Last year’s partial victory in the Obamacare case is already being applied to new cases reaching the Supreme Court. Recall that, in that case, the Court accepted our argument that the government cannot use the Commerce and Necessary and Proper Clauses to compel someone to purchase health insurance. The Court held that allowing Congress to compel commerce into existence would be an improper use of a great and limitless power. In United States v. Kebodeaux, the Supreme Court will once again address an assertion of power that, if upheld, could give Congress nearly limitless power.

In 1999, Anthony Kebodeaux was sentenced to three years in prison for statutory rape. He served his time, was freed from any post-release parole or probation requirements, and ended his relationship with the federal government in the matter of criminal law. Years later, when Kebodeaux moved intrastate from San Antonio, Texas to El Paso, Texas, he failed to update his change of address within the three-day period as required by the federal Sex Offender Registration and Notification Act (SORNA) of 2006. Even though Kebodeaux was unconditionally released from custody before SORNA was enacted, he was sentenced to one year in federal prison. The Fifth Circuit overturned his conviction en banc, meaning that every judge on the Fifth Circuit heard the case rather than the traditional three-judge panel. They found the registration requirement unconstitutional because Congress lacked jurisdiction over Kebodeaux after they unconditionally released him from custody.

The government’s arguments to the contrary, the court held, would permit not just “unending criminal authority” over Kebodeaux but unending authority over every American who was once in federal jurisdiction, which is, of course, every American.

In a sense, the government is now arguing for the “Hotel California” theory of jurisdiction: you can check out, but you can never leave. 

Yesterday, Cato filed an amicus brief, joined by Ilya Somin, Professor of Law at George Mason University School of Law, arguing that it would be improper under the Necessary and Proper Clause to permit Congress to have unending authority over all Americans. Congress already lacks a general power to punish criminals, much less monitor previously released criminals and impose new and onerous restrictions on them at will. Moreover, there is nothing constitutionally special about sex offenders as a class. Congress should not be allowed to designate a sub-class of people within its jurisdiction as “special” and then assert perpetual jurisdiction over them. These type of assertions of power are precisely what the “proper” element of the Necessary and Proper Clause is supposed to protect against–ones that, even if “necessary,” would give Congress unbounded power. 

Indeed, if the Court rules in favor of the government’s position, it will give Congress virtually unlimited power to regulate nearly all Americans. In essence, it would justify the gradual imposition of endless new requirements on anyone who had previously been subject to federal jurisdiction. Cumulatively, these federal impositions amount to unlimited federal authority over anyone who has ever been held in federal custody or otherwise in federal jurisdiction. This cannot be a power vested in a Congress with “few and defined” powers. As the Supreme Court held in the Obamacare case, Congress doesn’t have the power to “regulate an individual from cradle to grave.”  

I must have hit a nerve, judging from the tone of Romesh Ponnuru’s response to my critique of his recent Bloomberg column, where he argued that the Supreme Court’s role in protecting freedom has been vastly exaggerated. He calls “bizarre” my charge that in arguing his point he was “selective” in his review of Supreme Court history – “as though it were possible for it to be anything else.” Please, I was hardly asking him to recite the whole of Supreme Court history, but merely to honestly exercise his critical faculties. In politics as in science, a thesis is tested not simply by selecting corroborating evidence, as Ponnuru did, but evidence that calls the thesis into question, precious little of which he adduced. Had he done so, his thesis would have come up short.

And it’s not simply the libertarian rulings of the modern Court that call Ponnuru’s thesis into question. Thus, he misreads the history of our first seven decades because he misreads the Court’s seminal 1803 decision in Marbury v. Madison as standing for “a kind of judicial self-restraint” (admitting to being in the minority in that view). In truth, the decision was a bold assertion by the Court, grounded in the text of the Constitution, of having the power to declare its own power limited by the Constitution, thereby implying that the political branches were similarly limited. And that is the principle that explains why we enjoyed such freedom as we did during our first seven decades. It was not from “judicial restraint” – from judicial deference to the political branches, as Ponnuru would have it – but from respect for constitutional limits on the power of each of the branches, as secured by the Court.

Turning to the modern era, however, it’s difficult to tell what Ponnuru’s point is when he writes that he used Brown v. Board of Education “as a stand-in” for the several libertarian decisions I cited – many more of which I could have cited, covering everything from religious liberty to school choice, property rights, criminal procedure, and far more. But truth to tell, the reason Ponnuru cited Brown originally was not as a stand-in for those many decisions, as he now says. It was because Brown “is central to that [judicial] story, the shining example of how the court has broadened our constitutional guarantees.” And that’s just the “story” he wants to scuttle.

Why, especially since the evidence of the Court’s having so often stood against political tyranny is so overwhelming? Not that it has always done so, mind you: As I wrote originally, “both the political and the nonpolitical branches have played their parts in protecting freedom” – and scuttling it, I might add. But on balance we’ve been far better served by having than by not having an independent judiciary, as a look around the world will attest.

So we come, again, to the main reason Ponnuru is advancing his less than credible thesis that, as his original title said, the Court is “no friend of freedom.” He believes “that our history does not give us reason to refrain from considering proposals to reduce judicial power.” What exactly does he have in mind there? He chides me for citing Madison in defense of the courts. Perhaps his insights on these matters are keener than Madison’s. We’d like to know what he’s proposing, not least because it undermines the Madisonian structure that has served us so well – not perfectly, but tolerably well.

The U.S. Department of Labor claimed the authority to issue rules governing the H-2B guest worker program on the grounds that the underlying statute provides for it to be consulted as part of the program’s administration. On Monday, the Eleventh Circuit U.S. Court of Appeals curtly rebuffed this “absurd” claim. From its opinion:

In its proposed and final rules, DOL cited two statutory provisions as the source of its rulemaking authority. First, DOL cited 8 U.S.C. § 1184(c)(1), which instructs the Secretary of DHS to consult with the “appropriate agencies of the Government” in resolving whether to grant a foreign worker a visa upon the “petition of the importing employer.” Although there is no grant of rulemaking authority to DOL in this statutory section, DOL asserts that as the result of the permission it grants to DHS to consult with it, DOL “has authority to issue legislative rules to structure its consultation with DHS.” The end result, in DOL’s view, is that it is empowered to engage in rulemaking, even without the DHS.

We reject this interpretation of “consultation.” Under this theory of consultation, any federal employee with whom the Secretary of DHS deigns to consult would then have the “authority to issue legislative rules to structure [his] consultation with DHS.” This is an absurd reading of the statute and we decline to adopt it.

Meanwhile, today’s Washington Post reports that the Obama Administration is anxious to get more of its appointees confirmed to the D.C. Circuit, which hears more regulatory appeals than any other, on the grounds that the current roster of judges on the circuit too frequently strikes down the administration’s regulations as exceeding the federal government’s authority.  Perhaps the administration would not have to worry about seeing so many of its regulations struck down if it took care not to ground them on claims of authority that are “absurd.”