November 25, 2015

Federalism and the Republicans: Who needs RINOs when you can have FINOs?

Can the Republican Party still be the party of “small is better” government if it isn’t willing to stick to its guns when the policy is one of its favored issues? Such as, for example,  tort reform?

I hate it when I hear Republicans at the federal level attack Democrats on the size and scope of federal powers, especially when that Republican is:

A) not Ron Paul (and I’m not pulling for Paul for President; on the contrary); or

B) has been in office for longer than half a decade (there are some exceptions, but they are rare).

Other than that, few Congressional Republicans have much credibility on the scope of federal reach. I agree with cutting funding to ACORN and Planned Parenthood like any other Republican, but I don’t agree that Republicans are “without sin” in keeping the federal reach short when it comes to their own sacred cows. They often just have different sacred cows.

All too often it seems like Republicans are too willing to pick and choose when small government is appropriate. Federalism–that we are as states bound by contract (the constitution) with powers divided between the national and state governments–limits what the federal government can do. Most recently, and most popularly, Republicans have attacked the Affordable Healthcare for America Act (aka “Obamacare,” as cited last night by Anderson Cooper and the Act’s detractors) on grounds of being beyond the scope of the federal government’s powers. While the Commerce Clause allows a lot, it doesn’t allow a healthcare mandate, they say.

Along those same lines, would it allow a tort reform mandate? Senate Republicans are pushing back against Obama’s jobs bill with their own version, and while it’s probably DOA, that does change that it’s probably just as much a violation of the Republican mantra against unlimited federal power as Obamacare is.

The law’s own justification for its constitutional authority should be chilling to anyone committed to limited federal power. The bill’s findings state that health care and health insurance are industries that “affect interstate commerce,” and conclude that Congress therefore has Commerce Clause power to regulate them — even when it involves an in-state transaction between a doctor and patient, governed by in-state medical malpractice laws. Is there any industry that couldn’t be found to have an effect on interstate commerce? The agriculture and manufacturing industries, long considered the paradigmatic areas not covered by the Commerce Clause, certainly fall under federal power under this broad analysis.

Randy Barnett, writing in the Washington Examiner, calls it “Fair weather” federalism, and he notes that it will violate Congressional Republicans’ “Pledge to America” that promises to only pass bills that meet constitutional muster. It is part of their “HEALTH” Act to regulate state medical malpractice rules.

The problem is that torts have been a state regulated arena for the duration of the republic. The HEALTH Act would place limits on malpractice awards. (Ironically, I can hear the Democratically strong trial attorneys lobby screaming in rage at this violation of federalism…)

But tort law — the body of rules by which persons seek damages for injuries to their person and property — has always been regulated by states, not the federal government. Tort law is at the heart of what is called the “police power” of states.

What constitutional authority did the supporters of the bill rely upon to justify interfering with state authority in this way? Not their own assessment of the Commerce Clause, which grants Congress the power “to regulate commerce . . . among the several states.”

The answer to that question is the New Deal era Substantial Effects doctrine, a “subcategory” of the Commerce Clause, created during the 1940s to account for the growth in government reach during the Great Depression. Primarily concerned with regulatory law, it emerged out of cases dealing with steel strikes and agricultural production (specifically, corn) when the Supreme Court decided that  products crossing state lines would have a sufficiently substantial effect on commerce that Congress could regulate them under the Commerce Clause.

With the exception of only a few conservative Justices, including Justice Clarence Thomas (a hobbit crossing Mordor?), the Supreme Court hasn’t looked back, and Congress has, for the most part, been left to regulate what it will. “This test, if taken to its logical extreme,” Thomas wrote in 1995, “would give Congress a ‘police power’ over all aspects of American life. . . . [T]he power we have accorded Congress has swallowed Art. I, Section 8.”

Says Barnett

Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power.

This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits.

Which leads me back to the beginning: how can we trust Republicans any more than Democrats when they pick and choose when they want the federal government to expand beyond its constitutionally limited reach?  To Barnett I give the last word:

With friends like these, constitutional federalism does not need enemies.  Can we coin a new pejorative FINO:  “Federalists in Name Only”?   Oh well, I guess not.   But the best thing that can be said about this proposal is that it won’t become law.

[National Review Online] [Washington Examiner][Volokh Conspiracy]

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Mexico files brief against Utah…federalism at issue?

Immigration is one of those issues that never seems to go away. While almost every policy can be debated, either passionately or with blithe calm, immigration seems to evoke a passionate and even angry response from people who are, otherwise, level-headed and even-tempered. [Read more…]

Constitutional amendments from the folks who love it most

Indubitably, during the recent election, one of the major rallying points of Tea Party aligned voters  was the US Constitution and its interpretation. Indeed, although the Tea Party started out as primarily a revolt against perceived spending policies of the Obama Administration and the Democratic controlled Congress (for example, the Affordable Health Care for America Act and the Troubled Assets Relief Program I and II ) during a troubled economy,interpretation of the Constitution has become a point of particular interest to many of those who consider themselves to be members, or supporters, of the Tea Party. Within that group can be found different veins of thought, including those who support nullification of federal laws through state action, devoted readers of Cleon Skousen’s “5000 Year Leap,” and, of course,  Glenn Beck. (And by mentioning any of them here, I do not mean to disparage them or diminish, but merely to observe they are out there).

What has been increasingly interesting to me  has been the opinion by many of these same people that the Constitution itself needs to be amended. Joe Pyrah, a reporter for the Daily Herald in Provo, Utah, recently (read: “today”) noted on in a blog post at the Sausage Grinder that “it’s clear that lawmakers who hold up the Constitution as the document we most need to get back to aren’t entirely happy with it.” He was speaking, of course, about the myriad of bills proposed by Utah legislators that deal with editing  amending the Constitution. Among them that he noted:

  • Joint Resolution Urging Congress to Call a Constitutional Convention on the Process for Repeal of Federal Laws
  • Joint Resolution Applying for an Article V Amendments Convention
  • Joint Resolution Urging Congress to Repeal the Fourteenth Amendment to the Constitution
  • Joint Resolution Urging Congress to Repeal the 16th Amendment to the United States Constitution
  • Concurrent Resolution Urging Congress to Pass Balanced Budget Amendment to U.S. Constitution

Is it strange, and a little hypocritical, that the same people who are calling on Congress to follow the Constitution in the passage of laws are the same who are calling on Congress to amend the Constitution. There was great outcry when the health care reform act was passed, and while there are arguments that it was marginally constitutional, it did not help that its proponents dismissed the constitutional questions. You recall the press conference when Speaker Nancy Pelosi was asked what part of the Constitution allowed Congress to mandate health care–she scoffed, an act sure only to raise opponents ire, not support.

When those  very same opponents of government intervention turn to the Constitution as their ally, and then start advocating amending it, there are those who laugh. However, perhaps they laugh to soon. The Constitution is designed to be amended.

At the root of the assumptions about Tea Party supporters–often even calling themselves “Constitutionalists”–is the belief that Tea Partiers believe that the Constitution is a sacred document, something sprung out of the heads of the Founding Fathers much the same as Athena sprang from Zeus’ head.

Contrary to popular opinion, however, the Founders were not a monolithic group of individuals sharing a common interpretation of how the American government should work.  In fact, they were a bickering bunch of politicians, albeit brilliant ones, who recognized the mutual benefit of uniting their thirteen states in a federated union. Federalism, the result of their compromises in 1989, is a unique American model that is unmatched elsewhere in the world, before or since.

Among the compromises agreed upon in the Constitution is the ability to amend that document. It was well understood that society would changed, the nation would grow, and that there were problems that the Founders just did not want to deal with. Most notable among the these issues were the rights added during the first Congress and known today as the Bill of Rights. Also notable were issues like slavery and the right of all to vote.  While there were those amongst the drafters who believed these things were important, the issues became a block to the compromise necessary to establish a “more perfect union.” It wasn’t  a perfect union; just more perfect one.

And today, neither Tea Party supporters nor their detractors believe that the Constitution is perfect. In fact, the place they diverge most often is in their policy arguments, not in their Constitutional interpretation. However, when policy arguments fail, it is to the document that we turn. When there are problems that need resolving, we evaluate whether their are sufficiently grave that the Constitution guide them and control the resolution of those problems.

For example, let’s take from above one of the resolutions proposed before the Utah legislature, that one “Urging Congress to Call a Constitutional Convention on the Process for Repeal of Federal Laws.” At first glance, this one appears to be the same as that recommended and sponsored in a bill before Congress by Utah’s Rep. Rob Bishop. (see “Amending the Constitution? A BFD”) Written almost simplistically, the purpose of this bill is to strengthen the principles of the 10th Amendment by allowing states more of a say in what the federal government does. Up until the 17th Amendment, Senators were selected by state legislators and were therefore more responsive to the dictates of elected state leaders, those tasked with managing a state’s government. Since the 17th Amendment, however, Senators have been elected directly by the people of the state. The argument goes that because voters are less aware and less responsive to the needs of the state as a whole, Senators are no longer responsive to the state in the manner they were previously. It’s a republic versus democracy type argument; one side wants the Senate, and Senators, closer to the state as an entity and the other side wants the Senate to be responsive to the people directly. With the proposed amendment, the Constitution would be amended to create a process that would put states back at the negotiating table, a chance to give their say about federal laws. In short, it shifts some of the balance of power towards the states. (And, by way of apropos, the convention is limited to just that question in order to prevent the entire Constitution from being rewritten).

What does that sound like to me? Like the same debate that happened in the halls in Philadelphia while the drafters argued over the form the Constitution would take. Who would have more power: the states or the central (what we call federal) government? This isn’t because these law makers don’t “love” the Constitution–rather, it is a policy debate over who should be making laws that affect the citizens of the United States in Utah. It’s a fair debate, and amendment is a fair way to go about making these policy changes happen.

Whether or not their a big enough deal to amend the Constitution, though, is another debate entirely…because amending the Constitution is  B.F.D.

Amending the Constitution? A B.F.D.

With Constitution Day just passed (September 17th), hopefully we’ve all increased our awareness about the governing document for our nation’s political processes.  Written over two hundred years ago, the US Constitution is now the oldest written constitution.  And yet, it is still important, if not essential, to our nation’s governance.

Included among its clauses is guidance on how to amend it. The Founding Fathers knew that the document they had created was a result of compromise, and that over the years our nation would grow and change.  As a result, they knew that succeeding generations would need the ability to amend the constitution without scrapping the document and starting all over.  The means to do that is found in Article V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The Constitution has been amended several times, with the most notable amendments occurring directly after the Constitution’s ratification (the “Bill of Rights“) and after the Civil War.

Politics is often the driving force behind the amendments.  In recent years there has been increased political polarization across the country, especially seen in the rise of the Tea Party movement in response to the enormous growth of government during the George W. Bush and Barack Obama administrations. Government spending has reached historic highs, and without the tax revenues to support it, the federal government has taken on levels of debt that have caused great alarm to many Americans worried about the effect debt will have on the economy, on freedom, and on our country.

Among the responses that have been proposed–the efforts, really to offer institutional checks on the growth of the power of the federal government–are two amendments to the Constitution. The first is called the “Repeal Amendment” and the second is known as the “Madison Amendment” (not the first to be known by this name).

The Repeal Amendment

Proposed initially to the Virginia legislature, the “Repeal Amendment” purposes to restore to states a balance of the power that was held by state legislatures until the passage of the 17th Amendment.

Map of USA with Virginia highlighted
Image via Wikipedia

Previous to passage of the 17th Amendment, Senators were chosen by state legislatures.  If a senator voted for a bill in Congress that the state did not like, the legislature had the ability to bring that

senator home.  It was a check on the ability of the federal government to pass laws that states did not like.

Not to be confused with the power of federal courts to “nullify” federal laws, Randy Barnett and William Howell describe the amendment in the Wall Street Journal.

Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president’s veto power.

This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states. Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.

The specific language of the amendment states:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

In many respects, this is a very federalism based proposal. It allows states to exert their will relative to the federal government and act as a check to the federal government’s policies. As former Utah Supreme Court Justice Dallin H. Oaks has said, “A public policy or a proposed law that is unwise is not necessarily unconstitutional. Even if it is a stupid proposal, it is not necessarily unconstitutional.” This would allow public discourse to discuss the merits of a proposal without using the Constitution as a weapon.

It would also have an effect on the litigation against unpopular laws and the possibility of activist judges. It would move the debate over unpopular laws out of courts and into the democratically elected branches of government where public policy decisions ought to be decided.

The Madison Amendment

The “Madison Amendment” is far less dramatic than the “Repeal Amendment,” but in effect seeks to do the same thing: restore a balance to the tug between states and the federal government.  The”Madison Amendment” is drafted to state:

The Congress, on Application of the Legislatures of two thirds of the several  States, which all contain an identical Amendment, shall call a Convention solely to decide whether to propose that specific Amendment to the States, which, if proposed shall be valid to all intents and purposes as part of the Constitution when ratified pursuant to Article V.

Based on the premise that Congress will not check its own power, the “Madison Amendment” puts pressure on Congress to listen to state legislatures. Why should Congress be limited to only proposing amendments?  Why not allow the states do propose amendments, too?  That’s what this amendment proposes to do.

Interestingly, the proposal has bipartisan support and has been sponsored in the House by Rep.  Walt Minnick (D, ID), Rep. John Culberson (R, TX),Rep. Rob Bishop (R, UT), and Rep. Henry Cuellar (D, TX).

The difficulty?  Getting two-thirds of the states to agree on an identical amendment.


The long and short of both of these, however, and what should be primary in anyones mind as they consider amendment of the Constitution is this: changing the Constitution is a big deal. It lies at the very heart of our republic and our society, and we should tread lightly as we consider changing it.

How would SCOTUS rule on S1070?

Doing the Job the Feds Won't Do!
Image by Sundials by Carmichael via Flickr

Historically, conservative justices, with their stricter interpretation of the Constitution, have viewed immigration policy as the exclusive purview of the federal government. That means both ideological factions on the court may be hostile to Arizona’s defense of S1070.

From AZ Capitol Times

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The legal challenges to the health care bill

Apparently, there is some question about the legality of the bill recently (as in yesterday) signed into law by President Obama.  I’ve already discussed the questionable procedures used to pass it in the House.  But what about

Obama signs the health care reform bill while Congress people look on... and what's with Pelosi? How does she manage to always look so goofy?

the bill itself?  Is it legal?  Is it constitutional?

Let me just say at the outset that rational minds can disagree, and this topic is no exception.  I hope merely to provide some short review of the differing sides of this discussion, and hopefully you can come to your own conclusions without falling back on your pre-conceived partisan inclinations (yes, we all have biases, even if we don’t recognize them).

On the one side of the discussion, there are those that believe that the health care reform bill is unconstitutional.  Their arguments boil down into several points and discussed in two lawsuits contesting the bill, one by the state of Virginia and the other by  Florida and, in the words of Josh Blackmun, “a bunch of other states.”

Virginia and the Commerce Clause complaint

The Virginia case attacks the health care bill on “commerce clause” grounds.   The commerce clause, found in Art. 1, Sec. 8, Clause 3 of the Constitution, gives Congress the power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]”  Historically, the commerce clause has been one of the most empowering in the Constitution and the means through which Congress passes a large portion of legislation every year because it allows Congress to regulate anything that passes through the stream of commerce.  However, as Randy Barnett, professor of constitutional law at Georgetown University, very aptly points out, insurance contracts have not before now been considered as affecting interstate commerce:

[…] the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink.

If we have to buy insurance for our car, why not for our health?

Josh Blackman points this out, too, citing directly from the Virginia complaint:

Paragraph 17:  ”The status of being a citizen of Virginia is not a channel of interstate commerce; nor a person or thing in interstate commerce; nor is it an activity arising out of or connected with a commercial transaction. Instead, the status arises from an absence of commerce, not from some sort of economic endeavor, and it is not even a non-economic activity affecting interstate commerce. It is entirely passive.”

Paragraph 18:  The Commerce Clause authority has never been held to “require citizens to buy goods or services. To depart from that history to permit the national government to require the purchase of goods or services would deprive the Commerce Clause of any effective limits contrary to Lopez and Morrison and would create powers indistinguishable from a general police power in total derogation of our constitutional scheme of enumerated powers.”

Paragraph 19: “Requiring citizen-to-citizen subsidy or redistribution is contrary to the foundational assumptions of the constitutional compact [under the Necessary and Proper Clause].”

In closing, the Virginia complaint dismisses the bill with rhetorical flair:

“because the individual mandate exceeds the enumerated powers conferred upon Congress. Because the individual mandate is an essential, non-severable provision, the entire act is likewise invalid.”

Florida and the “bunch of other states” everything-but-the-kitchen-sink complaint

Florida is joined in its complaint by South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, and South Dakota.  Other than a short mention of the commerce clause

Both the Florida and the Virginia legal challenges to the health care reform act are rooted in states' belief that the federal government is overreaching its constitutional authority.

, the complaint challenges the bill through the 10th Amendment, the Capitation Clause, the Guarantee Clause , general principles of federalism (commandeering) and state sovereignty.   In pertinent part, and again a nod to Blackman, some of the highlight from the complaint are these:

2. The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty. The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage. By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.

3. In addition, the tax penalty required under the Act, which must be paid by uninsured citizens and residents, constitutes an unlawful capitation or direct tax, in violation of Article I, sections 2 and 9 of the Constitution of the United States.

4. The Act also represents an unprecedented encroachment on the sovereignty of the states.

5. Further, the Act converts what had been a voluntary federal-state partnership into a compulsory top-down federal program in which the discretion of the Plaintiffs and their sister states is removed, in derogation of the core constitutional principle of federalism upon which this Nation was founded. In so doing, the Act exceeds the powers of the United States and violates the Tenth Amendment to the Constitution.

56. The Act exceeds Congress’s powers under Article I of the Constitution of the United States, and cannot be upheld under the Commerce Clause, Const. art. I, §8; the Taxing and Spending Clause, id.; or any other provision of the Constitution.

57. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, and by requiring them to establish health insurance exchanges, the Act deprives them of their sovereignty and their right to a republican form of government, in violation of Article IV, section 4 of the Constitution of the United States.

58. The Act violates the Tenth Amendment of the Constitution of the United States, and runs afoul of the Constitution’s principle of federalism, by commandeering the Plaintiffs and their employees as agents of the federal government’s regulatory scheme at the states’ own cost.

Are the criticisms legitimate?

Just because a lot of conservative states have filed suit does not necessarily mean that the criticisms are legitimate.  Jack Balkin, a Yale constitutional professor, dismissed the legal challenges presented to the health care bill.  Since the 1930s, Congress has had almost unfettered authority to regulate the economy, and as long as the individual mandate is framed as a tax, Congress may be well within its rights to require it:

“The attack on this bill,” said Jack M. Balkin,“is not merely an attack on the substance of this particular measure. It’s also a challenge to understandings that come with the New Deal.”

Replying to the proposition that people have a right not to buy health insurance, Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law speaking to the New York Times:

[S]aid the right not to buy health care was “rhetorically appealing” because of its paean to personal freedom. But “individual freedom not to purchase health care, I think, has no basis in Constitutional law.

In fact, Professor Chemerinsky added, “there is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.”

Congress has often taken actions that impinge on personal freedom for a national purpose, he noted, including the Civil Rights Act of 1964, which required hotels and restaurants to serve minorities.

“If the court stays true to its Commerce Clause jurisprudence of the last 15 years,” Professor Chemerinsky said, “I think this will be upheld.”

Vote Counting on the Supreme Court

Ironically, it is this very point–that it doesn’t really matter how close the legislation adheres to the Constitution that will allow it to survive legal challenges but whether it can be upheld on judicial precedent of the last eighty years–that Bartlett notes will be the ultimate determinate of its legality.  When it comes to the legal challenge, Bartlett says

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument?

What the Constitution says, what the Supreme Court has said, and what will five justices accept are not necessarily the same thing, and it is this last factor that draws the ire of the political left.  Regarding the lawsuits filed by Virginia and Florida (et al.), the Economist View had this to say:

From what I’ve read, there are two points to make. First, it would be crazy to rule that the individual mandate (or any other component of the legislation) is unconstitutional. Second, we have four crazy justices on the Supreme Court.

Start counting the votes now.  It may come down to just one swing justice, and that’s a vote that neither side can presume.