Archive | Congress

Letter to Senator Cruz on constitutional issues in federal gun control proposals

On Tuesday, the U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights will hold a hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.” Senator Dick Durbin (D-Ill.) is Chair of the Subcommittee, and Senator Ted Cruz (R-Texas) is the Ranking Member. The Subcommittee has solicited letters from the public. My letter is below.


Feb. 8, 2013

Dear Senator Cruz:

I am submitting this letter for the Feb. 12, 2013, Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.”

To begin with, the Subcommittee should acknowledge that crime reduction policy has been a great success in the United States in recent decades. For example, in the early 1980s, the U.S. homicide rate was more than 10 per 100,000 population. Today, that rate has fallen by over half, to under 5. This is comparable to the early 1960s. Overall rates of violent crime have also fallen sharply since their peak of several decades ago.[1]

There are many causes for this progress. Perhaps one of them is that today, 41 of the 50 states respect the constitutional right to bear arms, so that a law-abiding adult can obtain a permit to carry a concealed firearm for lawful protection, or even carry without a permit in a few states. In contrast, in the early 1980s, only about half a dozen medium or small states provided a fair system for licensing the carrying of firearms.

Second, the exploitation of the Newtown murders as an occasion to impose a plethora of new anti-gun laws is unwise. Professor Gary Kleck, of Florida State University, is by far the most eminent worldwide scholar on quantitative data about firearms, and […]

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The Trillion Dollar Coin and the Problem of Circulation

Everyone loves money. That is why they call it MONEY.” – David Mamet.

The trillion-dollar coin is a proposal to avoid the debt ceiling through a loophole in a federal statute that authorizes the U.S. Mint to coin platinum in any denomination. Platinum is reserved for commemorative issues, and the obscure statutory provision was certainly not intended by Congress to authorize the effective borrowing of a trillion dollars, but as a statutory matter, the trillion dollar coin may work.

I have not examined the matter too closely, but at least one constitutional question pops up here.

Congress is authorized to “coin money.” The proposed trillion-dollar coin is certainly a coin – but is it money? Money is created for circulation. As Justice Story put it in his Commentary on the constitution, the power to coin money is designed to “preserve a proper circulation of good coin of a known value.” Vol. 2, § 1118. That is why it is put into the convenient form of coins or bills. Specie never intended for circulation, one might argue, is simply not money.

The link between circulation and coinage has been noted by courts, though obviously nothing has been decided, at least as far as my brief inquiry revealed. Veazie Bank v. Fenno, 75 U.S. 533 (1869) (“It cannot be doubted that under the constitution the power to provide a circulation of coin is given to congress.”)

Let us turn to the dictionaries. “Money” is “metal coined for public use,” according to the 1788 edition of William Perry’s The royal standard English dictionary. This may lead to a debate about what a “public use” is, reminscent of the “general welfare” question in the Spending power. I would guess it means “use by the public,” a view supported by “Metal coined […]

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Filibuster Suit Dismissed

Yesterday, Judge Emmet Sullivan dismissed Common Cause’s suit attempting to have the use of the filibuster declared unconstitutional. As I explained here, this was always a futile suit. Even if one thinks the substance of the suit has merit, standing and the political quesiton doctrine are major obstacles to getting such claims heard. Sure enough, in yesterday’s decision, Judge Sullivan found that none of the plaintiffs, which included members of Congress and individuals claiming they would benefit from the passage of filibustered legislation, have standing to bring the suit. He further found that the case presents a nonjusticiable political question.

The plaintiffs may well appeal, but I’m willing to bet they will not fare any better in front of the U.S. Court of Appeals for the D.C. Circuit. This is the last court in which to press an aggressive standing claim. This lawsuit may generate good press for filibuster opponents, but it’s a legal nonstarter.

P.S. I can’t help but note that it was not that long ago that Common Cause vehemently opposed any effort to eliminate the filibuster, particularly when used to block judicial confirmations. Now, however, Common Cause not only supports filibuster reform, but it also thinks the filibuster is unconstitutional. […]

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Next step: Repeal the individual mandate because it is unconstitutional

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the […]

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Is President Obama’s assertion of executive privilege valid?

As noted by Jonathan Adler, below, President Obama today asserted Executive Privilege for Attorney General Eric Holder’s refusal to comply with a document subpoena from the U.S. House Oversight Committee. The letter is here. The Committee will vote later today on a resolution to hold Holder in contempt of Congress. The Committee Report in support of the contempt resolution is here. A fact sheet on the contempt resolution is here.

Fast & Furious was a program implemented by the Arizona office of the Bureau of Alcohol, Tobacco, Firearms & Explosives, in Sept. 2009 through January 2011. In F&F, BATFE lied to and coerced Arizona gun stores into selling firearms to obvious “straw purchasers”–persons who were illegally buying firearms on behalf of someone who cannot legally buy firearms in the U.S. The “someone else” was Mexican gun traffickers, with most of the guns going to the Sinaloa cartel. Over 2,000 firearms were thus put into criminal hands. In this article for the NRA magazine America’s 1st Freedom,  I provide a timeline of events through October 2011. F&F was a larger and even more destructive reprise of Operation Wide Receiver, which in 2007 put about 500 guns into criminal hands, before BATFE’s management in DC began asking questions that immediately led to Wide Receiver being shut down.

On Feb. 4, 2011, the Department of Justice sent a letter to the House Oversight Committee which falsely claimed that no “gunwalking” (allowing guns to pass into criminal hands, without the guns being kept under constant surveillance) ever took place in Fast & Furious. In December 2011, the Department of Justice admitted that the letter was false, and formally withdrew it. The author of the letter, Ronald Weich, has left DOJ to become Dean of the University of Baltimore Law […]

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A Futile Suit Against the Filibuster

Yesterday Common Cause and several members of Congress filed suit to challenge the constitutionality of the filibuster. According to various reports, the suit is largely based upon the theory outliend in this article by litigator Emmet Bondurant, which maintains that the filibuster is a historical accident and violates the constitutional principle of majority rule. Where the Framers wanted a super-majority requirement for legislative action, they wrote such requirements into the Constitution. Further, Bondurant argues, the filibuster is entrenched in the Senate rules and must therefore be challenged in court.

Ezra Klein thinks Bondurant makes a “strong case.” I don’t, and I don’t think this suit will go anywhere. The first obstacle is standing. The failure of the Senate to pass a bill is not a legally cognizable injury, even if that bill appears to have majority support. The second obstacle is the political question doctrine. This obstacle is particularly large given that the Constitution expressly gives each house of Congress the power to set its own rules, so there is a textual commitment of this question to a coordinate branch. All of the cases upon which Bondurant relies to establish justiciability involved challenges to legislation or other acts that passed Congress and altered pre-existing rights and obligations, so they offer little support for Common Cause’s claims. Even were a court to get beyond these justiciability concerns, the suit would likely fail on the merits. If the Constitution authorizes the Senate to set its own rules, there’s no reason why the Senate cannot opt to include supermajority rules in its procedures.

The problems with this legal challenge are further magnified by Common Cause’s decision to challenge the use of the filibuster to block substantive legislation. The argument that the use of filibusters violates some unstated-albeit-enforceable constitutional norm is stronger […]

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President Obama versus the Constitution

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every


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The STOCK Act and Whistleblowing — Round II

On Sunday, I noted John Berlau and David Bier’s concerns that the STOCK Act sweeps to broadly and could inhibit whistleblowing, and Professor Bainbridge’s thorough response.   Now Berlau and Bier’s colleague, Ryan Radia, has joined the fray, arguing in Berlau and Bier have valid concerns.  In his sur-reply, Professor Bainbridge explains why he’s still unconvinced, and why legislative reform to restrain insider trading on Capitol Hill remains a good idea. […]

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The STOCK Act and Whistleblowing

Congress appears poised to enact the Stop Trading on Congressional Knowledge (STOCK) Act to expressly extend the prohibition on insider trading to members of Congress and their staff.  Some argued that insider trading on Capitol Hill was already illegal, but the STOCK Act would make this explicit.  Both the House and Senate have passed versions of the STOCK Act that are to be reconciled in conference for final passage.

As the STOCK Act has progressed, some have raised concerns about how it might apply to particular activities, such as  political intelligence (more here).  On NRO, John Berlau and David Bier raised concerns that the STOCK Act could inhibit whistleblowing.  As written, Berlau and Bier fear either bill “would muzzle the communication necessary for sunlight and reform.”

Professor Bainbridge, who’s written more on Congressional insider trading than anyone (e.g. here and here), believes these concerns are unfounded because existing law already applies to Congressional staff and Whistle-blowing activity does not constitute illegal tipping. […]

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The original meaning of the 14th Amendment regarding interracial marriage

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one […]

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Stopping the Stop Online Piracy Act

In several recent postings (here and here, for example) I called on all interested persons to come to the Internet’s defense against a spate of truly dreadful bills now making their way through Congress (the “Protect IP Act” and SOPA, the “Stop Online Piracy Act”). Larry Downes, always a thoughtful voice on tech matters, has an interesting piece in Forbes about the rather astonishing outcry that the bills have engendered. As someone who’s been doing Internet law for almost 20 years, I can’t remember any issue galvanizing public opinion in quite this way since the 1996 “Communications Decency Act” [outlawing “indecency” on the Net — good luck with that!]. It’s quite gratifying, and something of a turning point, I think, in terms of the politics of the Net, and it’s gratifying to have played a small part to help generate the current outcry about these truly egregious bills (Mark Lemley, Dave Levine, and I having written a Law Professors’ Letter in opposition that generated over 100 signatures — and, according to the counter at, has been downloaded over 50,000 times already . . . ) I’m pretty gratified; once I saw the full-page ad in the Times a few weeks ago, signed by Google, eBay, Yahoo, Facebook, AOL, Twitter, Zynga, and several other tech giants, stating their opposition to these bills, I began think we might actually have a good chance of winning this one and saving — seriously — the Internet. I think the copyright interests may look back at this battle and realize that they overstepped; galvanizing Google, Facebook, Twitter, eBay, . . . into action is not going to help their cause much, I don’t think.

[And if you’re not aware of how serious a threat these bills are to the Internet’s technical, […]

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Congressional hearing on interstate handgun carry reciprocity

On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law’s Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday’s hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors. […]

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Does requiring the people of a state to vote on tax increases violate the Republican Form of Government guarantee?

That’s the question raised by a lawsuit in Colorado’s federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is “no.” The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee clause.

In short, the Founders defined a “republic” to include governments such as those of ancient Athens, Carthage, and Sparta, all of which included elements of direct democracy. According to Minor v. Happersett (U.S. 1875), the decision of Congress to admit a state to the Union is conclusive proof that, at the time, the state had a Republican Form of Government. Massachusetts and Rhode Island had referenda when they were admitted. The progressive movement for initiative and referendum began in the last 19th century. Congress chose to admit Oklahoma (1907) which had very strong I&R provisions in its state constitution, and New Mexico (1911), whose statehood constitution specifically provided for the creation of a citizen initiative system.

Courts have held that the Republican Form of Government issue is not justiciable, and enforcement is up to Congress. The amicus brief, however, addresses the merits of the issue. […]

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Commemorating an End to Commemorative Resolutions

Thus far Republicans have kept their pledge to end the practice of passing commemorative legislation in the U.S. House of Representatives, the Washington Post reports.  So this has been a year without a Congressional remembrance of the fabled battle of Marathon or Multiple Sclerosis Awareness Week.  Unlike last year, the House is not marking Independence Day passing resolutions honoring the flag or the bald eagle.  Some members are unhappy about this; Rep. Barbara Lee (D-CA) said it’s just wrong.  Other observers note the lack of symbolic resolutions makes it harder to hide the lack of substantive legislation.  It’s also worth keeping mind of the cost.  Though each resolution, by itself, did not cost much, they would add up.  Back in 1993, CRS cited estimates ranging from $340,ooo to $1 million per year, given the printing and other associated expenses.  Whatever else taxpayer dollars should be spent on, National Pi Day and National Beer Day are not it. […]

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