Arkes reminds us that speech is not absolute, and that there are some things we ought not tolerate both for their challenge to the Constitution, and their effect.
Arkes reminds us that speech is not absolute, and that there are some things we ought not tolerate both for their challenge to the Constitution, and their effect.
I recently got into a discussion with someone who purports to be for free markets who stated that the administrative state–and the decrease of public employees in such–was not necessarily a “conservative” act.
Here Ken Masugi shows why this is wrong and contrary to the IDEA of our country:
The short answer is that since Reagan, 16 years of Democratic presidents plus 12 years of Bush Republican presidents have solidified the hold of the administrative state over America. This coup against republican government is the subject of Trump’s ire and the popular anger that propelled his unlikely election.
Often misleadingly described as the “fourth, unelected branch” of government or the bureaucracy, the administrative state is instead a regime change that grips all three branches, especially the elected ones, and the people as well. It reduces the Congress to its financier and makes the executive branch its protector and enforcer. The judiciary is as often its collaborator as its corrector.
Moreover, the administrative state’s reach goes beyond the government. It embraces and enhances the media, political consultants, the professions (especially the legal establishment), academia, and identity groups. These all legitimate each other while strengthening the administrative state.
The administrative state thereby forms a majority faction—to use James Madison’s term for a majority opposed to the common good—that has ruled America since the Reagan years. Whatever the disagreements within it, this majority faction has sanctioned reckless wars abroad, open borders at home, and a globalist economy that has favored some parts of the country over others.
Ken Masugi’s last two paragraphs from RCP:
What then is a demagogue? One who inflames passion over reason surely qualifies. But, as we have shown, Trump actually sides with Madison’s “reason of the public” against demagogues. He is the true moderate in a bipartisan constitutional chaos of wars that strain constitutional credibility and domestic policy that sneers at it. Trump is the spokesman for liberty and consent of the governed against rule by the administrative state of the oligarchs. Even his rash mention of impeachment nonetheless acknowledges that executive power can go too far.
The recovery of government by consent is a long work. It is difficult enough to thrust aside elite opinions of what “conservatism” is in order to appreciate the basic constitutional principles of the Declaration of Independence in action. Trump’s greatest assault on political correctness is to open up discussion of these elements of self-government.
As all my students are aware, immigration has had a varied history in the U.S. Indeed, the first 100 years or so, there was no limitation on immigration. Then in the late 19th Century through 20th century there were limitations of various levels and degrees (as noted in the Bessette and Pitney textbook). The question before us is if Obama’s action is:
The political concerns are secondary (will his actions help or hurt the Democrats, what should the Republicans do about gaining more share of the Latino vote?, etc.) to the above concerns. Obama’s speech was fairly excellent and uplifting—it spoke to a part of America where at the Statue of Liberty a plaque reads,
Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed, to me:
I lift my lamp beside the golden door.
In other words, it all sounds very good (and who could disagree!?), but it just may not be legal to do what he is doing. Rhetoric and law are not conspiring on this point. But, Obama’s speech might not actually square with his authority to use the executive order to affect that intent. Obama’s action could actually harm the Democrats badly in the short term. Part of the reason he never got a bill on immigration was because even the bluest of blue state Democrats did not support it—they did not support it because their constituents did not support it. And there are many Democrats who are against or are criticizing what Obama has done. But none of this can rid the nation of the simple fact that there is a policy problem before us: what do we do with the millions of illegal or undocumented people living and working in our borders.
Perhaps what has understandably concerned critics most is not merely the deferral of deportation proceedings but the affirmative step of permitting those whose deportation is deferred to then apply for authorization to work while they remain in the United States. But here the president is not acting unilaterally nor even on the basis of an inferred discretion. He is, rather, acting on the basis of specific statutory authority from the Immigration and Nationality Act. Under that authority and by pre-existing regulation, the secretary of homeland security is authorized to grant authorization to work to those who are in the “deferred action” category. If Congress does not want those whose deportation is to be deferred to be able to work lawfully, it can certainly repeal this regulatory authority. But it has not done so, and for good reason: those who are able to demonstrate economic necessity to work will undergo background checks and pay local, state, and federal taxes, something a lot of Americans support.
The blog Balkanization has a point by point refutation that the President’s actions are illegal. The most ironic claim is that Obama is actually fulfilling the “Take Care” clause of the Constitution by his executive act. That might be a stretch. The “Take Care” clause is only ONE of the president’s responsibilities. He has others too, and sometimes he has to choose which of his many responsibilities take precedent.
Even the moderate Republican David Gergen, believes that the president has not done anything blatantly illegal, even if he walks up to the Constitutional precipice. However, Obama has crossed an important traditional boundary:
One can argue whether this executive order is legal, but it certainly violates the spirit of the founders. They intentionally focused Article One of the Constitution on the Congress and Article Two on the president. That is because the Congress is the body charged with passing laws and the president is the person charged with faithfully carrying them out.
In effect, the Congress was originally seen as the pre-eminent branch and the president more of a clerk. The president’s power grew enormously in the 20th century but even so, the Constitution still envisions Congress and the president as co-equal branches of government — or as the scholar Richard Neustadt observed, co-equal branches sharing power.
For better or worse, Americans have always expected that in addressing big, tough domestic issues, Congress and the president had to work together to find resolution.
For a president to toss aside such deep traditions of governance is a radical, imprudent step. When a president in day-to-day operations can decide which laws to enforce and which to ignore, where are the limits on his power? Where are the checks and balances so carefully constructed in the Constitution?
If a Democratic president can cancel existing laws on immigration, what is to prevent the next Republican from unilaterally canceling laws on health care?
Exactly, but that’s what presidents have always done. Impoundment debate anyone? In a somewhat different example, how about that Trail of Tears and Jackson’s exclamation that Supreme Court Justice John Marshall come and enforce a decision the Congress and President enacted. The Congress is in control here: they can pass a law, censure him, impeach him, or defund the mechanism of the law dealing with this topic. Politically only a couple of these seem to be beneficial for the Republican Party.
Legally, Obama is on shaky, but not blatantly illegal grounds. He has violated the spirit of the Constitution, but he is no Caesar, and certainly no Cataline. The political consequences for the Democrats may indeed, not get them what Obama thinks they will get—more voters and an unbreakable electoral coalition. And that is what we will all be watching next—how will the Latino’s vote in 2016? The Democrats cannot be guaranteed they’ll be with them and neither can the Republicans.
There has been a lot of smart commentary on the decision yesterday to “void” the health care bill (popularly known as Obamacare). Powerline picks out a few nice quotes from Judge Vinson:
It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. … If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only.
Because I find both the “uniqueness” and “economic decision” arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.
The Commerce Clause originally applied to the trade and exchange of goods as it sought to eliminate trade barriers by and between the states. Over the years, the Clause’s reach has been expanded from covering actual interstate commerce (and its channels and instrumentalities) to intrastate activities that substantially affect interstate commerce. It has even been applied to activities that involve the mere consumption of a product (even if there is no legal commercial interstate market for that product). To now hold that Congress may regulate the so-called “economic decision” to not purchase a product or service in anticipation of future consumption is a “bridge too far.” It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent.
Striking down the law was easy in some respects because of the severability:
The lack of a severability clause in this case is significant because one had been included in an earlier version of the Act, but it was removed in the bill that subsequently became law. “Where Congress includes [particular] language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the [omitted provision] was not intended.” Russello v. United States, 464 U.S. 16, 23-24, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983). In other words, the severability lause was intentionally left out of the Act. The absence of a severability clause is further significant because the individual mandate was controversial all during the progress of the legislation and Congress was undoubtedly well aware that legal challenges were coming. Indeed, as noted earlier, even before the Act became law, several states had passed statutes declaring the individual mandate unconstitutional and purporting to exempt their residents from it; and Congress’ own attorneys in the CRS had basically advised that the challenges might well have legal merit as it was “unclear” if the individual mandate had “solid constitutional foundation.” See CRS Analysis, supra, at 3. In light of the foregoing, Congress’ failure to include a severability clause in the Act (or, more accurately, its decision to not include one that had been included earlier) can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate.
Looks like the Congress, with Obama, are to blame for this omission. Why not include a severability clause? And how can inactivity be activity? If the case is going to be declared constitutional, the administration is going to have to come up with better arguments. I also have to concur about Ezra Klein’s arguments which seem weak at best since the Constitution, by his own words, is impossible to understand. And if it differs from person to person, under the Klein standard, Judge Vinson’s opinions are as valid as anyone else.
This week, the House read the U.S. Constitution (as amended) from the floor. I watched CSPAN today (here is a link to the video), and the reading included members from both parties. The reading of the Constitution caused some controversy. One particular interesting view came from Ezra Klein who asserted that
“It’s a gimmick. I mean, you can say two things about it. One, is that it has no binding power on anything. And two, the issue of the Constitution is not that people don’t read the text and think they’re following. The issue of the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done.”
Here is the video of the exchange where that quote comes:
The question is not whether it is a gimmick (both parties did participate in the reading, so if it is a gimmick it is a gimmick shared by all), but if the Constitution really is not comprehensible, what governs the government? In other words, if the Constitution is so passe, why should we not simply institute a monarchy, or a despotism via coup or some other means? If the Constitution is mere parchment that is indecipherable, why do any of our institutions matter? If the Congress does not like a presidential veto, why not just enforce a bill as if it was signed by the president? Klein is confusing in terms of the place of the Constitution in our government it seems. It has the abstract effect of turning us into an armed camp. And the fact that he espouses a simple historicism means that even his own words are at some point indecipherable. If Klein is serious about the Constitution being outdated, then perhaps he also will admit that freedom of speech, assembly, and religion are also too old to understand.
On the other side of this debate, we have a vigorous defense of the Constitution’s relevance by Charles Kesler. Charles Krauthammer makes a very limited, or narrow, argument on the scope of constitutional matters here.
A federal judge declared parts of Obamacare unconstitutional yesterday. Declaring that the government cannot force us to buy health care should be enough to kill the entire bill by gutting the financing of it (as written). There is the legal analysis we could make about the bill; there is also a constitutional argument we could make. Then there’s public opinion. Scott Rasmussen reports that now 60% want it repealed.
U Chicago professor Richard Epstein throws some caution in our direction. Here is some of his legal analysis:
The key successful move for Virginia was that it found a way to sidestep the well-known 1942 decision of the Supreme Court in Wickard v. Filburn, which held in effect that the power to regulate commerce among the several states extended to decisions of farmers to feed their own grain to their own cows. Wickard does not pass the laugh test if the issue is whether it bears any fidelity to the original constitutional design. It was put into place for the rather ignoble purpose of making sure that the federally sponsored cartel arrangements for agriculture could be properly administered.
At this point, no district court judge would dare turn his back on the ignoble and unprincipled decision in Wickard. But Virginia did not ask for radical therapy. It rather insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate.
It is just that line that controls this case. The opponents of the individual mandate say that they do not have to purchase insurance against their will. The federal government may regulate how people participate in the market, but it cannot make them participate in the market. For if it could be done in this case, it could be done in all others.
In making this position, the district court rejected the view that the individual mandate was a necessary and proper offset to the congressional decision to require all insurers to take customers without regard to their preexisting conditions. In the government’s view, the two issues are the opposite side of the same coin. If the system is going to give some individuals a subsidy, it must find a way to tax someone else to provide that subsidy. Hence the individual mandate.
You can read the 42-page ruling here. Eric Holder and Kethleen Sebelius take to the op-ed pages today and–what is astonishing to me–they don’t really make one legal or constitutional argument in favor of the law. Such an omission seems to acknowledge that the law is unconstitutional.