A few days ago I heard a presentation by a spokesman for a group that claims to defend the Constitution and revere the Founders. Yet the spokesman trashed the Constitution’s framers for allegedly exceeding their authority and claimed they added a provision that largely rendered another provision useless. In other words, the spokesman charged the framers with being both (1) dishonorable and (2) incompetent.
The framers inserted the “Convention for proposing Amendments” in the Constitution to provide the states with a way of obtaining constitutional amendments without federal interference. Tench Coxe, a leading advocate for the Constitution during the ratification debates, pointed out that the convention device allows the states to obtain whatever amendments they choose “although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them.” (Italics in original.)
The spokesman, however, asserted that the Constitution allowed Congress, through the Necessary and Proper Clause, to dictate, either in the convention call or by previous legislation, how an amendments convention is structured and how commissioners (delegates) are selected and apportioned.
The claim that Congress can use the Necessary and Proper Clause to structure the convention was first advanced in the 1960s, and has been repeated numerous times since then. A Congressional Research Service report published earlier this year noted that some in Congress have taken the same line, although the report did not actually endorse it.
But pause to consider: Why would the framers place in the Constitution a method by which Congress could largely control a convention created to bypass Congress? Were that framers that stupid?
Of course not. Most of them were highly experienced and extremely deft legal drafters.
Behind the belief that the Necessary and Proper Clause empowers Congress to structure the convention are three distinct assumptions—all erroneous: They are (1) that the scope of Congress’s authority under the Necessary and Proper Clause is broader than it is, (2) that the Clause covers the amendment process, and (3) that ordinary legislation may govern the amendment process.
The Necessary and Proper Clause is the last item in the Article I, Section 8 list of congressional powers. It reads:
The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
It happens that the most extensive treatment of the Necessary and Proper Clause is an academic book I co-authored with Professors Gary Lawson, Guy Seidman, and Geoff Miller: The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010) (cited by Justice Thomas in a Supreme Court case earlier this year and apparently relied on by Chief Justice Roberts in 2012). This book reveals the Necessary and Proper Clause to be a masterpiece of legal draftsmanship.
The Clause was based on usage common in 18th-century legal documents. It is not a grant of authority, but a rule of interpretation. It tells us to construe certain enumerated powers as the ratifiers understood them rather than in an overly-narrow way. In legal terms, the Necessary and Proper Clause informs us that those enumerated powers include “incidental” authority.
Even if the Clause did apply to the amendment process, the authority “incidental” to Congress’s call would be quite narrow. An entity that calls an interstate convention always has been limited to specifying the time, place, and subject matter. It is the state legislatures who control selection of their own commissioners, thank you very much.
But in fact the Necessary and Proper Clause does not extend to the amendment process. To explain:
The Constitution includes numerous grants of power. These grants are made to Congress, to the President, to the courts, and to state legislatures and various conventions. The Clause is crafted to apply to most of those grants, but it also excludes a number of them. Specifically, it covers only the powers listed in Article I, Section 8, and those vested in the “Government of the United States” and in “Departments” and “Officers” of that government.
In other words, the Clause omits constitutional grants made to entities that are not part of the “Government of the United States.” For example, the Clause does not apply to state legislatures regulating congressional election law, prescribing selection of presidential electors, or (before the 17th amendment) choosing U.S. Senators. Nor does it apply to the conventions and legislatures operating in the amendment process.
But is Congress a “Department” of government as the Necessary and Proper Clause uses that word? When Congress acts in its normal legislative capacity, you can argue this either way. But when Congress acts under the amendment process, the answer is clearly “no.”
This is because when Congress and state legislatures act in the amendment process, they do so not as branches of government, but as ad hoc assemblies. We know this (1) from the Founding Era record, (2) from subsequent history and, perhaps most importantly, (3) from decisions of the United States Supreme Court. See, for example, United States v. Sprague (1931).
Well, if Congress cannot insert language in the “call” structuring the convention, can it pass laws for the same purpose? Again, the answer is “no.” A long list of 20th century cases from courts at all levels holds that ordinary legislation does not bind the amendment process. See, for example, Leser v. Garnett (1922).
Filed under: All Postings, The Founding, supreme court
While hosting a Montana radio talk show in the late 1990s, I interviewed a prominent left-wing environmental activist. He was promoting an anti-mining ballot measure. During the interview, he read from a 16th-century book that (he said) had shown that mining had all sorts of evil effects.
But something about the quote did not ring true. So I obtained a copy of the book myself.
When I read the passage the activist had read over the air, I found that my suspicions had been justified. He had taken the language completely out of context. The author was not against mining at all. He was listing exaggerated claims by mining opponents as a preliminary to rebutting them. The author was a professional mining engineer, and a big fan of mining.
Someone had lied to me, and to my radio audience. The guilty party was either the activist or the person who had, directly or indirectly, provided him with the quotation. I’ll never know the answer. When I contacted the activist to offer him an opportunity to explain, he failed to respond.
That’s when I learned that left-wing environmental activists sometimes abuse the truth. Subsequently, I learned that they abuse it quite a lot.
Consider how they depict the legal doctrine of “public trust.” The following gem comes from an outfit called the “Center for Progressive Reform:”
Across cultures and continents, communities have always imbued certain natural resources with a sense of permanent public ownership. . . . These resources belong to the public, and no private entity can ever acquire the right to monopolize or deprive the public of the right to use and enjoy them. In legal terms, this concept became known as the public trust doctrine, imported into the United States as common law from ancient Roman, Spanish, and English law.
Okay, then, the public trust doctrine is supposedly designed to restrict the freedom of “private entities.”
But re-read that passage carefully. Doesn’t it make you just a little suspicious? It states, “Communities have always imbued certain natural resources with a sense of permanent public ownership.” How would the Center for Progressive Reform know that? Do they know the history of how all communities have “always” worked? Are they gods? Surely to support a generalization like that it is not enough to cite the law of Rome, Spain, and England. What of the rest of the world? What of other eras?
That’s the sort of smell that makes me hold my nose and dig a little further. It doesn’t take much digging to find out that someone at the Center for Progressive Reform is a fiction writer. For example:
* Their version of the public trust doctrine does not, in fact, come from “ancient Roman . . . law.” It’s just not there. Some writers do cite passages from Justinian’s Institutes or Digest. But like my 1990s radio guest, they tear the language out of context. Those passages do not address people’s rights over their own property. They refer only to the status of resources BEFORE those resources are reduced to private ownership.
* Nor does their version of “public trust” come from the English common law. Although some point to Magna Carta, that document does not empower government against private citizens. On the contrary, it protects private citizens against the Crown.
* Environmentalists are fond of claiming that the Supreme Court adopted their version of public trust in Illinois Central Railroad Co. v. Illinois (1892). But if you read that case, you find that it is really not about restricting private rights. The case held that a state government could not disregard its trust duties through a corrupt land sale.*
Is there a real public trust doctrine? Yes, there is.
But it is not about restricting private rights. It is about controlling government.
The historical (as opposed to fictional) public trust doctrine says that government’s agents are trustees or fiduciaries and are bound by the same duties that apply to private sector managers such as bankers, trustees, and guardians. Those duties include obligations of good faith (honesty), reasonableness, loyalty (including avoidance of conflict of interest), and impartiality (serving your beneficiaries fairly).
You can find the true public trust doctrine in the writings of Aristotle and Cicero and in essays by medieval scholars, British Presbyterian theorists, and early modern writers such as John Locke. From such sources many of the American Founders adopted the view that government actions in violation of fiduciary duties were void. That was basically the same approach the Supreme Court applied in the Illinois Central Railroad case.
The public trust doctrine was designed to control government, not to empower it. Claiming it as an instrument to allow government to control innocent citizens is not just a lie—it also turns the concept of “public trust” on its head.
* * * *
* By the way, the Illinois Central Railroad case is pretty shaky as constitutional law. It was decided by a four-justice court minority, with three justices dissenting and two recusing themselves. The case held that the state had exceeded its “police power” through a land sale, but cited nothing in the U.S. Constitution supporting its decision. One might argue that the state violated the 14th Amendment, but the Court never said so.
The Constitution was adopted amid a belief that government is a public trust.*
Does the Constitution require federal and state governments to adhere to formal duties of public trust—that is, to fiduciary duties?
In some places, at least, it clearly does: The Equal Protection Clause of the Fourteenth Amendment imposes on the states what is essentially the fiduciary duty of impartiality—that is, the requirement that states not treat people differently without good reason. The requirement in the Necessary and Proper Clause that incidental laws be “proper” may impose a similar rule on the federal government when that government legislates under the Necessary and Proper Clause rather than under its core enumerated powers.
But what if no specific clause governs the issue? Last year I reported that Gary Lawson, Guy Seidman, and I—three constitutional scholars of contrasting political views—had written an article exploring that question.
We pointed out that in interpreting any fiduciary document (like the Constitution), the Courts are supposed to apply certain background rules, unless the document says differently.We noted that one of the standard background rules—existing both at the Founding and today—is that fiduciaries have an obligation not to treat people differently without reasonable cause: the duty of impartiality. We concluded, therefore, that the 1954 Supreme Court case invalidating segregation by race in District of Columbia schools was correctly decided, because in the area of education mere skin color is not reasonable cause.
The article has now been formally published by Boston University Law Review, one of the nation’s more prestigious law journals. You can read it here.
* Note: Our Founders understood the term “public trust” in the way used by John Locke and others: as the obligation of the government to comply with fiduciary standards. Left-wing environmentists have hijacked the term to restrict the freedom of private citizens. The problem began when someone misunderstood and distorted an 1892 Supreme Court case on public trust. More on that soon.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Two years ago, the Supreme Court declared Obamacare’s penalty for failure to purchase conforming insurance to be a “tax.” Several plaintiffs subsequently sued in federal court arguing that the penalty is invalid for violating the Constitution’s Origination Clause. The Origination Clause says that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”
The argument of the plaintiffs is that the Affordable Care Act and its taxes originated in the Senate, and that the tax/penalty is therefore void. (A 1990 Supreme Court case does strongly suggest that taxes originating in the Senate are void.) Thus far, those lawsuits have been unsuccessful, but they have provoked much commentary.
H.R. 3590 initially was a 6-page bill addressing (1) a federal income credit and (2) acceleration of certain estimated corporate income tax payments. The bill probably would have had little revenue effect, and may even have cost money. After H.R. 3590 passed the House, the Senate gutted it entirely and inserted 2,076 pages of Obamacare. The Senate voted for H.R. 3590 in that form, and transmitted it to the House, which likewise approved it.
As readers of this site know, I have my own political views, but I do my best to conduct objective research. And I insist on reporting my results whether I personally like them or not. In January, I began an independent research project to determine if the Origination Clause lawsuits have merit. The answer turns out to be both “yes” and “no.”
There are several key issues involved:
* The Constitution’s Origination Clause applies only to “Bills for raising Revenue.” What does that phase mean?
* Was the original H.R. 3590 a “Bill for raising Revenue?”
* If it was, then the Senate had power only to “propose or concur with Amendments as on other Bills.” What is an “Amendment” as the Constitution uses the word? Was the complete replacement of the text of H.R. 3590 an “Amendment?”
The most commonly-used sources for recovering original constitutional meaning are the records of the 1787 Philadelphia Convention, the debates in the state ratifying conventions, and orations and publications (such as The Federalist) issued in advance of ratification. I found, as some other scholars have, that this material was insufficient to explain the scope and meaning of the Origination Clause.
I often have to venture well beyond the sources customarily used, and that was the case here. The origination rule came from the British Parliament, so I examined 50 years of parliamentary debates, as well as historical works on Parliament. I read 18th century treatises on the topic. I examined the legislative records of American colonies. I also examined the legislative records of the Continental, Confederation, and first Federal Congresses. Finally, I studied the origination rules in the newly-independent American states (14 of them, counting Vermont). This required perusing early state constitutions and legislative records. I disregarded materials generated too late to have influenced the founders.
I embodied my conclusions in a new, and rather lengthy, article. Here they are:
* The constitutional phrase “Bill for raising Revenue” means a “tax” or a change in the tax code justifiable only under the Constitution’s Taxation Clause. (An exaction for regulating commerce is not a “Bill for raising Revenue.”)
* H.R. 3590 in its initial form was a “Bill for raising Revenue” as the Constitution uses that term. It does not matter that H.R. 3590 in that form was revenue-neutral or revenue-negative. All changes to the tax code are within the origination rule.
* H.R. 3590 properly arose in the House of Representatives.
* The Senate had power to propose “amendments” of H.R. 3590. An amendment could take the form of a compete substitution. In fact, I found a fair number of examples of founding-era legislatures amending measures by complete substitution.
* However, the constitutional word “Amendment” is limited to the subject matter of the original bill. The claim made by some writers that an “Amendment” could include an unrelated substitute turned out to be erroneous.
* In other words, the power of an amending chamber over a revenue bill is less than the power of an originating chamber.
* For constitutional purposes, all “Revenue” is the same subject matter, so it is irrelevant that the Senate’s revisions completely altered the nature of the taxes in H.R. 3590. Thus, because the Supreme Court has held the penalty to be a tax, the penalty was within the power of the Senate to add. Also valid are Obamacare’s other levies, such as the medical equipment tax.
* On the other hand, because the underlying H.R. 3590 was limited to the subject of revenue and any “Amendment” must address the same subject as the underlying bill, the Senate’s addition of regulations and appropriations was not within its power.
I concluded that the Origination Clause lawsuits are attacking the wrong part of the law. The invalid portions of Obamacare under the Origination Clause are not its taxes, but its multitude of appropriations and its regulations on health care providers, employers, insurance companies, and others.
One final observation: In dismissing one of the origination suits late last month, the U.S. Court of Appeals for the D.C. Circuit held that the Obamacare tax was not a “Bill for raising Revenue” because it was passed for regulatory purposes. But the anterior constitutional test is whether the initial H.R. 3590 was a revenue bill—and it certainly was, according to the constitutional definition.
If the Court of Appeals were correct that the penalty is regulatory, then the penalty would be invalid as outside the Senate’s amendment power.
More importantly, however, the Supreme Court specifically held that congressional regulatory purposes were outside the scope of Congress’s other enumerated powers. Only the Taxation Clause supports the penalty, and it can be preserved only as a tax.
How Much Authority Does Congress Have Under the Treaty Power? The Question the Supreme Court Dodged in Bond v. U.S.
In its recent decision in Bond v. United States, the Supreme Court avoided deciding whether Congress, in executing a treaty, could exceed the enumerated powers to which the Constitution otherwise restricts it. For example, if a treaty requires a signatories to make it a crime to use a particular chemical, may Congress pass a law criminalizing the chemical’s use even though the Constitution gives Congress no general criminal jurisdiction?
The majority in Bond avoided the question by ruling, rather implausibly I think, that the plain words of the statute didn’t apply, so there was no need to decide whether Congress had authority to enact it. But the question will soon return.
Here’s what the Court has decided thus far:
* Because the Constitution gives Congress authority to pass laws “necessary and proper” to assist the President and Senate in making treaties, Congress can enact some measures pursuant to treaties that it could not pass otherwise. This was the rule laid down in Missouri v. Holland (1920). The Holland case said the Tenth Amendment does not prevent this, because the Tenth Amendment denies only unenumerated powers and the power to make necessary and proper laws to execute the treaty power is enumerated.
* Although the Congress may thereby exercise authority not otherwise on its list, Congress still may not violate specific rules imposed by the Constitution. Thus, Congress may not execute a treaty by passing an ex post facto law or a law violating the specific guarantees in the Bill of Rights. This was decided in Reid v. Covert (1956).
In recent years, several conservative and libertarian commentators have argued that when adopting laws enforcing treaties, Congress is limited to the powers explicitly enumerated. In other words, they argue that Missouri v. Holland was wrongly decided. In addition to citing federalism concerns, they point out that the Necessary and Proper Clause, when read with the Treaty Clause, gives power only to assist in the “making” of treaties, not carrying them out. So Congress may fund a negotiating team, but may not pass a law to enforce of the terms of treaty unless the law is otherwise authorized in the Constitution’s enumeration.
As a free market conservative, I find this argument appealing. Unfortunately, it is not convincing.
First, it seems to be an overly-restrictive reading of the Constitution’s language: surely the power to “make” a treaty on a particular topic implies an enforceable promise to carry it out. For example, the ability to acquire and cede territory has always been incident to the power to make treaties. Yet the power to acquire and cede territory is not otherwise enumerated in the Constitution. Does that mean that when we acquired Hawaii by treaty Congress could adopt no law to carry out the annexation? Some people point out that Thomas Jefferson thought a constitutional amendment necessary for acquiring territory. But he was clearly wrong about this: Jefferson was a very great man, but for reasons I discuss in my book, The Original Constitution: What It Actually Said and Meant, he was not a particularly reliable source of constitutional meaning (partly because was in France during the ratification debates).
Second, besides granting power to assisting the President to “make” treaties, the Constitution also grants Congress power to execute them. Specifically, the Constitution grants Congress authority “To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government . . . or in any Department or Officer thereof.” Among those “other Powers” is the authority of the President to “take Care that the Laws be faithfully executed.” The Constitution adds that treaties, like the Constitution and statutes, are the “supreme Law of the Land.” So the text rather clearly authorizes Congress to pass statutes to enforce treaties. And it does not limit enforcement to enumerated powers. In fact, treaty enforcement is an enumerated power.
Finally, there is considerable evidence that the Founders themselves understood the treaty power to be a potential source of authority for Congress in addition to the items otherwise enumerated. They got this understanding from history, international law, and events they had witnessed themselves.
To cite only two illustrations of the evidence: (1) The Virginia ratifying convention featured extensive discussion of the power to acquire and cede territory incident to treaties, a power not otherwise enumerated, and (2) the Confederation Congress had ratified a treaty which potentially restricted religious freedom. (The First Amendment was passed in part to prevent this from happening again.) And those are only two illustrations. For more, see The Original Constitution: What It Actually Said and Meant.
There are limits, however: In acting under the Necessary and Proper Clause, Congress is executing only incidental powers—in other words, powers subordinate to those granted in the Constitution and tied to them by custom or necessity. So Congress’s authority to execute treaties would not extend to altering the entire federal system. Congress could not, pursuant to a treaty with Luxembourg, transfer the entire criminal law from the states to the federal government.
The U.S. is now a party to thousands of existing treaties. Just what Congress can and can’t do under them involves some very difficult questions. The Court dodged those questions in U.S. v. Bond, but will have to address them in the near future. Alternatively, we can adopt a constitutional amendment—such as the amendment suggested many years ago by Senator John W. Bricker of Ohio—clarifying the limits of Congress’s authority.
Since Congress is unlikely to propose an amendment limiting its own power (except for the repeal of Prohibition it has not done so since 1789), a convention of states would be necessary to propose such an amendment for the states to ratify.
After some truly painful reading experiences, I’ve become skeptical of history books written by celebrities.
Lynn Cheney is the wife of former Vice President Dick Cheney and thus our former Second Lady. She certainly counts as a celebrity. I was, therefore, skeptical of her new biography, James Madison: A Life Reconsidered.
But she won me over. She has done a fine job.
I’ve learned in life that people of talent are rarely one-dimensional. This is true of Mrs. Cheney. She was not only Second Lady. She is also is a serious scholar (a Ph.D. from the University of Wisconsin and a fellow at the American Enterprise Institute) and a fine writer: She is a former editor of Washingtonian Magazine, and this is at least her 9th book.
This Madison biography was, moreover, no slapdash job. It took nearly seven years to research and write.
Do I have some quibbles? Yes, a few. But the theme and strengths first.
The traditional rap against James Madison is that although he was a good theoretician and committee worker, he was a weak and shy man and at best a mediocre President. In the latter capacity, it is said, Madison was wobbly (for example, signing a national bank bill after opposing it earlier), and he was an unassertive and incompetent leader during the War of 1812. Mrs. Cheney set out to see if, despite his genius, Madison really was such a bad President and concluded that he was not—that actually he was a rather good one. Her book is thus partly a book of rehabilitation.
Mrs. Cheney was right to doubt the received wisdom. It seems highly unlikely
that anyone who was physically weak and personally diffident could rise to become President of the United States. Mrs. Cheney well demonstrates that Madison was neither. (To be fair, she is not the first to question the popular wisdom.)
Mrs. Cheney avoids slipping into canards so common among people writing on Madison. For example, she recognizes that the Constitutional Convention was called by states in response to the Annapolis Convention rather than by Congress. She implies (although she might have said explicitly) and that nearly all the convention commissioners had authority to propose a new constitution. She also recognizes that Madison did not, as some claim, approve of state nullification as a constitutional remedy; in fact, he thoroughly opposed it.
As for the quality of the writing: It is smooth and well executed and sometimes fun. I found it a very easy read.
Now a few quibbles.
First: Occasionally, although rarely, Mrs. Chaney slips into exaggeration. It would be hard to justify her statement that Jefferson and Madison were “the two greatest minds of the 18th century,” when that century encompassed all or part of the productive lives of men like Isaac Newton, Gottfried Wilhelm von Leibniz, Moses Mendelssohn, Immanuel Kant, and Edmund Burke. At the least, her claim cries out for support.
Second: I found her treatment of Madison’s presidency to be disappointingly brief. Additional treatment would have enabled her to better sustain her thesis. Consider, for example, the claim that Madison vacillated by opposing the first national bank on constitutional grounds (in 1791), and then signing the bill creating the second national bank 25 years later. It would have taken only a few additional sentences to explain that the constitutionality of the bank always had been a very close question and that Madison always had recognized that “liquidation” (clarification) by practice was a perfectly legitimate way of resolving close constitutional questions.
Another example: The book contains considerable evidence that Madison’s Secretary of War, John Armstrong, was indolent, and perhaps incompetent and politically disloyal. It demonstrates that certain military reverses were attributable to Armstrong. But a President is responsible for the repeated failure of his chief subordinates. Assuming Madison’s initial appointment of Armstrong was justified, why did Madison retain Armstrong as long as he did?
But these are, as indicated, but quibbles. I recommend the book to anyone interested in the Constitution and the early Republic. Mrs. Cheney deserves to sell a ton of copies. I hope she does.
I applaud the result of the recess appointments case and I am happy to have been cited again in a Supreme Court opinion (this time by Justice Scalia). But in several respects the case exemplifies what is wrong with constitutional jurisprudence today.
In National Labor Relations Board v. Noel Canning, the Court was unanimous in holding that certain presidential appointments to the National Labor Relations Board did not qualify as proper recess appointments. But it otherwise split 5-4, with Justice Breyer writing the majority opinion and Justice Scalia the concurrence.
The majority opinion addressed three issues: (1) whether the constitutional phrase “the Recess” could apply to short breaks in the middle of a session, (2) whether to “happen” during a recess the vacancy had to arise during the recess or whether it could be a carry-over vacancy from earlier, and (3) whether the Senate was in session or recess for constitutional purposes when it carried out nominal “pro forma” sessions.
To decide the case as the majority needed to, it was necessary only to conclude as the majority ultimately did: the rules of the Senate control its own sessions. In the normal course of legislative proceeding, if the Senate says it is in session, then the Senate is in session. So there could be no recess appointment.
Yet the majority first dealt unnecessarily with the other two issues. Courts are not supposed to pontificate on legal issues unnecessarily.
That was the first problem. The second problem was that the Court relied almost exclusively on post-ratification evidence to determine the meaning of “the Recess” and “happen.” That is reading history backwards. Post-Founding events are rarely reliable guides to Founding-Era meaning because post-Founding events hadn’t happened yet. Duh. Yet the Court, like many legal writers, repeatedly resorts to events that could not have been part of the ratification-era understanding because they were years, even decades, in the future.
To be sure, you can justify considering later practice when the Founding-Era meaning is truly ambiguous. (This is sometimes called “liquidation,” which means “clarification.”) But in this instance, the Founding-Era meaning certainly is not ambiguous.
The third problem was that the majority simply ignored the tidal-force of the evidence on the meaning of “the Recess” and “happen.” Beyond reasonable doubt, “the Recess” as the Constitution uses the term means only the intersession recess. Beyond reasonable doubt, “happen” means “occur,” “arise.” It does not mean “continue.” By the way, Justice Breyer downplayed some of this evidence by claiming that the Founders didn’t know of intra-session breaks (other than the formal “the Recess”), but this is inaccurate.
The fourth problem is that the majority adopted what it called a “functional” balancing-type test to determine what intra-session breaks did and did not qualify as “the Recess.” Justice Breyer distinguished this from what he disparagingly called a “formalistic” approach. Thus, he told us that three days was too short to be “the Recess,” that there was a “presumption” that less than 10 days was too short, etc. He left the details to be balanced over and over again, perhaps interminably, in future litigation.
Justice Breyer is a very bright man (a former Harvard law professor), and in his constitutional opinions he resorts a great deal to such “functional” and “balancing” tests. At some point, though, he should understand that constitutions and laws are written mostly for people not smart enough to teach at Harvard. We need bright lines. We need formalism. All indications are that in the Recess Appointments Clause, as in most other constitutional provisions, formalism is what the Founders intended we should have. It is what the American people adopted. That means in interpreting a phrase like “the Recess of the Senate” as it applies to a legislative body, we should construe it consistently with contemporaneous legislative practice.
(Interestingly enough, in deciding that pro forma sessions were sufficient to break up recesses, Justice Breyer did return to formalism.)
Also, a quibble with the concurrence: Justice Scalia’s opinion understated the force of the argument on the meaning of “happen.” I provided numerous examples in the second part of the article he cited earlier in his opinion, but for some reason Scalia’s concurrence didn’t pick up on them. Instead, he got bogged down reading history backwards — reciting mostly occurrences from after the Founding.
Since the Court’s misinterpretation of “the Recess” and “happen” were unnecessary to the result, they should be treated as pure dicta, and therefore not binding on future Courts. A panel of future justices, less clever but wiser, can then more readily correct the error.
Well over a hundred state lawmakers from 33 states met this past week to plan for an Article V “Convention for Proposing Amendments.” Most attendees had been appointed officially as delegates by the leaders of their respective state legislatures.
The highly successful meeting dealt with such issues as convention rules and procedures, how to involve more legislatures in the process and how Congress should count applications. A key committee decided that, as with all prior interstate conventions, any Article V gathering should be conduced on the “one state/one vote” principle. The committee also decided that the basic source for convention rules would be Mason’s Manual, a familiar source now used by 70 of the 99 state legislative bodies (99 because there are two legislative chambers in 49 states each and one in Nebraska).
This was the second meeting of this group, formerly called the Mt. Vernon Assembly, but now the Assembly of State Legislatures. The effort is strictly bipartisan, and no special interest contributions are accepted.
A highlight of the proceedings came when the general session of the Assembly held its first rollcall vote—by states! The counting process was a little ragged the first time, but smoother the second. It was an electric moment. One member said later, “I was thinking, ‘Wow, this is really how it’s going to be!’”
Among those to be credited with conceiving and leading the Assembly are Rep. Chris Kapenga (Wisc.), Sen. David Long (Ind.), and Rep. Gary Banz (Okl.) The presiding officer for the general sessions was Rep. Matt Huffman (Ohio).
The Results Are In: The Obamacare “Penalty” Didn’t Violate the Origination Clause, but Obamacare’s Regulations Did
Filed under: All Postings, ObamaCare, The Founding, supreme court
Is the penalty for not buying insurance in the Affordable Care Act (ACA—Obamacare) unconstitutional as a “tax” that originated in the Senate?
Under the Constitution’s Origination Clause, the answer appears to be “no”—the Senate’s decision to add the penalty to the underlying bill was not a violation of that Clause. But under the same provision, most of the remainder of Obamacare may be unconstitutional.
As I reported in February, I have been involved in a multi-month study into the meaning of the Constitution’s Origination Clause and its implications for the ACA. The Origination Clause is the Constitution’s rule that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” My project was provoked by several federal lawsuits that claimed that because (1) the Supreme Court has held that the penalty for not buying insurance is a “tax,” and (2) the ACA law really originated in the Senate, therefore (3) the penalty was unconstitutionally adopted.
Here’s how the ACA became law: First, the House of Representatives passed H.R. 3590, a bill to expand a tax credit and force certain corporations to pay income taxes earlier than previously required. When H.R. 3590 went to the Senate, that body “amended” it to delete all six pages in the bill and insert the 2076-page ACA. This amendment “in the nature of a substitute” included not only the penalty for failing to purchase insurance, but a mass of other new taxes, appropriations, and regulations. The Senate then adopted the revised H.R. 3590 and sent it back to the House, which passed it.
Many people instinctively react against this procedure, but instinctive reaction is not the same as constitutional law. My job was to reconstruct the actual meaning of the Origination Clause, not expound what I would like it to mean. I therefore reviewed the debates over the Clause at the Constitutional Convention and in the ensuing ratification contest. I then turned to 18th century legislative vocabulary, procedures, and practice. This required reviewing 50 years of British parliamentary records; examining several decades of legislative records in 14 American colonies and states; consulting 18th century treatises and other writings; and reviewing the records of the Continental Congress (1774-81), the Confederation Congress (1781-89), and the First Federal Congress (1789-91). Here is what I learned:
* Any measure that alters the tax code to raise or reduce revenue is a “Bill for raising Revenue.” Another way to state it is that any law that can be justified only by the Taxation Clause (I-8-1) rather than by some other enumerated power is a “Bill for raising Revenue.” Thus, the original H.R. 3590 qualified as a “Bill for raising Revenue” as the Constitution uses the term, even though it was revenue-neutral or revenue-negative.
* The Constitution permits the Senate to adopt “Amendments” to “Bills for raising Revenue.”
* The Senate’s “Amendment” of H.R. 3590 was what is called a “complete substitute.” I could find no precedents for complete substitutes in British parliamentary practice, but they did exist in early American practice.
* The constitutional term “Amendments” is broad, but not unlimited in scope. As the Founders used the word, an “amendment” might make virtually any kind of alteration in the underlying bill, BUT it had to address the same subject matter as the underlying bill. This rule also applied to amendments that, like H.R. 3590, were complete substitutes.
* For constitutional purposes, all tax/revenue measures are deemed to address the same subject as all other tax/revenue measures. So even an amendment (or substitute) that completely changes the taxes in the underlying bill is a valid amendment.
* Given the Supreme Court’s decision that the penalty for not buying insurance is a “tax” (a decision that was erroneous, but is now settled law) the Senate was within the rightful scope of its amendment power by adding the penalty and other taxes to the original H.R. 3950.
* However, the original H.R. 3590 addressed only taxes. The House could have added appropriations or regulations, but it did not. The Senate not only added the penalty/tax. It also inserted appropriations for various purposes and regulations on health care providers, employers, and insurance companies.
*The added regulations did NOT address the same subject (revenue) as the underlying H.R. 3590. It was therefore outside the amendment power of the Senate to add those regulations. From an originalist point of view, those regulations are void as never properly enacted, even though the House voted for them.
* This is true even though the Senate could have originated the regulations itself in a separate bill. When amending a revenue bill, the Senate does not have power as broad as it does when originating its own (non-revenue) bills.
* In addition, the Senate inserted appropriations into H.R. 3590. These probably was also outside the Senate’s amendment power.
A court constrained by the Supreme Court’s Obamacare decision, but otherwise applying the Constitution’s original meaning, should rule as follows: It should uphold the ACA’s taxes, including the penalty for not buying insurance, but strike down the regulations and appropriations in the law.