Category Archives: Commerce Clause

“Bad” or “Wrong” or “I don’t like it” is not equivalent to “Unconstitutional”

In a comment on someone elses post, another reader wrote “The DEA is an unconstitutional and illegal agency”.

This bugs me… We frequently see these sorts of statements made about the DEA, the ATF, the federal reserve (where ok, there’s at least a rational and reasonable though flawed argument to be made… most of the people shouting stuff like that above aren’t making those arguments, but still)… Basically any federal agency that they don’t like, or which enforces laws, or uses delegated powers which they personally don’t like.

No, the mere existence of the DEA is not unconstitutional or illegal. It is perfectly constitutional in that it is an executive agency chartered to enforce the laws promulgated by the legislative branch.

The fact that the federal government has no constitutional authority to outright ban or criminalize such substances as the DEA is chartered to regulate, or to ban or criminalize their manufacture, use, or possession (and only limited power to regulate their sale. No, sorry, regulating interstate commerce and making such laws as necessary for the general welfare does not grant them such broad and deterministic powers… and Wickard v. Filburn is bad law and needs to be overturned), does not mean that all laws relating to such substances are illegal or unconstitutional. There are legitimate regulatory powers that such an agency may lawfully and constitutionally exercise.

AS CURRENTLY EXTANT AND IN THEIR CURRENT ROLES AND ACTIONS… The DEA often engages in unconstitutional behaviors, and acts to enforce unconstitutional laws. That much is certainly true. But they are not inherently unconstitutional, or illegal.

Those are actually really important distinctions. Not just semantics or distinctions without difference.

This is so, because you go about addressing the issues, and solving the problems, differently. Things which are blatantly and directly illegal or unconstitutional are best addressed in one way. Things which are peripherally so, are best addressed in a very different way.

You have to shoot at the proper target, with the proper ammunition.

Also, it’s really important to remember, that “bad and stupid” or “harmful” or “undesirable”, or “pointless”; does not necessarily mean “unconstitutional”. Nor does “constitutional” mean “good”, or “useful” or “effective”.

That’s not even a matter of judges discretion or interpretation… The constitution actually provides far less protection of rights, and limitation of powers, than people believe it, expect it, and wish it to (at least explicitly… the 9th and 10th amendments… there’s much bigger and messier issue).

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

The Mind of an Anti-Gun Loon

I’m a defender of the 2nd Amendment right to bear arms but let’s face it: there are some loony gun owners on our side. The anti-gun media loves to try to hold these people up as typical supporters of the 2nd Amendment, the castle and stand your ground doctrines. If they cannot find the loon they are looking for, the media can edit a segment on TV or take a person’s words out of context to make it seem as though a rational person is irrational.

What we don’t hear about much is that there are loony people on the other side of the debate. Dallin Kelson writing an article “Loganville woman jumped to the gun” in The Independent Florida Alligator is one example.

We can learn a lot about the problematic illusion-making tendencies of the discourse on guns by analyzing a recent news story from Loganville, Ga.
You may have heard about it: A lady was hiding in her attic from a burglar with her two kids and her Saturday night special when he used a crowbar to bust in on them. So she did what she had to do. Next thing you know, the creeper with them two feets who came a-creepin’ like a black cat do is on the floor full of .38 holes.

There’s an important aspect of this story I need to draw attention to at this point because it perplexes the hell outta me: He didn’t mean to violently intrude upon this family.

What? He didn’t mean to “violently” intrude? This two bit thug intended to “peacefully” intrude?

No answer. So he rings the doorbell a bunch of times, and instead of answering the door or somehow asking him what he wants, they hide and call the cops!
Now that he’s satisfied that no one is home, he begins liberating the family’s belongings in the name of the proletariat. Like any good burglar, he’s thorough, working through every room in the house until he eventually reaches the attic.

He opens the door, and suddenly a relatively harmless cat burglary becomes a violent home invasion.

I have no words.

The problematic part of how this scenario played out is not what she did in the heat of that moment. I just want to know why she didn’t, you know, answer the door in the first place.

C’mon, you gotta at least open a window and ask the dude what he wants!

Why didn’t she answer the door? Dallin, frankly that’s none of your damned business. This was her house and for whatever reason, she didn’t feel comfortable answering the door. She don’t “gotta” do anything. (Did I mention that Dallin is an English major?)

Obviously I’m not saying she deserved to have her house broken into.

Obviously? Could have fooled me.

She’s been so conditioned by the stories of murders and home invasions that populate the evening news that she immediately went into xenophobia-induced panic mode as soon as someone whose appearance was mildly threatening intruded into her comfort zone.

Whether or not the media is “populating the evening news” with murders and home invasions or that she “went into xenophobia-induced panic mode” is beside the point. In this case, this panic mode probably saved her life and the lives of her children. Her intuition was dead on. Sometimes when a stranger is banging on your door and won’t go away, he might intend to do harm to you. Just a thought.

From all appearances, this guy was trying to find an EMPTY house to break into. If she had initially responded proactively by confronting him when he was a random, annoying guy hanging around ringing the doorbell incessantly, there’s a nonzero chance he would’ve just made up some excuse and moved on.

Instead she acted in an inexplicably irrational and paranoid way. Now he’s badly wounded, maybe dying, and her kids had to watch their mother repeatedly shoot a man while he begged her, crying, to stop.

Maybe guns are good, maybe they’re bad, but this story should’ve never gotten to the point where they were involved.

Sometimes it’s easier to ask someone just what the hell they think they’re doing rather than wait for them to do it.

Yeah, if only the poor bastard found an empty home or one occupied by an unarmed woman…

Is this article just a poor attempt at satire? I hope so. On a more positive note, of the 51 comments to the article (so far) almost all of them say this writer is a moron. I have to agree.

Do We Really Want the President to Enforce ALL Federal Laws?

The Rule of Law, theoretically at least, is superior to the arbitrary Rule of Men. For most of human history, the law has been subject to the whim of a head of state be s/he a monarch, czar, dictator, emperor, etc. James Madison and the framers of the U.S. Constitution wisely determined that the document would be the “supreme law of the land” and everyone from the President to the peasant would be subject to the same law.

But what happens to the Rule of Law when the laws become too vague, too numerous, too unpredictable, and too unjust? According to a 2008 Louisiana State University study (referenced in this article), there were over 4,500 federal crimes on the books. This does not include the thousands more regulations that also carry criminal penalties.

So my question to conservatives and some libertarians who have been critical of President Obama’s executive order to allow individuals who were brought illegally across the border as children under the age of 16 to have temporary work permits is as follows: Do you believe that the president should enforce each and every one of the over 27,000 pages of federal code and prosecute everyone who can be accused of any of the 4,500 + crimes? Should the president send uniformed men with guns to raid the Gibson Guitar Corp, dairy farms who sell raw milk to the public, and medical marijuana dispensaries which operate pursuant to state law? If the argument is that the president is shirking his responsibility by picking and choosing the laws he will “faithfully execute,” the answer necessarily must be “yes.”

Obviously, the federal government even as large as it is could not possibly enforce every single federal law. Assuming for a moment the federal government could enforce every single federal law and regulation, as people who claim to value personal liberty above all else, is this something that would in any way be compatible with liberty?

I think not.

When the federal code is so full of laws and regulations, it’s the same as having no Rule of Law at all. The president necessarily must decide which laws to enforce and which to ignore or at the very least prioritize how he will execute the law. As immigration laws go, it seems to me that deporting individuals who were educated here, not criminals, and pay taxes should be a much lower priority to be deported or jailed than someone who as an adult illegally immigrated, stole someone’s identity, and committed a host of other crimes.

Beyond the sheer volume of laws and regulations, I do think there are instances when the president should NOT enforce the law if he, in good faith, believes the law violates the constitution and/or is unjust. Who among us today would argue that when the Fugitive Slave Act of 1850 was in force that a president who refused to enforce such a law was acting like a king because he was usurping the “will of the people”? I would also point out that when the Fugitive Slave Act was the law of the land, it wasn’t at all unconstitutional even though most sane Americans today, regardless of political affiliation and/or philosophy would say the law was immoral. If the constitution itself violates Natural Law (i.e. does not recognize the rights of life, liberty, and property for all human beings), then it too should be nullified in those instances.

Nullification presents problems of its own, however. I recognize that nullification of laws passed by congress presents a possible constitutional crisis. We certainly do not want an all-powerful executive branch that can ignore the congress and the courts, so what is the solution?

The solution, however politically difficult it would be, would be to repeal the vast majority of the federal criminal code and much of the remaining 27,000 pages of statutes. The most sensible place to begin would be with the federal criminal code. Most criminal law should be dealt with at the state level anyway. I haven’t checked recently but I’m pretty sure that rape, murder, burglary, assault/battery, and fraud are crimes in all 50 states and in all U.S. territories.

Additionally, even those who believe the war on (some) drugs is good public policy, most states would most likely (unfortunately) continue locking up non-violent drug offenders without Washington’s help. The country we love would not descend into chaos if criminal law was dealt with almost entirely by the states. If we cannot trust the states to handle protecting individuals inside their borders, what is the point of even having states?

If the federal criminal code only dealt with crimes such as counterfeiting, treason, enacting legitimate interstate commerce regulations (to keep the trade among the several states “regular,” not what the interstate commerce clause has become thanks to SCOTUS), and yes, immigration policy, the president could and should conceivably enforce all the federal laws that are neither unconstitutional nor immoral. The president would no longer have the discretion to enforce the laws he favors and not enforce the ones he does not.

Supreme Court Upholds Affordable Care Act

As Quincy notes below, the Supreme Court upheld the Constitutionality of the Affordable Care Act today by relying upon an argument that most people had not been paying attention to:

WASHINGTON — The Supreme Court on Thursday left standing the basic provisions of the health care overhaul, ruling that the government may use its taxation powers to push people to buy health insurance.

The narrowly delineated decision was a victory for President Obama and Congressional Democrats, with a 5-to-4 majority, including the conservative chief justice, John G. Roberts Jr., affirming the central legislative pillar of Mr. Obama’s presidency.

Chief Justice Roberts, the author of the majority opinion, surprised observers by joining the court’s four more liberal members in the key finding and becoming the swing vote. Justices Anthony Kennedy, frequently the swing vote, joined three more conservative members in a dissent and read a statement in court that the minority viewed the law as “invalid in its entirety.”

The decision did significantly restrict one major portion of the law: the expansion of Medicaid, the government health-insurance program for low-income and sick people, giving states more flexibility.

The case is seen as the most significant before the court since Bush v. Gore ruling, which decided the 2000 presidential election.

In addition to its political reverberations, the decision allows sweeping policy changes affecting one of the largest and fastest-growing sectors of the economy, touching nearly everyone from the cradle to the grave.

The political fight over health care remains far from over, with Republicans campaigning on a promise to repeal the law, which they see as an unaffordable infringement on the rights of individuals. The presumptive Republican presidential nominee, Mitt Romney, has promised to undo it if elected.

Chief Justice Roberts wrote that the decision offers no endorsement of the law’s wisdom, and that letting it survive reflects “a general reticence to invalidate the acts of the nation’s elected leaders.”

“It is not our job to protect the people from the consequences of their political choices,” he wrote.

The court’s ruling is a crucial milestone for the law, allowing almost all of its far-reaching changes to roll forward. Several of its notable provisions have already taken hold in the past two years, and more are imminent. Ultimately, it is intended to end the United States’ status as the only rich country with large numbers of uninsured people, by expanding both the private market and Medicaid.

The key provision that 26 states opposing the law had challenged – popularly known as the individual mandate – requires virtually all citizens to buy health insurance meeting minimum federal standards, or to pay a penalty if they refuse.

Many conservatives considered the mandate unconstitutional under the commerce clause, arguing that if the federal government could compel people to buy health insurance, it could compel them to buy almost anything — even broccoli, the archetypal example debated during the oral arguments three months ago.

In a complex decision, the court found that Congress’ powers to regulate commerce did not justify the mandate. But it reasoned that the penalty, to be collected by the Internal Revenue Service starting in 2015, is a tax and is not unconstitutional.

Chief Justice Roberts, in the majority, said that the mandate was unconstitutional under the Constitution’s commerce clause. But that did not matter if the penalty that enforces it was constitutional on other grounds.

The court’s four liberals made it clear that they disagreed with the Chief Justice’s view of the commerce clause, but joined him because the effect of his ruling was to let the law stand.

The Obama administration had said in court in 2010 that the mandate could be upheld under the taxation powers, which they called even more sweeping than the federal power to regulate interstate commerce.

The outcome, I think, is striking many people as a surprise for two reasons.

First of all, if there was any Justice on the Court who seemed likely to be the fifth vote along with the Court’s four liberal members to uphold the ACA, it would be Justice Kennedy. Indeed, after the end of three days of oral argument in March it had seemed as though Roberts was largely in line with Justices Scalia and Alito (and Thomas) in being skeptical of the mandate’s Constitutionality while Justice Kennedy was the one who seemed to be trying to find way to uphold the mandate. One thing this teaches us is that most predictions you hear about the Supreme Court are usually just wild guesses, and that you can’t always determine how a case is going to turn out based on the oral arguments. In the end, rather than Kennedy being the deciding vote in this case, it was Chief Justice Roberts who sided with the Justices Ginsburg, Breyer, Sotomayor, and Kagan to uphold the signature domestic legislation of a Democratic President who has, in the past been critical of many of the Court’s rulings under Roberts.

The second reason this is a surprise is the fact that it was the tax argument that ended up being the basis upon which the law was upheld. For the past two years, nearly all the discussion about the legal merits of the ACA have centered around the question of whether it could stand as a proper application of Congress’s power under the Interstate Commerce Clause. There was a side argument being advanced on behalf of the government in the ensuing litigation that argued that the mandate could also be upheld under the taxing power, but it generally didn’t get much attention from the media or those who were actively engaged in the fight against the law. More importantly, none of the Federal Courts that heard the challenges to the law before it got to the Supreme Court adopted the tax argument as a reason for sustaining the law. Some of those Courts explicitly rejected the argument, while others simply stated that they did not need to rule on the arguments because they found the mandate constitutional under the Commerce Clause. Additionally, at the Supreme Court arguments in March, the lawyers and Justices spent far more time talking about the Commerce Clause arguments than the tax argument. To a large degree, that argument had been filed away and largely forgotten. But, as we see today, not completely forgotten.

It was Law Professor Jack Balkin who first advanced the  argument that the mandate was Constitutional precisely because it was a tax:

he individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance.


The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.

The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior, like a tax on businesses that don’t install anti-pollution equipment.

Many important and popular government programs are based Congress’s ability to give incentives through taxation and redistribute tax revenues for public purposes. To strike down the individual mandate the Supreme Court would have to undermine many years of precedents justifying these programs that stretch back to the New Deal (and in the case of the rules for direct taxes, to the very founding of the country).

Many dismissed Balkin’s argument but it was clear even when he wrote that back in March 2010, shortly after the law had been passed by Congress, that if the Court accepted it then the entire argument against the mandate specifically and the law in general would crumble into dust. And, that is exactly what has happened today.

We’ll be spending much time arguing the political ramifications of this decision, but it’s fair to see that this is now what most people were expecting. For the past two weeks or so, and indeed ever since the arguments in March, the left has seemingly been preparing itself for the likelihood that they would lose the mandate, if not the entire law. I didn’t see very much of this on the right, but now they’ll have to deal with the fact that they legal arguments they had been rallying around for two years have been rejected, and that if the ACA is going to be repealed it will have to be done by Congress. Given the fact that it’s very unlikely that Republicans will get 60 votes in the Senate any time soon, it strikes me that this is quite unlikely to happen.

On Judge Jerry Smith’s “Homework Assignment” And Judicial Deference To The Legislature

Last Tuesday, a federal judge in the 5th Circuit, Jerry Smith, blasted a DOJ lawyer on an ObamaCare case in the wake of Obama’s comments on judicial activism. The Judge assigned the lawyer a three-page, single spaced homework assignment to draft a position on whether the judiciary has the legitimate right to overturn Unconstitutional legislation.

Everyone was up in arms over this, and to be honest, I frankly think it was pointless, in bad taste, and didn’t do anything but spin up a news cycle for about 24 hours. After reading a particular Popehat piece, I’m not all that surprised, but I’m certainly a bit dismayed that Jerry Smith decided that this was a necessary act.

Well, the homework assignment is here for all to see:

DOJ Letter to 5th Circuit re Judicial Authority

There’s a section in here that is particularly interesting. One aspect of this is an “F-U” to the judge, but points to something that I think is a bit unnecessary in Constitutional jurisprudence:

While duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress. See, e.g. , Nature’s Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v. Anderson, 1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food and Commercial Workers Union Local 75i v. Brown Group, 1995 WL 938594, at *6.

The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts ‘·try not to nullify more of a legislature’s work than is necessary” because they recognize that’” [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people’”(alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (plurality opinion))); Turner Broadcasting System, inc., 512 U.S. at 665-66. The “Court accords ‘ great The “Court accords ‘ great weight to the decisions of Congress”‘ in part because “[t]he Congress is a coequal branch of government whose Members take the same oath [judges] do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973)). These principles of deference are fully applicable when Congress legislates in the commercial sphere. The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends. See, e.g. , NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32 (1937); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 408 (1819). See also Thomas More Law Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder, 661 F.3d 1, 18-19 (D.C. Cir. 201 1) (Opinion of Silberman, J.)

So the Supreme Court should grant a great deal of deference to Congress, because Congress cares deeply about their Constitutional obligation!

Paging the folks over at Volokh:

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”

Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest […] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

So some don’t care, and some just assume the authority exists but can’t cite it, and some make up new sections of text in the Constitution that don’t even exist. Deferring to Congress on whether or not legislation is Constitutional is like deferring to Philip Morris on whether cigarettes are good for your health.

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