as I get a refund for the tax proceeds I’ve contributed to the Iraq War or paying John Yoo’s salary.

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The ACA and the Constitution

[ 22 ] January 21, 2011 |

I have some thoughts inspired by Jon Cohn’s article about constitutional challenges to the ACA. The short version is that I doubt that even a scenario where the Supreme Court strikes down the mandate — which I still regard as relatively unlikely — would have the far-reaching consequences that libertarian heroes hope. The reason for this is that a radically reduced federal government is a position that has no real political constituency, and the Supreme Court rarely intervenes in such circumstances. Although there’s still a widespread belief that the Supreme Court is “countermajoritarian,” it tends to reflect the values of political elites. (To borrow Mark Graber’s line, a generation of constitutional scholars discussed the Warren Court as if Barry Goldwater won a huge landslide in 1964.) If pro-Hammer v. Dagenhart sentiments become more than a fringe phenomenon, the Supreme Court might join in. In a political context where even tea party congressmen aren’t willing to name a single federal program they’d favor cutting, there’s not going to be any “federalism revolution” or return to the laissez-faire constitutionalism of the Gilded Age.

In a way, the instructive anecdote Cohn starts with also illustrates the point:

A few weeks ago, I spoke with Hyder at his office, in order to learn more about why he had brought this case. He said his motive was straightforward. He’s opted not to carry health insurance because he doesn’t think the benefits justify the price, and he doesn’t want the government forcing him to do otherwise. Okay, I asked, but what if he gets sick and needs hospitalization? How will he afford those bills? It was a distinct possibility, he agreed, patting his waist and noting that he was a little overweight. But those potential bills would be problems for him and his hospital, he suggested, not society as a whole.

When I told him that I disagreed—that his decision to forgo health insurance meant other people would be paying his bills, via higher taxes and insurance premiums—he politely and respectfully took issue with my analysis. The discussion went back and forth for a while, but soon it became apparent that our differences went beyond the finer points of health care policy, to our most basic understanding of the rights and obligations of citizenship. “It’s a complete intrusion into my business and into my private life,” he told me. “I think it’s one big step towards a socialist society and I’m purely capitalist. I believe in supply-side economics and freedom.”

The guy talks like a libertarian, but note that the punchline isn’t “if I need emergency care, the hospital should refuse to treat me if I can’t pay cash,” it’s “the hospital should treat me and indirectly stick someone else with the bill if I can’t pay.” Tells you what you need to know.

GOP Senator: Let’s Reinstate Particularly Discredited Supreme Court Decisions!

[ 11 ] January 14, 2011 |

I remember when I used to joke about Republicans bringing back Hammer v.Dagenhart. [Update: more explanation here.]  Senator Mike Lee provides the punchline himself.

It’s worth mentioning here that, Lee’s claims that Hammer was a regrettable outcome compelled by the Constitution notwithstanding, the majority’s reasoning was in fact remarkably specious.    The law struck down in Hammer wasn’t even a general ban; it merely prevented good made with child labor from being shipped across state lines.   As Holmes noted in his dissent, the idea that this regulation wasn’t an excerise of the federal government’s power to regulate interstate commerce was absurd, and moreover the Court’s conservatives were very inconsistent about applying this highly dubious constitutional requirement:

The statute confines itself to prohibiting the carriage of certain goods in interstate or foreign commerce. Congress is given power to regulate such commerce in unqualified terms. It would not be argued today that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something, and when interstate commerce is the matter to be regulated, I cannot doubt that the regulation may prohibit any part of such commerce that Congress sees fit to forbid. At all events, it is established by the Lottery Case and others that have followed it that a law is not beyond the regulative power of Congress merely because it prohibits certain transportation out and out….So I repeat that this statute, in its immediate operation, is clearly within the Congress’ constitutional power. [cites omitted]

The question, then, is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States in a matter upon which I have admitted that they are free from direct control. I should have thought that that matter had been disposed of so fully as to leave no room for doubt. I should have thought that the most conspicuous decisions of this Court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any State.

Hammer was not only a bad outcome, it was a bizarre reading of the Constitution. It’s amazing that a United States Senator would cite it as a model in 2011.

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