How Much Authority Does Congress Have Under the Treaty Power? The Question the Supreme Court Dodged in Bond v. U.S.

Rob at the Univ. of Montana

Rob at the Univ. of Montana

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.

Book Review: James Madison: A Life Reconsidered, by Lynn Cheney (Viking, 2014)

July 4, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

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

Lynne Cheney

Lynne Cheney

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.

Problems in the Recess Appointments Case (Even though Rob was cited again)

June 29, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

2009 RGN(This article originally appeared in The American Thinker.)

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.

Momentum for an Amendments Convention Accelerates Even More

June 15, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Rob atop St. Paul's Cathedral, London

Rob atop St. Paul's Cathedral, London

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

May 20, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, ObamaCare, The Founding, supreme court 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

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.

You can read the entire study here.

Town of Greece Case Returns the Establishment Clause To Its Original Meaning

May 15, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

Last week I reported on Justice Thomas’ citation of my work in his concurring opinion in Town of Greece v. Galloway, a widely-discussed decision on the Establishment Clause of the First Amendment. This week, I’ll put the decision in context.

The meaning of the Establishment Clause (”Congress shall make no law respecting an establishment of religion”) has long been debated. Here are some of the hypotheses advanced:

* The Founders created a “Christian nation” in which the federal government could promote Christianity.  The Establishment Clause assured, however, that the federal government would not favor any denomination of Christians over any other. This was the view of the great 19th century Supreme Court Justice and law professor Joseph Story.

* The Establishment Clause was adopted principally to protect the states from federal interference with their own established churches. This is Justice Thomas’ view.

* The Establishment Clause was adopted to protect the states from federal interference with their own established churches, but also to require the federal government to treat all religions equally. The Clause did not, however, place atheism or agnosticism on a par with religion. This conclusion is called “non-preferentialism.”

* The Clause not only protected the states from federal interference with their own established churches, but also required the government to treat all religious opinions, including atheism and agnosticism, equally. This formulation is called “neutrality,” and former Justice David Souter was one of its exponents.

* The Clause required the government to lean over backwards to avoid any entanglement or appearance of favoritism for religion. This is called “strict separation.”

There have been various modifications and blending of the views listed above, including a rather incoherent version called “accommodation,” a doctrine followed late in the 20th century by some of the more conservative justices.

Beginning in the 1940s (although with roots earlier), the Supreme Court issued a series of “strict separation” cases and imposed them on the states as well as well as on the federal government.  It soon became evident that strict separation was both impractical and contrary to the actual meaning of the Establishment Clause. Accordingly, in the 1970s the Court began a long journey from strict separation, wandering through “neutrality” and “accomodation,” and toward non-preferentialism.

The Town of Greece case seems to complete this journey. Justice Thomas’ concurrence aside, all the opinions—majority and dissent—are squarely non-preferentialist. All acknowledged that the Town could sponsor prayers before Town Board meetings. The writer of the dissent, Justice Kagan, even affirmed explicitly her support for civic prayer. The only real dispute was over whether the Town had treated all religions fairly when selecting clergy to perform the invocation. The majority thought the Town had been fair, at least on balance. The dissent thought it had unfairly favored Christianity over Judaism and other religions adhered to by citizens of the Town. But that was a dispute over the facts, not over legal doctrine.

Several years ago, I wrote an article for the William and Mary Bill of Rights Journal entitled The Original Meaning of the Establishment Clause. As some other scholars had concluded before me, I found that non-preferentialism was, in fact, the intent of those who adopted the Establishment Clause: both protection of state established churches and equal congressional treatment of all religions.

This conclusion seems to be a little different from that of Justice Thomas: I believe the Clause was, in addition to a protection for federalism, a positive guarantee to all religious believers.  Perhaps this is why Justice Thomas cited my writings on the Necessary and Proper Clause rather than those on the Establishment Clause!

In any event, with the Town of Greece case the Court’s  Establishment Clause jurisprudence returns to the original meaning. Whether that jurisprudence should be imposed on the states is another matter, and Justice Thomas may well be correct that it should not.

That last question involves considering (in my opinion) not the Establishment Clause, but the “incorporation doctrine”—the doctrine by which the Supreme Court imposes nearly all of the Bill of Rights on state governments as well as on the federal government. The incorporation doctrine is a topic for another time.

Rob Natelson Cited Again at Supreme Court—This Time in a Religion Case

May 10, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Rob at the Trevi Fountain in Rome

Rob at the Trevi Fountain in Rome

I’m pleased to report that this past week the brilliant Justice Clarence Thomas cited my work on the Necessary and Proper Clause in his concurring opinion in Town of Greece v. Galloway, an Establishment Clause case that received wide publicity. This was the thirteenth citation in the third Supreme Court case in the past 11 months.

The Establishment Clause is that part of the First Amendment that provides that, “Congress shall make no law respecting an establishment of religion. . . ” The question at issue in the case was whether the Town of Greece (one of many places in upstate New York with classical Roman or Greek names), had violated that clause when it sponsored overwhelmingly Christian prayers at town council meetings.

Despite the language of the Establishment Clause (“Congress shall make no law. . .”), the Court has held for many years that the Clause applies to other branches of the federal government and to the states and all subdivisions of the states, including municipalities. Judicial application of parts of the Bill of Rights to the states is called the Incorporation Doctrine.

The Court ruled, 5-4 that the Town had not violated the Establishment Clause. The dispute between the majority opinion (written by Justice Kennedy) and the dissent (written by Justice Kagan) was more over the facts and the application of the facts than over basic doctrine. More on Establishment Clause jurisprudence next week.

Justice Thomas wrote separately to express his view that the Establishment Clause was designed primarily to protect official state religions (of which there were several at the Founding) from federal interference—in other words that the Establishment Clause was chiefly a protection for federalism, much like the Tenth Amendment. Since it was designed for the protection of the states, he argued, it was improper to apply it against the states. In other words, the Incorporation Doctrine should be used with some other parts of the Bill of Rights, but not with the Establishment Clause.

Justice Thomas cited one of my chapters in a book on the Necessary and Proper Clause which I wrote with Professors Gary Lawson, Geoffrey Miller, and Guy Seidman, and which was published by Cambridge University Press in 2010.  The portion he cited discussed how opponents of the Constitution feared that the Necessary and Proper Clause would be abused by the federal government. Justice Thomas pointed out that the Establishment Clause, like the rest of the Bill of Rights, was adopted in part to block over-use of the Necessary and Proper Clause.

While I’m skeptical about the validity of the Incorporation Doctrine generally, I’m not sure that Justice Thomas is correct to read the Establishment Clause so narrowly. More on Establishment Clause doctrine and the significance  of the Town of Greece case next week.

Get Members of Congress Out of the Business of Rigging Campaign Rules

May 4, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

The Supreme Court’s latest campaign finance decision, McCutcheon v. FEC, has sent up the predictable howls. In McCutcheon, the Court struck down, as violating the First Amendment, certain incumbent-protection rules that Members of Congress had rigged for their own election campaigns.

But no one—including the Court—has yet convincingly addressed a question even more fundamental than the First Amendment issue: On what constitutional basis does Congress have power to regulate federal campaigns at all?

Remember: The Constitution grants the federal government only enumerated powers. If Congress has acted under one of those powers, then First Amendment implications can be important. But if Congress has acted outside its enumerated powers, then the rules of jurisprudence require the courts to void the action without reaching the First Amendment issue.

And, in fact, a careful review of the Constitution and its background demonstrates that regulation of campaigns for federal office is within the state, not the federal, sphere.

The only constitutional authority even remotely applicable to congressional regulation of federal campaigns is the clause the Supreme Court has relied on: Article I, Section 4, Clause 1, the “Times, Places and Manner” Clause—sometimes mislabeled the Elections Clause. It provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

The first notable aspect about this provision is what it doesn’t say: It grants power to regulate the “Times, Places and Manner of holding Elections for Senators and Representatives,” but says nothing about presidential elections. And with good reason: the “Manner of holding” presidential elections is treated in Article II, where the “place and manner” rules are laid out in some detail and Congress is given some limited authority over the “time” of the election and the counting of electoral votes. All other power over the choice of presidential electors is explicitly left to the state legislatures (”Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .”). This is simply not an area for Congress.

The second notable aspect of the Times, Places and Manner Clause is that addresses the “Manner of holding Elections,” but says nothing about campaigns. In the Founders’ understanding, they were different areas of law.

In a 2010 article for the University of Pennsylvania Journal of Constitutional Law, I surveyed what the Founders meant when they referred to regulation of the “manner” of election. (Justice Thomas cited this article in a case last term.) Such regulation did not cover campaigns at all, unless election-day bribery be considered a form of “campaigning.” Rather, regulating the “manner” of election meant determining the rules of the vote: Whether candidates were chosen by a plurality or majority, the rules of voter registration, whether the ballot was secret or vice voce, how votes were tabulated, and so forth—the same kind of detail set forth in Article II for presidential elections.

In the Founders’ understanding, the regulation of the “manner of election” and the governance of campaigns were distinct areas of law. The latter area included rules against corrupt practices and defamation, and the Constitution left those topics to the states to govern. There is no evidence—none—that the Times, Places and Manner Clause was designed to empower Congress to regulate its own campaigns.

Quite the contrary: As believers in the “public trust” theory of government, the Founders were keen to avoid the conflicts of interest that congressional regulation of federal campaigns would entail. In fact, even the very limited authority granted to Congress by the Times, Places and Manner Clause was controversial. Admirers as well as opponents of the Constitution criticized it.

In one respect, advocates of stricter regulation are correct: Because the Court has extended its First Amendment jurisprudence so tightly over state election laws and state defamation laws, the Court has impeded the states’ ability to experiment with different formulas so as to learn what works best. Perhaps the Court should lighten up in that area, while keeping Congress and the President out of the business of regulating federal campaigns.

One last note: A few advocates of greater congressional power over federal campaigns have cited my writings on public trust to argue that campaign finance laws promote fiduciary responsibility.

But a fundamental rule of fiduciary responsibility is avoiding conflict of interest. For members of Congress to pass laws restricting their opponents’ campaigns is a huge conflict of interest. That’s one reason the Constitution leaves governance of federal campaigns to the states.

Ownership of Federal Land: Answers Suggested by the Bundy Standoff

April 25, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

2013-0822 RGN The Bundy stand-off in Nevada has induced several people to ask me about the extent to which the federal government can own land, at least under the Constitution’s intended meaning. As it happens, in 2005 I studied the issue in depth, and published the following article: Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005).

In a nutshell, here’s what I found:

(1) Most commentators on the issue have staked out one of two polar positions. One position, which is current U.S. Supreme Court doctrine, is that the federal government may acquire and own any land it wishes for any governmental purpose, not just for its enumerated powers. The other polar position is that the federal government may own land only for the purposes enumerated in the Enclave Clause (the national capital and “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”) and that the “equal footing doctrine” requires that all other federal land within a prospective state be handed over the state government upon statehood.

(2) In fact, both polar positions are false—and very clearly so. This shines through when you study the Constitution’s text, meaning, and background. By “background,” I mean its drafting history, the ratification debates, 18th century law, and so forth. However the constitutional text alone should be sufficient to cast both polar claims into doubt. The text of the Constitution grants the federal government no plenary power to hold land, only to dispose. A general power to hold is just not in there. The second polar position is also contradicted by the text: The equal footing doctrine is not there either. (It was a feature of certain pre-constitutional documents, such as the Northwest Ordinance.)

(3) The Constitution grants the federal government authority to acquire real estate and other property to carry out any enumerated purpose, either in the exercise of a core power (such as “maintain a Navy”) or through the implied powers memorialized in the Necessary and Proper Clause. Thus, Congress may acquire land to build “post Roads” (limited access highways), house tax collectors, and build lighthouses under the Commerce Power.

(4) Further, the Constitution’s Treaty Power authorizes the federal government to acquire territory.

(5) However, land acquired—through, for example, the Treaty Power—may be held only for enumerated purposes. Land not needed for such purposes must be disposed of within a reasonable time. The federal government should have disposed of BLM grazing land long ago.

(6) In fact, for the federal government to own a large share of American real estate (currently about 28 percent) is directly contrary to certain values the Constitution was designed to further.

(7) “Disposal” does not require handing real estate over to state government. On the contrary, in many situations doing so would conflict with federal officials’ duties of trust. In each instance, disposal should be effectuated so as to further the general welfare. In the case of some parcels, it may mean transferring to state government. But it may also require selling to the highest bidder, or, in the case of environmentally sensitive lands, transferring to perpetual environmental trusts, as is commonly done in England.

(8) The Enclave Clause (Article I, Section 8, Clause 17) is really more about governmental jurisdiction than ownership. The federal government can have an enclave in which much of the territory is titled to private parties—as is true of Washington, D.C. It’s just that in an enclave, federal rather than state jurisdiction is supreme. Enclaves may be held only for enumerated purposes (as signaled by the use of the 18th century legal term “needful”). State consent to creation of an enclave is required, and consent can be conditional upon the federal government honoring particular terms.

(9) The Enclave Clause was sold to the ratifying public on the basis that enclaves would be relatively small. Holding massive tracts of undeveloped land (such as in Yosemite National Park, nearly 750,000 acres) as enclaves is not what the Founders had in mind.

(10) This is signaled by the Constitution’s use of the word “Building.” In the 18th century, the term did not have to mean an enclosed space, but it did have to refer to a fabricated construction of some kind, since as a dockyard or (in modern terms) an airport runway.

(11) But not every parcel of federal land need be an enclave: In fact, most are not and should not be. Non-enclave land owned by the federal government is held under the Property Clause (Article IV, Section 3, Clause 2), and should be held only for enumerated purposes. Grazing, for example, is not an enumerated purpose.

(12) Non-enclave federal property within states is subject to state law. Contrary to current Supreme Court doctrine, when the federal government owns non-enclave land, the federal government usually should be treated like any other landowner, so long as the state respects the discharge of legitimate federal functions.

The Evidence Continues to Pile Up on “Recess Appointments”

April 18, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding 

2013-0822 RGN Earlier this year, the Harvard Journal of Law and Public Policy published my article showing that the Constitution’s Recess Appointments Clause limits presidential vacancy appointments far more than President Obama (and most prior Presidents) have claimed. I posted earlier on the same subject here.

The issue is before the Supreme Court right now.

The Recess Appointments Clause states in part that, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate. . . ” In preparing the article I examined a wide range of Founding-Era documents, including early state constitutions and legislative records, to determine when a vacancy “happens” and what the Founders meant by “the Recess” of a legislative body. I learned that a vacancy “happens” only when it is created. Thus, for the President to fill a vacancy, it must have been created during the Recess, not merely continue into it.

I also learned that, while the simple noun “recess” could refer to any legislative break, the phrase “the Recess” referred only to the period between formal legislative sessions.

Another project has kept me in early American legislative documents, and new discoveries continue to confirm that “the Recess” meant only the break between sessions.

For example, I was able to obtain a copy of the hard-to-get 1784 journal of the Massachusetts House of Representatives. It contains a message from Governor John Hancock specifically referring to the time between the sessions as “the recess.” Early Maryland legislative records similarly contain repeated references to a prior or approaching period between sessions as “the recess.”

The same story recurs in New Jersey. A September 10, 1776 legislative committee report from that state clearly distinguished between the “Session” and “the Recess.”  A  May 19, 1786 report of the Governor, issued two days after the session began, provided the legislature with correspondence the governor had received during “the Recess of the House.” And a Nov. 30, 1789 resolution authorized the city mayor to take control of legislative property “during the recess of the Legislature”—that is, not during short breaks but when lawmakers went home at the end of their session.

Finally, page 147 of another hard-to-get source (the 1776 journals of the South Carolina lower house) reproduces a legislative resolution ordering that a report “be referred to the Committee on the state of the Treasury to consider and report to the House proper ways and means of supplying the Treasury in the recess of the House with such monies as may be immediately wanted for public service…” Obviously, there would be no need to do this if “the recess” referred to anything but the lengthy intersession break, because during shorter breaks lawmakers were in the capital city and available to appropriate funds if necessary.

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