constitutional law

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November 17, 2011

strung along

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This is a quick, and as all things coming of the top of my head potentially embarrassing, post on the constitutionality of the Affordable Care Act:

Most commentary I’ve read argues that the commerce clause does/does not provide authority to Congress to implement the individual mandate.  The tax and spending clause tends to get mentioned as the mandate being a type of tax.

I haven’t seen much debate on what would seem an easier route to Congressional authority: attaching the mandate a conditional string to health-related funding to the states.  Is that out there and I’ve just missed it?

A policy in which we choose not to have fully private health care and insurance–in other words, one in which we have chosen not to simply let those die that cannot pay for coverage–requires some government spending.  States and the federal government do most of that spending.  I suppose it could be possible for the federal government to get out of the game, and allow that basically moral decision to occur within each state–do we, as a state, wish to create programs like mandatory emergency room coverage, social security, medicare, and medicaid to help prevent death by empty pocket? For now, though, the federal government has a major role in that prevention.  Why can’t it attach conditions to its health-related spending just as the conditions of the drinking age attach to highway funds?

The condition couldn’t be the individual mandate – but could require states accepting funds to implement something that achieves the same goal, which in my mind is getting rid of the incentive to not getting insurance until sick.

 

May 10, 2011

The Administrative Stat(us)

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Included amongst those both for and against the REINS Act, I’m sure, are some administrative law scholars happy with the chance to reflect on the status of our administrative state.

The acronym for the Regulations from the Executive in Need of Scrutiny Act highlights, as conservative  sources celebrate, the bill’s intent to rein in federal regulations.  In a nutshell, it allows Congress to do through inaction what the Congressional Review Act–part of the mid-90s Contract with America–already allows Congress to do with legislative action: to disqualify major, new regulations.  Under the REINS Act, if an agency proposed a rule that had an estimated economic impact of more than $100 million (this happens about 50-100 times each year), both chambers in Congress would be required to approve of the final rule.  If Congress didn’t pass a joint resolution within 70 days in the legislative session, the proposed rule would die.   The Congressional Review Act already allows Congress to disqualify an agency’s rule, but both chambers have to vote affirmatively to do so.  Thus, under current law, Congress must pass a joint resolution to kill a regulation; under the proposed law, it must pass a joint resolution to affirm a regulation.

The politics of the bill are less interesting than the more fundamental concerns with administrative law, so we’ll quickly dispel the former.  The bill would lower the effective rate of (REIN in) major federal rules.  Some people like that and others don’t.

A more sophisticated issue, segue-ing us from politics to administrative theory, is accountability.  A blessing and curse of our fleet of civil servants is that they are purportedly experts, insulated from the fickle tides of public opinion; at the same time, is is difficult to ascribe accountability to the insulated rulemakers.  The conundrum of accountability versus expertise has existed probably as long as representation; but has at least been well pondered since Woodrow Wilson zeroed in on it in 1886.

Supporting insulated expertise, here is Noah Sachs:

Since the Progressive era, U.S. administrative law has operated from the premise that agency action should be somewhat insulated from political pressure and horse trading. The REINS Act would mark a radical abandonment of that goal, an attempt to correct an oversight problem that doesn’t even exist. It would deliver a body blow to the already-sluggish agency rulemaking process by politicizing it and entangling it in the congressional morass. And, over the long term, it would do serious damage to American health and prosperity—stopping agencies from promulgating important rules that, among other things, would help prevent bank failures, ensure the safety of the food we eat, and control toxic pollution in the air we breathe.

The results would likely be devastating. In the near term, the REINS Act could be a back-door means of gutting health care reform. The GOP lacked the votes in the Senate to repeal the Patient Protection and Affordable Care Act, but, under the REINS Act, it could do serious damage to the statute. The law has more than 40 different provisions that call on the Department of Health and Human Services (HHS) to enact implementing regulations. These forthcoming rules, most of which will be considered “major,” will cover issues such as prevention of Medicare fraud and extending dependent coverage to people as old as 26. With the REINS Act in effect, they could be quashed if the House objects to them, or if Republicans simply stall a floor vote on them beyond 70 days.

And supporting accountability, here is Jonathan Adler:

The primary purpose of the Act is to ensure greater political accountability for major regulatory initiatives.  Federal regulatory agencies only have that power delegated them by Congress, but regulatory agencies are not always particularly responsive to Congressional concerns.  Nor are members of Congress always willing to take responsibility for how the power they have delegated gets exercised.  Requiring a straight up-or-down vote on new major regulations is a way to address both problems and the expedited procedures ensure that traditional legislative logjams and special interest obstruction won’t prevent consideration of significant regulatory initiatives.  This is why I believe the REINS Act is more about transparency and political accountability than anything else.

Adler’s support of the bill, trumpeting transparency and accountability, might sound more coherent if the Congressional Review Act did not already exist.  But, it is difficult to see how a bill that allows Congress to quietly overturn proposed rules by not voting is more transparent or accountable than existing law that allows Congress to overturn a rule by voting.  The argument can only be on this question: which scheme promotes greater transparency and accountability–one in which X must reject Y; or one in which X must affirm Y, and is deemed to reject Y if X does not act.  I don’t think it’s impossible to argue that requiring affirmation is as accountability-securing as requiring rejection, but administrative law makes it a stretch.  If agencies were actually government bodies with free reign to create rules, willy-nilly, a required Congressional affirmative would make exceeding sense.  As it is, though, agencies cannot pass rules that statutes do not authorize.  So Congress has already provided an affirmative by passing legislation authorizing rulemakings.  A second vote to pass the actual rule resulting from passed legislation seems to me to decrease accountability.  A representative might vote yes to the “Everyone Like It in Theory” Act, but vote against (or not vote at all) for the “Actual Details of Putting It into Practice” regulations.

The question that brings us into a truly philosophical examination into our administrative state is: how does the REINS bill strike our notions of the separation of powers?  Arguments relying on the separation of powers principle rely on neatly demarcated branches of government, and folks arguing for and against the bill tend to either (1) place agencies in the executive branch or (2) emphasize that they are substantively controlled by legislation; thus, at least rulemaking should be regarded as a legislative branch activity.

Sally Katzen argues that the REINS Act would be unconstitutional, relying on an agency-as-executive approach:

Over twenty years ago, Chief Justice Rehnquist set forth several tests for whether a statute violates the Constitution’s separation of powers. One is that a statute is suspect if it “involve[s] an attempt by Congress to increase its own powers at the expense of the executive branch.” Much of the discussion surrounding the REINS Act suggests that that may be an apt characterization of the bill’s sponsors’ intent. Another of Rehnquist’s tests is whether an act of Congress “impermissibly interfere[s] with the President’s exercise of his constitutionally appointed functions,” which clearly includes the obligation to “take care that the laws be faithfully executed.” For over a century, the executive branch has taken care to faithfully execute the laws by, among other things, developing and issuing regulations implementing legislation. Justice Scalia, who of all the Justices most aggressively guards the President’s authority, has relied in key separation of powers cases such as Morrison v. Olson and Mistretta v. United States on the fact that the activities at issue in those cases were ones in which the executive had traditionally engaged.  That characterization is clearly applicable to agency rulemaking as well.

Jonathan Adler wants to distinguish “execution” from rulemaking:

Several members of the subcommittee suggested the REINS Act imposed unconstitutional constraints on executive power, particularly the executive’s responsibility to faithfully execute and enforce federal laws.  Therefore, they suggested, the REINS Act could conflict with Article II, Section 1 of the Constitution.  Set aside the curiosity of House Democrats, including Rep. Conyers, defending executive power.  This objection is based on a fundamental confusion about the nature of executive power. The power to “enforce” the laws – that is, the power to take action to see that legal rules are complied with – is distinct from the power to make the rules pursuant to a delegation of authority from Congress. So, for instance, the EPA’s power to impose fines or other sanctions on companies that violate emission limitations is distinct from the EPA’s power to set the emission limits. A requirement that federal regulatory agencies obtain Congressional approval before major rules may take effect requires Congressional assent for the latter, but has not effect on the former.

Sally Katzen raised a more nuanced separation of powers concern, but one that I also find unconvincing, and for largely the same reasons. She noted that under Morrison v. Olson, “a statute is suspect if it ‘involves an attempt by Congress to increase its own powers at the expense of the executive branch,’” and it is reasonable to see the REINS Act as an effort to constrain the executive. Just look at the bill’s full title and findings. The problem with her argument is that it ignores the distinction between executive and legislative functions.

The powers to investigate and prosecute are core executive functions. Any effort by Congress to limit such powers and aggrandize its own is problematic.

The executive power is distinct from the power to adopt legislative-type rules, however.  The latter is not a core executive function. Rather it is a quasi-legislative power that must be delegated by Congress. As the Supreme Court has stressed time and again (and as I noted in my testimony), federal agencies have no authority to promulgate regulations beyond that which has been given by Congress. And what Congress has given, it may take back. Restraining the exercise of such authority, whether by adopting rules for the exercise of regulatory authority (as under the Administrative Procedure Act or the Congressional Review Act) or limiting the scope of such authority is perfectly acceptable, so long as other Constitutional requirements (such as bicameralism and presentment) are satisfied. As the REINS Act satisfies such requirements, there is no problem. The REINS Act does not curtail executive power so much as it places limits on the legislative-like power delegated by Congress.

Adler is right to prevent over-simplistically placing agencies into one branch– whenever people talk about separation of powers, I recommend a seasoning of sufficient salt to add complexity to the dish.   I appreciate recent scholarship, such as that from Professor Mashaw, that identifies things we would see as administrative functions before the solidification of an administrative law field.  But, it is nonetheless clear that the framers in 1787 did not write up a structure of federal government that foresaw the contemporary administrative state.  So, framer-centric arguments about separation of powers elude the post-framing constitutional problems that arose as delegations of quasi-legislative and quasi-judicial powers arose.

Adler, though, seems to think that agencies, at least when making major rules, should be fully and solely creatures of Congress.  I’m not sure that is the proper understanding of the nature of agencies’ regulatory action.  An agency’s rule is not a new law; it is the carrying out of a Congressional statute.  If a rule goes beyond what an authorizing statute allows, it will be overturned.  And so, it is not a stretch to pull rulemaking away from Adler’s description of legislative activity and toward his notion of executive enforcement: a rule might be understood as analogous to a police office’s enforcement of a criminal ordinance with a policies to identify manifestations of that crime.  Likewise, Congress might declare that X is prohibited, and agencies then enforce against X by identifying X in X-1, X-2, and X-3 manifestations.  Rules, in other words, are an agency’s specified enforcement strategies of a broader Congressional policy.

I’m not interested in placing agencies definitively within wither the executive, legislative, or judicial branch.  The point, in fact, is that they do not belong, and should not be conceptualized, as being in either.  Sadly for the textualist, there is no appropriate constitutional language that provides direct guidance to the Court on administrative law.  That is not to say the language is irrelevant; but it is inadequate.

And speaking of language, it is interpretation that makes all of this most interesting.  The argument that agencies execute legislation would make tremendous sense if statutes were never vague.  But they are, which undoubtedly emphasizes the latter portion of the hyphenated quasi-legislation.

That is not to say, though, that Congress ought to take control of the rulemaking process when agencies work in the world of Chevron.  The appropriate response to the mysteries of our administrative state is not to force agencies into an existing branch.  The appropriate method for Congress to affect policy is by passing statutes.  It would be interesting to read the Court decision in a case deciding whether a latter Congress can prevent a former Congress’ legislation from taking effect by preventing associated regulations from becoming final.  My hunch is that the practice would fail.   Once a bill become law Congress cannot direct the interpretation of that law except by passing a new bill.  Chevron doesn’t require an agency, in the face of vague statutory language, to go get a Congressional interpretation; the Court has created a space for agencies to reasonably interpret statutes, and thus create policy, in a sphere outside that of our generally recognized governmental branches.

 

October 1, 2010

talkin’ bare armed blues (F29)

Posted by Andrew under constitutional law, Federalist | Tags: , , |
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Jeff: My problem is that your plan gives Congress control of our state militias, the very things that prevent federal tyranny.  Without them, what power do the states have if the federal government should attempt to effect by force of arms what by law or right it could never effect?

Alex: We don’t propose to disband the militia.  I’m not sure if you read the proposed document, or just the horror stories from the collection of folks that reason only so far as required to prevent honest discourse.

Jeff: The word “militia” sits there in the text, but it clearly does not refer to those bodies that have, up to now, been composed of men willing to fight for their home country, the state within which they live and work and raise families.  The “militia” of the proposed Constitution are bodies controlled by the federal Congress.  They might continue to live in their respective states,  but with whom will their loyalties abide?  The federal Congress demands their attention, and regulates their training.

Alex: It’s not like they’ll be swept up and taken to some federal brainwashing camp whereat they’ll forget all familial and community affections.  The whole nature of the militia is that they are local, and can be gathered where they already are, if need be.  They’ll still be living and working in their home country.  It stands to reason, then, that their loyalties will remain local.

Jeff: And I expect, then, that the Federalists will be sure to establish a standing army to whup up on my local militia.

Alex: But that’s where. . .

Jeff: And thus the federal power can freely ascend to tyranny. . .

Alex: Hold on, the militia. . .

Jeff: …because you will march your professional armies clear over the countryside.  I know my liberty tree cries ‘feed me Seymour,’ but its appetite is for both sides of a fight – the patriots and tyrants.  Liberty requires a credible threat to the powers that be.

Alex: Let me in here, Jeff.  That exact fear is precisely what I’m trying to address.  It is what the proposed Constitution, written by men with just your concern, intends to guard against.  In the first Article, five subsections address the federal land and naval forces, and our state-based militias.  The last of those, section 8.16, grants Congress power to organize, arm, and discipline the militia.

Jeff: Oh, great relief!  Why should that provision calm my concern?  The power to regulate our local militias is the power to do so poorly – to set them up to fail against the federal army.

Alex: And, if I may continue, section 8.15 allows Congress to call on the militias to execute laws, suppress insurrections, and repel invasions.

Jeff: You’re making me no more comfortable.

Alex: Now, you know a standing army could not march from one part of the continent to another when little emergencies require execution, suppression, or repulsion.  You know, full well, that the federal government will rely on local forces that can be whipped up and brought to action instantly and locally.  Don’t you see, then, that the federal government will have an incentive to train the militia units to the highest standard?  If a small band of troublemakers would cause damage to their neighbors and ignore duly enacted laws, the general government would be much more disposed to call up local forces to quiet the situation than to send a central army to remote wildernesses.  Further, using local militia will assure the remaining community that such needful force is against a common enemy, and not the result of federal whim. Remember your reflections after the militia responded to Mr. Shays?  “The interposition of the people themselves on the side of government has had a great effect on the opinion here.”  For all these benefits, the general government will have an interest in assuring the high quality of those militias, and will well regulate them to do so.

Jeff: And I’m supposed to just assume the federal government won’t just co-opt the militiamen into the central army?

Alex: You don’t have to assume it.  Section 8.16 lays it clearly out that the states will appoint officers to their respective militias.  Besides, we haven’t even formed an army.  But let me quote what I wrote before:

“. . .if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”

Jeff: Well and good.  I’ll take your point.  But training is not, really, all there is to it.  In our own day we’ve seen the progress of military machinery.  What inequity in force should happen if the citizens that join militias are denied the same arms available to your federal army?  What prevents Congress from disarming the militia?

Alex: Everything I’ve said should explain why Congress would never disarm the militia.  And, again, those very same, well regulated militiamen are the surest prevention to a standing army.

Jeff: Well, you need to put that in a . . .

Alex: I know, I know, a bill of rights.  I’m telling you, though, you are not going to get your way with an amendment against standing armies.  General Washington can publically praise the militias all he wants; we both know he will have his professional army too.  But I’m willing to work with you, assuring that the first Congress will propose an amendment that the militia will, indeed, be well regulated, and not a sloppy ragtag of ill-prepared and off-target amateurs.

Jeff: That will never be disarmed?

Alex: And never disarmed.  For the purpose of a well regulated militia, the people’s right to bear arms shall not be infringed.

Jeff: I still want language that emphasizes the purpose of the militia.  Look, our republican government requires that people, belonging to a state, have a unit of force that is, in the end, loyal to that state and those people.  If the federal government should ever begin to act outside the dictates of our law or reason, that force is the last protection for these states that consented to the general government.  It ought be clear, then, what these militia, and the arms we secure, are purported to protect.

Alex: Ok, fine.  A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Jeff: Alright, I’m thirsty. Fraunces Tavern?

Alex: My turn to buy.  I want to hear your thoughts on how bare a right it will be if bearing arms is, one day, akin to the mere sword today.


 

September 30, 2010

Did Gregg Allman sing “Sweet Militia”

Posted by Andrew under constitutional law, Federalist | Tags: , |
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Happily, by the 29th column, Publius started defending particular passages of the proposed Constitution.  Article I, sec. 8 grants to the federal Congress several explicit powers.  Five subsections deal with armed forces: 8.12, 8.13, and 8.14 allow Congress to create an army and navy, and to make rules “for the government and regulation” of those forces.  Section 8.15 allows Congress to “provide for calling forth the militia.”  The difference between providing for such a calling forth and actually calling forth is an item we can discuss some other time.  What the provision makes clear, though, is that whoever does the calling can do so “to execute the laws of the union, suppress insurrections and repel invasions.”  Think Shays Rebellion.  Or, more recently, Governor Wallace.

The first four subsections are not, though, the topic of Federalist 29.  Rather, Hamilton responded in the column to anti-Federalists’ attacks on section 8.16, which grants to Congress the power:

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

Bad enough was the prospect of a standing army; but here, the federal government presumed to take control of the state-based militias.  Hamilton’s response, in a nutshell, is: (1) a well trained militia – which it will be if the federal government controls the training – will be a good militia all the better at preventing federal tyranny; (2) the better and more efficient the militia, the less need for a standing army; and (3) the militia will still be true to the states, because the states appoint the officers. In the next post, I thought it would be fun to present F29 and my thoughts after reading it as an imagined dialog between the ill-disguised characters, Jeff and Alex.

The socio-political context, here, is interesting.  The following passages, I think, give a sense of the mood between the war and ratification.  It was good politics to celebrate the militia’s contribution to the war.  But, it seems to me, most realistic folks knew the need for a regular, well trained army.

From John Ferling’s A Leap in the Dark, page 190:

At the end of 1775, during the siege of Boston, Washington had watched with horror as his army of short-term enlistees went home.  He implored Congress to mandate longer enlistments, even for the duration of the war.  Congress refused and also rejected pleas for using bounties to induce men to reenlist.  Its actions stemmed from an abiding fear of standing armies.  Many in Congress considered a standing army an “armed monster” and an “infernal machine.”  Samuel Adams, in language reminiscent of that which he had used during the British occupation of Boston after 1768, declared that soldiers in a standing army “are apt to consider themselves in a Body distinct from the rest of the citizens.”  To the end of the war he wished that the Continental army consisted of militiamen conscripted for brief tours of duty.

And this, from George Washington (grabbed off of wikipedia):

To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows…if I was called upon to declare upon Oath, whether the Militia have been most serviceable or hurtful upon the whole, I should subscribe to the latter.

 

August 3, 2010

Two plus two has been interpretated as being four

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Senate Minority Leader Jon Kyl: “There is a constitutional provision in the 14th Amendment that has been interpreted to provide that, if you are born in the United States, you are a citizen no matter what.”

The first sentence of the 14th Amendment: “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.”

I’m working on a paper that quite heavily relies on the 14th Amendment’s opening line, and am thus interested in the immigration policy-driven constitutional discussion going on. Another big chunk of the paper is on Congress’ prerogative to identify and enforce constitutional rights, so my instinct is ordinarily to praise Congressional hearings on constitutional provisions, as Sen. McConnell is apparently pushing.

But, in this case let’s call a ridiculous spade a ridiculous spade. If the GOP Senators plan to stall about every vote, citing the deficit, it would seems we could save some resources by skipping hearings into unambiguous text and offering, instead, whatever citizenship-altering amendment these people have in mind.

 

March 17, 2010

On Class

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The day after I wrote the below post, Gov. McDonald issued an executive directive purporting not to tolerate employment discrimination of any kind within state entities. A few points, upon which I’ll flesh out after vacation.

Warner and Kaine issued legally binding executive orders; McDonald issued a non-legally binding directive. The directive fails to specify, as the orders did, protection against gay discrimination. We’ll see how those distinctions play out.

More importantly, we need to talk about class. Nishant’s comment below and McDonald’s directive point to the 14th amendment’s equal protection clause as a source that already protects against gay discrimination; so, no further law is needed. That’s not the case. And for quick proof: if that were so, don’t ask don’t tell would be unconstitutional.

To borrow from Fish: there’s no such thing as no discrimination. To discriminate = to make a decision based on particular factors. The constitution allows discrimination betwen sets of people, like those qualified for a job and those not, those with x education and those with y education. A world without discrimination is impossible.

What the Court has done with discrimination regarding types of people is this:
For most classifications, the government decider must have some rational basis, connected to the underlying policy goal, to make the distinction. That us an amazingly easy test to pass in front of a judge. If that classification is gender, the test is a bit tougher- got to be substantially related. And if the classification is race, ethnicity, or dealing with a fundamental right like privacy, it must be narrowly tailored to meet a compelling government interest. That last test is quite tough.

Protections against gay discrimination fall onto the first set: they exist but are easy to surmount. Gay rights pursuant the 14th amendment’s equal protection clause are, returning to my borrowing from Fish, akin to your ‘right’ to yell ‘fire’ in a movie theater. As such, it seems to me an intellectual head fake to direct state agencies against discrimination pursuant to the equal protection clause.

 

March 4, 2010

Fast Lane to Balkinization

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Professor Balkin has a post up today that brings to mind some recent posts here. Balkin argues that the lawyers in the McDonald case yesterday might have argued for overturning Cruikshank rather than Slaughterhouse.  Balkin’s description of federal and state rights as set forth in the 14th Amendment will be a relief after my own stab at that.  And on the problems that led to Cruikshank, see my quick review of Lane’s book on the matter.

 

February 24, 2010

the penumbra’s long shadow; the Griswalds go to Athens!

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So you think Griswold taught judicial reviewers to read between the lines?  It seems, rather, to’ve been Demosthenes.

Textualists, intentionalists, and spiritualists (of the law) have long debated how we ought apply the lines of our Constitution and statues to specific cases.  Can we, for instance, infer a basic privacy right from the first ten amendments.

Here’s a glimpse of our American debate, via an exchange at the Ashbrook Center:

Peter W. Schramm: Another question. Justice Thomas, could you comment on the reasoning of Griswald, and tell us what you believe it could lead to in terms of the expansion of privacy rights?

Justice Thomas: Griswald has been around a long time. I will comment on it only to this extent. Of course you know that there the rights were supposedly emanated from these penumbras. So when I got to the court, a friend of mine, who will remain nameless, sent me a custom made sign that’s on display in my office that says, “Please do not emanate into the penumbra.” And I’ve tried to steadfastly avoid doing that.

I don’t know what it would lead to. I think that the scholars have reached different conclusions, but we of course know that that was one of the precursor decisions for Roe v. Wade. And of course, we’ve changed that reasoning a bit inCasey. But we’re already beginning to get, and I’m just talking about a class of cases–I’m moving a little bit away from privacy a second–we’re already beginning to get the reliance in the right to die cases, on some of those cases, certainly on Casey, and language in Casey. So I think you can begin to see that the big cases, and I’ve said this to others, that you’re going to begin to see, I think, some cases now talking about who gets to live, who gets to die, who gets to be born and all sorts of things like that. And that’s going to be hard, and I think they’re going to rely on some of these precursor cases. And how we come out, I don’t know.

So it was neat tonight to read Adriaan Lanni’s article on judicial review in ancient Athens.  The article describes the legal arguments that Athenians made against newly passed decrees and laws.  Mostly, the arguments used two lines of reasoning – (1) the law’s inception violated the process through which laws are supposed to come about; and (2) the law directly violates a previous law.  But then there was this:

Wolff’s landmark study, “Normenkontrolle” und Gesetzesbegriff in der attischen Demokratie, added a third category of legal argument: the statute under review contravened general principles that could be logically derived from existing statutes, as opposed to directly contradicting a specific provision.  Wolff viewed this third category of argument as most central to Athenian notions of constitutionality, and carefully traced the Athenians’ increasing sophistication at extracting fundamental principles from statutes over time. Two additional aspects of Wolff’s theory are important for our purposes: first, the fundamental principles involve moral and social values and institutions … as well as democratic political and legal norms … and, second, the general principles are always derived from statutes and are never appealed to as independent, abstract values.
Got that?  It seems to me Justice Douglas might have just as well phrased his penumbra as “general principles logically derived” from the Bill of Rights.
Another thing’s interesting here – note this about the Athenian principles and the penumbra: both avoid Natural Law, as Lanni points out at the end of the above quote.  It is a judicial review based on text and construction, rather than divining meaning from without.
 

February 16, 2010

Mr. Jefferson, tear down that wall…

Posted by Andrew under constitutional law, history, politics, society
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I finally got around to reading through the religion-of-the-founders article that’s been showing up in the top emailed NY Times section the past week or so. It’s good, but disjointed. The general outline is this: the Texas State Board of Education yields a lot of influence on national school policy – specifically, textbook publishers. Thus, Texas education policy is generally in the eye of whatever culture wars are going on in education curricula at a given time. Lately, and in focus for this article, has been the battle over the extent to which the Nation’s founders were Christian and, far less tangibly but nevertheless ultimately, the extent to which this is a Christian Nation. (That, by the way, the article has been up top in the emailed list for a while gives some heft to the notion that the issue is, indeed, culturally significant.)

That last bit is where the article purports to marinate, before returning us back to Texan education policy. And I was looking forward to some interesting historiography as the in-depth section kicked off with:

There is, however, one slightly awkward issue for hard-core secularists who would combat what they see as a Christian whitewashing of American history: the Christian activists have a certain amount of history on their side.

But the article didn’t give us too much more than a casual reader of American history already knows. The colonies were largely, and often officially, Christian. The folks that found themselves within the Continental Congresses were, for the most part, Christians. There were also several that manifested the Enlightenment detachment from Christian specificity, particularly the need to be saved via Jesus. The Declaration of Independence asserts that the Creator grants basic human rights. The Constitution does not mention that Creator. And all that comes back to this:

As Frances FitzGerald showed in her groundbreaking 1979 book “America Revised,” if there is one thing to be said about American-history textbooks through the ages it is that the narrative of the past is consistently reshaped by present-day forces. Maybe the most striking thing about current history textbooks is that they have lost a controlling narrative. America is no longer portrayed as one thing, one people, but rather a hodgepodge of issues and minorities, forces and struggles. If it were possible to cast the concerns of the Christian conservatives into secular terms, it might be said that they find this lack of a through line and purpose to be disturbing and dangerous. Many others do as well, of course. But the Christians have an answer.

Their answer is rather specific. Merely weaving important religious trends and events into the narrative of American history is not what the Christian bloc on the Texas board has pushed for in revising its guidelines. Many of the points that have been incorporated into the guidelines or that have been advanced by board members and their expert advisers slant toward portraying America as having a divinely preordained mission.

I didn’t feel like the conversations about religion, history, nor education were very much improved by the article; in sum, it seemed very much in the familiar pattern of some people say this and other say that. The article failed to ask the questions that lay hanging over the entire debate presented within it, namely: what would it mean to be a “Christian Nation” (what goal do these folks have in mind); is the Declaration of Independence a foundational document of the US government or does it, in a more limited way, simply shed light on statutory (and Constitution-atory) intent; and to what degree would the Texas School Board folks desire that schools proselytize?

The story prompts those questions; and to be fair, it is likely purposefully limited to politics. But these types of stories are worthwhile if can engage on the foundational issues and assumptions.

I would have enjoyed something a bit more searching; perhaps I still lean overly much to the type of treatment to these questions I found in Jacob Needleman’s The American Soul. Now, that’s a good read – but he had an entire book, so perhaps I’m being a bit unfair.

 

December 5, 2009

The federalism of privileges and immunities

Posted by Andrew under constitutional law, law | Tags: |
[7] Comments 

It is conventionally understood that the Supreme Court’s Slaughterhouse decision destroyed the most straightforward route with which Congress could protect the fundamental rights of American citizens: the 14th Amendment’s privileges and immunities clause.  The Supreme Court decided Slaughterhouse in 1873, shortly after the states ratified the 13th, 14th, and 15th Amendments.  To protect rights after Slaughterhouse, goes the conventional understanding, Congress had to resort to the far less straight-forward vehicles of the commerce clause (as in the 1964 Civil Rights Act); and courts had to invent substantive due process (as in Lochner and Roe).  (I’ve tacked the amendment’s first section over to the right for reference.)

Indeed, if a federal legislator wants to destroy Jim Crow, that legislator would surely prefer legislating with a Constitutional provision forbidding any state laws that “abridge the privileges or immunities of citizens of the United States”; rather than with (as in 1964) a clause allowing you to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  Alas, Slaughterhouse squashes Constitutional common-sense reasoning; you must put aside the knife to carve a turkey with scissors (themed analogies).

I re-acquainted myself with that problem recently.  Several amicus briefs for McDonald v. Chicago, the gun-rights incorporation case up this term, argue that the 14th Amendment’s privileges and immunities clause is the proper avenue for the Court to apply the second amendment to the states, and that the Court should overturn Slaughterhouse.  The Volokh Conspiracy has been aflutter, as many contributors are libertarian minded, gun-right advocating, legal academics.  And then I happened to read, “The Legacy of Slaughterhouse, Bradwell, and Cruikshank in Constitutional Interpretation,” in which Professor Huhn passionately recites the familiar line that “the Court practically eviscerated the Privileges and Immunities Clause of the 14th Amendment.”

At some point, in reading the briefs, that paper, the 14th Amendment, and the Slaughterhouse majority and dissents, I found myself agreeing more with Justice Miller’s Slaughterhouse majority opinion than with the legal academics, and contrarianism is at least worth exploring when it feels right.

How did Slaughterhouse do so much harm?

Critics of Slaughterhouse write that Justice Miller’s wrong result resulted from wrongly distinguishing state and federal citizenship.  Justice Miller, they say, ignored the hierarchy of citizenship that the 14th Amendment created: that, we are primarily federal citizens, and secondarily state citizens.  Then, he placed most fundamental rights – like the freedom to earn an honest living, that was at issue in Slaughterhouse - in the realm of rights deriving from state citizenship, a realm of rights not protected by the 14th Amendment.

From the Heritage Foundation:

The citizenship clause defines both federal and state citizenship, making them not separate as the majority in Slaughterhouse concludes, but one derivative of the other – state citizenship a necessary result of federal citizenship. Accordingly, all of the privileges or immunities one possesses as a federal citizen include the privileges or immunities one gains as a citizen of a state.

From the Cato Institute’s brief in McDonald v. Chicago:

…[the] central error [in Slaughterhouse] is that the Court ignored the Amendment’s underlying premise:  namely, a revolution in federalism that placed national authority over state autonomy and protected a wide array of national rights against state governments.

From Professor Huhn:

[T]he straightforward language of the 14th Amendment … made state citizenship secondary to national citizenship. …Slaughterhouse … turned that unmistakable hierarchy on its head ….

So,  Miller’s misreading of he 14th Amendment’s scheme of citizenship led to his failure to conclude that the 14th Amendment allows the federal government to protect fundamental rights.  Let’s look at the text of the 14th Amendment that Justice Miller so slaughtered:

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.  No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States ….

Justice Miller quite rightly read the 14th Amendment’s distinction of state and federal citizenship.

This is my understanding of the 14th Amendment in regards to citizenships and the privileges and immunities clause:  The amendment begins by addressing the federalism at the heart of the Nation and the struggle at the heart of the then recent Civil War – that we are nationally and locally political beings; and each person (including ex-slaves) is a citizen of the Nation and their state (a direct overturning of Taney’s Dred Scott).

The amendment assures that each U.S. citizen enjoys a threshold of fundamental rights. States can create more rights, but cannot encroach those fundamental rights.  The 14th Amendment does not create a hierarchy of citizenship – a person is both a citizen of her state and of the U.S., and, for purposes of the 14th Amendment, one citizenship does not trump the other.  Finally, the 14th Amendment does not create a federal scheme of enforcement against private behavior; its first and fifth clauses are directed at Congress’s ability to control state action.

The real problem in the decision is that Justice Miller wrongly wrote that fundamental rights derive mainly from state citizenship.  As expanded upon below, I think he did this short-sightedly.   But, contrary to the observers I’ve read, the rights-landscape that Miller created in Slaughterhouse does not destroy the ability of subsequent Justices to base fundamental rights from federal privileges and immunities.

And, importantly, Miller’s distinction of state and federal citizenship is a useful continuation of the slightly mysterious federalist nature (like a holy duality) of the United States that we have pondered since 1787.

Some context…

…is useful, in light of the racist motivations sometimes attributed to Justice Miller’s Slaughterhouse opinion.  (My guess is that a lot of folks confuse the case with Dred Scott.)

The Slaughterhouse Cases resulted from a Louisiana law, descriptively titled, an “Act to Protect the Health of the City of New Orleans, to Locate the Stock Landings and Slaughter Houses, and to incorporate the Crescent City Livestock Landing and Slaughter-House Company.”  The legislation was not innovative—several big cities consolidated slaughtering companies to get their cholera inducing byproduct out of the water supply.

Former Justice John Archibald Campbell argued the case for the Butchers’ Benevolent Association, and did so within a larger legal program to frustrate Radical Reconstruction.  (We mentioned, a while back, Charles Lane’s book on a sibling case, Cruikshank.  Also check Michael Ross’s Obstructing Reconstruction: John Archibald Campbell and the Legal Campaign Against Louisiana’s Republican Government, 1868-1873.)  To cast a deserved shadow on Campbell, note that, in his Justice days, he joined the majority in Dred Scott.

The 13th, 14th, and 15th amendments, among other things, incorporated former slaves into full, American citizenship.  Campbell used the new amendments in his arguments for the(white) butchers – perhaps deliberately overusing the arguments based on the new amendments to water them down, or at least firmly extend their coverage to those not newly enfranchised.  He argued that the slaughtering monopoly resulted in involuntary servitude (banned by the 13th Amendment), and he used every possible bit of the 14th Amendment to argue against the process inadequacy, liberty deprivation, and unequal protection of the Louisiana  statute.

Justice Miller’ s response to Campbell’s arguments, in his Slaughterhouse opinion, insisted that the 14th amendment must be understood in light of the civil war and was primarily written to protect former slaves’ privileges and immunities.  One can easily imagine the decision as an attempt to shut Campbell up.

Justice Miller’s Opinion

Professor Huhn argues that the Slaughterhouse majority rejected the plaintiff’s claim that “the right to earn a living at an honest occupation – although a fundamental right, was not a ‘privilege or immunity of national citizenship’ within the meaning of the 1th Amendment.”  His cite is to the opinion, 83 U.S. 36, 73-74.

On those pages, Justice Miller discussed the first lines of the amendment, and their impact on citizenship.  It seems to me, though, that Justice Miller was endorsing the notion that the amendment corrected Dred Scott.

But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled, and if was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen were still not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.

To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.

“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.”  …[I]t overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt.

Miller then notes that the next paragraph (the privileges and immunities clause), “which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.”

This section of the opinion does not decide whether the right to earn a livelihood is one based on federal or state citizenship; it simply makes the correct point that the privileges and immunities clause protects a set of rights that are enjoyed by U.S. citizens.

…Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.

This conception of distinct sets of federal and state rights does not strike me as a rights-reducing proposition leading necessarily to Jim Crow .  Rather, Miller’s reading creates a federalist scheme of rights wherein states can expand upon the threshold national rights enjoyed by every U.S. citizen.  So, if a state’s population decided to ordain particular freedoms, it could so do; so long as the state does not subtract national privileges and immunities.

Professor Huhn writes that, “[i]n placing state citizenship over national citizenship, the Slaughterhouse Court reflected the view of John C. Calhoun.”  (p4 of the linked copy)  The Calhoun quote that Huhn quotes  is from 1833; Calhoun was discussing the Article IV privilege and immunities clause, and dismissing the notion of federal citizenship.  The Slaughterhouse dissent also picked up the quote.

If by citizen of the United States he means a citizen at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found in the entire mass of our population. Notwithstanding all the pomp and display of eloquence on the occasion, every citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.

In Dred Scott, the Court embraced Calhoun’s view of citizenship.  Slaughterhouse clearly divorced the Court from that stance.  So, it cannot be that Slaughterhouse‘s fatal flaw is it’s embrace of Calhounian, state-centric citizenship.  Miller stressed that the 14th Amendment made U.S. citizenship a reality – you are a citizen of the state and of the union; and you carry with you, wheresoever you go among those states, your U.S. citizenship and the federal privileges and immunities.

In its search for a clearly delineated federal set of privileges and immunities, the majority opinion is correct.

Substance, not structure

The Slaughterhouse Cases did not create a structural impediment to federal protection of fundamental rights via the 14th Amendment’s privileges and immunities clause.  The opinion did not reverse the 14th Amendment’s hierarchy of citizenship because the 14th Amendment did not create a hierarchy of citizenship.

Rather than a structural problem, Slaughterhouse presented a substantive problem over just what are federal privileges and immunities.  That problem does not require overturning Slaughterhouse to spur the privileges and immunities clause into action.  Rather, courts can determine that, as says Huhn, “Americans have both the right and the moral duty to protest fundamental injustice anywhere in the United States, because these are matters of national citizenship, not state citizenship.”  (at p7 of my copy)

Justice Field’s dissent in Slaughterhouse was correct in clarifying that the 14th amendment did not create or define any privileges; rather, it “assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation.”

But I don’t think the dissent was correct (nor the scholars since) in concluding that the majority confined the federal set of privileges and immunities to those that existed “ before [the 14th Amendment’s] adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States.”

Field believed that the majority’s opinion mooted the founder’s work; “that a vain and idle enactment, which accomplished nothing.”  But this forgets Dred Scott, which surely the drafters had in mind when crafting that first sentence.  The majority clearly embraced that purpose.

So, what are the federal privileges and immunities?

This is where the action ought be for scholars and courts: what privileges and immunities have a national nature?  Slaughterhouse did not provide a litmus test for federal rights.  The majority looked at “privileges and immunities” clauses in the Articles of Confederation and Constitution, and in antebellum precedent.  This is where the majority might have seen trees rather than a forest, and where Miller might have let his desire to quash Campbell’s right-to-earn-a-living claim cloud his vision of the larger intended impacts of the 14th Amendment.

The original privilege and immunities clause’s “sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”

Which is to say, treat outsiders at least as well as you do your own.

…the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

The 14th Amendment does not transfer rights-protection duties, and I agree with Miller’s hesitancy in establishing the federal government as the sole arbiter of rights.  But he wrongly confines fundamental rights to state citizenship.  It ought, though, to be possible for a Justice to determine that fundamental rights now arise from National citizenship; or, even, that the fundamental right arises from both, and the federal government can enforce against states that deprive citizens of those rights.  Further, the 14th Amendment does not state that the federal government can only protect those privileges and immunities existing after the Civil War.  It seems to me that a privilege might derive from federal-citizenship now that did not in 1877; and that the Court could so find, within the scheme set out in Slaughterhouse.

Justice Miller, somewhat amusingly, looked into certain privileges that had a federal nature at the time of his decision – things like the “care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government.”  In 1873, one could argue that was the narrow scope of our fundamental rights; at the time, the concept of incorporation of the Bill of Rights was still formative.  But, as our federalism has evolved, it seems natural that the rights associated with state and federal citizenship would likewise evolve.  There is nothing, anyway, in Slaughterhouse, preventing that.

 

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