Mike Kueber's Blog

June 22, 2012

A primer on federal police powers

Filed under: Issues,Medical,Politics — Mike Kueber @ 12:36 pm
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The U.S. Supreme Court is expected any day to determine the constitutionality of ObamaCare.  Although many conservatives have attacked ObamaCare on the basis of its massive intrusion in health insurance, the Court has already accepted such intrusion by government as valid under two different powers:

  1. The federal government can regulate private health insurance, like it already does employee health insurance under the ERISA law, under the interstate-commerce power in the U.S. Constitution.  The question for the Supreme Court is whether that power includes the right to require that individuals purchase health insurance.
  2. State governments can regulate health insurance, including a requirement like that in Massachusetts to purchase insurance, under its police power.  This power is defined in Merriam-Webster as “the inherent power of a government to exercise reasonable control over persons and property within its jurisdiction in the interest of the general security, health, safety, morals, and welfare except where legally prohibited.”  Under the Tenth Amendment, police powers are reserved to the States.

Thus, even if the U.S. Supreme Court determines that the federal government has no right under its interstate-commerce power to require individuals to buy health insurance, there is a strong possibility that it will validate the federal take-over of private health insurance, just as it did with employee health insurance under ERISA.  Furthermore, regardless of whether ObamaCare is found unconstitutional, in whole or in part, any state will be able to adopt a program similar to ObamaCare of RomneyCare.



June 29, 2011

The U.S. Constitution – does it still matter?

The title of this posting was a question posed on the cover of Time magazine this week.  Fortunately, only the first few paragraphs are available on-line.

No, that was not a typo.  I said “fortunately” because the article was so poorly written that its author could have been a college kid submitting a
term paper.  The author was, in fact, Richard Stengel, the managing editor of Time magazine, which probably explains how such a sophomoric article found its way into Time magazine.  Either his editors were too cowed to do their job or Stengel haughtily rejected their help.

I am blogging about the article because it raised an important topic – i.e., the relevance of the U.S. Constitution toward four transcendent issues in America:

  1. Making war as applied to Libya
  2. Defaulting on the national debt
  3. Interstate commerce as applied to ObamaCare
  4. Birthright citizenship

Making war

The first issue revolves around the War Powers Resolution.  The Resolution, which became law in 1973, was designed to prevent another Vietnam and end the string of undeclared wars since WWII.  It allows the president to initiate military action without a declaration of war, but requires the military action to cease if Congress doesn’t give its approval within 60 days.  This seems like a very reasonable accommodation of (a) modern exigencies and (b) the Constitutional provision, “The Congress shall have power… to declare war.

The Resolution was passed despite a presidential veto, and every president has asserted that it is unconstitutional because it infringes on his constitutional power to “be commander in chief.”  But President Obama is the first president to engage in an extended military action (Libya) without obtaining Congressional approval.

Stengel’s take on this issue – he mildly chides President Obama for ignoring the following position staked out by candidate Obama: “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.”  And he lamely excuses Obama because, “since 1973, Presidents have at best paid lip service to the resolution.”  The excuse is lame because, although previous presidents have claimed that the resolution was unconstitutional, they nevertheless complied with it, including George W. Bush in Iraq and Afghanistan.

Stengel complains that our Founders created this problem by drafting provisions that are conflicting.  That is hogwash.  If this issue ever gets
before the Supreme Court, they will certainly be able to reconcile the Congress’s power to declare war with the President’s power to be the commander in chief.  Without explanation, Stengel concludes this section by saying, “this matter will not end up in the Supreme Court.  Congress does not really want the responsibility of deciding whether to send troops to places like Libya.  It just doesn’t want the President to do so in a way that makes it look superfluous and impotent.

Washington Post columnist Charles Krauthammer recently addressed the application of the War Powers Resolution to the military action in Libya.  Unlike Stengel, he provided an explanation for why the courts haven’t resolved this issue – “Moreover, the judiciary, which under our
system is the ultimate arbiter of constitutionality, has consistently refused to adjudicate this ‘political question’ (to quote one appellate court judge) and thus resolve with finality the separation-of-powers dispute between the other two co-equal branches

Like Krauthammer, I think the War Powers Resolution was a reasonable reconciliation of the constitutional provisions.  It reminds me of the Roe v. Wade decision on abortion, in which the Supreme Court balanced the privacy interests of women against the public interest in protecting the life of a fetus.  That is the type of public-policy decision, however, that should be made by legislatures, not the courts.  I wish President Obama would do what all previous Presidents have done – respect the law.

Debt ceiling

My conservative drinking friend thinks that the Founding Fathers had no idea that Congress would become such a profligate spender and, if they had, they would have included a balanced-budget provision in the Constitution.  In fact, however, the Founding Fathers knew that America had incurred huge debt during the Revolutionary War and they specifically approved the practice in Article 1, Section 8 of the Constitution – “The Congress shall have power … to borrow money on the credit of the United States.”

Regarding the possibility of default because on Congress’s failure to raise the debt limit, Stengel makes a suggestion that I haven’t previously heard – i.e., that the Constitution doesn’t allow government to default on its debt.  His suggestion is based on Section 4 of the 14th Amendment, which reads, “The validity of the public debt of the United States… shall not be questioned.”  The Amendment, which was passed shortly after the Civil War, was intended to affirm the Union’s Civil War debt while repudiating all Confederate debt.

According to Stengel, if Congress refuses to increase the debt ceiling, President Obama would be constitutionally authorized to take extraordinary measures such as ordering “the Treasury to produce binding debt instruments … sell assets, furlough workers, freeze checks.”  I have never heard of this possible scenario, and during President Obama’s press conference today, he did not refer to it when he was asked about the possibility of default.  Let’s hope that this doomsday scenario never occurs.

Interstate commerce

The U.S. Constitution authorizes Congress the power to regulate interstate commerce.  During law school, I learned that the Supreme Court has interpreted this provision extremely liberally, once holding that the provision authorizes the federal government to regulate a farmer who is growing grain for his own consumption.  In recent years, however, there has been push-back by constitutional conservatives against this expansive interpretation on the basis of the 10th Amendment, which says that all powers not expressly granted to Congress shall be reserved to the states, and with respect to ObamaCare, several federal judges have bought this argument.

Stengel’s legal defense of ObamaCare includes several glaring faults:

  1. He fails to mention the 10th Amendment.
  2. He notes that government can compel us to buy car insurance, but fails to recognize the important distinction that car insurance is compelled under a state’s police powers, not the federal government’s power over interstate commerce.
  3. He says it’s silly to argue that health care – which accounts for 17% of the U.S. economy – doesn’t involve interstate commerce, but fails to recognize that conservatives are arguing that the individual mandate is unconstitutional, not the entire law.

Birthright citizenship

The principle objective of the post-Civil War 14th Amendment was to grant citizenship to former slaves.  It reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”  The problem with that wording is that it creates so-called birthright citizenship, i.e., if you are physically born in
the United States, you’re a citizen.  The United States is one of the few countries in the world that grants birthright citizenship.

Birthright citizenship has become extremely problematic in America because there are millions of illegal immigrants who are having babies, so-called “anchor babies.”  The anchor babies are American citizens entitled to a vast array of welfare and can eventually, as adults, sponsor their parents into the United States.  Until then, however, their parents are entitled to little more than deportation.

Stengel concedes that Congress was not thinking about illegal immigration when it drafted the 14th Amendment, but he gives short shrift to the argument from constitutional conservatives that the Amendment doesn’t apply to illegal immigrants because of the term, “subject to the jurisdiction thereof.”  Stengel haughtily asserts without explanation that “this argument doesn’t hold up under scrutiny.”  I have reviewed the judicial precedent on this issue, and there is nothing definitive.

Stengel also concedes that birthright citizenship makes no sense, yet he asserts, “There are liberals and conservatives alike who oppose changing
birthright citizenship
It’s seen as a core American value.”  That is hogwash.  I don’t know of a single well-known conservative who endorses birthright citizenship.  If there were, why didn’t Stengel name the person?

Ultimately Stengel concludes that resolving the birthright-citizenship issue will not resolve the bigger issue of illegal immigration.  For that, he recommends a carrot-and-stick approach.  The carrot is to make immigration easier and to give a path to citizenship to undocumented young people who go to college or join the military.  The stick is workplace enforcement and better enforcement.

Stengel concludes his article by quoting Judge Learned Hand, one of the greatest non-Supreme Court jurists in American history, who said the following in a speech during WWII:

  • “I often wonder whether we do not rest our hopes too much on our constitutions, upon laws and upon courts.  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”

Stengel rephrased this sentiment by warning, “The Constitution does not protect our spirit of liberty; our spirit of liberty protects the Constitution.  The Constitution serves the nation; the nation does not serve the Constitution.  That’s what the framers would say.”

Sounds like Stengel is not a constitutional conservative.  Rather, he sees the Constitution as a living document that “is more a guardrail for our society than a traffic cop…. a st of principles, not a code of laws.”  I think the framers wanted the Constitution to live and grow through amendments, not through the liberal thinking of arrogant jurists.

If the Constitution is construed to provide citizenship to children born to illegal immigrants, the Constitution should be amended.  If the Constitution is construed to empower the federal government to force individuals to buy health insurance, the Constitution should be amended.  If the Supreme Court determines that the War Powers Resolution is unconstitutional, then it should reconcile the Congressional power to declare war with the Presidential power as commander in chief.  And finally, if Congress fails to raise the debt ceiling, the Supreme Court will decide whether the President has extraordinary powers to avoid default.

The U.S. Constitution is not as dysfunctional as liberals like to think.

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.