Tag: tenth amendment

How Would I Amend the Constitution? End All Extra-Legal Amendments Thereto

The Fiscal Times recently asked me and a number of others, “How would you amend the Constitution?“ Here’s how the Times categorized my response:

DON’T CHANGE A THING

Several major conservative thinkers suggested that the Constitution does not need to be changed, but rather to have its principle of limited government guide both Congress and the president.

Michael Cannon at the Cato Institute noted that the Fourth Amendment protects against warrantless searches, “yet the National Security Agency tracks everybody with Congress’ tacit if not explicit consent.”

First of all, and I fear I will be explaining this to reporters for the rest of my life, I am not a conservative. I support gay marriage, cutting military spending, closing all U.S. bases in foreign nations, and ending the prohibitions on drugs, gambling, and prostitution. Of such stuff conservatives are not made.

Second, the above excerpt scarcely captures my response to the Times’ inquiry. Don’t change a thing?? Here is my response in full:

There are constitutional amendments I want to see. And yet.

Americans don’t need to amend the Constitution so much as they need politicians to honor what the Constitution already says. The Constitution creates a government of enumerated and therefore limited powers; Congress and the president routinely exceed those powers. The First Amendment protects freedom of speech, particularly political speech; Congress heavily regulates and rations political speech. The Fourth Amendment protects “persons, houses, papers, and effects” from “unreasonable searches” and requires “no warrants shall issue, but upon probable cause”; yet the NSA tracks everybody with Congress’ tacit if not explicit consent. The states could ratify an amendment that says, “Hey, we mean it!”; but the Constitution already contains two amendments saying that (the Ninth and Tenth). What is the point of amending the Constitution if Congress will just ignore that amendment too?

This could soon become a Very Big Problem. If Congress keeps acting like it is not bound by the Constitution, then eventually the people will conclude that they aren’t either.

That is, I don’t want to amend the Constitution so much as I want to stop politicians and bureaucrats from amending it unlawfully – i.e., without going through the Article V amendment process  – and stop the courts from rubber-stamping those extra-legal amendments. 

It would be great if, as the Times writes, the Constitution’s principle of limited government were to guide both Congress and the president. I would settle for having the plain words of the Constitution constrain Congress and the president. That constraint will have to come from the people, and federal judges.

A Time for Choosing: The GOP and the Marijuana Initiatives

Attorney General Eric Holder is soon expected to announce the federal government’s response to the marijuana legalization initiatives recently approved in Colorado and Washington.  For conservatives and GOP persons in the Congress, it is a time for choosing.

The first path is to turn against the federal drug war.  Call it a correction–just as many have acknowledged the runaway spending errors during the Bush years.  Recall that conservatives just took a principled stand against federal overreaching in the Obamacare legal fight.  It would be a drastic mistake to shift ground now and start defending federal police raids.  Clarence Thomas has the constitutional law right.  And William F. Buckley and Milton Friedman were right on the policy side–legalization of drugs is the correct policy stance to take.  The neocon approach championed by Bush administration alumni (William Bennett, John Walters, and Michael Gerson) has been profoundly misguided.  

We’ve heard a lot about demographics in the election aftermath.  Immigration has received most of the attention, but consider drug policy.  Young people just don’t think marijuana users are “criminals.”  Hispanic-Americans see the  chaos in Mexico more clearly than average Americans.  African-Americans bear the brunt of drug law stops, raids, arrests and incarceration.  And let’s not forget that this policy debate is taking place in the context of a fiscal crisis.  The GOP likes to think of itself as the party that is willing to tackle government policies that don’t work and have unintended consequences.  One cannot talk seriously about criminal justice reform and corrections spending without addressing the drug war.  It’s past time to end the federal war on drugs.  

The second path is to champion the DEA and federal police powers.   Flip-flop back to big government conservatism?  From arguing that it’s a federal overreach to fine someone for not buying health insurance …to lock up that gal over there with a joint in her purse?  Alienate the tea party folks and their small government movement?  Alienate young voters and African-Americans with talk about how the government is helping everyone with increasing numbers of arrests?  Alienate Hispanic-Americans and fiscal hawks with talk about another billion dollar aid package to the Mexican government to fight the drug war?  Sounds like a foolish consistency with the past.

Betsy Woodruff of the National Review Institute gets it right.

[T]here’s one easy ideological maneuver that Republicans could make that would simultaneously burnish their stance as the party of freedom and expand their base while alienating the president from his. It is a move that might also make one swing state a little easier to win in 2016. Congressional Republicans and conservative leaders could get on the weed bandwagon.

Hear, hear.  Some on the religious right–Pat Robertson–are already on that bandwagon.

Some may ask, “Isn’t there some sorta middle position between legalization and stay-the-course-drug war policy?”  Yes–that position is this: “I am not sure about Colorado and Washington are doing, but that’s their prerogative in our federal system.”

To paraphrase Ronald Reagan, no one is saying the choices are going to be easy, but the policy choices are fairly simple.

The President Can’t Expand Federal Power by Signing a Treaty

This blogpost was co-authored by Cato legal associate Trevor Burrus.

In 2010, the Supreme Court decided United States v. Bond, a case that seems right out of a soap opera. Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox.

Rather than leave this caper to local law enforcement to resolve, however, a federal prosecutor charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention. Bond pled guilty and was sentenced, but she reserved the right to appeal her conviction on the ground that the statute at issue violates the Tenth Amendment—in that her offense was local in nature and not properly subject to federal prosecution.

She won the first part of that appeal process: The Supreme Court unanimously accepted the argument offered in an amicus brief by Cato and the Center for Constitutional Jurisprudence that there’s no reason in constitutional structure or history that someone can’t use the Tenth Amendment to challenge the constitutionality of the statute under which she was convicted.

On remand to the Philadelphia-based U.S Court of Appeals for the Third Circuit, Bond (now with standing to challenge that law) raised the argument that Congress’s limited and enumerated powers cannot be increased by treaties. We again filed in that case in support of Bond. The Third Circuit disagreed, however—if reluctantly—based on one sentence by Justice Oliver Wendell Holmes in Missouri v. Holland (1920) that has been interpreted to mean that Congress’s constitutional powers can indeed be expanded by treaties.

Writing separately, Judge Ambro agreed that Holland clearly addressed the issue but “urge[d] the Supreme Court to provide a clarifying explanation of its statement” regarding the treaty power. Bond has thus brought her case back to the Supreme Court, asking the Court to clarify and cabin Holland.

In this, our third brief in the case, we are joined again by the Center for Constitutional Jurisprudence in arguing—again based on the work of Georgetown law professor and Cato senior fellow Nicholas Quinn Rosenkranz—that allowing Congress to broaden its powers via treaties is an astounding manner in which to interpret a document that creates a federal government of limited powers. Not only would this mean that the Executive has the ability to expand federal power by signing a treaty, but it would mean that foreign governments could change federal power by abrogating a previously valid treaty—thus removing the constitutional authority from certain laws.

We also point out how the most influential argument supporting Holland is based on a clear misreading of constitutional history that has been repeated without question and that the ruling is in deep tension with other cases. We’re in a constitutional quagmire with respect to the treaty power that can only be escaped by limiting or overturning Missouri v. Holland.

The Court will decide this fall whether to Bond v. United States.

Obamacare’s Medicaid Expansion Violates Federalism

Today Cato filed its second Supreme Court amicus brief in the Obamacare litigation, on the issue of whether the health care law’s Medicaid expansion is a proper exercise of the Constitution’s Spending Clause.

That is, states must now accept a comprehensive reorganization of Medicaid or forfeit all federal Medicaid funding—even though the spending power is circumscribed to preserve a distinction between what is local and what is national. If Congress is allowed to attach conditions to spending that the states cannot refuse in order to achieve an objective it could not outright mandate, the local/national distinction that is so central to federalism will be erased.

Joining the Center for Constitutional Jurisprudence, Pacific Legal Foundation, Rep. Denny Rehberg (chairman of the House Appropriations Subcommittee on Labor, Health & Human Services, Education, and Related Agencies), and Kansas Lt. Gov. Jeffrey Colyer (also a practicing physician) we argue that, in requiring states to accept onerous conditions on federal funds that it could not impose directly, the government has exceeded its enumerated powers and violated basic principles of federalism.

California is at risk of losing $25.6 billion in annual federal funding, for example, and together the states stand to lose more than a quarter trillion dollars annually. On average, states would have to increase their general revenue budgets by almost 40% in order to maintain their current level of Medicaid funding.

The 1987 case of South Dakota v. Dole, however, prohibits such a coercive use of the spending power and recognizes that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’” Indeed, the states’ obligations, should they “choose” to accept federal funding and thus commit themselves to doing the government’s bidding, are far more substantial than those the Supreme Court invalidated in New York v. United States and Printz v. United States (which prohibit federal “commandeering” of state officials).

Moreover, the Congress that enacted the original Social Security Act, to which Medicare and Medicaid were added in the 1960s, recognized that social safety has always been the prerogative of the states and should continue to be done under state discretion. Medicaid itself was narrowly tailored to serve particularly needy groups.

In short, if Obamacare does not cross the line from valid “inducement” to unconstitutional “coercion,” nothing ever will. Just as the Commerce Clause is not an open-ended grant of power, the Spending Clause too has limits that must be enforced.

Did Canada Steal Our Tenth Amendment?

Under the U.S. Constitution, the federal government was assigned specific limited powers, and most government functions were left to the states. To ensure that people understood the limits on federal power, the Framers added 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.” Those delegated powers are “few and defined,” noted James Madison.

But the Tenth Amendment has disappeared. No one has seen it in recent decades. But I’ve found some statistics that make me very suspicious that the Canadians stole the Tenth. Look at the pie charts below. The top pie shows that 71 percent of total government spending in the United States is federal, while 29 percent is state/local. (See BEA tables 3.1, 3.2, 3.3 for 2010 data).

Back when we still had the Tenth, that ratio was the other way around—like how the bottom chart looks for Canada today. In Canada, federal spending accounts for just 38 percent of total government spending, while provincial/local spending accounts for 62 percent. (See Canada Yearbook for 2010/11 data.)

Actually, the real culprit for the missing Tenth is not the Canadians, but the U.S. Congress. In recent decades, Congress has undertaken many activities that were traditionally reserved to state and local governments. A primary method has been through “grants-in-aid.” These are federal subsidies combined with regulatory controls that micromanage state and local affairs. In United States, federal grants are about 4.1 percent of GDP (in fiscal 2011), while in Canada they are about 3.3 percent of GDP.

Even more striking: while we’ve got a complex mess of more than 1,000 state grant programs, Canada seems to have just a handful, and they are simple block grants. As I understand it, Canada’s federal grants to lower governments mainly just include:

  • A health care block grant
  • A social services block grant
  • An “equalization” block grant to help the poor provinces.

There is a smattering of other aid, but that’s just about it. There are no federal subsidies for K-12 education in Canada, for example. There are a few large block grants and not much else.

On October 27, I’m on an Urban/Brookings panel looking at “What Can the United States Learn from Canada.” Perhaps we can learn how to get our decentralized federation back. While we’re at it, we could get some tips on how to cut government spending, as the Canadians did in the 1990s.

The President Can’t Increase Congress’s Power Simply by Signing a Treaty

A lost episode of Jerry Springer found its way into the Supreme Court’s 2010-11 term in the case of United States v. Bond. Mrs. Bond, upset by the pregnancy that resulted from an affair between her husband and her erstwhile best friend, decided to take revenge. A trained microbiologist working at a chemical manufacturer, Mrs. Bond tried to poison her husband’s mistress by dusting her door knobs, mailbox, and car handles with dangerous, possibly lethal chemicals.

Upon being caught by (federal) postal inspectors, Mrs. Bond was charged with violating the law Congress passed to implement an international chemical weapons treaty. (There are no generally applicable federal attempted murder statutes, so prosecutors had to get creative to remain in federal court.)

But if general criminal statutes are beyond Congress’s powers, as even the most ardent federal-power activist must acknowledge, how did Congress have the power to pass the law that ensnared Mrs. Bond? — who, whatever her character flaws, was not selling chemical weapons to terrorists (the treaty’s target). Mrs. Bond thus hoped to challenge her conviction by arguing that Congress did not have the power to pass the law in question.

The Third Circuit, however, ruled that she did not have standing — a legal doctrine defining who has the right to bring a claim — to challenge the law on federalism grounds. Cato filed a Supreme Court brief supporting Mrs. Bond’s position and arguing that it makes no sense to deny standing to someone challenging a law under which she is being prosecuted. The Court unanimously agreed and remanded the case back to the Third Circuit, to finally hear arguments over whether the statute is beyond congressional power.

Cato has now reentered the fray, in a brief authored by Georgetown law professor Nicholas Quinn Rosenkranz and joined by the Center for Constitutional Jurisprudence. We again support Mrs. Bond’s claim that the law under which she was charged is beyond Congress’s enumerated powers. The main obstacle to this argument is the 1920 case Missouri v. Holland, a short and not completely clear opinion by Justice Oliver Wendell Holmes that has been interpreted to mean that Congress can expand its enumerated powers via the Treaty Clause.

In other words, even though Congress does not have the power to pass, for example, general criminal statutes, if Congress ratifies a treaty calling for such statutes, its power increases beyond constitutional limits. We argue that this is an astounding manner in which to interpret a Constitution that creates a federal government of limited powers. 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. We also point out how the most influential argument supporting Missouri v. Holland is based on a clear misreading of constitutional history and that the ruling is in deep tension with other cases.

On the treaty power, we’re in a constitutional quagmire that can only be escaped by limiting or overturning Missouri v. Holland.  The Third Circuit can’t itself overturn a Supreme Court decision, of course, but it follows our brief, it can at least limit its damage.

Republicans and the New York Marriage Law

Since New York passed a law extending marriage to same-sex couples, Republican presidential candidates have been mostly silent. But not Rep. Michele Bachmann, who has had a long and strong interest in gay rights issues. In an interview on Fox News Sunday she endorsed both New York’s Tenth Amendment right to make marriage law and the federal government’s right to override such laws with a constitutional amendment, confusing host Chris Wallace:

WALLACE: You are a strong opponent of same-marriage. What do you think of the law that was just passed in New York state—making it the biggest state to recognize same-sex marriage?

BACHMANN: Well, I believe that marriage is between a man and a woman. And I also believe—in Minnesota, for instance, this year, the legislature put on the ballot for people to vote in 2012, whether the people want to vote on the definition of marriage as one man, one woman. In New York state, they have a passed the law at the state legislative level. And under the 10th Amendment, the states have the right to set the laws that they want to set….

WALLACE: But you would agree if it’s passed by the state legislature and signed by the governor, then that’s a state’s position.

BACHMANN: It’s a state law. And the 10th Amendment reserves for the states that right.

WALLACE: All right. I want to follow up on that, because I’m confused by your position on this. Here’s what you said in the New Hampshire debate. Let’s put it on.

(BEGIN VIDEO CLIP)

BACHMANN: I do support a constitutional amendment on marriage between a man and a woman, but I would not be going into the states to overturn their state law.

(END VIDEO CLIP)

WALLACE: That’s why I’m confused. If you support state rights, why you also support a constitutional amendment which would prevent any state from recognizing same-sex marriage?

BACHMANN: Well, because that’s entirely consistent, that states have, under the 10th Amendment, the right to pass any law they like. Also, federal officials at the federal level have the right to also put forth a constitutional amendment….

WALLACE: My point is this, do you want to say it’s a state issue and that states should be able to decide? Or would like to see a constitutional amendment so that it’s banned everywhere?

BACHMANN: It is— it is both. It is a state issue and it’s a federal issue. It’s important for your viewers to know that federal law will trump state law on this issue. And it’s also—this is why it’s important—

WALLACE: And you would [sic] federal law to trump state law?

BACHMANN: Chris, this is why it’s so important because President Obama has come out and said he will not uphold the law of the land, which is the Defense of Marriage Act. The Congress passed the Defense of Marriage Act and Bill Clinton signed it into law, to make sure that a state like New York passed a definition of marriage other [sic] one man, one woman, that other states wouldn’t be forced to recognize New York’s law….

WALLACE: So, just briefly, you would support a constitutional amendment that would overturn the New York state law?

BACHMANN: Yes, I would. I would. That is not inconsistent, because the states have the right under the 10th Amendment to do what they’d like to do. But the federal government also has the right to pass the federal constitutional amendment. It’s a high hurdle, as you know.We only have 27 amendments to the federal constitution. It’s very difficult. But certainly, it will either go to the courts, or the people’s representatives at the federal level.

Congratulations to Chris Wallace for his tenacious questioning. Presumably the way to understand Bachmann’s position is that she thinks states have a Tenth Amendment right to make their own laws in any area where the federal government doesn’t step in, and she supports a federal law overriding state marriage laws. That includes the Defense of Marriage Act, whose Section 3 says for the first time in history that the federal government will not recognize marriage licenses issued by the states. And it also includes a federal constitutional amendment to prohibit states from implementing equal marriage rights for gay couples.

Bachmann is not the only Republican who should be asked about the tension between support for the Tenth Amendment and support for federal laws and amendments to carve exceptions out of the Tenth Amendment. This month George Will has praised two Texas Republicans: First, Senate candidate and former Texas solicitor general Ted Cruz, whom he called a “limited-government constitutionalist” and who wrote a senior thesis at Princeton “on the Constitution’s Ninth and 10th amendments. Then as now, Cruz argued that these amendments, properly construed, would buttress the principle that powers not enumerated are not possessed by the federal government.” And second, Governor Rick Perry, who “was a ‘10th Amendment conservative‘ (‘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’) before the Tea Party appeared.”

Cruz boasts on the same page of his website of his support of both the Tenth Amendment and DOMA. Does he really think, as a staunch defender of the Tenth Amendment, that the federal government should override the marriage law of the great state of New York? Perry may be a consistent Tenth Amendment conservative. In his book Fed Up! Our Fight to Save America from Washington he makes his opposition to gay marriage more than clear. But he does write, “Crucial to understanding federalism in modern-day America is the concept of mobility, or the ability to ‘vote with your feet.’ If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas. If you don’t like medical marijuana and gay marriage, don’t move to California.” And an NPR interviewer reported:

States should be free to make decisions regulating such things as taxes, marijuana and gay marriage, Perry says.

“If you want to live in a state that has high taxes, high regulations — that is favorable to smoking marijuana and gay marriage — then move to California,” he says.

Now that a large state has made national headlines by passing a gay marriage law—without any prodding from the judiciary—more political candidates, from President Obama to his Republican challengers, are going to be pressed to make their positions clear on the issue of marriage equality itself, on federalism and the powers of the states, and on the lawsuits that are moving through the courts.