Yesterday’s extended argument in King v. Burwell brought moments of something bordering on joy and gratitude. The exchanges between Justice Elena Kagan and Mike Carvin, both at their very considerable best, stand out: serious questions, serious answers; obvious mutual respect. No matter whose side (if any) you’re on, that’s the way the system is supposed to operate. Give thanks when it (still) does. And then, there were moments that made your heart sink: JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while—while all of these disastrous consequences ensue. I mean, how often have we come out…
In the debate over the proposed new Authorization for the Use of Military Force, some have suggested that the President is asking to have his arms tied. In fact the move is cleverer. He is asking Congress to authorize what he has already done and therefore apparently thinks he can do anyway, and asking with enough modifiers—what is an “enduring” ground operation? who will decide how long it “endures”?—to vitiate any congressional limitations on his power.
The enigma, and perhaps impetus, of swelling executive power is that when constitutionally asserted, the presidency is shrinking. Witness the White House’s apparent intent to use the State of the Union address to propose that—wait for it—Congress enact national standards regarding how quickly companies must inform customers of data breaches.
Now, hacking is bad and reporting it is good. But it is also time—and the constitutional conservative should reach this conclusion with due reluctance—to abolish the State of the Union address, whose most pernicious effect is its political imperative for the President to propose as many new ideas as possible, regardless of the need for them, while Congress occupies a supine posture of reaction.
Now comes the great James Buckley to Liberty Law Talk to discuss his new book Saving Congress from Itself that argues federal grants-in-aid exemplify the obstacles currently posed to constitutional government. The key to our constitutional health must involve, Buckley declares, the elimination of these programs. The issue is more than just the overwhelming spending, which has soared from $24.1 billion in 1970 to approximately $640.8 billion in 2015. Buckley and I also discuss the obvious constitutional problems, namely, that through the so-called spending power Congress can impose laws on states that it otherwise possesses no constitutional authority to enact and enforce. As Michael Greve…
Herewith (as promised) a brief comment on brother Rappaport’s splendid earlier post on the “exclusive” Commerce Clause. Here’s the key paragraph:
It is too bad that Congress does not have the exclusive commerce power, because I believe it would be better than the original meaning. An exclusive power would make it less likely that the states would have agreed to the New Deal expanded, concurrent commerce power. Thus, the exclusive power would have been unlikely to have been expanded into the broad scope that the current commerce power has. With a more limited scope, the federal government would have limited authority, as would the states. There would not be two governments exercising the same authority and neither would have complete power to create cartels. This arrangement came close to being followed in the pre New Deal era, when the Court came pretty close to recognizing a limited federal Commerce Power that was largely exclusive. But it is now, sadly from a policy perspective, gone with the wind.
I think there’s pretty powerful evidence to the effect that the Founders did mean the Commerce Clause to be exclusive; it’s just that their idea of what constitutes “commerce among the several states” was so much narrower that ours.
There “is a role for Congress,” says a spokeswoman for the White House’s National Security Council, “in our Iran policy.” This is big of her, seeing as how “our” Iran policy consists largely of sanctions imposed by the legislative authority of Congress. A great deal hangs on the spokeswoman’s cavalier use of the word “our.” The suggestion is that the nation’s disposition toward other nations is a constitutional plaything, belonging solely to “us,” which is to say to the executive, and to be shared at “our” discretion. Imagine a comparable audacity—or is it to be called magnanimity?—from a congressional spokesperson: “There…
In an exceptionally important article, Chris DeMuth addresses the deep pathologies of our politics. Chris has written extensively about the fateful drift into executive government, which (he cogently explains) is also a debt-ridden and lawless government (see his website here). In this piece, he tackles a principal institutional cause of those tendencies: for Congress, legislation has become an unnatural act, to be performed only in extremis. Thus, a constitutional revival will require a cultural revival. Recovering Congress’s lost powers will require relearning legislative skills, redirecting legislators’ energies, and risking the ire of party constituencies who are unfamiliar with the obligations of…
First the obligatories: The nauseating video of former Baltimore Ravens running back Ray Rice punching his then fiancée, now wife, into unconsciousness in an Atlantic City casino should have landed him in the New Jersey state prison system. NFL Commissioner Roger Goodell so badly bungled the case and the communications surrounding it that he ought to be disabused of the delusion that his very public job is a personal right to which he is entitled until conclusive evidence of actual wrongdoing separates him from it. And the number of domestic-violence cases in the NFL suggests a culture of lawlessness, not to mention simple indecency, among at least some of its players.
All true. And all of it was established, and was being vigorously and effectively debated, in the Tocquevillian sector—namely, civil society—without members of Congress queuing up to offer rhetorical interventions, from calls for official inquiries to demands that teams sit players under investigation. Some of their criticism was right, but on what authority—according to which of the 18 enumerated constitutional powers—were they acting? The moral-preening clause?
President Obama told the nation that he, on his own presidential authority, has committed the American people to actions in the Middle East that common sense calls war. But he did not call it war. He directed those actions against persons who call themselves Islamic but who he said were not Islamic, who rule a state with the (often enthusiastic) consent of its people but who Obama said were not a state. He said that allies largely would carry this campaign’s weight. But the countries he mentioned have made clear that they will do no such thing. This makes no sense, and augurs further disasters abroad.
As the 113th Congress winds to a close, there are a lot of complaints about its lack of productivity, not least from the President himself. The Senate and the House are controlled by different parties and do not agree on much. But the resulting gridlock has one great virtue. It promotes federalism by preventing Congress from preempting the policy choices of the several states.
This effect is all the more important in the modern era, because the Constitution’s original protection of the political space for state policy making—the enumerated powers—has been almost entirely destroyed. It is true that the Supreme Court slightly revived constraints on the federal government in United States v. Lopez, but the actual effects of that revival have been more symbolic than consequential. On economic matters, as a matter of positive law rather than the original meaning of the Constitution, the federal government enjoys almost plenary powers.
But happily federalism is also protected by the difficulty of enacting federal legislation—which is more than a parchment barrier. Federal laws can be only be enacted with the agreement of both Houses and the President. This requirement in effect creates a mild supermajority rule, making it harder to enact legislation to preempt the states at a time, like now, when the nation is closely divided between the parties.
For fans of federalism, this division has a silver lining that outshines the clouds of partisan rancor.