The Patient Protection and Affordable Care Act (PPACA or “Obamacare”) imposes a sliding-scale financial penalty on people who do not buy health insurance conforming to federal standards. In NFIB v. Sebelius, the Supreme Court upheld the penalty as a constitutional “tax.”
But that may not be the last word on its constitutionality.
A lawsuit brought by Matt Sissel, a self-employed artist, contends that the penalty is void under a provision in the Constitution called the Origination Clause: Article I, Section 7, Clause 1. It reads as follows:
“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.”
As a tax, Sissel argues, the financial penalty is “for raising Revenue.” He then notes how Obamacare was adopted: First, the House passed H.R. 3590, which created a first-time homebuyer tax credit for armed services personnel and “accelerated” certain estimated corporate income tax payments. Next, when H.R. 3590 came to the Senate, that body gutted it and inserted the PPACA instead, which the Senate then passed. Finally, the House passed the new H.R. 3590. So as a practical matter, Sissel says, the Obamacare tax originated in the Senate—not, as constitutionally required, in the House.
If Sissel is right, then the same defect may afflict other levies imposed by Obamacare, such as the one on medical devices.
The case turns on two overarching issues:
(1) Is the penalty for not buying insurance a measure “for raising Revenue?” and
(2) Did the Senate’s action in gutting the original bill and replacing it with Obamacare constitute an “Amendment?”
Only if the penalty was “for raising Revenue” did the Origination Clause apply. Only if the Senate’s changes exceeded the scope of permissible “Amendment” (and thereby constituted an entirely new bill) did Obamacare unconstitutionally arise in the Senate.
In defending the law, the government argues that the penalty, even if the Supreme Court calls it a “tax,” was imposed for independent regulatory reasons, not to raise money. The government also argues that “gut and replace” is a permissible amendment procedure.
In my investigations, I’ve found—at least thus far—that the answer to the first question is a lot easier than the answer to the second.
As to the first question: It is clear that the financial penalty in Obamacare was adopted primarily to regulate the economy pursuant to the Commerce Power (Commerce Clause + Necessary and Proper Clause). If the penalty were valid as a regulatory measure, it would not be “for raising Revenue,” either under the Constitution’s original meaning or under Supreme Court precedent.
The problem for the government, however, is that in NFIB v. Sebelius the Supreme Court held that the penalty was NOT valid as regulatory measure because it exceeded Congress’s Commerce Power. The penalty’s sole constitutional justification was the revenue it could raise—estimated at $4 billion per year by 2017. (Recent revelations about the number of people who are spurning Obamacare-approved health insurance suggests this number may be far too low.)
In other words, the Obamacare penalty for not buying insurance is valid only as a revenue-raising measure, and the NFIB v. Sebelius decision compels the courts to treat it as such.
The second issue is whether the Senate’s action in gutting the original bill and replacing it with something else constituted an “Amendment.” If it was not, then Obamacare’s levies really arose in the Senate, and are unconstitutional.
This is a much harder question to answer. It requires first addressing a number of others:
* What was the understanding of those who ratified the Constitution as to the scope of an amendment?
* If the ratifiers’ understanding on this subject is not clearly ascertainable, then what was the original public meaning of the term “Amendment?” Answering this question requires going beyond the public discussion during the ratification debates and into sources such as 18th century dictionaries and treatises, and the records of contemporaneous legislatures—specifically of the British Parliament, the American colonial assemblies, and the legislatures of the newly independent states.
Previous treatments of these “originalist” questions in law journal articles are distinctly mediocre. This is a common problem because, as I have pointed out elsewhere, most legal scholars are ill-equipped for historical work or too agenda-driven to accomplish it reliably.
Anyway, the questions continue:
* If the scope of “Amendment” requires a subject-matter connection to the original bill, then how much connection is necessary? The original H.R. 3590 was not about health care or health insurance at all. Does that mean that the Senate changes exceeded the scope of “Amendment?”
* But the original H.R. 3590 was connected to revenue! It would have amended the Internal Revenue Code to create a tax credit. Is this sufficient?
* If not, consider that the original H.R. 3590 not only helped a popular group (armed services homebuyers), but it also “paid for” their benefit by sticking it to an unpopular group (larger corporations). Specifically, the measure “accelerated” estimated corporate income taxes. Instead of larger corporations having to pay 100.25% of their taxes in advance, the original H.R. 3590 would have required them to pay 100.75% in advance. Of course, the corporations would have gotten their excess back eventually. But, as everyone in government knows, estimated tax “acceleration” is really a forced loan that makes cash flow to the government faster so as to create bookkeeping entries that cover other shortfalls. It is a financial stunt to enable politicians to effectively increase taxes by giving the government earlier use of citizens’ money, while enabling those politicians to claim they really didn’t raise taxes. So if this part of H.R. 3590 raised money, is this a sufficient connection with the Obamacare taxes to render Obamacare a mere “Amendment?”
I don’t know. But the investigation continues. Stay tuned.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Does a state have the right to nullify federal statutes the state considers unconstitutional? This depends largely on how you define “nullification.” It also depends on what you mean by “right” and what kind of document you understand the Constitution to be. In other words, it depends on your premises.
Unfortunately, people often discuss—and debate, and attack each other over—the merits or demerits of nullification without making their premises clear. The result is much quarreling among people who are fundamentally on the same side.
Historically, “nullification” was defined quite narrowly. It referred to a formal ordinance of a state legislature or state convention that declared a federal law void within the boundaries of the state. The state might or might not make the ordinance conditional, and it might or might not impose criminal or civil penalties on persons attempting to enforce the federal enactment. We can refer to this as the narrow, or historical, definition of nullification. It is traditionally credited to the Kentucky Resolutions of 1798, drafted by Thomas Jefferson.
Today the term often is used in a much broader sense by advocates, by opponents, and often by the press. So used, it refers as well to other mechanisms a state may deploy to assert its prerogatives against federal overreaching—that is, to other methods of what James Madison called “interposition.” The Tenth Amendment Center often uses “nullification” in this broad way.
Thus, “interposition” (by Madison’s definition) or “nullification” (by a broad definition) can refer to state actions such as:
* State legislative and executive expressions of opinion against a federal measure;
* State lobbying pressure to get the measure changed or repealed;
* State-sponsored lawsuits against federal actions deemed unconstitutional;
* Political coordination among states to promote change or repeal;
* Refusal of states to accept federal grants-in-aid attached to obnoxious conditions;
* Refusal of states to allow their officials to cooperate in the execution of federal programs;
* Refusal of states to render a particular activity that is a federal crime illegal under state law as well (e.g., the use of marijuana in Colorado and Washington); and
* The state application and convention process of Article V.
Constitutional wonks will recall that Madison anticipated most of these in Federalist No. 46, and included the others in later writings.
All of the interposition methods listed above are perfectly legal and constitutional. For example, there is certainly no requirement that a state duplicate federal crimes in its own statute books, and the Supreme Court has said repeatedly (and held expressly in the NFIB v. Sebelius, the Obamacare case) that the federal government may not “commandeer” state officials in service of federal policy.
Clearly, calling these modes of interposition “nullification” does not render them unconstitutional or wrong.
On the other hand, there are methods of interposition that the Constitution does not authorize. In other words, they are extra-constitutional. Nevertheless, the Founders believed that natural law reserves them to the people in some circumstances.
The most dramatic illustration of an extra-constitutional remedy reserved by natural law is the right of armed revolution, which Madison also discussed in Federalist No. 46. He later stressed that the people should resort to extra-constitutional methods only when the constitutional compact has been irretrievably broken.
Both historically and today, the most serious nullification disputes center on whether states enjoy the constitutional prerogative of adopting formal nullification ordinances. In other words: Does a state have the constitutional power to void what it perceives to be an unconstitutional federal law?
Let’s try to isolate some of the issues:
First: It is clear that in the extreme conditions justifying revolution, resistance need not be conducted solely by private individuals or groups. States may participate officially, as the colonies/states did during the years 1775-83. This is the scenario Madison presented in Federalist No. 46. Obviously, in these circumstances a state may declare federal law void within its boundaries. But this power flows from natural law, not from the Constitution (which in revolutionary circumstances, you recall, would have been irretrievably broken).
Second: What of our current situation—that is,when there is no revolution, the union continues, federal laws are still widely obeyed, and the Constitution is still largely in operation? In those circumstances, may a state declare void a judicially-sustained federal law that the state deems unconstitutional? The answer to this question turns largely on your conclusion as to the fundamental nature of the Constitution.
Third: What is that fundamental nature?
The Constitution has been characterized as:
* A compact (i.e., contract) to which only the states are parties, by which the states granted power to federal officials. This is the pure interstate compact theory, expressed in Jefferson’s 1798 Kentucky Resolutions.
* A “compound” compact, created by the people but to which the states are parties. This was apparently Madison’s post-ratification view (see, for example, the equivocal wording about the nature of the Constitution in his Notes on Nullification), and may have underlain his 1798 Virginia Resolution.
* A popular grant: that is, a grant of power from the people—mostly to federal legislators and officials, but in some cases to state legislative authorities (as in the Time, Places, and Manner Clause) or to state legislators (as in Article V). This view was expressed by some of the seven state legislatures that formally repudiated the Kentucky and Virginia Resolutions. It also was Chief Justice John Marshall’s conclusion in the famous case of McCulloch v. Maryland (1819).
You can make the best case for narrow-definition nullification as a constitutional prerogative if you adopt the first of the three alternatives. The basic idea is that if other states have broken the compact by letting their agent (the federal government) run amok, then aggrieved states (compacting parties) have the right to protect themselves.
On the other hand, if you adopt the popular grant theory it is much more difficult to justify nullification. This is because the people, not the states, are the parties. By this analysis, the states may, as agents of the people, protest, sue, and protect their own governmental operations, but they may not void federal actions unilaterally, except by their legislators using their delegated power to amend under Article V.
And if you subscribe to Madison’s mixed theory, then, as Madison pointed out in 1830 and again in 1834, there also are conceptual problems with considering nullification as a constitutional right rather than just a natural law remedy.
Fourth: So, again, we must ask, “Which of the three theories of the Constitution is correct?”—state compact, compound compact, or popular grant?
The answer to this question depends on the dominant understanding of (or meaning to) the people who ratified the Constitution between 1787 and 1790.
The answer does not depend on what Thomas Jefferson or James Madison wrote in the Resolutions of 1798, or on what other states proclaimed when they rejected those Resolutions. Even more clearly, the answer does not depend on what Chief Justice Marshall concluded in 1819, or what Madison, John C. Calhoun, or anyone else said in the 1830s.
Anyone who has made an honest study of the ratification has to offer conclusions on this particular subject with humility. The ratification record can be confusing and the prevailing meaning at the time can be hard to reconstruct. For example, it is not sufficient to note that the Founders referred to the Constitution as a “compact.” This is because they used that word to refer both to governments established by states (confederations) and to governments established among the people alone.
Nor is it sufficient, as do some writers popular among constitutionalists, to focus only the ratification debates within selected states. You have to view the wider picture. Similarly, it is insufficient to rely merely on a few key Founders, such as Madison, Hamilton, or Jefferson. There were 1648 ratifying delegates—not just two or three—and many had important things to say. So did the orators, newspaper writers, and pamphleteers who influenced them. Jefferson was a great man, but his opinions on the meaning of the Constitution have little value, since as our ambassador to France, he did not participate in the framing or ratification.
Nor can you rely only on the express language of the ratification debate. You have to get into the heads of the ratifiers by reading what they read, and understanding their jurisprudence and their customs.
This is not the place to get into the details (this posting is already too compendious). Suffice to say that long study of the ratification record convinced me that most of the ratifiers probably thought of the Constitution as a grant from the American people rather than as a compact among states, pure or compound (as I once thought). I set forth several of my reasons in The Original Constitution: What It Actually Said and Meant.
At this point, I’ll explain just one reason. (But for for another see here.) It has to do with how 18th century English speakers drafted and read legal documents.
The Constitution famously begins with the phrase “We the People.” States are not mentioned. Now, the script and the placement of that phrase was no accident. It followed the custom by which legal documents granting power listed the grantor first. Thus, in royal charters granting rights and privileges to citizens, the king—that is, the grantor—always appeared first in large and ornate script. (A wholly typical example is the royal charter of Dartmouth College.) Although the Articles of Confederation had given that placement to the states, the Constitution afforded it to the people alone.
How do we know the delegates to the ratifying conventions caught the implications of this? Because some of them said so. For example, William Findley, an Anti-Federalist spokesman at the Pennsylvania ratifying convention, observed:
“In the Preamble, it is said, ‘We the People,” and not ‘We the States,’ which therefore is a compact between individuals entering into society, and not between separate states enjoying independent power and delegating a portion of that power for their common benefit.”
And Findley’s leading adversary at the convention, James Wilson, agreed with him on this point.
Anti-Federalists not only understood, they objected vehemently. Patrick Henry, chief Anti-Federalist at the Virginia ratifying convention, demanded to know: “Who authorized [the Framers]to speak the language of, We, the people, instead of, We, the states?”
As events turned out, the delegates elected to represent the people of Pennsylvania and Virginia decided to accept that language. The Virginia delegates even recited in their ratification instrument that “the powers granted under the Constitution [are] derived from the People of the United States.” The delegates in every other state also accepted the “We the People” formulation. Incidentally, among the delegates most responsible for Henry’s defeat on his home ground were two young men named James Madison and John Marshall.
Finally: Once the pure state compact theory falls, it is very hard to justify nullification (narrowly defined) as a constitutional remedy. It remains instead a remedy reserved by natural law for when the Constitution has wholly failed—in other words, in situations justifying revolution.
It’s ironic that one of the few “states’ rights” battles won in recent times was Colorado’s decision to legalize marijuana in the teeth of federal laws to the contrary.
Pot really isn’t legal in Colorado, of course. The federal government still bans the stuff. And in Gonzales v. Raich (2005), the Supreme Court held that the federal ban is valid and the supreme law of the land. Last I looked, Colorado was still part of “the land.”
But as is its constitutional prerogative, Colorado has removed its own (i.e., state), criminal penalties from the sale of marijuana to adults over 21, so long as certain regulations are followed and participants pony up specified kickbacks to the state in the form of taxes and fees. President Obama’s practice of disregarding laws he doesn’t like has left Colorado with at least a temporary victory.
Now here’s the irony: Since 1940, authorities in Washington, D.C. have done many dreadful things while acting in excess of their constitutional powers. They have locked up American citizens without trial. They have executed American citizens without habeas corpus. They have quashed the career hopes of millions. They have sent soldiers to fight and die in undeclared wars. They have established surveillance systems to monitor the personal lives of innocent citizens. They have adopted social policies that largely destroyed inner-city families. They have inflicted severe damage on our health care system and our monetary system, and have burdened our country with unimaginable debt.
Yet none of these has provoked push-back so successfully as Washington’s ban on a totally unnecessary recreational drug. And—even more ironically—a drug that, unlike the targets of so many other regulations, really can be harmful. Perhaps the only comparable success against federal encroachment was repeal of federal Prohibition, another ban on a potentially harmful recreational drug. Both these instances are reminiscent of an even earlier American reaction when faced with government restrictions on yet another of life’s unnecessary pleasures: tea.
From Colorado’s marijuana “legalization” some federalism advocates draw a conclusion that is both (1) obvious and (2) wrong. The conclusion is that the only way to restore constitutional limits is for constitutionalists to form alliances with hard core “progressives” in areas of common concern. After all, wasn’t it a right-and-left-wing coalition that successfully repealed Colorado’s marijuana ban?
There are, however, at least two problems with this approach. First, the few areas of common concern are mostly very small and of limited importance. “Progressives” very rarely take a genuine pro-federalism position, and when they do, the issue is usually narrow. By any objective measure, marijuana legalization is small POT-atoes compared to massive programs like Obamacare.
Secondly—and more importantly—victories won by coalitions so disparate are not stable. 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.
There are many examples:
* “Progressives” campaigned for a “woman’s right to choose” contraception or abortion, but no sooner did this become government policy, than they began promote laws forcing conscientious religious objectors to pay for conception and abortion.
* Most “progressives” favored legalizing homosexual behavior (and I agree) under the banner of freedom. But no sooner had they won freedom for this form of behavior than they began to use government to promote it—by adopting policies that grant insurance and other civil privileges to homosexual behavior at others’ expense and by deploying “anti-discrimination” laws to intimidate, silence, and punish dissenters.
* During the campaigns to legalize previously illegal sexual behavior, one of the Left’s key arguments was that government does not belong in such personal decisions. But they sang quite a different song when the opportunity arose to pen all of us up in Obamacare.
Only a fool would think the hard Left will be satisfied with freedom or use, or not use, marijuana. Within a short time, “progressives” will begin to agitate for direct or indirect public subsidies for use, and for government crackdowns on anyone who objects to it. (Possible first steps: Making it illegal to refuse to hire or serve users and further subsidizing health care for pot abusers.)
I believe the battle for federalism can still be won—and that, indeed, that it will be won. But it has to be won with a coalition that will preserve the victory. History teaches that coalitions between democrats and totalitarians do not last long: If the totalitarians remain in the coalition, they will quickly take over (cf. Czechoslovakia, 1948). Conservatives and libertarians should, therefore, seek their allies from the broad center—the Main Street political moderates—by convincing them of the need to return to constitutional restrictions on federal authority.
In the short term, that may be a tougher victory. But once won, it will be a far broader and more ensuring one.
* * * *
* In 2009, I ran an experiment: During a controversy over the University of Montana’s use of state resources to publish soft pornography, I challenged the “progressives” frequenting a well-traveled web site (1) whether they would agree that promoting porn should not be a government function and (2) if they could identify any sphere of life whatsoever that they thought was outside government’s proper scope. I received many responses to my questions—quite a few of them vulgar—but not a single affirmative one.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Are you interested in the true meaning of, and limits on, the Constitution’s much-abused Commerce Power? In a speech at the University of Utah in Salt Lake City on November 19, 2013, I outlined the intended scope of the power, how I reached my conclusions, and how the Supreme Court has stretched the Commerce Power far beyond its intended scope.
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.