I’ve been known to say that Chief Justice Roberts’s transmogrification of Obamacare’s individual mandate created a “unicorn tax” — a creature of no known constitutional provenance that’ll never be seen again. Well, here to ensure that more than congressional discretion prevents any future tax on non‐purchases is a constitutional amendment that was recently floated by Congressman Steven Palazzo (R‑MS).
Rep. Palazzo has introduced H.J. Res. 28, which would overturn last summer’s Supreme Court decision that, for the first time ever, under certain limited conditions, granted Congress the power to tax inaction. The amendment reads, in its entirety, as follows: “Congress shall make no law that imposes a tax on a failure to purchase goods or services.”
Short and sweet and, with the mandate‐tax set to take effect this next January, now is the time to act to prevent about 11 million mostly middle‐class Americans from getting hit. Indeed, the CBO estimates that 70 percent of those currently without insurance and earning less than $94,000 a year will get slapped with the mandate‐tax that goes into effect in 2014. That doesn’t sound like a good, let alone fair, way of either “protecting patients” or ensuring “affordable care,” but hey, I’m just a constitutional lawyer.
Oh, and of course this amendment would prevent all other possible mandate‐taxes as well, not just in the field of health care.
It’s sad that we’ve come to this — the Constitution already prohibits taxes on inactivity — but of course there are many things that the government does (and which courts have allowed it to do) that are plainly unconstitutional. H.J. Res. 28 is an excellent start.
For examples of more great ideas on how to rein in our out‐of‐control government, see Randy Barnett’s “Bill of Federalism” and the Compact for America.
Rasmussen Reports has a new poll indicating 71 percent of the public want term limits for members of Congress. This finding is nothing new. Strong majorities have supported congressional term limits for the past two decades. What about before that? I decided to take a look at the Gallup polling going back more than six decades. Here’s what I found.
The first polling on the topic in 1947 showed 46 percent supporting limits for the House (48 percent opposed) and 52 percent favoring them for the Senate. Eight years later Gallup found support had fallen to 38 percent for senatorial limits. In 1964 – 5, from 48 to 50 percent favored term limits for members of both chambers. The late 1960s and early 1970s saw weak results for term limits. In 1969, 43 percent favored House limits; two years later a survey showed support for Senate limits had fallen to 39 percent.
And then everything changed.
Surveys in 1977 and 1981 showed about 60 percent support for limits on the terms of members in both houses. Later in the 1980s, support went up toward 65 percent or so. By 1994, Gallup found its first 70 percent response in favor of congressional term limits. A year later, the number was 67 percent. Thereafter, Gallup apparently did not poll on the topic, perhaps because the Supreme Court took term limits off the political agenda.
Still, in 2003, an NBC/Wall Street Journal survey found 67 percent of the public thought term limits were a good idea. A year later a Fox News/Opinion Dynamics poll found 78 percent supported the idea. Against this background, the Rasmussen poll makes perfect sense.
People sometimes argue that popular changes to the Constitution or the rules of the political game can reflect momentary passions that pass, leaving only unwise policies. This concern is not without merit. However, if the public indicates a strong and growing desire for change over more than three decades, shouldn’t a republican government follow that settled and presumably considered desire? I mean, republican government is government by the people, right?
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.
Snowstorm notwithstanding, Sen. Charles Schumer and Rep. Chris Van Hollen introduced legislation in response to the Citizens United decision. A summary of their effort can be found here.
Some parts of the proposal are simply pandering to anti‐foreign bias (corporations with shareholding by foreigners are prohibited from funding speech) and anger about bailouts (firms receiving TARP money are banned from funding speech). Government contractors are also prohibited from independent spending to support speech. We shall see whether these prohibitions hold up in court. The censorship of government contractors and TARP recipients will likely prove to be an unconstitutional condition upon receiving government benefits.
Despite Citizens United, Congress will try to suppress speech by other organizations. Schumer‐Van Hollen relies on aggressive disclosure requirements to deter speech they do not like. CEOs of corporations who fund ads will be required to say they “approve of the message” on camera at the end of the ad.
Citizens United upheld disclosure requirements, but it also vindicated freedom of speech. The two commitments may prove incompatible if Schumer‐Van Hollen is enacted. This law uses aggressive mandated disclosure to discourage speech. We know that members of Congress believe this tactic could work. Sen. John McCain said during the debate over McCain‐Feingold that forcing disclosure of who funded an ad will mean fewer such ads will appear. In other words: more disclosure, less speech. Just after Citizens United, law professor Laurence Tribe called for mandating aggressive disclosure requirements in order to “cut down to size” the impact of disfavored speech.
During the next few months the critics of Citizens United may well show beyond all doubt that the purpose of its disclosure requirements are to silence political speech. In evaluating the constitutionality of Shumer‐Van Hollen, the Court could hardly overlook such professions of the purpose behind its disclosure requirements.
One other part of Schumer‐Van Hollen is probably unconstitutional. They would require any broadcaster that runs ads funded by corporations to sell cheap airtime to candidates and parties. Several similar attempts to equalize speech through subsidies have recently been struck down by the Court. This effort would share a similar fate.
All in all, Schumer‐Van Hollen is a predictable effort to deter speech by disfavored groups. Congress is reduced to attacking foreigners and bailout recipients while hoping that mandated disclosure will discourage speech. The proposal law suggests a comforting conclusion. For most Americans, Citizens United deprived Congress of its broadest and most effective tools of censoring political speech.
Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self‐defense. Here’s our own Bob Levy, who masterminded the Heller litigation, talking about that decision:
While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.
Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use. That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights. I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.
Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:
We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo‐American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.
In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected. And courts covering other parts of the country — most immediately the Seventh Circuit, based in Chicago — will have their chance to make the same interpretation in due course.
Just as interesting — and potentially equally significant — is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:
But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.
The Senate is taking up, and looks ready to pass, legislation granting the District of Columbia full representation in the House of Representatives. And the bill is co‐sponsored by Utah’s Orrin Hatch, whose state would also get one additional House member — but only until 2012, when the new census will again reapportion representatives nationwide.
The problem (setting aside the cheap politics of adding one safe seat for each party) is that the DC Voting Rights Act is facially unconstitutional. The plain text of Article I limits representation in Congress to voters residing in “states” — a species of jurisdiction that the District of Columbia is not.
Now, this simple legal fact does not affect the moral argument that the voices of D.C. residents should resound in Congress no less than those of their fellow citizens of the several states. To remedy this historical accident — the Founders did not conceive that anyone would live permanently in the federal district, because the government was not supposed to grow this large — we have two constitutional options:
1) A constitutional amendment — like the 23rd Amendment, which in 1961 (yes, only that recently!) gave D.C. presidential electors, and without which it would be unconstitutional for D.C. residents to cast votes for president; or
2) Retrocession to Maryland — akin to the part of the original District that was returned to Virginia, all but the land under the Congress, White House, and certain other federal buildings could rejoin Maryland, and the people living there would then be counted toward that state’s congressional delegation (and be represented by Maryland’s two senators).
Better yet, if the political rallying cry for the D.C. Voting rights movement is “no taxation without representation,” then I suggest that we focus on the first part of the equation and cease federal taxation of D.C. residents. Regardless of the optimal solution, however, the course that Congress has chosen simply will not fly if we take the Constitution seriously.