Regarding legislation to create an ObamaCare “Exchange” in Virginia, the Richmond Times-Dispatch explains:

Republicans at the General Assembly are falling prey to the fallacy of the false alternative…

[H]ere are the real options facing Virginia: (a) federal bureaucrats determine the form of our exchange, or (b) federal bureaucrats determine the form of our exchange. There is no (c)…

Running a health-insurance exchange would cost a lot of money — money Virginia does not have. Since Washington will dictate how it will be run, Washington should pick up the tab.

RTD: ‘Insurance Exchange: Just Say No’ is a post from Cato @ Liberty - Cato Institute Blog

That’s how Charlie Arlinghaus, president of New Hampshire’s Josiah Bartlett Center for Public Policy, describes the decision confronting states about whether to create an ObamaCare Exchange in this op-ed for the New Hampshire Union-Leader.

‘We Are Not Deciding between Regulation and Autonomy, We Are Deciding Whether or Not We Want a Puppet Government’ is a post from Cato @ Liberty - Cato Institute Blog

Today Cato filed its second Supreme Court amicus brief in the Obamacare litigation, on the issue of whether the health care law’s Medicaid expansion is a proper exercise of the Constitution’s Spending Clause.

That is, states must now accept a comprehensive reorganization of Medicaid or forfeit all federal Medicaid funding—even though the spending power is circumscribed to preserve a distinction between what is local and what is national. If Congress is allowed to attach conditions to spending that the states cannot refuse in order to achieve an objective it could not outright mandate, the local/national distinction that is so central to federalism will be erased.

Joining the Center for Constitutional Jurisprudence, Pacific Legal Foundation, Rep. Denny Rehberg (chairman of the House Appropriations Subcommittee on Labor, Health & Human Services, Education, and Related Agencies), and Kansas Lt. Gov. Jeffrey Colyer (also a practicing physician) we argue that, in requiring states to accept onerous conditions on federal funds that it could not impose directly, the government has exceeded its enumerated powers and violated basic principles of federalism.

California is at risk of losing $25.6 billion in annual federal funding, for example, and together the states stand to lose more than a quarter trillion dollars annually. On average, states would have to increase their general revenue budgets by almost 40% in order to maintain their current level of Medicaid funding.

The 1987 case of South Dakota v. Dole, however, prohibits such a coercive use of the spending power and recognizes that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’” Indeed, the states’ obligations, should they “choose” to accept federal funding and thus commit themselves to doing the government’s bidding, are far more substantial than those the Supreme Court invalidated in New York v. United States and Printz v. United States (which prohibit federal “commandeering” of state officials).

Moreover, the Congress that enacted the original Social Security Act, to which Medicare and Medicaid were added in the 1960s, recognized that social safety has always been the prerogative of the states and should continue to be done under state discretion. Medicaid itself was narrowly tailored to serve particularly needy groups.

In short, if Obamacare does not cross the line from valid “inducement” to unconstitutional “coercion,” nothing ever will. Just as the Commerce Clause is not an open-ended grant of power, the Spending Clause too has limits that must be enforced.

Obamacare’s Medicaid Expansion Violates Federalism is a post from Cato @ Liberty - Cato Institute Blog

If you read Virginia Attorney General Ken Cuccinelli’s op-ed in Sunday’s Washington Post, you witnessed the too-rare spectacle of a Republican denouncing his own party’s hypocrisy on medical malpractice reform:

With Senate Bill 197 — legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award — several Republican senators have…take[n] an approach that implies “Washington knows best” while trampling states’ authority and the 10th Amendment. The legislation is breathtakingly broad in its assumptions about federal power, particularly the same power to regulate commerce that lies at the heart of all the lawsuits (including Virginia’s) against the individual mandate of the 2010 federal health-care law. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits…

This legislation expands federal power, tramples the states and violates the Constitution. And if it were ever signed into law — by a Republican or Democratic president — I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later).

For more on why ObamaCare is unconstitutional see this white paper by Cato chairman Bob Levy.  For a discussion of why nearly all federal med mal reforms are unconstitutional, see this Policy Analysis by Bob Levy and Michael Krauss.  For a discussion of why mandatory caps on damages may harm patients, see this recent Policy Analysis by Cato adjunct scholar Shirley Svorny.  For an individual-rights-based approach to med mal reform, see this paper by yours truly.

The GOP’s Legislative Malpractice is a post from Cato @ Liberty - Cato Institute Blog

Under the U.S. Constitution, the federal government was assigned specific limited powers, and most government functions were left to the states. To ensure that people understood the limits on federal power, the Framers added the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Those delegated powers are “few and defined,” noted James Madison.

But the Tenth Amendment has disappeared. No one has seen it in recent decades. But I’ve found some statistics that make me very suspicious that the Canadians stole the Tenth. Look at the pie charts below. The top pie shows that 71 percent of total government spending in the United States is federal, while 29 percent is state/local. (See BEA tables 3.1, 3.2, 3.3 for 2010 data).

Back when we still had the Tenth, that ratio was the other way around—like how the bottom chart looks for Canada today. In Canada, federal spending accounts for just 38 percent of total government spending, while provincial/local spending accounts for 62 percent. (See Canada Yearbook for 2010/11 data.)

Actually, the real culprit for the missing Tenth is not the Canadians, but the U.S. Congress. In recent decades, Congress has undertaken many activities that were traditionally reserved to state and local governments. A primary method has been through “grants-in-aid.” These are federal subsidies combined with regulatory controls that micromanage state and local affairs. In United States, federal grants are about 4.1 percent of GDP (in fiscal 2011), while in Canada they are about 3.3 percent of GDP.

Even more striking: while we’ve got a complex mess of more than 1,000 state grant programs, Canada seems to have just a handful, and they are simple block grants. As I understand it, Canada’s federal grants to lower governments mainly just include:

• A health care block grant
• A social services block grant
• An “equalization” block grant to help the poor provinces.

There is a smattering of other aid, but that’s just about it. There are no federal subsidies for K-12 education in Canada, for example. There are a few large block grants and not much else.

On October 27, I’m on an Urban/Brookings panel looking at “What Can the United States Learn from Canada.” Perhaps we can learn how to get our decentralized federation back. While we’re at it, we could get some tips on how to cut government spending, as the Canadians did in the 1990s.

Did Canada Steal Our Tenth Amendment? is a post from Cato @ Liberty - Cato Institute Blog

A lost episode of Jerry Springer found its way into the Supreme Court’s 2010-11 term in the case of United States v. Bond. Mrs. Bond, upset by the pregnancy that resulted from an affair between her husband and her erstwhile best friend, decided to take revenge. A trained microbiologist working at a chemical manufacturer, Mrs. Bond tried to poison her husband’s mistress by dusting her door knobs, mailbox, and car handles with dangerous, possibly lethal chemicals.

Upon being caught by (federal) postal inspectors, Mrs. Bond was charged with violating the law Congress passed to implement an international chemical weapons treaty. (There are no generally applicable federal attempted murder statutes, so prosecutors had to get creative to remain in federal court.)

But if general criminal statutes are beyond Congress’s powers, as even the most ardent federal-power activist must acknowledge, how did Congress have the power to pass the law that ensnared Mrs. Bond? — who, whatever her character flaws, was not selling chemical weapons to terrorists (the treaty’s target). Mrs. Bond thus hoped to challenge her conviction by arguing that Congress did not have the power to pass the law in question.

The Third Circuit, however, ruled that she did not have standing — a legal doctrine defining who has the right to bring a claim — to challenge the law on federalism grounds. Cato filed a Supreme Court brief supporting Mrs. Bond’s position and arguing that it makes no sense to deny standing to someone challenging a law under which she is being prosecuted. The Court unanimously agreed and remanded the case back to the Third Circuit, to finally hear arguments over whether the statute is beyond congressional power.

Cato has now reentered the fray, in a brief authored by Georgetown law professor Nicholas Quinn Rosenkranz and joined by the Center for Constitutional Jurisprudence. We again support Mrs. Bond’s claim that the law under which she was charged is beyond Congress’s enumerated powers. The main obstacle to this argument is the 1920 case Missouri v. Holland, a short and not completely clear opinion by Justice Oliver Wendell Holmes that has been interpreted to mean that Congress can expand its enumerated powers via the Treaty Clause.

In other words, even though Congress does not have the power to pass, for example, general criminal statutes, if Congress ratifies a treaty calling for such statutes, its power increases beyond constitutional limits. We argue that this is an astounding manner in which to interpret a Constitution that creates a federal government of limited powers. Not only would this mean that the Executive has the ability to expand congressional power by signing a treaty, but it would mean that foreign governments could change congressional power by abrogating a previously valid treaty — thus removing the constitutional authority from certain laws. We also point out how the most influential argument supporting Missouri v. Holland is based on a clear misreading of constitutional history and that the ruling is in deep tension with other cases.

On the treaty power, we’re in a constitutional quagmire that can only be escaped by limiting or overturning Missouri v. Holland.  The Third Circuit can’t itself overturn a Supreme Court decision, of course, but it follows our brief, it can at least limit its damage.

The President Can’t Increase Congress’s Power Simply by Signing a Treaty is a post from Cato @ Liberty - Cato Institute Blog

Next month, the Obama Administration will begin granting waivers to states that are not on track to meet proficiency requirements in the No Child Left Behind Act. Education Secretary Arne Duncan will be granting these waivers selectively, based mostly on states’ willingness to abide by new executive branch mandates not included in NCLB, likely including adopting national curriculum standards.

Duncan has the authority under NCLB to grant waivers, but not to compel states to jump through administration hoops in order to earn them, as Neal McCluskey has documented clearly.

As Neal notes in today’s Cato Daily Podcast, essentially imposing national standards – as well as other potential waiver demands – represents a large-scale assertion of federal executive power over local education:

We’ve broken any semblance of a Constitutional balance of power between the executive and the legislative branch. Now the President is just going to dictate to every school what they’re going to teach. And that is a giant threat to freedom and to the American education system.

A broader recognition that the Constitution grants neither Congress nor the President any role in education would go a long way toward fixing these problems. NCLB may be, to quote Arne Duncan, “a slow-motion train wreck,” but using that law to transfer power away from parents, states and Congress is easily a solution worse than the problem.

Imposing National Standards is a post from Cato @ Liberty - Cato Institute Blog

That’s how I describe the individual mandate in my contribution to SCOTUSblog‘s online symposium on Obamacare, which Trevor Burrus has already highlighted.  Here’s an excerpt:

All the Obamacare legal challenges boil down to Congress’s authority – or lack thereof – to require people to buy private insurance.  Although unfortunately not dispositive of modern judicial decisions, the text of the Constitution demands that the Supreme Court strike down the individual mandate as an unconstitutional exercise of Congress’s power to regulate interstate commerce.  Finding the mandate constitutional would be the first interpretation of the Commerce Clause to permit the regulation of inactivity – in effect requiring an individual to engage in an economic transaction.

Moreover, upholding Obamacare would grant the federal government wide latitude to mandate that Americans engage in activities of its choosing.  An expansive holding here would fundamentally alter the relationship between the government and the people.  If the challenges fail, there will be no principled limits on federal power.

I go on to describe the current state of play at the appellate and outline what we can expect going forward, as well as providing links to useful resources on this issue.  Read the whole thing.

An Unprecedented Expansion of Federal Power is a post from Cato @ Liberty - Cato Institute Blog

For much of the nation’s history, policymakers recognized that the federal government’s powers were “few and defined,” as James Madison noted. Issues like education and community development were largely left to the states. Unfortunately, the separation of responsibilities between the federal government and states has been eroded to the point that federal funds now account for approximately a third of total state spending. A consequence is that federal aid to the states has fostered bigger government at all levels.

State policymakers are addicted to federal money. The appeal is obvious: they get to take credit for all the wonderful things they do with money that they didn’t have to tax out of their state’s voters. Thus, it has been interesting to observe Republican governors who willfully fed at the federal trough now pontificate on the dangers of Washington’s spending addiction as potential or declared candidates for president.

Although he ultimately decided against running for president, Indiana Gov. Mitch Daniels has carefully crafted a public image as a voice of reason when it comes to addressing the federal government’s budget problems. When he was flirting with a run for president, Daniels received fawning coverage from various observers for labeling the federal government’s debt the “new red menace.”

One problem with this image is the fact that Gov. Daniels has been a “just another politician” when it comes to grabbing federal dollars. Indeed, Daniels signed an executive order on his first day in office creating a state agency devoted to increasing Indiana’s take from the federal honey pot. As an official with the Indiana state Office of Management and Budget, I can attest that it was the Daniels administration’s policy to find ways to use federal dollars instead of state dollars where possible.

Last week, a local Indianapolis television channel ran an investigation of the state’s Office of Federal Grants and Procurement. Although the agency has cost Indiana taxpayers almost a half-million dollars, the investigation team couldn’t figure out what it has been doing with the money. State legislators that were interviewed didn’t know much about the agency even though they continue to fund it. I admit that I can’t remember dealing with it (other than to be completely disgusted by its existence).

Daniels declined to be interviewed for the story, and instead sent out his deputy chief of staff, Cris Johnston, to take the heat. Johnston’s best defense was that Indiana has improved its ranking when it comes to bringing in federal taxpayer dollars. I suppose that means Daniels’s red menace isn’t such a menace when the federal spigot’s flow is being directed toward his state’s coffers.

I’ll wrap this up by making a suggestion to the journalists out there covering the presidential candidates with a background in state government: did they eschew federal handouts or did they have their hands out? It’s an important question because the next president is going to be facing an epic fiscal mess and we really can’t afford another politician who talks the talk but didn’t walk the walk.

See this Cato essay for more on the importance of fiscal federalism and why the flow of federal funds to the states needs to be shut off.

Mitch Daniels and the Federal Money Grab is a post from Cato @ Liberty - Cato Institute Blog

With the federal government’s growing assertion of power over the states — Obamacare is just the highest-profile example –  state legislators regularly contact me for advice on how to push back while remaining constitutionally faithful.  What can they do in areas like health care, immigration, drug decriminalization, and firearm regulation?

One innovative solution is interstate compacts: states can actually create binding federal law by joining together in a sort of multi-state contract.  Typically they need Congress’s (but not the president’s) consent, but the Supreme Court has held that when the compacts don’t implicate challenges to federal power, they don’t even need that.

For example, Texas is now considering joining a Medicaid/Medicare compact established by Georgia and Oklahoma.  Many states are considering a Health Care Freedom Act compact, which use preexisting congressional consent for criminal-justice-cooperation compacts to mutually enforce state laws prohibiting the forced purchase of health insurance.

I discussed these innovative policy solutions — on which the law is untested — in a recent podcast.  More broadly, however, there are plenty of things states (and of course their citizens!) ought to be considering if they want to reestablish the dual – actually tripartite, adding individuals — sovereignty at the heart of Constitution’s structural protections of liberty.  (For more on that point, see part IV of Cato’s most recent Obamacare brief and part III of Justice Kennedy’s opinion in Bond v. United States.)

To that end, our friends at the Goldwater Institute recently released a major new report called “Federalism-Do-It-Yourself: 10 Ways for States to Check and Balance Washington.” The report outlines 10 legal tools that  states can use to stand up to federal overreach, without resorting to so-called nullification (states can’t simply declare federal law void). The report includes a number of examples of how these tools have been used in isolated cases and recommends that states embrace them in a clear strategy to start holding the federal government to its constitutional role. From Goldwater’s press release, some of the tools include:

Reinvigorate the Reserved Powers of the States

Remember the REAL ID Act, the federal government’s attempt to create a national identification card through state driver’s licenses? REAL ID never was carried out because 14 states refused to comply. The Supreme Court has ruled the 10^th Amendment prevents the federal government from “commandeering” or forcing state officials to implement federal policies. In “Federalism DIY,” author Nick Dranias writes there are many other areas where the federal government has fooled states into helping to carry out federal mandates when they don’t have to.

Strategic Legislation Plus Litigation

The U.S. Supreme Court has recognized that states can grant more freedom and civil rights to their residents than what’s protected in the Constitution. And states can use this power to thwart federal efforts to impose new mandates on people. For example, 28 states are challenging President Obama’s health care law in two lawsuits out of Virginia and Florida. Both lawsuits won the first round before U.S. district judges and now are on appeal. Both judges ruled the states could challenge the federal law only because many states have adopted the Health Care Freedom Act, which protects a person’s right to choose his own doctors and not buy government-controlled health insurance. To date, no lawsuit against Obamacare without a state government as a plaintiff has a single victory.

Coordination with Local Governments

Laws creating many federal agencies, such as the Bureau of Land Management, include a standard but little-known provision requiring these agencies to “coordinate” proposed new rules with local governments. This means the agency must sit down with a local government and honestly attempt to craft a rule that doesn’t conflict with existing local policies. If the federal agency fails to do so, a court can block the new rule. Three counties in Utah used the right to coordination to stop the BLM from releasing diseased wild horses onto public ranch lands.

There’s a lot of good stuff in there, so kudos to Nick Dranias and Goldwater for creating this federalism toolkit.

Interstate Compacts and Do-It-Yourself Federalism is a post from Cato @ Liberty - Cato Institute Blog

Since New York passed a law extending marriage to same-sex couples, Republican presidential candidates have been mostly silent. But not Rep. Michele Bachmann, who has had a long and strong interest in gay rights issues. In an interview on Fox News Sunday she endorsed both New York’s Tenth Amendment right to make marriage law and the federal government’s right to override such laws with a constitutional amendment, confusing host Chris Wallace:

WALLACE: You are a strong opponent of same-marriage. What do you think of the law that was just passed in New York state—making it the biggest state to recognize same-sex marriage?

BACHMANN: Well, I believe that marriage is between a man and a woman. And I also believe—in Minnesota, for instance, this year, the legislature put on the ballot for people to vote in 2012, whether the people want to vote on the definition of marriage as one man, one woman. In New York state, they have a passed the law at the state legislative level. And under the 10th Amendment, the states have the right to set the laws that they want to set….

WALLACE: But you would agree if it’s passed by the state legislature and signed by the governor, then that’s a state’s position.

BACHMANN: It’s a state law. And the 10th Amendment reserves for the states that right.

WALLACE: All right. I want to follow up on that, because I’m confused by your position on this. Here’s what you said in the New Hampshire debate. Let’s put it on.

(BEGIN VIDEO CLIP)

BACHMANN: I do support a constitutional amendment on marriage between a man and a woman, but I would not be going into the states to overturn their state law.

(END VIDEO CLIP)

WALLACE: That’s why I’m confused. If you support state rights, why you also support a constitutional amendment which would prevent any state from recognizing same-sex marriage?

BACHMANN: Well, because that’s entirely consistent, that states have, under the 10th Amendment, the right to pass any law they like. Also, federal officials at the federal level have the right to also put forth a constitutional amendment….

WALLACE: My point is this, do you want to say it’s a state issue and that states should be able to decide? Or would like to see a constitutional amendment so that it’s banned everywhere?

BACHMANN: It is— it is both. It is a state issue and it’s a federal issue. It’s important for your viewers to know that federal law will trump state law on this issue. And it’s also—this is why it’s important—

WALLACE: And you would [sic] federal law to trump state law?

BACHMANN: Chris, this is why it’s so important because President Obama has come out and said he will not uphold the law of the land, which is the Defense of Marriage Act. The Congress passed the Defense of Marriage Act and Bill Clinton signed it into law, to make sure that a state like New York passed a definition of marriage other [sic] one man, one woman, that other states wouldn’t be forced to recognize New York’s law….

WALLACE: So, just briefly, you would support a constitutional amendment that would overturn the New York state law?

BACHMANN: Yes, I would. I would. That is not inconsistent, because the states have the right under the 10th Amendment to do what they’d like to do. But the federal government also has the right to pass the federal constitutional amendment. It’s a high hurdle, as you know.We only have 27 amendments to the federal constitution. It’s very difficult. But certainly, it will either go to the courts, or the people’s representatives at the federal level.

Congratulations to Chris Wallace for his tenacious questioning. Presumably the way to understand Bachmann’s position is that she thinks states have a Tenth Amendment right to make their own laws in any area where the federal government doesn’t step in, and she supports a federal law overriding state marriage laws. That includes the Defense of Marriage Act, whose Section 3 says for the first time in history that the federal government will not recognize marriage licenses issued by the states. And it also includes a federal constitutional amendment to prohibit states from implementing equal marriage rights for gay couples.

Bachmann is not the only Republican who should be asked about the tension between support for the Tenth Amendment and support for federal laws and amendments to carve exceptions out of the Tenth Amendment. This month George Will has praised two Texas Republicans: First, Senate candidate and former Texas solicitor general Ted Cruz, whom he called a “limited-government constitutionalist” and who wrote a senior thesis at Princeton “on the Constitution’s Ninth and 10th amendments. Then as now, Cruz argued that these amendments, properly construed, would buttress the principle that powers not enumerated are not possessed by the federal government.” And second, Governor Rick Perry, who “was a ‘10th Amendment conservative‘ (‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people’) before the Tea Party appeared.”

Cruz boasts on the same page of his website of his support of both the Tenth Amendment and DOMA. Does he really think, as a staunch defender of the Tenth Amendment, that the federal government should override the marriage law of the great state of New York? Perry may be a consistent Tenth Amendment conservative. In his book Fed Up! Our Fight to Save America from Washington he makes his opposition to gay marriage more than clear. But he does write, “Crucial to understanding federalism in modern-day America is the concept of mobility, or the ability to ‘vote with your feet.’ If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas. If you don’t like medical marijuana and gay marriage, don’t move to California.” And an NPR interviewer reported:

States should be free to make decisions regulating such things as taxes, marijuana and gay marriage, Perry says.

“If you want to live in a state that has high taxes, high regulations — that is favorable to smoking marijuana and gay marriage — then move to California,” he says.

Now that a large state has made national headlines by passing a gay marriage law—without any prodding from the judiciary—more political candidates, from President Obama to his Republican challengers, are going to be pressed to make their positions clear on the issue of marriage equality itself, on federalism and the powers of the states, and on the lawsuits that are moving through the courts.

Republicans and the New York Marriage Law is a post from Cato @ Liberty - Cato Institute Blog

Hard cases make bad law, the saying goes.  Well, a bizarre case that the Supreme Court decided unanimously today has set a good precedent for the enforcement of residual Tenth Amendment powers. 

As I described in December when Cato filed a brief in Bond v. United States:

Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement authorities to resolve, however, a federal prosecutor charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Bond pled guilty and was sentenced but now appeals her conviction on the ground that the statute at issue violates the Tenth Amendment – in that her offense was local in nature and not properly subject to federal prosecution. The Third Circuit declined to reach the constitutional question, holding that Bond did not have standing to raise a Tenth Amendment challenge and that, following Supreme Court precedent, a state actor must be a party to the suit in order to challenge the federal government for impinging on state sovereignty. Bond now seeks Supreme Court review on the ground that the statute, as applied to her, is beyond the federal government’s enumerated powers.

Our brief argued that a defendant clearly has standing to challenge the constitutionality of the statute under which she was convicted, but also that lower courts are wrong in assuming that both the president’s power to make treaties and Congress’s power to make laws executing those treaties are unconstrained by the Constitution.  That is, many judges seem to erroneously think that treaties can give the federal government powers it doesn’t otherwise have under the Constitution.

The Court’s ruling today, in a tight opinion by Justice Kennedy, makes clear that individuals can indeed raise Tenth Amendment claims that the federal government has overstepped its enumerated powers.  The Court took no position on the merits of Bond’s constitutional argument — relating to the expansion of federal criminal law via the Treaty Power into areas that should be handled at the state and local levels – but this non-decision is in itself a positive development because it signals that the underlying issue is in dispute.

The Third Circuit is now charged with determining in the first instance whether the law implementing the chemical weapons treaty is “necessary and proper for carrying into execution” the Treaty Power, including whether it’s overbroad if it snares people like Bond.

Even if Bond loses on the merits in the Third Circuit and/or the Supreme Court, however, her case has confirmed the idea that someone directly and particularly harmed by a federal law can challenge that law’s constitutionality.  As Justice Ginsburg said in her concurrence,

a court has no “prudential” license todecline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct. And that is so even where the constitutional provision that would render the conviction void is directed at protecting a party not before the Court. ….

In short, a law “beyond the power of Congress,” for any reason, is “no law at all.” Nigro v. United States, 276 U. S. 332, 341 (1928). The validity of Bond’s conviction depends upon whether the Constitution permits Congress to enact §229.  Her claim that it does not must be considered and decided on the merits.

For more on the proper scope of the Treaty Power, I recommend Georgetown law professor Nicholas Quinn Rosenkranz’s “Executing the Treaty Power.”

Update:

Josh Blackman parses Justice Kennedy’s opinion and shows how it tracks the approach that Randy Barnett and Cato have been taking in our Obamacare briefs.

Of Course Defendants Can Challenge the Constitutionality of Laws Under Which They’re Prosecuted is a post from Cato @ Liberty - Cato Institute Blog

Federal officials blitzed Texas this week to fight a bill pending in Austin that would control TSA groping of air travelers in that state, reports Forbes’ “Not-So-Private Parts” blogger Kashmir Hill.

Federal government officials descended on the Capitol to hand out a letter … from the Texas U.S. Attorney letting senators know that if they passed the bill, the TSA would probably have to cancel all flights out of Texas. As much as they love their state, the idea of shutting down airports and trapping people in Texas was scary enough to get legislators to reconsider their support for the groping bill…

The federal government’s threat to shut down air travel is serious, but empty. As we’ve seen time and again with the REAL ID Act, the federal government does not have the political will to attack passenger air travel in the name of increasing surveillance and intrusion.

In fact, earlier this year, the Department of Homeland Security didn’t even bother to threaten any repurcussions for states before it once again pushed back a May 2011 (false) deadline for REAL ID compliance. (Previous instances noted here and here.) The REAL ID Act allows the federal government to refuse licenses and ID cards from non-complying states at airport checkpoints, but it’s just not going to happen.

The DHS announcement notes $175 million in spending on REAL ID so far. That waste continues to accrue so long as Congress appropriates money for the national ID program, which will never be implemented.

While we’re on the subject of empty threats from federal officials—and do see Julian Sanchez’s post hitting the same subject—it has been more than four years since then-Secretary of Homeland Security Michael Chertoff said about the REAL ID Act:

If we don’t get it done now, someone is going to be sitting around in three or four years explaining to the next 9/11 Commission why we didn’t do it.

Secretary Chertoff was wrong—factually wrong on the imminence and nature of the terror threat, and ethically wrong to tout terror threats in an attempt to defeat the will of our free people.

With our stubborn insistence on freedom, the American people and state leaders have done a better job of assessing the threat environment than the Secretary of Homeland Security. As I said when I testified on this topic to the Pennsylvania legislature, state leaders should continue to recognize that they are as equipped, if not better equipped, than federal officials to judge what is right for their people. Counterterrorism and airport security are not an exception to that, though federal imperiousness in these areas remains at a high.

State Officials Needn’t Heed Feds’ Threats is a post from Cato @ Liberty - Cato Institute Blog

Thanks to star libertarian lawprof and Cato senior fellow Randy Barnett for pointing out something that has needed saying for a while: most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems.

Most medical malpractice suits go forward in state courts under state law. If the U.S. Congress wishes to impose a nationwide rule on these suits, such as by limiting damages for pain and suffering, it first needs to answer the question: under which of the federal government’s constitutionally prescribed powers is it acting? Even if it can identify such authority, it should also ask: is it a wise idea—consistent with what one might call a prudential federalism—to gather yet more power in Washington at the expense of the states?

Unfortunately, the backers of the current federal med-mal bill have chosen to rely on the Supreme Court’s very expansive “substantial effects” doctrine, which as Barnett explains:

allows Congress to regulate any economic activity in the country that can be said, in the aggregate, to have a “substantial effect” on interstate commerce. This doctrine was unknown before the 1940s, and goes far beyond the original power to regulate trade between states. This is how most of Congress’ regulatory power has been justified since then.

Although it is followed even by conservative justices, Justice Clarence Thomas has long criticized the Substantial Effects Doctrine on the ground that it exceeds the original meaning of the Constitution.

Let’s step back for a moment to review what’s not at issue here. First, this is not an argument over whether liability reform of some sort is a good idea: in fact Prof. Barnett “strongly support[s] reforming our malpractice laws to protect honest doctors from false claims and out-of-control state juries.” (So do I.)

Nor is this an argument over whether the federal government should simply leave the state courts alone as a general proposition, as some late-blooming friends of federalism on the left side of the aisle seem to suggest. Our constitutional scheme of government is entirely consistent with federal-level supervision of state courts when those courts behave in certain ways, as by violating litigants’ due process, impairing the obligation of contract, or abridging the privileges and immunities of citizens of other states, to name but a few. Article IV, Section 1 confers on Congress a broad charter to prescribe to states “by general Laws” how they are to accord full faith and credit to other states’ enactments. That’s not even counting Congress’s genuine interstate commerce power (as opposed to the on-steroids New Deal version) or various other powers.

But observe the pattern. Again and again, the Constitution contemplates federal supervision of state courts when they reach out to assert power over transactions and litigants outside their own boundaries. It has far less to say about intruding upon the authority of those courts over disputes that arose between their own residents and are unmistakably under their own law. That general game plan—oversee the interstate but mostly not the intrastate doings of state courts—comports well with the insight of public choice scholars who point out that states face an ongoing temptation to stack liability proceedings so as to enrich their own citizens at the expense of out-of-state litigants obliged to appear in their courts.

Where does this leave federal-level liability reform? It suggests a very real difference between areas like product liability and nationwide class actions—in which suits ordinarily cross state lines, and the majority of runaway verdicts are against out-of-state defendants—and more conventional kinds of tort litigation arising from car crashes, slip-and-falls, and medical misadventure, where cases are mostly filed against locally present defendants. As a rough rule of thumb, it’s worth presuming that most of the local suits do not externalize heavy costs across state lines and should accordingly be left alone by Congress unless it is itself vindicating some constitutional right or coordinating the functioning of some constitutionally authorized federal government activity.

That doesn’t mean federal policymakers are to be left with no role at all. For example, if Washington is paying for a large share of hospital stays, it may make sense as a cost containment measure for it to steer beneficiaries into lower-cost ways of resolving disputes over care quality, or even to ask beneficiaries as a condition of treatment to agree not to file certain suits at all. But that would require stepping back toward a more careful—and more Constitutionally appropriate—view of the federal role.

Federalism and Med-Mal Reform is a post from Cato @ Liberty - Cato Institute Blog

• “Vouchers and tax credits differ from one another in important ways, and Pennsylvanians deserve to have their representatives consider them one at a time.”
• “So, if the Supreme Court’s precedents defer to Congress’ assessments of its powers, but Congress is relying for ‘constitutional authority’ on the Supreme Court’s precedents, then NO ONE is actually looking at the Constitution itself to see if a bill is within Congress’ enumerated powers.”
• “Carbon dioxide, thought to be a significant cause of the warming of surface temperature since the mid-1970s, is currently the respiration of the world’s economic civilization. Getting rid of it isn’t as simple as banning CFCs and switching to another refrigerant.”
• “As Arthur Schlesinger Jr. explained in his book of that name, the presidency’s transformation from limited, constitutional office to Supreme Warlord of the Earth has been ‘as much a matter of congressional abdication as of presidential usurpation.’”
• It’s the expenditures, stupid:

Tuesday Links is a post from Cato @ Liberty - Cato Institute Blog

In 1913, the Seventeenth Amendment cut an important tie in the Constitution between state legislatures and the Congress. In the original Constitution, states were empowered to choose the senators who would represent them in Congress. The result? Senators had an allegiance to the state government as much as the people of the state they represented.

Why does this matter? Well, today—with direct, popular election of senators—there isn’t much of anyone looking after state legislatures in Congress. Accordingly, the federal government continually tries to turn states into administrative outposts of the federal government rather than respecting them as the independent political powers they’re supposed to be.

In program after program, remote federal officials set policy and raise taxes, then require states to administer the programs. When things go a-mess, people don’t know whether it’s the federal government or the state government they need to talk to. Political accountability suffers, contributing to the big morass of government in the United States today.

Now, it wasn’t all sweetness and light before the Seventeenth Amendment rejiggered our governmental system, but it isn’t sweetness and light now either.

So yesterday, constitutional amendments were introduced in both the House and Senate to right the balance. House Joint Resolution 62 and Senate Joint Resolution 12 would propose an amendment to the Constitution giving states the right to repeal federal laws and regulations. Under the amendments, when two-thirds of the states ratify repeal of a federal mandate, it would come off the books.

The idea is to again right the balance between the states and the federal government. Most of its effect would be upstream: the Congress would be a lot more circumspect, knowing that the states could reject its laws if they went too far. But occasionally states would get a head of steam and lop out a federal law that they find disagreeable. The federal legislature would have to be a little more humble.

The federal government and its officials are pretty remote from the people compared to state legislators. Some way to right the balance would be good, whether it’s this specific idea, repeal of the Seventeeth Amendment, or some other. The “Madison Amendment” would work toward the same end by empowering states to propose constitutional amendments the way the Congress now does.

In this modern era of national transportation, high-speed communications, and global markets, many people believe that it’s natural for regulation to gravitate to the national level (often not considering that the logical end is global regulation). But technological change has not altered the rule that government closer to the people—or self-rule by the people themselves—is best. We pay a high price every day in this country for having cut a tendon in the constitutional structure with the Seventeenth Amendment and direct election of senators. It’s good to see efforts out there to right this balance.

Righting the Balance is a post from Cato @ Liberty - Cato Institute Blog

The legal battle over SB 1070 is far from over, so neither side should cheer or despair. The upshot of the Ninth Circuit’s splintered and highly technical opinion is merely that the district court did not abuse its discretion in enjoining four provisions. The court could not and did not rule on the legislation’s ultimate constitutionality and, of course, SB 1070’s remaining provisions—the ten that weren’t challenged and the two on which Judge Bolton rejected the government’s argument—remain in effect.

But the legal machinations are only half the story. While I personally think that all or almost all of the Arizona law is constitutional, at least as written (abuses in application are always possible), it’s bad policy because it harms the state’s economy and misallocates law enforcement resources. But I also understand the frustration of many state governments, whose citizens are demanding relief from a broken immigration system that Congress has repeatedly failed to fix. Whether it’s stronger enforcement (Arizona) or liberalizing work permits (Utah), states should not be forced into the position of having to enact their own piecemeal immigration solutions while living within a system where the regulation of immigration is a federal responsibility. Congress has dropped the ball in not passing comprehensive immigration reform, despite facing a system that doesn’t work for anyone: not big business or small business, not rich Americans or poor ones, not skilled would-be immigrants or unskilled.

The federalism our Constitution establishes sometimes demands that the federal government act on certain issues. This is such a time and immigration is such an issue.

Arizona Immigration Decision Underlines Need for Fundamental Reform is a post from Cato @ Liberty - Cato Institute Blog

Two hundred and sixty years ago, James Madison was born in Virginia. His life was long and eventful, comprising the American Revolution, the writing and ratification of the U.S. Constitution, the founding of political parties, the War of 1812, and the rise of Andrew Jackson. The struggles that would culminate in the Civil War were evident in the last years of his life.

Along with his political career, Madison proved to be one of this nation’s most insightful and certainly its most influential political theorist. He is often accorded the twin titles of Father of the Constitution and the Bill of Rights. No doubt those titles claim too much for him or any other mortal. But according him those titles is not far from the truth.

What would surprise Madison about our current constitutional and political arrangements?

He would be surprised and, I think, displeased by the size and scope of the federal government. Madison was a limited government man. He thought the general welfare clause in Article I of the Constitution was simply a shorthand way of mentioning other enumerated powers, not a general grant of power for Congress to pursue whatever it might think served the general welfare. As he wrote, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.” Of course, for some decades now, the courts have permitted Congress broad powers under the general welfare clause.

He would also be taken aback by the all but plenary power accorded to Congress under the Commerce Clause of Article I. How could (can) a limited government be reconciled to such plenary power? Moreover, as he said in Congress, “if industry and labour are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point out.”

I think Madison would also be surprised by how far the executive has taken on the prerogatives of an English king, in fact if not in law. Like many republicans of the founding era, he worried that the legislature would dominate the executive. We live in a time where Congress happily delegates its power to the executive branch and awaits the executive’s budget agenda. At the same time, Madison worried that executives, presidents and kings, had every reason to declare and make war, the latter being the most dreaded of “all enemies to public liberty.”  As he wrote in 1795:

Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes and the opportunities of fraud growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could reserve its freedom in the midst of continual warfare.

In this light, it is perhaps inevitable that the authors of The Executive Unbound dismiss Madison in favor of Carl Schmitt, the author of The Concept of the Political and from 1933 onward, Preußischer Staatsrat and President of the Vereinigung nationalsozialistischer Juristen.

For Madison, the whole point was to bind government through a Constitution, enumerated powers, and ambition pitted against ambition. His was a noble vision of politics in service to individual liberty. Let us hope that we are not living “after the Madisonian Republic.”

Celebrating James Madison is a post from Cato @ Liberty - Cato Institute Blog

A Government Accountability Office report on duplicative federal programs is prima facie evidence that the government is a bloated mess. For example, there are 82 federal programs involved in teacher quality, 80 programs involved in economic development, and over 100 programs involved in surface transportation.

Sen. Tom Coburn (R-OK) summed it up best in his press release on the GAO report:

This report confirms what most Americans assume about their government. We are spending trillions of dollars every year and nobody knows what we are doing. The executive branch doesn’t know. The congressional branch doesn’t know. Nobody knows.

Nobody knows because no human being could possibly keep sufficient tabs on thousands of programs in a $3.8 trillion federal budget. Compounding the problem is the fact that policymakers devote much of their time to fundraising, campaigning, and other distracting activities.

The report’s takeaway, therefore, should be that the federal government’s scope needs to be drastically curtailed. Unfortunately, a typical response to the report has been to cite it as further evidence that policymakers must “eliminate waste” and “make government more efficient.” Coburn says “This report also shows we could save taxpayers hundreds of billions of dollars every year without cutting services. And, in many cases, smart consolidations will improve service.”

No, no, no.

Most of the “services” discussed in the report need to be eliminated, not consolidated. Turning 82 teacher quality programs into, say, 10 doesn’t change the fact that the federal government should not be involved in education in the first place. (Not to mention that the federal government’s involvement in education has been a failure.)

Throughout the decades, numerous efforts have been undertaken to clean up the federal bureaucracy (e.g., Hoover Commission, Grace Commission, and Al Gore’s “Reinventing Government”). None of these house cleaning endeavors curbed the federal government’s expansion, let alone tamed the bureaucratic wilds.

James Madison wrote in Federalist 45 that the powers delegated to the federal government by the Constitution “are few and defined.” However, the federal government gradually assumed powers that are now many and undefined. Excessive bureaucracy is a natural, and inevitable, result. Thus, those policymakers who are sincerely concerned with bureaucratic duplication and waste should focus their efforts on reinstituting limits on the government’s capacity to spend. Policymakers who pretend otherwise are just wasting their time — and that of taxpayers.

GAO Report on Duplicative Programs is a post from Cato @ Liberty - Cato Institute Blog

The Washington Post reports:

Practically every week, a Republican governor or lawmaker announces a new effort to kill the health-care law or undercut its implementation.

Unfortunately, many of those same governors are still implementing the law when they should be outright refusing to do so.

In my Kaiser Health News column today, I offer two reasons why (at least) Republican governors should stop implementing ObamaCare:

Swearing an oath to support the Constitution also obligates governors to use lawful means to prevent its unlawful abuse. Governors who believe ObamaCare to be unconstitutional are as duty-bound to stop implementing the law as they are to challenge it in court…

It is the height of fiscal irresponsibility to be making new spending commitments (1) when the federal deficit is $1.5 trillion and state budget deficits are a cumulative $175 billion, (2) when those new commitments create a framework for a massive new entitlement program, and (3) when that new spending comes under the auspices of a law that has been invalidated by one federal court and may be invalidated by the nation’s highest court.

So far, the only governors I’ve seen take a firm stand against implementing the law are Rick Scott (R-FL) and Sean Parnell (R-AK), who respectively govern the fourth-largest and the fourth-smallest states.  (Disclosure: I served on Rick Scott’s transition team.)

Two Reasons Governors Should Stop Implementing ObamaCare is a post from Cato @ Liberty - Cato Institute Blog