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The Living Constitution And The War Power

Over the years, I have written often about The Living Constitution. See, e.g. On Constitutional Interpretation: Originalism v. A Living Constitution; Scalia's Nonsense on Originalism,Dred Scott,Originalism and A Living Constitution, Constitutional Interpretation: Originalism v. A Living Constitution, Uncertainty In Life:Justice Souter's Harvard Commencement Address. I spilled tens of thousands of words on the subject, but Justice Souter's commencement address at Harvard last year wonderfully described the philosophy that I believe underpins the Living Constitution idea:

[B]ehind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.

[. . .] If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

Brilliant words from one of the finest of our modern Justices (now about that Twombly decision. . . .) It is important to realize that this concept does not always redound to consequences that we may feel are optimal. One of those for me is the modern understanding of the war power under the Constitution. The words are simple enough. Article I, Section 8 of the Constitution provides:

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Why Public Sector Unions: Are Federal Labor Laws Applicable To States As States?

One of the unexplored issues (at least in my internet travels) regarding the importance of public sector unions is the issue of whether federal labor laws can be applied to States and their subdivisions. One of the principal arguments, I would posit, for the critical importance of public sector unions is the strong possibility that federal labor laws do not apply to States (and their subdivisions) as States. That is, to States as employers. Absent federal standards, public sector employees, more so than even private sector employees, strongly rely on their unions to guarantee their rights. In order to flesh out this proposition, a review of the pertinent case law is in order.

In 1976, relying on principles of federalism, the Supreme Court, in National League of Cities v. Usery, declared that federal labor laws can not apply to the States as employers:

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McCulloch v. Maryland

Yesterday, Gibbons v. Ogden, today, a dramatization of McCulloch v. Maryland:

[T]he Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the Government to general reasoning. To its enumeration of powers is added that of making '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 thereof.' [. . .]

[T]he Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are Constitutional.

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Necessary And Proper

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. [. . .] This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.” Lopez, supra, at 567—568. - Justice Scalia in concurrence in Gonzales v. Raich

At the Volokh Conspiracy, Professor Orin Kerr notes that Judge Roger Vinson in his decision (PDF) striking down the individual mandate and the Affordable Care Act ignored Supreme Court precedent and instead relied upon his own conceptions of the "first principles" of the Constitution. something a district court judge is not permitted to do:

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When "Essential" Does Not Mean "Necessary And Proper"

In his decision striking down the health bill, Judge Vinson found it necessary to perform a double backflip and explain that while the individual mandate was "essential"to the Affordable Care Act, it was not Necessary and Proper to the implementation of the law. Vinson wrote (PDF):

The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. [. . .] .The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is.26 Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper."

Why is the individual mandate not "proper?" According to Vinson:

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Expounding The Constitution

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are Constitutional - Chief Justice John Marshall, writing for a unanimous Supreme Court in McCulloch v Maryland

The House of Representatives spent the day reading the Constitution (or parts of it anyway) into the Congressional Record. They might consider reading from this 1819 Supreme Court case that discusses the Constitution and Congressional power created thereunder:

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The Future Of The Health Bill Mandate

A detailed analysis of the ridiculous decision by District Judge Henry Hudson (PDF) striking down the individual mandate would be superfluous as any honest and competent constitutional scholar knows that the decision is not even close to being in line with existing Supreme Court precedent, and it is certainly not the job of district court judges to ignore existing Supreme Court precedent. As Orin Kerr succinctly states:

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Worst Prosecutor Comment of the Week

The backdrop to this outrageous comment by a prosecutor post is an Aspen Daily News article about how the budget for the DA's office in the four county district that includes Aspen (Pitkin County) is five times bigger than that for the Public Defender's office. (2/3 of the defendants charged in the district qualify for court-appointed counsel. There are 14 DA's and 4 public defenders.) The Pitkin County Commissioners asked Martin Beeson, the elected District Attorney, to cut 5% off his $3 million budget. Instead, he asked for a $600,000. increase.

When asked about the funding disparity, Beeson responded with:

“Public defenders are not defenders of the public,” Beeson said. “They are not serving the public good. They are taxpayer-funded attorneys for criminals.”

Not serving the public good? Someone needs to clue Beeson in to the purpose of the Bill of Rights. It was designed to protect the rights of the individual accused against the power of the government, by restraining the government's power. [More...]

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Understanding The Separation Of Church And State

In a North Carolina town, the meaning of the separation of church and state is being well demonstrated:

The Christian flag is everywhere in the small city of King: flying in front of barbecue joints and hair salons, stuck to the bumpers of trucks, hanging in windows and emblazoned on T-shirts. The relatively obscure emblem has become omnipresent because of one place it can't appear: flying above a war memorial in a public park.

This is in keeping with the First Amendment - which prohibits government endorsement of religion AND government interference with the exercise of religion. Thus, while the religious flag (I never heard of it before myself) can not be flown by the government, every person has the right to fly that flag (and apparently they all are.) The lesson is apparently lost on some:

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A First Amendment Threat Related To The Juan Williams Firing

now appears:

[Mike] Huckabee [. . .] call[ed] on Congress to pull funding from NPR. “NPR has discredited itself as a forum for free speech and a protection of the First Amendment rights of all and has solidified itself as the purveyor of politically correct pabulum and protector of views that lean left,” Huckabee said. “It is time for the taxpayers to start making cuts to federal spending, and I encourage the new Congress to start with NPR,” he added.

Cutting government funding because of a decision by NPR on what speech to air would amount to government interference with free speech and would likely violate the First Amendment:

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The Right's Drive To End The "Separation of Church and State"

"Where in the Constitution is the separation of church and state?" - Christine O'Donnell

The absurd controversy over Markos' use of the title American Taliban in his latest book has papered over the real issue for liberals and progressives - the unending drive of the Right to constitutionalize government promotion and imposition of religion. The above quote from Christine O'Donnell has drawn a great deal of attention in the Left blogs, but I think the focus on O'Donnell's ignorance with regard to the Establishment clause misses the larger point - O'Donnell was merely parroting the standard line of the Republican Party and the Right on the separation of church and state. Consider National Review's Ramesh Ponnoru's defense of O'Donnell:

[O'Donnell] denies is that the First Amendment requires “the separation of church and state.” Here’s something I wrote about this question several years ago that, I think, is on point: [. . .] People mean different things when they talk about “theocrats,” “the separation of church and state,” and “secularism.” The word “secular” can describe both irreligion and neutrality about religion.

Ponnoru is not writing in a vacuum. The drive to change the meaning of "separation of church and state" is a program of longstanding for the Right. Consider the 2002 case Zelman v. Simmons-Harris, where Chief Justice Rehnquist wrote:

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Getting It Right On Birthright Citizenship

I was on a conference call organized by the Immigration Policy Center titled "The 14th Amendment and Birthright Citizenship, Discussing the History and Ramifications of Amending the Constitution." Good background link here. The panelists were Michele Waslin, Senior Policy Analyst, Immigration Policy Center (Moderator), Margaret Stock, Attorney and Retired Lieutenant Colonel, Military Police Corps, US Army Reserve, Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center, Eric Ward, National Field Director, Center for New Community, and Bill Hing, Professor of Law at University of San Francisco.

It was a good overview and the discussion was both policy based and a review of the relevant law. On the case law, of course the starting point is the 1897 case, US v. Wong Kim Ark. Also discussed was the legislative history of the 14th Amendment. A good article on that is here. I asked two questions - one was about Wong Kim Ark and its discussion of birthright citizenship as, not only being enshrined by the 14th Amendment, but also by the Constitution itself. To wit, the birthright citizenship language of the 14th Amendment was only necessary because Dred Scott put it in doubt. My second question was directed at some misinformation on the subject disseminated last night on Keith Olbermann's show by Professor Jonathan Turley:

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GOP Wants To Revisit Dred Scott

The GOP continues to reveal itself:

Mitch McConnell (R-Ky.) told The Hill on Monday that Congress “ought to take a look at” changing the 14th Amendment[. . . .] McConnell’s statement signals growing support within the GOP for the controversial idea, which has also recently been touted by Senate Minority Whip Jon Kyl (R-Ariz.) and Sen. Lindsey Graham (R-S.C.)In an interview, McConnell said the 14th Amendment provision should be reconsidered in light of the country’s immigration problem.

To refresh our memories, let's look at the first line of the Fourteenth Amendment, which is what Republicans are focused on now (they hate the whole thing of course):

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The Fourteenth Amendment was ratified in July 1868, by the Reconstruction Congress, and the line quoted above was intended to overturn the infamous Dred Scott decision which addressed this question:

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Federal Judge: Why Can't Arizona Be "Inhospitable" To Immigrants?

A strange question for a judge to ask generally, but the concept of preemption may not be well understood by her:

"Why can't Arizona be as inhospitable as they wish to people who have entered or remained in the United States?" U.S. District Judge Susan Bolton asked in a pointed exchange with Deputy Solicitor General Edwin S. Kneedler. Her comment came during a rare federal court hearing in the Justice Department's lawsuit against Arizona and Gov. Jan Brewer (R).

Bolton [. . .] also questioned a core part of the Justice Department's argument that she should declare the law unconstitutional: that it is "preempted" by federal law because immigration enforcement is an exclusive federal prerogative. "How is there a preemption issue?" the judge asked. "I understand there may be other issues, but you're arguing preemption. Where is the preemption if everybody who is arrested for some crime has their immigration status checked?"

I am not sure what the judge's goal is with these questions, but they are very uninformed, and if serious (oftentimes judges ask questions socratically), demonstrate that this judge does not understand preemption.

Why can't Arizona "enforce" immigration laws unless the federal government authorizes such enforcement? Simply, the Constitution does not permit it. Immigration policy and enforcement is solely, by express provision of the Constitution (see also the Federalist Papers), the province of the federal government. This is not a close question. It is a slam dunk.

Speaking for me only

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Immigration, The Preemption Doctrine And Nonsequitors

At NRO, Andrew McCarthy writes:

Well whaddya know? It turns out that Rhode Island has long been carrying out the procedures at issue in the Arizona immigration statute: As a matter of routine, RI state police check immigration status at traffic stops whenever there is reasonable suspicion to do so, and they report all illegals to the feds for deportation. [. . .] If, as President Obama and Attorney General Holder claim, there is a federal preemption issue, why hasn’t the administration sued Rhode Island already? After all, Rhode Island is actually enforcing these procedures, while the Arizona law hasn’t even gone into effect yet.

Could it be because — as we’ve discussed here before — the Supreme Court in Muehler v. Mena has already held that police do not need any reason (not probable cause, not reasonable suspicion) to ask a person about his immigration status?

As to why the Justice Department has not sued Rhode Island, I can not say, but whether such procedures violate the 4th Amendment has nothing to do with the preemption issue. It does raise an important point however, one that was stated by the NYTimes in an editorial today:

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