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Reaching beyond health care: The real significance of Judge Hudson’s decision and reasoning…

Reflecting on yesterday’s very surprising decision in Virgina regarding health care….

One of the more enjoyable (for me at least) lectures I give in my basic American government course focuses on the “necessary and proper clause” — also known as the “elastic clause” for reasons that are central to my talk. Specifically, we are talking about Article I, Section 8, paragraph 18 of the US Constitution, and how its interpretation has shaped the power of the federal government, especially in relation to the states (i.e., federalism).

The stage for the clause is set in the previous 17 paragraphs, each articulating a power of Congress. A laundry list of sorts, those powers seem to run the range from the narrow and mundane (“to fix the Standard of Weights and Measures”) to the most general of authorizations (“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”). While we do not know much of the details of the give-and-take at Philadelphia in the summer of 1787, the arrangement of those 17 paragraphs gives the impression that the Framers were at some point engaged in a discussion of all the shortcomings of the Articles of Confederation that they wished to correct by empowering this newly formed congressional body. And one can imagine that, at some point, they realized that the list could go on and on if they were to bother elaborating all those powers that would be needed to fulfill those already listed. It is therefore possible to imagine that the “necessary and proper” clause was the result: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department of Officer thereof.”

Great debates over the bill of rights and constitutional treatises notwithstanding, I regard paragraph 18 as THE key provision of the US Constitution — and I spend a great deal of time and effort in my introductory courses (and textbook chapter) making that quite clear, not only for its expansive impact on the powers of Congress (and thus of the national government as a whole), but also because it provides the primary example of a constitutional provision that cried out interpretation.

The words are quite clear — to a point. It is how they are read or spoken that makes the difference. Consider, if you will, how the words of the clause can be approached, especially the key phrase “necessary and proper”. On one reading, the clause can be read as restrictive — that is, the Congress “shall” be limited to pass laws that are needed and appropriate to carry out those enumerated powers — and nothing more. It is not “do whatever is necessary and proper,” but rather “do only what is necessary and proper”. The alternative reading — “do whatever” — is obviously more expansive.

A great deal of political life in the first years of the republic centered on the difference in those phrasings, typically personified in the contentious and heated relations between Jefferson and Hamilton and their respective allies. For those of us who teach and write about American government, the watershed and decisive historical moment for settling the dispute was the Supreme Court’s 1819 decision in McCulloch v. Maryland — a case cited in almost every textbook along with Marbury v Madison as the foundational decisions of the country’s early years. My argument is that without that particular decision and its expansive interpretation (by John Marshall) standing as a core precedent, the US constitutional system would have developed quite differently.

This is not to say that the decision in McCulloch and the expansive view has not been challenged. In fact, a case can be made that US constitutional history is one extended narrative involving constant efforts to both restrict and expand the use of the necessary and proper clause. The McCulloch decision, for example, did not settle the substantive issues of the national bank which took on even greater political importance during the 1820s. Nor can one ignore the role that the expansive interpretation played in the debate over slavery and the national government’s power to abolish (or severely limit it) legislatively. The last great debate along this lines took place in the 1930s as part of the battles FDR fought with a Supreme Court that would not buy into the argument that some delegations of authority by Congress went beyond what was “necessary and proper”. But after 190 years, the McCulloch precedent is generally accepted as the central standard, to the point that our attention often focuses elsewhere when constitutional challenges are raised.

Which leads me to my reaction to Judge Henry Hudson’s decision in ruling that the requirement (mandate) for individuals to purchase health insurance (or be penalized, in the form of a tax) was unconstitutional. While the New York Times has opined that is “was no great surprise” that a Bush appointee would render such a decision, the fact is that it is quite a surprise given his use of the necessary and proper clause to rationalize his decision. Let’s put aside, for the moment, the substantive details of the case and that it involved a very controversial provision of a hotly contested law. What is surprising — even shocking — is that a sitting federal judge has returned to a restrictive view of the necessary and proper clause that runs directly counter to settled historical precedent.

The implications of the reasoning in this decision — should it be upheld on appeal –would involve a radical alteration of the the basic constitutional principles under which we have been operating for nearly two centuries (if not longer, if you consider the actions of Hamilton in establishing the national bank, etc.).

That said, given the current turmoil in judicial thinking (and the growing influence of The Federalist Society), it is not out of the question that this narrower view of the clause might have a chance of gaining the support of a Supreme Court majority, thus returning us at least to the more restrictive views of national power held by the courts in the first half of the 1930s. We have seen some movement back to state-centered views of federalism in recent SCOTUS decisions, and the restrictive view of the necessary and proper clause would fit into that trend. Such a move to limiting national authority would not be illegitimate, but it would be transformative given the history of the past eight decades.

December 14th, 2010 Posted by | accountabilitybloke | no comments

The vulnerability of the Perry decision (Part 1 of 2)…

[Warning: double density zone ahead!]

I had two reactions to the federal court decision in Perry v Schwarzenegger. On the one hand, I was really pleased that a federal court had done the obvious and found that the 14th amendment prohibited discrimination when it comes to marriage laws. On the other hand, upon closer reading I became anxious about the sustainability of this decision on appeal. As much as we might want to celebrate the outcome of the case at this juncture, there are flaws in the decision which make it vulnerable to being either overturned or declared moot and irrelevant when applied to a revised effort to prohibit same-sex marriage in California.

I base my anxiety on a couple of assumptions that are built into the logic of the decision.

First, is the assumption that a state constitutional provision can be treated and assessed as if it was merely legislative in nature.

Second is the assumption (actually two) (a) that a fundamental right cannot be eliminated by popular vote and (b) that the right to marriage is in fact a (substantively) fundamental right under the U.S. Constitution.

Despite the length of the decision (everyone is pointing out that it is 130+ pages in length) it is the logic of these assumptions that concern me.

Assumption One: The “assessment” standards for Prop 8

Regarding the first assumption, one has to remember there’s a difference between a constitutional amendment and a legislative initiative. The standards for assessing the constitutional amendment are different then those courts have used to assess a piece of legislation. Legislation can be measured against the constitution under which it is passed to, and the standards applied to it demand conformity with the basics set forth in the that constitution (whether it be state or federal). Obviously, the words of the law (per se) that will be put on the books as a result of the legislative act must be sufficiently clear and in conformity with the Constitution. Any law, of course, is open to possible interpretation–which is why the legislation from which it is derived often includes lots of “whereas” and “therefore” clauses, i.e., so that there will be some understanding as to why they passed the law. (This is especially true when the law may seem to conflict with some provision of the Constitution.)

For example, a law establishing capital punishment for certain crimes clearly needs justification since it is an explicit deprivation of life and liberty, two things we hold to be at the heart of our fundamental rights. Assuming there is no explicit constitutional prohibition against capital punishment, death penalty legislation (through the whereas-therefore rationale)  would have to establish that there is a compelling justification for government to deprive a person of life and liberty.

Similarly, a law derived from either a legislative body or some popular ballot initiative (e.g. California’s proposition 22 on gay marriage passed in 2000) must also meet the standard of reflecting some compelling reason for trumping some basic right. In that sense, the California Supreme Court decision declaring proposition 22 to be unconstitutional (relative to the California Constitution) was probably right on target (of course, it is always more complicated than you might expect…).

A constitutional amendment, in contrast, does not necessarily require justification in the same sense. Such amendments are not, in fact, law per se — but rather the foundations and parameters of law. They are the basis of law, which is why, if they have some substantive implications for public policy, they must be put into effect through the passage of legislation. For example, we are all familiar with the Prohibition amendment (18th) to the U.S. Constitution which allowed the federal government to take certain actions regarding the production and importation of alcoholic beverages. But it took the passage of the Volstead Act in 1919 to actually initiate prohibition.

Things get a bit more complicated at the state level, especially in California where constitutional amendments are frequently accomplished through the popular vote (initiative) process. Proposition 8 was a relatively simple amendment to the California Constitution: it added to Article I, Sec. 7.5 that “Only marriage between a man and a woman is valid or recognized in California.” As stated, this is a declarative statement that has no explicit law or legal action attached to it. It doesn’t have all the “whereas–therefore” provisions, because it does not have to justify itself. It is what it is. That said, logically it either requires a law to put it into effect, or it is assumed to be put into effect through its modification (reinterpretation) of existing law. (In this specific case, that modification was to close a loophole in Section 308 of the Civil Code which was the basis for opening up same-sex marriage in the 2008 California Supreme Court case that overruled Proposition 22.)

There was precedent for this approach in California where, in 1972, the voters passed a constitutional amendment that declared that the death penalty was not to be considered “cruel and unusual punishment” in the state. This initiative was also the result of the California Supreme Court decision that declared the death penalty unconstitutional (under the state constitution), and what it effectively did through constitutional declaration is bring back into effect capital punishment in California. Again, there was no “whereas–therefore” rationale provided–nor did there have to be as far as the California Supreme Court was concerned when, in 1979, it upheld the amendment saying that it “validates the death penalty as a permissible type of punishment under the California Constitution” and that such was allowed “to the extent permitted by the federal Constitution” (a point to keep in mind)

The problem with the Perry decision is that it does not address the fact that constitutional provisions do not have to meet the same standards as legislated provisions. In fact, I found it strange that such a major decision would leave itself open and vulnerable to challenge on this point without mentioning or addressing the issue. Rather, the judge decided to treat Proposition 8 as if it were merely a piece of legislation and not a Constitutional amendment. The decision is clearly based on the idea that proponents of Proposition 8 were not able to point to any substantial rationale for violating what the court regarded as an established fundamental right to marriage. But if constitutional amendments are in fact not reviewable under the same standards as legislation, then the decision may prove basically flawed — or at least vulnerable to rejection under the scalpel of Scalia and company.

There are two ways of getting around this problem. One is to accept the fact that the constitutional amendment process is a valid exercise of the initiative prerogative in California, but to hold that its legislative impact was merely implicit and therefore had no effect unless its provisions were explicitly manifest in California’s civil code. That could happen in one of two ways: either through legislation (by the legislature or through another initiative) or through a decision of the California Supreme Court that reinterpreted current law in accordance with the implied meaning of Proposition 8 (which is, in effect, what happened). In either case, the Perry challenge should be focused on the legislation (or interpretation) derived from Proposition 8 rather than on the Proposition itself. My anxiety relates to the fact that the decision addresses the proposition directly as if it was merely legislation rather than a constitutional amendment — and this may provide an opening for those who appeal the decision.

The second way around the problem is to go back to the standard set in that 1979 death penalty amendment case (People v Frierson). If I read that case correctly, the California Supreme Court was taking note of the fact that a state constitutional amendment does have to meet a higher standard, i.e. that it does not violate provisions of the federal Constitution. In short, this puts the focus on the constitutionality of Proposition 8 on firmer grounds than that used in the decision of the Perry case. The judge asked the question: is there a demonstrable and compelling “state interest” in discriminating against same-sex marriage couples? In doing so, he leaves open the possibility that there can be a valid rationale for limiting the rights of gay and lesbian couples. But had he focused on whether such an amendment was permissible under the federal Constitution, the “state interest” loophole implied in his decision would not even be a factor.

Having exhausted the reader (if you have indeed gotten this far) with this dense argument, I hate to say that I still have one more vulnerable assumption in the decision to tackle, I’ll save that for the next post…

August 5th, 2010 Posted by | accountabilitybloke | no comments

The chutzpah of audacity….

It is a point so basic to constitutional law that every textbook on American government makes note of it — and a point so inspired by “common sense” that one would question the sanity (if not intelligence) of anyone who argues to the contrary.

In any social context there are no absolute rights. Period.

Perhaps the best known expression of this “duh!” principle is Oliver Wendell Holmes’ famous observation that even the “most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic….” And despite the ground-breaking nature of Justice Scalia’s opinion in the Washington DC gun case that finally established the existence of a “right to keep and bear arms” in the Second Amendment, his opinion clearly acknowledges the limited nature of that right.

But, of course, had you listened to most of the media headline blaring coverage you would miss that point. As usual it was over simplified or the qualifier was handled with speed and little or no comment.

The same is true of the sound bite coverage of Obama’s statement on the decision which now seems to have him abandoning his supposed long-standing position on the far left as another pandering move to the gun-toting right. It would have been one thing for him to come out with some little tidbit about having gone out shooting a rifle at his grandparents home in Kansas (or Hawaii, or wherever), but it is another for him to make the “constitutional-law-professor” statement he offered on the subject. When

“asked about gun rights, Obama said, “I believe the Second Amendment means something.” Weighing in on a long-running debate among scholars, Obama said he believes the Constitution confers on individuals the right to bear arms, and was not intended by the framers to simply provide for militias. The senator once taught constitutional law.

“There is an individual right to bear arms. But it’s subject to common sense regulation, just like most of our rights are subject to common sense regulations,” said Obama.

The statement, by the way, was reported on February 15, 2008 while he was on the campaign trail in Wisconsin. It was a position he reasserted on the day the Supreme Court decision came down in DC v. Heller.

But that is not the point of this post. Rather it is the news in this morning’s New York Times that a Georgia gun rights group (self described as “Georgia’s no-compromise voice for gun owners”) is going to court to get the folks at Atlanta’s Hartsfield-Jackson International Airport to allow folks to carry legally concealed weapons onto the premises. It seems that the Georgia state legislature had recently lifted some restrictions on the right to carry concealed weapons in public transportation facilities, and armed (pardon the unintended pun) with that and the Heller decision the gun rights folks have asserted their claim. The airport manager’s response was a no-brainer, noting that the airport’s policies are subject to federal law which maintains legal restrictions (like those given a thumbs up by Scalia in the Heller decision).

One wonders, however, about folks like those pursuing that lawsuit. Is it that they just don’t get it — or is this another (albeit distorted) example of the “audacity of hope…”?

July 2nd, 2008 Posted by | accountabilitybloke | no comments