Filed under: All Postings, The Founding, supreme court
Get the ALL NEW THIRD EDITION of the popular work, The Original Constitution: What It Actually Said and Meant. You can buy it in either hard copy or Kindle form here.
This article originally appeared at CNS News.
When two of the largest corporations in the world—Walmart and Apple Computer—pressured Indiana and Arkansas politicians not to adopt laws protecting religious freedom, did you hear any howls against “corporate lobbying” or “corporate money” or corporate meddling in politics?
Chances are you didn’t. Because Walmart and Apple were intervening on the “progressive” side of the dispute.
In more ways than that, the recent controversy over bills in Indiana and Arkansas to protect religious freedom has been a veritable case book illustration of “progressive” political hypocrisy.
The Indiana and Arkansas measures provide that (1) if a generally-applicable law substantially burdens a person’s religious practice, then (2) that law cannot be applied to the person unless (3) it is necessary to serve a compelling government interest. The measures protect individuals and both incorporated and unincorporated associations.
Now, ask yourself: Who invented these rules? The answer: Progressives did!
The malleable phrase “compelling government interest” and close counterparts were created by the Supreme Court in the in the mid-20th century, when that Court was firmly controlled by left-of-center justices. Those terms were applied by the Court all through that period. Similarly, throughout that period the Supreme Court consistently acknowledged that incorporated and unincorporated associations were entitled to First Amendment rights.
The specific formula embodied in the Arkansas and Indiana laws was invented by “progressive” justices in cases such as Sherbert v. Verner (1963). In fact, the Court’s opinion in Sherbert was written by liberal icon William Brennan.
By 1990, however, the Supreme Court had moved more to the center. That year, it issued Employment Division v. Smith, which concluded that the Sherbert v. Verner test was impractical for most purposes. The majority opinion was written by Justice Scalia. The Court’s three most liberal justices dissented.
“Progressives” were outraged at the Smith decision. They demanded a return to their own formulation. In response the federal government adopted the Religious Freedom Restoration Act (RFRA) by large bipartisan majorities, and the measure was signed by President Clinton. RFRA reinstated the Sherbert v. Verner test for all government actions substantially burdening religious practice. RFRA purported to govern state and local measures as well as federal acts.
When the Supreme Court correctly ruled that Congress could not constitutionally dictate the RFRA standard to state and local governments, state legislatures began to adopt their own RFRAs. In keeping with the Supreme Court’s position that corporations and other associations could assert First Amendment rights, some of those laws protected associations as well as individuals. The Indiana and Arkansas bills are fairly typical of the genre.
In sum, these laws essentially reinstate the progressives’ own rules. Why would they gripe about that?
The answer is that they invented those rules to protect their own constituencies, and they don’t want those rules to protect anyone else. Not believing in the rule of law, they willingly manipulate the rules to benefit those they favor and to hurt those they don’t.
In the mid-20th century cases upholding corporate assertions of First Amendment rights, the plaintiffs were predominantly liberal entities, such as the NAACP and the New York Times. Today, however, the plaintiffs are often conservative entities.
The same hypocrisy applies to the rules protecting religious belief specifically. “Progressives” were outraged at the Smith holding because the losing plaintiff was an adherent of a Native American religion fired for using an illegal narcotic as part of a religious ceremony. If the plaintiff had been a conservative Christian defending his right to abstain from what he believed were sinful practices, perhaps “progressives” would have applauded the result.
Also, “progressives” favor anyone who wants to distribute wealth from those who earned it to those who did not. They loved Sherbert v. Verner and similar cases because the plaintiffs in those cases were demanding government benefits—specifically unemployment insurance. But today’s plaintiffs are not seeking favors for anyone, but only personal freedom. That’s anathema to “progressives.”
The religious freedom controversy thus illustrates the workings of constituency politics. More chillingly, however, it demonstrates how many members of our society hold only contempt for freedom and for the rule of law.
FOR IMMEDIATE RELEASE
April 16, 2015
Contact: Rob Natelson, 303-279-6536, ext. 114 or Rob@i2i.org
New “Article V Information Center” Helps Federal Reform Efforts
DENVER — The burgeoning “convention of states” movement wants to save the republic, and the Independence Institute is pitching in to help.
The Institute’s new “Article V Information Center” website provides journalists, state lawmakers and other citizens with up-to-date, accurate and unbiased information on a little-known part of the U.S. Constitution that could be triggered in the next year or two.
Article V of the Constitution empowers state legislatures to force reforms on the federal government. If 34 state legislatures demand a particular kind of constitutional amendment, the result is a meeting of state legislatures that the Constitution calls a “convention for proposing amendments.” The gathering can then propose reforms, which become part of the Constitution if 38 states agree.
A convention for proposing amendments is a limited-purpose gathering, and NOT a constitutional convention, with which it is sometimes confused.
Advocates of an amendment forcing Congress to balance the federal budget are only a few states away from the necessary 34. They have added three states to their tally this year.
Also picking up steam are amendments imposing term limits on federal officials, campaign finance reform, and cuts in the federal bureaucracy.
“Relatively few people realize it yet, but we could be on the cusp of a major change for the better,” says Rob Natelson, the long-time constitutional law professor who heads the Article V Information Center. Natelson’s publications on the amendment process sparked the “convention of states” movement.
“When I first started investigating, there was widespread ignorance about how the amendment process worked and what its possibilities are,” he added. Journalists and state lawmakers are still being fed misinformation by people who appear to know more than they do. That’s why we started the Article V Information Center.”
Natelson hopes the Article V Information Center will clear up the confusion. “We don’t endorse particular amendments; we just help the process,” he said. “Similar conventions have a very long track record, and we know how they work,” he says. “Our goal is to provide people with the facts.”
Visit the Article V Info Center here.
Learn more about the Center from Rob Natelson and Ken Clark:
To see more Freedom Minutes, go to our IITV YouTube channel.
Filed under: All Postings, Article V, The Founding
Are you a journalist or other citizen who needs a quick overview of the Constitution’s Article V “Convention for Proposing Amendments?” Get our issue paper, “Curing Federal Dysfunction by Constitutional Amendment: A Primer.”
It’s a vital resource for anyone who wants a quick and accurate overview of the process.
It explains what a Convention for Proposing Amendments is—and is not. (It is not, for example, a “constitutional convention.”)
The issue paper also explains why the procedure is in the Constitution, and how it works. And it corrects misconceptions prevailing even among scholars who have not researched the topic themselves.
To know more about socialized medicine—and our future under Obamacare—check out the Department of Veterans’ Affairs health care scandals. The scandals encompass service failure, egregious cost overruns and delays, and basic failures (such as blood test mixups) that would be comical if not so dangerous.
Obviously, the U.S. Government and the American public owe a debt to our military veterans, but socialized medicine is a poor way to discharge it. Vets are entitled to the best we can offer, not to Soviet-style incompetence.
And the underlying situation is probably far worse than the scandals we know about. Among the bad things I became familiar with when working in socialized institutions (in my case, state universities) were the inefficiencies—not exactly corrupt, but stupid and expensive for the taxpayers—that persist year after year without any outsiders taking notice. In private companies, most of those inefficiencies would dissolve before the demands of market competition. In socialized institutions, they go on and on . . . and on.
The idea that the government has to own facilities in order to provide services is a discredited relic of the past. Other government health services—including Medicare and Medicaid—allow patients to visit private facilities and use private physicians. Great Britain began its government health care system with the socialized delivery model, but has largely abandoned it.
Unfortunately, under Obamacare we are likely to see more socialism rather than less. The problems with the government-run “exchanges” represent only the beginning.
Under pressure of the VA scandals, the Obama administration is permitting vets to opt for free market providers, but the question remains, “Why is it necessary for the government to directly own health care facilities at all?
Filed under: All Postings, The Founding, supreme court
Although the Constitution is not, strictly speaking, a common law document, it was written against the backdrop of common law.
The term “common law” has various meanings, but the meaning I’m using here is the system of case law we inherited from England, including the bodies of jurisprudence known as admiralty and equity.
That system follows certain identifiable principles—governing values. These principles largely disprove the modern legal academic cant that common law is merely a vehicle for public policy, privilege and power.
The traditional understanding of common law was that it was rooted in the customs of the people, and that the task of a judge was to discover the rules applicable to the case before him, and then apply those rules to the circumstances. During the 20th century, however, a new orthodoxy came to reign in legal academia (primarily law schools) to the effect that judges actually make up the rules of common law as they go along. In other words, judges are inevitably mini-legislators who, under cover of applying precedent, often create rules and results to promote their own opinions of the best “public policy.” You may recall that Justice Sotomayor indirectly expressed this view shortly before she was confirmed to the Supreme Court.
This orthodoxy (so-called “legal realism”) is advanced as a sort of self-fulfilling prophesy for those who promote judicial activism—i.e., those who want judges to be maxi-legislators.
A more extreme outgrowth of the 20th century orthodoxy was that common law decisions are arbitrary and that common law rules are so malleable they really don’t amount to true rules at all. The course of the common law was said to be “indeterminate” and based ultimately on mere power. This view proved convenient to Marxists and others who wished to discredit the judicial system.
In 1992, my treatise, Modern Law of Deeds to Real Property was published. The book was written during the year I served as a visiting law professor at the University of Utah.
The publisher was Little, Brown and Co.—then an old-school legal publishing firm that had produced a line of classic treatises extending back to the early 19th century. Joseph Story, the great Supreme Court justice and legal scholar, wrote for Little, Brown.
Anyway, the law of property deeds is mostly common law aided by statutes usually written to supplement (rather than wholly displace) common law. Accordingly, a large portion of Modern Law of Deeds consisted of the distillation of rules and principles from hundreds of cases.
Real property was only one of the common law legal fields I had studied intensively. I had also practiced, taught, and/or researched in the law of remedies, contracts, oil and gas, homeowners associations, torts, trusts, wills, agency, and fiduciary relationships. And I had taught and written in legal history. This is a far greater range of topics (particularly common law topics) than most law professors pursue. Let’s just say I did not spend much time going out for drinks.
Perhaps I could be charged with dillettantism, but for better or worse by the time I wrote my book I had read thousands of case decisions. At some point I became convinced that the modern orthodoxy about the common law was wrong.
I concluded that, as a practical matter, even most modern judges do not invent rules to promote public policies or to satisfy their power lust. The traditional view was the one closest to the truth: In the real world, judges, especially judges on trial courts and intermediate appellate courts, seek justice. They usually “discover” rules by deducing them from custom, practice, precedent, and a limited number of fixed principles. This occurs even in some cases in which they feel compelled to justify the result by reciting public policy.
So I devoted the last chapter of my book—Chapter 19—to explaining those principles.
I wish I could say the chapter was met with vigorous debate. I can’t. As has happened other times during my career, my conclusions were greeted with silence. And although in many other instances, the silence has ended in adoption (with or without attribution), in this instance it did not.
No doubt there were several reasons for this, but I think one was that very soon after my book came out, Little, Brown and Co. sold its legal division to Aspen Publishing. Aspen promptly pulled all the Little, Brown treatises off the market. Shortly after my book appeared it was out of print—among the last of a distinguished line. It paid me virtually no royalties and, what is more important, very few people read it.
But at least I have the copyright, and Chapter 19 of Modern Law of Deeds to Real Property has been buried long enough. This link provides Internet access to that chapter. The language is technical, and most readers will find it tough going. But I still believe it is a more accurate description of the principles of Anglo-American common law than the theories widely propagated in law schools today.
Filed under: All Postings, Article V, The Founding, supreme court
Some conservative groups have become known for uncompromising opposition to the Constitution’s convention method of proposing constitutional amendments.
They may think they are protecting the republic. But it turns out that they are mostly carrying water for the liberal establishment.
New research shows that nearly all the arguments of convention opponents merely repeat disinformation first propagated by the liberal establishment in the mid-20th century. The goal of this disinformation campaign was to disable an important check on federal overreach.
The Founders created the convention method of proposing amendments to enable the people, acting through their state legislatures, to offer corrective changes if the federal government ever became unresponsive, abusive or dysfunctional. When two thirds of the legislatures pass resolutions demanding it, Congress must convene a task force known as a “convention of the states“—or, in the language of the Constitution, a “Convention for proposing Amendments.” If that task force does propose amendments, they become law only if ratified by three fourths of the states.
As the federal government grew larger and more abusive during the 20th century, conservatives and moderates repeatedly suggested constitutional amendments as a partial cure. They included proposals to reverse certain Supreme Court decisions, such as Roe v. Wade; to otherwise restrict judicial activism; and to impose term limits and require a balanced federal budget.
To blunt the these amendment drives, leading figures in the liberal establishment organized a disinformation campaign against the convention process. Participants in the campaign included liberal Senators such as Joseph Tydings (D.-Md.) and Robert F. Kennedy (D.-NY); several sitting and former Supreme Court justices; members of the Kennedy circle, such as Theodore Sorensen and Arthur Goldberg; and liberal academics perched at prestigious universities, such as a Harvard and Yale.
The apparent goal was to disable the convention process as a constitutional check on the power of the federal government.
In speeches and articles, the participants promoted several key talking points. Most of these talking points were contradicted by law or historical precedent. Some of them even contradicted each other.
But truth was not the goal. The goal was political. The principal talking points were:
• Little is known about how the process is supposed to operate;
• A convention for proposing amendments would be an uncontrollable “constitutional convention;”
• A convention for proposing amendments could be controlled or manipulated by Congress under the Constitution’s Necessary and Proper Clause; and
• A convention for proposing amendments could unilaterally impose radical constitutional changes on America.
If these claims sound familiar— well, they are. Some conservative organizations swallowed them, hook, line, and sinker and continue to trumpet them today, apparently unaware of how they were fabricated and why.
The 20th century liberal disinformation campaign was strikingly successful. It derailed all drives to curb the Supreme Court’s liberal activism. It blocked efforts to control federal debt or restrain federal spending. It left an increasingly dysfunctional Congress with an absolute monopoly of the amendment process. And it pitted—and continues to pit—conservatives against conservatives.
Filed under: All Postings, Article V, supreme court
This article originally appeared in the American Thinker.
Opponents of the Constitution’s Article V convention method of proposing amendments tout three letters written in the 1980s by former Chief Justice Warren Burger. In those letters, Burger took a very hard line against any convention of states that might bypass Congress and propose corrective constitutional amendments.
I’ve previously explained one reason Burger may have been so adamant: Although appointed to the court by President Nixon as a “strict constructionist,” Burger proved to be a fairly activist judge. He famously voted for Roe v. Wade, the abortion decision that up-ended laws in all 50 states.
Thus, when Burger wrote his anti-Article V letters, he was protecting Roe v. Wade and his Court. At the time, there was a great deal of talk about using Article V to overrule Roe and other ventures into judicial activism.
But now I’ve learned more.
It seems that Burger was a friend (that’s his word) of a man named William F. Swindler.
Swindler was a law professor at the College of William and Mary, which is located in Williamsburg, Virginia. Burger appointed Swindler to two official Supreme Court committees. Upon Swindler’s retirement, Burger wrote a glowing testimonial. Upon Swindler’s death, Burger eulogized him as “an analyst of history and a historian of the first rank.”
Swindler was a strong liberal, and he fiercely opposed the convention process of Article V—particularly when conservative amendments were proposed. During the 20th century, many academics wrote attacking Article V, but Swindler’s assault was the most over-the-top I’ve seen.
When Swindler wrote, the Council of State Governments was promoting a convention to consider three amendments—one to streamline the amendment process itself, one to reverse a Supreme Court legislative reapportionment decision, and the third to establish an additional layer of judicial review in a very narrow class of cases. Swindler was apoplectic, and assailed those amendments and the convention idea in unbridled language. He essentially urged resistance to a convention by all means necessary.
Part of Swindler’s plan of resistance was that federal officials should act as if the state-application-and-convention process were not part of the Constitution. Asserting that “only a federal agency (Congress, as provided by the Constitution) is competent to propose” amendments, he claimed that the convention procedure should be disregarded as “no longer of any effect.”
Thus, Swindler suggested that if the requisite number of state applications was reached, Congress should simply ignore its duty to call a convention.
Alternatively, Swindler wrote, Congress could gerrymander the convention and/or prescribe rules that would render its operation impossible. For example, he suggested that Congress mandate a rule that convention delegates were not permitted to propose any amendment unless they did so unanimously. He also argued that the courts should determine which states had permission to participate in the process and which states did not.
Was the author of these lawless propositions the source of Burger’s vehement dislike of the convention procedure? He very likely was. Remember that William Swindler was Burger’s friend. Their relationship was professional, but it was also personal: Burger wrote of his “warm personal relationship with Bill” and his “visits and walks with him at Williamsburg.” Furthermore, I can find no evidence that Burger ever did any research on Article V himself: He seems never to have heard an Article V case or published anything on the subject.
It is at least probable, therefore, that the source for Burger’s anti-Article V views was a ideologically-driven liberal willing to gut the Constitution to achieve his policy goals.
Not much of a testimonial.
Suppose you are in a general partnership with Smith. Smith handles day-to-day management, subject to your approval. But recently, he’s been acting somewhat high-handedly.
Without consulting you, Smith is busy negotiating a contract with Macropus International Corp., a company notorious for unscrupulous practices. Smith has made it clear he plans to bind your firm whether you like it or not. You know that under the law of general partnerships, unless you speak up Smith will be able to lock you and your firm into a very bad deal. This is because, as a rule, any partner in a general partnership has authority to bind the other partners and their firm to agreements with third parties.
Even if you raise your concerns to Smith personally and tell him not to sign anything without consulting you first, you still could be bound to Macropus if Smith disregards your admonition. The legal doctrine of “apparent authority” provides that if one person (you) puts another (Smith) in a position that communicates to third parties (such as Macropus) that the second person (Smith) can bind the first (you), the third party (Macropus) is entitled to assume that he can.
In these circumstances, the only way you can protect yourself is to notify Macropus before the contract is signed that Smith does not have authority to enter into it.
That’s why the letter from 47 U.S. Senators to the leaders of Iran was absolutely necessary and appropriate. Indeed, all 100 Senators should have signed it.
Although the law of general partnerships is not applicable directly to international relations, it helps us understand the issues here. Under our Constitution, the President is the “managing partner” in the treaty process: He is charged with negotiating and formally “making” treaties. But the Founders made the carefully considered decision to require approval by two thirds of the Senate. This was a change from the British system, under which the king could make treaties unilaterally, and rendered the Senate a partner in the process. And if money must be appropriated to finance the pact, the entire Congress becomes a partner in the process as well.
Like Smith in negotiating with Macropus, President Obama signaled that he planned to bypass the Senate. From the Iranian point of view, this was not necessarily a problem, since, as Iranian Foreign Minister Mohammad Javad Zarif has pointed out, the U.S. sometimes acquiesces to executive agreements without Senate approval.
To be sure, as a matter of correct interpretation the President’s constitutional authority to bind the U.S. by executive agreement is quite limited, but the Iranians cannot be expected to understand the nuances of American constitutional and judicial history. This is illustrated by Zarif’s further suggestion that an agreement negotiated by Obama alone would represent a U.S. “obligation.” He is mistaken, of course; a country is not obligated by an agreement when the other party knew the putative agent who entered the agreement actually had no authority to do so.
Under the circumstances, Iran could assume that the President could bind the U.S. to an agreement unless the Senate, or at least a large number of Senators, spoke up. Otherwise, Iran could, with some justification, claim a breach of international law if the United States refused to be bound by the deal between Iran and the Obama administration. As a result of the Senators’ letter, however, Iran is on formal notice of the truth.
Filed under: All Postings, Article V, The Founding
For many years, opponents of a convention for proposing amendments argued that the law governing such a convention was unknowable because the only precedent for such a gathering was the Constitutional Convention of 1787.
This was always an ignorant claim, since even high schoolers learn that Annapolis, Maryland hosted a “convention of states” the previous year. Russell Caplan’s book, Constitutional Brinksmanship, published nearly three decades ago, documented several other interstate and inter-colonial conventions as well. It was clear that those claiming the “only precedent” was the 1787 gathering had not done their homework.
In 2010 I uncovered more multi-state conventions, and 2013 published an article that listed 32 such gatherings from 1689 through 1787. Twenty-four of these were regional—or, to use the Founding-Era word, “partial”—conventions. The other six were national, or as the Founders would say, “general.” In that article I also analyzed in detail the records of fourteen of these conclaves. All of them employed pretty much the same set of protocols.
In addition, on this website I’ve discussed several conventions of states occurring after the Constitution was adopted: regional conventions at Hartford (1814), Nashville (1850), and Santa Fe (1922), and a general convention in Washington, D.C. (1861). The last of these was convened to draft a constitutional amendment. Yet, believe or not, some people are still asserting that “We have only one Precedent, the Convention in Philadelphia in 1787!”
Now there’s more. I recently obtained the journal for still another convention of states. Some have claimed that the proceedings for that assembly were never recorded, or perhaps had been lost. But I found them within the first volume of the journals of the Congress of the Confederate States of America.
The convention in question was held in 1861 in Montgomery, Alabama. It included only those southern states that failed to attend the convention in Washington, D.C. And while the purpose of the Washington meeting was to head off the Civil War, the purpose of the Montgomery meeting was much less desirable: to write a new Confederate Constitution and to serve as a provisional government until elections were held under that Constitution.
However regrettable its purpose, though, there is no denying that the Montgomery Convention is useful precedent. It demonstrates yet again the consistent understanding throughout our history of the law and rules governing multi-state conventions. While unionist states were applying the standard protocols at their gathering in Washington, seceding states were applying almost exactly the same set of protocols in Montgomery.
Here are some other facts about the Montgomery Convention of 1861:
* It was called by South Carolina and by Alabama—South Carolina sent out the initial invitation and fixed the topic. Alabama fixed the time and place.
* The other states participating were Mississippi, Louisiana, Florida, Georgia, and (belatedly) Texas.
* The calls and acceptances agreed on the two basic missions: (1) write a constitution for the seceding states and (2) serve as a provisional government until elections were held under that constitution.
* The calls and acceptances did differ in minor ways. Possibly the most important was that some stated that the new Confederate constitution should be based on the U.S. Constitution, while others omitted that term. This discrepancy did not prevent the meeting, and seems to have caused no problems.
* The convention began on February 4, 1861, and eventually split its functions to fit its two missions. From February 28 to March 11, it acted as a constitutional convention and wrote a new basic charter. Throughout its entire timespan it served as a provisional government (much as the Second Continental Congress had done for the United States from 1775 to 1781).
* The call suggested (and it was only a suggestion) that the convention proceed by one state/one vote, but that each state delegation consist of as many commissioners as the state had Senators and Representatives in the Federal Congress. The other states generally agreed to this formula.
* The convention did, in fact, proceed under a one state/one vote rule, as has every other interstate convention for which the rule of suffrage is recorded. But the size and composition of each state committee (delegation) remained a prerogative for each state to determine.
* The group elected its own officers and adopted its own rules. Like other all other conventions, it elected its president from among its members: Howell Cobb of Georgia. Like nearly all other conventions, it chose a non-delegate as secretary—Johnson J. Hooper of Alabama.
* The convention stayed within its two missions, as defined by its call.
* Upon completion of those missions, the gathering adjourned sine die (permanently).
Filed under: All Postings, ObamaCare, supreme court
When I first heard about King v. Burwell, the latest Obamacare controversy before the U.S. Supreme Court, I assumed it was the kind of case in which the legislative intent was clear, but for one reason or another the wording of the statute did not match the legislative intent.
That would have been an interesting case, because it would have given the Court a chance to struggle with age-old “intent vs. text” questions.
It turns out, though, that the legislative intent is unclear—if there was any unified intent at all. And the statute is at least as messy as the evidence of intent.
First as the intent: Whether Congress intended for tax credits to go to citizens of states that had not adopted state insurance exchanges depends on whom you ask. The government now says “yes,” but Obamacare architect Jonathan Gruber was captured in two separate YouTube videos saying “no.” In those videos, he claims that tax credits were to be limited to states that set up their own exchanges as a way of inducing states to cooperate (no exchange, no tax credits). Some in the media assert that a decision for the plaintiffs (limiting credits to insurance purchased on state-created exchanges) would create “chaos”—but if Gruber is right, then that was exactly what Congress wanted.
Now for the text: Reading the record in this case give you some idea of how poorly drafted the Obamacare law is. Section 1311(b)(1) of the statute requires the states to establish exchanges. A provision just a few sections later (1321(b)) tells states they may elect to establish exchanges, and another (1321(c)) provides for federally-created substitutes.
Still another section says that tax credits are available for insurance purchased on “exchanges.” In at least two provisions, the statute inserts cross references that make it crystal clear it means state-created exchanges—not the federally-created substitutes.
But still other provisions seem to assume that state-created exchanges, and therefore the tax credits, will exist in all states. But for this to be so, then the statute’s drafters had to assume that the first section (mentioned above) ordering the states to set up such exchanges was valid. Problem is, that section is clearly unconstitutional: The Supreme Court has ruled several times that the federal government may not simply order a state to adopt a law or perform a task. Whoever wrote that section had never studied elementary constitutional law, or perhaps didn’t care.
There’s another wrinkle: The way the case got to the Supreme Court is that the plaintiffs challenged an IRS interpretation of the statute. Specifically, the IRS read the law as requiring tax credits in all states. Now, as a rule of thumb (under the Court’s Chevron holding), the Court defers to any reasonable executive-branch interpretation of an ambiguous statute. But the traditional legislative grace canon holds that the Chevron rule doesn’t apply in tax-credit cases, because taxation is so central to the legislative (as opposed to the executive) power.
One argument for tax credits in all states, possibly originated by Justice Kennedy, acknowledges that the law’s mandate on states to create exchanges is unconstitutional. It also assumes that interpreting the statute to provide for credits only in states that establish their own exchanges would be unconstitutional as excessive federal “coercion.” This argument therefore concludes that the statute must be construed to provide for tax credits in all states.
There are two problems with this argument. First, if severe financial consequences for state non-cooperation constitute “coercion,” then certain other federal welfare programs, particularly Medicaid, are unconstitutional. It is unlikely that anyone who would advance this argument would really support that result. Second, by universalizing the tax credits, this argument rewards an overreaching federal government by authorizing it to spend even more money and thereby control even more lives than otherwise. It is an elementary legal principle that no one should be rewarded for his own wrong.
When faced with incurable problems in a statute, judges’ time-honored solution is to kick the issue back to the political branches for a solution. (The courts often follow a similar approach in the common law—that is, ruling in a way that forces the parties to negotiate their way out of the problem.)
Deciding the case for the plaintiffs (denying tax credits in states that do not adopt exchanges) will create either (1) a mess intended by Congress or (2) a mess not intended by Congress. Either way, the public anger generated by loss of tax credits will force Congress and the President to work together to clear matters up.
That’s exactly what the Supreme Court should do.