Freedom Line Blog

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.

Fox News reports that thanks to President Barack Obama’s unilateral – and unconstitutional – implementation of the DREAM Act, nearly 2 million illegal immigrants will be coming out of the shadows and proudly telling government officials about their status:

Young illegal immigrants are lining up by the thousands at consulates across the country to take advantage of the Obama administration program allowing them to apply for a two-year reprieve from deportation.

As many as 1.8 million undocumented immigrants could be eligible for the program, which kicked off Wednesday. Under the new rules, applicants can fill out a six-page form, pay a $465 fee and submit documents proving their identity in order to qualify.

Immigration officials say the documents will be closely scrutinized, given the potential for fraud, but there is no uniform standard. Applicants are supposed to show they arrived in the U.S. before they were 16, and that they’re enrolled in school or vocational training, or have a high school degree.

The lines began forming on Tuesday, as illegal immigrants tried to get a leg up in seeking their passport applications.

…

The crowds Tuesday and Wednesday are the most visible demonstration to date of how many people are interested in applying for the administration’s new reprieve program — which is effectively a version of the DREAM Act, which failed to clear Congress.

You read that right.  The Obama Administration’s reprieve amnesty program is based on legislation that never became law.

I support reform of America’s immigration system, and I’m open to some of the elements of the DREAM Act; especially the way it ties military service to citizenship.

What I object to is the Obama Administration’s brazen and arguably illegal implementation of a law that Congress considered and failed to pass.  Acting as though the DREAM Act is law when it isn’t is, quite simply, lawless.

Though we learned with the Arizona illegal immigration decision that tough questioning from justices does not mean a Supreme Court slap-down – indeed, Justice Sotomayor was particularly hard on the feds’ position but ultimately upheld its arguments, as did Justice Kennedy and Chief Justice Roberts – I’m betting (with Quin’s money, of course) that Justice Scalia’s quip about the page length of ObamaCare provides a window into tomorrow’s outcome.

During oral argument Scalia brushed aside the suggestion that should the Court rule the individual mandate unconstitutional it would need to reconstruct the law by piecing together the parts that are still valid.  Scalia’s response was, “You want us to go through 2,700 pages?  Is this not totally unrealistic… to go through one by one and decide each one?”

I think the Court will strike down the individual mandate because it forces Americans to participate in commerce, an unprecedented power grab by the federal government.  (Ironically, had the Obama Administration framed the penalty for not buying insurance as a tax, most constitutional scholars on the right and left agree the mandate would survive.  However, the reason government lawyers haven’t framed it that way is because Obama and the Democrats in Congress repeatedly and explicitly said no one’s taxes would go up if ObamaCare passed, meaning that calling the mandate a tax during litigation would likely make the entire law even less popular with the public.)

Because of all this, I think the Court will do everyone a favor by holding the individual mandate unconstitutional and finding that the rest of the law is not severable from it.  (Which is easy to do since in the rush of ramming the bill around the normal legislative process Congressional Democrats forgot to put in a simple severance clause that would let the rest of the law stand if the mandate falls.)

Thus, everyone gets a blank slate and the Court is not patching together a form of the health reform law that no one voted on or signed.

For what it’s worth, there’s my (or rather Quin’s) two cents.

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.

With the Supreme Court getting ready to hear arguments about the (un)constitutionality of ObamaCare, House Republicans yesterday voted to repeal the Independent Payment Advisory Board (IPAB), one of ObamaCare’s provisions that may be left unaffected by the Court’s decision.

As the Washington Times reports, this is “the 26^th time the House has voted to partially or completely repeal the sweeping overhaul” of the health care industry.

Like the other 25 times, this House vote won’t be seconded by the Democratic controlled Senate.  But in an election year that’s hardly the point.  What matters right now is that House Republicans continue to highlight how elements like IPAB destroy freedom and choice in health care by letting 15 unelected bureaucrats instead of the free market decide the price of services.

On to number 27!

The news of President Barack Obama’s unconstitutional and dubious recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau was met with near universal outrage, especially here at CFIF.  Already a legal argument is emerging that could stop Cordray’s pledged lurch for power before it takes a second step.

From the Daily Caller:

But an obscure paragraph in the 2010 law that created the bureau may keep Cordray in check unless the Senate formally approves of his hiring — an approval Obama sought to circumvent by making him a so-called “recess” appointment.

Section 1066 of the law says many of the bureau’s new powers are to be held by the secretary of the Treasury “until the Director of the Bureau is confirmed by the Senate.”

That legal technicality ensures that Cordray’s power will be legally crippled, said Roger Pilon, the founder and director of the Cato Institute’s Center for Constitutional Studies.

“I don’t think he would have the authority to act” because he still hasn’t been confirmed by the Senate, Pilon said. “As soon as he did [try to impose a decision], it would be challenged [in court] by one of the people or entities that is affected.”

So now it looks like Obama violated both the Constitution and the federal law that created Cordray’s position.  Next Question: Does this qualify as a high crime or a misdemeanor?

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.

Charles Krauthammer suggests (more a command, really) calling President Barack Obama’s bluff about a “long-term deal or nothing” on a debt default deal: a short-term deal that extends the negotiating clock instead.

The Republican House should immediately pass a short-term debt-ceiling hike of $500 billion containing $500 billion in budget cuts. That would give us about five months to work on something larger.

Why not?  Senate Republican Leader Mitch McConnell’s plan to give the president authority to raise the debt ceiling on his own just stokes an already imperial presidency.  What’s more, McConnell’s reservation of oversight to Congress by a 2/3 vote to block the president from raising the debt ceiling is constitutionally suspect because it sounds suspiciously like an impermissible legislative veto.  Since the Supreme Court has said that Congress can’t overrule Executive decisions once Congress delegates its authority, don’t be surprised if McConnell’s clever power switch gives unilateral discretion to a big-spending liberal president without any means of checking him.

Far better to go with Krauthammer’s suggestion since it keeps the focus on spending and the economy and relieves the pressure of a debt default while the parties get serious about specifics.

In an interview with CFIF, John Yoo, a professor of law at the University of California at Berkeley School of Law and former Justice Department official, discusses President Obama’s authority under the War Powers Act and the U.S. Constitution, particularly with regard to American involvement in Libya.

Listen to the interview here.

If they didn’t actually hold some positions of power, today’s liberal activists and supposed intelligentsia would engender serious pity because of their profound ignorance, lack of logic, and intellectually indefensible sentiments masquerading as principles. The latest case in point is the truly goofy New Republic piece by Ed Kilgore, previously best known for using a book review to posit that just about any backlash against Barack Obama is a sign that racism still reigns in large swaths of America. Now Kilgore analyzes the growing use of the term “constitutional conservatism” as if it not instantly understandable on its face but instead as if it is some sort of radical plot, alien to American democratic traditions. Worse, he avers it is a secret code, a radical-right “dog whistle” that lets right wingers and only right wingers know that what is being proposed is a return to the idyllic 1920s. Of course, in light of Kilgore’s previous meme of “Mommy, look, they’re all racists!!!,” it is no accident that he uses the term “dog whistle,” which is usually used by leftists to describe racist signals that only fellow racists can hear or understand.

Read Kilgore’s whole benighted piece, if you can stomach its intellectual vacuousness. But especially note this incredibly… well, I don’t quite know the word to describe its idiocy, but its incredibly moronic passage:

In their backwards-looking vision, constitutional conservatives like to talk about the inalienable rights conferred by the Founders—not specifically in the Constitution, as a matter of fact, but in the Declaration of Independence, which is frequently and intentionally conflated with the Constitution as the part of the Founders’ design.

What, pray tell, are we to make of this? Could Kilgore possibly be saying that that Declaration of Independence is not “part of the Founders’ design”? Is he actually complaining about ascribing the ideals of the Declaration to the practice of interpreting the Constitution? If anything, the Left has been known in the past for complaining that the Constitution was an unfortunate counter-revolution by moneyed interests upset at the supposed leveling mentality of the Declaration; now Kilgore seems to be complaining that the Declaration’s ideals should not be seen as inherent within the constitutional structure — as if those ideals themselves, and thus the Declaration, somehow pollutes the Constitution with some crazy nonsense about natural rights.

This is ludicrous. Whether or not the Constitution’s framers succeeded in implementing the Declaration’s ideals (conservatives rightly argue that they did), there can be no doubt that when the states ratified the Constitution their debates were all about making sure that their rights were being sufficiently safeguarded. The nationwide ratification struggle was all about natural rights.

Kilgore goes on to write this jaw-dropping sentence:

It’s from the Declaration, for instance, that today’s conservatives derive their belief that “natural rights” (often interpreted to include quasi-absolute property rights or the prerogatives of the traditional family)… were fundamental to the American political experiment and made immutable by their divine origin.

The subtext is clear: Gee, these folks are lunatics to believe in “quasi-absolute property rights,” which derive solely from a misreading of the Declaration, not from the Constitution itself.

Oh, really? Then why does the Constitution specifically say that “no state shall … pass any … law impairing the obligation of contracts?” Why does it restrict the power of eminent domain by requiring “just compensation” and insisting that it only be effectuated for “public use”? Why does the Constitution say that nobody shall be denied of “life, liberty, or property, without due process of law?” And why, if the Declaration and the Constitution are not to be conflated, do so many of the same or similar formulations occur in each, the most notable of which is of course the repetition of the “life, liberty, property/pursuit of happiness” language?

The left not only doesn’t understand the Constitution; it seems to not even really know the Constitution, or perhaps not even have actually read it. It certainly does not have a clue about how the Founders themselves clearly thought of the Constitution as the practical means of applying the ideals of the Declaration.

There is nothing radical whatsoever about insisting that the law of the land actually be interpreted to mean what it meant when it was first adopted (recognizing, of course, that the “law of the land” in constitutional terms means the law that came into being when any current constitutional provision was adopted —  obviously meaning that where amendments have been adopted, it is the original meaning of those amendments, not he original meaning of the language they replaced, that is relevant).

Yes, Mr. Kilgore, we believe in constitutional conservatism. It’s not a dog whistle to say so. But to fail to understand its clear and unobjectionable meaning, one would really need to be a cur.

It’s nice to see liberal members of the Obama regime getting in a dust-up over whether the president’s Libya bombing is legal.

Today’s combatants are Senator John Kerry (D-MA), chairman of the chamber’s Foreign Relations Committee, and Senator Dick Lugar (R-IN) whose thinking on foreign affairs is usually in lock-step with Kerry’s.

Until, that is, President Obama forgot to ask Lugar’s permission before going to war.  As one of then-Senator Obama’s earliest Republican admirers, Lugar takes pride in his status as elder adviser to a young president.  Trouble is, Obama no longer needs Lugar for anything.

And as Lugar is finding out, that includes setting aside procedural niceties like declaring war or getting congressional authorization for military action. (Far better to go the Lugar-approved route of U.N. permission slips.)

Thanks, Senator.  He couldn’t have done it without you.

Believe it.  In an op-ed for BusinessWeek, the scourge of concentrated wealth and power sees a lot to love in the new, Tea Party-infused legislators walking around Capitol Hill.  Specifically, Nader isolates five issues that could bring the movement’s limited government mantra into conflict with establishment Republicans.

(1)   Ron Paul’s fight to curb the power of the Federal Reserve

(2)   Heightened criticism for corporate welfare programs (e.g. everything from ethanol subsidies for biofuel to “green” initiatives designed to get federal tax dollars)

(3)   Trimming the military budget (Apparently, Defense Secretary Robert Gates already got the memo; sort of)

(4)   Renewal and expansion of the World Trade Organization, NAFTA, etc.

(5)   Whistleblower protection for bureaucrats and corporate workers

The limited government foundations of the Tea Party movement will make predicting voting outcomes this session iffier than when Republicans could be assumed to oppose any Democrat plan.  If necessary, we’ll see how many of the new Constitutionalists in Congress are ready to buck convention and vote their principles instead of their party.

In a refreshing victory today for individual freedom, the concept of federalism and Constitutional principles, a federal judge in Florida rejected the Obama Justice Department’s request to dismiss the challenge by 20 states against ObamaCare’s unconstitutional provisions.

Among other things, Judge Roger Vinson ruled that the states can proceed in their argument that ObamaCare’s individual mandate, which forces citizens to engage in involuntary commercial transactions by purchasing insurance, violates the Constitution.  The Obama Administration, which couldn’t seem to decide whether ObamaCare passed Constitutional muster as a “tax” or under some other convenient authority, contended that the challenge should be thrown out in its entirety.  With this preliminary legal victory, the case can now proceed toward trial.

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).

Amid the national debate over whether to amend the 14th Amendment to prohibit automatic birthright citizenship for “anchor babies” of illegal immigrants, we receive startling data from a Pew Research Center analysis of U.S. Census data.  In 2008, according to the numbers, illegal immigrant parents accounted for some 8% of births in America – one out of every twelve.

Although illegal immigrants constitute 4% of the American adult population, the Census data indicates that they account for twice that percentage of newborns.  The terms of the 14th Amendment grant citizenship to”all persons born or naturalized in the United States and subject to the jurisdiction thereof,” and courts have interpreted that to grant birthright citizenship.  Amendment proponents, however, argue that those terms fairly aimed to protect freed slaves from attempts to deny them equal rights under the law, not to confer automatic U.S. citizenship to illegal immigrants’ offspring.

Regardless of the legal and constitutional merits for or against the amendment, the new data adds startling new practical, real-world, objective perspective to the debate.

National Review Online’s Andrew McCarthy pens one of the best explanations I’ve seen refuting the Obama Administration’s argument that Arizona’s SB 1070 is preempted by federal law.  A bit surprisingly, McCarthy’s column is in response to (and a bit in contention with) his colleague Heather McDonald.

McDonald wrote a column earlier today fretting about the hypothetical “preemption” consequences of an Arizona law enforcement official deciding to prosecute an illegal alien under SB 1070 after federal officials declined to prosecute under federal law.  McDonald implied such a scenario would trigger a successful preemption claim (i.e. federal law trumping state law) because the actions of the state and federal officials would be in conflict.

Though their actions may be in conflict, argues McCarthy, that doesn’t mean the laws are in conflict.  The distinction is crucial, but too often glossed over by pundits.

In a nutshell, the legislative branch makes a law and the executive branch has the discretion whether and how to enforce it.  Since police officers and prosecutors are agents of the executive branch at both the state and federal level, they have discretion whether and how much to enforce a law passed by the legislature.  (That’s why they can plea bargain cases and drop charges.)

So, if the federal layer of government decides not to enforce its law, but the state layer of government decides it will enforce its identical law, there is no legal conflict; only a different policy choice by each layer.

Thus, claiming that SB 1070 is unconstitutional because it is preempted by federal law is a non-starter since there is no legal conflict between the two.  In fact, they are identical.  Knowing the meanings behind the terms shows that the litigation surrounding SB 1070 is based on nothing more than a policy conflict between the U.S. Department of Justice and the State of Arizona over how to apply the same law.

Even though the ink is barely dry on the Justice Department’s lawsuit against Arizona’s new illegal immigration law, Attorney General Eric Holder is already speculating about what to do if (i.e. when) his challenge fails: play the race card.

In legal terms, the Justice Department’s current lawsuit is a “facial” challenge, meaning that the DOJ alleges Arizona’s SB 1070 is unconstitutional “on its face,” or by its own terms.  Since SB 1070 mirrors federal law, only the most liberal application of the preemption doctrine would consider identical versions of the same statute to be in conflict, thus requiring federal law to preempt SB 1070.

Because Arizona’s the law is valid on its face the DOJ’s current lawsuit will lose, and SB 1070 will be allowed to go into effect.  Then Arizona law enforcement will be able to ask a person about their immigration status if the person is stopped because of reasonable suspicion she is engaged in criminal activity.  According to Holder, a few months after implementation the DOJ would then challenge SB 1070 “as applied” by law enforcement because officers would allegedly ask for immigration papers from a person because of his race – even though SB 1070 explicitly prohibits the officer from doing that.

But in order to get enough empirical evidence to prove systematic racial profiling, the DOJ will have to closely monitor the situations where Arizona officers apply SB 1070.  To do that will require Immigration and Customs Enforcement (ICE)to cooperate with Arizona officers checking a suspect’s immigration status; something the ICE chief is loathe to do.  Moreover, since nearly all of the illegal immigrants in Arizona are Hispanic, nearly all of the suspects questioned and verified will be Hispanic.  Does the near universal application of SB 1070 to these suspects prove racial profiling?  Or, on the other hand, does it prove merely that a particular subset of the Arizona population contains a statistically outrageous number of illegal immigrants?

Both the current lawsuit and this new proposal by the Attorney General are fools’ errands in sloppy litigation.  Eric Holder is 0-for-Everything as the nation’s top prosecutor.  Hopefully, President Barack Obama will let him get back where he belongs: challenging valid laws for the sake of liberal causes as a private attorney.

Well, not actually.  But reading this list of queries makes one pine for a Senator Will on the Judiciary Committee when its members meet on Monday to begin Supreme Court nominee Elena Kagan’s confirmation process.

Here’s a sampling:

• In Federalist 45, James Madison said: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.”

What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?

• Is it constitutional for Arizona to devote state resources to enforcing federal immigration laws?

• Is there anything novel about the Arizona law empowering police officers to act on a “reasonable suspicion” that someone encountered in the performance of the officers’ duties might be in the country illegally?

• The Fifth Amendment mandates “just compensation” when government uses its eminent domain power to take private property for “public use.” In its 2005 Kelo decision, the court said government can seize property for the “public use” of transferring it to wealthier private interests who will pay more taxes. Do you agree?

• Should proper respect for precedent prevent the court from reversing Kelo? If so, was the court wrong to undo Plessy v. Ferguson’s 1896 ruling that segregating the races with “separate but equal” facilities is constitutional?