Tag: federalist society

The Federal Government Can’t Give Itself More Power Just By Signing a Treaty

With ObamaCare, immigration, affirmative action, gay marriage, and the other hot-button issues rolling through our courts this year, some of you may have overlooked a little case on the Treaty Power, United States v. Bond, which was at the Court last year and may well make it back next year.

I’ve covered Bond before, and Cato has filed two amicus briefs in the case (before the Supreme Court and then in the Third Circuit on remand). As I described it last year, Bond is “your typical sordid tale of adultery, toxic chemicals, and federalism.” It’s a bizarre scenario you can read about in the previous links, but the issue that has drawn Cato’s attention—and that of Paul Clement, who remains Mrs. Bond’s counsel—is whether Congress can regulate the conduct of something solely because the United States is party to a treaty regarding that subject.

That is, even though Congress does not have the power to pass, for example, general criminal statutes, if Congress ratifies a treaty calling for such statutes, the dominant reading of an old precedent called Missouri v. Holland is that its power increases beyond constitutional limits. Not only would this mean that the Executive has the ability to expand congressional power by signing a treaty, but it would mean that foreign governments could change congressional power by abrogating a previously valid treaty—thus removing the constitutional authority from certain laws. Cato’s briefs have taken issue with such an interpretation of the Treaty Power, tracking the argument made by new Cato senior fellow (and Georgetown law professor) Nicholas Quinn Rosenkranz in his magisterial Harvard Law Review article, “Executing the Treaty Power.”

Earlier this month, the Third Circuit upheld Mrs. Bond’s conviction because the statute under which she was convicted duly implemented the Chemical Conventions Act and a lower court can’t overrule Missouri v. Holland. The court cited Cato’s brief and Nick’s article, however, and a concurrence by Judge Thomas Ambro, after also citing John Eastman’s article about the case in the Cato Supreme Court Review, specifically called on the Supreme Court to clarify the meaning of Missouri v. Holland.

The Court will have an opportunity to do so, with Paul Clement currently preparing a cert petition, which Cato will again support. In the meantime, you can listen in on a teleforum the Federalist Society is having about the case, featuring Prof. Rosenkranz (Fed Soc membership required, which costs $5-50 per year).

War Against the Core

With the release of a new Brookings Institution report today, and one from a consortium of groups last week, resistance to the national-standards offensive seems to be mounting. And even though almost every state in the union has adopted the Common Core, and few are likely to formally undo that, the war against the Core can still be won.

Today’s new front comes in the form of the Brookings Institution’s 2012 Brown Center Report on American Education, which includes three sections attacking rampant misuse of standards and tests. The first focuses on the Common Core, looking at the discernable impacts of state-level standards on achievement, and finding that (a) varying state standards have no meaningful correlation with achievement on the National Assessment of Educational Progress, and (b) there is much greater variation within states than between them, meaning national standards will do little to change big achievement gaps.

The report’s other two sections deal, first, with differences between the Main and Long-Term Trend NAEP – which brings up a central problem of using tests to judge quality without knowing what’s on them – and second, the misues of international exams to tout favorite policy prescriptions. Basically, pundits and analysts love to pick out countries in isolation and finger one or two characteristics of their education systems as key to their success. Some also love to invoke  this stinker that I and others have railed about for years:

In the U.S., advocates of a national curriculum have for years pointed to nations at the top of TIMSS and PISA rankings and argued that because those countries have national curriculums, a national curriculum must be good. The argument is without merit. What the advocates neglect to observe is that countries at the bottom of the international rankings also have a national curriculum.

The report is well worth checking out. The only quibble I have is that it fails to mention what I covered two years ago, when the national standards stealth attack was fully underway: reviewing the national standards research literature, there is no meaningful evidence that national standards lead to better outcomes. It’s great to have more support for this, but we’ve known for a while that the empirical foundation for national standards is balsa-wood strong.

The second report comes from a coalition of the Pioneer Institute, Pacific Research Institute, Federalist Society, and American Principles Project. The Road to a National Curriculum focuses on all the legal violations perpetrated by the federal government to “incentivize” state adoption of the Common Core and connected tests. Much is ground we at Cato have periodically covered, but this report goes into much greater depth on specific statutory violations. It also does nice work debunking standards supporters’ plea that they don’t want to touch curriculum, only standards, as if the whole point of setting standards weren’t to shape curricula. The report goes beyond pointing out just this logical silliness by identifying numerous instances of Education Department officials, or developers of federally funded tests, stating explicitly that their  goal is to shape curricula.

This report is another welcome counter-attack, though it, like the Brookings report, misses something important. In this case, that all federal education action – outside of governing District of Columbia schools, military schools, and enforcing civil rights – is unconstitutional. Stick to that, and none of these other threats materialize.

Unfortunately, it is unlikely that many states that have adopted the Common Core – and all but four have – will officially back out. An effort was made in Alabama to do so, and one is underway in South Carolina, but Alabama’s failed and it’s not clear that there’s huge Palmetto State desire to withdraw.  Many state politicians don’t want to miss out on waivers from No Child Left Behind, which the Obama administration has essentially made contingent on adopting the Common Core, and others would rather not revisit the often contentious standards-adoption process.

That doesn’t mean that any state is truly locked into the Common Core. Formally they are, but like so much government does, states and districts could just ignore the Common Core, keeping it as the official standard but doing something else in practice. The only thing that could really stop them is if Washington were to rewrite federal law to make access to major, annual education funding – not Race to the Top or even waivers, but money from a reauthorized No Child Left Behind – contingent on adopting Common Core, and on performance on one of the two federally funded tests to go with the standards. Then the battle truly would be lost, but we are not there yet – indeed, reauthorization doesn’t seem likely until at least next year – so there is plenty of time for the national standards resistance to grow, and to dismantle the powerful, but ultimately hollow, national standards juggernaut.

Published: My First Year Battling Obamacare

Back in June, I wrote about a law review article I had just completed that detailed my first year or so of activities surrounding the Obamacare lawsuits.  Well, now it’s officially published, in the Florida International University Law Review.  Here’s the abstract:

This article chronicles the (first) year I spent opposing the constitutionality of Obamacare: Between debates, briefs, op-eds, blogging, testimony, and media, I have spent well over half of my time since the legislation’s enactment on attacking Congress’s breathtaking assertion of federal power in this context. Braving transportation snafus, snowstorms, and Eliot Spitzer, it’s been an interesting ride. And so, weaving legal arguments into first-person narrative, I hope to add a unique perspective to an important debate that goes to the heart of this nation’s founding principles. The individual mandate is Obamacare’s highest-profile and perhaps most egregious constitutional violation because the Supreme Court has never allowed – Congress has never claimed – the power to require people to engage in economic activity. If it is allowed to stand, then no principled limits on federal power remain. But it doesn’t have to be this way; as the various cases wend their way to an eventual date at the Supreme Court, I will be with them, keeping the government honest in court and the debate alive in the public eye.

Go here to download “A Long Strange Trip: My First Year Challenging the Constitutionality of Obamacare.”

What Is Judicial Activism?

Nearly a year ago, I had an engaging debate at Berkeley Law School regarding “judicial activism.”  Of course, as I clarified, the phrase is really just an epithet hurled by someone to describe a legal ruling with which he disagrees. The whole argument about whether a certain judge is “activist,” “restrained,” or anything else is irrelevant: fidelity to the Constitution should be the sole evaluative criterion—and point of debate—regardless of whether that means striking down a law or upholding it, deferring to the legislature or not.

As I said during this debate (which was against a young law professor named Fred Smith),

The purveyors of conventional punditry all miss the larger point.  The role of the judiciary in terms of constitutional interpretation is to fully interpret and apply the Constitution, period.  So, if that means upholding a law, fine.  If that means striking it down, fine.  Activism is doing something that is not supposed to be the judicial role or not being faithful to the Constitution, which is no small task in part because of the doctrinal mess the Supreme Court has made.  Again, whether a particular statute stands or falls is of no moment.  Fidelity to the founding document should be the touchstone, not a circular debate over the virtues of judicial restraint or—as John Roberts put it at his confirmation hearing—modesty: just calling balls and strikes, just being in a kind of modest judicial role.  Again, where you stand on those sorts of debates depends on where you sit.

I can quote this debate because a transcript has been published in the Federalist Society’s journal, Engage.  The current volume has plenty of other interesting articles, including some authored by various Cato-affiliated or -friendly folks.

My First Year Battling Obamacare

Most people are by now familiar with the broad strokes of the lawsuits challenging Obamacare: more than 30 cases around the country allege, among other claims, that the federal government lacks the constitutional authority to require people to buy a product (the individual health insurance mandate)—and the only way to avoid the mandate is to become poor.  After decisions going both ways in the district courts, we are now at the appellate stage in five of those suits, including Virginia’s and the Florida-led 26-state effort.

Those who follow developments in constitutional law are also familiar with the broad legal arguments being made: that the power to regulate interstate commerce, even when read in the context of the power to make laws that are necessary and proper to executing that specified commerce power, does not include the power to force someone to engage in economic activity—to create, in effect, the commerce being regulated.  Not even during the height of the New Deal did the government require this, and there are no parallels in the Civil Rights Era or since.  (And also that Congress can’t do this under the taxing power for various reasons that I won’t go into here; even those courts ruling for the government have rejected the taxing power assertion.)

Finally, those who follow Cato are probably aware that I’ve been spending a good part of my time since Obamacare’s enactment in March 2010 in this area: filing briefs, writing articles, debating around the country, appearing in the media.  And I’m not alone; our entire Center for Constitutional Studies has been involved in various capacities.  Indeed, Cato Chairman Bob Levy himself produced a very useful Primer for Nonlawyers about what is the clearly the central constitutional and public policy debate of our generation.

Well, if anyone cares to peek beyond the curtain of how Cato’s legal efforts against Obamacare have evolved, I have an article on that forthcoming in the Florida International University Law Review.  Here’s the abstract:

This article chronicles the (first) year I spent opposing the constitutionality of Obamacare: Between debates, briefs, op-eds, blogging, testimony, and media, I have spent well over half of my time since the legislation’s enactment on attacking Congress’s breathtaking assertion of federal power in this context. Braving transportation snafus, snowstorms, and Eliot Spitzer, it’s been an interesting ride. And so, weaving legal arguments into first-person narrative, I hope to add a unique perspective to an important debate that goes to the heart of this nation’s founding principles. The individual mandate is Obamacare’s highest-profile and perhaps most egregious constitutional violation because the Supreme Court has never allowed – Congress has never claimed – the power to require people to engage in economic activity. If it is allowed to stand, then no principled limits on federal power remain. But it doesn’t have to be this way; as the various cases wend their way to an eventual date at the Supreme Court, I will be with them, keeping the government honest in court and the debate alive in the public eye.

Read the whole thing, titled “A Long Strange Trip: My First Year Challenging the Constitutionality of Obamacare.”

Miranda Ain’t Broke

The Federalist Society has a podcast up, Miranda & Terror Suspects, debating whether terrorism suspects should be given Miranda warnings. University of Utah law professors Paul Cassell and Amos Guiora debate the issue, and Richard D. Klingler of Sidley Austin LLP moderates. Cassell provides a slideshow to go with the audio file.

Listening to the podcast, I’m struck at how so many of the concerns cited by Cassell are already dealt with by existing case law. The Quarles case created a “public safety” exception to Miranda that allows officers to ask questions without giving Miranda warnings when there is an ongoing threat to public safety. In Quarles, a revolver hidden in a supermarket was enough to create the exception.

As I wrote at Townhall.com in August, the “public safety” exception has already been applied broadly in the terrorism context in United States v. Khalil:

In 1997, NYPD officers raided an apartment where two men had constructed pipe bombs and planned to detonate them on a subway or bus terminal. During the raid, the police shot and wounded the bomb maker as he lunged for a black bag containing the explosives.

After bomb technicians discovered that a switch on one of the pipe bombs had been flipped, officers questioned the wounded bomb maker about the number of bombs, how many switches had to be flipped to set them off, whether there was a timer, what wires to cut to disarm them, and whether they were intended as suicide devices. The Court of Appeals for the Second Circuit let all of the answers come into evidence via the public safety exception.

The public safety exception is settled law and has been ruled on by every federal circuit and over half the states, allowing police to deal with all manner of emergencies. Courts have allowed questions about the existence or location of guns, bombs, assault or kidnapping victims still in danger, accomplices and their identities, and plans for future crimes.

Add to this the fact that statements given before Miranda warnings are still admissible to impeach a suspect who changes his story when he gets to court, and that physical evidence obtained without Miranda warnings remains admissible.

So, here’s a practical proposal: the above list ought to be distributed to counterterrorism task forces across the nation. Instead of spending time and energy on a measure that is out of Congress’ power, have government lawyers create a pamphlet to educate the local, state and federal officers who will capture tomorrow’s aspiring terrorist. Boil down the law to bullet points and put it on a business card so that they have it on hand when the next emergency unfolds. That’s a tool first responders can use.

Break Out of Those February Blahs!

…by attending one of my public events this month.  Here’s what I currently have scheduled (those sponsored by Federalist Society marked with an asterisk):

  • Feb.7 at 4pm – Comparative Constitutionalism, Rule of Law, and Lessons from Iraq – NYU Law School*
  • Feb.8 at 1pm – Panel on Judicial Activism (American Constitution Society conference on “Federal Courts, Inc.?”) – NYU Law School 
  • Feb.9 at 1pm – Debate on the Constitutionality of Obamacare – Brooklyn Law School*
  • Feb.10 at 10:45am – Debate on the Constitutionality of Obamacare – AMA Advocacy Conference at the Grand Hyatt, Washington, DC
  • Feb.15 at noon – Is Dodd-Frank Constitutional? – Cato Policy Forum 
  • Feb.16 at 12:15pm – Debate on the Constitutionality of Obamacare – University of Akron Law School*
  • Feb.16 or 17 - TBD – possible event(s) at Case Western and/or Cleveland State Law Schools*
  • Feb.20 at 10:45 – “Are There Any Limits on Federal Power?” – Students for Liberty International Conference, George Washington University Marvin Center, Washington, DC
  • Feb.22 at noon – Debate on Constitutionality of Obamacare – University of Arkansas Law School*
  • Feb.23 at 12:20 – TBD – Southern Methodist University, Dallas*

As always, if you attend any of these events, please come up and introduce yourself.  You can also follow my travels and travelogues on Twitter at @ishapiro.