Wednesday, June 2, 2010
There has been a spate of coverage in recent days of Tea Party calls for repeal of the Seventeenth Amendment--the 1913 Amendment that replaced the appointment of U.S. Senators by state legislatures with popular election. Just to cite a few pieces in just two outlets: David Firestone opined yesterday in the NYT; Ashby Jones responded in the WSJ Law Blog; Matt Bai wrote in today's NYT; Jones came back in today's WSJ Law Blog.
There appear to be two primary arguments against the Seventeenth Amendment. First, the Seventeenth Amendment took away the states' primary political check on the federal government, leading to a vastly oversized federal government that freely tramples the states and their "rights." Next, the Seventeenth Amendment took away the appointment of U.S. Senators from responsible and accountable state legislatures and put it in the hands of special interests (who pull the strings in state-wide senate elections). As a result, Senators represent Big [Fill in the Blank], and not the states. (The links in this paragraph go to The Tenth Amendment Center, a site full of material on "states' rights.")
Both arguments seem surprising in this political climate, where "states' rights" get frequent attention and where "states' rights" advocates seem to enjoy at least some political power at different levels of government. (Don't the arguments fold back on themselves if "states' righters" are able to elect their own senators? And if they can't garner the political support to elect their own senators, doesn't that say something about the voters' views on federal power and "states' rights," effectively negating the arguments?)
In any event, the issue has appeared in a handful of races this year, but has sometimes backfired. "Repeal the Seventeenth Amendment" doesn't appear to be a particularly effective rallying cry, for good reasons. First, there's no particular reason that voters should trust state legislatures more than themselves; repeal thus may sound anti-democratic and even elitist. Next, repeal isn't a particularly durable position: When the politics change, positions on repeal will, too. (If state legislatures were to appoint Senators who do not (by advocates' reckoning) sufficiently respect "states' rights," repeal advocates might call for reinstatement!) Finally, repeal of a constitutional amendment is a particularly difficult (and uncertain) way to achieve the result that advocates seek; they might much more easily promote the election of candidates favorable to their own positions. The call to repeal thus may sound to many voters like a political gimmick, not a serious constitutional position.
Tuesday, May 18, 2010
The Supreme Court's 7-2 ruling yesterday in U.S. v. Comstock, upholding the government's ability to order "sexually dangerous persons" detained beyond their federal prison term, is a significant statement on the power of the federal government. The case has important ramifications for other public debates and cases on the scope of federal authority and federalism--particularly on the individual health insurance mandate and health care reform's alleged violation of state sovereignty under the Tenth Amendment.
There are four aspects of the Comstock ruling that ought to catch our attention:
1. The Scope of the Sweeping Clause. The five-member majority (Justice Breyer, who wrote for the Court, Chief Justice Roberts, and Justices Stevens, Ginsburg, and Sotomayor) validated the broad and sweeping authority of the Necessary and Proper Clause, reviving the expansive language given to that Clause in McCulloch v. Maryland and citing to that case throughout the ruling. (This itself is notable. According to a Westlaw search, the Court has "examined" or "discussed" McCulloch in only nine other cases in the last 20 years. The Comstock Court, in contrast, uses that case aggressively.) The Court adopted an extremely deferential version of the McCulloch test for the Necessary and Proper Clause, writing that "Congress could have reasonably concluded . . ." in support of the Act. And the Court ruled that the Clause could support a federal Act toward the end of another federal program that itself was predicated on an enumerated power in Article I, Section 8--that an Act under the Necessary and Proper Clause can be more than once removed from an enumerated power.
The upshot of the majority ruling is that the Necessary and Proper Clause can support broad federal action beyond the enumerated powers in Article I, Section 8, as long as the ultimate end (and not merely the immediate end) is one of those enumerated powers. And moreover, as discussed below, it's up to Congress, not the Court, to decide the limits of this power.
Justices Kennedy and Alito would have read a narrower Necessary and Proper Clause, but they nevertheless joined the Court in its conclusion that the Clause supported this legislation.
2. Deference to Congress. The five-member majority read the Necessary and Proper Clause as giving Congress, not the Court, the power to determine the scope of its authority. The Court deferred to Congress using something like Williamson v. Lee Optical rational basis review, writing that "Congress could have reasonably concluded . . ." in support of the legislation.
This is the kind of deference we haven't seen in the Court's recent Commerce Clause jurisprudence (with the possible exception of Gonzales v. Raich). And here it's notable that Justice Breyer wrote for the Court: Justice Breyer also wrote the lengthy and detailed dissents in U.S. v. Lopez and U.S. v. Morrison showing how the legislative evidence supported a rational basis for finding that the regulated activities in those cases substantially affected interstate commerce--why the Court should have deferred to Congress in those cases. Comstock is something of a vindication of the Breyer position as applied to the Necessary and Proper Clause.
3. A "Living" Constitution, Expanding Powers. The five-member majority was unconcerned that detaining federal prisoners as "sexually dangerous persons" was an idea unanticipated by the Framers. The Court quoted New York v. U.S. and McCulloch in writing that "the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role," and that ours is "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."
4. No Infringement upon State Sovereignty. The five-member majority reaffirmed the Tenth Amendment as a truism, writing that "[v]irtually by definition, [powers in Article I, including the Necessary and Proper Clause] are not powers that the Constitution 'reserved to the States,'" and that nothing in the Act intruded into the powers of the states.
Taken together, these aspects of the Comstock ruling reflect broad (and expanding) federal authority, with little concern for federal infringement upon so-called "states' rights." As the cases challenging health care reform move through the lower courts, we'll see how this plays out. But it's hard to imagine how, with this new 7-2 ruling, this Court wouldn't also uphold health care reform (including the health insurance mandate).
Monday, May 17, 2010
In a 7-2 opinion, the Court this morning decided United States v. Comstock, argued in January (our discussion here). The Court reversed the Fourth Circuit and upheld the constitutionality of a Congressional statute, 18 U. S. C. § 4248, allowing the order of civil commitment for a federal prisoner who is a sex offender, even if the commitment continues beyond the date the inmate otherwise would be released.
The question presented was whether the statute was within Congressional power under the Necessary and Proper Clause, Art. I, § 8, cl. 18.
McCulloch v. Maryland's famous 1819 formulation was of course invoked:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
- The Necessary and Proper Clause grants Congress broad powers;
- This type of legislation is a long-standing Congressional practice: "the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades."
- The statute is merely an extension to persons already in federal custody ("If a federal prisoner is infected with a communicable disease that threatens others, surely it would be “necessary and proper” for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others).
- Congress properly accounted for state interests and there is no Tenth Amendment issue.
- The statute has a narrow scope, and although relying on the necessary & proper clause, the "links" to an "enumerated Article I power are not too attenuated."
As to the fifth reason, Breyer does not cite a specific enumerated power to which the necessary and proper clause "links." This lack provides much of the substance of Thomas' lengthy dissenting opinion:
The Government identifies no specific enumerated power or powers as a constitutional predicate for § 4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, [citation omitted] can justify federal civil detention of sex offenders. Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).
Thomas also takes issue with the majority's dismissal of any Tenth Amendment problem, arguing that the federal statute "closely resembles the involuntary civil-commitment laws that States have enacted under their parens patriae and general police powers. "
Breyer's opinion for the Court bracketed any due process concerns, citing Kansas v. Hendricks, 521 U. S. 346 (1997). However, there is an obvious connection between the Court's narrow reading of due process in Hendricks and the expansive reading of the Necessary and Proper Clause in Comstock. Indeed, the Court seems keen to uphold laws regulating so-called "sex offenders."
Monday, April 5, 2010
Ilya Shaprio (Cato Institute) offers to debate the constitutionality of health care reform anytime, anywhere--just pay his travel expenses:
Shaprio claims to make his offer because he's heard that some groups have had a hard time finding anyone to make the constitutional case against health care reform. This seems surprising--see our coverage of opponents, on constitutional grounds (Tenth Amendment, Commerce Clause, and other grounds), here, here, and here.
Saturday, April 3, 2010
When we think of so-called "states' rights" or the Tenth Amendment, we think of the current 50 states, or perhaps if we are more historically-minded, we think of the past, including the "original" 13 colonies/states. But what about the "other" states, the almost-states?
Transylvania? Texlahoma? Deseret? South California? West Florida?
And even - - - Long Island?
An NPR story asserts: "It's been over half a century since Hawaii joined the United States and the 50th star was added to the flag. And — except for the occasional discussion of Puerto Rican statehood — there hasn't been much serious talk about expanding beyond 50. As for unserious talk, that has never been in short supply."
The focus is Lost States: True Stories of Texlahoma, Transylvania, and Other States That Never Made It by Michael J. Trinklein. The just-published book is advertised to delight history buffs, but it should also provide fodder for theorists of federalism and of the Tenth Amendment.
Tuesday, March 23, 2010
Within ten minutes of President Obama’s signing of the Patient Protection and Affordable Care Act, available as large download here, thirteen states through their state attorney generals filed a complaint in the Northern District of Florida, Pensacola Division, challenging the constitutionality of the statute.
The states - - - Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, and South Dakota - - - contend that the Act “greatly alters the federal-state relationship, to the detriment of the states, with respect to Medicaid programs specifically and healthcare coverage generally” (para 39).
Count One, entitled “Unconstitutional Exercise of Federal Power and Violation of The Tenth Amendment (Const. Art. I & Amend. X)” alleges both that the Act exceeds Congressional power under Art I sec 8; the “taxing and Spending Clause”; or “any other provision of the Constitution” (para 56), and that the Act violates the Tenth Amendment.Count Two, entitled “Violation of Constitutional Prohibition of Unapportioned Capitation or Direct Tax
(Const. Art. I, §§ 2, 9)” alleges that the tax penalty on uninsured persons “constitutes a capitation and a direct tax that is not apportioned among the states.”
Count Three, entitled “Unconstitutional Mandate That All Individuals Have Health Insurance Coverage Or Pay Tax Penalty (Const. Art. I & Amend. X)” alleges:
The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans. Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce, whether interstate or otherwise. As a result, the Act cannot be upheld under the Commerce Clause, Const. art. I, § 8. The Act infringes upon Plaintiffs’ interests in protecting the freedom, public health, and welfare of their citizens and their state fiscs, by coercing many persons to enroll in Medicaid at a substantial cost to Plaintiffs; and denies Plaintiffs their sovereign ability to confer rights upon their citizens and residents to make healthcare decisions without government interference, including the decision not to participate in any healthcare insurance program or scheme, in violation of the Tenth Amendment (para 65).
The fourth and final count seeks declaratory judgment based on the previous allegations.
For pedagogical purposes, the Complaint could be used as an in class exercise in a Constitutional Law course, perhaps using some of the materials available from the Federalist Society here to write a memo in support of the complaint, as well our previous discussions here and here. It might also be useful for a Constitutional Litigation seminar to engage in a redrafting of the Complaint or a drafting of an Answer.
March 23, 2010 in Commerce Clause, Congressional Authority, Current Affairs, Federalism, Medical Decisions, News, Supremacy Clause, Teaching Tips, Tenth Amendment | Permalink | Comments (3) | TrackBack (0)
Monday, January 4, 2010
The Tenth Amendment Center tracks state health care "nullification" efforts on an interactive map, with useful links to legislation and proposed state constitutional amendments. We posted most recently on state constitutional arguments against federal health care reform here and here.
As you know, or might guess, the Tenth Amendment Center supports such state nullification efforts and argues that they are fully constitutional. Michael Boldin sets out the case here. If you think that the Supremacy Clause might have something to say about state arguments against federal health care reform, the Tenth Amendment Center has a response to that, too:
Sunday, September 13, 2009
State lawmakers in several states have sought to introduce measures to curtail federal health care reform, according to a report yesterday by the AP. The effort has so far been most successful in Arizona, where a proposed state constitutional amendment will appear on the ballot in 2010. The bill reads in relevant part:
A. To preserve the freedom of Arizonans to provide for their health care:
1. A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system.
2. A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services. A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services.
B. Subject to reasonable and necessary rules that do not substantially limit a person's options, the purchase or sale of health insurance in private health care systems shall not be prohibited by law or rule.
This measure, and others like it, would certainly run up against federal preemption under any comprehensive federal reform bill.
On the flip side, protesters again suggested at Saturday's protest on the National Mall that federal health care reform would increase the size and scope of the federal government beyond what the founders intended. But any federal reform measure currently in play would fit comfortably within Congress's authority under the Commerce Clause and the Court's "substantial effects" test--i.e., that Congress can regulate under the Commerce Clause anything that has a "substantial effect" upon interstate commerce.
Given the reality of federal supremacy, the expansive federal authority under the Commerce Clause, and a sprawling health care system that pervades the national economy (isn't that exactly the problem?), the state efforts to limit federal health care reform and the arguments that federal health care reform exceed the federal government's powers have no real traction in our federal constitutional system. But they seem to have garnered enough of a following to at least signal that some number think, on principle or merely because of politics, that the federal government has no business in health care reform.
Friday, May 15, 2009
The state sovereignty movement speaks with many voices. At its modest, the movement merely seeks to release states from unfunded federal mandates and federal strong-arming through conditioned spending programs. At its strongest, some in the movement advocate secession.
But despite significant differences within the movement, there seems to be broad agreement that the Tenth Amendment protects states from federal interference more than the Supreme Court has held in cases like New York v. United States (federal government cannot commandeer a state's legislative process by requiring a state to enact and enforce a federal regulatory program), Printz v. United States (federal government cannot require state or local officials to enforce federal law), and South Dakota v. Dole (federal government may place certain conditions upon federal funds).
Just Wednesday, the Oklahoma Senate passed House Concurrent Resolution 1028, "A Concurrent Resolution claiming sovereignty under the Tenth Amendment to the Constitution of the United States over certain powers; serving notice to the federal government to cease and desist certain mandates; providing that certain federal legislation be prohibited or repealed; and directing distribution." Here are some highlights:
WHEREAS, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states . . .
WHEREAS, the Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp . . .
[therefore be it resolved]
THAT the State of Oklahoma hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.
THAT this serve as Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.
THAT all compulsory federal legislation which directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.
Saturday, April 4, 2009
Kansas Governor Kathleen Sebelius, whose Senate confirmation as HHS Secretary both started and stalled this week, and Georgetown and Kennedy School student Ned Sebelius co-authored an article in the Harvard Law & Policy Review, the official journal of the American Constitution Society, titled Bearing the Burdens of the Belway: Practical Realities of State Government and Federal-State Relations in the Twenty-First Century. The piece is a very practical (i.e., non-theoretical) review of federal-state relations over the past eight years from the perspective of a (Democratic) governor implementing federal mandates ofa (Republican) Congress and President.
The authors argue that federal mandates during the early twenty-first century are overwhelming the states, especially in the current economic crisis. Moreover, the types of federal bullying--failing to repay states for implementing federal program requirements, and setting caps, not floors, on state policy initiatives--are particularly burdensome and hamstring those states that seek to take initiative in areas where thefederal government dropped the ball.
They argue that federal strings in any single program may amount merely to "coercion" (acceptable under South Dakota v. Dole), when taken together unfunded federal mandates amount to compulsion.
The authors look at No Child Left Behind, SCHIP, and the State Criminal Alien Assistance Program and REAL ID to bring a very practical perspective to federal state relations.
The article is unselfconsciously political, but that may make it all the more interesting an illustration of a governor's perspective on federal mandates. It'll be especially interesting to see how this perspective informs the likely Secretary Sebelius, as she takes charge of an agency with many and varied cooperative federalism programs.
Wednesday, March 11, 2009
South Carolina Governor Mark Sanford yesterday wrote to members of Congress detailing his objections to the federal stimulus act, stating his intent to reject portions of the federal money for ongoing state needs, and indicating that he'll seek a waiver from the White House to use the governor's portion of the stimulus funds--about 25% of South Carolina's total allocation, or about $700 million--to pay down the state's debt. If the White House declines, Sanford will reject the money. (Sanford's position on federal bailouts and stimuli, by the way, is not entirely new. He was also highly critical of the Bush administration financial bailout plan.)
The federal government, of course, can impose conditions upon its funds to the states, within certain boundaries. And State's, of course, can accept or reject the conditions (along with the funds). But Sanford's move raises the question: How?
The federal stimulus act includes a provision--inserted by South Carolina Democratic Congressman Jim Clyburn--that allows state legislatures to bypass their governor's rejection of federal stimulus funds merely by adopting a concurrent resolution. Section 1607(b) of the act (page 190) reads:
If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.
The act thus cuts out the governor, without regard to whatever state law may have to say.
Jack Balkin over at Balkinization suggests that this may well be unconstitutional: It depends on what state law says about the legislature's ability to accept the funds on behalf of the state when the governor would reject them. (According to ABC News, Clyburn said in response, "I'm not a constitutional authority, I'm not a lawyer, and I will let lawyers and constitutional scholars argue that point and that's why we have courts." Moreover: "I don't know whether or not it's constitutional. Whatever is constitutional is whatever the Supreme Court says it is.")
If 1607(b) is inconsistent with state law on who gets to decide whether to take federal funds, it most certainly is unconstitutional--every bit as much as the federal government dictating the location of a state capitol. But recall that 1607(b) wasn't the only portion of the act where the federal government attempted to direct the democratic workings of state government: The original H.R. 1 contained a provision denying funds to Illinois if Blagojevich were still in office (!).
Whatever one thinks about Sanford (and other Republican governors threatening to reject the funds) and Blagojevich, Congress seems to be trying to stimulate much more than the economy: It apparently also seeks to stimulate how state governments work. This it cannot do.
Tuesday, February 10, 2009
The NYT reported yesterday on states' complaints about requirements under the federal Adam Walsh Child Protection and Safety Act and on sex offenders' claims that the registration requirements violate constitutional rights.
But officials in many states complain about the law's cost and, in some instances, contend their laws are more effective than the federal one. The states also suggest that the federal requirements violate their right to set their own policies and therefore may be unconstitutional [under the Tenth Amendment], at least in part. . . .
Other lawsuits have challenged the requirement that adults whose crimes were committed before the law's passage appear on public registries for longer than they had been led to expect. Some lawyers say that amounts to changing an offender's penalty after the fact, a potential [violation of the Ex Post Facto and Due Process Clauses].
The Tenth Amendment claim has not gained traction in the courts; in fact, it's been uniformly rejected. Courts--all district courts, as far as I can tell--have held that the Act does not require state officers to do anything more than they already do under state laws; thus there's no commandeering.
But the Ex Post Facto and Due Process arguments have gained some small measure of traction. For example, the Seventh Circuit ruled just over a month ago in late 2008 in U.S. v. Dixon that a conviction for failing to register ran afoul of both clauses, where the defendant's failure to register occurred before the Act took effect (i.e., within a reasonable period after the date he was required to register under the Act). But the court in that same case also held that another conviction did not violate the clauses, where this second defendant admitted to not registering a full five months after the date he was required to register under the Act. Timing quite obviously matters.
Commerce Clause claims have gained more traction and divided the courts. The Eighth Circuit--the most recent circuit court to rule--in U.S. v. Howell held that the registration requirements did not exceed Congressional authority under the Commerce Clause and the Necessary and Proper Clause. (The Howell court specifically augmented the Commerce Clause with the Necessary and Proper Clause in its holding, distinguishing other cases that ruled the Act exceeded Commerce Clause authority (alone).)
Other claims are based on the right to travel and the nondelegation doctrine; these claims haven't gone anywhere.
Monday, January 26, 2009
The House bailout plan--H.R. 1--contains an extraordinary provision apparently designed to deny funds to Illinois as long as embattled Governor Rod Blagojevich has any control over them (!). Read here:
None of the funds provided by this Act may be made available to the State of Illinois, or any agency of the State, unless (1) the use of such funds by the State is approved in legislation enacted by the State after the date of the enactment of this Act, or (2) Rod R. Blagojevich no longer holds the office of Governor of the State of Illinois. The preceding sentence shall not apply to any funds provided directly to a unit of local government (1) by a Federal department or agency, or (2) by an established formula from the State.
H.R. 1, sec. 1112.
Whatever we think about Blagojevich, this is a clear federal impingement on the operations of a state government and sets a very bad precedent. (Blagojevich will certainly be removed from office soon, thus rendering the issue moot. This language therefore won't be tested and will remain on the books (absent an amendment) as a bad precedent for the federal government intruding into the internal operations of a sovereign state.)
The spending condition fails under South Dakota v. Dole, because it bears no relationship to the federal interest in the bailout program. But even if we stretch things to say that the condition relates to a federal interest in fiscal responsibility (because Blagojevich simply can't be trusted with any public money), the condition fails under Coyle v. Oklahoma. Remember that case? Justice O'Connor cited it in her dissent in Garcia v. San Antonio Metropolitan Transit Authority for the claim that some federal intrusions into the operations of state governments--in Coyle, the federal government dictating the location of the state capital--"undermine the state sovereignty inherent in the Tenth Amendment." Here, no different: The federal bailout spending requirement that Illinois remove its governor--or, equally bad, that it time its legislation to meet federal standards--simply goes too far.
Tuesday, October 7, 2008
An insightful book review by Bradley J. Best (Dept. Political Science, Buena Vista University)
of An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court by Patrick Garry (Penn State Press 2008).
In AN ENTRENCHED LEGACY, Patrick Garry delivers a forceful indictment of the most basic trajectories of US Supreme Court decision making in the modern period. Put simply, Garry casts the post-1936 Court’s embrace of an expansive federal regulatory power and individual rights jurisprudence as nothing less than a betrayal of sacred constitutional principles. The scale of interventionist, national government power in post-New Deal America, he argues, evinces a sustained repudiation of federalism and separation of powers principles. Furthermore, expanding zones of constitutionally protected individual liberty are, in Garry’s view, the result of the Court’s disregard of the limits of the judicial function and rejection of the Ninth and Tenth Amendments as constraints on the powers of the national government.
The full review is available at 18 LAW AND POLITICS BOOK REVIEW 867-870 here.