Tag: general welfare clause

Celebrating James Madison

Two hundred and sixty years ago, James Madison was born in Virginia. His life was long and eventful, comprising the American Revolution, the writing and ratification of the U.S. Constitution, the founding of political parties, the War of 1812, and the rise of Andrew Jackson. The struggles that would culminate in the Civil War were evident in the last years of his life.

Along with his political career, Madison proved to be one of this nation’s most insightful and certainly its most influential political theorist. He is often accorded the twin titles of Father of the Constitution and the Bill of Rights. No doubt those titles claim too much for him or any other mortal. But according him those titles is not far from the truth.

What would surprise Madison about our current constitutional and political arrangements?

He would be surprised and, I think, displeased by the size and scope of the federal government. Madison was a limited government man. He thought the general welfare clause in Article I of the Constitution was simply a shorthand way of mentioning other enumerated powers, not a general grant of power for Congress to pursue whatever it might think served the general welfare. As he wrote, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.” Of course, for some decades now, the courts have permitted Congress broad powers under the general welfare clause.

He would also be taken aback by the all but plenary power accorded to Congress under the Commerce Clause of Article I. How could (can) a limited government be reconciled to such plenary power? Moreover, as he said in Congress, “if industry and labour are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point out.”

I think Madison would also be surprised by how far the executive has taken on the prerogatives of an English king, in fact if not in law. Like many republicans of the founding era, he worried that the legislature would dominate the executive. We live in a time where Congress happily delegates its power to the executive branch and awaits the executive’s budget agenda. At the same time, Madison worried that executives, presidents and kings, had every reason to declare and make war, the latter being the most dreaded of “all enemies to public liberty.”  As he wrote in 1795:

Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes and the opportunities of fraud growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could reserve its freedom in the midst of continual warfare.

In this light, it is perhaps inevitable that the authors of The Executive Unbound dismiss Madison in favor of Carl Schmitt, the author of The Concept of the Political and from 1933 onward, Preußischer Staatsrat and President of the Vereinigung nationalsozialistischer Juristen.

For Madison, the whole point was to bind government through a Constitution, enumerated powers, and ambition pitted against ambition. His was a noble vision of politics in service to individual liberty. Let us hope that we are not living “after the Madisonian Republic.”

Responding to Akhil Amar on Obamacare

Yale law professor Akhil Amar, one of the nation’s leading constitutional scholars and a “progressive originalist” of sorts – he joined with Randy Barnett and others on a brief supporting our view of the Privileges or Immunities Clause in the McDonald case – had a fiery op-ed about Judge Vinson’s decision in the Sunday L.A. Times.  More than fiery; I’d say intemperate, uncharacteristically so for the mild-mannered Prof. Amar.

Here’s an excerpt:

There is nothing improper in the means that Obamacare deploys. Laws may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers’ nickel when you have trouble breathing.

I was all set to respond when I saw that Tim Sandefur had beat me to the punch on PLF’s blog.  Here’s an excerpt of that:

Instead [of offering a limiting principle to federal power if the individual mandate passes constitutional muster], he resorts to the saddest of rhetorical tricks–accusing the judge of being like Roger Taney in Dred Scott. Lawyers should have their own “Godwin’s Law”: whoever is first to accuse the judge of being like Dred Scott loses the argument. Amar starts out by saying his students know more about the Constitution than Judge Vinson, but what I wonder is whether Amar’s students will, like their teacher, use false analogies, set up straw men, ignore their opponents’ arguments, and resort to the equivalent of childish name-calling.

Good on ya, Tim!  Read the whole thingDavid Bernstein and Ilya Somin have similarly chimed in, and similarly cited Tim.

One thing for which I will commend Amar is his adoption of the term “Obamacare.”  I’ve never understood how this is a pejorative (unless said with a sneer, but by that standard anything can be pejorative). The one semi-accurate criticism I’ve heard is that the law was mostly written by Congress, not the White House – for which the president got plenty of heat.  But that just means it would be better to call it Pelosi-Reid-care, which presumably is no more or less pejorative.  In any event, that ship has sailed: Obamacare this abomination (note I didn’t say “Obamination”) will remain.

Cite the Constitutional Authority or the Lack Thereof!

A new House rule requires that every new bill or joint resolution introduced in the House include a statement citing the specific powers in the Constitution granted to Congress to enact the proposed law.  In the absence of such a statement, the clerk of the House will not accept the bill and it will be returned to the sponsor.

This new rule may have two potentially valuable effects:

  • For some time, this rule may have a valuable educational effect, reminding new House members, returning members, and the public that Article 1, Section 8 of the Constitution authorizes only 18 federal powers – far fewer than the powers that the federal government has assumed, especially during the past 75 years.
  • The constitutional citations for House bills that are approved would be part of the legislative record that the Supreme Court may consider in subsequent litigation bearing on the constitutionality of Acts of Congress.

This rule, however, is also likely to have two potentially negative effects:

  • This rule, by limiting new legislation to federal activities for which there is express or implied authority in the Constitution, would severely limit the potential of Congress to exercise legislative authority over the many current federal  activities for which there is no such authority.
  • In the absence of  authority in the Constitution for many types of current federal activities or others that Congress may wish to approve, Congress – like the Supreme Court – is likely to rationalize their judgments by elastic interpretations of the general welfare clause, the interstate commerce clause, or the necessary and proper clause.

An alternative interpretation of this new rule, however, would maintain its potentially valuable effects, maintain the potential for Congress to exercise legislative authority over federal activities for which there is no authority in the Constitution, and avoid the equivocation that is characteristic of statements about the powers of the federal government for which there is no authority in the Constitution: A new bill should be cleared for a vote when accompanied by a statement that identifies either the constitutional authority for the federal activities addressed by the bill or the lack thereof.  In the latter case, a statement such as the following should be sufficient for the House clerk to clear a bill for a vote:

There is no authority in the Constitution for the federal activities addressed by this bill.  For such time as any relevant constitutional issues are not resolved and the measures addressed by this bill remain in force as positive law,  we accept the responsibility to assure that this activity is administered efficiently and fairly and to propose changes that would better serve the American people.

This alternative interpretation of the new rule would increase the opportunity for members of Congress to express their views about the constitutional issues bearing on the powers of the federal government but would maintain their potential to legislate.  It is important to maintain an effective separation of powers within the federal government.  Congress does not have an impressive record as a legislature, but it would be a lousy constitutional court.

On Federal Education, Think Progress Should Think Harder

Over on the Think Progress blog, Ian Millhiser accuses Sen. Tom Coburn (R-Okla.) of never having read the Constitution. His grounds for the accusation? Coburn, citing Jefferson, doesn’t think that the Constitution gives the federal government authority to provide such things as Pell Grants and student loans.

Writes Millhiser:

Sen. Coburn might want to try actually read the Constitution before he pretends to know what it allows. Article I provides that “[t]he Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States,” a grant of power that unambiguously empowers Congress to raise funds and spend them on programs that are broadly beneficial to American welfare — such as education.

Moreover, while Coburn’s reference to Thomas Jefferson is true in the narrowest sense of the term, it also betrays Coburn’s ignorance of constitutional history. During the Washington Administration, Jefferson and James Madison led a minority coalition which believed that Congress’ constitutional power to spend money was too narrow to support spending programs such as the First Bank of the United States. President Washington, however, rejected their arguments. Moreover, while Coburn is correct that President Jefferson briefly referenced his narrow view of the Constitution in his 1806 State of the Union, Jefferson was an extreme outlier by this point in American history. Even Madison parted ways with Jefferson by the time Madison became president in 1809.

This might be a classic pot-kettle situation. At the very least, it is utterly impossible to say that the general welfare clause “unambiguously” empowers Congress to raise funds and spend them – with massive strings attached, of course – on education. Indeed, that the general welfare clause does anything other than introduce the specific, enumerated powers that follow it was expressly rejected by Madison in Federalist no.  41, in which he wrote:

For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

The general welfare clause, quite simply, confers no power – it just explains why the specific powers that follow it were given.

But didn’t Alexander Hamilton – who had Washington’s ear – reject that notion? Well yes, in his 1791 Report on Manufactures he suggested that the federal government could do almost anything as long as it was done in the interest of the entire nation. But his report was not only shelved by Congress at the time, Hamilton’s argument was quite different from what he wrote in the Federalist Papers. Though speaking  specifically of the taxation and  ”necessary and proper” clauses, in Federalist no. 33  Hamilton wrote that seemingly broad powers were given to Congress only to execute “specified powers:”

[I]t may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if the clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers [italics added]. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.

How about the argument that Jefferson’s quaint small-government beliefs were way out of date by 1806? Well, they sure weren’t on education.

For one thing, it is notable that President Washington probably had a more expansive view of the federal government’s role in education than one might expect. He wanted a national university, after all. But he didn’t get it – that notion was well out of sync with the limited federal government most Americans wanted. 

Next, Coburn was actually quoting Jefferson from Jefferson’s call for federal involvement in education, an idea that went nowhere because it would have constituted more federal intrusion – not less – than most Americans wanted. Indeed, Jefferson was generally on the big-government fringe of his time when it came to education. He only got the University of Virginia after four decades of trying, and never got the rudimentary public schooling system he wanted for Virginia.  Most people at the time simply didn’t think government’s role – especially the federal government’s – was to run education.

One last bit of information demonstrates just how truly mistaken Millhiser is in his attack on education ”tenthers.” In 1943 – when Franklin Delano Roosevelt was president – the United States Constitution Sesquicentennial Commission, under the direction of the president, the vice president, and the Speaker of the House, published The History of the Formation of the Union under the Constitution. It noted in a section titled “Questions and Answers Pertaining to the Constitution:”

 Q. Where, in the Constitution, is there mention of education?

A. There is none; education is a matter reserved for the states.

Even FDR’s people, apparently, didn’t find that the Constitution ”unambiguously” gave Washington authority to involve itself in education – quite the opposite!

In light of all this, it is clearly not Mr. Coburn who can reasonably be accused of having never read the Constitution. Indeed, not only has he almost certainly read it, it seems he has even taken the time to understand it.

Kagan Nomination Launches Constitutional Debate

As expected, and despite an exhaustive review of shortlist candidates, dead-end leaks about Hillary Clinton, and other distractions, President Obama settled on the long-time prohibitive favorite to be his next Supreme Court nominee.  Elena Kagan became the justice-in-waiting the moment Sonia Sotomayor was confirmed, so you didn’t have to be Tom Goldstein to have predicted this.  The president wanted a highly credentialed non-judge who would serve for a long time and wouldn’t cost too much political capital.  He got a 50-year-old solicitor general and former dean of Harvard Law School – the first female in each post – whose record the Senate (and media, and activists) already examined in a confirmation process that put her into her current post.  That her appointment would put three women on the high court for the first time also doesn’t hurt.

Kagan is certainly not the worst possible nominee from among those in the potential pool – that would’ve been Harold Koh, had President Obama been most inclined to appoint the first Asian-American justice – but others would have been better in various ways.  Although all Democratic nominees would be expected to have similar views on hot-button “culture war” issues like abortion, gay rights and gun control, Diane Wood is a renowned expert on antitrust and complex commercial litigation, for example, and Merrick Garland would almost certainly bring a stronger understanding of administrative law.  Although some on the left are concerned that replacing Justice John Paul Stevens with Kagan “moves the Court to the right,” there is no indication that the solicitor general is anything but a standard modern liberal, with all the unfortunate views that entails on the scope of federal power.  Another concern is her mediocre performance in her current position – the choices of which legal arguments to make from those available to her in defending federal laws in Citizens United and United States v. Stevens, for example, were not strategically sound – though she may well be better suited to a judicial rather than advocacy role.

In any event, with Democrats still holding a 59-seat Senate majority, Elena Kagan’s confirmation is in no doubt whatsoever.  The more interesting aspect of the next couple of months, culminating in hearings before the Judiciary Committee, will be the debate over the meaning of the Constitution and what limits there are to government action.  In an election year when a highly unpopular and patently unconstitutional health care “reform” was rammed through Congress using every procedural gimmick imaginable, voters are more sensitive to constitutional discourse now than they have been in decades.  From bailing out the financial and auto industries to fining every man, woman and child who doesn’t buy a government-approved health insurance policy – and, coming soon, regulating carbon emissions – the Obama administration is taking over civil society at a rate that alarms Americans and fuels both Tea Party populism and interest in libertarian policy solutions (which Cato is happy to offer but wishes were implemented on the front end instead of being invoked as a response to destructive statism).  The Kagan nomination is the perfect vehicle for a public airing of these important issues.

Senators should thus ask questions about the meaning of the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause, to name but three provisions under which courts have ratified incredible assertions of federal power divorced from those the Constitution discretely enumerates.  If Elena Kagan refuses to answer such queries substantively – employing the usual dodge that she may be called upon to interpret these clauses as justice – we can rightfully hold that response against her, as she herself counseled in a law review article 15 years ago.

Will Debate Constitutionality of Obamacare Anytime, Anywhere

Zaid Jilani at the Center for American Progress put up a blog post titled, “College debate organizers unable to find any law professors to argue health reform is unconstitutional.” Indeed, it seems that none of the four panelists at the University of Washington Law School event had any issues with Obamacare.

Maybe the UW organizers, who couldn’t find anyone with the opposing view, are talking to the same folks who told John Conyers about the “Good and Welfare Clause.” Because, as I said before, it’s not that hard to find constitutional scholars who have problems with this legislation.

OK, look, I’ll make it easier:  I hereby announce that I am willing to travel anywhere at anytime to debate the constitutionality of Obamacare. Whoever sets up the debate has to pay my travel expenses, but that’s it.  Any takers?

Is the Health Care Lawsuit For Real?

The Hill asked me the following question:

Thirteen state attorneys general have filled a lawsuit claiming that the new healthcare reforms are unconstitutional.  Is this a real legal challenge or a political stunt?

Here’s my response:

The challenge is very real—and necessary—but we are in uncharted territory here so it’s difficult to predict how courts will react.
 
The strongest and most important legal argument attacks the constitutionality of the individual mandate to buy a certain approved health insurance plan. Never before has the federal government—or any other—tried to force Americans to buy a particular good or service. Never before has it said that every man, woman, and child alive has to purchase a particular product, on penalty of civil or criminal sanction or forfeiture. And never before have courts had to consider such a breathtaking assertion of raw power – not even during the height of the New Deal, when the Supreme Court ratified Congress’ regulation of what people grew in their backyards on the awkward theory that such behavior affected interstate commerce.
 
The individual health care mandate is an even greater expansion of congressional power under the Commerce Clause. And it cannot be justified under the Necessary and Proper or General Welfare Clauses either, because these provisions guide the exercise of Congress’ enumerated powers without adding to them. In short, if the challenges to this health care “reform” fail, nobody will ever be able to claim plausibly that the Constitution limits federal power.

You can read here the responses of other pundits – including several non-lawyers, curiously.