Category Archives: Separation Of Powers

The saving grace of federalism

Were it not for our federalist system, the debate over Real ID would have been over long ago. Fortunately, it’s still going:

The political problem for the GOP committee chairmen is that the 2005 Real ID Act has proven to be anything but popular: legislatures of two dozen states have voted to reject its requirements, and in the Michigan and Pennsylvania legislatures one chamber has done so.

That didn’t stop the House Republicans from saying in a letter this week to Homeland Security Secretary Janet Napolitano that “any further extension of Real ID threatens the security of the United States.” Unless Homeland Security grants an extension, the law’s requirements take effect on May 11.

Hopefully this comes to a head, and hopefully the Republicans pushing this get an education in federalism. It’s going to come in mighty handy in resisting Obamacare.

South Dakota Lawmakers Confused By Federal/State Distinction — Embarrass Selves

[shakes head]

A group of South Dakota lawmakers has introduced a bill that would require almost everyone in their state to buy a gun once they turn 21.

Turns out it’s not a serious attempt. Rather, the lawmakers are trying to make a point about the new health care law — that an individual mandate is unconstitutional, whether it requires everyone to buy health insurance or, in South Dakota’s case, a firearm.

Rep. Hal Wick, one of five co-sponsors, told The Argus Leader newspaper that he expects the bill to fail.

“Do I or the other co-sponsors believe that the state of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance,” he said.

The town of Kennesaw, GA mandates that every resident own a gun. The State of Massachusetts mandates that every resident purchase health insurance. Neither of those mandates caused a US Constitutional crisis. How in the world is the proposed South Dakota gun mandate in any different?

In truth, it’s not. We have long placed certain actions within the purview of State power that would be unconstitutional if done federally. It is only blatant misreading of the commerce clause that has allowed the Feds to infringe as far as they have.

Yet these dolts think that trying to enact a STATE mandate is somehow logically analogous to fighting a federal mandate. As if nobody had heard of MassCare or nobody had drawn up the suggestion that states have the power to require car insurance but may be* unconstitutional to mandate at the Federal level. They, by their words above, do not even seem to grasp the distinction between Article I, Section 8’s enumeration of powers at the Federal level and the fact that States are held to a different [lower] standard.

I can only see two reasons for this:

  1. They really ARE this dumb.
  2. This is all just one big publicity stunt.

The former suggests that the voters of South Dakota shouldn’t be trusted at the ballot any further, as they clearly can’t elect people capable of behaving responsibly in office. The latter suggests that the politicians just happen to believe that the voters of South Dakota [and writers for Fox News] are so dumb that they can’t tell the difference between State and Federal actions. Either way, it’s one more example that democracy doesn’t work.
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A Repeal Amendment Would Be A Benefit, But A Limited One

I’m a bit late to the party, but significant discussion has been made about a potential “repeal amendment” to the Constitution. Advocated by Randy Barnett, he suggests that it is a necessary counterpunch to the 16th and 17th Amendments, which together increased the Federal government’s ability to raise revenue to do what it likes while weakening States’ ability to restrain Federal actions politically.

On the opposite side is Ed Morrissey, who has a couple of concerns about the idea. First and foremost, he doesn’t think the amendment will be presented without a Constitutional Convention, an idea that opens a Pandora’s Box with the potential to backfire so spectacularly that it truly frightens me. But second, he is concerned about the messiness of the process:

Let’s say for argument’s sake that Congress approves and the states ratify the amendment. What happens when Congress passes a law? How long do the states have to get two-thirds of the legislatures to demand repeal? Within the same session? Four years? Decades? Does it proceed along the same lines as a Constitutional amendment, where the states have seven years to ratify a veto? If the time is limited to the current session, most state legislatures won’t have time to react, and future Congresses will simply put off most of their controversial measures until lame-duck sessions.

If it isn’t limited to the same session, then this will remove a great deal of certainty and stability from the American legal system and to acts of Congress, which is after all the people’s branch. Consider tax laws on which no one could rely, regulatory and deregulatory efforts that could take years to clarify, and then think how investors both here and abroad will react in that environment. And that isn’t even getting to the budget, which appears subject to this amendment as well. The states could force a shutdown of the federal government. This seems like a prescription not just for gridlock and instability, but also an invitation for an expansion of power for the executive branch to run the federal government by executive order and agency power.

It is here that I think Ed is overstating the likelihood of states to overturn legislation. I think we are highly unlikely to see a widespread application of a repeal amendment for two reasons:

  1. Getting two-thirds of states together to agree on repeal of any particular provision due to voter anger is unlikely except in the most egregious cases. I’m not sure we could get two-thirds to vote to repeal Obamacare.
  2. The incentive to repeal purely federal matters isn’t there for the states. Morrissey suggests that the states might repeal particular tax provisions. Buy why would states care about Federal income or corporate tax rates that don’t directly affect their own budgets?

For these two reasons, I expect the most hoped-for results of a repeal amendment — states wholeheartedly fighting expansion of federal power — will not come to pass. I just don’t see the incentives lining up to make that happen. States have plenty of their own problems to worry about; they’re not going to trouble themselves with something that doesn’t directly affect their own powers or budgets. This doesn’t mean that such a power will never be utilized, but only in cases where public opinion is so overwhelmingly against a policy but for which Congress cannot find the will to act on their own to end it.

At the same time, I do see a very important potential application, for which the incentives line up perfectly. It’s all about unfunded mandates. The Feds have a tendency to demand certain behaviors by the States without properly funding those behaviors. It is a way for Congress to placate their own desire for control without actually paying for those desires. States have a perfect incentive to repeal laws which impose costs upon them not of their own choosing, and thus a repeal amendment could be a very powerful constraint on Congress’ ability to enact laws and regulations for which it puts the burdens on states to fund.

It is for this reason that while I don’t have high hopes that its scope will reach as widely as its proponents may claim, that I still support a repeal amendment. Cutting into Congress’ ability to saddle states — who are already in dire financial straits — with unfunded mandates will have overall positive effects. It forces Congress to pay its own way, and while Congress hasn’t shown any concern about deficit spending, it at least adds one additional check on their appetite. Adding to this the ability for states to act as an additional check on Federal action when those policies are so egregious as to override the states disincentive to act on most Federal matters is just gravy.

A repeal amendment is not the answer, but it’s certainly a step in the right direction.

Nolan Exposes McCain’s Antipathy for Civil Liberties in Arizona Senate Debate

David Nolan, co-founder of the Libertarian Party and author of “The World’s Smallest Political Quiz” (to which the result is plotted on the “Nolan Chart”) is running against none other than the most recent Republican presidential nominee, Sen. John McCain for his senate seat. KTVK-3TV hosted a debate last Sunday which included Sen. McCain along with challengers Rodney Glassman (D), Jerry Joslyn (G), and David Nolan (L). Believe it or not, all candidates were given equal time to debate the issues; something that is usually missing from the debates I’m accustomed to watching.

Despite the skills of those challenging Sen. McCain – particularly the two 3rd party candidates, the latest Real Clear Politics Average Poll shows McCain with a comfortable 17.4 point lead over his closest challenger, Rodney Glassman. Critics of 3rd parties look at poll results like this and wonder “what’s the point” of allowing 3rd party candidates to participate when their chances of winning are so miniscule.

IMHO, I believe that both Nolan and Joslyn did a fine job demonstrating why 3rd party candidates should be included by raising issues, proposing solutions, and exposing the shortcomings of the two party system and the candidates themselves to voters and concerned citizens.

In the 3rd part of this debate (below), Nolan brought up a McCain sponsored bill that is most likely not on the radar of very many people: S. 3081, the “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.”

(Beginning at -6:14 in part 3 of the debate)

Nolan: “One of the reasons I got into this race is that right now, at this very moment Sen. McCain is a sponsor – I think the lead sponsor of Senate Bill 3081 […] a bill which would authorize the arrest and indefinite detention of American citizens without trial and without recourse. This is one of the most dangerous, evil, un-American bills that’s ever been proposed in congress and nobody who would sponsor such a bill should be sitting in a seat in the United States Senate.”

And what was Sen. McCain’s response to the charge by Nolan of sponsoring such a “dangerous, evil, un-American” bill?

McCain: “Well again, I hope that our viewers won’t judge me by the remarks just made [by Nolan], they may be a little bit biased.”

Nolan raised the issue again in his closing remarks. Sen. McCain did not respond.

Okay, fair enough. Perhaps Mr. Nolan is biased. He is trying to take his job after all. Fortunately for now at least, the average person with an internet connection can freely search and find the bill and learn of its contents. Let’s take a look and see how “biased” Mr. Nolan was and determine whether or not Arizona’s senior senator should be “judged” by the bill he is currently sponsoring.

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010’.

SEC. 2. PLACEMENT OF SUSPECTED UNPRIVILEGED ENEMY BELLIGERENTS IN MILITARY CUSTODY.

(a) Military Custody Requirement- Whenever within the United States, its territories, and possessions, or outside the territorial limits of the United States, an individual is captured or otherwise comes into the custody or under the effective control of the United States who is suspected of engaging in hostilities against the United States or its coalition partners through an act of terrorism, or by other means in violation of the laws of war, or of purposely and materially supporting such hostilities, and who may be an unprivileged enemy belligerent, the individual shall be placed in military custody for purposes of initial interrogation and determination of status in accordance with the provisions of this Act.

(b) Reasonable Delay for Intelligence Activities- An individual who may be an unprivileged enemy belligerent and who is initially captured or otherwise comes into the custody or under the effective control of the United States by an intelligence agency of the United States may be held, interrogated, or transported by the intelligence agency and placed into military custody for purposes of this Act if retained by the United States within a reasonable time after the capture or coming into the custody or effective control by the intelligence agency, giving due consideration to operational needs and requirements to avoid compromise or disclosure of an intelligence mission or intelligence sources or methods.

“Suspected unprivileged enemy belligerent” ? No, that doesn’t sound Orwellian at all. Now let me highlight Sec. 3b3 and let you, the reader decide if any of this strikes you as “dangerous,” “evil,” or even “un-American.”

(3) INAPPLICABILITY OF CERTAIN STATEMENT AND RIGHTS- A individual who is suspected of being an unprivileged enemy belligerent shall not, during interrogation under this subsection, be provided the statement required by Miranda v. Arizona (384 U.S. 436 (1966)) or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.

Talk about double speak! Such individuals are not “criminal suspects” who in our criminal justice system normally considers “innocent until proven guilty” who have Constitutionally protected rights but “suspected enemy belligerents” who are apparently assumed guilty until a high ranking official in the executive branch, or the president himself determines otherwise.

Sorry, I’m getting a little ahead of myself. I haven’t even got to the most disturbing part of the bill yet – Section 5:

SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED ENEMY BELLIGERENTS.

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

So here we are in 2010, Sen. McCain et al advocating giving American citizens POW status under Article 5 of the Geneva Convention as they may be “enemy belligerents” in an ill-defined and open-ended “war on terror.” The provisions of the USA PATRIOT Act which were originally supposed to be temporary but now as a practical matter, a permanent fixture of federal law, apparently don’t go far enough to dismantle what is left of the Bill of Rights.

One thing I found interesting in this debate was not only Sen. McCain’s response (or lack thereof) but also the deafening silence of his Democrat challenger who could have easily picked this issue up and ran with it if he shares Nolan’s civil liberties concerns. Could it be that Mr. Glassman would also support this bill if he were elected to replace Sen. McCain? If so, I wouldn’t be at all surprised considering that President Obama who is a member of the same political party as Glassman actually believes he can assassinate Americans without due process of any kind. Both the Obama and Bush administrations have even gone as far to say that if or when the president makes a “state’s secrets” claim, no court can even consider the legality of such cases. There’s little doubt in my mind that President Obama would sign S. 3081 into law as this would only enhance his power.

Maybe for now on we should stop referring to the first ten amendments as “The Bill of Rights” and call them “The Bill of Privileges.” This would at least be honest because rights cannot be taken away and therefore can never be “inapplicable.”

Ken Buck’s “Radical” Proposal to “Rewrite” the Constitution

I do not support Ken Buck in the Colorado senate race and I will not vote for him. Actually, between his extreme position on abortion, on banning common forms of birth control, and his sexist comments he made about his primary opponent, I think he is quite a jackass.

But even as much as I have some major concerns about Ken Buck and dislike him personally, the Democrats are running some ads that I believe are lacking in historical context and misrepresent the founding principles of our constitution and our republic.

Here’s the first ad entitled “Different”:

This “radical” idea that the state governments would choose their senators instead of the voters is hardly a new idea conjured up by Ken Buck. If we accept the notion that Buck would “rewrite” the Constitution, he would merely be changing the way senators are selected back to the way the founders intended 223 years ago. It wasn’t until the 17th Amendment was passed in 1913 that senators were chosen by popular vote in each state. In fairness, the ad does mention that for “nearly 100 years” Colorado voters picked their senators. It seems to me that the Democrats are counting on the average historical ignorance of civics 101 of the average person to be outraged at such an “un-democratic” idea.

Now to the second ad entitled “Represent”:

The second ad repeats the “rewrite the Constitution” claim but goes even further “change the whole Constitution?” Repealing the 17th Amendment is hardly changing the whole Constitution.

And what about this scandalous idea that Ken Buck wouldn’t necessarily “represent” what Coloradans wanted and would “vote the way he wanted”? Is this really what we want – senators and representatives with no will of their own?

To the lady in the ad who says “If Ken Buck doesn’t want to listen to what we have to voice our opinion then why is he even running?” my response would be that if its up to each senator to poll his or her constituents on each and every issue, why do we even need senators at all? This is why we have elections. If your congress person or senator consistently acts contrary to your principles, vote for someone else on Election Day. If you have a problem with Ken Buck’s policy positions as I do, don’t vote for him.

Despite popular belief, our system of government is not a democracy but a republic based on the rule of law. The senate was designed to be a counter balance to the fickle whims of the majority of citizens. Prior to the 17th Amendment, senators were selected by state legislatures so that the states themselves would be represented at the federal level while the people were represented directly in the House of Representatives.

There are certainly some good arguments for repealing the 17th Amendment that I don’t believe are “radical” at all. For one, if the state legislatures picked the senators, perhaps there would be more reason to pay attention to government at the state level. How many people in 100 can name their senator and representative in their state legislature let alone have any idea about their voting records?

Also, because senators are chosen by popular vote, some argue that their loyalties are not so much with the states they are supposed to represent but the senate itself. As a result, its much easier for the federal government to blackmail the states via unfunded mandates and holding funds hostage if states pass laws the federal government disagrees with (ex: forcing all states to keep the drinking age at 21 in order to receive highway funding).

Certainly, the repealing the 17th Amendment wouldn’t be a panacea and there are probably some very persuasive arguments in supporting the 17th Amendment. No system of government is perfect even in its most ideal form.

The founders were keenly aware that majorities could be as tyrannical as any monarch or dictator. A more democratic government does not necessarily mean people have more liberty; the opposite is more likely the case.

Counterpoint: Civil Disobedience Or Not, Nullification Is Unconstitutional

In his post that started this debate, Brad Warbiany makes this point about the idea that the individual states have the power, or at least the right, to make declarations as to the Constitutionality of Federal laws:

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

(…)

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Taking this view of nullification, I don’t necessarily disagree with Brad on the value of state’s, and their citizens, weighing in on what they believe to be a usurpation of Federal power. After all, this is something that has a long and noble history in America. When President John Adams persuaded Congress to pass The Alien and Sedition Acts, Thomas Jefferson, who at that point was serving as Adams’s Vice-President, and James Madison worked together to draft and ensure the passage of the Kentucky and Virginia Resolutions, which were resolutions passed by the state legislatures of Virginia and Kentucky to condemn laws which Adams’s opponents viewed as both unconstitutional and near-dictatorial.

The resolutions — which you can read here, here, and here — are interesting in themselves because they contain one of the first post-ratifications statements by American leaders of what they believe the Constitution to mean, as this excerpt from the Kentucky Resolution of 1798 shows wonderfully:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes, whatsoever; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “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,”—therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States;’” as also the act passed by them on the 27th day of June, 1798, entitled “An Act to punish Frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish, such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “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;” and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states, or the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment, by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference; and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violated either throws down the sanctuary which covers the others,—and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of Congress of the United States, passed on the 14th of July, 1798, entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States,'” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

That’s mighty strong language. Stronger, some would say, than the laws that a few states have passed since March challenging the Federal Government’s authority to require Americans to purchase health insurance. However, it’s worth noting what Madison and Jefferson were not doing, because as Madison acknowledged in his defense of the resolutions, there is no Constitutional authority granted to the states that would allow them to nullify a Federal law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

Considering that this was written by a man who was both one of the principle authors of the Constitution and one of the authors of the Resolutions, it seems to me that it is fairly persuasive evidence that, whatever else the Tenth Amendment might mean, the Founders never intended to give the individual states the power to nullify state laws.

So, basically, that leaves “nullification” (and personally I don’t like the word because of it’s historical associations with secessionists and segregationists) in the category that Brad would put it; a method by which the citizens can, through their state legislatures and the Courts if necessary, petition Congress for a redress of grievances.

However, when nullification is discussed today, it isn’t the “civil disobedience” variety that Brad favors that’s being advocated. In his new book, Nullification: How to Resist Federal Tyranny in the 21st Century Thomas Woods essentially argues for a full-throated right on the part of the states to ignore Federal laws if they choose to do so:

Nullification is Thomas Jefferson’s idea, articulated most clearly in his Kentucky Resolutions of 1798, that if the federal government passes a law that reaches beyond the powers delegated by the states, the states should refuse to enforce it. Jefferson believed that if the federal government is allowed to hold a monopoly on determining what its powers are, we have no right to be surprised when it keeps discovering new ones. If they violate the Constitution, we are “duty bound to resist,” to quote James Madison’s Virginia Resolutions of 1798.

Now this is a vast simplification of the argument that Woods makes, you can get a better idea of what he means in this interview:

I have yet to read Woods’ book, and still want to, but it’s fairly clear that his argument suffers from the fact that there just isn’t any historical support for his idea that the Constitution grants states the right to essentially break Federal law by ignoring it if they believe that it is unconstitutional. Any reliance on the Virginia and Kentucky Resolutions, for example, is easily rebutted by Madison’s own admission that the Resolutions were expressions of opinion rather than something that had the force of law.

History after the Resolutions doesn’t really provide any support for Woods’ argument either. The most notable example came during the Nullification Crisis of 1832, when South Carolina purported to declare a Federal import tariff unconstitutional and took steps to prevent Federal agents from collecting tariffs on goods entering through the Port of Charleston. Though the matter was resolved, it set the nation down a road toward secession that resulted in the bloodiest war in American history. After the Supreme Court’s decision in Brown v. Board of Education, ten Southern states used the doctrine of nullification, and the related concept of interposition, to attempt to resist efforts desegregate school and refuse to enforce the Court’s decision. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.

In other words, if nullification of the type Woods advances actually existed, we would no longer live in a Federal system, but in something more closely resembling the Articles of Confederation. Since the Constitution was written to replace the Articles, it’s clear that the Founders never intended to give the states the power to decide for themselves what the Constitution means and to randomly choose to ignore Federal laws based on that interpretation. Therefore, Woods’ nullification is little more than a professorial fantasy.

In closing, I don’t necessarily object to the kind of “civil disobedience” nullification that Brad favors. Let’s just not pretend it has the force of law.

Point: Nullification Is The Civil Disobedience of Federalism

This post is a part of our continuing series Point/Counterpoint. I am taking the position that state Nullification of federal law is a legitimate action, and Doug Mataconis will respond tomorrow with a rebuttal. In memory of James Kilpatrick, we’ll dedicate this installment to him.

In federal politics, states are party to an uneasy compact with other states under the guise of a superior government.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

As such, they cede many powers to that national government, but one must think that they do not cede all of their own powers. Something must be held in reserve. The question is what? After all, this “Supremacy Clause” Constitution only grants supremacy to those laws made in pursuance of the Constitution itself — anything not permitted by the Constitution must not be considered to be Supreme. The real question, then, is who decides what is Constitutional?

Since 1803 and John Marshall, half of that question has been decided. The US Supreme Court is the arbiter of what is, and what is not, Constitutional. Further, a critical tool of state protection against the overreaches of the national government, the state appointment of Senators, was stricken in 1913 by the Seventeenth Amendment. Thus, the only legal method of appeal to Constitutionality available to the States is appeal to the Supreme Court, a body that hasn’t found many overreaches of national government since the New Deal.

Nullification, the doctrine that states can disregard federal laws, declaring them unconstitutional, is a provocation somewhere between fighting a battle at the Supreme Court level and secession.

Appeal to the Supreme Court is basic and need not be addressed here. Secession is a far more drastic measure, far more controversial, and an area where I believe Doug and I disagree, so it does require some treatment. Secession is often equated with violence, and treated as “violent revolution”, but I would say that most instances of violence were continued by the government trying to retain their subjects, not by those trying to withdraw. In the American Revolution, nothing that I’ve seen suggests that had the British peacefully withdrawn their troops, the colonists would have had any cause for continuation of violence. Even in the US Civil War, it is unlikely that, had the North allowed the South to secede, that the South would have ridden on Washington to impose slavery back upon the North. Secession is not overthrow of the government, it is withdrawal therefrom. Of course, Doug and I agree that, whether they had the right or not, the South’s secession was for morally unconscionable reasons — the continuance of the despicable practice of slavery. But the South’s secession was no different than the American Revolution in that they were NOT attempts to overthrow a government outside of the territories that wanted their freedom, they could have been peaceful separations. The breakup of the Soviet Union is a good example. While it was only peaceful because the Russians didn’t have the power to hold it together, it was a peaceful secession nonetheless.

So at this point we’ve sketched out two responses to potentially unconstitutional overreaches by a national government. The first is the relatively weak appeal to the Supreme Court — asking the government to self-regulate. This is a difficult option. A Senate prior to the Seventeenth Amendment might take seriously their “Advice and Consent” role in judicial nominations to only nominate those who would respect state sovereignty and Constitutional limits, but that ship has sailed. In its wake, it’s left a court with an expansive view of national government authority. Secession, on the other hand, is all-or-nothing. And while it may not be a violent act, history has shown that it often will be. As Doug pointed out in all three posts I read of his referencing secession, Jefferson in the Declaration of Independence said that taking to arms should not be done “for light and transient causes”.

Leaving only these two options is a fool’s game. Secession will only be legitimate in the face of absolutely unconscionably abuse, and appeal to the judiciary is impotent and unlikely to succeed [and further, the structure of the direct election of Senate and the Supreme Court nomination process makes it unlikely this will change]. If one wants to give the national government limitless power, asking only that it police itself, having only these two options is the roadmap…

…which is why we need nullification.

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

I’ll give an example. Here in California, we have legalized marijuana for medical purposes. This is in DIRECT contradiction to the Controlled Substances Act, an act that empowered the regulation to be written that declares marijuana a Schedule I drug — with no medical use whatsoever. This is nullification in action. This is civil disobedience. California is not denying the Federal government’s power to enforce the drug laws — but it is denying its compliance with those laws and its assistance to the Feds in such power.

What will the result of this action be? Well, this (and potentially the follow-on Proposition 19) forces the people of California address the question of marijuana. Several states have followed on with their own medical marijuana laws. We now have a body of medical marijuana users which can be called upon to testify that marijuana does have medical use. We have families who have watched their loved ones, battling horrible diseases which sap their appetite, who have been able to eat enough to keep their strength. Hopefully the result of this action will be the government backing down and taking marijuana off Schedule I.

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Undoubtedly, Doug will respond that nullification can be used for nefarious purposes, much like secession. I cannot disagree. Arizona is willing to prove that, as if there haven’t been enough historical examples already. Nullification is a tool, and it is the one who wields the tool who is important.

The national government appropriates power to itself, and it has built structures to weaken or remove legal impediments to that power. In response, we need illegal, but peaceful, impediments. Non-violent resistance carries with it a moral weight that legal Supreme Court wrangling never will, and that is a tool that we in the fight for liberty do NOT want to cede.

Nullification may not be legal, but it is legitimate.

Obama: Judge, Jury, and Executioner in Chief

“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.” – Amendment V of the U.S. Constitution

I don’t know how I missed this, but apparently the 5th Amendment was repealed a few months back with very little concern on the part of the media. Or maybe this was a big story back in February and I just wasn’t paying attention. I have been quite busy lately but I still don’t see how I missed this most disturbing power grab on the part of the Obama administration to date: the power for the president to order the assassination of American citizens without trial*.

If you missed this like I did and have read about this for the first time here, you may believe this sounds like some kooky black helicopter Soldier of Fortune conspiracy propaganda. When I heard about this the first time from Glenn Beck (of all people) on Judge Andrew Napolitano’s Freedom Watch, I thought it was probably another one of Beck’s over the top Obama boogey man theories. I thought surely if a president, even this president, were to do such a thing as order CIA snipers or perhaps Predator drones to take out an American citizen without trial, even the media on Left would be scandalized by such a policy.

As it turns out, Beck was right. When I entered the phrase “Obama can assassinate Americans” into a Google search, I did find at least one Left wing blog, Democracy Now! podcast hosted by Amy Goodman back in February explore this issue. And to Congressman Dennis Kucinich’s (D-OH) credit, he made an appearance on the podcast to explain why he isn’t giving President Obama a pass.

Kucinich:

Well, I think its incumbent upon the Attorney General to explain the basis in law for such a policy. Our Constitution’s Fifth Amendment, our Seventh Amendment, our Fourteenth Amendment all clearly provide legal protections for people who are accused or who would be sentenced after having been judged to be guilty. And what’s happened is that the Constitution is being vitiated here. The idea that people are—have—if their life is in jeopardy, legally have due process of law, is thrown out the window.

And, Amy, when you consider that there are people who are claiming there are many terrorist cells in the United States, it doesn’t take too much of a stretch to imagine that this policy could easily be transferred to citizens in this country. That doesn’t—that only compounds what I think is a slow and steady detachment from core constitutional principles. And once that happens, we have a country then that loses its memory and its soul, with respect to being disconnected from those core constitutional principles which are the basis of freedom in our society.

Not everyone on the Left is as willing to hold the Obama administration accountable though. Salon.com writer Glenn Greenwald (also a guest interviewed in the above podcast), one of the few columnists to give this policy the condemnation it deserves, wrote a very disturbing piece to remind those who were (rightly) critical of the Bush administration’s policies concerning extraordinary rendition, holding “enemy combatants” indefinitely without trial (including American citizens), warrantless wiretapping, and so on, should be at least as critical of Obama’s policy which goes even further.

Greenwald writes:

“Today, both The New York Times and The Washington Post confirm that the Obama White House has now expressly authorized the CIA to kill al-Alwaki no matter where he is found, no matter his distance from a battlefield. I wrote at length about the extreme dangers and lawlessness of allowing the Executive Branch the power to murder U.S. citizens far away from a battlefield (i.e., while they’re sleeping, at home, with their children, etc.) and with no due process of any kind.

[…]

And what about all the progressives who screamed for years about the Bush administration’s tyrannical treatment of Jose Padilla? Bush merely imprisoned Padilla for years without a trial. If that’s a vicious, tyrannical assault on the Constitution — and it was — what should they be saying about the Nobel Peace Prize winner’s assassination of American citizens without any due process?

[…]

When Obama was seeking the Democratic nomination, the Constitutional Law Scholar answered a questionnaire about executive power distributed by The Boston Globe’s Charlie Savage, and this was one of his answers:

5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?

[Obama]: No. I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

So back then, Obama said the President lacks the power merely to detain U.S. citizens without charges. Now, as President, he claims the power to assassinate them without charges. Could even his hardest-core loyalists try to reconcile that with a straight face? As Spencer Ackerman documents today, not even John Yoo claimed that the President possessed the power Obama is claiming here.

Even though I did not vote for Obama in 2008 and was very critical of his policy positions at the time, I thought he would at least be an improvement in the area of civil liberties. I couldn’t have been more wrong. It seems that rather than rolling back these Bush era unconstitutional power grabs, Obama has grown accustomed to them and decided to take these powers to the next level: killing Americans he believes to be enemies of the state.

Perhaps there is room to debate whether or not foreign suspected terrorists deserve all the legal protections of our courts but the idea of killing American citizens without trial most certainly is not debatable. If our government does anything well its identifying individuals and putting them in prison and/or sentencing said individuals to death. This is done successfully every day in our criminal justice system. We need not worry that many actual terrorists will escape going through the criminal justice system provided that the prosecutors have a minimum standard of proof and a jury of average intelligence.

Even as badly broken as our criminal justice system is, this is our system. Ordering the killing of American citizens even in an “emergency” is not among the powers provided to the president under the Constitution (I just double checked) and is not a suitable substitute.
» Read more

Yes, the Second Amendment really means what it says… and that means you too Chicago

This past Monday, Samuel Alito, writing for the majority (with separate concurring opinions from Clarence Thomas and Antonin Scalia) in the case McDonald vs. City of Chicago and Village of Morton Grove; handed down what in 30 years will I believe, be held as one of (or perhaps half of a pair of, or the second in a series of) the most significant rulings in the courts history, not just for the right to keep and bear arms, but for the rights of all people in this nation.

I had meant to get this post out yesterday, but I had to take the time to read the entire opinion… all 214 pages of it… and think about it for a bit.

This judgment is notable, both for what it does, and for what it does not do; and I want to go into that in some depth… and I want to go into some of the background and issues surrounding the decision that aren’t necessarily about the right to keep and bear arms

However, that is going to get long…. and if you aren’t interested in constitutional law and the nature and exercise of the rights and powers of the states, it’s going to be boring. There’s only so much you can do to make enumeration and separation of powers issues over more than two hundred years, all that interesting.


Note: Also, for those of you who DO closely follow con law, this is going to be a gross simplification in some ways. I don’t have time to write a book here, and a book is what it would take to cover this comprehensively (actually several… there are a few out there already, and Heller and its progeny are sure to generate more).

At any rate, I’m going to break it out into another posts, and I’ll update this post with a link when I finish the other one.

… I should warn you, I’m already 5,000 words in, and I’m probably less than half done…

McDonald vs. Chicago is the first major gun rights case brought before the supreme court under the clarified Heller doctrine, to wit:

The right to keep and bear arms for all lawful purposes is an individual right, possessed by all citizens and lawful residents of this country (provided this right has not been statutorily stripped from them, with due process of law); and the core of that right, is the fundamental right to defense of self, and others.

Actually, McDonald is a bit more than just “first”… In fact, the case was prepared in advance, and filed immediately on the handing down of the Heller ruling; by the lead counsel on the Heller case, Alan Gura.

The issue at hand in Heller was to affirm and clarify the basic right; something which those on the left in general, and in the gun control lobby in particular, had been trying to deny for something like the last 40 years

Note: The modern gun control movement as currently constituted really began in the late 60s; roughly coinciding with accelerating decay of civil order and rise in civil unrest, the rise of the drug and counterculture, and dramatically rising crime rates.

More than anything else, it was the assassination of Robert Kennedy, and Martin Luther King that kick-started the gun control movement as it exists today.

The gun control movement in the U.S. as a whole has its roots in racial discrimination against immigrants in the pre-civil war northern cites, and blacks in the post civil war south.

Up until the late 1950s, the left as a whole actually advocated gun ownership, as a bulwark against the state… a position generally ascribed these days to the “far right”; but as the left post 1932 increasingly BECAME the state, their position on civilian non-police gun ownership changed.

The issue at hand in McDonald is substantially identical to Heller, with a crucial difference we’ll discuss in a moment; that of incorporation of the second amendment against state and local governments, as other rights enumerated in the bill of rights have been.

In Heller, the substance and nature of the right were affirmed. However, though the assertion of the right is very clear; it’s application is potentially limited.

Because the Heller case pertained to a federal enclave (Washington D.C. is not a part of any state. It is a federal enclave. Precedent in DC cases applies federally, but not necessarily to issues in the several states), the ruling only explicitly applied to the federal government.

In principle the right could be asserted against the states, or it could not be… depending on judicial interpretation. Either way a judge decided, it would almost be certain to be appealed… as indeed it was (in at least four cases so far, all of which were delayed pending the McDonald ruling).

Also, Heller left various questions open to interpretation, such as the standard of review for laws pertaining to the right to keep and bear arms, and whether interest balancing tests could be made.. or for that matter just what types of laws would be acceptable short of outright bans on firearms in the home (which were explicitly forbidden).

In Mondays decision on McDonald, it was affirmed (quite strongly), that the rights protected by the second amendment are equal in stature to the rights protected by the first amendment, and all the others.

In both the majority opinion, and the concurrences, the court made it explicit that the protections afforded by the second amendment applied against the state. Further, they made it clear that a strict standard of review was to be applied to any law regarding the right to keep and bear arms (though they do not by any means disallow all regulation. In both Heller and McDonald, it is acknowledged that some regulation of any right can be acceptable, but must be strictly scrutinized).

There is still one set of questions to be resolved, what exact restrictions against keeping and bearing arms will be acceptable under this standard of review. Just as there are many limitations against speech permitted by current jurisprudence, including many which probably should not be allowed under the constitution (such as most of what is called “campaign finance reform”); there will likely still be substantial restrictions allowed by the court. In any case, it will be years… likely decades… before the whole issue is settled law, and in the mean time, there will be a lot of contradiction and chaos.

The fight is certainly not over… in fact it’s really just getting started.

This is where we get into the theoretical discussion about the constitution, so I think I’m going to end here and pick it up in the next, much longer, post.

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

CounterPoint: Yes, Virginia, States Really Do Have Rights

This is a segment in The Liberty Papers’ continuing “Point/Counterpoint” series. This post is the rebuttal to my co-contributor Michael Powell’s post here, making the point that “states’ rights” are an antiquated and poisoned concept.

When I saw Michael’s post this morning, I was a little bit surprised. I was expecting him to make the argument that States’ Rights don’t exist. In fact, I was waiting for one specific statement that I’ve heard from those who attack the notion of states’ rights many times over. Thankfully, two comments in, commenter John222 made the point:

States don’t have rights, individuals do. Better would be to say, “The interest of the State in protecting the rights of it’s citizens”.

This is a common statement among libertarians, and although I’ve probably used it in the past, there have been points where I’ve become troubled by it.

Michael made some very important points in his post, and these are points that must be answered. However, to begin, we must have an understanding of the origin, the nature, and the limitations of states’ rights. Only by setting this groundwork may I refute Michael. But first, a caveat. In order to make the points I must make, I must work with two critical assumptions:

  1. Natural rights of individuals exist.
  2. Constitutional democratic government is legitimate.

For those that have read my previous work, it should be understood that I believe neither of these assumptions. I am a philosophical anarchist, and while I can construct a non-theistic basis for natural rights theory, I view them as artificial constructs, not incontrovertible truths. However, we must work within the framework we have, and thus I will concede these points for the purposes of this post. For the purposes of discussion and comments, please try to take these two premises at true, and if you have a problem with the argument flowing from those premises, attack the argument.

Let’s start at the beginning:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Here’s the base. Natural rights are the area where we say to government: “Over this line you may not tread.”

Individuals have certain natural rights, and they empower governments to help them protect these rights. The statement that “States don’t have rights, only individuals do” does not account for what we consider the social contract. Individuals enter into an implicit contract with their government, offering to entrust some of the rights they hold in the “state of nature” to their government in order for cooperation and protection of those rights. Those governments do not gain *new* rights as governments, but they inherit the rights of those they are designed to protect.

Natural rights theory does not hold that individuals give up their rights to the government, the rights are retained. It is best to be understood as a legal contract — individuals freely, by exercise of their rights, create their government. They voluntarily empower their society — their government — to protect their rights. A government that reaches beyond the legitimate power of protection of those rights, as Jefferson himself states, deserves no longer our assent or our support. If said government treads beyond the lines defined above, that government has violated the social contract.

“Government”, of course, is not a singular entity. Governments are hierarchical, competitive, and numerous. In many cases, we are under the jurisdiction of several governments — entities within entities. In many cases, the governments we live under must make compacts with other governments outside our territory — treaties — in order to help complete the tasks which we have empowered them. Each of these agreements are contracts or compacts. Rights of the citizens of the government are not abridged, they are retained — at least if the government empowered to act on behalf of its inhabitants are legitimate.

How, then, do we describe the relationships between these levels of government or between competing governments? How do we define the lines over which they may not tread? Let’s take one example: borders. What are borders, other than the territorial lines defining the government which protects the rights of its inhabitants? What do we call a government’s relation to its borders? Territorial rights! Now, of course, these rights are not that of “the government”, but they are the territorial rights of which the individuals supporting that government have ceded to their government to protect.

Likewise, how do we define our US Government’s relationship to the United Nations and the nations of the world? We use the term sovereignty: the inviolability of our government to the others of the world — the statement that our government has “rights”, i.e. lines over which those other governments may not tread.

The nature of the United States Government and its relationship to its constituent States is a tricky one, historically. The United States Constitution — our governing document — is a compact between states, not a contract directly between the federal government and the people. Historically, the people of the several States entrusted their governments — the entities to which they had entrusted their rights for protection — to form a federal republic. One may support the claim — at least until 1865 — that the States retained sovereignty, and that they had contractual RIGHTS as constituent members of that federation.

These rights are not inherent to them, as States. These rights are the rights entrusted to them by their inhabitants, and the rights they are protecting are not the rights of the State as State, but a collective bargaining arrangement to protect the rights of their inhabitants. Regardless of how you define this, though, the rights exercised are contractual rights exercised by the States on behalf of their inhabitants. The States drew a line, and told the United States Government “over this line you may not cross.” For the United States Government to cross that line would allow the State, if it so chose, to exercise its sovereignty and break the contract — secede.

These rights are not without limit, though. We previously stated that government is created by individuals in order to secure their natural rights. But those rights are retained. A government which does not secure those rights — a government in fact which violates them, is not a legitimate government at all and may be disbanded. Likewise, federal governments or supra-national bodies do not have super-natural powers — they are still only as legitimate as the rights of their constituent states (and thus the rights of their constituent inhabitants). If the United States Government attempts to violate the sovereignty of the states in order to violate the natural rights of its constituent inhabitants, it is just as illegitimate as if the individual state takes that action…

…which finally brings me back to Michael’s post!

Specifically, this country is, and always has been, a work in progress. I said it was illegitimate for a federal government to violate the sovereignty of its constituent States and if a federal government were to do so, it would justify secession. However, while Michael says he wouldn’t cry crocodile tears if the South had been allowed to secede, the South’s secession would not have been justified under States’ Rights theory. Why? Because slavery — a State deliberately violating the natural rights of its inhabitants — is not a legitimate government, and thus the Southern States did not have true sovereignty. A government which violates the natural rights of its inhabitants as a matter of design cannot be granted the authority to act on behalf of its citizens.

The Fourteenth Amendment, in the wake of the Civil War, finally codified this statement. Prior to this, the United States Constitution did not have a method for the Federal government to impede the States from abridging the natural rights of its citizens. (Of course, one can infer from this that the Civil War was illegal, but the destruction of slavery in the South can hardly be described as immoral). It should be stated that Michael’s quote from George Wallace was not truly a defense of States Rights. Those rights of States to discriminate by law against their citizens had long been removed via the Fourteenth Amendment. If he truly believed that the right of the State was inviolable (I doubt this to be the case — I personally think it likely that “States’ Rights”, like patriotism, just happened to be the last refuge of a scoundrel), he was simply wrong.

Michael is correct, of course, that in the intervening century, the term “States’ Rights” was used by all manner of racists, supporters of Jim Crow, and people who are “defiant of settled law”. In American politics, terminology tends to have this problem — terms become appropriated by unsavory characters, and the terms themselves pick up unsavory connotations. We “libertarians” constantly bemoan the fact that our previous label, “liberal”, as appropriated by big-government Democrats. We had to abandon the term completely and build a new one. States’ Rights has some of that connotation, but by definition that doesn’t not negate the concept of those rights.

The term “States’ Rights” may, in fact, be coming into a renaissance. As Michael points out, individual states are fighting the Feds on medical marijuana, and California — the state where we both live — has a ballot measure in November to legalize marijuana entirely. This is in direct contravention of the Controlled Substances Act, but more importantly, this is a state protecting its citizens from the overreaches of Washington!

But again, look at the nature of government. A State government that violates the natural rights of its inhabitants is acting illegitimately. At the same time, a Federal government that violates the natural rights of its inhabitants is acting legitimately. In this case, it is right for the inhabitants of a State to pool to their rights collectively — using their States’ rights — to protect themselves from the Federal government on their behalf. Individuals often have little recourse against the Federal leviathan. They need all the help they can get.

Either way, I think that Michael did not prove, as I thought he would attempt, that states don’t have rights. He did make some valid points that the terminology of states rights had been hijacked for the last century by those State governments who wished to protect their racist fiefdoms. But he belied his own point by bringing up the fact that the very same terms are also being used by States to protect the liberty of their inhabitants from Federal overreach.

Modern Jurisprudence is PROFOUNDLY Broken

Two contrasting stories out of the Supreme Court today, that bring home the fact that jurisprudence in this country is profoundly… hopefully not irreparably… broken.

First, from the New York Times:

NO MORE LIFE SENTENCES FOR MINORS WHO HAVEN’T MURDERED…. In yet another 5-4 ruling, the Supreme Court said this morning that incarcerated minors can’t receive life sentences if they haven’t killed anyone.

By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

“The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law,” Justice Anthony Kennedy wrote in his majority opinion. “This the Eighth Amendment does not permit.”

The Eighth Amendment, of course, prohibits cruel and unusual punishments.

Justices Alito, Scalia, and Thomas dissented. Chief Justice John Roberts also sided with the minority, though he agreed with the majority on the specific case of Terrance Graham’s fate.

In Justice Kennedy’s majority ruling, he made note of the “global consensus” against life-sentences for youths who haven’t committed murder. The sentence will likely enrage the far-right, which tends to throw a fit when justices take note of international developments.

In a concurrence, Stevens, joined by Ginsburg and Sotomayor, threw an elbow at one of their colleagues: “While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old … Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.”

and in a complete reversal of logic, this judgement:

AP: High Court: ‘Sexually Dangerous’ Can Be Kept in Prison

WASHINGTON (May 17) — The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered “sexually dangerous” after their prison terms are complete.

The high court reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered “sexually dangerous.”

“The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others,” said Justice Stephen Breyer, writing the majority opinion.

President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates.

The act, named after the son of “America’s Most Wanted” television host John Walsh, was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released.

A fifth man who also was part of the legal challenge was charged with child sex abuse, but declared incompetent to stand trial.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled last year that Congress overstepped its authority when it enacted a law allowing the government to hold indefinitely people who are considered “sexually dangerous.”

But “we conclude that the Constitution grants Congress legislative power sufficient to enact” this law, Breyer said.

Justice Clarence Thomas dissented, saying Congress can only pass laws that deal with the federal powers listed in the Constitution.

Nothing in the Constitution “expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power,” Thomas said.

Thomas was joined in part on his dissent by Justice Antonin Scalia.

It seems clear to me, that both of these decisions are examples where justices are deciding a case based on what they want to do and finding a way to justify it, rather than a considered opinion of the law and the constitution.

In the first case, the majority came to what I believe is the right decision on constitutional ground, but for what appear to be the wrong reasons. The minority on the other hand are supporting an unconstitutional practice, based on pragmatic considerations.

In the second case, the majority supported a CLEARLY unconstitutional practice for pragmatic reasons; and the minority dissented based on the constitution.

Both cases however, highlight a major problem with our “justice system” today: We can’t deal effectively with our criminals, our prisoners, or our prisons.

There are many reasons for this of course, but what it comes down to, is that there are too many crimes, too many criminals, and too little honesty in how we deal with either.

Both of these cases are about recidivism. The plain fact is, more than 40% of people who go to prison, go back. More than 60% who go to prison for violent crimes go back. More than 80% who go to prison for sex crimes go back.

There have been a number of attempts at dealing with these difficult facts; none of them effective, and most of them unconstitutional.

In the case of the criminals under 18 being imprisoned for life because of sentence enhancements… The problem here isn’t that it’s a 17 year old in prison for life for something other than rape or murder… Its that “sentence enhancements” even exist at all.

Firstly, I think the whole “global consensus” thing is not only irrelevant, but dangerous and unconstitutional (interpretation of American law should ONLY be based on the Constitution, and the constitutions of the several states)

Yes, the law evolves, and yes it is influenced by changing moral standards, which is influenced by world culture.

When we wrote our constitution, it was in large part based on principles inherent in English common law; as was the early constitutional scholarship and interpretation until we built up our own body of case law. The goes further back to the greeks, romans, even the Assyrians. Certain basic principles of law and justice are universal; or have filtered up through from the earliest formalized conceptions of both rights, and laws.

However, it is important that case law be consistent with the written constitution; and that any case law which is not be ignored in interpretation of future cases, and hopefully be reversed.

If the American people want to change their constitutions, they can. There is a mechanism for that. Until they do, there should be no other arbiter for American law than the constitution.

One of the fundamental principles of jurisprudence is that the law should be knowable, and predictable; not arbitrary and capricious. One should not need to follow “evolving moral standards” and case law in other countries, to know whether one is violating the law.

In a system where ignorance of the law is no defense, the law must be written and knowable. The fact that in todays world it is not; is not an indication that we have evolved morally, it is an indication that modern jurisprudence is profoundly broken.

All that said however I agree that the law in question should have been struck down, just for a different reason.

I believe that “sentence enhancement” conditions are themselves a bad thing. They are invalid and unconstitutional as far as I am concerned. A crime is a crime, and one should be punished the same way for the same crime, as everyone else.

Certainly, there can be special circumstances, but they shouldn’t increase punishment; a maximum punishment should be set, and that’s it. There should be discretion for judges to reduce sentences, but not to increase them. Three strikes laws, hate crime enhancements, all of them need to go.

The problem that three strikes laws are intended to solve (high recidivism rates), is more properly addressed by longer or more harsh initial sentences, combined with better rehabilitation and reintegration efforts, and a better running of our penal system.

In the second case, we again have an issue of inappropriate sentencing.

Genuine sexual predators (rapists, molestors etc..) need to be put away for life without parole, or they need to die (though I have grave reservations about the death penalty). Either way, they need to be permanently removed from society.

For some reason, we treat sex crimes as far less serious than major property crimes, or other violent crimes; as if rape were not every bit as serious as attempted murder (believe me, it is).

Some things require ultimate sanction, and serious sex crimes are among those things.

On the other hand though, we now classify the most piddling things as sex crimes. Right now, we have hundreds of 18 and 19 year old young men in prison around this country, for having consensual sex with their 17 year old girlfriends (somehow, we almost never imprison older young women for sex with teenage boys). We make people register as sex offenders for having consensual sex in the back of their cars in a parking lot…

Which just reinforces the point: We’re broken both ways. We are far too harsh on one side, and far too lenient on the other; and just plain broken all the way around, because a sentence doesn’t mean what it says it means.

The very idea that a state official can simply decide you are too dangerous to be let out of prison, EVEN THOUGH YOUR JUDICIAL SENTENCE IS OVER… It’s disgusting. It’s abhorrent to the very nature of our country, and our constitution.

Three strikes laws, sentence enhancements, sex crime laws… All are seriously broke; because they are attempting to deal with practical problems, in an impossible way. You can’t achieve the goals they’re trying to achieve, with the techniques and tools they are using.

We’re broken. We need to fix it. We need to protect society from real criminals, real dangerous people, real evil people; and we need to provide a strong incentive for the “casual criminal” (and we are all “Casual Criminals” now). But we need to do it, without destroying what it means to be American.

In order to do this, we must first reduce our prison population, not by releasing the truly dangerous; but by DRAMATICALLY slashing the amount of people we imprison (both today, and in the future).

The first thing we need to acknowledge, is that the so called “war on drugs” has not only failed, but was wrongly conceived in the first place.

Imprisoning people for drug use simply does not achieve the goals it is intended to achieve. It doesn’t reduce drug use at all. It doesn’t reduce crime at all, in fact it increases it. It turns people who might otherwise be productive… or at least LESS of a drag on our society; into total dependents. It frequently makes them into “harder” criminals.

It just doesn’t work.

Frankly, I think we should entirely decriminalize drug use and possession; even if we choose to maintain prohibition on importation, sales, and distribution.

Then there is the question of the proliferation of felonies… Damn near everything is a felony these days. Two students in Virgina were charged with felonies last year for THROWING SNOW BALLS. Schoolchildren have been charge with felonies for drawing pictures with guns in them…

Felonies are supposed to be reserved for “high crimes”. Those things which must be punished by long term removal from society.

Does anyone really believe it is necessary to send someone to prison for two years, for serving hotdogs wrapped with bacon out of a cart (yes, that is a felony in several jurisdictions in this country).

The fact is, we classify far too many things as felonies, which simply should not be. We need to eliminate most of those felonies.

What it comes down to, is that we should reclassify most non-violent felonies as misdemeanors, and eliminate custodial sentences for them; substituting EXTREMELY HIGH fines, and supervised restricted release (ankle bracelets etc…).

Combined, that would reduce our prison population by more than three quarters immediately (the drug changes alone would cover 60%). This would allow us to deal with the remainder of that population more appropriately. More harshly for those who need it, and with a higher focus on rehabilitation for those who are willing to make the effort.

Importantly, it would allow us to eliminate early release for those who have not made serious and genuine rehabilitation efforts; allowing prison officials and judges to exercise discretion appropriately.

Perhaps when we no longer have to be so concerned about overcrowding, and inappropriate early releases, and imprisoning those who should not be; we can restore some sanity to the system as a whole.

But that’s all related to the practical issue.. The pragamatic justice as it were..

The bigger issue here, is that under todays conception of jurisprudence, it is impossible to know or understand whether you are breaking the law or not. Whether your crime is a felony or not. Exactly what that crime might be, or what the punishment for it might be.

That isn’t law, or justice; and it isn’t what our country is supposed to be.

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

Is “Deem And Pass” Constitutional ? Neither The Question Nor The Answer Are As Simple As You Think

As the debate over health care reform approaches it’s final hours in the House of Representatives, there’s been much discussion over the past week over a rather obscure topic — the internal operating procedures of the House of Representatives, and specifically the apparent intention of House Democrats to use something that has been called “deem and pass” to get the Senate Bill approved and a Reconciliation Bill to the Senate.

The first question, of course, is exactly what “deem and pass” actually is, and George Washington University Professor Sara Binder gives perhaps the best explanation I’ve seen to date:

So how is the process likely to unfold? We can’t be entirely sure of all the details yet, but it will likely start on Saturday when the Rules Committee meets, most likely in its usual room in the Capitol—a tight squeeze with just a handful of spectator seats. At that point, the committee will unveil its recommended special rule and debate it. We don’t know yet for sure what the rule will say. There will most likely be that self-executing provision that “deems” the Senate-passed health care bill as passed by the House upon adoption of the rule or upon House passage of the reconciliation bill.

(…)

The Rules Committee has now written up a special procedure for its debate and the House has approved it. If the rule is written in such a way that enactment of the rule itself deems the Senate bill passed, the Senate bill would—at that point—be ready for presidential signature. Health care reform, in other words, would be ready to become law. But it’s more likely the rule will stipulate that the Senate bill becomes law only after the House approves the reconciliation package. If so, reform’s fate will still not be settled. It will depend on whether the reconciliation bill passes.

And so the House will proceed to debate the reconciliation package, in whatever manner and for whatever duration the rule stipulates. Most likely, no amendments will be allowed. Once debate is exhausted, the House will move the previous question motion again, this time in preparation for final passage of the bill. Again, it will take 216 to agree to the previous question motion, setting up the climactic vote

(…)

[I]f all has gone according to plan for the Democrats, the chamber will come to its up-or-down vote on the reconciliation bill. If 216 members vote yes, the reconciliation bill will go to the Senate. And the main Senate bill? That one will enter the “enrollment” process to prepare it for its journey up Pennsylvania Ave to the White House.

Doesn’t exactly sound like Schoolhouse Rock does it ? That, I think is one of the reasons that we’ve seen such a strong reaction to this issue from many pundits and members of the public. Whether it’s right or wrong, it doesn’t seem right. Politically, it’s a dumb move that I think Democrats will come to regret. But what about the Constitution ? Is “deem and pass” Constitutional ?

Former Federal Judge Michael McConnell was among the first to state publicly that the answer is a clear no:

To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

It seems like a fairly straightforward, textually sound argument, and many on the right have essentially adopted McConnell’s argument as their own. Both Virginia Attorney General Ken Cuccinelli and talk show host Mark Levin have said that they intend to file lawsuits if the House utilizes the “deem and pass” strategy.

It turns out, though, that the answer isn’t quite as simple as McConnell makes it out to be.

In 2005, the Circuit Court of Appeals heard a case titled Public Citizen v. US District Court for DC. In that case, Public Citizen, joined by Members of Congress including Nancy Pelosi and current Rules Committee Chairperson Louise Slaughter (of the “Slaughter Solution) were challenging a “deeming” procedure used by the Republican-controlled House.

Here’s what the Court said:

The District Court held that Public Citizen’s bicameralism claim is foreclosed by the Supreme Court’s decision in Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). See Public Citizen v. Clerk, U.S. Dist. Ct. for D.C., 451 F. Supp. 2d 109 (D.D.C. 2006). In that case, the Court held that the judiciary must treat the attestations of “the two houses, through their presiding officers” as “conclusive evidence that [a bill] was passed by Congress.” Marshall Field, 143 U.S. 672-73. Under Marshall Field, a bill signed by the leaders of the House and Senate – an attested “enrolled bill” – establishes that Congress passed the text included therein “according to the forms of the Constitution,” and it “should be deemed complete and unimpeachable.” Id. at 672-73. Recognizing that Marshall Field’s “enrolled bill rule” prohibited it from questioning the congressional pedigree of the bill signed by the Speaker and President pro tempore, the District Court dismissed Public Citizen’s complaint and denied its motion for summary judgment. Public Citizen, 451 F. Supp. 2d 109. …

We agree with the District Court that the enrolled bill rule of Marshall Field controls the disposition of this case. We therefore affirm the judgment of the District Court. We find it unnecessary to determine whether Public Citizen has standing to bring suit, because we conclude that the Marshall Field rule of dismissal “represents the sort of ‘threshold question’ [that] . . . may be resolved before addressing jurisdiction.” Tenet v.Doe, 544 U.S. 1, 6 n.4 (2005).

In Marshall Field, the Supreme Court said:

The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable.

(…)

It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself—nothing to the contrary appearing upon its face—that it passed congress

So, assuming that Marshall Field applies, once Nancy Pelosi and either Vice President Biden, as President of the Senate, or Senator Byrd, as President pro tempore attest that the bill has passed their respective houses, that is the end of the matter unless the Supreme Court ends up over-ruling a 118 year old precedent and creating a Constitutional crisis.

KipEsquire has made some good points suggesting that Marshall Field might not apply in this case, but it doesn’t end there.

I vaguely recalled learning the Enrolled Bill Doctrine in law school. Not in a Constitutional Law class, mind you, but in Statutory Interpretation. That’s because the Doctrine is not a true constitutional principle. It is, at best, an editorial footnote, one that deals only with Congressional scrivener’s errors, not with major foundational questions of federal lawmaking.

This is why those — even those who oppose Obamacare — citing to the Enrolled Bill Doctrine are misguided. Unlike so many other judicial atrocities, the Supreme Court has never before — and will not now — nullify the Presentment Clause (or tolerate its nullification by Congress, the President or both). We saw that as recently as Clinton v. New York, 524 U.S. 417 (1998), in which the Court struck down the line-item veto.

I understand the Presentment Clause arguments, and have blogged about them, favorably, over the past week or so. Based on a strict reading of the text of the Constitution, I think that it’s probably correct that the House is required to actually vote on the Senate Health Care Reform bill. However, the Presentment Clause does not state the manner in which the vote must be taken by each chamber, and Article I Section 5 says the following:

Each House may determine the Rules of its Proceedings,

In United States v. Bellin 144 U.S. 1 (1892), the Supreme Court stated:

The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations, all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

If the House of Representatives passes a Rule stating that the Senate bill is deemed as having been passed by the House, that would seem to fall within the discretion of the House under Article I, Section 5. And, as Jack Balkin notes, it would be part of a method under which “deem and pass” could occur without violating the Presentment Clause:

[T]here is a way that “deem and pass” could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule.

How that would not be in compliance with the Presentment Clause is beyond me.

Politically, “deem and pass” is a stupid idea because it smacks of dishonesty and, more importantly, there seems to be something wrong with using this method to pass such a major piece of legislation, even if the method itself is Constitutional.

Just because it’s politically stupid, though, doesn’t mean it’s unconstitutional.

Note: This post was developed from a series of posts I published on my personal blog earlier this week.

Update 2:39pm EDT: The Washington Post is reporting that the House leadership has decided not to use a “deem and pass” rule for tomorrow’s vote. To me, that means that they are confident they have the votes.

Opening the floodgates…

From tonight’s State of the Union address:

“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said. “Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

In the video, Justice Samuel Alito can be seen visibly disagreeing with this sentiment. First, I’m glad someone can stand up against a President who respects the independence of the judiciary so little that he calls them out in the State of the Union. Such moves reek of political hackery that should be far beneath the President. Second, Obama’s assertion is flatly wrong.

Obama contends that the floodgates have been suddenly opened for corporations to have undue influence over candidates and politicians simply because campaign spending limits have been lifted. How, in a country where a single mother can be ordered to pay $1.92 million for sharing music because of a law bought and paid for by the recording industry, can it be claimed that the influence of corporate interests is at all inhibited?

In the recent health care debates, WalMart was on the front lines of the cheering, hoping that they could dupe Democrats into using the law to skewer their smaller competitors. In the same debate, the SEIU managed to secure a sweetheart deal for unions where the “Cadillac” tax would not be borne if the gold-plated health care plan was a result of collective bargaining (read: union strong-arming).

The history of the last half-century in Washington is one where incumbents and party-anointed successors enter into perpetual quid pro quo relationships with special interests. Legislators get things from special interests in return for political and legislative favors. We all know that this is the way things work. We all hope that when we send “our guy” to Washington that he’ll be the one to change it.

In real life, there is no Mr. Smith. Even when someone like Jeff Flake comes to Washington and tries to fight for the people he is rebuffed. The self-styled ruling class in Washington depends on having a monopoly on the influence of big business and special interests.

It is not the thought of special interests influencing politics that scares the ruling class. It is the thought of special interests influencing politics without them that does.

Influence peddling and vote buying are expected in the halls of power. Interests are allowed nearly unlimited access as long as they come in as supplicants to the ruling class. Once the same interests attempt to take their message from K Street to Main Street, the law is brought down upon them as they are accused of trying to corrupt the political process.

With that in mind, let’s look at what the President really meant behind the doublespeak:

“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to speak directly to the people,” Obama said. “Well I don’t think that the course of American politics should be interfered with by the American people. It should be decided by the ruling class in cooperation with America’s most powerful interests, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

The Supreme Court had the temerity to undercut the system of influence carefully constructed by the Republicratic ruling class over the last century. Obama is leading the charge to restore the power that the Supreme Court, and the Constitution, has denied them.

May more Americans have the courage to challenge Obama and the ruling class on this.

President Obama establishes Council of Governors by Executive Order

Brad just asked what people are reading today.  President Obama just provided some interesting reading material indeed. Here’s the opening text from an Executive Order dated January 11, 2010:

EXECUTIVE ORDER
ESTABLISHMENT OF THE COUNCIL OF GOVERNORS

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 1822 of the National Defense AuthorizationAct of 2008 (Public Law 110-181), and in order to strengthenfurther the partnership between the Federal Government and State governments to protect our Nation and its people and property, it is hereby ordered as follows:

Section 1. Council of Governors.
(a)
There is established a Council of Governors (Council).The Council shall consist of 10 State Governors appointed bythe President (Members), of whom no more than five shall be ofthe same political party. The term of service for each Member appointed to serve on the Council shall be 2 years, but a Membermay be reappointed for additional terms.
(b)
The President shall designate two Members, whoshall not be members of the same political party, to serve asCo-Chairs of the Council.
Sec. 2. Functions. The Council shall meet at the call of the Secretary of Defense or the Co-Chairs of the Council toexchange views, information, or advice with the Secretary ofDefense; the Secretary of Homeland Security; the Assistant tothe President for Homeland Security and Counterterrorism; theAssistant to the President for Intergovernmental Affairs andPublic Engagement; the Assistant Secretary of Defense forHomeland Defense and Americas’ Security Affairs; the Commander,United States Northern Command; the Chief, National GuardBureau; the Commandant of the Coast Guard; and other appropriateofficials of the Department of Homeland Security and theDepartment of Defense, and appropriate officials of otherexecutive departments or agencies as may be designated by theSecretary of Defense or the Secretary of Homeland Security.Such views, information, or advice shall concern:
(a)
matters involving the National Guard of the variousStates;
(b)
homeland defense;
(c)
civil support;
more
(OVER)
2
(d)
synchronization and integration of State and Federalmilitary activities in the United States; and
(e)
other matters of mutual interest pertaining toNational Guard, homeland defense, and civil support activities.

Read the rest here.

Earmark And Healthcare Wars: Ron Paul vs Jeff Flake

A recent article in the Washington Examiner by John Labeaume details the differing approaches to earmarks that two of most libertarian members of Congress have. This difference came out in a vote on an amendment that Flake wrote to H.R. 3791 which was the Fire Grants Reauthorization Act of 2009. The Flake amendment would ban earmarks as defined by Congressional rules. All in all, a modest amendment.

From the Examiner article:

Here’s a gross understatement: Friends of Freedom in the Halls of Congress are few and far between. Asked for a “Real Life” practicing politician that they can actually get behind, it’s not uncommon for libertarians of many stripes to limit their response to two: Rep. Ron Paul (R-TX) and Rep. Jeff Flake (R-AZ).

Dr. Paul has been known to put his own sometimes idiosyncratic principle before practicality, leading his legions of fevered ‘money bombing’ fans along his particular path to ideological purity. His rabid opposition to barrier-busting trade agreements like NAFTA, quibbling with a new panel it might spawn, is a prime example. And this trait can pit his voting record against those of his erstwhile liberty-loving allies, and align himself with curious company.

……………………………

Last month, in an obscure House vote, this stubborn streak reared its head again. It’s a minor, but instructive instance, as Paul was one of only two “nay” votes on his side of the aisle against an amendment to HR 3791, the Fire Grants Reauthorization Act of 2009, offered by his fellow Constitutional conservator, Flake.

The only Republican lined up with Paul – and against Flake – was that egregious earmarker, Rep. Jerry Lewis (R-CA), the Ranking Member on Appropriations. Like his Showbiz namesake, the collegial Lewis’ look could pass for that of a 70’s “Nite Club” act and he certainly knows how to work a room, but he’s dead serious about defending Appropriators’ perks and the practice of earmarking.

Flake’s amendment was modest.

It merely seeks to ensure a competitive, need-based process for parceling out the firefighting grants authorized by the bill. The mechanism was aptly judicious: it enforces the bill’s ban on earmarking. If opened to earmarks, Flake fears that influential Members – like Lewis – could divert dollars to their districts, away from regions with less congressional clout, but in more dire need of an occasional emergency blaze dousing, admittedly not unlike the maverick Flake’s sometimes-parched Southwestern home base. Of course, and more significantly, once Members start horse trading in earmarks, the price tag tends to swell even beyond the bloated figure originally authorized.

Again, Paul stuck to his guns and stood by his controversial defense of earmarking, and let the red light glow next to his name on the big board above the Speaker’s Chair. His office told me, via an email statement, that Paul maintains that “that all spending should be earmarked as this provides the greatest transparency [and]…gives constituents an opportunity for input regarding how their tax dollars are spent.” The statement paid obligatory lip service to “drastically” reducing spending.

But this last line begs the question: what if that “input regarding how” just means “more,” and “for me”?

Before I go into the crux of the debate, my position on earmarking is this:

  • I don’t have a problem with earmarking in general because yes Congressmen should know the needs of their districts better than Federal bureaucrats.
  • However, earmarks lately have been a vehicle for corruption as Congresscritters reward supporters and campaign contributors with things that would be considered bribery under most circumstances (see John Murtha and the aforementioned Jerry Lewis, et al).
  • In addition, the earmarking process has been used as a way to short circuit the competitive bidding process and award contracts to politically connected companies.
  • Earmarks generally reward politically connected members of Congress and promote wasteful spending, however this is no different than other actions of Congress and the Federal government.
  • Therefore, I am a supporter of earmark reform, but I also realize that earmarks are only a portion of the overall problem with wasteful government spending and political corruption.

I believe that Jeff Flake is correct on this issue and I generally support his fight for earmark reform, Ron Paul’s opposition not withstanding. Earmark reform won’t eliminate wasteful spending and political corruption, but it will make a sizable reduction in both. It will also make it easier to defeat incumbent members of Congress as it will give incumbent members of Congress who bribe their constituents less ability to do so and therefore will increase turnover in Congress.

The Examiner article also attacked Ron Paul for not paying attention to the current healthcare fight:

With a scheme that threatens to regulate one-sixth of the U.S. economy wending its way through the legislative sausage-maker, Flake is focused. Glance at his home page; note the repeated references to health care from his multimedia page. Here’s a flurry of press releases issued in the heat of the House debate.

Meanwhile, Paul’s immediate obsession is trained on legalizing Liberty Dollars. Even though this health care overhaul threatens his livelihood – Dr. Paul is a physician by vocation, remember – from his homepage, you wouldn’t know that this issue looms over Washington one bit. Health care merits only a few addresses in Paul’s posted floor statements and press releases from the entire 111th Congress.

And though his official U.S. House site’s blog offers a few posts on this matter, his political arm, Campaign for Liberty, touts a recent interview with a right wing satellite shock jock, a self-styled “King Dude” whose trademark is liberal-lampooning novelty tunes. (Premium content, only for “King Dude” backstage pass holders, sorry.) During the interview, C4L’s homepage boasts, Dr. Paul discusses his pet “issues including Audit the Fed, Social Security, foreign policy, and nullification.” Number of mentions of healthcare? Zero. He didn’t even warble through a single “Death Panel” ditty.

………………………………………

Paul’s Campaign for Liberty sent out an action item, with orders to his loyal legions to contact Congress and demand a floor vote on his “Audit the Fed” bill, one that House leadership has no intention of unbottling.

As ‘Armageddon Day’ for health care regulation approaches, instead of taking up his scalpel to trim a behemoth, Dr. Paul is fiddling with the Fed.

Unfortunately for Labeaume, this is simply not true. Ron Paul has actually been focused, somewhat, on the healthcare debate. For example, the Campaign for Liberty, on its front page has a link to a project called Operation Health Freedom. Some of the proposed legislation in the project even made its wayhttp://www.thelibertypapers.org/wp-admin/post-new.php into the GOP’s alternative bill. Also, the Campaign for Liberty has been featuring articles almost daily on healthcare. Also if you look at Ron Paul’s House site as compared to Jeff Flake’s House site, you’ll see more writings about healthcare from Ron Paul and his office than from Jeff Flake and his office. I don’t begrudge Jeff Flake on the healthcare issue at all, but to say Ron Paul is disengaged from the healthcare fight is either the result of shoddy research at best or outright dishonesty at worst.

As for Ron Paul’s obsessions with the Federal Reserve, nullification, and foreign policy; that can be traced to Ron Paul’s political style more than anything. Paul is a populist oriented libertarian where as Jeff Flake is more a policy wonk libertarian. Flake’s big issues are earmark reform, immigration reform, and free trade which are more keeping of a former head of a think tank (which Flake was before his election to Congress). Paul’s issues are more geared toward a broad, populist appeal where as Flake’s issues are more appealing to political junkies and wonkish types.

As Nick Gillespie from Reason’s Hit and Run wrote:

To paraphrase Todd (“Godd”) Rundgren, sometimes I don’t know what to feel. Can’t we all just get along, and denounce the Fed and health care reform and earmarks and out-of-control spending? I’m sure we can.

Indeed.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

Will The Supreme Court Finally Start Reining In The Necessary And Proper Clause ?

One of the most pernicious clauses of the Constitution that has, through creative interpretation led to an expansion of the power of the Federal Government far beyond where it was intended is the Necessary and Proper Clause, which sits at the end of Article I, Section 8 and states as follows:

To make all Laws which shall be 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, or in any Department or Officer thereof.

When James Madison wrote about the clause in Federalist No. 44, it was clear that the Founders viewed the clause as merely granting Congress the authority it needed to carry out the powers set forth in remainder of Section 8:

The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. Of these the first is, the “power to make all laws which shall be 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, or in any department or officer thereof. “Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter.\

(…)

If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.

The reality of just how flexible the clause was, though, became apparent only thirty-one years later when the Supreme Court handed down it’s decision in McCullouch v. Maryland:

McCulloch v. Maryland, 17 U.S. 316 (1819), was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland. Though the law, by its language, was generally applicable, the U.S. Bank was the only out-of-state bank then existing in Maryland, and the law is generally recognized as having specifically targeted the U.S. Bank. The Court invoked the Necessary and Proper Clause in the Constitution, which allowed the Federal government to pass laws not expressly provided for in the Constitution’s list of express powers as long as those laws are in useful furtherance of the express powers.

This fundamental case established the following two principles:

  1. The Constitution grants to Congress implied powers for implementing the Constitution’s express powers, in order to create a functional national government.
  2. State action may not impede valid constitutional exercises of power by the Federal government.

The opinion was written by Chief Justice John Marshall.

It was the first example of a Constitutional clause being used to read into the Constitution increased powers for Congress beyond those set forth in the text of the document, and it wouldn’t be the last.

Now, it appears that the Supreme Court may have the opportunity to rein in the damage the McCulloch did:

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. One provision of the law authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.

Six days before the scheduled release of Graydon Comstock — who had been sentenced to 37 months in jail for receiving child pornography — the attorney general certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone.

Comstock and several others challenged their confinements as going beyond Congress’s constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case.

Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress’s limited and enumerated powers. The government’s reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely “carries into execution” the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers.

While the government justifies its actions by invoking its implied power “to establish a federal penal system” — itself a necessary and proper auxiliary to certain enumerated powers — civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity.

Here’ s hoping that the Court takes this one, admittedly small, step toward reining in an out-of-control Federal Government.

The Cult Of The Imperial Presidency

whitehouse

Over the past 30 years, America has seen Presidential scandals ranging from Watergate to Iran-Contra to Travel-gate, Whitewater, the Lewinsky scandal, and the Valerie Plame affair. We’ve learned the truth about some of the truly nefarious actions undertaken by some of most beloved Presidents of the 20th Century, including the iconic FDR, JFK, and LBJ. And, yet, despite all of that, Americans still have a reverential view of the President of the United States that borders on the way Englishmen feel about the Queen or Catholic’s feel about the Pope.

How did that happen and what does it mean for America ?

Gene Healy does an excellent job of answering those question in The Cult of the Presidency: America’s Dangerous Devotion to Executive Power, making it a book that anyone concerned with the direction of the American Republic should read.

As Healy points out, the Presidency that we know today bears almost no resemblance to the institution that the Founding Fathers created when they drafted Article II of the Constitution. In fact, to them, the President’s main job could be summed up in ten words set forth in Section 3 of Article II:

he shall take Care that the Laws be faithfully executed,

The President’s other powers consisted of reporting the state of the union to Congress (a far less formal occasion than what we’re used to every January), receiving Ambassadors, and acting as Commander in Chief should Congress declare war. That’s it.

For roughly the first 100 years of the Republic, Healy notes, President’s kept to the limited role that the Constitution gave them. There were exceptions, of course; most notably Abraham Lincoln during the Civil War but also such Presidents as James Polk who clearly manipulated the United States into an unnecessary war with Mexico simply to satisfy his ambitions for territorial expansion. For the most part, though, America’s 19th Century Presidents held to the limited role that is set forth in Article II, which is probably why they aren’t remembered very well by history.

As Healy notes, it wasn’t until the early 20th Century and the dawn of the Progressive Era that the idea of the President as something beyond what the Constitution said he was took forth. Healy documents quite nicely the ways in which Presidents from Theodore Roosevelt to Woodrow Wilson to FDR went far beyond anything resembling Constitutional boundaries to achieve their goals, and how they were aided and abetted in that effort by a compliant Supreme Court and a Congress that lacked the courage to stand up for it’s own Constitutional prerogatives. Then with the Cold War and the rise of National Security State, the powers of the Presidency became even more enhanced.

One of the best parts of the book, though, is when Healy attacks head-on the “unitary Executive” theory of Presidential power that was advanced by former DOJ official John Yoo in the wake of the September 11th attacks and the War on Terror. As Healy shows, there is no support for Yoo’s argument that the Founders intended for the President to have powers akin to, or even greater than, those of the British Monarch that they had just spent seven years fighting a war to liberate themselves from. The dangers of Yoo’s theories to American liberty and the separation of powers cannot be understated.

If the book has one weakness, it’s in the final chapter where Healy addresses only in passing reforms that could be implemented to restrain the Cult Of the Presidency. I don’t blame Healy for only giving this part of the book passing attention, though, because what this book really shows us is that no matter of written law can stop power from being aggregated in a single person if that’s what the people want and, to a large extent, we’ve gotten the Presidency we deserve.

Healy’s closing paragraph bears reproducing:

“Perhaps, with wisdom born of experience, we can come once again to value a government that promises less, but delivers far more of what it promises. Perhaps we can learn to look elsewhere for heroes. But if we must look to the Presidency for heroism, we ought to learn once again to appreciate a quieter sort of valor. True political heroism rarely pounds its chest or pounds the pulpit, preaching rainbows and uplift, and promising to redeem the world through military force. A truly heroic president is one who appreciates the virtues of restraint — who is bold enough to act when action is necessary yet wise enough, humble enough to refuse powers he ought not have. That is the sort of presidency we need, now more than ever.

And we won’t get that kind of presidency until we demand it.”

And, if we don’t demand it we will find ourselves living in a country where the only difference between President and King is merely the title.

Quote Of The Day

From Ian Millhiser, who derides “tenthers”, the folks who actually believe the 10th Amendment was designed as a meaningful check on the federal government.

More important, there is something fundamentally authoritarian about the tenther constitution. Social Security, Medicare, and health-care reform are all wildly popular, yet the tenther constitution would shackle our democracy and forbid Congress from enacting the same policies that the American people elected them to advance. After years of raging against mythical judges who “legislate from the bench,” tenther conservatives now demand a constitution that will not let anyone legislate at all.

Huh… So by not wanting a hugely powerful federal government regulating and monitoring every aspect of my life, I’m an authoritarian?

I guess if Ian Millhiser would call himself anti-authoritarian — which I would guess he does — he’ll support letting us “tenthers” opt out of these government programs for which we disagree? After all, we don’t want to impede his ability to have the government he wants, as long as we don’t have to have the government he wants too.

Hat Tip: Popehat

Are Health Insurance Mandates Constitutional ?

After a piece last month in the Washington Post, which I wrote about here, lawyers David Rivkin and Lee Casey are back with a piece in the Wall Street Journal expanding on their argument that a requirement that every American buy health insurance would be unconstitutional. This time, they argue that, even under current commerce clause precedent, there is no Constitutional authority for a Federal health insurance mandate:

The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005) , the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such “activities, taken in the aggregate, substantially affect interstate commerce.”

But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not “regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity.” Of course, a health-care mandate would not regulate any “activity,” such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Article 1, Section 8, Clause 3 of the Constitution sets forth Congresses commerce power:

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

Strictly construed the Commerce Clause would not seem to be that broad of a grant of power. After all, the chief ill that it was aimed at was to allow goods and business to flow easily between the respective states, something that was not possible under the Articles of Confederation. However, the Supreme Court has interpreted the clause 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.

As the article notes, in 1995, the Supreme Court ruled in United States v. Lopez that the commerce clause could not be used to justify a Federal Law that made it a crime to carry a gun with a certain distance from a school. In 1996, it ruled in Seminole Tribe v. Florida, that the Commerce Clause did not give the Federal Government the right to abrogate the soverign immunity of the state. And, most notably, in a dissent in Gonzalez v. Raich, the 2005 case that upheld the supremacy of Federal drug laws over state medical marijuana laws, Justice Thomas said the following:

Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States.”
Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

Given this trend, the a Constitutional challenge to an individual mandate would seem to be a potentially successful argument. However, as Eugene Volokh pointed out in a post responding to the original WaPo article, that isn’t necessarily the case:

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

At best then, this would seem to be a very close call and, given almost 200 years of Supreme Court precedent it seems unlikely that a Court would overturn something as far reaching as a health care reform plan — although as the National Recovery Administration learned in 1935, it’s not impossible.

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