Mike Kueber's Blog

July 15, 2011

A quintessential TEA Party supporter

Yesterday I visited with a good friend in McAllen who, although she hates being labeled or characterized (let alone being caricatured), could be described as a quintessential TEA Party supporter – i.e., a person who is a fiscal and social conservative, but who is more assertive  over fiscal issues than she is over social issues.  As with many TEA Party partisans, she prefers describing herself as a constitutional conservative.

In the course of an extensive conversation and some follow-up reflection, my friend has persuaded me that her self-description is more accurate than mine.  A strong constitutional conservative like my McAllen friend believes that the federal government (a) has grown beyond the limits set forth in the Constitution, and (b) needs to be significantly reduced in scope; whereas, a strong fiscal conservative like me is (a) less concerned with the size of the federal government, and (b) more concerned about government taking on too much debt.

Although I am more of a fiscal conservative than a constitutional conservative, I agree with their argument that the Supreme Court has allowed the federal government to grow in size beyond what the Constitution allows.  My excuse for being slow to jump on their bandwagon was that I was brainwashed in law school into thinking that the Constitution allowed the federal government to do just about anything it wants.  Although that was the law at the time of my law-school education, laws evolve over time.  Just as the Supreme Court may one day overturn Roe v. Wade, it may also one day declare that the federal government has grown too big for its constitutional britches.

May 18, 2011

Counting non-voters

 While visiting a friend tonight, we watched the muted Mavericks-Thunder basketball game and listened to conservative talk-show host Mark Levin.  Aside from calling erstwhile North Dakotan Ed Shultz a red, fat slime-ball, Levin focused on his discussion on constitutional conservatism. 

One if Mark’s interesting points was that the constitutional provision for counting a Negro as only five-eighths of a person was a provision insisted on by the northern states to minimalize the electoral heft of the southern states.  According to Levin, this reflected American and northern morality.

While I don’t necessarily agree with Levin’s point, I told my friend that the same moral principle should apply to illegal immigrants – why should states with a large number of illegal immigrants be given additional congressional representation based on the number of their illegal immigrants?  My friend suggested that I was joking – surely illegal immigrants weren’t counted in apportioning Congress.  I regretted to inform him that they were.

The obvious fix of this distressing situation is analogous to the five-eighth Negro fix.  We need a constitutional amendment providing that congressional representation must be based on, not the number of residents or even the number of citizens, but rather on the number of voting-age citizens.  Our congressional representation shouldn’t depend on how many minors or non-citizens live in a state.  That is the best way to ensure true one-person, one-vote.

March 23, 2011

The power to make war

Republicans are supposed to be sticklers about constitutional niceties – they often describe themselves as constitutional conservatives.  As a practical matter, however, they don’t let constitutional niceties get in the way of America making war at the drop of a hat.  Thus, you did not hear objection from Republicans when Barack Obama recently decided to make war against Libya without any authorization from Congress. 

A couple of nights ago on Bill O’Reilly’s show, Karl Rove noted that, although George W. Bush received Congressional authorization prior to fighting in Afghanistan and Iraq, the Bush administration did not believe such authorization was constitutionally required.  Rove explained that, although the Constitution gives Congress the right to declare war, the Constitution also makes the President the commander in chief, and that right implies the right to make war.  If that were true, why bother giving Congress the right to declare war?

As Washington Post columnist George Will recently declared

  • “Congress’s power to declare war resembles a muscle that has atrophied from long abstention from proper exercise. This power was last exercised on June 5, 1942 (against Bulgaria, Romania and Hungary), almost 69 years, and many wars, ago. It thus may seem quaint, and certainly is quixotic, for Indiana’s Richard Lugar — ranking Republican on, and former chairman of, the Senate Foreign Relations Committee — to say, correctly, that Congress should debate and vote on this.”
  • “There are those who think that if the United Nations gives the United States permission to wage war, the Constitution becomes irrelevant. Let us find out who in Congress supports this proposition, which should be resoundingly refuted, particularly by Republicans currently insisting that government, and especially the executive, should be on a short constitutional leash. If all Republican presidential aspirants are supine in the face of unfettered presidential war-making and humanitarian interventionism, the Republican field is radically insufficient.”

After the disaster in Vietnam, Congress attempted to rein-in presidential war-making by passing the War Powers Resolution in 1973.  This law requires a president to obtain Congressional authorization within 60 days of initiating hostilities.  If America is still fighting Gadhafi in 60 days, it will be interesting to see if the constitutional conservatives insist on a congressional vote.

P.S., a column by Maureen Dowd in today’s NY Times included the following quote from candidate Obama on presidential war-making powers:

  • As compelling as the gender split is, it’s even more interesting to look at the parallels between Obama and W.  Candidate Obama said about a possible strike on Iran, “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”  Yet both men started wars of choice with a decision-making process marked more by impulse and reaction than discipline and rigor.  Denouncing the last decade of “autopilot” for presidents ordering military operations, Senator Webb told Andrea Mitchell on MSNBC: “We have not had a debate. … This isn’t the way that our system is supposed to work.”

December 17, 2010

ObamaCare, constitutional conservatives, and tilting at windmills

When I ran for Congress earlier this year, my leading opponent was a self-described “constitutional conservative.”  He argued that the federal government was acting unconstitutionally, not only with the proposed ObamaCare, but also with the Education Department and Environmental Protection Agency. 

I countered that making such arguments was a waste of energy because the Supreme Court, not politicians or voters, decides what is constitutional.  My campaign brochure read as follows:

  • Constitutional, right-sized government.  Government should be big enough to maintain our national security and keep our businesses honest, but not big enough to create a welfare state.  Unlike my Republican primary opponents, I don’t argue that our current expansion of the federal government is unconstitutional.  I don’t want the Supreme Court to make that important decision, just like I don’t want the Supreme Court to decide abortion issues.  Those decisions are for us voters to make.  If we think the federal government is getting too expansive, then we should vote out our federal politicians.

My position was based heavily on my clear recollection of a landmark Supreme Court decision that I was taught 30 years earlier at the University of Texas Law School – Wickard v. Filburn, 317 U.S. 111 (1942).  Wickard involved a small farmer growing wheat for his own consumption, yet the Supreme Court held that the federal government could regulate this production because it affected interstate commerce by reducing the amount of wheat in interstate commerce.  Crazy but true.  As long as Wickard was the law of the land, I thought it was futile to argue against application of the Commerce Clause.

I was wrong (I hope).  On December 13, 2010 in Commonwealth of Virginia v. Sebelius, federal judge Henry E. Hudson held in that the Minimal Essential Coverage Provision (MECP) – the so-called individual mandate – in ObamaCare was not constitutionally authorized by the Commerce Clause.  According to Judge Hudson, “Wickard is generally acknowledged to be the most expansive application of the Commerce Clause,” but “the Minimal Essential Coverage Provision appears to forge new ground and extends the Commerce Clause beyond its current high water mark.”  The critical distinction between Wickard and the Virginia v. Sebelius decision is that Wickard involved economic activity, whereas the MECP in Virginia v. Sebelius is directed at people who decline to participate in an economic activity.  Let’s hope the U.S. Supreme Court agrees.  I expect them to affirm on a 5-4 vote.

Getting back to my initial point about constitutional conservatives, I concede that there is a place in politics for discussing whether legislation is consistent with our understanding of the U.S. Constitution.  Further, I believe the U.S. Supreme Court should have checked the expansion of congressional power way back in 1942 with the Wickard decision.  And finally, I should be more open-minded about challenging orthodoxies because I have always fashioned myself a “tilting at windmills” sort of guy.

On the flip side, I am always concerned when the Supreme Court stymies the will of the people, as expressed by their legislators.  What if I had been on the other of the individual mandate?  As a constitutional conservative, I accept a muscular court that defends individual liberty and decentralized government, but I don’t want a muscular court that enables an expansive federal government.

September 30, 2010

Constitutional conservatives and the separation of church and state

When I decided to run for Congress, one of my first tasks was to create a campaign brochure that described my position on various important issues.  I didn’t initially think that the relationship of government and religion was an important issue, but my primary opponent, Quico Canseco, did.  His website said the following: 

  • Faith and a Respect for Life:  Our country was founded on Christian principles but now secular liberals are trying to wipe our Christian identity from the public domain. Nativity scenes, the Ten Commandments and the name Jesus Christ are now being removed from common public areas. Our schools teach “tolerance” and understanding of other faiths but the subject of Christianity is avoided at all cost. We must fight back against turning our country into an atheist nation. The consequences would be far-reaching. We see it now in the disrespect our society shows for human life. Babies are now a choice that some make like deciding what color car they want. We must vigilantly fight back against these evil forces and defend our Christian values at all costs. The alternative is an unacceptable legacy to leave our children and could ultimately end our nation as we currently know it.

Because Canseco’s position struck me as extreme, I decided to include a paragraph in my first campaign brochure supporting the separation of church and state.  My brochure said the following:


  • Don’t ostracize those who don’t worship Christ.  I disagree with Quico Canseco’s suggestion that Congress should sponsor Christianity.  Christianity and religion in America will survive without sponsorship from Congress.   

My two conservative friends/advisors – Kevin Brown and Kent Cochran – warned me that the separation of church and state was some fallacy created by liberals to justify their secular positions, but I had studied enough government and constitutional law to reject their warning as misinformed.  As I went door-to-door with my brochure, however, I quickly learned that a lot of conservative voters were similarly misinformed.  A surprising number of voters specifically told me that there was no such thing as “separation of church and state” in the constitution, and many even knew that the U.S. Supreme Court had created the concept based on a letter written by Thomas Jefferson (which made Jefferson persona non grata to many conservatives).  Furthermore, they were upset that Islam and other minority religions seemed to receive more favorable treatment than Christianity in many forums.

Based on this voter feedback, I revised my brochure prior to my mass-mailing to 28,000 Republican primary voters.  The revision, as follows, accommodated conservative concerns without sacrificing fundamental principle:


  • The Bill of Rights prohibits government from establishing a religion or limiting the free exercise of religion.  While this clearly means that government can’t discriminate in favor of our country’s dominant religion – Christianity – it does not mean that minority religions should be afforded a preferred status – like affirmative action.  I disagree with Quico Canseco’s suggestion that Congress should sponsor Christianity.  Christianity and religion in America will survive – and thrive – without sponsorship from Congress.   

Even as revised, however, several constituents subsequently objected to the provision, and I assume they were reading between the lines to conclude that I was not their type of guy.

The “separation of church and state” dispute reveals a bigger problem that I have with so-called constitutional conservatives.  They demagogue difficult constitutional issues by suggesting that the issues are simple.  For example, the most popular provision in the Tea Party’s Contract from America requires “each bill to identify the specific provision of the Constitution that gives Congress the power to do what the bill does.”  Do they really think that the Democrats will be unable to identify a provision that authorizes ObamaCare?  Do they really think this requirement will improve governance?  Although this provision seems, at best, innocuous, the Republican leaders in Washington decided to further demagogue it by including it in their Pledge to America.

(Incidentally, the fourth most popular provision in the Tea Party’s Contract from America requires that the federal government adopt “a simple and fair single-rate tax system by scrapping the internal revenue code and replacing it with one that is no longer than 4,543 words—the length of the original Constitution.”  What does the length of the original Constitution have to do with the tax code?  It seems than any reference, however misplaced, to the original Constitution elevates an argument in the eyes of a constitutional conservative.)

Getting back to the original argument about the separation of church and state, the constitutional conservatives are correct in stating that those words are not in the Constitution, but they are fundamentally wrong to suggest that the Constitution must be read narrowly or strictly.  A document of only 4,543 words must speak in general terms, and a government must have the ability to act in reasonable accord with those general terms.  Even the conservatives’ patron saint, Justice Anthony Scalia, says the Constitution should be construed reasonably, not strictly.

There are a plethora of unchallenged reasonable constructions – the Constitution doesn’t say anything about “one person, one vote,” but Americans accept that is fundamental law under the “equal protection” clause.  Similarly, Americans accept that it is unconstitutional to discriminate or to have separate, but equal schools, but there is no such language in the Constitution. 

Responsible leaders should refuse to encourage this misinformation about constitutional construction and should certainly decline to demagogue it.  Quit bashing the Supreme Court.  If constitutional conservatives seriously think the Supreme Court has misinterpreted the Constitution, that document is very clearly about how to amend it.