Archive | Tenth Amendment

Senator Ted Cruz: Limits On The Treaty Power

Senator Ted Cruz has an excellent essay in the Harvard Law Review Forum entitled Limits on the Treaty Power. Here is a taste:

The Necessary and Proper Clause does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal government’s powers …. The President should not be able to make any treaty — and Congress should not be able to implement any treaty — in a way that displaces the sovereignty reserved to the states or to the people.

Cruz thus argues that Justice Holmes’s opinion in Missouri v. Holland must be limited to its facts, or else overruled. Regular readers know that I entirely agree.

It is quite unusual for a sitting senator to publish original legal scholarship. And it is doubly unusual for a senator to, in effect, argue for constitutional limits on his own power. Read the whole thing. [...]

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The Solicitor General’s Brief in Bond v. United States

Regular readers are familiar with Bond v. United States, the pending case that presents the question of whether, per Missouri v. Holland, a treaty can increase the legislative power of Congress. I posted about Paul Clement’s brief on behalf of Ms. Bond here, and I posted about my brief on behalf of the Cato Institute and other amici here.

The Solicitor General filed his brief last week, and it is now available here. Here is a taste (SG Brief at 47):

The Court should reject petitioner’s invitation (Br. 33) to overrule Holland. This Court has “always required a departure from precedent to be supported by some ‘special justification.’ ” United States v. IBM Corp., 517 U.S. 843, 856 (1996) (citation omitted). No such special justification is present here. And “[s]tare decisis has added force” when the Political Branches have “acted in reliance on a previous decision.” Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197, 202 (1991). Since the founding, U.S. diplomats have negotiated with foreign powers armed with the assurance that the United States possesses the authority to ensure implementation of its treaty obligations, even in areas generally reserved to the States.

Read the whole thing. [...]

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Sex, Drugs, Alcohol, Gambling, and Guns: The Synergistic Constitutional Effects

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is [...]

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Treaties Can Create Domestic Law of Their Own Force, But It Does Not Follow That Treaties Can Increase The Legislative Power of Congress

Yesterday, the Supreme Court granted certiorari in United States v. Bond, which raises the question of whether a treaty can increase the legislative power of Congress. Guest Blogger Rick Pildes has already noted the cert grant here, and Ilya Somin posted his thoughtful take on the case here. I merely add that I am delighted that the Court has taken the case. Missouri v. Holland addressed this issue in one unreasoned sentence; I believe that it deserves a far more thorough treatment.

As it happens, Rick and I are in the midst of debating this very issue. Rick set the stage with some historical background, and I largely agreed with – but slightly re-characterized – his account. Rick offered some structural or pragmatic reasons to believe that treaties can increase the legislative power of Congress. I contended that these arguments put the cart before the horse.

The first question, I suggested, is whether there is any basis in constitutional text for this proposition. (And, in light of the Tenth Amendment and the enumeration of legislative power, the burden of proof surely lies with anyone claiming that Congress’s legislative power can be expanded, virtually without limit, by treaty.) The conventional view is that the textual basis may be found in a combination of the Treaty Clause and the Necessary and Proper Clause. I have attempted to explain why this is not so.

And the absence of textual support is unsurprising, because the proposition itself is in such deep tension with the basic structural axioms of the Constitution. The Constitution goes to great pains to limit and enumerate the powers of Congress. It emphasizes that the powers of Congress (unlike the powers of the President and the courts) are only those “herein granted.” It creates [...]

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There Is No Textual Foundation For The Claim That Treaties Can Increase The Power of Congress

Rick has offered several articulate criticisms of the argument in my treaty article, and I will respond to his specific criticisms in a subsequent post. For now, though, I would just point out that these criticisms seem to put the cart before the horse. Rick has not yet offered any textual basis for his claim that treaties can increase the legislative power of Congress.

The constitutional enumeration of federal legislative powers, plus the Tenth Amendment, surely puts the burden of proof on anyone who is arguing in favor of a particular congressional power — let alone arguing for a mechanism, outside of Article V, by which legislative powers can be expanded without limit. I would have thought that Rick would begin by gesturing to a particular constitutional provision. Where in the Constitution is one to find such a mechanism?

The conventional view (bolstered by a celebrated bit of purported drafting history, which proved to be false; see Executing the Treaty Power at 1912-18) is that this mechanism derives from a combination of the Necessary and Proper Clause and the Treaty Clause. (I believe that Rick acceded to this conventional view at our debate two weeks ago in New Orleans.) The Necessary and Proper Clause provides: “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The Treaty Power is certainly an “other Power[] vested by th[e] Constitution.” The Treaty Clause provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

So the Treaty Power [...]

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Drug Treaties Do Not Empower Congress To Override Or Repeal State Referenda Legalizing Marijuana

In a press release last week, the President of the International Narcotics Control Board, Raymond Yans, asserted that the recent referenda legalizing marijuana in Colorado and Washington “are in violation of the international drug control treaties.” He is almost certainly wrong about that; federal drug laws keep the United States in compliance with such treaties regardless of changes in state law. But Yans then seems to suggest that the federal government could somehow override or repeal the state referenda, on the strength of these treaties. He’s almost certainly wrong about that too, as Jacob Sullum explains over at Reason (citing my Harvard Law Review article, Executing the Treaty Power). [...]

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Reducing the Drug War’s Damage to Government Budgets

That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state authority to enforce immigration laws), and others.

The major part of the Article details some recently-enacted criminal law and sentencing reforms in Colorado, which mitigate the fiscal damage of the drug war. The second part of the Article summarizes the fiscal benefits of ending prohibition. Finally, the Article looks at some of the legal history of alcohol prohibition, and suggests that current federal drug prohibition policies are inconsistent with the spirit of the Tenth Amendment, including  state tax powers. [...]

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Independence Institute brief on Medicaid mandate

On behalf of the Independence Institute, Rob Natelson and I wrote an amicus brief on the Medicaid mandate currently before the Supreme Court. (The ACA requirement that states must drastically expand Medicaid eligibility, or lose all their federal matching funds for Medicaid.) Here’s the Summary of Argument:

By imposing the Medicaid mandates in the Affordable Care Act (“ACA”), Congress exceeded the scope of its enumerated powers. If allowed to stand, those mandates could be the death-knell for the Constitution’s finely calibrated system of federalism. The states truly would be little more than agencies for Congress to “commandeer” at will.

The Founders created and the People ratified a Constitution protecting the States’ role as limited “sovereigns.” As this Court has ruled repeatedly, the states’ sovereign “independence” entitles them to make decisions within their sphere based on their own policy judgments, free of federal coercion. As explained below, this rule and the closely-related principle of federal non-coercion is of particular constitutional importance in financing health and social services.

In sustaining the Medicaid mandates, the United States Court of Appeals for the Eleventh Circuit overlooked both Founding-Era constitutional principle and modern Supreme Court doctrine. It also overlooked aspects of the Medicaid mandates that particularly aggravate their coercive qualities. Insofar as the ACA authorizes withdrawal of all Medicaid funds from States that choose not to submit to the Medicaid mandates, that statute slashes at the heart of American federalism. It is unconstitutional and void.

Intelligent comments are welcome, although experience suggests that there will also be plenty of comments from twits who have not read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning. Rob’s summary of brief is available on his blog. [...]

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Supreme Court: “Obviously, direct control of medical practice in the states is beyond the power of the federal government.”

So said the unanimous Supreme Court in United States v. Linder, 268 U.S. 5 (1925). The opinion was written by McReynolds, and joined by the progressive Justices Brandeis and Holmes, along with the rest of the Court.

At issue was the federal Harrison Anti-Narcotic Law, which taxed opium and coca leaves, and their derivatives. Ostensibly as part of the tax scheme, the Act also required registration of those drugs. A physician lawfully dispensed one tablet of morphine and three tablets of cocaine to a female patient who was an addict. The trial court instructed the jury that Dr. Linder’s actions would be lawful if the drugs were dispensed as painkillers for stomach cancer or an ulcer, but not simply because the patient was an addict. As the Supreme Court observed, the indictment “does not question the doctor’s good faith nor the wisdom or propriety of his action according to medical standards. It does not allege that he dispensed the drugs otherwise than to a patient in the course of his professional practice or for other than medical purposes. The facts disclosed indicate no conscious design to violate the law, no cause to suspect that the recipient intended to sell or otherwise dispose of the drugs, and no real probability that she would not consume them.”

The Court pointed out that “Congress cannot, under the pretext of executing delegated power [here, the Tax Power], pass laws for the accomplishment of objects not intrusted to the federal government. And we accept as established doctrine that any provision of an act of Congress ostensibly enacted under power granted by the Constitution, not naturally and reasonably adapted to the effective exercise of such power, but solely to the achievement of something plainly within power reserved to the states, is invalid and cannot be [...]

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Reagan’s infamous speech in Philadelphia, Mississippi

In 1980, one of the major party presidential nominees opened his general election by delivering a speech in a small town in the Deep South that just by coincidence happened to be the national headquarters of the Ku Klux Klan. That same candidate had previously complained about federal housing policies which attempted “to inject black families into a white neighborhood just to create some sort of integration.” He argued that there was “nothing wrong with ethnic purity being maintained.” That candidate was President Jimmy Carter, the Democratic nominee.

Carter kicked off his general election campaign with a speech in Tuscumbia, Alabama. Although the Klan’s headquarters were located in that small town, Carter was not appealing to the Klan vote, but was instead hoping to win the votes of the more than 40,000 people who saw him speak at the town’s annual Labor Day fair. Perhaps Carter chose to start his general election campaign in rural Alabama because he recognized that Reagan might take away some of the southern states that had been crucial to Carter’s win in 1976. As things turned out, Carter was right to be concerned; he ended up losing Alabama by 1%.

After the Republicans nominated Ronald Reagan in Detroit in July, he gave his first post-convention speech in New Jersey, near the Statue of Liberty. While the informal opening date of the general election campaign is traditionally Labor Day, Reagan continued to campaign during August, and on August 3, 1980, spoke at the Neshoba County Fair in Mississippi. The Neshoba Fair is large and popular, which probably explains why Democratic Senator John Glenn campaigned there in 1983, when seeking the presidential nomination, and why Democratic presidential nominee Michael Dukakis spoke there during the 1988 general election campaign, shortly after being nominated by the Democratic Convention. [...]

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Scotusblog essays on Obamacare’s constitutionality

This week Scotusblog is running a series of essays, “The Constitutionality of the Affordable Care Act.” Contributors so far are Dawn Johnson (Indiana U.), Bradley Joondeph (Santa Clara U., and manager of a very useful blog on the ACA litigation), Bob Levy (Cato), Charles Fried (Harvard), and me. There are many more essays still to come, that will be posted throughout the week. My essay examines some of the questions that the Court will face in granting cert., the tax issue, and the issue of the state coercion in Obamacare’s new Medicaid mandates. Conspirators Adler, Kerr, and Somin are among some other scholars who have essays that should be posted soon. [...]

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Kopel comment on states’ victory on health control lawsuit.

My comment on today’s decision, granting the motion to dismiss on some counts, and while allowing other counts to proceed. Like Randy’s comment, my comment is posted on the blog of the site Health Care Lawsuits, which is hosted by the Independent Women’s Forum.

The court entirely rejected the administration’s claim that the penalty for disobeying the mandate is justified under the federal tax power. As the court noted, Congress went out of its way to specify that the penalty is not a tax. Second, the court ruled that it is proper for the plaintiffs to be heard in their challenge to the mandate, which goes into effect in 2014. The court cited extensive precedent showing that when a future harm is certain, courts can act in the present to protect citizens from that harm. The court rejected the argument that the various employer mandates violate the constitutional sovereignty of states; as the court noted, the law simply treats states like other large employers, and so making states provide the same health benefits as other large employers must provide is no different from making states pay the same minimum wage as all other employers.

While federal spending programs may set conditions on grants to states, Supreme Court precedent states that the grants must not be coercive. Here, the court agreed that the states had raised a plausible legal argument which should be allowed to go forward:  the health control presents states with the unacceptable choice of massively increasing their own Medicaid spending on millions of more people, or of losing all funding for the traditional Medicaid program. Finally, the court agreed that the challenge to the individual mandate could go forward, because the mandate was “unprecedented.” Never before has Congress attempted to use its power of regulating interstate

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Cert. Grant in 10th Amendment Case

Granted this morning, Bond v. United States. Question presented: “Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.” The circuits are split, and defendant was convicted in the 3d Circuit, which sua sponte used standing as the reason to refuse to consider her the defendant’s constitutional argument.

The underlying issue is whether, pursuant to the Chemical Weapons Convention, ratified by the Senate in 1997, Congress can criminalize any non-peacefu use of a toxic substance. Defendant argues that her particular use (to try to injure her husband’s mistress) was not within the reach of any enumerated congressional power.

Former Solicitor General Paul Clement filed the successful petition for a writ of certiorari.

A key issue in the case is this line from Tennessee Electric Power Corp. v. TVA (1939): that legal persons, “absent the states or their officers, have no standing in this suit to raise any question under the amendment.” Some lower courts have treated this as dicta but others have not. Whether or not it’s dicta, the Supreme Court can repudiate or narrow it, and in my view, the Court should. If an individual is going to spend six years in federal prison, that individual should certainly be considered to have standing to challenge the constitutionality of the law under which she is being imprisoned. [...]

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