How to Avoid Argentine Federalism

James L. Buckley is a former U.S. Senator, federal judge, and real-life saint. The Federalist Society’s 2014 Annual Convention featured a presentation and panel discussion on his most recent book, Saving Congress from Itself. As the title suggests, Jim Buckley—even at age 91—is into tasks that are kind of biggish. His key proposal is to phase out any and all federal transfer payments to state and local governments.

Robert R. Gasaway (Kirkland & Ellis—once upon a time, Judge Buckley’s law clerk) chaired the panel composed of Senator Buckley, John Eastman (Chapman Law School), and yours truly. Pending FedSoc’s posting of the video, my humble remarks appear below. More fodder for my friend Linda Greenhouse, I suppose.

Saving Congress from Itself is a must-buy and must-read. I wish I could write like that.

 

God bless Senator James Buckley.

Read More

Halbig and the Nonchalance of Six Small Words

New legislation

The psychology of legislative draftsmanship involved in the six words at stake in Halbig v. Burwell—“an exchange established by the State”—reflects a short-odds gamble that did not hit. The bettors first wanted the IRS to rescue them from the consequences, and now they want the courts to do it.

The gamble was that states, enticed by subsidies for their citizens or intimidated by the threat of losing Medicaid funds, would establish healthcare exchanges. The Obama administration is surely right that the whole idea of the Affordable Care Act (ACA) was that such subsidies be provided, and that the consequences that have ensued from those six small words were probably unintended.

Read More

Cooperative Federalism is the Handmaiden to the Administrative State

Texas State Flag

What does federalism have to do with the administrative state, and vice versa? Everything. Statutes typically confer authority on a federal agency (or several) in the first instance. However, practically all federal regulatory programs are “cooperative,” meaning they’re implemented by state and local officials. Entitlement programs from Medicaid to education are likewise run through states. So states will participate in the federal agencies’ process. Federalism isn’t shaped in once-in-a-generation enumerated powers cases; it’s shaped in millions of daily administrative interactions. How does that work?

Read More

The Scottish Earthquake

The  effects of the vote on Scottish Independence, like the French Revolution, will not be contained within its borders. Whatever the outcome in Scotland, its referendum will reverberate across Europe, energizing the many culturally homogeneous peoples who view themselves as trapped within distantly governed and soulless nation states. The consequences will likely be the creation of more nation states within Europe and certainly more devolution to subunits within nation states. It is a revolution of both cultural solidarity and political subsidiarity.

The European Union, European peace, and the affluence and anonymity of the globalized market economy are the tinderbox for the coming conflagration.

Read More

Federalism, Yet Again: Views From the Citadel

Last Fall, the excellent Jim Fleming (Boston University Law School) organized a fun conference on “America’s Political Dysfunction: Constitutional Connections, Causes, and Cures.”

Part of the conference was a panel inviting Sotirios A. Barber (Notre Dame) and yours truly to critique each other’s books on federalism—respectively, The Fallacies of States’ Rights (Harvard UP, 2013) and The Upside-Down Constitution (Harvard UP, 2012). Both of us took the assignment quite seriously.

Let’s just say there’s not a lot of common ground; it’s a rather pointed exchange. To my mind, though, the colloquy illustrates the high utility (as well as the entertainment value) of the bilateral critique format, which I think Jim Fleming invented. Kudos.

What struck me on flipping through the essays for purposes of this post is just how much of a game changer the ACA has been, or become.

Read More

Divided America—and How It Heals

shutterstock_25900297

Staid old Gallup knows how to get attention. Its Presidential Job Approval Center recently announced a new report with the provocative title: U.S. Muslims Most Approving of Obama, Mormons Least. The full results of this extraordinarily large sample of 88,000 interviews showed an even more dramatic division. Majorities of Muslims (72 percent), other non-Christians (59 percent), Jews (55 percent) and atheists (54 percent) supporting President Obama faced Catholics (51 percent), Protestants (58 percent) and Mormons (78 percent) opposing him.

It looks like the basis for a religious war. Then it gets even bleaker.

Read More

In Praise of Gridlock, Federalism’s BFF

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.

Read More

If Not Exemptions, Then What?

This week it’s the Hobby Lobby decision and the “contraception mandate” that are provoking discussion. But beyond the specific facts and carefully narrow decision in Hobby Lobby runs a more general and perennial question: Does freedom of religion mean that sincere religious objectors have a qualified (not categorical) right to be exempted from otherwise applicable laws– a draft law, a compulsory schooling law, a regulation requiring employers to provide insurance coverage that includes contraceptives and some abortifacients? At least according to the conventional wisdom, the Supreme Court’s answer to that question for many decades was “no.”

Read More

Federalism and the Treaty Power: The Scope of the Treaty Power

Last week the Supreme Court decided Bond v. US, which raised the issue whether a federal statute, justified as an attempt to give effect to a treay, could reach local behavior. While the Court held that the statute did not reach the local conduct based on the federalism canon of statutory contruction, I am interested in the related constitutional issues. Justices Scalia, Thomas, and Alito all believed that the statute reached the local conduct and therefore discussed the constitutional issues.

There are two basic questions raised by these justices’ discussion: (1) Whether it is constitutional for a treaty to be made that does not involve international issues, but only domestic matters?; (2) Whether it is constitution for a statute to be passed that exceeds Congress’s enumerated powers and therefore can only be justified as necessary and proper to the Treaty Power?

In the decision, Justices Scalia and Thomas both answered no as to both issues. Justice Alito answered no as to issue 1, saying nothing about issue 2. I thought I would briefly discuss each of these issues. In this post, I discuss the first issue: The Scope of the Treaty Power. (I should note that I am not an expert in this area and therefore my remarks here should be taken as preliminary.)

What is the scope of the treaty power? What subjects can it address? There are three leading positions:

The Treaty Power is limited by the enumerated powers of the federal government.

The Treaty Power is limited by the traditional subjects of treaties – that is, international matters.

The Treaty Power is essentially unlimited, extending to any subject the US and another country want to enter into a treaty about.

Read More

Paying the Debt of Civility

I’m often asked whether it’s challenging to be a Jewish professor at a Catholic college that takes its religious identity seriously, to which my answer is, first, no, and, second, I certainly prefer it to being a Jewish professor at a Catholic college that takes its religious identity casually. In any event, my contributions to the institution’s Catholicity through participating in its intellectual life are warmly welcomed, and to the extent I am involved in ritual events, I treat them like I would treat being a guest in someone else’s home. Still, my colleagues have been accommodating nearly to a fault. In more than one setting, prayers have been ecumenically tailored to my presence—wholly unnecessarily, but considerately nonetheless.

Read More