Category Archives: Commerce Clause

Where’s The Authority ?

Walter Williams asks a question that, unfortunately, nobody in power bothers to ask anymore:

A president has no power to raise or lower taxes. He can propose tax measures or veto them, but since Congress can ignore presidential proposals and override a presidential veto, it has the ultimate taxing power.

The same principle applies to spending. A president cannot spend a dime that Congress does not first appropriate. As such, presidents cannot be held responsible for budget deficits or surpluses. That means that credit for a budget surplus or blame for budget deficits rests on the congressional majority at the time.

Thinking about today’s massive deficits, we might ask: Where in the U.S. Constitution is Congress given the authority to do anything about the economy?

Or, more specifically, where is the Federal Government given the authority to bailout private lending institutions, bailout failing auto companies, and take over the health care industries ?

I’ve searched high and low in Article I, Section 8 and I sure as heck can’t find it.

Of course, I’m probably not using the modern translation.

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Common Ground for the Left and the Right on the Bill of Rights

Gov. Rick Perry’s Tenth Amendment Stance: Principle or Political Pandering?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. – Amendment X – Powers of the States and People. Ratified 12/15/1791.

Texas Governor Rick Perry (R) in his support of HCR 50, a resolution reaffirming Texas’ Tenth Amendment rights has reinvigorated not only the debate over state’s rights but also the ultimate “nuclear” option of a state’s right to secede from the U.S.

On April 9th, Gov. Perry explained his reasoning behind supporting the resolution.

    Gov. Rick Perry’s Tenth Amendment Stance: Principle?

Gov. Perry, speaking at a Tea Party event on April 15th went a step further telling the crowd that the day could come where Texas could decide to secede.

“We’ve got a great union. There’s absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that. But Texas is a very unique place, and we’re a pretty independent lot to boot.”

Christy Hoppe, writing for The Dallas Morning News, calls the notion that Texas has a right to secede a “mythology.”

“The fact is, the treaty under which Texas joined the U.S. provides that it could be divided into five separate states. But it is not empowered to leave the union, a question that the Civil War seems to have settled once and for all.”

Left leaning blogs such as Texas Liberal also agree that the question of secession was “settled” with the Civil War and goes even further stating that Gov. Perry’s statements are “treasonous.”

On further inspection, the idea that individuals on the Left would call the question of secession settled should not be surprising at all. When taken to its ultimate conclusion, the philosophy of the Left is “might makes right.” If a majority of people can be convinced they have the right to pick the pockets of a minority of taxpayers, for example, then by all means. In their collectivist world view, “the majority rules;” individual rights must always take a back seat to the will of the majority.

The question of secession was by no means “settled” by the Civil War (or the War Between the States if you prefer), at least not in a sense which recognized the rule of law. Abraham Lincoln made a choice between upholding the U.S. Constitution and preserving the Union. With his suspension of the writ of habeas corpus, and other civil liberties we normally take for granted, Lincoln chose the latter*. The state’s rights issue was “settled” from the barrel of a gun in a period of U.S. history we now call “Reconstruction.”

Beyond this “settled history” argument, it seems to me that if the federal government violates the Tenth Amendment and ignores the sovereignty of the states, it stands to reason that the states can ignore the dictates of the federal government (which is really all Gov. Perry is trying to do). The Tenth Amendment was a guarantee to those who were concerned about states losing sovereignty to a stronger federal government. After all, it wasn’t that long ago that they had secured their independence form Great Britain, why would they want to surrender sovereignty to a new authority?

Over time, the Tenth Amendment was ignored by the courts and the congress. The aftermath of the Civil War practically changed the term “The United States” from an “are” to an “is.” And with the passage of the Seventeenth Amendment in 1913, the states lost the ability to be represented at the federal level. For all practical purposes, the “United States of America” could be more accurately referred to as “The United State of America.”

These facts of history do not make the notion of either state’s rights or secession “mythology” by any means. The Declaration of Independence makes the case for “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another…” Thomas Paine’s “Common Sense” makes a similar case as does John Locke in his “Two Treatises of Government.” There is no shortage of political theory which supports Gov. Perry’s claim that states (and people for that matter) have the right to seek self determination and dissolve or separate themselves from oppressive government.

    Gov. Rick Perry’s Tenth Amendment Stance: Political Pandering?

Gov. Perry’s sudden concern for state’s rights does have me wondering about his motives. As I’ve pointed out above, this erosion of Tenth Amendment rights has been happening since before the text of the amendment’s ink dried. The federal government did not just start undermining state sovereignty when Barack Obama was sworn into office on January 20, 2009.

I can’t help but wonder how concerned Gov. Perry was when his predecessor, George W. Bush, moved from the Texas Governor’s Mansion and into the White House imposing unfunded federal mandates such as No Child Left Behind? On what side of the state’s rights debate did Gov. Perry fall when the Ashcroft/Gonzales Justice Department argued successfully before the Supreme Court that Angel Raich could not use marijuana for her medical conditions pursuant to California law on the theory of interstate commerce**?

Some of Perry’s critics believe that his sudden Tenth Amendment convictions have more to do with political pandering than principle (and they may have a point). Gov. Perry is looking to face Sen. Kay Bailey Hutchison in the 2010 Republican Primary Governor’s race. What better way to win support than to promote state’s rights at a Tea Party event? Who knows, perhaps with all of the state’s rights and small government rhetoric he’s espousing, small government minded Texans will forget about his executive orders forcing 11 year-old girls to receive HPV vaccinations?

While it is great to hear someone of Gov. Perry’s stature stating that there are limits to federal power, it would be a lot easier for me to accept as genuine if it wasn’t his party that was out of power in Washington.

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Note To Orrin Hatch — 13-0 May Be A Travesty, But It’s Not Congress’ Business

Orrin Hatch is undoubtedly merely responding to his constituents’ demands with this nonsense. The Utah Utes finished 13-0 last season, with notable wins over Michigan, Oregon State, ranked teams TCU and BYU, and a BCS bowl defeat of Alabama. It’s a pretty impressive resume. They were the only undefeated team in Div I-A (FBS). But they’re not the Champion. Florida, who finished 13-1 (with their sole loss being to Mississippi) is the Champion.

I understand the complaint. If a mid-major team like Utah can have the season they’ve had, beat the teams they beat, and still fall behind a one-loss school from a “major” conference, then no mid-major will ever be crowned Champion. Granted, Florida may have been the best team in college football (as the Patriots were the best team in the NFL in ’07-8 despite not winning Super Bowl XLII), but I don’t think the system for determining a Champion is very fair.

It’s not a system I like. It’s also not a system that Orrin Hatch likes, but he’s sticking the full power of the federal government into the debate:

Sen. Orrin Hatch, R-Utah, may be a skinny guy with a high voice. But he’s angrily setting out to tackle the biggest powers in college football, vowing to pound them until they reform the Bowl Championship Series.

He called them out Wednesday, as he and Sen. Herb Kohl, D-Wisc. — respectively the top Republican and Democrat on a Judiciary subcommittee on antitrust — released a list of topics that panel plans to consider this year.

A bit buried on Page 4 of an eight-page list, amid somewhat sleep-inducing reading on oil and railroad antitrust, is a nifty paragraph about the BCS.

“The BCS system leaves nearly half of all the teams in college football at a competitive disadvantage when it comes to qualifying for the millions of dollars paid out every year,” their joint statement says.

Then it drops its first unexpected bomb: “The subcommittee will hold hearings to investigate these issues.”

That is followed by a second: “Sen. Hatch will introduce legislation to rectify this situation.”

I realize that Congress believes it has purview over everything that occurs within our borders, but if their “fixes” for other problems are anywhere near as effective as this one will be, I’m not sure anyone will want to watch college football afterwards. I really wish they’d waste their time ruining something else, because I quite enjoy spending fall Saturdays watching one of the few worthwhile sports left.

Lawsuit Filed Alleging Hillary Clinton Is Ineligible To Serve As Secretary Of State

Judicial Watch, which was a thorn in the side of the Clinton Administration back in the 1990’s, has filed a lawsuit alleging that Hillary Clinton is ineligible to serve as Secretary of State:

WASHINGTON — A conservative watchdog group filed a lawsuit Thursday arguing that Hillary Rodham Clinton cannot legally serve as secretary of state, even though she was sworn in last week.

The suit is based on an obscure section of the Constitution on compensation for public officials, the emoluments clause. The clause says no member of Congress can be appointed to a government post if that job’s pay was increased during the lawmaker’s current term.

Clinton was serving in Congress when the secretary of state’s salary was raised to its current level of $191,300. So that Clinton could take the post, Congress last month lowered the salary to $186,600, the level when she began her second Senate term. A similar tactic has been used so that several other members of Congress from both parties could serve in the Cabinet.

Judicial Watch, which has pursued several suits against Clinton and other officials over the years, argues there can be no exceptions to the clause.

The group says that Hillary Clinton is “constitutionally ineligible” to be secretary of state until 2013, when her second Senate term would expire. She resigned from the Senate to take the Cabinet post.

A copy of the lawsuit can be found here, and it’s fairly straightforward.

Judicial Watch is representing a long-time State Department employee who alleges that it he would be damaged by being required to take orders, and act under the direction of, a Secretary of State who is ineligible to serve. Assuming that this is sufficient to get around the inevitable standing issues, the Constitutional argument is fairly straightforward:

  1. Article I Sec. 6, Clause 2 of the Constitution states that a sitting Senator or Representative cannot be appointed to a civil office for which the compensation was increased during the time that they served in the legislature
  2. On three separate occasions since Hillary Clinton began serving her second term in the Senate, the salary for the Secretary of State was increased by Executive Order.
  3. Therefore, by a strict reading of the emoluments clause, Hillary Clinton cannot be Secretary of State until at least 2013.

On the other side of the argument, there is the fact that, prior to the time that she took office at Foggy Bottom, Congress instituted a so-called Saxbe Fix — lowering the salary of the Secretary of State to where it was at the beginning of Clinton’s then-current Senate term. This is the same “solution” that was used when this issue came up in the past, although the last time it was tried Senator Robert Byrd pointed out that the so-called fix didn’t fix anything. (Of course, Saxbe was a Republican, and when Hillary’s nomination came before the Senate, Byrd voted yes)

As I noted when this controversy first arose, the Constitutional argument against Clinton’s eligibility is rather clear:

If the words of the Constitution mean what they say, then it seems fairly clear that Hillary Clinton is Constitutionally ineligible from serving as Secretary of State. Is it a dumb rule ? Probably, just like it’s a dumb rule that someone like Arnold Schwarzenegger couldn’t serve as President of the United States merely because he was born in a foreign country. The way to deal with dumb rules, though, isn’t to ignore them, but to change them via the method that the Constitution provides.

>However, I don’t see this lawsuit going anywhere for a very simple reason:

[N]o Federal Court Judge is going to say that Barack Obama cannot have the Secretary of State of his choice.

And that goes double for any Judge on the Court of Appeals, or any Supreme Court Justice.

Perhaps I’ll be proven wrong, but I doubt it.

Cross-posted from Below The Beltway

Montana Brings A Gun (10th Amendment) To A Knife (Interstate Commerce) Fight

This could get interesting:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in Montana from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into Montana and incorporation into a firearm, a firearm accessory, or ammunition manufactured in Montana does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Montana from those materials. Firearms accessories that are imported into Montana from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Montana.

Reading through the introduction to the bill, Montana directly claims that the 9th and 10th Amendments, the Montana state Constitution, and the fact that they are declaring all of this to be intrastate commerce removes them from federal regulation on firearms.

I’m not sure how this will stand up to the precedents of Filburn and Raich. Based on his concurring opinion in Raich, one may suspect that even Scalia (if he’s consistent) would strike down Montana’s statute:

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. … This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.” Lopez

Scalia just wrote the government’s argument in case they try to implement their will. They simply will claim that this intrastate activity substantially undercuts their ability to regulate firearms in interstate commerce.

Morally, I applaud the state of Montana for standing up for their Constitutional rights. Given modern Constitutional jurisprudence, though, I don’t have high hopes for their success.

Hat Tip: Billy Beck

Barack Obama Says The Constitution Is Flawed, And He’s Right

In what seems to be a follow-up to yesterday’s kerfuffle about Barack Obama’s comments about the Warren Court and redistribution of wealth, there’s now an audio clip of him from the same radio program discussing what he called a “fundamental flaw” in the Constitution:

I think it’s a remarkable document…

The original Constitution as well as the Civil War Amendments…but I think it is an imperfect document, and I think it is a document that reflects some deep flaws in American culture, the Colonial culture nascent at that time.

African-Americans were not — first of all they weren’t African-Americans — the Africans at the time were not considered as part of the polity that was of concern to the Framers. I think that as Richard said it was a ‘nagging problem’ in the same way that these days we might think of environmental issues, or some other problem where you have to balance cost-benefits, as opposed to seeing it as a moral problem involving persons of moral worth.

And in that sense, I think we can say that the Constitution reflected an enormous blind spot in this culture that carries on until this day, and that the Framers had that same blind spot. I don’t think the two views are contradictory, to say that it was a remarkable political document that paved the way for where we are now, and to say that it also reflected the fundamental flaw of this country that continues to this day.

Obama was referring, quite obviously, to those provisions of the Constitution that not only protected slavery, but enshrined it. First, there’s the infamous 3/5th’s clause in Article I, Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The provision in Article I, Section 9 that prohibited Congress from banning the slave trade before 1808:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

And, the provision in Article IV that required the return of fugitive slaves who managed to escape into non-slave states:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Each of these provisions enshrined and perpetuated an institution that constituted a gross violation of individual and violated the very principles upon which this nation was founded. It was a stain that ate at the very soul of the country and didn’t get erased until the blood of 600,000 men had been shed.

So, in that sense, <strong>Barack Obama is absolutely right when he says that the Constitution was “fundamentally flawed.”

And, you know what ? It still is.

For example, the Interstate Commerce Clause has been used to do far more than regulate commerce between the states. The Necessary and Proper Clause has been used to find powers for Congress and the President that exist nowhere in the Constitution. The Ninth and Tenth Amendments are, thanks largely to the vagueness of their language, largely unenforceable. Congress’s monetary powers have been ceded to an unelected Federal Reserve Board. And don’t even get me started about the flaws in some of the Amendments.

Right To Contract vs. “Human Rights”

Eugene Volokh writes about a case in New Mexico that demonstrates the extent to which the right to decide who you do business with has been eroded in the name of so-called anti-discrimination laws:

Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane’s work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock’s same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney’s fees and costs.

I haven’t seen any written statement of reasons, but the order must implicitly rest on two interpretations of state law: (1) This sort of photography company constitutes a “public accommodation,” defined by state law “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.” (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there’s no precedent precisely on point).

As Volokh points out, photography is an art form and the Human Rights Commission decision effectively says that the state can tell you what kind of art you can and cannot create. He goes on to point out, correctly I think, that several U.S. Supreme Court opinions make it clear that the state cannot compel you to endorse points of view that you disagee with and, arguably, by photographing a committment ceremony she finds personally offensive, this photographer would be endorsing something she does not choose to endorse.

More than that, though, this case points out the extent to which so-called “economic” rights, such as the right to decide who you do business with, have been eroded over the past 50 years. There is no reason that Ms. Huguenin should be forced to take on a job she doesn’t want to take. What if, instead of citing the same-sex nature of the ceremony, she has simply said she was too busy to take on the project ? Presumably, that would have been a legitimate reason to turn it down, and if that’s the case, then I see no reason why she should be forced to work for these people just because she doesn’t approve of their lifestyle.

The Threat To Limited Government In 2008

The Cato Institute’s William Niskanen points out that limited government is unlikely to fare well regardless of who’s elected in November:

An administration and Congress of either party is likely to approve a federal program of universal health insurance. Such a program was endorsed by most of the presidential candidates in both parties, was implemented by former Gov. Mitt Romney in Massachusetts, and has been promoted even by our friends at the Heritage Foundation — despite the prospect that it would substantially increase federal spending, the relative price of medical care, and both price controls and nonprice rationing of medical care. The failure of any presidential candidate or more than a few members of Congress to criticize the $150 billion debtfinanced “stimulus” package as ineffective or possibly counterproductive suggests that there is a broad bipartisan indifference to responsible fiscal policy. Another major threat to limited government that will probably be approved next year, whatever the outcome of the November election, is a first-stage national commitment to reducing the emissions of greenhouse gases; this ineffective but potentially very expensive policy is being promoted as a moral obligation, rather than the best of the alternative feasible responses to global warming.

Each of these would, of course, vastly increase the size, scope, and power of the Federal Government and none of the remaining three candidates who will occupy the White House on January 20, 2009 has pledged to eliminate or even reduce a single federal spending program.

The logic of what we’re likely to face in the future is summed up here:

Bruce Katz, director of the metropolitan policy program at the Brookings Institution, has claimed that “Chicagoland [and other major metropolitan areas] simply [do] not have the power or resources to achieve meaningful reforms to metroscale problems such as crushing traffic gridlock and inadequate work force housing on [their] own. . . . The federal government has a powerful role to play in helping metros address these and other issues — through smart investments, market-shaping information and environment-strengthening regulation. This potential is not being realized, since for too long the federal government has been strangely adrift and unresponsive to the dynamic forces at play in our country.”

Odd — with all these skills and resources, one might think that the federal government would already have solved the major problems of the programs for which it has a clear constitutional responsibility.

You might think that, but you’d be wrong.

Can The Government Force You To Reveal A Password ?

That’s the interesting legal question posed by a case out of Vermont:

The federal government is asking a U.S. District Court in Vermont to order a man to type a password that would unlock files on his computer, despite his claim that doing so would constitute self-incrimination.

The case, believed to be the first of its kind to reach this level, raises a uniquely digital-age question about how to balance privacy and civil liberties against the government’s responsibility to protect the public.

From a Constitutional perspective, there are two parts of the Bill of Rights that are at issue, the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Seizing someone’s computer, assuming that it is supported by a warrant based on probable cause, is clearly permissible. But what if you need an unbreakable password to access what may be incriminating evidence (in this case, child pornography) ?

Clearly, the Fifth Amendment permits a suspect to remain silent, and revealing a password (assuming it’s not written down somewhere on a piece of paper subject to seizure) would clearly seem to be testimony. And that’s what one Federal District Court Judge has ruled:

On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling Sebastien Boucher, a 30-year-old drywall installer who lives in Vermont, to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination. “If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court,” the judge said.

Now, here are the facts of the case:

The case began Dec. 17, 2006, when Boucher, a Canadian citizen with legal residency in the United States, was driving from Canada into Vermont when he was stopped at the border by a U.S. Customs and Border Protection inspector. The inspector searched Boucher’s car and found a laptop in the back seat, according to an affidavit filed with the court by Mark Curtis, a special agent with Immigration and Customs Enforcement who was called in by the inspector.

Boucher said the laptop was his, according to the affidavit. When the inspector saw files with titles such as “Two-year-old being raped during diaper change,” he asked Boucher if the laptop contained child pornography. Boucher said he did not know because he was not able to check his temporary Internet files, according to the affidavit.

Curtis asked Boucher “to use the computer” to show him the files he downloads. Curtis reviewed the video files, observing one that appeared to be a preteen undressing and performing a sexual act, among other graphic images, the affidavit says.

Boucher was arrested and charged with transportation of child pornography in interstate or foreign commerce, which can carry a sentence of up to 20 years in prison for a first offense.

Keep in mind that in some versions of the story I’ve read online, Boucher was said to have typed in the PGP password prior to showing the files to the Border Patrol agents. And that, it seems, could be his downfall:

Orin S. Kerr, an expert in computer crime law at George Washington University, said that Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive. “If you admit something to the government, you give up the right against self-incrimination later on,” said Kerr, a former federal prosecutor.

Kerr has blogged about the case at The Volokh Conspiracy and said the following:

I don’t play in the sandbox of the Fifth Amendment as much as I do the Fourth, but my sense is that Judge Niedermeier is wrong. True, being forced to enter in the password has a communicative aspect to it. It says, “I know the password to drive Z on my laptop.” But based on the specific facts of the case, don’t we already know that? Isn’t it a “foregone conclusion” under the Fisher case? Boucher admitted that it was his laptop, and he described how he used it. When he agreed to show the officers the files inside, he had no problem powering it up and bringing them to the contents of drive Z. The subpoena is simply trying to get Boucher to take the officers back to where he had already taken them before: through the passphrase so they can access the files Judge Niedermier’s response is that this is true for the child pornography the agents saw but that there may be other files on the computer that are also incriminating. Entering in the key will be akin to producing any other files that might exist, effectively saying, “these are files on my laptop.” But I think that’s wrong. As I see it, entering the passphrase doesn’t have any testimonial content as to Boucher’s knowledge or beliefs as to any other files in “drive Z” that may or may not exist. Maybe there are other incriminating files in drive Z. On the other hand, maybe there aren’t. But the answer to that is completely independent of what Boucher is being asked to do

It may be that entering in the passphrase will help the police find more child pornography, but that is not the result of the communicative aspect of responding to the subpoena. Boucher’s entering in the password won’t amount to Boucher’s testimony about anything they don’t already know in the context of this case. Its role is merely that it will let the police access whatever is on the hard drive, which may or may not relate to criminal activity and may or may not implicate Boucher. Boucher won’t be “bringing” the files to the police in response to an order to incriminating files; he ill merely be opening the door to the safe that we all know is his and that we seem to know he knows how to open.

I think Kerr is right on this issue. In the abstract, Boucher has a right to remain silent about the password to his files. His problem lies in the fact that he has already revealed the existence of the encrypted files, allowed the agent to view them (apparently using the password to do so), and admitted the computer was his.

The Nanny State Invades The School Cafeteria

Today’s New York Times reports that the Senate is about to consider a proposal to ban candy, soda, and fatty foods from the nation’s school cafeterias:

Federal lawmakers are considering the broadest effort ever to limit what children eat: a national ban on selling candy, sugary soda and salty, fatty food in school snack bars, vending machines and à la carte cafeteria lines.

(…)

The nutrition standards would allow only plain bottled water and eight-ounce servings of fruit juice or plain or flavored low-fat milk with up to 170 calories to be sold in elementary and middle schools. High school students could also buy diet soda or, in places like school gyms, sports drinks. Other drinks with as many as 66 calories per eight ounces could be sold in high schools, but that threshold would drop to 25 calories per eight-ounce serving in five years.

Food for sale would have to be limited in saturated and trans fat and have less than 35 percent sugar. Sodium would be limited, and snacks must have no more than 180 calories per serving for middle and elementary schools and 200 calories for high schools.

And to make the blow against Federalism even more pronounced:

Although states would not be able to pass stronger restrictions, individual school districts could.

Can someone please point me to the portion of Article I, Section VIII of this document that gives Congress the authority to decide what appears on a child’s lunch tray on a daily basis ? Yes, I know that Congressional power has expanded far beyond where it was intended but there are times when the grab for power is so egregious and unauthorized that it becomes, for lack of a better term, galling.

But will the American people protest ? Will they flood Congressional phone lines in protest of this latest invasion of the nanny state into their lives ?

My guess is that, for the most part, the answer to those questions will be no. For the most part, Americans will look upon this as a good idea and will thank their enlightened leaders in Washington for telling them what their children should eat because, you know, we’re all too stupid to figure that out.

H/T: Cato@Liberty

Another Strike Against Mike Huckabee

He supports a Federal law banning smoking in public places.

Governor, do me a favor, please read this document, especially this part, then read this Amendment, and this one.

Now, tell me, where exactly does the Congress of the United States get the authority to regulate smoking in public places ?

The Supreme Court’s Abortion Decision And Federal Power

Today, the Supreme Court upheld a nationwide ban on the controversial abortion procedure that has come to be called “partial birth” abortion:

WASHINGTON — The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.

The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman’s constitutional right to an abortion.

The opponents of the act “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,” Justice Anthony Kennedy wrote in the majority opinion.

The ruling is narrow, and it is significant in that it is the first Supreme Court ruling that deviated significantly from the precedent set in Roe v. Wade.

Now, I’m not writing here to debate whether the Court was right or not, or whether this particular abortion procedure is right or now. What I find interesting is the one question that the Court did not touch on — what authority does the United States Congress have to regulate a medical procedure ?

Congressional authority derives solely from the power granted by Article I, Section 8 of the Constitution. Nowhere in there, of course, will you find a provision that gives Congress the authority to regulate the practice of medicine. So where, you might ask,  does Congress claim the authority to regulate an abortion procedure ? From these words:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Yes, the Commerce Clause, which the Supreme Court has interpreted so loosely that it has gone far beyond the point where it actually imposed any limits on Congressional authority. For example, in 1942, in Wickard v. Filburn, the Supreme Court ruled that a farmer who grew wheat on his own land for his own consumption affected interstate commerce and was therefore subject to the regulations of Agricultural Adjustment Act of 1938. Once that happened, the door was open to allow Congress to use the Commerce Clause to justify extensions of Federal power into areas that the Founding Fathers would never have conceived it would be exercised.

The post-Wickard history of the Commerce Clause has been one of expanding federal power and increasing regulation of activities that have only a tangential relationship to interstate commerce. But there have been some bright spots recently.

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