Freedom Line Blog

In an interview with CFIF, Clark Neily, Senior Attorney for the Institute for Justice, discusses his latest book, “Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government,” and the importance of and issues surrounding separation of powers, economic liberty, property rights, the Second Amendment, and more.

Listen to the interview here.

U.S. Senator Ted Cruz (R-Texas) did the Constitution and the nation it protects a service earlier this week by asking Dianne Feinstein, California’s senior liberal Democratic senator and gun control advocate, two simple questions:

SEN. TED CRUZ (R-TX) The question that I would pose to the senior Senator from California is would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendment, namely, would she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights?

Likewise, would she think that the Fourth Amendment’s protection against searches and seizures could properly apply only to the following specified individuals and not to the individuals that Congress has deemed outside the protection of the Bill of Rights?

Feinstein’s responses were (1) “I’m not a sixth grader,” and (2) “You know, it’s fine you want to lecture me on the Constitution. I appreciate it. Just know I’ve been here for a long time. I’ve passed on a number of bills. I’ve studied the Constitution myself. I am reasonably well educated, and I thank you for your lecture.”

Note that Feinstein completely fails to articulate either a general principle of constitutional lawmaking, or a reason why regulations pertaining to the Second Amendment could be unique.

This, in a nutshell, is the core problem with modern liberalism. Although liberals pay lip service to the Constitution, they cannot defend their policy positions from the text, structure or purpose of the very document that gives them the power to govern.

A sixth grader knows that kind of logical breakdown creates a serious problem of credibility. A U.S. Senator serving for more than 20 years, not so much.

Click here for the video and transcript of the exchange.

H/T: RealClearPolitics

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.

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.

There’s a lot to say about Chief Justice John Roberts’ opinion rewriting ObamaCare’s individual mandate as a tax in order to save the law from being ruled unconstitutional.  One of the best – and most succinct – analyses comes from the CATO Institute’s Michael F. Cannon:

The Supreme Court ruled that ObamaCare’s individual mandate is not constitutional under the Commerce Power, which was how Congress framed the mandate to avoid a political backlash from calling it a tax. Congress and the president swore up and down that the mandate was not a tax. Yet the Court upheld the mandate as a valid use of that disavowed taxing power. What Congress said the individual mandate is, the Court said is not constitutional. What Congress said the mandate is not, the Court ruled is constitutional. Everybody got that?

Where does that leave us?

The Supreme Court just enacted a law that Congress never would have passed.

The Court just told Congress it is okay to lie to the people to avoid political accountability.

Once upon a time, liberals scoffed at the idea that legislation needed to be constitutional in order to be lawful.  Remember then-House Speaker Nancy Pelosi’s infamous response to the question of where in the Constitution did Congress have the power to pass Obamacare: “Are you serious?”

Well, after the U.S. Supreme Court scared the daylights out of the liberal commentariat with pointed questions about Obamacare’s constitutionality, it seems that opponents of Indiana’s recent right-to-work law are trying their hand at interpreting the text instead of the spirit of the document.

The Daily Caller summarizes the argument:

Indiana’s law prohibits employers from making union membership a condition of getting or keeping a job. The union’s February lawsuit claimed the law violated its members’ Fourteenth Amendment guarantee of “equal protection” under the law.

But an amended complaint filed on Wednesday added a Thirteenth Amendment claim as well. The new lawsuit suggests that when nonunion employees earn higher salaries and better benefits because of the union’s negotiation on behalf of its members, the union has been forced to work for those nonunion employees for free.

And being forced to work without compensation, the union suggested in its revised lawsuit, is slavery.

It’s the height of hypocrisy for union leaders who’ve spent decades coercing membership and dues from any worker falling under their legally-sanctioned monopoly to claim that economic enslavement only occurs when its members have to subsidize benefits other people don’t value.

In a sane world, the union’s lawsuit would be thrown out with prejudice as a waste of court time and resources.

But this is the Age of Obama.  How much longer can it be before the Department of Justice and the National Labor Relations Board weigh-in with briefs defending the indefensible?

A delightful surprise in my inbox today from the Heritage Foundation:

From the preamble to the 27^th 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.

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.

Whatever shred of credibility Fareed Zakaria retained as a conservative pundit from his celebrated book The Future of Freedom has now been officially lost thanks to follow-ups like The Post-American World and today’s essay “Does America Need a Prime Minister?”

In the essay, Zakaria uses the recent S&P downgrade of American sovereign debt to note that “no country with a presidential system has a triple-A rating from all three major ratings agencies.”  He then uses this to support his thesis that the United States would be better served by chucking separation-of-powers and moving to a British-style parliamentary system where the executive and legislative branches are the same.  After all, Britain still has a triune triple-A rating!

How wonderfully anti-American of the Harvard PhD.  Throughout the essay one realizes that Zakaria has wandered so far from the insights of the Founding generation that he now endorses the very system – and possibility for tyranny – that the American Revolution fought to end.  So too did another PhD-turned-constitutional-scold: Woodrow Wilson, the godfather of America’s progressive movement.

Wilson believed that government needed to be professionalized and removed from popular control so that it could act quickly and decisively to cure whatever ailed the populace.  He favored the parliamentary system because it gave enormous power to one man: the Prime Minister.

To appreciate how far Zakaria has wandered from core American principles about the proper way to construct a government, consider this passage from today’s essay:

In the American presidential system, in contrast, you have the presidency and the legislature, both of which claim to speak for the people. As a result, you always have a contest over basic legitimacy. Who is actually speaking for and representing the people?

In America today, we take this struggle to an extreme. We have one party in one house of the legislature claiming to speak for the people because theirs was the most recent electoral victory.  And you have the president who claims a broader mandate as the only person elected by all the people.  These irresolvable claims invite struggle.

There are, of course, advantages to the American system – the checks and balances have been very useful on occasion. But we’re living in a world where you need governments that are able to respond decisively and quickly.  In a fast-moving world, paralysis is dangerous. Other countries are catching up – if not overtaking – America.

Who are these other countries?  Members of the European Union with a currency and debt crisis several times worse than our own?  China with its unsustainable population demographics and monetary policy?  Arab dictatorships that are being toppled by the month?  Latin American oligarchies that nationalize industries to buy off the masses with the wealth of entrepreneurs?

The problem we are experiencing in Washington, D.C. is not America’s constitutional design of checks-and-balances and separation-of-powers.  If anything, the ability of the House GOP to slow down the liberal agenda to tax-and-spend the nation into bankruptcy is due solely to the very “paralysis” intended by our constitutional framework.

If Zakaria wants to end the paralysis in D.C., he should vote for pro-growth fiscal conservatives in 2012 and urge all of his readers to do the same.

It’s always nice when liberals deign to give advice to conservatives on whom should be admitted to the next Tea Party rally.  Commenting on excerpted parts of Texas Republican Governor Rick Perry’s book Fed Up!, Kevin Drum of Mother Jones thinks Rick Perry is wrong to think that it’s unconstitutional for the federal government to regulate banks, consumer financial choices, the environment, guns, civil rights, a minimum wage, and create programs like Medicare and Medicaid.

At least Drum acknowledges that Perry makes certain exceptions for federal regulations on racial discrimination since that fulfills “the intent behind the passage of the Reconstruction Era amendments.”

What makes liberals like Drum gasp is the fact that Perry thinks that, as James Madison argued in Federalist 45, “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.”

But if a secondary source won’t cut it for Drum, here’s the text of the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

If they cared to, Drum and other liberals would look in vain to find an enumerated grant of power to the federal government to regulate the items on the list above.  That’s why they rely on activist judges to read into the Constitution federal powers that do not exist.

The Tea Party – like Perry, Michele Bachmann, and other constitutional conservatives – know their Constitution and the meaning behind it.  If liberals like Drum are aghast, it’s only because a grassroots movement is forming to challenge nearly 80 years of unconstitutional jurisprudence.

Politico reports that Arizona Republican Governor Jan Brewer has formally petitioned the United States Supreme Court to overturn the 9^th Circuit’s opinion that important parts of the state’s tough immigration law (SB 1070) violate the U.S. Constitution.

Brewer said in May that she was “frustrated” by the court’s ruling and planned to appeal it.

“The bottom line is, is that everyone knows that the 9th Circuit has a reputation of being very, very liberal,” she said. “After deliberating and thinking about it, I said, ‘Let’s just go to the Supreme Court.’”

As usual, the outcome will probably hinge on the moderate views of Justice Anthony Kennedy.

Heaven help us.

Robert Costa at National Review reports that certain members of the Senate GOP sent a letter to President Barack Obama demanding an immediate end to the Justice Department’s politically motivated investigation of CIA interrogators.  I published a column this week concluding that the only reason this nearly two-year travesty is still being funded is because it plays to the president’s liberal base.

The most troubling aspect of the president’s threatened but unlikely prosecutions is that they target interrogators who were acting under authorization from the Justice Department.  The fact that current U.S. Attorney Eric Holder takes a different view than his predecessors John Ashcroft, Alberto Gonzales, and Michael Mukasey is irrelevant.  Prosecuting people for activity that is only determined to be a crime after the fact is a violation of the Constitution’s ex post facto prohibition.

If President Obama really wanted to thread the needle between following the law and pleasing his fellow liberals, he would shut down Holder’s after-the-fact prosecutions and  issue an executive order directing all federal personnel not to use whatever interrogation techniques – enhanced or otherwise – that he deems unacceptable.  That he’s instead choosing to make career civil servants sweat out indictments for doing their job is shameful.

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 10^th 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

Below is two-time Pulitzer Prize-winner Michael Ramirez’s take on yesterday’s federal court ruling that Congress exceeded its authority by mandating all individuals buy health insurance in ObamaCare.

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.

File Susan Estrich’s column calling for the ouster of all unqualified candidates from political office in the “Now, She Tells Us” folder.  Writing in a tone that betrays not only her antipathy for grassroots conservatives, but also a strong disrespect for basic moral sentiments, Estrich implies that the Constitution’s qualifications for federal office aren’t sufficient anymore:

In the long run, a healthy democracy needs qualified and able people of every party to function effectively. The tea party movement’s failure to support candidates who meet that standard may help Democrats avert disaster, but it’s hardly a recipe for a strong political system.

Maybe it’s time to put a “strong political system” on the back burner in favor of “a healthy fiscal system;” especially if a strong political system translates into a fondness for complexity, nuance and compromises that maintain the status quo.

Though I doubt Estrich would have voted for the urbane, highly educated William F. Buckley for any public office, it’s worth remembering that the most famous phrase he ever penned wasn’t a penetrating insight into technocratic policy.  It was a description of National Review as a conservative publication “standing athwart history, yelling STOP…”

Protests from his intellectual descendants notwithstanding, I’d wager that WFB would deeply appreciate the clarity – and the seriousness – with which Tea Party-backed candidates articulate their opposition the federal leviathan.

Never underestimate the speed and focus possible when the politicos in charge of government set their minds to getting something done.  Less than four days after the United States Supreme Court said that the U.S. Constitution’s 2^nd Amendment applied to states and municipalities like Chicago, the Second City’s aldermen rose to the challenge.

Unfortunately, they responded by deliberately passing a law to discriminate against gun owners to the maximum extent the Constitution might allow.  (Lost amid most of the coverage this week on the result in McDonald v. City of Chicago is that Justice Alito’s plurality opinion announces only that the 2^nd Amendment right to bear arms applies to Chicago.  It leaves to lower courts the careful work of figuring out which gun control laws are in fact unconstitutional.)

Let’s try a mind experiment.  Suppose a controversial Supreme Court opinion came down applying a universal right guaranteed in the Constitution against states and municipalities that had to do with, oh, let’s say…racial discrimination.  If the losing city in the decision responded in less than four days with an ordinance that deliberately tried to see how far it could still discriminate and pass constitutional muster, would that city council be lauded for its activism?

Maybe there’s a North Coast bias.

Below is one of the latest cartoons from Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.