Posts Tagged ‘Commerce Clause’
June 29th, 2012 at 3:32 pm
And George Will Nods… to Timothy
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On the heels of Homer’s nod to Quin below, George Will chimes in on yesterday’s Supreme Court ObamaCare decision with a nod to my broader point.  Namely, that the Court’s commerce clause ruling constitutes a significant new precedent in constitutional jurisprudence.  Entitled “Conservatives’ Long-Term Victory,” Will laments that ObamaCare’s individual mandate managed to survive, but asserts that conservatives won a “substantial victory”:

By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul.  This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers.  By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise:  Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, ‘the enumeration presupposes something not enumerated.'”

Ultimately, Will notes, ObamaCare’s fate “rests on public opinion.”  Nevertheless, we are in agreement that yesterday’s lasting achievements should not be overlooked or minimized by understandably disappointed conservatives and libertarians.

June 27th, 2012 at 10:27 am
Court Analyst Jeffrey Rosen in Full-on Political Hack Mode

There was a time when Jeffrey Rosen was a thoughtful center-left court analyst, with a constitutional interpretive philosophy clearly to the left of Madisonian/conservative textualists but nonetheless willing to give credit where due to conservative jurists and to recognize their arguments and their consistency even when he disagreed with them. Well, for years it has been clear that those days are long gone, and that Rosen barely maintains the veneer of thoughtful and fair-minded analyst while actually going far down the road that columnist E.J. Dionne long ago traversed, into full-time partisan hackery.

Witness Rosen’s new analysis of the Supreme Court’s ruling on the Arizona immigration case. It is couched throughout in terms of “giving credit where due” to conservative justices. But that stance is just a pose. Look more closely, and you’ll see that he gives credit only when the conservatives agree with him. If they agree with him, then they are showing an ability to be “modest and nuanced in tone and substance” while demonstrating a “vision of bipartisan nationalism.” But he warns that if they don’t agree that the ObamaCare individual mandate is perfectly constitutional, then they will suddenly appear “partisan and unrestrained” and will have violated their “previously expressed judicial philosophies.”

In other words: Agree with me, and you are wonderful. Disagree with me, and you have switched in three days from being wonderful to being a vicious, partisan, right-wing hypocrite.

This, and so much else that he writes in this piece, is pure and utter hogwash.

Rosen’s entire frame of reference is skewed, and give absolutely no credit to the actual interpretive philosophies in use on the right. There is no such thing as a “vision of bipartisan nationalism” in conservative jurisprudence. What is at play isn’t a results-oriented “nationalism” — which, of course, contradicts many other instance where Roberts and even Anthony Kennedy have stood firmly for state authority vis-a-vis the national government — but instead an honest attempt to apply the original public meaning of the Constitution’s or legislation’s words to the case before them.

How, pray tell, would it violate Roberts’ “previously expressed judicial philosophy” for him to rule the mandate unconstitutional? After all, it’s not as if Roberts hasn’t recognized limits on Congress’ interstate commerce powers before. Remember when he decided the Commerce Clause powers did not extend to protection of a “hapless toad (that), for reasons of its own, lives its entire life in California”? And of course Kennedy has recognized Commerce Clause limits both in U.S. v. Lopez and U.S. v. Morrison. As this new question of a different type of extension of those powers presents an unprecedented question — because the federal power assertion is itself unprecedented — there is no reason at all to believe that it would violate these justices’ philosophies or to show an engagement in partisan shenanigans for Roberts and Kennedy to rule against the mandate. Likewise, although conservatives would be hugely (and rightfully) disappointed and even angry if Roberts and Kennedy go the other way, that doesn’t mean conservatives would be right in suddenly finding Roberts to be a sell-out; it would just mean that he applies the law to these particular facts differently than we do.

But for Rosen, who invents a jurisprudence of “bipartisan nationalism” that is alien in form and substance to everything conservative jurists believe, a judge’s motives or intellectual integrity can be credited or discredited, or both in the same week, completely dependent on whether or not they agree with his conclusions based on a jurisprudential approach that doesn’t even exist.

What a crock.

April 4th, 2012 at 9:59 am
Ramirez Cartoon: The Commerce Claws
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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.

November 14th, 2011 at 12:28 pm
Showdown 2012: Supreme Court Accepts ObamaCare Challenge
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As we anticipated in last week’s Liberty Update, the U.S. Supreme Court announced today that it will hear legal challenges to ObamaCare this term.  As we also noted in that commentary, the issue broadly boils down to whether an explicit provision of the Constitution will be rendered meaningless and effectively read out of the document itself.

That is not hyperbole.  Our Founding Fathers didn’t randomly insert provisions into the Constitution for no reason whatsoever.  Rather, they crafted that document to design a federal government of limited, enumerated powers and to safeguard individual freedom to the greatest extent possible.  Accordingly, they intentionally included the Commerce Clause of Article I, Section 8 of the Constitution to empower Congress “To regulate Commerce with Foreign Nations, and among the several states, and with the Indian tribes.”  ObamaCare, however, does not merely “regulate commerce among the several states.”  Rather, it compels commercial activity from every citizen, and punishes inactivity on the part of any individual.

Anyone asserting ObamaCare’s validity must therefore answer this question:  If the Commerce Clause somehow permits forced commercial activity and prosecution of inactivity, what possible hypothetical federal mandate would it not permit?  Such a result would void a specific clause within the text of the Constitution because no limiting principle would remain.  That, in turn, would mean that no other provision remains safe in such a brave new world.

Hopefully, at least five Justices respect the Constitution enough to not remove yet another thread from its fabric.  Should the Court fail, however, the fight will not be finished.  The job will simply fall upon us as individual citizens to effectuate the individual freedoms that too few elected and appointed officials seem to respect.

January 21st, 2011 at 12:52 pm
The Economics of Federalism

Yesterday, 60 members of the House Republican majority endorsed a bill that would “deregulate” health insurance purchases by allowing consumers to buy plans across state lines.  The idea is to let companies compete on a national scale, spreading the risk and lowering premiums.  The bill is gaining support as a free market counterargument against ObamaCare’s one-size-fits-all regulation of health insurance.

There is a caveat.  In order to liberalize the insurance market, the GOP-sponsored bill must take away the states’ power to regulate insurance.  The reason insurance plans cost different amounts in different states is because individual states have different regulatory schemes.  Those schemes are the product of public policy decisions hammered out at the state level.  Importantly for 10th Amendment limited government types, the plan to “deregulate” the health insurance market comes at the expense of state sovereignty.

Ironically, the only way the House Republicans’ answer to ObamaCare gets passed is through an expansive reading of Congress’ ability to regulate interstate commerce “among the states.”  Members of Congress will (or at least should) have to struggle with which conservative principle they value more in this instance: the free market or federalism.  In a certain sense, federalism grants to states a public policy monopoly over all issues not expressly contained in the text of the U.S. Constitution.  That monopoly drives up prices for consumers in states with costly regulations.  Theoretically, if people want to pay less for health insurance, they could move to a state with less costly regulations.

Ideas like federalism have consequences.  As the Tea Party-flavored House GOP boards the ship of state, it will be interesting to see which crate of principles the revolutionaries toss over.

H/T: Los Angeles Times

October 18th, 2010 at 10:12 am
Severability Clause: Pelosi Had to Pass the Bill to Find Out What Wasn’t In It
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“We have to pass the bill so that you can find out what is in it.”  That was Nancy Pelosi last March, promoting that Pandora’s Box known as ObamaCare.  Well, it turns out that Pelosi and the bill’s proponents may be upset to find out what is not in it.  Namely, they failed to include a severability clause in their haste.

So what is a “severability clause,” and why might it matter?  A severability clause is a simple provision stating that if a court later declares one or more subsections of a bill void, the remainder of the bill remains valid and enforceable.  Without a severability clause, an entire bill can be jeopardized even if a very small part of it is stricken by the judicial branch.  Now, with separate lawsuits challenging ObamaCare quickly proceeding toward judicial reckoning, it is possible that the entire package may crumble if its individual mandate (forcing free citizens to engage in involuntary commerce by purchasing approved health insurance) or some other clause falls.

There is no guarantee in this regard, as the Supreme Court just this year curiously allowed the tangled Sarbanes-Oxley web to survive despite its own absence of a severability clause.  Nevertheless, the complete demise of ObamaCare due to the failure to add a simple severability provision could be one positive byproduct of ObamaCare’s sloppy birth.

August 26th, 2010 at 4:13 pm
The Commerce Clause and the Erosion of American Liberty
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As a longtime fan of the video work done by our friends over at Reason, I have to admit astonishment at a video that surpasses even their usually high standards.

Check out the latest from the West Coast libertarians on how an expansive judicial interpretation of the Commerce Clause has become a blank check to Congress (skeptics take note: Erwin Chemerinsky, the UC-Irvine Law School dean featured here is not a liberal straw man dug up for the purposes of this video. He’s a highly regarded intellectual on the legal left — which ought to make his closing comments even more disturbing).


December 4th, 2009 at 1:29 pm
A Solicitor General and the Constitution
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U.S. Solicitor General Elena Kagan seeks to destroy the fundamental principle that “[the] Constitution creates a Federal Government of enumerated powers”, judging by her brief in the U.S. Supreme Court case of U.S. v. Comstock.  The government’s brief demonstrates just how expansive she views federal power under the Constitution.

The Cato Institute, a libertarian think-tank in Washington, D.C., is challenging a federal criminal statute on the grounds that Congress acted without constitutional authority when it passed the law.

Cato and other challengers in Comstock argue that the federal government cannot use the Necessary and Proper Clause in Article 1 §8 of the Constitution to justify any and all federal action.   The government, on the other hand, argues that the Necessary and Proper Clause and the Commerce Clause in §8 allow the government to enact a range of federal criminal statutes, even if such laws are typically the province of state power.

Of course, by the government’s logic, if the Commerce Clause works to authorize a broad array of criminal laws, then what can’t the government do?  Since the government deems almost any human action to “substantially affect interstate commerce,” then there is nothing that evades federal power.  For example, in this argument audio clip, the government claims federal power is virtually limitless.

The Supreme Court has (unfortunately) already held that growing excess wheat for private consumption falls within the Commerce Clause, and that growing marijuana for private consumption falls within the federal purview as well. (Justices Scalia and Kennedy sided with the government in the latter case.)

As the Cato Institute argued in its brief, “Neither the Necessary and Proper Clause nor the Commerce Clause is a permissible footing for the Act and, therefore, the Act is unconstitutional.  As this Court recognized almost 150 years ago, ‘[no] graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole,’ than the Government’s unconstitutional assertion of power against its own citizens.”

Elena Kagan, in the government’s reply brief, countered, “A commitment under Section 4248 [the act in question] is justified by the Necessary and Proper Clause in combination with whatever enumerated power or powers supported the federal prosecution and custody of the individual in the first instance.”

By June of next year, we’ll learn if the Court would prefer returning to “first principles.”  It could actually limit Congress’ expansive use of Article I § 8, or the justices could continue to allow unbridled federal action whenever the government deems it politically expedient.

Click here for the Cato brief.  For the government’s brief, click here.  For CFIF on the Constitution, click here.