Tag Archives: law

Plenty of debates, not much about states

Democrats regard federalism as quaint, Republicans at least pay lip service to it

By DAVID B. RIVKIN JR. AND ELIZABETH PRICE FOLEY

In the presidential debates, Barack Obama and Mitt Romney ranged across dozens of topics, but an important one didn’t come up: federalism. And no wonder.

The idea that the Constitution grants only limited and enumerated powers and leaves the remainder to the states is foreign to those who believe that the national government should or even could address voters’ every concern. But contrary to the view widely shared by the political class, Washington—in particular, Congress—does not have the power to pass any law it wants in the name of the “general welfare.”

Politicians should take heed. Voters are increasingly focused on the proper role of government in society: Witness the rise of the tea party and unease over the massive debt caused by entitlements and other government handouts. The continuing loud objection to ObamaCare’s takeover of health care shows that voters want to preserve the Constitution’s architecture of limited federal power.

Keeping the federal government within its proper constitutional sphere is critical to all Americans, regardless of their political allegiance. This is because federalism is not about protecting “states’ rights” but about preserving individual liberty. In the words of a unanimous 2011 Supreme Court decision, Bond v. United States, by “denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

Federalism also allows states to craft policies that best suit the preferences and needs of their citizens, who can always vote with their feet. Likewise, leaving key policy choices to state governments benefits voters through sheer proximity to decision makers. State legislators are often part-timers who work and live in our communities and are more palpably accountable to us.

State-level reform thus comes more swiftly and better reflects the desires of ordinary constituents. States in recent years have led the way in reforming welfare, health care, education and regulatory policies. They have cut deficits, balanced budgets, reformed tax codes and produced jobs.

Federalism also benefits the national government. By having up to 50 different approaches to an issue, Congress can see what works.

Despite federalism’s many virtues, it is not much in vogue. Democrats view it as a quaint, 18th-century relic, another disposable constitutional concept that stands in the way of “progress.” The Obama administration has been particularly disdainful of federalism, with ObamaCare unconstitutionally coercing states into fundamentally revising their Medicaid programs and compelling individuals—under the guise of regulating interstate commerce—to buy a government-approved health-insurance policy.

Republicans pay lip service to federalism but too often toss it aside to achieve their own policy goals. For example, many congressional Republicans, concerned about abusive lawsuits, would nationalize many aspects of medical malpractice, an area of law traditionally reserved to the states.

Meanwhile big-spending states such as California and Illinois have been lobbying Congress for a federal bailout of their unfunded pensions. From the federalist perspective, it is appropriate that the promiscuous spending of some states makes it difficult for them to borrow more money. Such consequences, while dire, provide the political leverage that citizens living within those states need to force their elected representatives to reform.

Yet Washington may well end up rescuing these nearly bankrupt states—because some states will compromise their own sovereignty when the price is right, and the federal government is only too happy to take over and claim political credit. For there is no more assiduous underminer of federalism than the federal government itself. Every session of Congress and every administration adds to the existing voluminous body of federal law that continues to federalize wide swaths of traditional state authority. This must stop.

There was one glimmer of hope for federalism in the third presidential debate, when Mitt Romney talked about saving Medicaid by making block grants to states. “We’ll take that health-care program for the poor and we give it to the states to run because states run these programs more efficiently,” he said. “As a governor, I thought please, give me this program. I can run this more efficiently than the federal government and states, by the way, are proving it.”

If Mr. Romney succeeds in his race for the White House, let’s hope he doesn’t forget that states can be trusted to run their own affairs.

Mr. Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush and represented 26 states in challenging ObamaCare. He has advised the Romney campaign. Ms. Foley is a law professor at Florida International University College of Law and author of “The Tea Party: Three Principles” (Cambridge, 2011).

Source: http://online.wsj.com/article/SB10000872396390443328404578022821421131956.html 

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The myth of occupied Gaza

By David B. Rivkin Jr. and Lee A. Casey

(originally published in The Washington Post on Saturday, May 10, 2008)

Hamas claims that former president Jimmy Carter’s recent meeting with its leader, Khaled Meshal, marks its recognition as a “national liberation movement” — even though Hamas rockets fired from the Gaza Strip, which Hamas rules as an elected “government,” continue to rain down on Israel’s civilian population. While Hamas is clearly trying to bolster its legitimacy, the conflict along Israel’s southern border has a broader legal dimension — the question of whether, as a matter of international law, Israel “occupies” Gaza. The answer is pivotal: It governs the legal rights of Israel and Gaza’s population and may well set a legal precedent for wars between sovereign states and non-state entities, including terrorist groups such as al-Qaeda.

Israel’s critics argue that Gaza remains “occupied” territory, even though Israeli forces were unilaterally withdrawn from the area in August 2005. (Hamas won a majority in the Gazan assembly in 2006 and seized control militarily in 2007.) If this is so, Jerusalem is responsible for the health and welfare of Gazans and is arguably limited in any type of military force it uses in response to continuing Hamas attacks. Moreover, even Israel’s nonmilitary responses to Hamas-led terrorist activities — severely limiting the flow of food, fuel and other commodities into Gaza — would violate its obligations as an occupying power.

Israel, however, is not an occupying power, judging by traditional international legal tests. Although such tests have been articulated in various ways over time, they all boil down to this question: Does a state exercise effective governmental authority — if only on a de facto basis — over the territory? As early as 1899, the Hague Convention on the Laws and Customs of War on Land stated that “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself.”

The Hague Convention is a founding document of the modern law of armed conflict, and its definition of occupied territory was woven into the 1949 Geneva Conventions. There, the relevant provision provides that “[i]n the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations,” although certain protections for the populations continue “to the extent that such Power exercises the functions of government in such territory.” That is the key — exercising the functions of government. This proposition was recognized in a seminal Nuremberg prosecution, the Trial of William List and Others.

It is because an occupying power exercises effective control over a territory that international law substantially restricts the measures, military or economic, it can bring to bear upon this territory, well beyond the limits that would be applicable before occupation, whether in wartime or peacetime.

The Israeli military does not control Gaza; nor does Israel exercise any government functions there. Claims that Israel continues to occupy Gaza suggest that a power having once occupied a territory must continue to behave toward the local population as an occupying power until all outstanding issues are resolved. This “principle” can be described only as an ingenious invention; it has no basis in traditional international law.

The adoption of any such rule (designed to limit Israel’s freedom of action and give Hamas a legal leg up in its continuing conflict) should be actively opposed by the United States. Its adoption would suggest that no occupying power can withdraw of its own volition without incurring continuing, and perhaps permanent, legal obligations to a territory. This issue is particularly acute regarding territory not otherwise controlled by a functioning state — failed states or failed areas of states where the “legitimate” government cannot or will not exercise effective control. Such places — call them badlands — were once rare. Over the past 15 years, though, there has been an explosion in the number of such areas, notably parts of Afghanistan, Somalia and portions of Pakistan.

Gaza is exceptional only in that its international legal status is indeterminate. Its last true sovereign was the Ottoman Porte. It was part of the British Palestine Mandate and has since been administered by both Egypt and Israel. Today, no state claims sovereign authority, though it is expected that Gaza will become part of a future Palestinian state. For its part, Hamas acknowledges no higher authority and functions as a de facto government in Gaza. It is a classic example of a terrorist-controlled badland.

Unduly handicapping states that intervene in such badlands — whether to protect their own interests, those of the local population or both — is unrealistic and irresponsible. Requiring agreement by the “international community” (whatever that may be) as a precondition for extinguishing such a designation is equally unproductive if the goal is saving lives. Consider the example of Darfur.

Even worse is pretending that groups such as Hamas are merely criminal gangs that must be dealt with as a local policing problem — just one of the potential side effects of imposing an “occupied” status on a territory. This implicates U.S. interests directly, since America’s ability to use robust armed force against al-Qaeda and similar non-state actors remains critical to defending our civilian population from attack. Efforts to limit states’ rights to use military force against such groups simply benefit the globe’s worst rogue elements and endanger the civilian populations among which they operate. Here, as in so many other areas, the traditional international law that imposes the obligations of an occupier only on states that physically occupy a territory makes perfect sense.

The writers are Washington lawyers who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. They were members of the U.N. Subcommission on the Promotion and Protection of Human Rights from 2004 to 2007.

© 2008 The Washington Post Company

The Triumph of the Text

In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.

(published in The Wall Street Journal, August 29, 2012)

By DAVID B. RIVKIN JR.

For many years now, a debate has raged over how best to interpret the Constitution and other canonical legal texts. One way of grouping the warring parties is to divide them according to their views of writing itself—the words on the page. The textualists feel a strong loyalty, even a moral commitment, to the words themselves and the meanings they were intended to convey. The non-textualists have a very different approach, guided by a peculiar view of democratic society and the law.

Reading LawLike the government in Anthony Burgess’s “A Clockwork Orange”—setting out to adjust the behavior of inherently flawed men and women—non-textualists see the American electorate as a collection of people in need of improvement and democracy as too error-prone to do the job. Their solution is to vest judges with the ability to “adjust” the law in order to ensure a more “progressive” direction, loosely interpreting the wording of statutes and the Constitution and sometimes disregarding the wording entirely. The result is a search for non-democratic shortcuts as the best way to promote fairness and social justice.

Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner are having none of it. In “Reading Law,” they argue forcefully for a textualist approach—for interpreting legal documents, especially the Constitution, by focusing on written words in their original meaning. Along the way, the authors debunk the claims of the non-textualists, who, they say, seek to deconstruct the language, imposing on it a content that was never expressed. Such an effort, they note, defeats the whole purpose of communication and substitutes the reader’s ideas for those of the writer.

Textualism, the authors claim, is inherent in written language itself, which enables writers to convey their ideas with specificity and precision. Thus in Anglo-American jurisprudence, textualism has been the guiding interpretive method for centuries, the bedrock assumption of judges as well as legislators. “Reading Law” offers a panoply of examples from English and American history in which the original meaning of written words has guided decisions over rival claims—from a run-of-the-mill land deed to the Magna Carta and the U.S. Constitution. To trace textualism’s deep roots, the authors describe a Scottish statute, circa 1427, which, as they put it, “made it a punishable offense for counsel to argue anything other than the original understanding.”

Though other approaches have always jostled for supremacy, a full assault on textualism—embodied in such ideas as the “living Constitution”—dates only to the mid-20th century. One of the central claims of the non-textualists is that language is too slippery, and meaning too “relative,” to allow for consensus and clarity. But in fact, the authors say, there is an extraordinary amount of agreement about the intended meaning of most legal texts, even if there is still room for interpretive dispute. It is only in a small minority of politically and socially sensitive cases, they note, that non-textualists allegedly cannot discern the written text’s original meaning.

But of course the real disagreement over the role of texts in law has to do with both method and purpose. The non-textualists—whether judges, lawyers or law professors—are keen, above all, to promote a particular outcome, and the original meaning of a text can get in the way. Non-textualism, by contrast, empowers the reader (or judge) to do as he pleases. Such a freewheeling approach is a problem in nearly any context, but it is especially pernicious in the law, where precision, predictability and legitimacy are so important. In any democracy, and particularly in our constitutional system, non-textualism transfers power from the people to unelected judges.

Not surprisingly, it is in construing the Constitution that non-textualists make their strongest stand. Justice Stephen Breyer, the judiciary’s foremost opponent of the original-meaning approach, is candid enough about his motivations. In his 2010 book, titled “Making Our Democracy Work: A Judge’s View,” Justice Breyer wonders: “Why would people want to live under the ‘dead hand’ of an eighteenth-century constitution that preserved not enduring values but specific eighteenth-century thoughts about how those values then applied?” A textualist might answer that, if today’s citizens don’t like what the 18th-century Founders decided upon—and what they put down in a document that was, after all, ratified by democratic vote—they can amend it.

As the authors make their argument for textualism, they are eager to show that it is a good deal more than a dull and primitive literalism. They cite passages from Shakespeare and from case law to reveal, for example, the ways in which “associated words” in a list or grouping point toward certain definitions and eliminate others. Similarly, generalizations in the law (e.g., the phrase “any other person”) may be more precise than an over-literal reading might suggest, depending on the specific nouns that come before or after. Drawing on statutes, amusing hypotheticals and the work of distinguished legal philosophers, the authors present 57 “canons” that should govern text-based legal thinking and judgment. They also expose 13 “falsities”—for example, “the half-truth that consequences of a decision provide the key to sound interpretation.”

Justice Scalia and Mr. Garner have written a remarkable book that reshapes the long-running debate about what it means to be a judge and the very role of the law in our polity. It is also a compelling guide to interpreting legal documents, certain to be used by legal practitioners and scholars. The authors, it should be noted, do not suggest that textualism leads to easy comity among jurists or anyone else. They concede that, even if minds agree on meaning, “hearts often disagree on what is right.” The answer, though, is not for judges to impose their idea of right, and thereby distort the law, but to concentrate on “what an enacted law means,” an effort that requires “discipline and self-abnegation.”

Mr. Rivkin, a constitutional lawyer, served in the Justice Department under Presidents Reagan and George H.W. Bush.

A version of this article appeared August 29, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: The Triumph Of the Text.

 Source: http://online.wsj.com/article/SB10000872396390444318104577589613733295148.html?mod=asia_opinion

Obama vs. Congress—and the Law

The President has taken a hatchet to welfare reform, the immigration laws, and ‘No Child Left Behind.’

(published in The Wall Street Journal, July 27, 2012)

By DAVID B. RIVKIN JR. AND LEE A. CASEY

On July 12, President Obama unilaterally gutted the Clinton administration’s signature achievement—welfare reform. The 1996 welfare-reform law, while passed with strong bipartisan support, has been the bane of progressives, who have never accepted its fundamental principle that those who can work must work. Over the last year, the Obama administration also took the hatchet to the immigration laws and to the Bush-era “No Child Left Behind” statute.

These actions have two things in common. First, they were announced with much fanfare and designed to appeal to the president’s liberal base. Second, and much worse, they were implemented by suspending enforcement or waiving applications of laws Mr. Obama does not like.

The president cannot write—or rewrite—the laws. The Constitution makes Congress the legislature, and the president cannot simply ignore its decisions.

The entire system of separation of powers—which is the heart of the Constitution’s “checks and balances” designed to limit governmental power and thereby protect individual liberty—depends upon each branch of the federal government fulfilling its assigned role and respecting that of the others. Unfortunately, Mr. Obama has now made clear that he won’t respect these basic constitutional limits on his power.

Last year, for example, the administration was displeased with Congress’s failure to enact the White House-supported Dream Act, which would have legalized numerous categories of young undocumented aliens. And so, in August 2011, the administration announced it would not deport illegal aliens who had only violated the immigration laws. Henceforth, only those who had committed criminal offenses, in addition to immigration ones, would be the subject of deportation proceedings.

Mr. Obama followed this with a White House announcement in June of this year that granted effective amnesty to undocumented aliens under age 30 who had come to the United States before the age of 16. This entire group will no longer be subject to deportation proceedings and may also qualify for renewable work permits. Thus the president implemented portions of legislation he could not get through Congress on his own signature and acted in ways blatantly at odds with the existing immigration laws, which provide for no such exemptions from deportation.

Earlier this year, in February, the administration gutted the strict student testing and monitoring requirements of the 2001 “No Child Left Behind” law. The law, which passed with strong bipartisan support, is meant to make schools more accountable for their pupils’ progress. But the testing and monitoring requirements are loathed by teachers unions across the nation—a key Democratic constituency for November. Unable to convince Congress to revise key provisions of the law, the president simply authorized “waivers” from many of these requirements—including one that states establish reading and math proficiency standards for all students by 2014. But “No Child Left Behind” does not provide for such waivers.

Most recently, the administration announced that it will waive the central tenet of the Clinton welfare-reform law—the requirements that recipients work or prepare (through approved education or training) to do so. Although certain aspects of the Personal Responsibility and Work Opportunity Act are subject to waiver, the federal work requirements are not among them.

The pattern of lawlessness here would have outraged the Constitution’s Framers. It should outrage all of us—including and especially members of Congress on both sides of the party divide.

Congress makes the laws and they must be enforced. For the Constitution’s Framers, this principle was bedrock—not only the ultimate achievement of our own revolution, but of England’s Glorious Revolution a century before. King James II was deposed in 1688, in no small part, because he claimed and exercised the power to “suspend” parliament’s laws.

Congress does not have to reach back to the 17th century for a precedent. Like President Obama, President Richard M. Nixon also refused to implement federal statutes when he believed Congress was wrong. Nixon did so by refusing to spend (“impounding”) money authorized and appropriated by Congress. It responded with the Congressional Budget and Impoundment Control Act in 1974, followed by a Supreme Court decision (Train v. City of New York, 1975) overturning one of the president’s impoundments, effectively ending the practice.

The Constitution gives the president many tools, some legal and some political, to use in his daily cut and thrust with Congress over national policy and priorities. But it does not permit him to ignore the laws Congress has enacted, and to make his own rules simply because he thinks the desired policy result is the right thing to do. A president who does not understand this does not understand the constitutional requirement that he “take care that the laws be faithfully executed,” or his inaugural oath to “faithfully execute the Office of President of the United States.”

Messrs. Rivkin and Casey served in the White House and U.S. Department of Justice during the Reagan and George H.W. Bush administrations.

A version of this article appeared July 27, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: Obama vs. Congress—and the Law.

Health Care Reform v. the Founders

By DAVID B. RIVKIN JR.

Editor’s note: This op-ed was originally published on September 29, 1993.

The president has announced his health care plan, and congressional Republicans have announced theirs. Although the details are still murky, the plans seem to share one fundamental assumption — that every man, woman and child in the U.S. must participate in the system. The healthy must subsidize the sick; the young must subsidize the old; the not so old must subsidize the very young. If this redistribution of wealth is to work without new taxes (and no one wants to admit that new taxes might be necessary), then everyone must be in the plan.

Where, exactly, does the U.S. government get the power to require that every one of its citizens must participate in a government-sponsored health care plan? Ask this of a health care reformer and he, or she, will sniff, think a moment, and (if legally trained) will immediately utter the two most magic words in late 20th century constitutional jurisprudence—Commerce Clause.

If the legality of a health care package featuring federally mandated universal participation is litigated (and we can bet it will be), and the system is upheld, it will mark the final extension of this originally modest grant of federal authority. Thereafter, Congress will be able to regulate you not because of who you are, what you do for a living, or whether you use the interstate highways, but merely because you exist.

This was not, of course, the original plan. One of the fundamental tenets underlying the Constitution of 1787 was that the federal government was a government of limited powers. Unlike the states, which had more general authority to regulate their citizens, the federal government was to be limited to those powers found within the four corners of the Constitution. In particular, Congress could exercise only that authority specifically granted to it by the people and the states.

There was a list — and not a very long list. One of the powers enumerated on it was the “Power . . . To regulate Commerce with foreign Nations and among the several States.” One of the most serious deficiencies of the first union under the Articles of Confederation was that states were able to erect barriers to trade with other states and foreign countries. The Commerce Clause was added to the Constitution so that Congress could create the original North American free trade zone — within the U.S. itself.

The commerce power in the battered Constitution that emerged from the 1930s and 1940s, however, was very different. After being routed by President Roosevelt and his Congress, the Supreme Court fled to the Commerce Clause, finding there a way to avoid treading upon the vital interests of a Congress determined to regulate the economic relationships of the citizenry, not to mention its health, welfare and safety. In Wickard v. Filburn, in 1942, the court went so far as to rule that Congress could prevent a farmer from growing wheat for his own consumption. Too much of an effect on commerce, reasoned the court — this fellow gobbling wheat he grew himself. After all, he could have purchased it interstate. On that day, the Framers’ ghosts wept.

Of course, the commerce power was still, in theory, limited. In Wickard, after all, the man at least was a farmer, someone engaged in growing and selling foodstocks. Commerce was in the air, somewhere. And the court continued to pay at least lip service to the notion that the federal government is a government of limited authority, and that Congress can regulate only based upon some nexus to interstate commerce — or in reference to one of its other enumerated powers, like the power to tax and spend. So long as Congress provides a reasonable explanation of that nexus, its actions will be upheld. The limits of the contemporary Commerce Clause are not very clear, but most would agree there are some limits.

The final test, however, has come. In the new health care system, individuals will not be forced to belong because of their occupation, employment, or business activities — as in the case of Social Security. They will be dragooned into the system for no other reason than that they are people who are here. If the courts uphold Congress’s authority to impose this system, they must once and for all draw the curtain on the Constitution of 1787 and admit that there is nothing that Congress cannot do under the Commerce Clause. The polite fiction that we live under a government of limited powers must be discarded — Leviathan must be embraced.

The implications of this final extension of the commerce power are frightening. If Congress can regulate you because you are, then it can do anything to you not forbidden by the handful of restraints contained in the Bill of Rights. For example, if Congress thinks Americans are too fat — many are — and that this somehow will affect interstate commerce — who’s to say it doesn’t? — can it not decree that Americans shall lose weight? Indeed, under the new system, any activity that might increase the costs of health care might be regulatable.

If individuals can be regulated because of their health, then surely any activity with an impact on health also can be regulated. Perhaps one day it will be decided that every member of the new health care system — everybody — will be tested for the HIV virus. After all, your HIV status affects your health, the costs of health care, and, thus, interstate commerce. If a mandatory federal health system is justified under a Commerce Clause analysis, then any regulation of any health-related activity also can be justified.

Would the Bill of Rights intervene? Maybe, and maybe not. There is no specific right to eat when and how you like. There is no specific right not to undergo medical testing. The right against unreasonable searches and seizures? Perhaps. What about the “right to privacy”? It’s been overused, but maybe. The Supreme Court might well look into its penumbra crystal and find the necessary limitations — and maybe it won’t.

One thing is clear. Once Congress’s power is extended to every individual not because of his activities, but because he is, limits on its power will depend upon the fortitude and creativity of the courts. No American, whatever his policy views on health care reform, should rejoice at the disappearance of the last fragments of the principle that the federal government is one of limited powers. It is indeed ironic, and sad, that as the rest of the world is discovering the virtues of limiting their governments, the U.S. seems hellbent on unleashing its own.

Mr. Rivkin, an adjunct fellow at the American Enterprise Institute, served in the Reagan and Bush administrations. Lee A. Casey, also a former Reagan and Bush official, collaborated on this article.

Source: http://online.wsj.com/article/SB10001424052702303640804577490971369614332.html

ObamaCare ruling 2012: Who’s laughing now?

“Congress has crossed a fundamental constitutional line.”

United States Supreme CourtAs the nation awaits one of the most important Supreme Court decisions of our time, efforts to sway the decision toward upholding ObamaCare are not in short supply. Some have the thin veneer of news articles; others carry the weight of admonition by the President himself. One can only conclude that such efforts are based on a sober assessment that overturning at least one linchpin of the law is a very real possibility.

The editors of this newsletter recall vividly how the efforts of Messers Rivkin and Casey to call attention to the unconstitutionality of the 2010 healthcare law were met with derision by professors, legislators, and, unsurprisingly, reporters and news “analysts.”  The hearty laughs and chuckles have long since ceased.

Lest readers believe that the legal argument against ObamaCare is grounded in political ideology, the editors of this newsletter present excerpts from articles penned by Rivkin or Casey to summarize the 26 states’ case against the federal government and to emphasize what’s at stake for the nation. —Editors

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty.

·  The ultimate purpose of this “individual mandate” is to force young and healthy middle-class workers to subsidize those who need more coverage.
·  Congress could have achieved this wealth transfer in perfectly constitutional ways. It could simply have imposed new taxes to pay for a national health system. But that would have come with a huge political price tag that neither Congress nor the president was prepared to pay.

Instead, Congress adopted the individual mandate, invoking its power to regulate interstate commerce. The uninsured, it reasoned, still use health services (for which some do not pay) and therefore have an impact on commerce, which Congress can regulate.
Congress’s reliance on the Commerce Clause to support the individual mandate was politically expedient, but constitutionally deficient. Congress’s power to regulate interstate commerce is broad but not limitless.

Congress has crossed a fundamental constitutional line. Neither the fact that every individual has some discernible impact on the economy, nor that virtually everyone will at some point in time use healthcare services, is a sufficient basis for federal regulation.

Nowhere in the Constitution can we find a provision to support the notion that “the ends justify the means.”

At stake are the Constitution’s structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities.

Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

The arguments advanced by ObamaCare’s defenders are flawed because they admit no judicially enforceable limiting principle marking the outer bounds of federal authority.
Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.

The contents of this email include excerpts from an article that appeared March 21, 2012, with the headline: The Supreme Court Weighs ObamaCare.

The Supreme Court weighs ObamaCare

Congress’s power to regulate interstate commerce is broad but not limitless.

(published in The Wall Street Journal, March 21, 2012)

By DAVID B. RIVKIN JR. AND LEE A. CASEY

On Monday, the Supreme Court will begin an extraordinary three-day hearing on the constitutionality of ObamaCare. At stake are the Constitution’s structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities. Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty. The ultimate purpose of this “individual mandate” is to force young and healthy middle-class workers to subsidize those who need more coverage.

Congress could have achieved this wealth transfer in perfectly constitutional ways. It could simply have imposed new taxes to pay for a national health system. But that would have come with a huge political price tag that neither Congress nor the president was prepared to pay.

Instead, Congress adopted the individual mandate, invoking its power to regulate interstate commerce. The uninsured, it reasoned, still use health services (for which some do not pay) and therefore have an impact on commerce, which Congress can regulate.

Congress’s reliance on the Commerce Clause to support the individual mandate was politically expedient but constitutionally deficient. Congress’s power to regulate interstate commerce is broad but not limitless.

First among the limits is the very nature of congressional authority, which is based on specifically enumerated powers. As the Supreme Court has consistently acknowledged, the Constitution denies the federal government the type of broad public health and welfare regulatory authority known as a “general police power,” which is reserved exclusively to the states. The court has also repeatedly held that preservation of this division between federal and state authority is a matter for supervision by the courts, and its precedents make clear that congressional Commerce Clause regulation must be subject to some judicially enforceable limiting principle.

The defining characteristic of a general police power is the states’ ability to regulate people simply as people, regardless of an individual’s activities or interaction with goods or services that might themselves be subject to regulation. Thus, the Supreme Court has ruled that states, exercising their general police power, can require all resident adults to obtain a smallpox vaccination. Only this type of authority could support ObamaCare’s individual mandate, which applies to all Americans as such, regardless of any goods they may buy or own, or any activities in which they might choose to engage.

Congress has crossed a fundamental constitutional line. Neither the fact that every individual has some discernible impact on the economy, nor that virtually everyone will at some point in time use health-care services, is a sufficient basis for federal regulation. Both of these arguments, advanced by ObamaCare’s defenders, are flawed because they admit no judicially enforceable limiting principle marking the outer bounds of federal authority.

On the left and right, legal thinkers too often forget that Congress has no constitutional power simply to regulate the economy. Rather, that power comes from a series of discrete authorities—to regulate interstate and foreign commerce, to tax, spend and borrow, to coin money and fix its value and so forth—that together allow it broad control over the nation’s economic affairs. As a result, congressional efforts to address national problems may well be less economically efficient than would a more straightforward exercise of police power. The Constitution subordinates efficiency to guarantee liberty.

The Constitution divides governmental power between federal and state governments so that one may check the other. This requires that the electorate be able to tell, especially on Election Day, which government is responsible for which policies and regulations with which we live.

As Justice Anthony Kennedy explained in one leading Commerce Clause case, United States v. Lopez (1995): “The theory that two governments accord more liberty than one [emphasis added] requires for its realization two distinct and discernible lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States.” Congress’s use of its commerce power in passing ObamaCare eradicates those “discernible lines of political accountability.”

Even so, Congress’s enumerated powers support a vast and ever growing regulatory state, much of it based upon the Commerce Clause. Neither that Leviathan, nor the Supreme Court’s precedents upholding it, is now at issue.

Justice Antonin Scalia explained in another of the Supreme Court’s recent Commerce Clause cases, Gonzales v. Raich (2005), that the power to regulate interstate commerce, especially in conjunction with the power “to make all laws which shall be necessary and proper [emphasis added] for carrying into execution” its enumerated powers, gives Congress broad authority to reach even local and non-commercial activities when necessary to make legitimate regulatory schemes effective. Raich upheld federal control of purely local cultivation, sale and use of marijuana, and it is often incorrectly cited as support for the individual mandate.

But the Necessary and Proper Clause does not guarantee Congress whatever power it would like to reach its policy goals. That provision supports only otherwise legitimate exercises of Congress’s enumerated powers. So under the Commerce Clause, Congress can try to achieve universal coverage through regulating the interstate health-care insurance market, as ObamaCare does, by requiring insurance companies operating in that market to cover pre-existing conditions. Then under the Necessary and Proper clause, Congress could also require employers to collect data on pre-existing conditions from new hires so insurers can better plan.

Requiring all Americans to have health insurance may well create a new revenue stream for insurance companies so as to lessen these new burdens on them, but it does nothing to make these new coverage requirements effective regulations of interstate commerce as the Supreme Court uses that term. In particular, the individual mandate does not prevent avoidance or evasion of these new insurance regulations. Nor does it make compliance easier to police, as was the case in Raich. There, the ability to regulate local marijuana production and use was necessary to make its interstate regulation effective because, as Justice Scalia noted, the homegrown variety “is never more than an instant from the interstate market.”

Unlike the regulations at issue in Raich, the individual mandate applies regardless of anyone’s interaction with a commodity, service or other activity, like the interstate sale or transport of marijuana, that Congress can legitimately regulate. Put another way, the Controlled Substances Act is about the regulation of drugs, not people. It affects individuals only to the extent that they interact with the substances it proscribes, and it can be avoided by simply avoiding those substances.

Americans cannot escape the individual mandate by any means because it regulates them as people, simply because they are alive and here. That requires police power authority. Permitting Congress to exercise that authority—however important its ultimate goal—is not constitutionally proper and would forever warp the federal-state division of authority.

Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H. W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.

A version of this article appeared Mar. 22, 2012, on page A15 in some U.S. editions of The Wall Street Journal, with the headline: The Supreme Court Weighs ObamaCare.

Source: http://online.wsj.com/article/SB10001424052702304636404577291883293776326.html