Sen. Feinstein: ‘The Constitution Lives Loudly Within This One’
Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez…
View more of Michael Ramirez’s cartoons on CFIF’s website here.
Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez…
View more of Michael Ramirez’s cartoons on CFIF’s website here.
Alongside other conservative and libertarian organizations, we at CFIF have been highlighting the clear and present danger of Nancy Pelosi’s (D – California) proposed healthcare legislation H.R. 3 in letters to Congress and commentaries.
Pelosi’s bill includes an astonishing 95% tax on total pharmaceutical sales – not on profits, but sales – for private companies that don’t play ball to Pelosi’s satisfaction. Her proposal would also impose foreign price controls, completely restructure the popular Medicare Part D program, and create a compulsory arbitration mechanism overseen by government bureaucrats… Pelosi’s legislation would jeopardize nearly $1 trillion in U.S. pharmaceutical investment, undermine patent protections, suffocate drug innovation and ultimately punish consumers. That’s far too high a price to pay, and responsible members of Congress must therefore stop Pelosi’s bill in its tracks.”
Now, a new nonpartisan Congressional legal analysis suggests that it’s also likely unconstitutional. In fact, the report cites three separate provisions of the Constitution that Pelosi’s effort to commandeer Americans’ healthcare choices under federal bureaucrats’ control:
The Program created by Title I raises a number of legal considerations. First, because the negotiation under the Program is intended to lower the prices manufacturers can charge for certain selected, single-source drugs, the Takings Clause of the Fifth Amendment may be implicated. Second, the Program’s enforcement mechanisms – the excise tax and civil monetary penalties – may raise questions relating to the scope of Congress’s taxing power and the Excessive Fines Clause of the Eighth Amendment. Third, the Program’s limitation on judicial review may prompt questions regarding Congress’s powers to limit the subject matter jurisdiction of Article III courts. Finally, in setting forth the parameters of the Program, the language of Title I may implicate certain statutory interpretation questions.”
There’s reason enough for Congress to resolutely reject Pelosi’s H.R. 3 due to the negative impact that her proposal would inflict upon Americans’ healthcare, our world-leading pharmaceutical innovators and our healthcare industry more broadly. The fact that it’s likely unconstitutional offers another reason to avoid the protracted sort of legal battles that would ensue, so that Congress can work toward solutions that actually improve American healthcare, like stronger patent protections and free-market principles.
Writing in the Pensacola News Journal, WEBY 1330 radio host Mike Bates offers potent commentary regarding Florida’s new Second Amendment restrictions:
Although well intended, the law’s exemption that permits 18- to 20-year-old military personnel to buy firearms is an outrageous provision. Does the government of Florida really believe that military personnel deserve special constitutional rights that are denied to civilians? Should constitutional rights be earned through military service and denied to those who do not serve? That’s what the new Florida law does.”
He concludes with a stirring call to action and citizen involvement:
If we are not steadfast in defense of our liberties, the politicians and judges will destroy our constitutional rights. It won’t occur through outright repeals; it will happen by rendering our rights meaningless through unconstitutional laws and court rulings. It is an obligation of all decent citizens to prevent that. The government of Florida has already shown it will not. It’s disgraceful.”
Read the entire piece here.
The Des Moines Register reports:
U.S. Sen. Marco Rubio is endorsing a Convention of States to amend the U.S. Constitution, saying it’s the only way to impose term limits on Congress and the U.S. Supreme Court and to require a balanced federal budget. . . .
. . . Rubio told reporters later he has been studying “very carefully” the Convention of States concept to amend the U.S. Constitution and that his former Senate colleague, Republican Tom Coburn of Oklahoma, is an advocate for the initiative.
“It is something we feel very positive about. I think it is the only way that you are ever going to get term limits, and the only way that you are ever going to get a balanced budget amendment,” Rubio added.
Asked if he had concerns about opening up the Constitution to a convention, Rubio remarked, “I think you would have to limit the convention, and that is what they are proposing: a very limited convention on specific delineated issues that they would talk about — like term limits and a balanced budget amendment.”
Approval from 34 states is required for a Convention of States to proceed, and any amendments would need to be ratified by 38 states to become part of the Constitution.
A few observations/words of caution:
It is pretty clear, though, that through lifetime appointments, the Founders wanted to shield judges from the political pressures of the day. But an excellent byproduct of having ancient, long-serving justices is that they are far more likely to be impervious to . . . fleeting populist bugaboos and contemporary preferences . . . . This should be about the long game.
Sen. Rubio says he’s given this idea a great deal of thought. He might do well to spend some time with the original Federalist just the same.
In an interview with CFIF, Professor John Eastman, the Henry Salvatori Professor of Law & Community Service at Chapman University and Founding Director of the Constitutional Jurisprudence Clinic, discusses whether Ted Cruz can serve as president if he was born in Canada and the Texas immigration case challenging President Obama’s Executive Fiat.
Listen to the interview here.
If the Obama administration thinks U.S. Senator Tom Cotton’s (R-AR) letter is a threat to their negotiations with Iran, they should consider the actions of the late Jesse Helms.
Helms (R-NC) was the chairman of the Senate Foreign Relations Committee during the latter part of the Clinton presidency and made no bones about attempts to circumvent Congress so the White House could claim a big foreign policy headline.
In an op-ed published the day Clinton was to engage in talks with Vladimir Putin about reducing missile defense capabilities, Helms declared, “After dragging his feet on missile defense for nearly eight years, Mr. Clinton now fervently hopes that he will be permitted, in his final months in office, to tie the hands of the next President.”
Helms would have none of it. “Well I, for one, have a message for the President: Not on my watch. Let’s be clear, to avoid any misunderstandings: Any modified ABM treaty negotiated by this administration will be dead-on-arrival at the Senate Foreign Relations Committee… The Russian government should not be under any illusions whatsoever that any commitments made by this lame-duck Administration, will be binding on the next administration.”
And with that, the talks dissolved.
In this context, Cotton’s letter is tame by comparison. Which isn’t to say that it lacks verve and importance. Cotton and the forty-six other Senators who educated the Iranian leadership on the limitations of Obama’s go-it-alone strategy are guarding against the misimpression that Obama’s dealmaking lasts any longer than his hold on office.
What Helms and Cotton have in common is a clear-eyed view of constitutional procedure, and the difference it makes when shunted aside. If Obama wants a legacy pact with Iran, he can’t do it on the cheap. Congress – and specifically the Senate – needs to be consulted, the sooner the better.
A federal district judge has said that President Barack Obama’s amnesty program for illegal immigrants violates the U.S. Constitution.
The only question: Does it matter?
Judge Arthur Schwab, a George W. Bush appointee, issued a ruling yesterday saying that, “President Obama’s executive action goes beyond prosecutorial discretion because: (a) it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination; and (b) it allows undocumented immigrants, who fall within these broad categories, to obtain substantive rights.”
Unfortunately, however, Judge Schwab’s declaration may be little more than a non-binding advisory opinion. According to conservative law professor Jonathan Adler – one of the originators of the ObamaCare subsidies challenge now before the U.S. Supreme Court – Schwab’s ruling came after he requested supplemental briefing in a case trying to decide how to sentence an illegal immigrant for a non-immigration-related crime. Apparently, Schwab wanted to know if the defendant qualified for protection from deportation under Obama’s plan. Schwab then used the occasion to find the amnesty program unconstitutional.
While legal experts like Adler try to figure out how much to make of this opinion, Schwab’s ruling points to a larger issue. Namely, that major policy changes have major policy implications. For example, legal immigrants are finding out that creating exceptions for illegals increases the costs on the law-abiding.
Time will tell if Obama’s amnesty program has a negative impact on the federal court system as well.
Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.
View more of Michael Ramirez’s cartoons on CFIF’s website here.
Two years ago President Barack Obama decided to appoint three new members to the National Labor Relations Board, even though none of them could clear the U.S. Senate.
Blocked from getting what he wanted, President Obama installed the nominees anyway, arguing that the Senate was on recess; a move allowed under the U.S. Constitution’s Recess Appointments Clause.
There was just one little problem. The Senate had not recessed.
Republicans in the chamber anticipated Obama’s move and negotiated an agreement with majority Democrats to keep the Senate open every three days during the Christmas and New Year’s break in order to conduct business. Thus, as far as the Senate’s own records are concerned, the body never went on recess. By refusing to give its consent, the chamber, in effect, told Obama to nominate three new people.
He declined.
The fight now is before the Supreme Court, which today heard oral arguments from the Obama administration and counsel representing 45 members of the Senate Republican caucus, among others.
While there are a host of arcane and at times interesting constitutional questions to consider this particular case boils down to whether the Court thinks the President or the Senate has the final say as to when the Senate is in session.
The answer should seem obvious, but don’t underestimate the Court’s ability to choose wrongly.
Victory for President Obama in this suit would be a body blow to the Constitution. The Senate’s ‘advise and consent’ role is designed to ensure that only those qualified for high governmental service actually serve in such posts. Yes, the confirmation process is political, but that’s the name of the game when one is a political appointee. Sometimes you lose.
Once again, we have an instance where President Obama, unwilling to compromise, is trying to impose his will by fiat, constitutional processes be damned.
The Court’s ruling is expected in late June. For the good of the republic, it should find a way to rein in an out-of-control executive.
It’s sad commentary on our current political state that the Obama Administration must be reminded that the Senate has to actually be in recess for it to attempt a “recess” appointment. One would expect a former law professor to possess a better working knowledge of the Constitution, but alas.
In a welcome and important ruling this morning, the U.S. Court of Appeals for the D.C. Circuit – effectively the nation’s second-highest court – held that the Obama Administration acted illegally when it attempted to place three new members on the National Labor Relations Board (NLRB) without Senate consent. Under Article II, Section 2 of the U.S. Constitution, a President may appoint “Officers of the United States” subject to “Advice and Consent of the Senate.” It adds, however, that, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
Here’s the problem. In a scheme to avoid confirmation hearings and votes, Obama attempted to place three members on the NLRB while “the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012.” Thus, the Senate wasn’t in “recess.” In fact, other acts by the Obama Administration acknowledge that fact. As just one example, that period is when the reduced payroll tax was extended with Obama’s approval.
Accordingly, the Court didn’t take kindly to Obama’s maneuver:
An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”
This is a humiliating rebuke for Obama, and it invalidates all NLRB actions dependent upon those illegal appointments. Moreover, it effectively invalidates actions by other administrative agencies similarly dependent upon such appointments. The concept of “a nation of laws, and not of men” has been vindicated today.
Here at CFIF we’ve promoted the idea of a Balanced Budget Amendment to the U.S. Constitution that would require Congress to pass balanced budgets every year with certain 60 percent supermajority thresholds for raising taxes or the debt ceiling.
The idea comes with a stellar pedigree since conservative icons like Ronald Reagan, Jack Kemp, and the Contract with America all supported various Balanced Budget Amendments.
Alas, the BBA has yet to become law, and with the current lineup of liberals running the U.S. Senate and White House, it will be awhile before such an idea can be seriously discussed in Washington.
That said, Byron York says that Republicans might have an opening in the coming fight over raising the debt ceiling to get closer to a balanced budget; albeit by amending a statute, not the Constitution.
On its face, the Congressional Budget Act of 1974 sets out a clear deadline for passing a budget by April 15 every year. The problem, however, is that there is no enforcement mechanism to punish Congress if it fails to do so. With Harry Reid (D-NV) and Senate Democrats failing to pass a budget for the last 1,351 days as of today, the budget law’s impotency is on full display.
York reports:
“The law doesn’t have teeth,” says a Senate aide involved in the fight. “Sen. Sessions and others have proposed process reforms to give the budget law teeth (one reform would make it harder to pass spending bills without a budget), but the debt ceiling is the strongest leverage we have on this. This is the opportunity.”
In other words, it is precisely because the budget law has no enforcement provision that Republicans believe they need some other form of leverage, in this case the debt ceiling deadline, to force Reid and his fellow Democrats to move. In addition, whatever happens in the debt ceiling standoff, it seems clear that the original budget law should be amended to include some sort of enforcement method.
This strategy strikes me as a great way to get real value in return for raising the nation’s debt ceiling. Imagine how much different Obama’s first term would have been if instead of ignoring the House Republicans’ Paul Ryan-inspired budgets, the President and Senate Democrats had to negotiate its terms up against a hard deadline. Liberals would have been forced to debate conservatives on specifics instead of substituting scare tactics for policy.
So far, Republicans have said they want entitlement reform in exchange for upping the ceiling, and for good reason since spending on Social Security, Medicare, and Medicaid alone account for about 44 percent of the federal budget (other entitlements push the total to 62 percent). Moreover, since entitlement spending is not discretionary, meaning it isn’t determined in the normal appropriations process but by eligibility formulas, reining in federal spending will require statutory changes that can only be gotten when the stakes are very high.
But if York is right, then Republican strategists would be wise to include changes to the Congressional Budget Act along with spending reforms to entitlements. Winning both would improve the nation’s long-term fiscal outlook by helping conservatives change the way Washington does business.
This is the opening salvo, predictably enough from the New York Times. This is by a constitutional law professor who argues that some provisions of the Constitution are downright “evil.” He says we should just scrap the whole thing. I think this view is far more common on the Left, and in the White House and upper echelons of the Justice Department, than the liberals will yet publicly admit. But expect this meme to grow. This is dangerous. These people are dangerous. They must be argued down, with energy and right reason.
The Washington Times captures a revealing back-and-forth between an Obama Justice Department lawyer and a conservative D.C. Circuit appeals judge over whether the text of the Constitution or court precedent should decide when the President can make recess appointments:
“Once you remove yourself from the principles set forth in the Constitution — inter-session versus intra-session — you are adrift,” said Judge Thomas B. Griffith.
He was joined in his pointed questioning by Chief Judge David B. Sentelle, who said the clause in the Constitution giving presidents recess appointment powers refers to “the recess,” which he said suggests the one at the end of each year, not the breaks Congress regularly takes for holidays, weekends or other reasons.
If the court were to rule that way, it would upset the balance that has been maintained over decades, and would conflict with another appeals court’s precedent — though that didn’t bother Judge Sentelle.
“Forget about a century of precedent — go back to the Constitution,” he told Beth Brinkmann, the Justice Department lawyer who argued the case for the Obama administration.
She warned that going that route would change the system of checks and balances fundamentally.
Sentelle sounds like my kind of judge. Let’s hope this is the beginning of a trend.
Randy Barnett, writing for the American Spectator, captures the zeitgeist of the Tea Party movement in a rousing essay about the need going forward for a different kind of mindset when judging conservative judicial nominees:
Now we will have an election to decide the ultimate fate of Obamacare. But this election should also be about who will be selected to serve on the Supreme Court. Should Republican presidents continue to nominate judicial conservatives who are enthralled with the New Dealers’ mantra of judicial restraint? Or should they nominate constitutional conservatives who believe that it is not “activism” for judges to enforce the whole Constitution? All future nominees should be vetted not only for their views on the meaning of the Constitution, but for their willingness to enforce that meaning.
With Barnett’s distinction in mind, it’s no wonder that Tea Party-inspired Senators like Marco Rubio (FL), Mike Lee (UT), Rand Paul (KY), Jim DeMint (SC) – and soon-to-be Senator Ted Cruz (TX) – all identify themselves as constitutional conservatives. Restraint in judging liberalism’s faulty governing assumptions hasn’t gotten conservatives many substantive victories. We need smart, bold nominees eager and able to make the case for the kind of limited government our Founders envisioned; both in the political branches and on the bench.
The University of Mobile held a “Constitution Day” event this week to celebrate the 225th anniversary of the great document’s signing, with me emceeing an address by and discussion with the superb federal appellate court judge William H. Pryor, in front of university students plus 120 pupils from nearby high schools. It inspired me to write this column. A sample passage:
The United States and its Constitution serve as one big laboratory of republican government. When the Constitution was written, most of the world’s people thought true republics were by their very nature unstable, destined to be short-lived and to lead to either anarchy or tyranny. The men of Philadelphia, and then the American people who put into practice the system the founders designed, proved otherwise. Indeed, we continue to prove that representative democracy works. It can assure freedom, ensure a high degree of justice, and promote societal stability, simultaneously.
It remains for us to make sure that we ourselves in the United States do not let down our guard. Just because our Constitution has worked for so long does not mean, in the words of the title of a famous book on the Constitution, that our government is “a machine that would go of itself.” The Constitution only provides a framework by which American citizens can protect our liberties; The Constitution does not do the work all by itself.
My column this week explains the logic behind an important new constitutional challenge to ObamaCare by the Pacific Legal Foundation, a non-profit property rights law firm.
In its lawsuit, Sissel v. Department of Health and Human Services, PLF argues that the Supreme Court did ObamaCare no favors when it saved the law from a Commerce Clause challenge by reinterpreting it as a constitutional exercise of Congress’ taxing power.
Instead, PLF argues, the Court merely exposed ObamaCare’s newly found taxing authority as an express violation of the Constitution’s Origination Clause, which requires all new tax bills to originate in the House of Representatives, not in the Senate as ObamaCare did.
Though simple and faithful to the Constitution’s text, PLF’s argument is nonetheless novel because some of the Supreme Court’s precedents indicate the Court will not seriously enforce the Origination Clause’s procedure.
But as liberal legal scholar Jack Balkin says in a blog for The Atlantic, Chief Justice John Roberts and his conservative colleagues may be open to rethinking those precedents:
In a previous essay for The Atlantic, I noted that even if a legal argument is currently “off the wall,” it may nevertheless become plausible if enough prominent people get behind it and vouch for it. Support by major political parties is probably the most important factor in quickly moving arguments from “off the wall” to “on the wall.” The challengers’ arguments in NFIB v. Sebelius got as far as they did because the unconstitutionality of Obamacare became virtually the official position of the Republican Party, and Republican politicians and affiliated media pushed the challengers’ claims over and over again. Repeated arguments by conservative politicians, media, and intelligentsia, in turn, probably affected the views of Republican-appointed judges and justices about how seriously to take the arguments.
Members of the media will no doubt ask legal scholars (such as yours truly) whether the PLF’s new constitutional challenge to Obamacare is likely to succeed on the merits. I’ve just given you my answer: not under existing law.
But if reporters have been paying attention to the events of the last two years, they should know that, at least where health care reform is concerned, the considered views of legal scholars are not the most important ones. The real question to ask is whether Republican politicians, right-wing talk radio, and Fox News will get behind the new challenge with the same degree of enthusiasm they had for the first legal assault on Obamacare. If they do, then the mainstream media will no doubt cover the controversy as it did before. If a conservative district court judge takes the arguments seriously, the game is on once more. And then, perhaps, Chief Justice Roberts, given a second chance, will change his mind — again.
In a disappointing decision, the U.S. Supreme Court has upheld ObamaCare’s individual mandate forcing all Americans to buy health insurance as constitutional. Chief Justice John Roberts joined the four liberal justices on the Court to rule that the mandate stands under Congress’ taxing authority.
A delightful surprise in my inbox today from the Heritage Foundation:
From the preamble to the 27th Amendment — The Heritage Guide to the Constitution Online is a completely searchable reference tool with leading expert analysis of the Constitution. The site features clause by clause analysis of our timeless reference book, links to essays, as well as a teaching companion.
ConstitutionOnline.com provides clear, concise analysis for users who are trying to further their understanding of the Constitution.
No document is more central to securing “the Blessing of Liberty to ourselves and our Posterity” than the United States Constitution, and no website is more thorough than ConstitutionOnline.com.
The links above are hosted by an internal email system, so in case you have trouble accessing the site, use this link ( http://www.heritage.org/constitution ).
When you visit the site check out the bevy of essays explaining “About This Guide,” “What the Constitution Means,” “How It Was Formed,” and “The Originalist Perspective.”
There’s also a link to a “Teacher’s Companion” that’s great for Tea Party meetings and reading groups, as well as formal classroom settings.
With the primary season effectively over, now is a great time to brush-up on the Constitution, its meaning, and history. Goodness knows conservatives will need every argument we can muster come the general election if the Republic is to survive.
Writing in the Washington Times, Richard Rahn — Senior Fellow at the Cato Institute and Chairman of the Institute for Global Economic Growth — puts the current state of federal spending in rather horrid relief:
The federal government is spending about 24 percent of gross domestic product (GDP). Most of it goes for Social Security, Medicare, Medicaid and other entitlement programs. The “discretionary” portion of the budget equals about 9 percent of GDP, with about half going for defense. Until 1930, the federal government normally spent less than 4 percent of GDP, except for the periods during World War I and the Civil War. The Constitution gives the federal government very few tasks for which it is required to spend money — the big item being the “common defense.” Again, up until 1930, the courts forced the federal government to live largely within the confines of the Constitution. Deducting defense spending from the federal budgets before 1930 shows that the federal government lived perfectly well on 2 percent to 3 percent of GDP for the first 140 years of the republic.
What all of this means is that approximately three-quarters of all federal government spending is not required by — and often is contrary to — the Constitution.
Conventional wisdom in Washington increasingly holds that those who wish to see the federal government pare back its expenditures rather than increase the tax burden on the American people are delusional, if not antediluvian. Yet for the majority of American history, the federal government was only a fraction of what it is today — and the Republic did quite well for itself.
Are we really to believe today that spending cuts that would still leave the federal government’s share of GDP several multiples higher than it was less than a century ago mark some civilizational rot? Because by all indicators (Europe comes to mind), the failure to prune seems to be the more perilous course.
President Barack Obama’s controversial warning to the Supreme Court that a vote to overturn ObamaCare would be “unprecedented” is getting push-back from the federal judiciary.
During oral arguments on a different ObamaCare provision than those argued before the Supreme Court last week, Fifth Circuit Judge Jerry Smith asked a Department of Justice lawyer for clarification. “Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?”
To drive home the point, Judge Smith ordered DOJ to provide a written explanation of its views “no less than three pages, single spaced.”
The only problem with the homework assignment is that it wasn’t directed to the right person. President Obama, that one-time constitutional law professor at the University of Chicago, should be the one sitting at the keyboard relearning first year law.
At least then he’d be aware that what’s truly unprecedented is his belief that federal courts are rubber stamps for his liberal agenda.
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