Filed under: All Postings, ObamaCare, The Founding, supreme court
But if a “conservative” justice is one who consistently interprets the Constitution in accordance with traditional methods of judging—as the Founders intended for it to be interpreted—then the Court is anything but conservative.
On social issues the Court has been pushing society to the Left. Otherwise, the best description of its jurisprudence is “status quo.” And in this instance, preserving the status quo renders the Court liberal, not conservative.
That is because the status quo the justices are preserving is a body of liberal jurisprudence created in the 20th century when the Court was usually controlled by “progressive” majorities.
The Court’s tendency to protect liberal jurisprudence appears even in cases where the specific outcomes are pleasing to conservatives. In fact, the “conservative” outcomes often are relatively marginal—minor victories—while the jurisprudence that underlies the result is a major triumph for liberals.
Three cases from the Supreme Court term illustrate the point.
The first is the famous Hobby Lobby case, in which the Court ruled that the Religious Freedom Restoration Act (RFRA) protects an employer’s right not to provide abortifacients. I have written elsewhere about a liberal victory in Hobby Lobby that received almost no publicity. But there was another, more important, liberal victory on a point of fundamental principle.
The Hobby Lobby dispute arose from federal regulations of employment and of health insurance purportedly authorized by Congress in the Affordable Care Act (Obamacare). Unlike the “tax” justification for Obamacare’s individual insurance mandate, the supposed constitutional basis for those regulations is Congress’s Commerce Power, contained in the Constitution’s Commerce Clause and Necessary and Proper Clause.
Everyone concedes, at least in theory, that Congress has only the authority the Constitution grants it—Congress’s “enumerated powers.” But properly construed, Congress’s enumerated power to regulate “Commerce” does not encompass employment relations or insurance, except in some peripheral situations. The Supreme Court recognized this consistently for the Constitution’s first 150 years. Indeed, during that time the Court held repeatedly, and unanimously, that most insurance is NOT “Commerce.” It was not until “progressive” justices took control in in the late 1930s and 1940s that the rules changed, and it was not until relatively recently that Congress began systematically to interfere in the insurance market.
A bench consisting of traditional (conservative) justices, therefore, would have held that the Obamacare regulations were outside the federal government’s enumerated powers, and thereby invalid for that reason. Such a court would not have reached the RFRA issue because there was no need to do so.
A second example from the Supreme Court term just past is the campaign finance decision in McCutcheon v. Federal Election Commission. This case invalidated a congressional effort to limit the total amount any person could donate to all candidates combined. The basis for the decision was the Free Speech Clause of the First Amendment. Media outlets have described this case also as a “conservative” triumph.
Yet a truly conservative court would never have reached the First Amendment issue because in presuming to regulate campaigns, Congress again exceeded its enumerated powers. The Constitution does confer on Congress authority to regulate the “Manner of holding [congressional] Elections.” But this constitutional grant does not extend to regulation of campaigns.
The scope of the constitutional grant is quite clear from the historical record, as I explained at length a 2010 article cited last year by Justice Thomas, the only member of the Court who consistently interprets the Constitution in the traditional (”conservative”) manner. Congress’s authority to regulate “the Manner of holding Elections” refers strictly to voting mechanics. For example, Congress may specify whether we vote by open or secret ballot and whether a candidate needs a majority to win or can win by a plurality. But the Constitution leaves regulation of campaigns to state laws governing defamation, corrupt practices, and so forth.
The Supreme Court did not hold that “Manner of Election” included campaigns until a “progressive” majority did so in 1941. The Court’s accompanying opinion was based on little or no inquiry into the real meaning of the constitutional language.
Yet in McCutcheon the justices (and the parties) accepted that suspect holding without question, and proceeded immediately to the First Amendment issue.
The third example from the term just ended is NLRB v. Noel Canning, which unanimously invalidated some of President Obama’s “recess appointments.” The Constitution’s Recess Appointments Clause is an enumerated power of the President that grants him the prerogative, without Senate consent, “to fill up all Vacancies that may happen during the Recess of the Senate.” The Court needed to decide (1) whether the “Recess” meant only the intersession recess or encompassed other breaks as well, and (2) whether for a vacancy to “happen” it had to arise during the recess or could merely continue into a recess.
The Founding-Era record is crystal clear on both questions: A “Recess” means only an intersession break and the vacancy must arise then. A traditional (“conservative”) bench would have so found. And, in fact, four justices did so find—relying on an article I wrote earlier this year that documented the Founders’ understanding at length.
But the majority did not follow the Recess Appointments Clause as the Founders understood it. Rather, it applied a sort of balancing test of the “living constitution” variety. President Obama lost only because he had violated even that flaccid and malleable standard.
The result was a small conservative victory, but at great cost: That cost was a complete revision and a serious weakening of an important constitutional check-and-balance—yet another example of the fundamentally liberal jurisprudence of a Court that many in the national media insist on calling “conservative.”
Filed under: All Postings, The Founding, supreme court
Does that give him authority to utilize our armed forces for a purely non-military purpose like addressing the Ebola outbreak in Africa?
The Denver Post thinks so, editorializing that Obama’s decision is “fully justified.” But the Post doesn’t tackle the constitutional issues.
The Ebola mission, according to the Associated Press, is “to supply medical and logistical support to overwhelmed local health care systems and to boost the number of beds needed to isolate and treat victims of the epidemic.” Our troops will be doing things like handing out home health kits to Africans and building health clinics.
Note that this is different from the armed forces carrying on humanitarian actions as an incident to military operations. When you are fighting an enemy abroad, it makes sense to build hospitals to retain local good will or to care for those injured a result of war.
But we are not engaged in military operations in Africa.
So what does the Constitution have to say?
The Constitution contains no clause specifically prohibiting the president from using the armed forces this way. You might think that such a limit would be inherent in the Constitution’s use of the word “Army.” That is, you might think the word “Army” would be limited to an exclusively military organization. But founding-era dictionaries do not impose that restriction on the term “Army.” As those dictionaries define the word, an “Army” is merely a large number of armed men subject to central leadership. (This, by the way, is one reason the U.S. Air Force is constitutional, even though the Constitution doesn’t refer to it. The Air Force fits within the constitutional meaning of “Army.” Indeed, it was originally the Army Air Service and later the Army Air Corps.)
The operations in Africa sound noble. But the old legal saying is: Hard cases make bad law. In other words, yielding to an innocent-sounding usurpation may create a dangerous precedent. So ask yourself: Does the Constitution allow the president to use the “Army” for any non-military purpose he pleases?
Or maybe you prefer to focus on some narrower examples:
* If the president decides that Argentina does not have sufficient health facilities, may he constitutionally send in the army to open and staff clinics there? (He could take the needed funds from Department of Defense appropriations.)
* Could he make the same decision for Pennsylvania?
* Could he send the army to register voters when there is no accompanying military threat?
* If your answer to the last question is “yes,” then could he focus the army’s registration campaign in states that lean toward his own party? If not, how does this differ constitutionally from the previous example?
* Could he send the military to build a highway in Ohio, if he concluded the highway was necessary for the economy there? Suppose his decision was related to Ohio’s vote in the next election?*
If those examples make you nervous, then your gut is telling you something. The army is not the president’s personal plaything. It is not a generalized work crew the president can order to do whatever he wants done. It is a military instrument, and it is dangerous to allow the president to use it for other purposes.
My guess is that the Constitution does not contain a clause banning the president from using the army for non-military ends only because the framers never imagined that any American president would do so.
Yet it has happened, and it demonstrates a flaw in our political system. For all its strengths, our Constitution contains inadequate protection against a president determined to ignore conventional limits. We have seen this before.
For example, it occurred in World War II, when the president shot at least one American citizen within the continental U.S. without a civilian trial and without habeas corpus, and when he imprisoned tens of thousands of others. (The U.S. Supreme Court failed to stop either action.) We now recognize that these were impermissible constitutional violations, but our repentance didn’t come in time to save the victims.
Once again we are witnessing the exercise of arbitrary executive power—and this time, the president does not even have the excuse of a war. But without a constitutional amendment, we are probably powerless to stop it.
* * * *
* The possibility of political abuse is not far-fetched. This administration’s history of misusing government agencies for political purposes raises the question of whether this operation was triggered in part by a perceived need to rally the heavily-Democratic African-American vote in the coming election. Certainly that is how some pro-Democrat activists are using it. Compare JFK’s pre-election timing of the Cuban missile crisis.
Institute Research Director Dave Kopel has long urged me to do a broadcast production on the Constitution in the Latin language, and now it’s here!
Produced by II web monkey Justin Longo, the program features an interview of me by my daughter Sarah on the American Founding and the nature of the Constitution. Sarah, 23, is a classics major at Willamette University in Salem, Oregon.
I raised all three of my daughters to be bilingual: While they were growing up, my wife spoke exclusively to them in English while I spoke to them exclusively in Latin.
For linguistic wimps, the telecast includes subtitles in English. You can see the program here.
For linguistic jocks: Not even the Romans navigated all of Latin’s grammatical mistakes perfectly. See if you can identify the specific grammatical errors I made in the course of this interview. (Hint: On reviewing the video, I counted four.)
Finally: The pronunciation Sarah and I use is that of “Late Latin.” This is pretty much the same as classical Latin, except that the letter “V” is pronounced as in Italian or English.
Recently when commenting on how Americans view the Founding, an associate of mine observed that in many people’s minds the Founders had become mythological rather than historical figures. That is, many people routinely ascribe ideas and actions—both good and bad, wise and stupid—to them that have little to do with historical reality or even human probability.
A common example: Some commentators who profess to revere the Founders and may even claim they were divinely inspired, nevertheless also insist that they grossly breached their faith in proposing a new Constitution rather than amendments to the Articles of Confederation.
My associate’s observation induced me to recall how ancient Greek and Roman writers portrayed their gods. They frequently portrayed the gods as just, majestic, imperturbable, gracious, and wise. But they also told stories that depicted the gods as wicked, petty, jealous, mean, and stupid. To cite one example: Jupiter (Zeus) was pater deumque hominumque—the father of gods and men, the defender of justice, the guardian of the world. Yet he was also a multiple rapist who turned himself into a bull so as to lure a young girl (Europa) in service of his lascivious plans.
Obviously, such portrayals have nothing to do with historical reality. But they are different only in degree from some portrayals of the Founders.
On the one hand, we need to remember that the Founders—framers, ratifiers, and opinion-molders—were not a passel of hicks who, in the dismissive words of Professor Louis Michael Seidman, “thought it was fine to own slaves.” On the other hand, we need to remember that they were not gods either. They were very wise, educated, and experienced men—and in some cases, such as that of Mercy Otis Warren, women. Nearly all were honorable and believed that slavery was a violation of natural law. Their knowledge of human nature and politics enabled them to erect our system of checks and balances. Their knowledge of history enabled them, to a very great extent, to transcend their own time and circumstances. Their drafting skill enabled them to produce a beautiful document, whose phrases have real meaning—even if, as in the case of the Necessary and Proper Clause, those meanings are often technical in nature.
Yet because they were men, they were fallible, and because they lived in a particular time and set of circumstances, they had to make compromises. One of those, and the one most often used to bash them, was their accommodation with slavery: They were faced with the difficult choice of indulging their belief that slavery was wrong or creating a new form of government that all states might ratify. They chose the latter. It was a nasty choice, but it also was one that helped ensure that America did not become, like Europe, a collection of small countries incessantly warring against each other.
In treating the Founders therefore, we should take them as they were. No hagiography and no demonology, either.
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.