How Much Authority Does Congress Have Under the Treaty Power? The Question the Supreme Court Dodged in Bond v. U.S.
Filed under: All Postings, The Founding, supreme court
In its recent decision in Bond v. United States, the Supreme Court avoided deciding whether Congress, in executing a treaty, could exceed the enumerated powers to which the Constitution otherwise restricts it. For example, if a treaty requires a signatories to make it a crime to use a particular chemical, may Congress pass a law criminalizing the chemical’s use even though the Constitution gives Congress no general criminal jurisdiction?
The majority in Bond avoided the question by ruling, rather implausibly I think, that the plain words of the statute didn’t apply, so there was no need to decide whether Congress had authority to enact it. But the question will soon return.
Here’s what the Court has decided thus far:
* Because the Constitution gives Congress authority to pass laws “necessary and proper” to assist the President and Senate in making treaties, Congress can enact some measures pursuant to treaties that it could not pass otherwise. This was the rule laid down in Missouri v. Holland (1920). The Holland case said the Tenth Amendment does not prevent this, because the Tenth Amendment denies only unenumerated powers and the power to make necessary and proper laws to execute the treaty power is enumerated.
* Although the Congress may thereby exercise authority not otherwise on its list, Congress still may not violate specific rules imposed by the Constitution. Thus, Congress may not execute a treaty by passing an ex post facto law or a law violating the specific guarantees in the Bill of Rights. This was decided in Reid v. Covert (1956).
In recent years, several conservative and libertarian commentators have argued that when adopting laws enforcing treaties, Congress is limited to the powers explicitly enumerated. In other words, they argue that Missouri v. Holland was wrongly decided. In addition to citing federalism concerns, they point out that the Necessary and Proper Clause, when read with the Treaty Clause, gives power only to assist in the “making” of treaties, not carrying them out. So Congress may fund a negotiating team, but may not pass a law to enforce of the terms of treaty unless the law is otherwise authorized in the Constitution’s enumeration.
As a free market conservative, I find this argument appealing. Unfortunately, it is not convincing.
First, it seems to be an overly-restrictive reading of the Constitution’s language: surely the power to “make” a treaty on a particular topic implies an enforceable promise to carry it out. For example, the ability to acquire and cede territory has always been incident to the power to make treaties. Yet the power to acquire and cede territory is not otherwise enumerated in the Constitution. Does that mean that when we acquired Hawaii by treaty Congress could adopt no law to carry out the annexation? Some people point out that Thomas Jefferson thought a constitutional amendment necessary for acquiring territory. But he was clearly wrong about this: Jefferson was a very great man, but for reasons I discuss in my book, The Original Constitution: What It Actually Said and Meant, he was not a particularly reliable source of constitutional meaning (partly because was in France during the ratification debates).
Second, besides granting power to assisting the President to “make” treaties, the Constitution also grants Congress power to execute them. Specifically, the Constitution grants Congress authority “To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government . . . or in any Department or Officer thereof.” Among those “other Powers” is the authority of the President to “take Care that the Laws be faithfully executed.” The Constitution adds that treaties, like the Constitution and statutes, are the “supreme Law of the Land.” So the text rather clearly authorizes Congress to pass statutes to enforce treaties. And it does not limit enforcement to enumerated powers. In fact, treaty enforcement is an enumerated power.
Finally, there is considerable evidence that the Founders themselves understood the treaty power to be a potential source of authority for Congress in addition to the items otherwise enumerated. They got this understanding from history, international law, and events they had witnessed themselves.
To cite only two illustrations of the evidence: (1) The Virginia ratifying convention featured extensive discussion of the power to acquire and cede territory incident to treaties, a power not otherwise enumerated, and (2) the Confederation Congress had ratified a treaty which potentially restricted religious freedom. (The First Amendment was passed in part to prevent this from happening again.) And those are only two illustrations. For more, see The Original Constitution: What It Actually Said and Meant.
There are limits, however: In acting under the Necessary and Proper Clause, Congress is executing only incidental powers—in other words, powers subordinate to those granted in the Constitution and tied to them by custom or necessity. So Congress’s authority to execute treaties would not extend to altering the entire federal system. Congress could not, pursuant to a treaty with Luxembourg, transfer the entire criminal law from the states to the federal government.
The U.S. is now a party to thousands of existing treaties. Just what Congress can and can’t do under them involves some very difficult questions. The Court dodged those questions in U.S. v. Bond, but will have to address them in the near future. Alternatively, we can adopt a constitutional amendment—such as the amendment suggested many years ago by Senator John W. Bricker of Ohio—clarifying the limits of Congress’s authority.
Since Congress is unlikely to propose an amendment limiting its own power (except for the repeal of Prohibition it has not done so since 1789), a convention of states would be necessary to propose such an amendment for the states to ratify.
The Hobby Lobby case is being hailed by freedom advocates as a great victory. On balance it certainly it is a victory for those who value personal freedom. But it also contains land mines that may one day prove destructive to freedom.
One of these land mines is how the justices treated the question of whether mandated abortifacient insurance promotes a “compelling government interest.”
In its principal opinion, the Court assumed for purposes of argument that the U.S. Department of Health and Human Services (HHS) contraceptive mandate serves a compelling government interest. However, five members of the Court – a majority – went farther: Justice Kennedy stated in concurring opinion that the decision’s “premise” was that the federal government had a “compelling interest in the health of female employees.” The four dissenters affirmatively claimed that the mandate furthered “compelling interests in public health and women’s well being.”
The mandate in question was issued under the Affordable Care Act (ObamaCare). In 2011, a federal district judge found that another Obamacare mandate also served a “compelling interest” (Mead v. Holder).
It is a very serious matter when the Supreme Court classifies a law or other government action as serving a “compelling interest.” In the Court’s jurisprudence, most laws promote only “legitimate” interests, and a few promote legitimate interests that are “important” as well. On rare occasions, a legitimate interest is held also to be “compelling.” If a law is deemed “necessary” to advance the compelling interest, the law may actually overrule portions of the Bill of Rights. It also may overrule basic liberties listed elsewhere in the Constitution or in the Religious Freedom Restoration Act.
Although the ObamaCare mandate in Hobby Lobby ultimately did not override the Religious Freedom Restoration Act, the ObamaCare mandate in Mead v. Holder did.
In our federal system, the states enjoy broad powers to regulate to promote health, safety, morals, and general welfare. In other words, states can employ the law for many legitimate purposes. The Court has found that some of these legitimate purposes are compelling. For example, a state vaccination law designed to prevent epidemics may overrule one’s right to refuse vaccination. Similarly, the Court holds that a state’s interest in stamping out racial discrimination is not only legitimate, but compelling.
Still, the number of compelling interests is fairly small. Even state health laws usually are not compelling enough to overrule fundamental rights.
Unlike the states, the federal government is limited to the enumerated powers granted in the Constitution. The Supreme Court has ruled that some of these enumerated powers also serve compelling interests, such as national defense and Congress’s 14th Amendment authority to remedy discrimination by state governments. But federal peacetime economic regulations, like state laws, are almost never “compelling.”
That brings us to ObamaCare. The Affordable Care Act has all sorts of social and health care implications, but (aside from its taxes and spending provisions) it is justified constitutionally as a set of commercial and economic regulations. For example, when arguing that the Supreme Court should uphold ObamaCare, the president characterized it as “a[n] economic issue … that I think most people would clearly consider commerce.” In her Hobby Lobby dissent, Justice Ginsburg likewise cited economic factors to justify the contraceptive mandate.
Thus, despite ObamaCare’s health implications, its constitutional purpose is economics or, more precisely, commerce. ObamaCare’s regulations on insurance companies and employers, such as the contraceptive mandate, specifically are said to rest on the Constitution’s Commerce Clause. This is because the Constitution grants the federal government no enumerated power over health care. The great Chief Justice John Marshall made this very point in his famous opinion in Gibbons v. Odgen, when he wrote that “health laws of every description” were reserved exclusively to the states.
But if, constitutionally, ObamaCare is but a collection of economic regulations – and if peacetime economic interests are virtually never “compelling” – then why is ObamaCare different? Is it just that the ObamaCare is popular among the class of people who serve as federal judges?
The answer is that in this sense, ObamaCare is not different. It is constitutionally similar to many hundreds of other economic regulations enacted by Congress and the states. It is just more comprehensive and much more intrusive.
Now consider the risk to freedom from allowing such a law to be lifted to “compelling” status. That risk extends far beyond the threat to religious liberty. If, for example, providing “free” contraceptives is a compelling interest, then Congress might pass a law forcing companies to produce them. Or if forcing people to buy insurance serves a compelling interest, then federal officials might well demand laws to jail people who try to dissuade others from signing up.
Remember the Supreme Court’s formula: a law necessary to promote a compelling interest can override the Bill of Rights. ObamaCare is barely constitutional – if it is constitutional at all. We must not allow the courts to sanctify it.
Post script: More than two years ago, I predicted that the Supreme Court would dismiss the anti-mandate First Amendment claims and that Mead v. Holder raised the possibility that some judges would treat Obamacare as “compelling.” You read it here first!
Early this year in The American Thinker and in this column I discussed state marijuana legalization and federalism. I cautioned against advocates of freedom and federalism forming alliances with the “progressive” left on those issues in which the left claimed to favor free choice. I pointed out that that for that bunch”free choice” is nearly always a mere waystation to more coercion.
Today’s “progressive” movement is not controlled by the reasonable liberals of your granddaddy’s generation. Today’s “progressivism” is increasingly a totalitarian movement. In other words, a critical mass of its adherents genuinely believe that there are no limits to what they can make government do to the rest of us. As is true of other totalitarians, they see any victory won for freedom as merely opening the door for more coercion.
A new CBS story from Berkeley, CA demonstrates the point. Marijuana legalization was supposed to be about freedom. But the City of Berkeley, archetype of “progressivism,” has now decided to impose a marijuana mandate, forcing businesses to give away free pot.
The next step doubtlessly will be forcing the rest of us to subsidize pot, and finally forcing people to use it.
The hard fact is that these thugs see no limit to their use of government as a tool for pushing other people around.
After some truly painful reading experiences, I’ve become skeptical of history books written by celebrities.
Lynn Cheney is the wife of former Vice President Dick Cheney and thus our former Second Lady. She certainly counts as a celebrity. I was, therefore, skeptical of her new biography, James Madison: A Life Reconsidered.
But she won me over. She has done a fine job.
I’ve learned in life that people of talent are rarely one-dimensional. This is true of Mrs. Cheney. She was not only Second Lady. She is also is a serious scholar (a Ph.D. from the University of Wisconsin and a fellow at the American Enterprise Institute) and a fine writer: She is a former editor of Washingtonian Magazine, and this is at least her 9th book.
This Madison biography was, moreover, no slapdash job. It took nearly seven years to research and write.
Do I have some quibbles? Yes, a few. But the theme and strengths first.
The traditional rap against James Madison is that although he was a good theoretician and committee worker, he was a weak and shy man and at best a mediocre President. In the latter capacity, it is said, Madison was wobbly (for example, signing a national bank bill after opposing it earlier), and he was an unassertive and incompetent leader during the War of 1812. Mrs. Cheney set out to see if, despite his genius, Madison really was such a bad President and concluded that he was not—that actually he was a rather good one. Her book is thus partly a book of rehabilitation.
Mrs. Cheney was right to doubt the received wisdom. It seems highly unlikely
that anyone who was physically weak and personally diffident could rise to become President of the United States. Mrs. Cheney well demonstrates that Madison was neither. (To be fair, she is not the first to question the popular wisdom.)
Mrs. Cheney avoids slipping into canards so common among people writing on Madison. For example, she recognizes that the Constitutional Convention was called by states in response to the Annapolis Convention rather than by Congress. She implies (although she might have said explicitly) and that nearly all the convention commissioners had authority to propose a new constitution. She also recognizes that Madison did not, as some claim, approve of state nullification as a constitutional remedy; in fact, he thoroughly opposed it.
As for the quality of the writing: It is smooth and well executed and sometimes fun. I found it a very easy read.
Now a few quibbles.
First: Occasionally, although rarely, Mrs. Chaney slips into exaggeration. It would be hard to justify her statement that Jefferson and Madison were “the two greatest minds of the 18th century,” when that century encompassed all or part of the productive lives of men like Isaac Newton, Gottfried Wilhelm von Leibniz, Moses Mendelssohn, Immanuel Kant, and Edmund Burke. At the least, her claim cries out for support.
Second: I found her treatment of Madison’s presidency to be disappointingly brief. Additional treatment would have enabled her to better sustain her thesis. Consider, for example, the claim that Madison vacillated by opposing the first national bank on constitutional grounds (in 1791), and then signing the bill creating the second national bank 25 years later. It would have taken only a few additional sentences to explain that the constitutionality of the bank always had been a very close question and that Madison always had recognized that “liquidation” (clarification) by practice was a perfectly legitimate way of resolving close constitutional questions.
Another example: The book contains considerable evidence that Madison’s Secretary of War, John Armstrong, was indolent, and perhaps incompetent and politically disloyal. It demonstrates that certain military reverses were attributable to Armstrong. But a President is responsible for the repeated failure of his chief subordinates. Assuming Madison’s initial appointment of Armstrong was justified, why did Madison retain Armstrong as long as he did?
But these are, as indicated, but quibbles. I recommend the book to anyone interested in the Constitution and the early Republic. Mrs. Cheney deserves to sell a ton of copies. I hope she does.
I applaud the result of the recess appointments case and I am happy to have been cited again in a Supreme Court opinion (this time by Justice Scalia). But in several respects the case exemplifies what is wrong with constitutional jurisprudence today.
In National Labor Relations Board v. Noel Canning, the Court was unanimous in holding that certain presidential appointments to the National Labor Relations Board did not qualify as proper recess appointments. But it otherwise split 5-4, with Justice Breyer writing the majority opinion and Justice Scalia the concurrence.
The majority opinion addressed three issues: (1) whether the constitutional phrase “the Recess” could apply to short breaks in the middle of a session, (2) whether to “happen” during a recess the vacancy had to arise during the recess or whether it could be a carry-over vacancy from earlier, and (3) whether the Senate was in session or recess for constitutional purposes when it carried out nominal “pro forma” sessions.
To decide the case as the majority needed to, it was necessary only to conclude as the majority ultimately did: the rules of the Senate control its own sessions. In the normal course of legislative proceeding, if the Senate says it is in session, then the Senate is in session. So there could be no recess appointment.
Yet the majority first dealt unnecessarily with the other two issues. Courts are not supposed to pontificate on legal issues unnecessarily.
That was the first problem. The second problem was that the Court relied almost exclusively on post-ratification evidence to determine the meaning of “the Recess” and “happen.” That is reading history backwards. Post-Founding events are rarely reliable guides to Founding-Era meaning because post-Founding events hadn’t happened yet. Duh. Yet the Court, like many legal writers, repeatedly resorts to events that could not have been part of the ratification-era understanding because they were years, even decades, in the future.
To be sure, you can justify considering later practice when the Founding-Era meaning is truly ambiguous. (This is sometimes called “liquidation,” which means “clarification.”) But in this instance, the Founding-Era meaning certainly is not ambiguous.
The third problem was that the majority simply ignored the tidal-force of the evidence on the meaning of “the Recess” and “happen.” Beyond reasonable doubt, “the Recess” as the Constitution uses the term means only the intersession recess. Beyond reasonable doubt, “happen” means “occur,” “arise.” It does not mean “continue.” By the way, Justice Breyer downplayed some of this evidence by claiming that the Founders didn’t know of intra-session breaks (other than the formal “the Recess”), but this is inaccurate.
The fourth problem is that the majority adopted what it called a “functional” balancing-type test to determine what intra-session breaks did and did not qualify as “the Recess.” Justice Breyer distinguished this from what he disparagingly called a “formalistic” approach. Thus, he told us that three days was too short to be “the Recess,” that there was a “presumption” that less than 10 days was too short, etc. He left the details to be balanced over and over again, perhaps interminably, in future litigation.
Justice Breyer is a very bright man (a former Harvard law professor), and in his constitutional opinions he resorts a great deal to such “functional” and “balancing” tests. At some point, though, he should understand that constitutions and laws are written mostly for people not smart enough to teach at Harvard. We need bright lines. We need formalism. All indications are that in the Recess Appointments Clause, as in most other constitutional provisions, formalism is what the Founders intended we should have. It is what the American people adopted. That means in interpreting a phrase like “the Recess of the Senate” as it applies to a legislative body, we should construe it consistently with contemporaneous legislative practice.
(Interestingly enough, in deciding that pro forma sessions were sufficient to break up recesses, Justice Breyer did return to formalism.)
Also, a quibble with the concurrence: Justice Scalia’s opinion understated the force of the argument on the meaning of “happen.” I provided numerous examples in the second part of the article he cited earlier in his opinion, but for some reason Scalia’s concurrence didn’t pick up on them. Instead, he got bogged down reading history backwards — reciting mostly occurrences from after the Founding.
Since the Court’s misinterpretation of “the Recess” and “happen” were unnecessary to the result, they should be treated as pure dicta, and therefore not binding on future Courts. A panel of future justices, less clever but wiser, can then more readily correct the error.
Although I’ve often criticized the constitutional tone-deafness of “progressives,” conservatives can sometimes exhibit such tendencies as well. Over at The Seventh Amendment Advocate, Andy Cochran points out why trial by jury in civil cases—as guaranteed by the Seventh Amendment—is important, and how some conservatives disregard it.
The problem arises because when constituency politics often trumps principle. Just as liberal Democrats like to attack the oil and gas industry because it is perceived to support Republicans, so also conservative Republicans like to attack trial lawyers, who disproportionately support Democrats. Hence, many Republicans sign onto proposals to have Congress impose mandates on state court systems in the name of “tort reform.” Those Republicans tend to forget that trial by jury isn’t about protecting lawyers (no matter what their political party). Trial by jury is about protecting individual rights.
Andy Cochran’s article is thoughtful and worth reading. My own take on the same subject is here.
Well over a hundred state lawmakers from 33 states met this past week to plan for an Article V “Convention for Proposing Amendments.” Most attendees had been appointed officially as delegates by the leaders of their respective state legislatures.
The highly successful meeting dealt with such issues as convention rules and procedures, how to involve more legislatures in the process and how Congress should count applications. A key committee decided that, as with all prior interstate conventions, any Article V gathering should be conduced on the “one state/one vote” principle. The committee also decided that the basic source for convention rules would be Mason’s Manual, a familiar source now used by 70 of the 99 state legislative bodies (99 because there are two legislative chambers in 49 states each and one in Nebraska).
This was the second meeting of this group, formerly called the Mt. Vernon Assembly, but now the Assembly of State Legislatures. The effort is strictly bipartisan, and no special interest contributions are accepted.
A highlight of the proceedings came when the general session of the Assembly held its first rollcall vote—by states! The counting process was a little ragged the first time, but smoother the second. It was an electric moment. One member said later, “I was thinking, ‘Wow, this is really how it’s going to be!’”
Among those to be credited with conceiving and leading the Assembly are Rep. Chris Kapenga (Wisc.), Sen. David Long (Ind.), and Rep. Gary Banz (Okl.) The presiding officer for the general sessions was Rep. Matt Huffman (Ohio).
It increasingly looks like a “convention for proposing amendments” is really going to happen. The last 18 months have witnessed a flood of new state legislative applications for such a convention.
New Hampshire re-booted the process in 2012 with an application for a convention limited to considering a balanced budget amendment.
Late last year, the Ohio legislature passed a similar application by strong bipartisan majorities. The Tennessee legislature soon followed, by an overwhelming vote. Next came Michigan and Georgia. Florida then cured a defective 2010 application. The most recent action was in Louisiana, where the vote was not only bipartisan, but unanimous.
The balanced budget advocates now claim 24 of the 34 states necessary to force a convention, although my reading of the applications and the law puts the figure at 21. Either way, it is an extraordinary development.
In addition, four states have passed “faithful delegate acts” providing for discipline of convention commissioners, most recently Florida. (I’ll review the Florida law next week.)
There’s more: This year three states adopted the broader Convention of States application that permits the convention to consider amendments (but only amendments) that “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.” Those states are Florida, Georgia, and Alaska.
In addition, the Vermont legislature adopted the only “progressive” application—a proposal to restrict the scope of First Amendment freedoms. No other states have followed suit, and there is little chance that many will. Whatever dissatisfaction there may be with “money in politics,” most people recognize that far greater problems are federal overreach and looming federal bankruptcy.
The Results Are In: The Obamacare “Penalty” Didn’t Violate the Origination Clause, but Obamacare’s Regulations Did
Filed under: All Postings, ObamaCare, The Founding, supreme court
Is the penalty for not buying insurance in the Affordable Care Act (ACA—Obamacare) unconstitutional as a “tax” that originated in the Senate?
Under the Constitution’s Origination Clause, the answer appears to be “no”—the Senate’s decision to add the penalty to the underlying bill was not a violation of that Clause. But under the same provision, most of the remainder of Obamacare may be unconstitutional.
As I reported in February, I have been involved in a multi-month study into the meaning of the Constitution’s Origination Clause and its implications for the ACA. The Origination Clause is the Constitution’s rule that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” My project was provoked by several federal lawsuits that claimed that because (1) the Supreme Court has held that the penalty for not buying insurance is a “tax,” and (2) the ACA law really originated in the Senate, therefore (3) the penalty was unconstitutionally adopted.
Here’s how the ACA became law: First, the House of Representatives passed H.R. 3590, a bill to expand a tax credit and force certain corporations to pay income taxes earlier than previously required. When H.R. 3590 went to the Senate, that body “amended” it to delete all six pages in the bill and insert the 2076-page ACA. This amendment “in the nature of a substitute” included not only the penalty for failing to purchase insurance, but a mass of other new taxes, appropriations, and regulations. The Senate then adopted the revised H.R. 3590 and sent it back to the House, which passed it.
Many people instinctively react against this procedure, but instinctive reaction is not the same as constitutional law. My job was to reconstruct the actual meaning of the Origination Clause, not expound what I would like it to mean. I therefore reviewed the debates over the Clause at the Constitutional Convention and in the ensuing ratification contest. I then turned to 18th century legislative vocabulary, procedures, and practice. This required reviewing 50 years of British parliamentary records; examining several decades of legislative records in 14 American colonies and states; consulting 18th century treatises and other writings; and reviewing the records of the Continental Congress (1774-81), the Confederation Congress (1781-89), and the First Federal Congress (1789-91). Here is what I learned:
* Any measure that alters the tax code to raise or reduce revenue is a “Bill for raising Revenue.” Another way to state it is that any law that can be justified only by the Taxation Clause (I-8-1) rather than by some other enumerated power is a “Bill for raising Revenue.” Thus, the original H.R. 3590 qualified as a “Bill for raising Revenue” as the Constitution uses the term, even though it was revenue-neutral or revenue-negative.
* The Constitution permits the Senate to adopt “Amendments” to “Bills for raising Revenue.”
* The Senate’s “Amendment” of H.R. 3590 was what is called a “complete substitute.” I could find no precedents for complete substitutes in British parliamentary practice, but they did exist in early American practice.
* The constitutional term “Amendments” is broad, but not unlimited in scope. As the Founders used the word, an “amendment” might make virtually any kind of alteration in the underlying bill, BUT it had to address the same subject matter as the underlying bill. This rule also applied to amendments that, like H.R. 3590, were complete substitutes.
* For constitutional purposes, all tax/revenue measures are deemed to address the same subject as all other tax/revenue measures. So even an amendment (or substitute) that completely changes the taxes in the underlying bill is a valid amendment.
* Given the Supreme Court’s decision that the penalty for not buying insurance is a “tax” (a decision that was erroneous, but is now settled law) the Senate was within the rightful scope of its amendment power by adding the penalty and other taxes to the original H.R. 3950.
* However, the original H.R. 3590 addressed only taxes. The House could have added appropriations or regulations, but it did not. The Senate not only added the penalty/tax. It also inserted appropriations for various purposes and regulations on health care providers, employers, and insurance companies.
*The added regulations did NOT address the same subject (revenue) as the underlying H.R. 3590. It was therefore outside the amendment power of the Senate to add those regulations. From an originalist point of view, those regulations are void as never properly enacted, even though the House voted for them.
* This is true even though the Senate could have originated the regulations itself in a separate bill. When amending a revenue bill, the Senate does not have power as broad as it does when originating its own (non-revenue) bills.
* In addition, the Senate inserted appropriations into H.R. 3590. These probably was also outside the Senate’s amendment power.
A court constrained by the Supreme Court’s Obamacare decision, but otherwise applying the Constitution’s original meaning, should rule as follows: It should uphold the ACA’s taxes, including the penalty for not buying insurance, but strike down the regulations and appropriations in the law.
Last week I reported on Justice Thomas’ citation of my work in his concurring opinion in Town of Greece v. Galloway, a widely-discussed decision on the Establishment Clause of the First Amendment. This week, I’ll put the decision in context.
The meaning of the Establishment Clause (”Congress shall make no law respecting an establishment of religion”) has long been debated. Here are some of the hypotheses advanced:
* The Founders created a “Christian nation” in which the federal government could promote Christianity. The Establishment Clause assured, however, that the federal government would not favor any denomination of Christians over any other. This was the view of the great 19th century Supreme Court Justice and law professor Joseph Story.
* The Establishment Clause was adopted principally to protect the states from federal interference with their own established churches. This is Justice Thomas’ view.
* The Establishment Clause was adopted to protect the states from federal interference with their own established churches, but also to require the federal government to treat all religions equally. The Clause did not, however, place atheism or agnosticism on a par with religion. This conclusion is called “non-preferentialism.”
* The Clause not only protected the states from federal interference with their own established churches, but also required the government to treat all religious opinions, including atheism and agnosticism, equally. This formulation is called “neutrality,” and former Justice David Souter was one of its exponents.
* The Clause required the government to lean over backwards to avoid any entanglement or appearance of favoritism for religion. This is called “strict separation.”
There have been various modifications and blending of the views listed above, including a rather incoherent version called “accommodation,” a doctrine followed late in the 20th century by some of the more conservative justices.
Beginning in the 1940s (although with roots earlier), the Supreme Court issued a series of “strict separation” cases and imposed them on the states as well as well as on the federal government. It soon became evident that strict separation was both impractical and contrary to the actual meaning of the Establishment Clause. Accordingly, in the 1970s the Court began a long journey from strict separation, wandering through “neutrality” and “accomodation,” and toward non-preferentialism.
The Town of Greece case seems to complete this journey. Justice Thomas’ concurrence aside, all the opinions—majority and dissent—are squarely non-preferentialist. All acknowledged that the Town could sponsor prayers before Town Board meetings. The writer of the dissent, Justice Kagan, even affirmed explicitly her support for civic prayer. The only real dispute was over whether the Town had treated all religions fairly when selecting clergy to perform the invocation. The majority thought the Town had been fair, at least on balance. The dissent thought it had unfairly favored Christianity over Judaism and other religions adhered to by citizens of the Town. But that was a dispute over the facts, not over legal doctrine.
Several years ago, I wrote an article for the William and Mary Bill of Rights Journal entitled The Original Meaning of the Establishment Clause. As some other scholars had concluded before me, I found that non-preferentialism was, in fact, the intent of those who adopted the Establishment Clause: both protection of state established churches and equal congressional treatment of all religions.
This conclusion seems to be a little different from that of Justice Thomas: I believe the Clause was, in addition to a protection for federalism, a positive guarantee to all religious believers. Perhaps this is why Justice Thomas cited my writings on the Necessary and Proper Clause rather than those on the Establishment Clause!
In any event, with the Town of Greece case the Court’s Establishment Clause jurisprudence returns to the original meaning. Whether that jurisprudence should be imposed on the states is another matter, and Justice Thomas may well be correct that it should not.
That last question involves considering (in my opinion) not the Establishment Clause, but the “incorporation doctrine”—the doctrine by which the Supreme Court imposes nearly all of the Bill of Rights on state governments as well as on the federal government. The incorporation doctrine is a topic for another time.