Category Archives: Separation Of Powers

“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 Constitutional History Lessons You Didn’t Learn in School

More often than not, history is written by the winners and taught by individuals who love big government. Tom Woods’ Liberty Classroom has been providing a refreshing non-P.C. presentation of history that is rarely brought up. Very little of what we call history either is “settled” without controversy or without lingering questions.

• What is the true philosophical inspiration for the Declaration of Independence?
• What is the meaning of “natural law” and “natural rights”?
• Was the American Revolution just about “no taxation without representation”?
• Was the Articles of Confederation really inadequate for the needs of the several states?
• Was the Constitution itself legally drafted and adopted in replacing the Articles of Confederation?
• How controversial was the Constitution previous to its ratification?
• Was it originally the intention that the union would be perpetual? (i.e. Was it the common understanding during the ratification debates that states could leave the union or not?)
• What did the founders think about states nullifying federal law?
• Was the American Civil War (or “War Between the States”) really about slavery?
• Might slavery have ended without war?
• Was the Supreme Court intended to be the final arbiter of both state and federal law?

These questions and more are explored in Tom Woods’ Liberty Classroom. The video below “German and British Antecedents [to the U.S. Constitution]” is the first of 15 videos available for free from Liberty Classroom (watch the rest here,). Each lecture runs for about 25 minutes. Enjoy!

‘Super Epic’ Tweet of the Day

There’s some really great tweets about Sen. Rand Paul’s filibuster. So far, this is my favorite:

Recovered from the Memory Hole: When Obama Supported the Sequester

President Obama is really insulting the intelligence* of the American people acting as if he had nothing to do with the sequester he signed. In the SOTU he said congress “passed” the sequester. But as anyone who is old enough to remember School House Rock: “I’m Just A Bill” can attest, a bill doesn’t become a law without the president’s signature unless there are enough votes to override the veto.

Now personally, I am in favor of the sequester. The dire consequences President Obama are completely overblown. As Brad pointed out, we are talking about maybe 2% of this year’s budget. It’s very clear to me that for the most part, we are not dealing with serious people in neither the congress nor the Whitehouse.

That being said, it seems like everything President Obama says has an expiration date on it. It’s just too bad his policies don’t.

*Then again maybe not as more than half the American people approve of the job he is doing as POTUS. I’m not one of them.

Are You or Someone You Know a Victim of the Drone Mentality?

In light of the recent white paper release by the DOJ concerning the Obama administration’s drone policy, I thought it would be apropos to repost a post I wrote back in November 2011 entitled: Are You or Someone You Know a Victim of the Drone Mentality? I think it’s very telling how little interest there was by the MSM in reporting the drone policy until the Chosen One was safely reelected. The “anti-war” Left was also fairly quiet for the most part (Glenn Greenwald and a few others excepted).

Are you or someone you know a victim of what Glenn Greenwald calls “the drone mentality”?

[Emphasis original]

I was predictably deluged with responses justifying Obama’s drone attacks on the ground that they are necessary to kill The Terrorists. Reading the responses, I could clearly discern the mentality driving them: I have never heard of 99% of the people my government kills with drones, nor have I ever seen any evidence about them, but I am sure they are Terrorists. That is the drone mentality in both senses of the word; it’s that combination of pure ignorance and blind faith in government authorities that you will inevitably hear from anyone defending President Obama’s militarism.

If you are or have been a victim of this mentality don’t feel bad. I was once a victim of this mentality myself. I once believed that the government was completely incompetent domestically but somehow very efficient in its execution of the so-called war on terror.

The article continues [Emphasis original]

As it turns out, it isn’t only the President’s drone-cheering supporters who have no idea who is being killed by the program they support; neither does the CIA itself. […] Obama’s broad standards for when drone strikes are permitted, and noted that the “bulk” of the drone attacks — the bulk of them – “target groups of men believed to be militants associated with terrorist groups, but whose identities aren’t always known.” As Spencer Ackerman put it: “The CIA is now killing people without knowing who they are, on suspicion of association with terrorist groups”; moreover, the administration refuses to describe what it even means by being “associated” with a Terrorist group (indeed, it steadfastly refuses to tell citizens anything about the legal principles governing its covert drone wars).

Kill ‘em all, let [insert deity here] sort ‘em out…is this the policy for combating terrorism now? Is anyone else reading this disturbed by this?

[T]he internal dissent [inside the U.S. government] is grounded in the concern that these drone attacks undermine U.S. objectives by increasing anti-American sentiment in the region (there’s that primitive, inscrutable Muslim culture rearing its head again: they strangely seem to get very angry when foreign governments send sky robots over their countries and blow up their neighbors, teenagers and children)[…] Remember, though: we have to kill The Muslim Terrorists because they have no regard for human life.

Nah, that can’t be it. They hate us because of our freedom. Just ask John Bolton, Rick Santorum, and the rest of the Neocons who are chomping at the bit to start a war with Iran.

How is it that this drone mentality persists and what is the cure?

This is why it’s so imperative to do everything possible to shine a light on the victims of President Obama’s aggression in Pakistan, Yemen, Somalia and elsewhere: ignoring the victims, rendering them invisible, is a crucial prerequisite to sustaining propaganda and maintaining support for this militarism (that’s the same reason John Brennan lied — yet again — by assuring Americans that there are no innocent victims of drone attacks). Many people want to hear nothing about these victims — like Tariq — because they don’t want to accept that the leader for whom they cheer and the drone attacks they support are regularly ending the lives of large numbers of innocent people, including children. They believe the fairy tale that the U.S. is only killing Terrorists and “militants” because they want to believe it…

For far too long, I believed this fairy tale myself. I couldn’t handle the truth but I eventually saw the error of my thinking. Government is just as blunt an instrument on foreign battlefields as it is in virtually every domestic aspect of our lives but even more destructive and deadly.

How about you, can you handle the truth?

The truth (according to sources cited in the article) that between 2,359 and 2,959 people (nearly 200 of whom were children) have been killed in 306 documented drone strikes, 85% of which were launched during the administration of the Nobel Peace Prize winner President Barack Obama?

If you are willing to confront the drone mentality head on, I would strongly encourage you to read the rest of Greenwald’s article.

“Common Sense” Legislation to Curb Gun Violence?

Like most people who value individual liberty, I listened to President Obama’s speech about reducing gun violence with a great deal of trepidation. He presented several ideas such as limiting the size of magazines to 10 rounds, banning “military-style assault weapons” (i.e. any gun that looks scary to progressives who know almost nothing about firearms), and “universal” background checks for anyone trying to buy a gun just to name a few “common sense” reforms. In so many words he basically said that anyone who doesn’t favor these proposals is getting in the way of preventing future gun violence (Why even St. Ronald Reagan was even in favor of some of these proposals!)

One point of particular irritation for me is this notion being promoted by the Left that AK-47’s and other “weapons of war” should not be made available to “civilians.” President Obama rightly pointed out that these weapons with these magazines “ha[ve] one purpose: to pump out as many bullets as possible, to do as much damage using bullets often designed to inflict maximum damage.”

Well if we civilians do not “need” these weapons, why should the police have them? Someone correct me if I’m wrong, but aren’t the local police also considered “civilian”? (i.e. civilian law enforcement). Why do the police “need” these awful “weapons of war” which “inflict maximum damage” to serve a warrant for a late night drug bust?* If everyone else should be limited to certain weapons with magazines containing 10 rounds or less, they too should be limited to what weapons are permissible (or at the very least, what situations these weapons should be used). To suggest otherwise would be to suggest that the police are “at war” with the “civilians” since war is all these weapons are good for.

As some who are critical of the president’s approach have correctly pointed out, these reforms would not have prevented the killing at Sandy Hook Elementary. Obama and his allies like to say “if these proposals save only one life…” but they fail to recognize that these reforms might save one life in one situation but might cost a life in another situation (such as a home invasion; the homeowner runs out of rounds due to smaller magazine capacity etc.). Most, if not all of these reforms are meaningless measures to prevent guns from falling into “the wrong hands” (at best) so that the president can say he’s “doing something” to prevent mass shootings.

Some of these proposals do seem reasonable based only on the broad outlines (as always, the devil is in the details). I don’t have a problem with person-to-person background checks** in the abstract. Why shouldn’t an individual be subjected to the same background check as when buying from a gun dealer when s/he is buying from someone who posted his firearm on Craig’s List? I would think that the seller would want to have the peace of mind and/or limit any exposure to liability for any misuse of the firearm.

There are many proposals that are being floated that need to be thought through rather than rushed through to score cheap political points. These proposals go well beyond the 2nd Amendment into areas such as free speech (i.e. censorship), doctor/client privilege (privacy), state’s rights, and more. I do think that we supporters of the right to bear arms need to try to offer up some “common sense” solutions of our own to reduce illegitimate force that either enhance liberty or at the very least, do not tread on the liberties of others.***

» Read more

Fiscally Conservative Republicans To Spend $3M In Tax Dollars To Defend DOMA

Ugh.

House Republican leaders have signed on to spend up to $3 million to keep defending the Defense of Marriage Act in court, according to a copy of their newly revised legal contract obtained by The Huffington Post.

House Republican leaders took over the legal defense of DOMA in the spring of 2011, when Attorney General Eric Holder announced the Obama administration would no longer defend it on the grounds that they found it unconstitutional. House Speaker John Boehner (R-Ohio) and other GOP leaders hired attorneys at the law firm Bancroft LLC to represent the House in court cases involving the federal ban on gay marriage — all with taxpayer dollars.

I’m outraged by their spending more of my money on this crap…

But let’s be honest on one point (why I added the emphasis above). The Executive is not exactly a fair and impartial arbiter of what is and is not Constitutional. I’d have to think that President Kill List and Secretary of Defense Dronestrike might need to re-read that old parchment — perhaps the 4th, 6th, and 14th Amendments would be good places to start?

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.

Quote of the Day: Killing vs. Squealing Edition

Judge Andrew Napolitano wrote an excellent article in yesterday’s Washington Post entitled: Killing vs. Squealing. The judge laments that the Republicans in the congress aren’t so much concerned about the fact that President Obama is acting as a third-world warlord thug killing individuals he picks out from a deck of “baseball cards” in Yemen, Pakistan, and elsewhere (foreigners and Americans alike) but the fact that someone, somewhere in the government has leaked this information to the press and the American public. Sen. John McCain and others apparently believe the Obama administration has leaked these facts to the press to show how effectively he is killing the “terrorists” abroad to preempt any attacks from the Romney campaign that Obama is somehow weak on “national security.”

Just about every paragraph in the judge’s article is quotable (seriously, read the whole thing) but I believe he summed up just where the “loyal opposition” is with regard to the president’s arguably impeachable activities best here:

Which is ultimately more harmful to freedom: that the president on his own kills, maims and destroys, or that some people in our own government who have greater fidelity to the Constitution than loyalty to an out-of-control presidency – and who are protected by law when they reveal government crimes – tell us what the president is up to? What kind of politicians complain about truthful revelations of unconstitutional behavior by the government, but not about death and destruction, and, let’s face it, criminal abuse of power by the president? Only cynical, power-hungry politicians who have disdain for the Constitution they have sworn to uphold could do this with a straight face.

[…]

How base our culture has become when the hunt for truth-tellers is more compelling than the cessation of unlawful government killing.

Yeah, the funny thing is, just four years ago when Bush was president, our culture (i.e. the MSM, Hollywood, academia, the anti-war movement, etc.) was very concerned about government secrecy, civil liberties violations, torture, secret prisons, getting out of Iraq & Afghanistan, etc. but now that their guy is in the Whitehouse, these very valid concerns seemingly have fallen by the wayside. If people in the opposition party doesn’t call the president out on this, don’t think for a moment that the president’s allies will. Something tells me that in the event Romney wins in November, all of these concerns will suddenly be back in vogue but not until then.

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.

Counterpoint: The Supreme Court Will Find The Individual Mandate Unconstitutional

Earlier this week, Brad Warbiany started out the latest in our occasional series of Point-Counterpoint exchanges by arguing that the Supreme Court will ultimately uphold the Constitutionality of the Patient Protection And Affordable Care Act’s individual mandate. I’ll start off by saying that this is not an all implausible. Indeed, I’ve argued myself in the past that the odds were quite good that the Supreme Court would uphold the constitutionality of the mandate. Moreover, as Brad notes, the history of the Supreme Court’s Commerce Clause jurisprudence has been one where the Court has essentially been nearly completely deferential to Congressional exercises of authority in this area. If one were making a bet, the safe bet would be the one that says the mandate would be upheld. Nonetheless, as I argue below I believe that the Supreme Court will in the end strike down the mandate, although the fate of the rest of the PPACA remains far from certain.

The Mandate Forces Citizens To Act In A Manner Never Before Seen In American History

Brad argues against the assertion that the mandate is unique in American history because it forces citizens to purchase a product from a private seller by pointing to examples of other things that the government forces people to do, such as the military draft and jury service. It’s correct that these programs are, at least theoretically, authorized by various provisions of Article I, Section 8. However, that’s very different from what the mandate purports to set in place, which is a requirement that every person in the United States engage in a specific commercial transaction whether they choose to or not. As more than one legal commentator has noted, this is unprecedented in American history and likely one of the main reasons that the PPACA itself has aroused the ire of such a large segment of the American public. As a general rule, Americans don’t like being told what to do by the government and, for many people, this was a bridge too far.

The question is whether it is authorized under the Constitution, and I think the case in favor of it is far stronger than the supporters of the law have been willing to admit up until last week’s hearings.

The Commerce Clause

As I noted above, the Supreme Court has, at least since the New Deal Era, been very deferential to Congressional assertions of authority under the Commerce Clause. This started, as Brad notes, with the case of Wickard v. Filburn in which the Court upheld a provision of the Agricultural Adjustment Act that allowed Federal authorities to bar a farmer from growing “excess” wheat even though he would not be selling it and would solely be using it for personal use on his farm. The Court reasoned that this was acceptable because the farmer’s actions had an impact on Interstate Commerce, even though it might only be a small one. It’s a decision that has always aroused the ire of advocates of limited government and it’s implications are wide ranging. Thanks to Wickard, the Court spent some 50 years rubber stamping Federal assertions of authority under the Commerce Clause. Indeed, after the New Deal Era there were very few challenges to such laws that even made it to the Supreme Court.

Then, in the late 90s things took a surprising change. In Morrison v. United States, the Court struck down several provisions of the Violence Against Women Act which purported to make domestic violence a matter for federal law enforcement under certain circumstances. The Court held that there was no evidence that domestic violence had any connection at all to interstate commerce that would justify giving the Feds police authority that is properly the authority of state governments. Several years later, in Lopez v. United States, the Court struck down the Gun Free School Zones Act on the ground that there was not a sufficient nexus with interstate commerce. Suddenly, it seemed, the Court was finding limits to the Commerce power. There seemed to be a setback when the Court upheld Federal drug charges against a California medical marijuana dealer in Gonalez v. Raich, but there’s a good argument to be made that this case is distinguishable based on the fact that it dealt with illegal drugs and that the Court was unwilling to issue a ruling that would have thrown every single Federal drug law into Constitutional doubt. Had Gonzalez dealt with any other commodity, it’s quite conceivable that it would have gone the other way.

It’s been said by PPACA advocates that striking down the mandate would require the Court to overrule 70 years of Commerce Clause precedent, but Morrison, Lopez and even Raich, show that this isn’t necessarily true. Each of the courts that have struck down the mandate have held that the problem with the mandate isn’t that the Courts have been wrong for the past three-quarters of a century about the Commerce Clause, but that even those precedents do not authorize what Congress wishes to do in this particular case. Indeed, it is perfectly easy to distinguish Wickard and its progeny from the PPACA mandate in a way that preserves precedent and yet compels the conclusion that the mandate is a Constitutional bridge too far.

This is what I expect the Supreme Court to do when it issues its opinion in June. Much to the relief of liberals and the chagrin of conservatives, striking down the individual mandate will not mean that the New Deal will be rolled back. What it will mean, though, is that, as in Lopez and Morrison, the Court will be drawing a line and saying that Congress cannot cross it because it does not have the Constitutional authority to do so. It will, in other words, further articulate a limiting principle for the Commerce Clause.

Which brings me to the next part of Brad’s argument I need to address.

Limiting Principles

Brad is correct that the Court could construct a limiting principle if it ends up saying that the mandate is Constitutional. Perhaps this is what it will end up doing. However, it is worth understanding the importance of the failure of the Government to articulate a limiting principle when asked for one by the Court. For one thing, this isn’t the first time that the Court has failed to do so. Reviewing the transcripts of oral argument in many of the lower court proceedings, one runs into other occasions when Judges inquired of the attorneys for the Government whether they believed that there was any limit on the Commerce Power given their arguments in favor of the mandate. In no case were the attorneys willing or able to do so. In some cases, this was cited by Judges as a reason that the mandate cannot be upheld, in others it wasn’t (athough it is worth noting that lower Court judges are bound by precedent from the Supreme Court in a manner that Supreme Court Justices are not).

As a purely tactical matter, it strikes me that an attorney who is unable to provide an answer when a Judge asks “If I rule in your favor, what guarantee is there that I won’t be establishing a precedent to do X” is potentially damaging their case. Most judges are not, by their nature, radicals.Meaning that if they can avoid issuing an opinion that could have far reaching consequences they are likely to do so. It was quite evident from the questioning during last week’s oral argument over the individual mandate that the Court, and specifically Justice Kennedy, has some concerns about the future implications of issuing an opinion upholding the mandate. The Solicitor General’s failure to provide an answer may end up being fatal to the Government’s case.

The Necessary And Proper Clause

This is perhaps the strongest argument that Brad raises. Under the broadest interpretation of the Supreme Court precedents on this case, anything that is necessary for Congress to carry out one of it’s authorized powers is Constitutional. Indeed, this is pretty much what the Supreme Court said when it authorized the creation of the First Bank Of  The United States in McCullough v. Maryland. For that reason alone, it’s interesting that there was so little discussion of the necessary and proper clause during the oral argument last week. Partly, this may be because the law here is pretty much settled and has been for nearly two centuries but one would have thought that Paul Clement, the attorney for the states would have been subjected to some strong questioning on this topic by the Justices on this issue. He really wasn’t, although there was some discussion about whether the health care market was “unique” in some way that made this mandate permissible.

The problem with this argument that it still leaves the Court searching for a limiting principle. If Congressional power under the Commerce Clause to regulate the interstate health care/health insurance market is so broad that it can enact a law that includes a requirement that all Americans purchase insurance, then does that mean that its power to regulate the interstate automobile market is so broad that it can enact a law requiring Americans to buy only American made cars? Even if the Court were to decide that the Necessary and Proper Clause was sufficient authorization for the mandate, it would still be left with the limiting principle question. And my reading of the Court at this time is that there is a majority right now that is unwilling to issue an opinion that would essentially be an open door to Congressional intrusion in even more aspects of the economy, and an end to any hope that there could be limits imposed on Washington, D.C.

Conclusion

I could end up being totally wrong about this, of course. This case is so closely dividing the Court that it’s impossible to guess how it will turn out. I will say that I think that if the mandate is struck down we are looking at a 5-4 decision because there is just no way that I can see Breyer, Ginsburg, Sotomayor, or Kagan going over to the side of the conservatives on this issue. However, if the mandate is upheld I would not be surprised to see it be a 6-3 decision for a very specific reason. Ordinarily, the most senior Justice in the majority gets to decide who writes the majority opinion. However, if the Chief Justice is in the majority he gets to make that decision. If Kennedy ends up voting to uphold the mandate then I could see Chief Justice Roberts joining him so that he can write the opinion himself and make the precedential value of the decision as limited as possible.

However, if the Court were to strike down the mandate, I believe I’ve laid out a perfectly rational, Constitutional basis on which they would do so. That doesn’t mean there won’t be a political firestorm, of course, but there is going to be a political firestorm no matter how the Court rules. I don’t think there’s ever been a time in American history when such an important case was in the hands of the Court in the same year as a Presidential election. Especially an election where the very issue the Court is dealing with, the limitations on the authority of the state contained in the Constitution, were also the central issue in the Presidential election. It’s going to be a very interesting opinion regardless of which way it comes down.

Point: How The Supreme Court Will Find The Individual Mandate Constitutional

This is part of The Liberty Papers’ continuing Point/Counterpoint series, where two contributors (or a contributor and a guest) argue competing sides of an issue. In this installment, I will argue that the Supreme Court has a realistic defensible argument to find the Individual Mandate in ObamaCare Constitutional. Tomorrow, Doug Mataconis will respond with a rebuttal. Links will be updated in each post as they appear.

UPDATE 4/4: Doug’s rebuttal is available here.

As always, we’re constantly looking for good debate topics for this series, and qualified guest posters to argue one side against one of the contributors.

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Stipulated up front — I believe that ObamaCare is a severe affront to individual rights, limited government, and the ideals upon which our Republic was founded. In my own view of Constitutional jurisprudence, overturning the law is a no brainer. But as with most things our government does, they’re not listening to me, so the question is simple:

Does the Supreme Court have enough precedent to find the individual mandate Constitutional?

I think they do. And the argument has several elements.

Forcing You To Act

One of the first points of contention is the question of regulating activity versus regulating inactivity. The question being whether or not the Congress can force you to act if you choose not to. Many claim that Congress forcing you to purchase a good from a private seller is a bridge farther than they’ve ever gone before.

But taking the question of “buying from a private seller” out of the equation, is anyone suggesting that the government can’t force you to do something under threat of fine or jail? Ever heard of the Selective Service? I’d say a government that can force me to report for military service to die for my country is asking something a fair bit more serious than demanding I have health insurance. The government in this case can COMPEL you to do something within its rightful power — the power to raise armies. Or on a subject less likely to result in ending up full of lead, there’s Federal jury service. The government can COMPEL you to do something within its rightful power — the power to raise courts and ensure defendants a fair trial judged by their peers.

The question isn’t whether or not the government can force you to do something — Republicans, Democrats, Presidents, and Supreme Court Justices have all agreed that it can. The question is whether or not forcing you to buy health insurance falls within the power of what they can force you to do.

The Commerce Clause

Most of the debate so far has centered around whether the mandate — a regulation of inactivity, not of activity, is within Congress’ commerce clause power. We’ve had cases like Wickard v. Filburn, where the Court has ruled that someones activity can be regulated whether or not it directly engages in interstate commerce, because the act of growing your own wheat [and not buying it from the market] may have an affect on interstate commerce. We’ve even had Gonzales v. Raich, where the Court has ruled that the grasp of Congress extends even to activities which affect an interstate market in goods the government would prefer have no market at all.

The Government’s lawyers in this case say that the mandate is Constitutional because not buying insurance may affect interstate commerce. The opposition states that Congress can regulate activity related to interstate commerce, but regulating inactivity is a bridge too far. Supporters of ObamaCare, however, do have a point here. It can hardly be argued that refusing to purchase health insurance means that you’re not impacting the US healthcare system. Unless you have an ironclad “do not treat” waiver stapled to your forehead at all times, I’m pretty certain that if you’re in a car wreck and unconscious, you’re going to become a participant in the healthcare market. And if you don’t have insurance, that’s likely to bankrupt you, cost the taxpayer a hefty sum, or both. In this case, your supposed inactivity really is activity.

But this isn’t the only argument. One of the key points that is not argued is whether or not the US Congress has the authority to regulate the US Healthcare market at all. And the reason that’s not being argued is that it’s flatly assumed that Congress can regulate the healthcare market. In fact, even most pro-liberty Constitutionalists agree that if Congress had simply voted for a single-payer system, current Supreme Court jurisprudence wouldn’t have any cause to overturn it. So this brings us to our next point:

The Necessary and Proper Clause

This is really the crux. The clause says that Congress has power to make all laws “necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” A long time ago, that limited the government significantly. In fact, in the fight over the First Bank of The United States, the Feds argued that the Bank was necessary to engage in all the things that the government legitimately and Constitutionally needed to do. The opponents argued that while the Bank may be convenient and helpful to the government to do what it needs to do, it was hardly necessary. They took a very strong view that the word “necessary” meant what it said — if you could accomplish the goal without doing X, then X didn’t meet the Constitutional requirement of necessity.

Sadly, the Necessary & Proper clause was one of the first to get ignored by the Supreme Court, as Randy Barnett (a lawyer opposing ObamaCare in this case) pointed out in his book Restoring the Lost Constitution. One of the key growths in Government power over the early days of the Republic was to grant deference to Government lawyers if they said something was necessary.

In this case, much of the oral arguments centered around whether ObamaCare could stand without the individual mandate. Both sides agreed that Congress has the power to regulate healthcare, but they didn’t agree that the individual mandate was, on its own, Constitutional. After all, if they can mandate you purchase insurance, which might help restrain the growth of healthcare costs, might they not also mandate you purchase broccoli, as the health effects thereof might help restrain the growth of healthcare costs?

Many ObamaCare opponents cheered at the lines of questioning whether ruling the mandate Unconstitutional would cause the entire law to fall. Those opponents believed that it was a way for the Court’s conservative wing to ensure that they could toss out the whole law, rather than simply severing the mandate. But looking at the argument another way, it proves that the mandate is necessary to the law.

So let’s look at the “necessary and proper” test. First is propriety — laws made by Congress are only proper if they relate to one of its Constitutional powers. While I might not think Congress has legitimate authority to make sweeping healthcare legislation, I think we’ve well established that current Court jurisprudence is untroubled by the idea that Congress has commerce clause power to regulate healthcare. So the test of propriety is cleared. The second is necessity: is the mandate necessary to fulfill Congress’ authority to regulate the interstate commerce of healthcare. And I think the oral arguments proved, regardless of what side you’re on in this debate, that the mandate is absolutely necessary to the structure of the law. Get rid of the mandate, and you might as well throw the whole thing out.

So if regulating the healthcare market is a legitimate authority of Congress, within their purview granted by the commerce clause, then the question becomes whether this mandate is necessary for them to exercise their authority. I think the answer, as shown by oral argument, is yes. So the government clears the bars of both the Commerce Clause and the Necessary and Proper clause.

Limiting Principles

A final argument by the opponents has been that if the mandate stands, it grants Congress ultimate power, which the Court will not allow to happen. And they’ve been encouraged by some lines of questioning in oral argument, where the “broccoli test” showed that the Government’s lawyers were unable to articulate a limiting principle of their argument.

But as loath as I am to agree with Kevin Drum on something (or whoever he borrowed the argument from), the Government doesn’t need to articulate a limiting principle. It’s up to the Court to determine whether THIS action is Constitutional. And they could very easily craft a limiting principle that allows the individual insurance mandate but doesn’t allow for an individual broccoli mandate.

How simple is it?

Q. Is the individual insurance mandate absolutely necessary to the very structure of Obamacare?
A. Yes.
Q. Is the hypothetical broccoli mandate absolutely necessary to the very structure of Obamacare?
A. No. Are you f’ing serious?

The Court already has the “necessary & proper” clause as its limiting principle. If they accept the basic structure of ObamaCare as Constitutional, extending to Congress a provision that might be Unconstitutional on its own, but necessary as part of a wider power, would not be a shock.

Conclusion

I’m not going to claim that the above argument suggests that the Court will find ObamaCare Constitutional. I’m a firm believer in the idea that the Justices often decide — like people in all other walks of life — what they want to do and rationalize an argument into it afterwards. And I think we have a pretty decent idea how 8 of the 9 Justices will decide in this case, a 4-4 tie broken by Anthony Kennedy.

Should Kennedy vote to overturn the mandate, I expect the majority opinion to fall to one of the solid conservative justices. Should Kennedy vote to uphold, he very well might pen the majority opinion. For Kennedy to accept the mandate, I think he has to see a legitimate limiting principle — and the necessary & proper clause provides both the grounds for upholding the mandate and the inklings of a limiting principle in one fell swoop. Oh, and in case you followed the oral arguments, Kennedy was *very* interested in the concept of severability and seemed to assume, whether he votes to keep it or toss it, that the mandate was necessary to the structure.

I don’t know which way this thing’s gonna go, but I’m not as confident as other libertarians, conservatives, and small-government Constitutionalists. I see a very plausible rationale for upholding it, and thus I think we’re hoping that one oft-flighty Justice happens to come down on our side of the vote.

Quote Of The Day

Is there a more worthless phrase on the political landscape than “judicial activism”?

And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.

Really? EJ Dionne thinks that a legislature should be able to do whatever it wants, even if it violates the Constitution (as the Florida elections board did in Bush v. Gore and the US Congress did in Citizens United)? So he wants to throw out the entire doctrine of judicial review that’s existed since the days of English Common Law & Marbury v. Madison?

No, I don’t think that’s it. I don’t think he supports the Congress doing things that are unconstitutional. He’s just attacking the Court for striking down policies he likes. Just as conservatives do when the Court strikes down policies they like.

Claims of “judicial activism” are just criticisms of a Court doing something you disapprove of. But claims that the Court should defer to the legislature are misplaced — the Court is a check on the power of the legislature, as it should be. It’s there to rein in the legislature when they try to do something beyond the bounds of their Constitutional authority. That’s not judicial activism, that’s their job.

Book Review — The Cult Of The Presidency, Gene Healy

America has a love affair with the Presidency. Unfortunately, that love affair is a codependent, abusive relationship, and one in a very long string of the same. It wasn’t always this way. But to fix the problem, as with most abusive relationships, we need to fix ourselves first — ask what it is we want from a President and whether there’s ANYONE in the field, ANY year, who can provide it.

Thankfully, Gene Healy, based on his book of a few years ago, Cult Of The Presidency, can tell us why we keep picking megalomaniacs. And for a limited time, Cato is providing this therapy for free (in electronic/eBook form)!

In Cult Of The Presidency Healy provides a detailed and informative review of the [lack of] power wielded by the office of the President in the first century or so of our Republic. He then details some of the many expansions of power the office has seized, starting in the Progressive Era and moving forward through the decades and personalities to Bush’s administration, focusing on the enormous change in warmaking powers, domestic spying, and national “Father Figure” on the matters of domestic policy that the executive branch has become. Finally, he discusses many of the changes in Congress and the electoral/campaigning process that have occurred over the last century, moving from a party-elite driven process to the current national primary structure, which has changed the office and the type of person who would seek it. Finally, he offers some limited hope for a future where Americans, through nothing more than a lack of respect and trust in the office and its inhabitants, might eventually walk the nation back from what he hopes is the high water mark of executive power. But he freely admits that hope might just be wishful thinking on his part.

All in all, this was an excellent read. For as much as I try to be informed about history and civics, there was a LOT in here that was new material for me. For example, I hadn’t realized that the politicking process was so different prior to, say, the 1950’s than it is today. I had always assumed that the current system of state Presidential primary votes to nominate a candidate had been the standard for most of our history — it turns out it’s a very recent phenomenon. Much like Restoring The Lost Constitution did for me with the history of Constitutional law, the book took a topic about which many libertarians have bits and chunks of information, and much more clearly and methodically explained the changes both over time and with the specific Presidents involved.

I don’t often have anywhere near enough time to read. This is a book that I am *extremely glad* I finally got around to reading. It’s a book that I’d gladly recommend at Amazon’s Kindle price of $8.49, but with Cato giving it away for free right now, I’d suggest jumping at it immediately.

Ron Paul CNN National Security Debate Highlights and Observations

For those of us who value our liberties, there were a plethora of things said in last night’s debate from candidates not named Ron Paul to be very distressed about. For starters, there was the debate about the USA PATRIOT Act and whether it should be renewed, strengthened, or abolished. Unsurprisingly, Paul explained how civil liberties have eroded due to the act and lamented how willing the other candidates were to surrender even more liberty in the name of security. Paul held up Timothy McVeigh as an example of a terrorist who was tried in the traditional criminal justice system and ultimately convicted. In response, Newt Gingrich said “Timothy McVeigh succeeded.” (How he would have stopped the OKC bombings is anyone’s guess but I can’t imagine it would have been inside the framework of the Bill of Rights.) Paul’s response was spot on.

Then Rick Santorum advocated the notion of racial, religious, and ethnic profiling. Paul once again brought up Timothy McVeigh as an example of someone who would not have fit Santorum’s profile and pointed out some of the “careless use of words” being used by the other candidates (i.e. “we are at war,” naming individuals “terrorists” without due process etc.) is further compromising our liberty.

Other topics included Iran’s nuclear ambitions, the foregone conclusion that the U.S. should intervene anywhere and everywhere there is a regime our government doesn’t like, the assumption that not a single penny should be cut from the “national defense” budget, and the drug war violence in Mexico (I really wish someone would have brought up Fast and Furious).

Overall, the debate was very unsettling but Ron Paul once again was the voice of reason and responded well to his challengers.

Quote of the Day: Americans Cheer the Assassination of the Fifth Amendment Edition

Glenn Greenwald writes in response to the overall positive reaction of the drone assassination of American born Anwar al-Awlaki:

What’s most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government. Many will celebrate the strong, decisive, Tough President’s ability to eradicate the life of Anwar al-Awlaki — including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry’s execution of scores of serial murderers and rapists — criminals who were at least given a trial and appeals and the other trappings of due process before being killed.

From an authoritarian perspective, that’s the genius of America’s political culture. It not only finds way to obliterate the most basic individual liberties designed to safeguard citizens from consummate abuses of power (such as extinguishing the lives of citizens without due process). It actually gets its citizens to stand up and clap and even celebrate the destruction of those safeguards.

Sadly, among those that cheered this assassination of an American citizen are none other than pro war on terror libertarians Neal Boortz and Larry Elder. When Boortz heard that Ron Paul and Gary Johnson condemned the assassination, he called that notion “a bunch of horse squeeze.” After playing Ron Paul’s very well reasoned response explaining his objections, Larry Elder said that Paul “doesn’t get it” and “we are at war.”

I’m sorry gentlemen, I wasn’t aware that there was a “war on terror” exception to due process. But hey you guys are both attorneys who claim to hold the Constitution in high regard so what the hell do I know?

If there is anything our government does well its convicting people, putting them in prison, and/or executing them. If the government really had the goods on this guy, there’s virtually no chance he would have been found not guilty.

President Obama not only ordered the assassination of Anwar al-Awlaki but the Fifth Amendment as well.

Related: Obama: Judge, Jury, and Executioner in Chief

Don’t Bother with the Fine Print, Just Pass the Bill

The title of this post ought to be a red flag no matter who the president is or what your political persuasion. President Obama is demanding that congress pass his “American Jobs Act” in front of supportive crowds of people who I am sure have taken the time to read the whole bill and understand its contents. This bill should be passed “immediately” and with “No games, no politics, no delays,” so sayeth our dear leader.

I can’t help but think of another piece of legislation that had to be passed “immediately” and “without delay” nearly ten years ago in the aftermath of the terrorist attacks of 9/11. The piece of legislation I am referring to of course was the USA PATRIOT Act. I mean what’s not to like? The bill has the words “USA” and “PATRIOT” in them and would make our country safer because the law would give law enforcement the tools needed to fight terrorism.

One of the tools the PATRIOT Act (Sec 213), a.k.a. “sneak and peek” provided law enforcement the ability to delay notification of search warrants of someone suspected of a “criminal offense.” Between 2006 and 2009, this provision must have been used many hundreds or thousands of times against suspected terrorists, right? Try 15 times. This same provision was used 122 in fraud cases and 1,618 times in drug related cases.

Is this what supporters of the PATRIOT Act had in mind when most of them didn’t even read the bill?

So we’ve been down this road before – pass a bill with a name that no one would be comfortable voting against. To vote against the PATRIOT Act might suggest to voters that you are somehow unpatriotic as voting against Obama’s jobs bill will undoubtedly be used in campaign ads to say opponents are “obstructionists” or are not willing to “put politics aside” in order to “put Americans back to work.” And don’t even get me started on all the bad laws that have been passed using names of dead children.

But who is really playing political games here? I think the answer quite clearly is President Obama in this case. He knows damn well that if the economy is still in the shape it is come Election Day he has very little chance of winning a second term unless he can find some way to successfully pin the blame his political opponents. He knows that raising taxes is a nonstarter for Republicans – particularly Tea Party Republicans. There may be some good things in his bill that should be passed (the Devil is in the details of course) that Republicans can support but if it’s all or nothing, the answer will be nothing.

President Obama is counting on the nothing so he can say it’s the House Republicans’ fault that the economy hasn’t recovered. This class warfare rhetoric plays very well on college campuses and union rallies. The worst thing that could happen from Obama’s perspective is if the Republicans call his bluff, pass the bill, and the bill fails to provide the results he claims his bill will achieve (though as a political calculation, it may be a wash as Tea Party voters in-particular would not be pleased either).

The worst thing the congress could do for this economy would be to pass this bill as hastily as the PATRIOT Act was a decade ago. The best thing congress could do is for its members to actually read the bill and have a rational discussion* and debate it line by line. Whether Obama’s intentions are for good or ill, there will be seen and unforeseen consequences if the bill does pass. A top down approach (as I think this bill is) is rarely if ever a good recipe for an economy. No one is smart enough to plan the economy, not even the brain trust of the Obama administration (this should be obvious by now).

Just because the president says his bill will create jobs doesn’t make it so.
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A Brief Constitutional Lesson for Congresscritters… Particularly those from Kentucky…

United States Constitution
Article 1, Section 7


All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

The issuance of debt is a revenue raising measure. The “debt ceiling” is, in fact, legislation initiated in the House of Representatives, which authorizes the executive branch to issue debt through the treasury (and by extension the federal reserve), up to a specific limit.

This “debt ceiling” and authorization of debt issuance; allows the executive branch to raise revenue in a constitutionally legitimate way; because the revenue is raised under the auspices of specific authorization by the house or representatives.

Neither the Senate, nor the House, acting separately or together; has the authority or ability to delegate this exclusive power of the house, to any other entity, including the president. In fact, it would be a clear violation of the principle of separation of powers to do so.

That is all.

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

Montana Firearms Freedom Act: Tilting At Windmills

While I laud any state trying to expand the freedom of its residents while simultaneously thumbing it’s nose at Washington, I can’t see this ending well:

On October 1, 2009, Montana passed the Montana Firearms Freedom Act, the purpose of which was to regulate guns manufactured and kept within Montana state lines under a less restrictive regulatory regime than federal law provides. That same day, to ensure that Montanans could enjoy the benefits of this less restrictive state regulation, the Montana Shooting Sports Association filed a declaratory judgment claim in federal court.

The lawsuit’s importance is not limited to Montana, as seven other states have passed laws similar to the MFFA and 20 states have introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

The district court granted the government’s motion to dismiss, however, and MSSA appealed to the Ninth Circuit. Now on appeal, Cato has joined the Goldwater Institute to file an amicus brief supporting the MSSA and arguing that federal power does not preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which MSSA argues is a state-specific market distinct from any related national one.

The general question here is whether modern Commerce Clause jurisprudence should be upended for this case. I believe it should, but I believe it won’t. The manufacture/sale/possession of firearms, while declared to be purely intrastate matters, would seem to “substantially affect” interstate commerce in the same way as the Court found in Wickard & Raich. On the question of whether the activity affects interstate commerce, I don’t think there can be any debate should current Commerce Clause jurisprudence hold. Under such jurisprudence, the Feds can reasonably claim that their more stringent requirements for firearms is Necessary to effectively regulate firearms in an interstate manner.

The actual brief (linked above) submitted by Goldwater & Cato draws more narrow inferences than the quoted text above, however. They recognize the current precedent of Wickard & Raich, but push a state sovereignty angle which seems much more substantial. The argument seems to be that in areas traditionally regulated at the state level, rather than the federal level, and where the state action is protecting individual liberty rather than restricting it (i.e. no 14th amendment privileges & immunities issues here), the level of scrutiny required by the Feds to override State law should be significantly higher. However, I suspect that such efforts will still either fall short, or require Supreme Court gymnastics to carve out a VERY narrow exception here (i.e. emanations & penumbra gymnastics).

It’s telling that one of the cases used as justification here is a case [Massachusetts v. Sebelius] where Massachusetts argued against the DOMA, on the grounds that Massachusetts more libertarian law upholding same-sex unions was infringed upon by DOMA. Effectively DOMA made it impossible for certain federally-funded programs which would traditionally go to “married” couples (or survivors thereof) could not be extended to same-sex couples. Because the regulation of marriage was traditionally within the purview of the States, not the Feds, and because DOMA violated the State’s liberty-protecting equal protection clause within the Massachusetts Constitution, for the Congress to intervene here was shown to be a violation of Massachusetts sovereignty.

However, I don’t think the Massachusetts case will be applicable here. While it is traditionally the purview of the States to regulate marriage, I don’t think it can be shown here that Massachusetts recognition of same-sex marriage substantially affects interstate commerce. The portion of DOMA that would have protected states from being forced to recognize same-sex marriages from other states was also not at issue. While it might be within the general police powers of the States to regulate some aspects of firearms manufacture/sale/ownership, I believe the Court would find the Commerce Clause precedent more binding than a finding of state sovereignty.

Another aspect of the state sovereignty argument appears in section I-A of the brief [p7-11]. Several points are raised:

  • That the Federal government cannot force a State legislature to legislate as directed by the Feds. In this case, I don’t believe the point applies, as the Feds are not demanding the States implement this regulation for them, but rather declaring such regulation to be a Federal matter to be decided by Congress rather than the States.
  • That the Federal government cannot commandeer State resources for the execution of federal regulation. Again, they are not forcing State police to enforce a more strict version of firearms regulation, and various drug decriminalization (and State medical marijuana initiatives) have created a situation where, while a State may [unconstitutionally] declare certain activities legal that the Federal government deems illegal, the States are within their rights to limit the use of State resources for investigation and prosecution of Federal crimes that they deem unwieldy. California can simultaneously hold the position that while medical marijuana is Federally illegal, the State does not consider it criminal, and thus the Feds themselves must enforce it if they so choose.
  • That the Federal government may not regulate/criminalize wholly intrastate activities with no economic impact. I think Commerce Clause jurisprudence would suggest that manufacture/sale/possession of weapons cannot be shown to be wholly intrastate, and it certainly includes economic impact.
  • Finally, that the Federal government may not subject State government employees to the dictates or working regulations of the Federal government — I think this one is so far removed from the case at hand to not warrant discussion.

To argue that this is a matter of state sovereignty is to argue that regulations of firearms has been a long-standing matter of the states themselves, and that for the Federal government to step in and demand more stringent regulation under Commerce Clause grounds requires such heightened scrutiny that cannot be supported here. However, Federal firearms laws have been in force since 1934, and while this is not proof that the regulation of firearm manufacture/sale/ownership should be a Federal matter, it certainly cuts some strength from the argument that this is purely a matter of state sovereignty.

It seems to me that this lawsuit is a bit of a hail mary. For it to succeed, we would need to see a sea-change in Commerce Clause jurisprudence (almost impossibly unlikely), or for the Brady Bill and/or National Firearms Act to be struck down as Unconstitutional (because both would infringe on state sovereignty). A greater likelihood, based on current conservative makeup of the court, would be a VERY narrowly worded decision involving some legal gymnastics. However, given the deference to Federal power I’ve seen from Roberts & Alito, and given that they would need such a narrow crafting to ensure that they wouldn’t open up whole hosts of other State sovereignty challenges to Federal law, I don’t see much likelihood there. Fundamentally the plaintiffs are pushing for a general large change in Federal/State interaction, one which I doubt the Supreme Court is ready to uphold.

Of course, that’s all assuming it ever makes it to the Supreme Court, itself an unlikely prospect.

While I have great sympathy for the plaintiffs here, I can’t say I’d be laying strong odds on their success.
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Gary Johnson to President Obama: “Time’s Up in Libya”

The “limited kinetic action” (don’t call it military force or war!) in Libya has reached the 60 day mark; the statutory time limit a president can use military force without congressional approval according to the War Powers Act of 1973. There doesn’t seem to be a whole lot about the goings on in Libya in the news these days with Obama deciding what another sovereign nation (Israel) should do about its borders*.

Not everyone has completely forgotten about Libya though. Former New Mexico Governor and presidential candidate Gary Johnson wrote an opinion piece today in The Daily Caller pointing out that the president’s authority to use kinetic action in Libya has expired today.

This blatant disregard for the law must not go unchallenged. As several senators did this week, Congress must demand an explanation for the fact that, with no declaration of war, no authorization from Congress, and certainly no imminent threat to the U.S., our forces are today engaged in what is clearly a military conflict halfway around the world in Libya.

Specifically, the War Powers Act requires that the use of American forces in a conflict must be ended within 60 days of commencing — unless Congress expressly authorizes otherwise. In terms of our current engagement in Libya, Congress hasn’t authorized anything, nor has the president asked them to, and today, May 20, is the 60th day.

[…]

[The War Powers Act] was carefully crafted to allow the commander-in-chief to respond to attacks and otherwise take whatever action necessary to protect us. At the same time, it was obviously crafted to limit precisely the kinds of ill-defined and costly uses of our military that we are witnessing in Libya right now.

[…]

To be fair, this president is certainly not the first to disregard the War Powers Act. Some have even questioned its constitutionality. But until the courts or Congress deem otherwise, it is the law of the land — and in my opinion, a good one.

This is yet another example of President Obama’s lack of respect for the rule of law when the law isn’t compatible with his policy.

Hope n’ Change you can believe in.

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