Filed under: All Postings, ObamaCare, supreme court
Anyone interested in the constitutional debate over the “Affordable Care Act” should pick up a copy of the new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case.
This “conspiracy” was not a political plot or an illegal combination. Rather, it is one of the nation’s two top constitutional law websites—a blog called the Volokh Conspiracy, founded by UCLA law professor Gene Volokh.
The book is about more than constitutional arguments over Obamacare. It is also about the cracking of a monopoly (or more precisely an oligopoly): the grip on constitutional discourse by a relatively small, and overwhelmingly liberal, cohort of professors who teach at certain elite law schools. These schools include the University of Michigan, Columbia, the University of Chicago —and most notably Harvard and Yale.
Faculty at elite law schools tend to dominate constitutional discourse for a number of reasons. Their prestige attracts a disproportionate amount of legal talent—bright students who later take influential positions as judges, advocates, and policymakers. (Disclosure: I was admitted to several of these institutions, but nevertheless elected to attend Cornell Law School, which is considered very good but not in the “top ten.”) The mainstream media seeks out these professors, largely to the exclusion of other legal experts.
The elite professors also dominate, indirectly, the highly influential law journals published by their own law schools. These journals are edited by law students, who lack the knowledge necessary to measure the quality of a submitted article. Hence, in deciding whether to publish a submission they often rely on the attitudes of their own faculty and/or where the article’s author teaches or attended law school. My own publication career offers two (negative) illustrations of the monopoly’s methods: (1) As a student I resigned from from my own law review in disgust because the editorial board, in imitation of the elite journals, was running the review with a leftist agenda, and (2) as a law professor, I saw all my earlier constitutional articles—including those that ultimately proved most influential—uniformly rejected by the Harvard-Yale axis.
When the Obamacare law was first challenged in court, the Harvard-Yale axis pronounced it “obviously” constitutional. The six authors of this book dared to disagree, and most of the book consists of their postings. In addition to the Independence Institute’s own Dave Kopel, the authors include five full-time law professors, none of whom work at Harvard or Yale. They are Randy Barnett of Georgetown, Jonathan Adler of Case Western, David Bernstein and Ilya Somin of George Mason, and Orin Kerr of George Washington University. All lean libertarian except Kerr; his dissents add spice to the discussion.
Of course, these authors ultimately were vindicated. The Supreme Court’s decision to uphold the individual insurance mandate as a “tax” was a 5-4 squeaker. The Court also held that the mandate was outside the Commerce Clause and the Necessary and Proper Clause, and that the Obamacare Medicaid expansion was partly unconstitutional. As you make your way through the book, you can see how the winning arguments evolved. My favorite was the realization that the Supreme Court’s “substantial effects” test is a (mis-) application not of the Commerce Clause but of the Necessary and Proper Clause.
At the end of the volume is a section called “Postscript and Concluding Thoughts.” It encompasses six original essays in which the authors discuss the Obamacare case and its outcome. Probably the longest of these is Dave Kopel’s. I personally found it most interesting because it provides historical context and tells the story of the Independence Institute’s participation in the case.
A Conspiracy Against Obamacare is published by Palgrave MacMillan and edited by the Cato Institute’s Trever Burrus. Paul Clement, the former U.S. Solicitor General who argued the case against Obamacare in the Supreme Court, has written an engaging Foreward.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Just to show you that hypocrisy is alive and well in Washington, D.C. (as if you didn’t know), Title V of the Republican bill to “repeal and replace Obamacare” contains some of the same constitutional problems that led 27 states to challenge Obamacare. Under Title V, Congress would partially assume command of state jury trials and what evidence is introduced.
Not surprisingly, the bill’s purported “justification” is the much-abused Commerce Power. However, it likely runs afoul of those parts of Chief Justice Roberts’ decision in which he held that (1) Congress could not invade certain core state powers and (2) although the individual insurance mandate was valid as a tax, it exceeded the Commerce Power.
This week I wrote an essay on the bill’s constitutional problems, which I’ve reproduced below, and in PDF form here.
Supreme Court’s Obamacare Decision Renders Federal
“Tort-Reform” Bill Unconstitutional
Congressional schemes to federalize state health care lawsuits always have been constitutionally suspect. But Chief Justice John Roberts’ opinion in last year’s “Obamacare” case really knocks the props out from under them.
Under the proposed Title V of the American Health Reform Act, Congress would assume vast control over state judicial systems. Some of the bill’s provisions would be reasonable if adopted at the state level. But for Congress to start micro-managing state courts and state juries should frighten anyone who cares about our American constitutional system.
This essay addresses four subjects. First, it outlines some of Title V’s objectionable features. Second, it explains how advocates of the measure try to justify it constitutionally. Third, it shows why the proposal far exceeds congressional powers under our Constitution when that document is read as the Founders intended. Finally, it explains why the bill is likely unconstitutional under modern Supreme Court law as well—and specifically under Chief Justice Roberts’ Obamacare decision.
What Title V Would Do.
The bill would rewrite personal injury law extensively—and not just in federal courts administering federal law. It would intrude on state courts applying state law. For example, the bill requires state judges and juries to adopt federal standards of proof, federal standards of guilt, federal damage rules, and federal deadlines. It imposes rules for attorneys’ fees that override both state law and private contracts. It even mandates that some useful information be withheld from juries.
Many members of Congress were elected after affirming their commitment to federalism—that is, to “states’ rights.” So Section 508 of the bill is entitled “State Flexibility and Protection of States’ Rights.” But the title is misleading.
The very first sentence of Section 508 is about federal supremacy, not state flexibility. It reads, “The provisions governing health care lawsuits set forth in this subtitle preempt, subject to subsections (b) and (c), State law to the extent that State law prevents the application of any provisions of law established by or under this subtitle.”
And what of subsections (b) and (c)? They provide that states may establish rigid damage caps, but may not leave damages to the jury—and that states may make it harder for plaintiffs to prevail, but not easier! In other words, a state may be “flexible” if it does what Congress likes, but not what Congress doesn’t like.
How Supporters of Title V Try to Justify It.
How can advocates justify constitutionally this massive intrusion into state and local governance? They really can’t. So they finesse the issue in precisely the same way the sponsors of Obamacare did: They invoke Constitution’s much-abused Commerce Power.
Their argument has two components. First, they claim that the Founders crafted the Commerce Power broadly enough to allow Congress to intervene. Secondly, they claim that even if the Constitution, properly understood, does not authorize Title V, the Supreme Court still will uphold it under its modern Commerce Power jurisprudence.
The first claim is misrepresentation so gross as to be ludicrous. The second claim would be more plausible—except that the discussion of the Commerce Power in Chief Justice Roberts’ Obamacare decision kicked away much of its support.
Why Title V Violates the Founders’ Design.
If there is one thing that can be asserted with absolute confidence about the American Founding, it is this: Federal control over state judges, state juries, and state tort law is emphatically NOT what the Founders intended. The Constitution created a federal government limited to enumerated (listed) powers, and the Founders did not design those powers to include federal control of state civil justice. The evidence on this point is overwhelming.
In 2011, I investigated the issue thoroughly, and reported my findings in a detailed paper entitled The Roots of American Judicial Federalism, available at http://constitution.i2i.org/files/2011/11/Roots_Am_Federalism.pdf. That paper showed that (1) a core reason the Founders fought the American Revolution was to assure local control of courts, (2) the Constitution was structured to achieve the same goal, and (3) leading Founders specifically represented—not merely once or twice, but again and again—that state civil justice systems and tort law would remain free of federal control. Despite a few half-hearted assertions to the contrary, the paper’s conclusions have never been seriously challenged.
The Importance of the Obamacare Case: Why Title V Likely Violates Modern Commerce Power Doctrine.
Technically, the Commerce Power stems from two separate constitutional provisions. One is the Commerce Clause (Article I, Section 8, Clause 3). It grants Congress authority “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” By “Commerce,” the Founders did not mean everything economic. They meant trade among merchants, transportation, commercial paper, and a few associated activities. Contrary to widespread belief, the Supreme Court has never really changed this definition, except when it ruled in a 1944 case that “Commerce” also included insurance.
The other component of the Commerce Power is the Constitution’s Necessary and Proper Clause (Article I, Section 8, Clause 18). This refers to Congress’s authority to make laws “necessary and proper” for carrying out its other powers. The Founders did not intend the Necessary and Proper Clause to actually give Congress additional authority. Its purpose—as we know from 18th century legal sources and from statements from Founders such as Hamilton, Madison, and James Wilson—was merely to inform the reader that the itemized powers should be read to include certain subsidiary or “incidental” authority.
The leading Supreme Court case on the Necessary and Proper Clause is McCulloch v. Maryland. In that case, Chief Justice John Marshall also explained that the Clause did not grant to Congress any “great substantive and independent powers.” Moreover, in Gibbons v. Ogden (the first great Commerce Power case) Marshall added that “health laws of every description” were outside the federal sphere and exclusively reserved to the states. In other words, under the view of the greatest chief justice in American history, both Title V and Obamacare are utterly unconstitutional.
Supporters of Title V nevertheless point out that the modern Supreme Court has allowed Congress to go beyond those limits. That is true: In 20th century cases such as Wickard v. Filburn (1942), the Court re-wrote the Necessary and Proper Clause to allow Congress more “great substantive and independent powers.” The problem for Title V’s sponsors, however, is that Chief Justice Roberts has informed us that those days may be over.
The most famous part of his Obamacare opinion upheld the individual insurance mandate as a tax. But Roberts issued three other rulings as well:
(1) The mandate was outside Congress’s power under the Commerce Clause;
(2) The mandate was outside Congress’s power under the Necessary and Proper Clause; and
(3) Obamacare’s effort to force its Medicaid expansion on the states also violated the Necessary and Proper Clause.
Observers who understand that the Supreme Court has not greatly expanded the Founders’ definition of “commerce” were not surprised by the first ruling. A mandate that someone buy insurance is not “commerce” as the Constitution uses the term. Neither, for that matter, is a health care lawsuit.
But many found Roberts’ second holding more surprising: Roberts announced a reversion to the original understanding of the Necessary and Proper Clause. Here is a passage from his opinion (with some punctuation removed):
Although the Clause gives Congress authority to legislate on that vast mass of incidental powers which must be involved in the constitution, it does not license the exercise of any “great substantive and independent power[s]” beyond those specifically enumerated. . . . Instead, the Clause is merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted are included in the grant. . . . [T]he individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. . . . This is in no way an authority that is “narrow in scope” or “incidental” to the exercise of the commerce power. . . .
In a Yale Law Journal article, Professor William Baude shows why this language is important: Roberts is saying that if the Constitution doesn’t specifically give Congress a “great substantive and independent power,” then the Necessary and Proper Clause doesn’t give it to Congress either.
Is control of the state court systems a “great substantive and independent power?” You bet it is. The Founders clearly considered the judiciary a very important aspect of government, and the Constitution addressed it in detail. But while prescribing the rules for the federal courts, the framers deliberately omitted any federal role in the state judiciary. Here are some examples:
* The Constitution provides for appointment of federal judges—but not state judges.
* It gives Congress authority to “constitute” (create and regulate) lower federal courts—but not state courts.
* It defines the jurisdiction of the federal courts—but not of the state courts.
* It requires, in many cases, trial by jury in federal court—but not in state court.
The Founders obviously deemed judicial organization and procedure to be a “great and independent” subject, worthy of much constitutional attention. Yet in all procedural and organizational particulars, they left state courts alone. They certainly granted Congress no power to micro-manage them. They left the “great substantive and independent power” of operating the state courts to the states themselves. Under Justice Roberts’ opinion, that’s where it stays.
The part of the opinion dealing with Medicaid buttresses this conclusion. For a 7-2 majority, the chief justice struck down Congress’s efforts to dragoon the states into the Medicaid expansion. His was the latest in a long series of rulings in which the Supreme Court has protected state governments (legislatures, executives, and courts) from what the Court calls “commandeering.”
As in previous cases, the Court held that “commandeering” infringes core state sovereignty. Infringing core state sovereignty violates the Necessary and Proper Clause because a federal law attacking core state sovereignty is not “proper.” A federal statute dictating to state legislatures, judges, and juries how they manage lawsuits arising under their own state law is of that kind.
* * * *
One reason for Congress’s abysmal public approval rating is the perception that most members of Congress are hypocritical power-seekers. Most of the sponsors of Title V assert that Obamacare is an unconstitutional intrusion on the rights of the states and the people. Yet by supporting Title V they are promoting a bill that may be even more constitutionally suspect than Obamacare.
For their own political survival—as well as for the Constitution and for constitutional principle—those sponsors need to back off.
Of course, it’s really not a shutdown, just a slowdown—more on that below. And in our constitutional system the states, not the feds, are the primary line of government. The states will still be around to help us through.
Neither Denver Post story comes to grips with a central truth: There are things worse than a federal government slowdown. One of those is Obamacare—potentially a far greater, and much longer lasting, disaster.
One of the two stories is “House Pushes Closer to Federal Shutdown.” The e-version is “Budget Fight: GOP Refuses to Drop Assault on Health Law.” It originated at the Washington Post. As both titles suggest, it is written to blame everything on House Republicans. No mention of President Obama’s unprecedented refusal to negotiate. Prior Congresses and Presidents have always been willing to give a little to come to a deal. The Obama position has been “My way or the highway.”
Actually, the House Republicans have been quite moderate about this whole affair. They have repeatedly passed appropriation bills. They have asked only to de-fund one program and have not asked for any other significant budget cuts. (With a $17 trillion deficit, you have to ask “Why not?”) Very moderate, in the overall scheme of things.
A second story, originating at the Los Angeles Times, is entitled “Federal Shutdown Would be Monumental.” Its on-line version is “Federal Officials Warn of Shutdown’s Effects.“Again, both headlines reveal the co-authors’ goal was to panic people—just as they tried to scare us about the sequester.
Would a federal slowdown really be so bad? Social security and other entitlements will continue to flow. Truly vital services will continue. The military and other federal workers will get their back pay. (Anyway, House Republicans stand willing to pass a military appropriations bill at any time.)
Yes, some unconstitutional federal programs will pause. There might be a delay, for example, in grants to promote political correctness or to study the mating habits of apes. But that’s a good thing. Yes, The national parks will close, but for most of them the season’s pretty much over anyway.
Is anyone really horrified at the prospect of, say, not being about to reach an IRS bureaucrat on the telephone?
Will the slowdown hurt the economy? I’m not so sure. If the slowdown reduces the deficit or keeps money in the private economy, it might help. If it forces federal regulators to take a holiday, on balance that might help, too. After all, we’ll still have state regulators available to deal with egregious situations.
For this constitutionalist and fiscal conservative, the stakes are “Obamacare or temporary slowdown?” Given that choice, I’ll take the slowdown any day.
Freedom and popular government in Britain and America became possible because over the course of many years the House of Commons, and later the American colonial legislatures, were willing to exert the power of the purse to discipline an overreaching executive.
In Britain, the House of Commons—Parliament’s lower chamber—sometimes defunded the executive in order to curb it. The House was willing do this despite threats from the Crown and “bad press” from the British establishment. In America, the colonial assemblies were willing to defund the king’s governors to check their power.
Freedom likely would have been impossible without the constancy of the “people’s houses,” led by great parliamentary leaders like Edward Coke in England and Patrick Henry in America.
The U.S. House of Representatives is the direct descendant of the House of Commons and of the colonial assemblies. Like them, it enjoys power to defund government programs. Yes, the Senate has to approve financial bills. But revenue bills have to originate in the House and by custom, so do appropriation bills. Nothing forces the House to send to the Senate a money bill for a program the House doesn’t want.
Today’s headline says that although the Republicans control the House of Representatives, there still are not enough votes to defund Obamacare.
Now, let me see if I’ve got this straight:
* Obamacare’s massive new bureaucracy is a classic case of executive branch overreach;
* its central promises turn out to be false—health care premiums are going up, not down; and people are losing the insurance coverage the President promised they could keep;
* the President himself says he is forced to suspend part of it;
* a clear majority of the American people want it to go away;
* most members of the House of Representatives say they want Obamacare to go away;
* those Representatives have the power of the purse; but
* they still “can’t” defund it?
Just whom do they think they are kidding?
If these pusillanimous politicos were in charge during critical moments in the 17th and 18th centuries, no doubt America would never have been free, and we’d all be slaves of the British Crown today.
This is one area in which Colorado could take a lesson from our sister state to the north, Montana.
Montana has a long history of what used to be called “prairie socialism” and often has made bad fiscal decisions. But on this issue Montanans got it right.
I was in the legislative galleries in Helena last Friday, when the state stepped back from the brink.
Democrats and some Republicans were pushing for the state to join the Medicaid expansion, enticed by “free federal money.” So they amended a bill designed to keep the state free from the expansion to one chaining the state to the expansion.
The rules of the state house of representatives generally provide that when the purpose of a bill is changed, it should go back to committee for review. In a courageous move guaranteed to irritate the state’s “opinion leaders,” Speaker of the House Mark Blasdel decided to just that.
Advocates of the expansion immediately moved to appeal the Speaker’s ruling. All of us in the House chamber held our breaths to see what the roll call vote would be. At the end, the motion to overrule lost—but by the closest margin possible: 50 for, 50 against. Then the bill was physically transmitted to the committee.
At least one, and possibly two, Democrats claimed to have pushed the wrong button while voting, but some Republicans may have made off-setting errors. Anyway, advocates of the extension therefore pushed for a second vote, while hospital lobbyists—eager to pad their employers’ pockets by throwing more people into government dependency—vigorously worked on lawmakers, trying to flip some to their cause. They actually wound up losing people: The second vote to reverse Speaker Blasdell lost 48-52.
Some in the Montana political establishment can be ruthless in finding ways to overrule the state legislature when it makes a fiscally conservative decision. Montana lawmakers have to be careful they are not overruled this time.
For example, in the 1990s, the state House rejected federal funding for a controversial education program. Instead of respecting the legislative will, the governor and superintendent of public instruction decided to thwart it. They arranged for the money to bypass state government and go directly from the feds to local school bureaucrats.
A little later in the decade, Montana lawmakers rejected CHIP, one of those federal health care programs that are (1) promoted as improving access to care but instead (2) always make care more expensive and less accessible. So the Montana state auditor (insurance commissioner) decided to violate a central canon of our constitutional government: He decided, as an executive branch officer, to invade the sole right of the legislature to appropriate money.
First, he threatened insurance companies with prosecution for allegedly breaking regulations. Next, he dropped the cases when the insurance companies handed over large cash payments. Finally, he used the extorted funds to erect the CHIP program himself.
Voila! more dependency, less affordable care, and a new spending constituency.
Montana lawmakers must ensure they are not overridden this time. But if their decision holds, they will have made an important step toward more fiscal sanity and physical health.
Colorado needs to follow suit.
The claim that the Court has a conservative majority is certainly widespread. Googling the phrase “conservative supreme court” turned up over 38 million hits. The more specific phrase, “conservative majority supreme court” yielded 3.75 million. The New York Times has even editorialized that “the aggressiveness of the majority’s conservatism” actually renders the court “radical.”
A careful reading of a study by the Times itself shows the latter claim to be pure bunk. Although the headline affixed to the study suggested that it found the Court to be conservative, that headline was somewhat misleading. The study’s findings were much less definitive. It did conclude that (1) “the recent shift to the right is modest,” (2) “the court’s decisions have hardly been uniformly conservative,” and (3) by contemporary public standards the court is centrist, not conservative.
Careful analysis of the Times study by Professor Jonathan Adler turned up more. Professor Adler demonstrated that the study actually found that the current justices are restrained, not necessarily conservative. They form, in point of fact, the most restrained bench in decades. That means they don’t change the law much one way or another.
Now, you might think that “Restrained = Conservative.” But think again: When the Court leaves existing constitutional jurisprudence untouched, it protects constitutional jurisprudence that is mostly liberal. You see, most existing constitutional jurisprudence is the product of the “progressive” justices who dominated the Court for the greater part of the 20th century. That jurisprudence often disregarded established methods of interpretation, overruled established doctrines, authorized huge expansions of federal power, and re-wrote important parts of the Constitution to serve “progressive” ends. When the Court leaves “progressive” jurisprudence untouched, the results are mostly “progressive” decisions.
Ironically, some of the cases liberals complain most about today—such as the Citizens United ruling on corporate campaign spending—are merely applications of rules formulated in prior years by “progressive” majorities.
Not only has the current Court refused to cashier most of this liberal jurisprudence, but it sometimes has expanded it. A good example is Lawrence v. Texas, a decision authored by Justice Kennedy. Lawrence ruled that anti-sodomy laws violated the Due Process Clause of the Fourteenth Amendment, although such laws had been part of the western tradition for 3000 years. (Needless to say, there is no evidence the Fourteenth Amendment had anything to say on the subject. And, just to be clear, I do not personally favor anti-sodomy laws; that is a different question from constitutionality, however.)
The Times editorial asserting that the present Court is “radical” was triggered by the conclusion of five justices that Obamacare’s individual mandate was not justified by the Commerce or Necessary and Proper Clauses. But that was not even a conservative conclusion, much less a radical one. The five justices called into question no current congressional power. They did not reverse a single liberal holding—not even the rogue 1944 decision that insurance is “commerce.” They merely stated that the Commerce and Necessary and Proper Clauses did not authorize a new congressional power. Even more to the point, the Court ultimately upheld the exercise of that new power by pretending that the mandate was an indirect tax.
Among the Supreme Court’s membership, a plurality (four of nine) are fairly reliable liberals. Only one, Clarence Thomas, is “conservative” in the sense that he consistently interprets the Constitution according to the rules generally applied during the Constitution’s first 150 years. Justice Scalia usually does so as well—but not always: In Gonzales v. Raich, he joined a liberal majority that extended the congressional Commerce Power to window-box plants.
Justice Kennedy frequently sides with the four liberals. Chief Justice Roberts, as the Obamacare case illustrates, usually protects the status quo and the inflated pretensions of Congress. Justice Alito, while more conservative than Roberts, has been mostly unwilling to reverse liberal constitutional jurisprudence.
Admittedly, the present Supreme Court is more restrained than the activist benches of the mid-20th century. Perhaps it would be fair to characterize it as centrist or moderate.
But conservative? Not hardly.
During the Obamacare case before the Supreme Court, the Independence Institute argued that the law’s provisions forcing the states to expand Medicaid were unconstitutional. Neither the Constitution nor case law, we pointed out, permits the federal government to use federal spending programs to coerce the states.
Seven of the nine justices agreed with us, essentially adopting the arguments advanced in our brief.
As a result, the states may consider freely whether or not to accept additional federal funds for the Medicaid expansion. Accepting federal funds might seem to bring the states short-term fiscal benefits. But the fiscal risks of doing so are very great—perhaps eventual bankruptcy.
Dr. Linda Gorman, an economist, is director of the Independence Institute’s Health Care Policy Center. In this article, she explains in detail why state acceptance of the Obamacare Medicaid expansion would be a serious mistake.
To justify the huge growth of federal regulations over the last few decades, lawyers and judges frequently cite the Constitution’s Necessary and Proper Clause (I-8-18). But is that provision really broad enough to authorize what they claim it authorizes?
This little essay focuses on the meaning of the word “necessary.” Early legal documents—used by English lawyers, but written in Latin— offer some clues about what that word was intended to mean.
The Origins of the Necessary and Proper Clause, a book published in 2010 by Cambridge University Press, was authored by four scholars of differing political views—of whom I was one. The research summarized in the book found that the “necessary” portion of the Clause did not actually grant Congress additional authority. It merely assured the reader that the Constitution, unlike the Articles of Confederation, gave Congress powers “incidental” to those listed. Chief Justice Roberts apparently followed that research in the portion of his Obamacare decision in which he found that the Necessary and Proper Clause did not authorize the federal health care law.
During the Founding Era (and today also, in most contexts), an incidental power was one that met the following requirements:
* It was subsidiary to—less important than—a listed or “principal” power. Founding-Era lawyers said an incidental power had to be less “worthy” than the principal.
* It was either
(i) a customary way of exercising the listed power or
(ii) reasonably necessary to its exercise. Founding-Era lawyers summarized “reasonably necessity” by saying that an incidental power had to be one that, if absent, would subject exercise of the principal power to “great prejudice.”
Let’s consider an example: The Constitution grants Congress authority to regulate “Commerce . . . among the several States.” That is a principal power. This gives Congress authority over interstate trade among merchants together with a few associated activities, such as commercial finance, cargo insurance, international brokerage, and navigation.
But today, Congress also regulates manufacturing in detail, claiming that doing so is “incidental” to the regulation of interstate commerce. But that claim really doesn’t wash, because manufacturing is at least as important an economic activity (as “worthy” as) as interstate trade among merchants. So it cannot be subsidiary to commerce. (On the other hand, Congress may regulate some aspects of manufacturing that are subsidiary to and closely connected to commerce, such as the labeling of goods about to be sent across state lines.)
The meaning of “necessary” as embracing only subsidiary powers is strange to us today. But that’s the way Eighteenth Century legal documents used the term.
Why so? Well, “necessary and proper”-type provisions were based on earlier instruments composed when English lawyers wrote most legal documents in Latin. For instance, a 1724 book of legal forms contained this forerunner of the Necessary and Proper Clause:
“ad facienda exsequenda et expediendia omnia et singula et necessaria fuerint aut opportuna. . . . ”
(I’ve spelled out the phrase’s abbreviations.)
Notice the words necessaria and opportuna, the neuter plural forms of necessarius (necessary) and opportunus (proper).
In Latin, an important meaning of necessarius is a person connected to you. It can refer to a close relative, associate, and in particular to a dependent or servant. The Founders had virtually all studied Latin as part of their basic education, and as constitutional historian Forrest McDonald points out, there are many echos of Latin usage in the Constitution.
So you can see how the term necessaria—“necessary”— could come to refer to a power subsidiary and connected to larger power.
Filed under: All Postings, Article V, ObamaCare, The Founding
The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.
Obviously, that decades-long strategy has failed—spectacularly.
They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.
The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.
There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.
Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.
Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.
The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.
This provision was designed explicitly to enable the states to bypass federal politicians.
Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.
Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.
Yesterday’s Parade Magazine, the Sunday insert, featured a cover article on former Supreme Court Justice Sandra Day O’Connor. It was a terrific choice: Justice O’Connor has lived an inspirational life.
But Parade essentially muffed the job. While displaying its eagerness to celebrate some of her more liberal views, the article entirely overlooked Justice O’Connor’s truly historic contribution: Her role in resuscitating federalism (“states’ rights”) in Supreme Court jurisprudence.
Unlike most of the justices appointed to the modern Supreme Court, O’Connor brought with her solid experience in all three branches of state government. She had served in Arizona’s executive branch as an assistant attorney general, in the legislature as a state senator and majority leader, and in the judiciary both as a trial and appellate judge.
This practical experience and appreciation for federalism showed in her opinions. In 1987, Justice O’Connor dissented in South Dakota v. Dole, where the Court upheld a federal law invading traditional state prerogatives. (The law threatened to withhold a small fraction of highway funds from any state that did not raise its drinking age to 21.) Although she lost that case, her sharp dissent gave bite to critical concessions by the Court’s majority: (1) The federal spending power has limits, (2) conditions on federal funding must be related to the purpose of the program, and (3) withdrawal of federal funds cannot be so severe as to be “coercive.”
The Court enforced those limits in 2012 when it voided, by a 7-2 majority, Obamacare’s imposition of coercive Medicaid mandates on the states.
In South Dakota v. Dole, O’Connor and her fellow Arizonan and Stanford Law School classmate, Justice Rehnquist, were on opposite sides. That was not to remain so for long.
In a string of later federalism decisions, Rehnquist flipped to her side, and they carried the majority of the Court with them. The famous cases of Lopez, Morrison, Alden and others all owe something to her influence.
In 1992, O’Connor led a 6-3 majority what proved to be a trend-setting case, and almost certainly the most important pronouncement of her career (although Parade Magazine didn’t think it worth a mention). The case was New York v. United States.
New York v. United States established, or rather re-established, the principle that states are independent sovereigns in the federal system—and that Congress cannot “commandeer” them in service of its own priorties.
In arguing the matter, the federal government contended that because New York had cooperated with the unconstitutional law, New York couldn’t challenge it. O’Connor’s response ranks as one of the Supreme Court’s greatest pronouncements ever on the role of the states in the federal system:
The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: “Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” . . . . “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” . . . Where Congress exceeds its authority relative to the States, therefore, the departure from the constitutional plan cannot be ratified by the “consent” of state officials.
Nearly 20 years later, in the 2011 case of Bond v. United States, the Court reaffirmed those words of Justice O’Connor. The vote for doing so was unanimous.