A Constitutional Amendment to Re-Empower the States

When the Framers designed our federalist system, they assumed that the federal government would be limited to those powers actually enumerated in the Constitution and that it would exercise those powers only when authorized by statute. Further, to give the states some say in the drafting of these statutes, one half of the federal Congress—the Senate—was elected by the state legislatures themselves and designed to reflect the interests of the state governments.

Today, none of these elements of our original design remain. The Supreme Court has allowed the federal government to control nearly limitless activities, supposedly as an exercise of its power to regulate interstate commerce. The executive branch acts as its own de facto legislative branch, “interpreting” statutes through executive actions and agency rulemaking to unilaterally give itself the powers it wishes to exercise. And after the passage of the Seventeenth Amendment, senators are now elected by popular vote, meaning there is no longer any direct link between the state and federal governments. The result of these three changes is that states have less power than ever – and there’s not much they can do about it.

To solve that problem, Representatives Rob Bishop (R-UT) and Cathy McMorris Rodgers (R-WA) recently introduced the “Re-Empowerment of the States Amendment,” a proposal that would allow two thirds of the state legislatures to repeal any “Presidential Executive order, rule, regulation, other regulatory action, or administrative ruling issued by a department, agency, or instrumentality of the United States.”

Importantly, this amendment would not allow states to repeal the text of statutes that have duly passed both houses of Congress. This isn’t an amendment to change the system of bicameralism that the Framers designed; instead, it’s an amendment to restore the checks on the executive branch that existed before the massive expansion of the administrative state. As the amendment’s creator David Hemingway has explained, “The practical result would be to enhance the power of Congress since it would encourage the president to work with Congress rather than govern by issuing executive orders.”

Against Judicial Restraint

That’s the provocative title of my new essay in National Affairs, out this week. I’m mostly addressing conservatives who believe that judges ought to be “restrained,” as opposed the in contradistinction to the “liberal judicial activism” of the Supreme Court in the 1960s and ’70s. It’s puzzling that the attack would be that judges should have a bias towards inaction, towards sitting on their hands, when it’s precisely this deference to the political branches that allowed progressives to rewrite the Constitution during the New Deal. As I explain:

Under the founders’ Constitution, under which the country lived for its first 150 years, the Supreme Court hardly ever had to strike down a law. The Congressional Record of the 18th and 19th centuries shows a Congress discussing whether legislation was constitutional much more than whether it was a good idea. Debates focused on whether something was genuinely for the general welfare or whether it served only a particular state or locality. “Do we have the power to do this?” was the central issue with any aspect of public policy… .

The Fourth Amendment Protects Your Cell-Location Data

When the federal district court in D.C. ordered a seizure of Alonzo Marlow’s cell service location information (CSLI) held by his cell provider, it held that the federal government didn’t need a warrant to obtain CSLI data from a person’s phone provider. The Stored Communications Act of 1986 (SCA) governs the searching of such data, and under § 2703(d) of that act, federal investigators need not demonstrate probable cause in order to search—but merely to show “specific and articulable facts” that there is criminal wrongdoing. Thus, the Fourth Amendment requirement that “no warrants shall issue, but upon probable cause” is effectively removed.

Don’t Jail People for Not Paying Traffic Tickets Before You Even Convict Them

The City of Calhoun, Georgia, adopted a scheme by which bail was set to a pre-determined amount, resulting in Maurice Walker being held in jail for nearly 2 weeks on misdemeanor public drunkenness charges. Walker challenged detention on behalf of himself and those similarly situated, including person held on traffic offenses.

The federal district court got it right and enjoined the city from enforcing its scheme: when setting bail for criminal defendants, basic due-process principles require a judge to take into account the defendant’s income and set an individually payable amount. That rule exists to ensure against a manifest injustice, converting pre-trial liberty from a right into a privilege of the wealthy. But Calhoun is pursuing an appeal. As Cato points out in ouramicus brief supporting Walker, the due-process rule that the city violated is quite literally as old as the common law.

More Unconstitutional Executive Branch Actions

Imagine that your company’s board chairman, against the wishes of the board of directors and in contravention of the corporate charter, hires an interim CEO. Despite that illegal action, the interim CEO disciplines you in some manner. Would that discipline be any more legitimate if, two years later, the board finally agrees to hire the CEO, who then retroactively approved his own previous actions?

This is what’s happened at the highest levels of government. When Congress created the Consumer Financial Protection Bureau (CFPB) as part of the larger Dodd-Frank financial reform, it specified that the director was to be appointed by the president “by and with the advice and consent of the Senate.” This placed what’s called an Appointments Clause limitation on the director’s position. Four years ago, President Obama named Richard Cordray the CFPB director—after Elizabeth Warren’s expected appointment met significant political resistance—during what the president erroneously believed was a Senate recess. (You’ll recall that the Supreme Court unanimously invalidated the National Labor Relations Board appointments Obama made at the same time.)

Supreme Court Should Protect Workers Against Government-Union Collusion

Imagine that you run a daycare business out of your home. Some of your clients are poor families whom your state has decided to help with daycare. The state program allows such families to choose any daycare they want and then reimburses the provider up to a certain amount. Now the state has declared that because of this program, you—and even people who provide at-home daycare for family members’ children—will be considered a state employee for the sole purpose of giving a union exclusive representation rights.

You don’t get state medical or dental insurance. You don’t get state retirement benefits. You don’t get paid vacation on national holidays. The only thing you get is a union you didn’t choose and you refuse to join that is now representing your “interests” before the state, which isn’t even your employer. Does this sound far-fetched? Yet it’s what’s happened to Kathleen D’Agostino and seven other women in Massachusetts who are asking the Supreme Court to take their case after the lower courts dismissed their lawsuit.

The Supreme Court Misread Constitutional History Regarding “One Person, One Vote”

Two months ago, the Supreme Court ruled that states have leeway in determining how to draw their legislative districts, more specifically that they don’t have to equalize the number of voters per district to satisfy the constitutional principle of “one person, one vote.” The decision was really a “punt,” not resolving the tensions between “representational equality” and “voter equality”; it’ll take some future case after the next census to force the justices to face the issues left unresolved. 

Former Cato intern (and future legal associate) Tommy Berry and I have now published an essay in the Federalist Society Review explaining how the Court “shanked” that punt by misreading constitutional structure and application. Here’s a sample (footnotes omitted):

In Evenwel, the Court decided that it is acceptable for a state to ignore the distinction between voters and nonvoters when drawing legislative district lines. According to the Court, a state may declare that equality is simply providing representatives to equal groups of people, without distinction as to how many of those people will actually choose the representative. A state may use this constituent-focused view of equality because “[b]y ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.”

But ignoring the distinction between voters and nonvoters achieves a false picture of equality at the expense of producing far more serious inequalities. Rather than placing nonvoters and voters on anything approaching an equal political footing, it instead gives greater power to those voters who happen to live near more nonvoters, and less power to those who do not.

As we argued before the decision came down, the framers of the Fourteenth Amendment recognized that granting such extra voting power runs the risk of harming the very nonvoters to whom it ostensibly grants representation. This recognition manifested itself in the enactment of the Fourteenth Amendment’s Penalty Clause. In both ignoring that clause and oversimplifying the debates over the Fourteenth Amendment, the Court’s opinion paints an incomplete picture of constitutional history.

Read the whole thing. For more, see Tommy’s blogpost on our article, as well as our earlier criticism of Justice Ginsburg’s majority opinion for misreading the Federalist Papers.