Archives: 05/2010

Today’s Other Big Bad Supreme Court Opinion

As Wally points out in his Supreme Court/Kagan roundup, the Court did further damage to principled constitutional interpretation in citing foreign law as support for its holding that life-without-parole (LWOP) sentences are unconstitutional as applied to juveniles committing non-homicide crimes.  As I blogged when we filed a brief in the case, Graham v. Florida, “Cato takes no position on the wisdom of these types of sentences, but when evaluating their constitutionality the Court should only consider American law.”

That is, regardless of the criminological or moral merits of juvenile LWOP sentences, the Court ought not consider non-binding provisions of international human rights treaties, other countries’ laws, or customary international law in its analysis (as it unfortunately has in several death penalty cases).  The Court should leave to the political branches the decision of whether to transform international norms into domestic law and only allow duly ratified international agreements to override domestic law — as I’ve also described in the Cato Supreme Court Review. Reliance on indefinite international norms undermines both the democratic process and the rule of law, casting considerable uncertainty over many U.S. laws.  Although looking to international example is prudent when designing constitutions and drafting legislation, it is simply not relevant to interpreting the nation’s founding document.

There are other problems with Justice Kennedy’s opinion.  For example, apparently the fact that 37 states plus the District of Columbia allow juvenile LWOP sentences does not mean that there is a national consensus.  This is so even though a similar number of states did constitute a consensus against the death penalty for an adult’s rape of a child in Kennedy v. Louisiana (which Roger discussed in the pages of the Supreme Court Review) – even though there the federal government itself had recently passed a law authorizing the death penalty for such an offense!  The point is that the whole idea of “consensus”-based constitutional interpretation is flawed.  As Josh Blackman and I wrote in our Privileges or Immunities Pandora’s Box article:

If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues – on which public opinion ebbs and flows – such as the right to health care, the right to education, or reproductive rights?

Moreover, what constitutes a national consensus?  Half the population? Two thirds?  Ninety percent?  To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think?  Should the Court commission its own Gallup Poll?  What standard should the consensus be based on?  How long should it exist?  These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.

Finally, Eugene Volokh points out the judicial policy-making (the imposition of a judge’s own views) inherent in Justice Stevens’s concurring opinion – likely the senior associate justice’s last pronouncement on the death penalty.  And for more on the case generally, see Lyle Denniston’s write-up at SCOTUSblog.

In short, this is a dog’s breakfast of a case – again, regardless of what one thinks about the underlying criminological/moral issues – and truly an unfortunate day for principled jurisprudence and constitutional limits on power (in Graham’s case, judicial power).

Kagan Nomination, Day 8

As you know from reading Roger’s and Ilya’s posts, this has been a pretty dreadful news day for libertarians at the U.S. Supreme Court. (And we haven’t even gotten into Justice Kennedy’s use of supposed international consensus in devising new Constitutional standards on excessive sentencing, despite a Cato amicus brief [pdf] urging the contrary). For whatever comfort it provides, which may not be much, here’s more reporting and speculation on the often hard-to-pin-down views of the newest nominee:

  • Her participation in Clinton Administration gun-control initiatives doesn’t (to put it mildly) suggest an expansive view of individual rights under the Second Amendment [Brian Darling via David Kopel]
  • On Kelo and eminent domain, will she share Justice Stevens’s property-rights-unfriendly views? [James Ely via Ilya Somin]
  • Be advised, Prof. Wagner, that despite her flair for protean mask-shifting, it is lacking in dignity to refer to the nominee as “Lady KaGa”.
  • Stuart Taylor, Jr. offers a semi-defense of her “inherited and largely symbolic” stand on military recruiters at Harvard (earlier here, here, and here).
  • From his lips to God’s ears: Marvin Ammori at Balkinization offers an argument (via ABA Journal) as to why, contrary to all expectations, Kagan might wind up coming out on the free-speech side of Citizens United after all. Ira Stoll wonders how effectively critics can raise the free-speech-in-campaigning issue at the hearings anyway: “it’s a bit much for Republicans, having watched President Bush sign BCRA [the Bipartisan Campaign Reform Act of 2002] into law, now to oppose putting Elena Kagan on the court because she defended its constitutionality.”

Comstock & Health Care Litigation

Some will immediately claim that today’s decision in United States v. Comstock bodes ill to pending challenges to the individual health insurance mandate, but this would be a mistake.  It is one thing to uphold as “necessary and proper” a law confining sexual predators who were already incarcerated pursuant to the enumerated powers of Congress.  It is quite another to impose a mandate on every citizen of the United States as necessary and proper to its power “to regulate commerce … among the several states.”  The justices who sided with the government today cannot all be counted on to uphold the unprecedented claim of federal power to require that all persons engage in economic activity.

Proclamation of ‘World Trade Week’ Tops President’s Trade Policy Achievement List

Dear President Obama:

Just when I was ready to concede that U.S. trade policy is hopelessly adrift in a sea of incoherence, bouncing around randomly in the swirling cross currents of laughably dissonant policy objectives, while U.S. businesses and workers suffer the consequences of Washington’s unfettered allegiance to anachronistic and ruinous trade policy group think, you’ve given me pause by taking the decisive step, on Friday, to decree World Trade Week. You wrote:

I, Barack Obama, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do herby proclaim May 16 through May 22, 2010, as World Trade Week. I encourage all Americans to observe this week with events, trade shows, and educational programs that celebrate the benefits of trade to our Nation, American workers, and the Global economy.

Mr. President, I applaud your efforts and recognize that decision must not have come easily. There were probably late-night discussions with your staff, contemplative 2am walks through the Rose Garden, and perhaps some sleepless nights. To even imply that trade may be beneficial to Americans—this close to November, no less—was an act of profound political courage.

Well, Mr. President, thank you for the encouragement. I will do my part to fulfill your vision of World Trade Week, which is actually something my colleagues and I have been doing for many years—often with citation to the data collected and published by your numerous administrative departments and agencies. I guess one might say that World Trade Week is a 24/7 proposition over here at the Cato Institute’s Center for Trade Policy Studies.

So, rather than reinvent the wheel and since we specialize in “increasing public awareness about the benefits of free trade and the costs of protectionism,” perhaps you can ask the White House webmaster to post a link to our educational materials about trade, including these recommendations for policymakers, on

If you’re as committed as we are, Mr. President, to correcting the long-festering myths about trade and helping Americans discern the truth from the heaps of misleading rhetoric and lies they hear so frequently (here’s a blueprint for that course), we just might be able to right the trade policy ship.


Dan Ikenson


Supreme Court Further Reduces Constitutional Limits on Federal Power

As Roger has just blogged, the Supreme Court in today’s Comstock decision has ”turned an instrumental power, dependent on Congress’s other powers, into an independent power.”  That is, Justice Breyer’s decision has imbued the Necessary and Proper Clause – which merely gives Congress the power to enact laws that are “necessary and proper” for “carrying into execution” one of the powers enumerated in Article I, section 8 – with independent authority to justify federal power.  Thus, in effect, Congress has the power to do anything it deems “necessary and proper” (or, indeed “convenient or useful”), quite apart from whether that thing relates to an enumerated power or not.  I explained here why this view – and Breyer’s elaboration on it during oral argument – is wrong.

Without exaggeration, the Comstock decision is one of the most harmful Supreme Court decisions in recent memory.  If there is anything worse than the Court’s radical expansion of the Necessary and Proper Clause, it is that seven justices signed onto this sweeping pronouncement.  While it isn’t surprising that Justice Breyer, joined by his “progressive” colleagues, would have such an expansive view of federal power, it is disconcerting that Chief Justice Roberts joined the majority opinion in its entirety.  And while Justice Kennedy separately counsels that “the Constitution does require the invalidation of congressional attempts to extend federal power in some instances,” it’s hard to see what those instances are in the wake of Comstock.  Justice Alito also has some qualms about the reach of the Necessary and Proper Clause but unfortunately is left satisfied that here “there is a substantial link to Congress’ constitutional powers” (adding yet another exception that swallows the constitutional rule on limited congressional power).

Only Justice Thomas, whose magisterial dissent is joined by Justice Scalia, sees today’s decision for what it is, the transformation of the Necessary and Proper Clause into a sort of federal police power, the existence of which the Court has long denied.  As Thomas says, ”the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.”  (This is of course counter not only the Court majority but also the immortal words of President George W. Bush that “when somebody hurts, government has got to move.”)

About the only good thing about this opinion is that it declined to expand Congress’s power under the Commerce Clause – an alternative justification for the law at issue that the government offered unsuccessfully in the court below and which Solicitor General Elena Kagan abandoned before the Supreme Court.

For more coverage of Comstock, see Josh Blackman’s series of posts and Randy Barnett at the Volokh Conspiracy.  Also, here is Cato’s brief on the case (which I summarize here) and my description of Kagan’s response to some of the points we raised.

Lessons From Venezuela’s 21st Century Socialism

The accomplishments of Venezuela’s “Socialism of the 21st Century” are looking very much like those of old-fashioned socialism with basic goods shortages, high inflation, negative growth, blackouts, water rationing, the persecution of Hugo Chávez’s critics, plus skyrocketing crime.

Now Chávez is accusing his enemies of sabotaging his TV and Radio program, “Alo Presidente” because it suffers from continuous technical problems on the air, including sound interruptions and the loss of the satellite signal.

An upset Chávez observes: ”The problems are very frequent here, almost every day. I don’t understand how you have so much equipment, so much technology…. By contrast, you see the private channels and that doesn’t happen…. And for me it’s almost every day that there is a problem here and there.”

Chávez’s 21st century solution? He has ordered his military intelligence to investigate.

U.S. v. Comstock Is About Policy Over Law

In his opinion today in United States v. Comstock, Justice Breyer gives us a textbook example of how the Supreme Court, over the years, has converted the Constitution into modern “constitutional law,” which is connected to the Constitution only occasionally. This is policy trumping law, pure and simple.

The question before the Court was whether Congress had the power, under the Constitution, to commit mentally ill, sexually dangerous prisoners beyond the date they would otherwise be released. The problem, as Breyer grants, is that Congress has only certain enumerated powers, and the only power it has to criminalize conduct, beyond the three crimes mentioned in the Constitution, is pursuant to one of those enumerated powers – in particular, through the last of its 18 enumerated powers, its power to enact laws that are “necessary and proper” for “carrying into execution” one of the previous 17 enumerated powers or ends. In other words, Congress can criminalize conduct only if doing so is necessary and proper for carrying out one of its other constitutionally authorized powers. 

Under its power to regulate interstate commerce, however, Congress has criminalized all manner of conduct not remotely related to insuring a free national market, the main function of the commerce power. The conduct criminalized here is the possession of child pornography. That’s a responsibility that belongs to the states, under state police power, not to the federal government. And that’s where today’s problem began.

But Breyer has compounded it by holding that even though the Constitution nowhere grants Congress the power to criminalize the conduct in question, Congress can invoke its instrumental power under the Necessary and Proper Clause to commit these prisoners beyond the date they would otherwise be released. In other words, he has turned an instrumental power, dependent on Congress’s other powers, into an independent power. That’s how government expands beyond the limits imposed by the Constitution.