Tag: George Will

Apparent Failure of Bipartisan Immigration Reform Bill 

Minneapolis’ StarTribune published an editorial criticizing the apparent failure of Congress to pass a bipartisan immigration reform bill. A similar editorial appeared in Bloomberg News. The bill also was supported by columnist George Will.[1]

The Bipartisan Bill

The bill was developed by U.S. Senators Kyrsten Sinema (ex-Democrat & now Independent, AZ) and Thom Tillis (Rep., NC) “that would have addressed critical areas in immigration: the fate of so-called Dreamers, billions of dollars to secure the southern border, and better processing of asylum claims.” The “border-related items in the . . . bill were said to include more and better-paid Border Patrol agents, more funds for Homeland Security detention facilities and stiffer penalties for migrants who missed court hearings, along with better and faster processing of credible asylum claims.”

Reasons for Apparent Failure To Adopt This Bill

According to the StarTribune editorial, this bill “drew support from moderate lawmakers and several organizations.” But the two Senators were “unable to lock down the 60-vote supermajority needed to end the inevitable filibuster,” which prevented the inclusion of the bill in year-end appropriations legislation, all but ending any hope of immigration reform this year.”

The Bloomberg editorial notes that the proposal “aims to reduce strain on the asylum system by discouraging migrants from attempting to cross the border and expelling more of those who do.” For George Will, the bill would correct “two glaring wrongs that large American majorities recognize as such. They are the insecure southern border. And the decades-long callousness toward those called ‘dreamers.’”

This proposal “has angered immigration advocates and progressives in Congress, some of whom have already announced their opposition.” For George Will, these people ignore “the axiom that the perfect is the enemy of the good, [and who] will settle for nothing less than a ‘comprehensive’ solution to all immigration complexities.” Mr. Will also finds fault with criticism of the bill’s provisions to protect the “Dreamers” and the apparent proposed path to citizenship for the U.S.’ approximate 11 million unauthorized immigrants, two-thirds of whom have lived here for more than a decade.

There apparently was nothing in the Sinema-Tillis proposal relating to what is covered in the proposed Afghan Adjustment Act that was discussed in a prior post.[2]

Conclusion

An open invitation for comments is extended to those who are more intimately involved in this legislative conundrum.

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[1] Editorial, Another failure on immigration reform, StarTribune (Dec. 17, 2022); Bloomberg, Editorial, Congress Can’t Waste This Immigration Opportunity, Wash. Post (Dec. 15, 2022); Will, How the Tillis-Sinema immigration bill would right two glaring wrongs, Wash. Post (Dec. 11, 2022); Sotomayor, Goodwin, Sacchetti & DeChaulus, Congress working to strike last-minute immigration deals, Wash. Post (Dec. 5, 2022).

[2] See Wall Street Journal Editorial Supports Afghan Evacuees, dwkcommentaries.com (Dec.13, 2022); Need To Prod Congress To Enact the Afghan Adjustment Act, dwkcommentareis.com (Dec. 17, 2022).

The U.S. Declaration of Independence’s Relationship to the U.S. Constitution and Statutes

The U.S. Declaration of Independence of July 4, 1776, obviously preceded and in many ways inspired the U.S. Constitution of September 17, 1787. But in my three years as a student at the University of Chicago Law School, 1963-1966, and my 35 years as a practicing litigator-attorney (including some constitutional cases), 1966-2001, I never encountered the question of whether and how the Declaration should and could affect the interpretation of the Constitution.

George Will

Now noted author and commentator George Will in the “Introduction” to his new book, The Conservative Sensibility, says “We [conservatives] seek to conserve the American Founding” with a “clear mission: It is to conserve, by articulating and demonstrating the continuing pertinence of, the Founders’ thinking.” Indeed, “Americans codified their Founding doctrines as a natural rights republic in an exceptional Constitution, one that does not say what government must do for them but what government may not do for them.”

Therefore, according to Mr. Will’s book, “The doctrine of natural rights is the most solid foundation—perhaps the only firm foundation—for the idea of the political equality of all self-directing individuals.”

One of Will’s recent columns extends these thoughts. He says, “the Declaration expressed, as Thomas Jefferson insisted, the broadly shared ‘common sense of the subject.’ Rather than belabor the Declaration’s (to them, unremarkable) assertions, the Constitution’s framers set about creating institutional architecture that would achieve their intention: to establish governance that accords with the common sense of their time, which was that government is properly instituted to “secure” the preexisting natural rights referenced in the Declaration.” Therefore, the “The Declaration’s role is the locus classicus [classical location] concerning the framers’ intention [and original meaning and continuing purpose], which is surely the master key to properly construing what they wrought.”[1]

Jeffrey Rosen

Jeffrey Rosen, president and CEO of the National Constitution Center in Philadelphia and a law professor at George Washington University, shares some of the ways that the Declaration has influenced the Constitution.[2]  As President Lincoln noted in 1861, “the expression of the principle [of Liberty for All] in our Declaration of Independence . . . was the word ‘fitly spoken’ which has proved an ‘apple of gold’ to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it.” As Lincoln recognized, “the two documents are closely linked. From the Founding era until today, conservatives, liberals and everyone in between have agreed that the theoretical basis of the U.S. Constitution—and American political life in general—can be found in Thomas Jefferson’s” words in the Declaration, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.”

However, Rosen says, conservatives and liberals often disagree about what these words of the Declaration mean in terms of government policies and laws, as has been true throughout our history. This has been true in political debates in some Supreme Court cases. For example, in last week’s case about partisan gerrymandering, Justice Kagan in dissent cited the Declaration’s statement that governments derive “their just Powers from the Consent of the Governed” to justify her opinion that the courts need to intervene in gerrymandering cases. On the other hand, conservatives today cite the Declaration’s “all men are created equal” to support their assertion that there is a fundamental right to life that trumps a woman’s right to an abortion.

Reactions

The notion that the Declaration is relevant to interpreting the Constitution is superficially attractive. But most of the Declaration is a bill of particulars against “the present King of Great Britain” and his “repeated injuries and usurpations, all having, in direct object, the establishment of an absolute tyranny over these States.” Those words do not appear to be helpful in interpreting the subsequent Constitution.

More importantly for Will and other like-minded individuals, the Declaration holds “these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.” This apparently is the central assertions that should be used in interpreting the Constitution.

But immediately after these words, the Declaration states, “to secure these rights, governments are instituted among men.” For this blogger, those words strongly suggest, if do not require, an examination of the words adopted by the government in constitutions and statutes in order to construe those rights.

This blogger would appreciate intelligent reactions and comments on these issues as well as citations to any U.S. Supreme Court cases that use the Declaration to interpret the Constitution.

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[1] Will, To construe the Constitution, look to the Declaration, Wash. Post (July 3, 2019).

[2] Rosen, The Declaration of Independence Unites and Divides Us, W.S..J. (July 4, 2019),

George Will’s Embrace of Natural Law

Recently concepts of natural law have re-emerged as relevant to interpretations of the U.S. Constitution. George Will, the prominent political and legal commentator, has done so in at least three Washington Post columns and in a speech at the John C. Danforth Center for Religion and Politics. This post will discuss his views on this subject. A subsequent post will explore those of Judge Neil Gorsuch, the current nominee for Associate Justice of the U.S. Supreme Court, whose confirmation hearing starts tomorrow.

Background

Two important instruments of U.S. history are the U.S. Declaration of Independence and the Ninth Amendment to the Constitution. The Declaration states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these, are life, liberty, and the pursuit of happiness.” The Ninth Amendment, which is part of our Bill of Rights, states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[1]

Although I am a retired attorney, I have not attempted to make my own analysis of how the U.S. Supreme Court has interpreted the Ninth Amendment. Instead I rely on my recollection that the Declaration and this Amendment have not been major authorities in the U.S. Supreme Court’s decisions and Wikipedia’s conclusion that the Court has not used them to further limit government power.

Wikipedia also cites this statement by Justice Scalia in Troxel v. Granville, 530 U.S. 57 (2000): “The Declaration of Independence is not a legal prescription conferring powers upon the courts, and [the Ninth Amendment’s] . . . refusal to ‘deny or disparage’ other rights is far removed from affirming any of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”

George Will’s Discussion of Natural Law

In a Washington Post column{2} Will argued that the Ninth Amendment’s protection of other rights “retained by the people” encompasses “natural law” rights, which are affirmed by these words of the Declaration of Independence:

  • “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness—that to secure these rights, Governments are instituted among Men, deriving their just powered front he consent of the governed.”

Therefore, Will argues, “the Founders’ philosophy is infused into . . . [the Constitution] by construing . . . [the Constitution] as a charter of government that is, in Lincoln’s formulation, dedicated to [the above proposition in that Declaration].” As a result, says Will, “The drama of American democracy derives from the tension between the natural rights of the individual and the constructed right of the majority to make such laws as the majority desires. Natural rights are affirmed by the Declaration and a properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.”

“With the Declaration, Americans . . . began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature.”

Will in this article does not go on to identify specific natural rights that are so encompassed by the Declaration. Presumably Will would not limit the protections of these words of the Declaration to those who were covered at the time of its proclamation in 1766: white men of property. In any event, his suggestion provides another “originalist” approach to interpreting the Constitution, an approach that is more open-ended than that promulgated by Justice Scalia.

George Will’s Speech at John C. Danforth Center for Religion and Politics

Additional light on George Will’s thoughts about natural law is shed by an adaption of his December 2012 speech at the John C. Danforth Center on Religion and Politics, University of Washington at St. Louis.[3]

He asserts that although he himself is non-religious, he believes that “religion has been, and can still be, supremely important and helpful to the flourishing of our democracy” and that “the idea of natural rights [does not] require a religious foundation, or even that the founders uniformly thought it did. It is, however, indubitably the case that natural rights are especially firmly grounded when they are grounded in religious doctrine.” Moreover, Will believes that the founders, who were not particularly religious themselves, “understood that Christianity, particularly in its post-Reformation ferments, fostered attitudes and aptitudes associated with, and useful to, popular government. Protestantism’s emphasis on the individual’s direct, unmediated relationship with God and the primacy of individual conscience and choice subverted conventions of hierarchical societies in which deference was expected from the many toward the few.”

According to Will, the founders “understood that natural rights could not be asserted, celebrated, and defended unless nature, including human nature, was regarded as a normative rather than a merely contingent fact. This was a view buttressed by the teaching of Biblical religion that nature is not chaos but rather is the replacement of chaos by an order reflecting the mind and will of the Creator. This is the Creator who endows us with natural rights that are inevitable, inalienable, and universal — and hence the foundation of democratic equality. And these rights are the foundation of limited government — government defined by the limited goal of securing those rights so that individuals may flourish in their free and responsible exercise of those rights.”

The U.S. Declaration of Independence asserts that “important political truths are not merely knowable, they are self-evident, meaning they can be known by any mind not clouded by ignorance or superstition. [As it states, “it is self-evidently true that ‘all men are created equal.’ Equal not only in their access to the important political truths, but also in being endowed by their Creator with certain unalienable rights, including life, liberty, and the pursuit of happiness.” [The Declaration goes on to state], ‘[T]o secure these rights, governments are instituted among men.’ Government’s primary purpose is to secure pre-existing rights. Government does not create rights; it does not dispense them.”

“Biblical religion is concerned with asserting and defending the dignity of the individual. Biblical religion teaches that individual dignity is linked to individual responsibility and moral agency. Therefore, Biblical religion should be wary of the consequences of government untethered from the limited (and limiting) purpose of securing natural rights.”

Will’s Obituary for Antonin Scalia

In the obituary Will praised the late Associate Justice Antonin Scalia for his championing the principles of judicial modesty: “textualism and originalism: A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them.” Moreover, said Will, Scalia “was a Roman candle of sparkling jurisprudential theories leavened by acerbic witticisms.”[4]

In Will’s opinion, “Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution.” Moreover, “as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that ‘governments are instituted among men.’”[5]

Will, however, does not attempt to reconcile his praise for Scalia with the Justice’s rejection of the Declaration as important for constitutional analysis.

Will’s Questions for Judge Gorsuch

In another Washington Post column, Will suggested questions to be asked Judge Gorsuch at his confirmation hearings.[6] Here are some of those questions:

  • Is popular sovereignty (majorities rights) or liberty the essence of the American project?
  • Was the purpose of the 14th Amendment’s “privilege and immunities” clause to place certain subjects beyond the reach of majorities?
  • Was the 14th Amendment’s “privilege and immunities” clause’s purpose to ensure that the natural rights of all citizens would be protected from abridgment by their states?
  • Was the Supreme Court wrong in the 1873 Slaughter-House Cases that essentially erased the privileges and immunities clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living)? If so, should it be overruled?
  • Do you agree with Chief Justice John G. Roberts Jr. who has said the doctrine ofstare decisis — previous court decisions are owed respect — is not an “inexorable command”?
  • Do you agree with the Supreme Court’s division of liberties between those deemed to be fundamental and thus subjecting any restrictions on them to strict scrutiny and all others whose restrictions are subjected only to “rational basis” scrutiny?
  • What, in your opinion, is the role of the Ninth Amendment in constitutional law?
  • Are there limits to Congress’ power over interstate commerce other than those enumerated in the Bill of Rights (the first 10 amendments to the Constitution)?
  • Was the Supreme Court correct in the 2005 Kelo v. City of New London case upholding a city’s seizure of private property not to facilitate construction of a public structure or to cure blight, but for the “public use” of transferring it to a wealthier private interest that would pay more taxes?
  • What limits, if any, are imposed upon Congress’ delegation of powers to administrative agencies by Article I of the Constitution’s provision: “All legislative powers herein granted shall be vested in a Congress”?
  • Was the Supreme Court correct in Citizens United that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?
  • Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?
  • Would you feel bound to follow a previous Supreme Court decision that did not evaluate evidence of the original meaning of the Constitution and was, in your view, in conflict with it?

Conclusion

Although I do not generally agree with many of George Will’s political opinions, I think that the linkage of the Ninth Amendment and the Declaration of Independence makes sense and should be explored more fully in future constitutional litigation. However, it is not so easy to make the next step of identifying additional principles of natural law that could impose limits on the federal and state governments.

The Declaration’s statement that human beings are endowed by their Creator with certain inalienable rights is part of that difficulty. First the First Amendment to the Constitution bans the federal government’s establishment of a religion. Second, there are now so many different religions in the world and in the U.S. Although as a Christian I believe that at least all of the major world religions honor peace and hospitality and that they all agree on the Golden Rule: do unto others as you would have them do unto you, I find it difficult see how that leads to principles of natural law that are useful. For example, I find it difficult to see how this linkage leads to the conclusion that the Citizens United case was correctly decided, as Will suggests.

In addition, although I have not studied the underlying sources, I am intrigued by the notion that the privileges and immunities clause of the Fourteenth Amendment was intended to encompass all natural law rights of U.S. citizens and that the Slaughter-House Cases were wrongly decided.

In any event, we all should thank George Will for proposing interesting questions for Judge Gorsuch in his confirmation hearing. I am reasonably confident that most, if not all, of them will be asked and answered.

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[1] United States Declaration of Independence, Wikipedia;  Ninth Amendment to the United States Constitution, Wikipedia. A prior post discussed the First Congress’ adoption of the Bill of Rights after ratification by the requisite number of states.

[2] Will, Maybe Gorsuch will fill in blanks left by Scalia, Wash. Post (Feb. 1, 2017).

[3] Will, Religion and the American Republic, Nat’l Affairs (Summer 2013). John C. Danforth, an ordained Episcopal priest, was Attorney General of Missouri, 1969-1976, and U.S. Senator for that state, 1976-1995.

[4] Will, In Memoriam: Supreme Court Justice Antonin Scalia 1936-2016, Wash. Post (Feb. 14, 2016).

[5]  Timothy Sandefur  is Vice President for Litigation at the Goldwater Institute and Adjunct Scholar with the Cato Institute. He also is the author of The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty (2013),  which is a more extensive exposition of Will’s argument that the Declaration and the Ninth Amendment need to be important markers in constitutional analysis and litigation. Moreover, Sandefur argues that the privileges and immunities clause of the Fourteenth Amendment of 1868 recommitted the U.S. to the primacy of liberty and defined the terms of U.S. citizenship that unfortunately was demolished by the U.S. Supreme Court’s 1873 decision in the Slaughter-House Cases, 83 U.S. 36 (1873).

[6] Will, Questions for Judge Gorsuch, Wash. Post (Mar. 17, 2017).

U.S. Reactions to the Death of Fidel Castro

The November 25th death of Fidel Castro has prompted comments from President-Elect Donald Trump and his aides, the Obama Administration, U.S. Senators and Representatives, U.S. editorial boards and columnists and U.S. business interests and others. All of this has fueled speculation about the future Trump Administration’s policies regarding Cuba. These topics will be explored in this post along with this blogger’s observations.

President-Elect Trump and His Aides[1]

On Saturday morning after Castro’s death the previous night, Donald Trump tweeted, “Fidel Castro is dead!” Later that same day he issued this statement:”Though the tragedies, deaths and pain caused by Fidel Castro cannot be erased, our administration will do all it can to ensure the Cuban people can finally begin their journey toward prosperity and liberty. While Cuba remains a totalitarian island, it is my hope that today marks a move away from the horrors endured for too long, and toward a future in which the wonderful Cuban people finally live in the freedom they so richly deserve.”

Vice President-Elect Mike Pence on Saturday voiced a similar reaction in a tweet: “The tyrant Castro is dead. New hope dawns. We will stand with the oppressed Cuban people for a free and democratic Cuba. Viva Cuba Libre!”

On November 28, Trump issued another tweet on the subject. He said, “If Cuba is unwilling to make a better deal for the Cuban people, the Cuban/American people and the U.S. as a whole, I will terminate deal.”

These comments were corroborated by Trump’s top aides.

On Sunday, November 27, two of the aides said that Trump would demand the release of political prisoners held in Cuba and push the government to allow more religious and economic freedoms. Reince Priebus, the incoming White House chief of staff, said the president-elect “absolutely” would reverse Mr. Obama’s policies if he didn’t get what he wanted from Cuba. “We’re not going to have a unilateral deal coming from Cuba back to the [U.S.] without some changes in their government. Repression, open markets, freedom of religion, political prisoners—these things need to change in order to have open and free relationships, and that’s what president-elect Trump believes, and that’s where he’s going to head.” Similar comments were made the same day by Trump’s spokeswoman, Kellyanne Conway.

On Monday, November 28, Trump spokesman Jason Miller gave this more nuanced statement to reporters: “Clearly, Cuba is a very complex topic, and the president-elect is aware of the nuances and complexities regarding the challenges that the island and the Cuban people face. This has been an important issue, and it will continue to be one. Our priorities are the release of political prisoners, return of fugitives from American law, and also political and religious freedoms for all Cubans living in oppression.”

The Obama Administration[2]

President Barack Obama’s statement extended the U.S. “hand of friendship to the Cuban people” and stated that “history will record and judge the enormous impact of this singular figure on the people and world around him.” According to the President, Cubans “will recall the past and also look to the future. As they do, the Cuban people must know that they have a friend and partner” in America.

U.S. Secretary of State John Kerry issued a similar positive statement. He extended “our condolences to the Cuban people today as they mourn the passing of Fidel Castro. Over more than half a century, he played an outsized role in their lives, and he influenced the direction of regional, even global affairs. As our two countries continue to move forward on the process of normalization — restoring the economic, diplomatic and cultural ties severed by a troubled past — we do so in a spirit of friendship and with an earnest desire not to ignore history but to write a new and better future for our two peoples.”

On November 28 White House Press Secretary Josh Earnest responded to several questions about Cuba and Castro’s death. Here are a few of those responses:

  • For the U.S., “I wouldn’t expect any impact [of Castro’s death] on the kind of progress that we’re committed to making on our end to begin to normalize relations with Cuba.”
  • “[W]e have seen . . . greater freedom for American citizens to visit Cuba, to send money to family members in Cuba, to engage in business and seek business opportunities in Cuba.  It also enhanced the ability of the [U.S.] government to maintain an embassy in Cuba where U.S. officials can more effectively not just engage with government officials in Cuba but also those activists in civil society that are fighting for greater freedoms. . . . They also facilitate the kind of people-to-people ties that we believe will be more effective in bringing freedom and opportunity to the Cuban people, something that they have long sought and been denied by the Cuban government.  And after five decades of not seeing any results, the President believed it was time to see something different. . . . [We] clearly haven’t seen all the results that we would like to see, but we’re pleased with the progress.”
  • Castro “obviously is a towering figure who had a profound impact on the history of not just his country but the Western Hemisphere.  There certainly is no whitewashing the kinds of activities that he ordered and that his government presided over that go against the very values that . . . our country has long defended.”
  • “[T]here is no doubt that we would like to see the Cuban government do more [on human rights], but this policy has not even been in place for two years.  But we certainly have enjoyed more benefits than was enjoyed under the previous policy that was in place for more than 50 years and didn’t bring about the kinds of benefits or the kinds of progress that we would like to see.”
  • “[T]hose Cuban citizens that do work in industries, like cab drivers or working in restaurants, even Airbnb owners, are benefitting from the enhanced economic activity between Cuban citizens and American citizens who are visiting Cuba.  They are paid at a higher rate, and they’re enjoying more economic activity than they otherwise would because of this policy to normalize relations with Cuba. . . . [T]here is a growing entrepreneurial sector inside of Cuba that is benefitting from greater engagement with the United States.  That’s a good thing, and that is a benefit that is enjoyed by the Cuban people directly.”
  • “[T]here certainly is no denying the kind of violence that occurred in Cuba under the watch of the Castro regime.  There has been no effort to whitewash the history, either the history between the United States and Cuba or the history of what transpired in Cuba while Mr. Castro was leading the country.”
  • “That’s why upwards of 90 percent of the Cuban people actually support this policy and they welcome the greater engagement with the United States.  They welcome the increased remittances that are provided Cuban-Americans to family members in Cuba.  They welcome the increase in travel by American citizens to Cuba.  There’s a lot to offer.  And the Cuban people certainly benefit from that kind of greater engagement.  And that’s why the President has pursued this policy.”
  • The U.S. “relationship with countries throughout the Western Hemisphere, particularly in Latin America, is as strong as it’s been in generations. And all of that would be undone by the reinstitution of a policy that has failed after having been in place for more than five decades.”

The next day, November 28, Press Secretary Ernest announced that the U.S. will not send a formal delegation to Cuba to attend the Castro funeral but instead will dispatch a top White House aide and a principal Cuba-normalization negotiator, Benjamin J. Rhodes, to be joined by , the top U.S. diplomat in Cuba.

U.S. Senators and Representatives[3]

Senator Bob Corker (Rep., TN), the Chair of the Senate Foreign Relations Committee, stated, Under Fidel Castro’s brutal and oppressive dictatorship, the Cuban people have suffered politically and economically for decades, and it is my hope that his passing might turn the page toward a better way of life for the many who have dreamed of a better future for their country. Subsequently after meeting with Mr. Trump about a possible appointment as Secretary of State, Corker said Mr. Trump’s “instincts on foreign policy are obviously very, very good.”

The Ranking Member of that committee, Senator Ben Cardin (Dem., MD), said, “The news of Fidel Castro’s death brings with it an opportunity to close the deep divisions that have been suffered by Cuban society and by Cuban Americans in the U.S.  For Castro’s purported goals of social and economic development to be attained, it is now time for a half-century of authoritarian rule to give way to the restoration of democracy and the reform of a system the has denied Cuba’s citizens their basic human rights and individuals freedoms. As the United States awaits a new Administration, we must continue our partnership with the Cuban people as they seek to build a more hopeful future for their country.”

Senator Marco Rubio of Florida, a Cuban-American and Republican presidential candidate this year, said in a statement: “Sadly, Fidel Castro’s death does not mean freedom for the Cuban people or justice for the democratic activists, religious leaders, and political opponents he and his brother have jailed and persecuted. The dictator has died, but the dictatorship has not…The future of Cuba ultimately remains in the hands of the Cuban people, and now more than ever Congress and the new administration must stand with them against their brutal rulers and support their struggle for freedom and basic human rights.” Senator Bob Menendez (Dem., N.J.), a Cuban-American who has opposed Mr. Obama’s policy, issued a similar statement.

Senator Jeff Flake (Rep., AZ), who has supported normalization and is the lead author of a Senate bill to end the embargo, merely said, “Fidel Castro’s death follows more than a half century of brutal repression and misery. The Cuban people deserve better in the years ahead.”

Minnesota’s Senator Amy Klobuchar (Dem.), the author of a Senate bill to end the U.S. embargo of the island, said the following: “Passing my bill with Republican Senator Jeff Flake to lift the trade embargo with Cuba would create jobs and increase exports for American farmers and businesses, and it could create unprecedented opportunity for the Cuban people. For far too long, U.S.-Cuba policy has been defined by the conflicts of the past instead of the realities of today and the possibilities for the future. The Cuban and American people are ahead of their governments in terms of wanting to see change. We need to seize this opportunity and lift the trade embargo.”

Minnesota’s other Senator, Al Franken (Dem.) said that, in the wake of Castro’s death, he hopes the Obama administration’s work to repair relations with the island nation is upheld by a new administration. “Over the past few years, we’ve made important strides to open up diplomatic relations with Cuba, and now I urge the country’s leadership to put a strong focus on improving human rights and democracy.”

On the House side, one of Minnesota’s Republican representative and an author of a bill to end the embargo, Tom Emmer, said that Congress should seize the opportunity to “assist in the transition to a democracy and market economy” in Cuba and denounced “isolation and exclusion.” He added, “The passing of Fidel Castro is yet another reminder that a new day is dawning in Cuba. As the remaining vestiges of the Cold War continue to fade, the United States has a chance to help usher in a new Cuba; a Cuba where every citizen has the rights, freedom and opportunity they deserve.”

The statement from the Speaker of the House, Paul Ryan (Rep., WI), stated, “Now that Fidel Castro is dead, the cruelty and oppression of his regime should die with him. Sadly, much work remains to secure the freedom of the Cuban people, and the United States must be fully committed to that work. Today let us reflect on the memory and sacrifices of all those who have suffered under the Castros.”

U.S. Editorial Boards and Columnists[4]

The New York Times’ editorial opposed any retreat from normalization. It said such a move would be “extremely shortsighted.” The new process of normalization, it says, “has helped establish conditions for ordinary Cubans to have greater autonomy in a society long run as a police state. It has also enabled Cuban-Americans to play a larger role in shaping the nation’s future, primarily by providing capital for the island’s nascent private sector. While the Cuban government and the Obama White House continue to have profound disagreements on issues such as human rights, the two governments have established a robust bilateral agenda that includes cooperation on environmental policy, maritime issues, migration, organized crime and responses to pandemics. These hard-won diplomatic achievements have benefited both sides.”

 If, on the other hand, said the Times, the normalization process is abandoned, U.S.-Cuba “cooperation is likely to wane. That would only embolden hard-liners in the Cuban regime who are leery of mending ties with the United States and are committed to maintaining Cuba as a repressive socialist bulwark. In Mr. Trump, they may find the ideal foil to stoke nationalism among Cubans who are fiercely protective of their nation’s sovereignty and right to self-determination.”

The editorial from the Washington Post, while criticizing some aspects of President Obama’s opening to Cuba, stated U.S. policy should “align itself with the hopes of ordinary Cubans and the legitimate demands of the island’s pro-democracy movements. That does not necessarily mean reversing the renewal of diplomatic relations and relaxed restrictions on the movement of people and goods; most Cubans still want that. But it should mean that official exchanges with the regime, and any concessions that benefit it, should be tied to tangible reforms that benefit the public: greater Internet access, expansion of space for private business and tolerance of critical speech and assembly by such groups as the Ladies in White.”

Conservative columnists and commentators welcomed Fidel’s death. George Will hoped, if not reasonably expected, “to have seen the last of charismatic totalitarians worshiped by political pilgrims from open societies. Experience suggests there will always be tyranny tourists in flight from what they consider the boring banality of bourgeois society and eager for the excitement of sojourns in ‘progressive’ despotisms that they are free to admire and then leave. Carlos Eire, a Cuban exile, author and the T.L. Riggs Professor of History and Religious Studies at Yale University, suggested a 13-point negative epitaph for Fidel’s tomb. The first point was: ”He turned Cuba into a colony of the Soviet Union and nearly caused a nuclear holocaust.” The last point was this: “He never apologized for any of his crimes and never stood trial for them.”

Another Washington Post columnist, Kathleen Parker, agreed that Fidel was a terrible dictator, but argued that Mr. Trump “should understand that Fidel Castro loved the embargo more than anyone because, as ever, he could blame the [U.S.] for his failures. For Trump to fall into this same trap [by keeping the embargo] would be a postmortem gift to Castro and breathe new life into a cruel legacy — the dictator’s final triumph over the [U.S.] and the several American presidents who could never quite bury him.”

U.S. Business Interests and Others[5]

Important interests that typically are regarded as important by Republicans are arguing against any retreats from the Obama Administration’s pursuit of normalization of Cuba relations

First, many U.S. companies are now deeply invested in Cuba under the current administration’s policy. These companies include major airlines, hotel operators and technology providers, while big U.S. phone carriers have signed roaming agreements on the island. “I think the American business community would be strongly opposed to rolling back President Obama’s changes, and strongly in favor of continuing the path toward normalization of economic and diplomatic relations,” said Jake Colvin, vice president of the National Foreign Trade Council.

Second, the U.S. farming industry is strongly supportive of normalization of U.S.-Cuba relations. For example, Kevin Paap, president of the Minnesota Farm Bureau, does not want the next administration to take any steps that would put U.S. farmers at a further disadvantage in the Cuban market. “Every other country in the world has diplomatic and trade relations with Cuba, and what we don’t want to do is lose that market share to the European Union, Brazil, Argentina.” Mr. Paap added that U.S. market share in Cuba has decreased in recent years as other countries are able to provide better financing.

But agricultural producers across the country, from rice producers in Louisiana to Northwest apple farmers to Kansas wheat growers have pushed for more, including lifting a ban prohibiting Cuba from buying American agricultural goods with U.S. credit.

Cuba’s wheat consumption is about 50 million barrels a year, said Daniel Heady, director of governmental affairs at the Kansas Association of Wheat Growers. Although not a huge market, “it’s right off the coast and it would be extremely easy for us to deliver our product.” “It is something that Kansas farmers are extremely interested in,” Heady said. “In a world of extremely depressed commodity prices, especially wheat, 50 million bushels looks extremely good right now.”

Republican governors from Texas, Arkansas and elsewhere have led trade delegations to Cuba, along with their state farm bureaus and chambers of commerce.

A U.S. journalist with extensive experience with Cuba, Nick Miroff, echoed these thoughts. He said, “A return to more hostile [U.S.-Cuba] relations . . . could also bring a new crackdown in Cuba and further slow the pace of Raúl Castro’s modest liberalization  measures at a time of stalling economic growth. Hard-liners in Cuba’s Communist Party would gladly take the country back to a simpler time, when the antagonism of the United States — not the failure of government policies — was to blame for the island’s problems, and the threat of attack, real or imagined, was used to justify authoritarian political control.’

Moreover, according to a Wall Street Journal report, any U.S. abandonment of normalization with Cuba “could drive a new wedge between Washington and Latin America . . . not only by leftist allies of Cuba like Venezuela and Bolivia but also by conservative governments in Brazil, Chile, Mexico and Colombia. It would also likely complicate regional cooperation on a range of issues, from immigration to security and anti-drug efforts.”

In Miami, many of the island’s exiles and their children and grandchildren took to the streets, banging pots and pans, waving American and Cuban flags, and celebrating in Spanish: “He’s dead! He’s dead!”

Meanwhile in faraway Minnesota, even though it has relatively few Cuban exiles, celebrated its Cuban connections. They range from festivals and restaurants in the Twin Cities that preserve and highlight Cuban culture. Its politicians in Washington, D.C. have been leaders in efforts to lift the trade embargo on Cuba, citing the potential for economic and political advancements and job growth. Christian communities in Minnesota also value their religious and moral obligations to Cubans. Cuba’s expanded Mariel Port could carry Minnesota-made goods. Other Minnesota-based companies, including Sun Country Airlines, Radisson Hotels and Cargill, could benefit from lifting the embargo.

Last year the Minnesota Orchestra took a historic trip to Cuba as the first U.S. orchestra to perform there since Obama began negotiations in 2014. Next June, some Orchestra members will perform in Cuba again along with Minnesota Youth Symphonies. They also will be joined by Cuban-American jazz musician, Ignacio “Nachito” Herrera, and his wife, who works as an attorney. Herrera grew up during the Cuban Revolution and credits Castro’s leadership for the career opportunities he and his wife have achieved. Indeed, Herrera met Castro in the 1980s while being recognized in a Classic World Piano competition. Castro was humble, Herrera said, and deeply curious about his accomplishments.

Concluding Observations

This blog consistently has applauded the U.S. pursuing normalization with Cuba. The death of Fidel Castro does not change that opinion and advocacy. Fundamentally I agree with President Obama that the 50-plus years of U.S. hostility towards Cuba has not worked—it has not persuaded or forced Cuba to change its ways and it has interfered with our having friendly relations with countries throughout the world, especially in Latin America.[6]

Indeed, the countries of the Western Hemisphere in their Summits of the Americas have made it clear to fellow member the U.S. that they would no longer reluctantly acquiesce in the U.S. desire to exclude Cuba from such Summits, and at the last such gathering in 2015, after the announcement of U.S.-Cuba normalization they praised both countries for this move.[7]

The broader world disapproval of the U.S. hostility towards Cuba is shown by the annual overwhelming approvals of resolutions condemning the U.S. embargo of the island by the U.N. General Assembly. Nor should the U.S. continue to ignore its very large contingent liability to Cuba for its alleged damages from the embargo. (The U.S., of course, disputes this contingent liability, but prudence for any nation or entity facing such a large contingent liability dictates cutting off that risk by stopping the behavior that allegedly triggers the risk.)[8]

Opponents of normalization usually point to Cuban deficiencies on human rights and democracy. But such opposition fails to recognize or admit that the U.S. does not have a perfect record on these issues, including this year’s U.S. election and efforts at voter suppression and the U.S. indirect election of the president and vice president via the Electoral College. Moreover, such opponents also fail to recognize or admit that at least some Cuban limits on dissent and demonstrations undoubtedly are triggered by their fear or suspicion that the U.S. via its so-called covert or undercover “democracy promotion” programs in Cuba is financing or otherwise supporting these efforts at regime change on the island. Finally as part of the efforts at normalization the U.S. and Cuba have been having respectful dialogues about human rights issues.[9]

Another issue sometimes raised by opponents of normalization is Cuba’s failure to provide financial compensation to U.S. persons for Cuba’s expropriation of their property in the early years of the Revolution. But such criticism fails to recognize that Cuba has paid compensation to persons from other countries for such expropriation, that it is in Cuba’s interest to do the same for U.S. persons, that the two countries have been respectfully discussing this issue as well, and there is no reason to expect that this issue cannot be resolved peacefully.[10]

Opponents of normalization also seem to believe or assume that only the U.S. and Cuba are involved in these issues. That, however, is not true. Perhaps precipitated by the December 2014 announcement that Cuba and the U.S. had agreed to seek normalization and reconciliation, other countries, especially the members of the European Union, have been accelerating their efforts to resolve differences with Cuba so that the U.S. will not beat them to gain competitive advantages with the island. China also is another competitor.[11]

Finally Cuba’s current major ally, Venezuela, obviously is near collapse and being forced to reduce its support of Cuba, thereby threatening Cuba’s stability and viability. The U.S. does not want to see Cuba become a failed state 90 miles away from the U.S. Such a situation is even more dire today according to Tom Friedman’s new book, Thank You for Being Late: An Optimist’s Guide to Thriving in the Age of Accelerations. He asserts at page 270 that it “may even be more difficult [for inhabitants of a failed state to reconstitute itself] in the age of accelerations. The lifelong learning opportunities you need to provide to your population, the infrastructure you need to take advantage of the global flows [of information], and the pace of innovation you need to maintain a growing economy have all become harder to achieve. . . . Catching up is going to be very, very difficult.”

For the U.S., once again, to act like an arrogant bully towards Cuba will not achieve any good result. All U.S. citizens interested in Cuba’s welfare and having good relations with the U.S. need to resist any efforts by the new Administration to undo the progress of the last two years.

=======================================================

[1] Assoc. Press, Trump Slams Recount Push as ‘a Scam,’ Says Election Is Over, N.Y. Times (Nov. 26, 2016); Reuters, Trump Says He Will do All He Can to Help Cuban People, N.Y. Times (Nov. 26, 2016); Assoc. Press, Vice-President-Elect Pence Says ‘New Hope Dawns’ for Cuba, N.Y. Times (Nov. 26, 2016); Assoc. Press, Trump Aides Say Cuban Government Will Have to Change, N.Y. Times (Nov. 27, 2016); Flaherty, Trump aides say Cuban government will have to change, StarTrib. (Nov. 27, 2016); Schwartz & Lee, Death of Fidel Castro May Pressure Donald Trump on Cuba Promises, W.S.J. (Nov. 27, 2016); Mazzei, Trump pledges to ‘terminate’ opening to Cuba absent ‘better deal,’ Miami Herald (Nov. 28, 2016); Cave, Ahmed & Davis, Donald Trump’s Threat to Close Door Reopens Old Wounds in Cuba, N.Y. Times (Nov. 28, 2016).

[2]   White House, Statement by the President on the Passing of Fidel Castro (Nov. 26, 2016); U.S. State Dep’t, Secretary Kerry: The Passing of Fidel Castro (Nov. 26, 2016); White House, Press Briefing by Press Secretary Josh Earnest, 11/28/16; White House, Press Briefing by Press Secretary Josh Earnest, 11/29/16; Harris, Obama to Send Aide to Fidel Castro’s Funeral, N.Y. Times (Nov. 29, 2016).

[3] Sen. For. Rel. Comm., Corker Statement on the Death of Fidel Castro (Nov. 26, 2016); Griffiths, Corker praises Trump as State Department speculation continues, Politico (Nov. 29, 2016; Sen. For. Rel. Comm, Cardin Statement on the Death of Fidel Castro (Nov. 26, 2016); Rubio, Rubio: History Will Remember Fidel Castro as an Evil, Murderous Dictator (Nov. 26, 2016); Menendez, Senator Menendez on Death of Fidel Castro (Nov. 26, 2016); Flake, Flake Statement on the Death of Fidel Castro (Nov. 26, 2016); Ryan, Statement on the Death of Fidel Castro (Nov. 26, 2016);The latest: US House Leader Urges Remembering Castro Cruelty, N.Y. Times (Nov. 26, 2016); Klobuchar, Klobuchar Statement on Passing of Fidel Castro (Nov. 26, 2016); Emmer, Emmer Statement on Death of Fidel Castro (Nov. 26, 2016).

[4] Editorial, Threatening Cuba Will Backfire, N.Y. Times (Nov. 29, 2016); Editorial,Editorial, Fidel Castro’s terrible legacy, Wash. Post (Nov. 26, 2016); Fidel Castro’s demise can’t guarantee freedom for the people of Cuba, Wash. Post (Nov. 28, 2016); Will, Fidel Castro and dead utopianism, Wash. Post (Nov. 26, 2016); Eire, Farewell to Cuba’s brutal Big Brother, Wash. Post (Nov. 26, 2016); Parker, Don’t give Fidel Castro the last laugh, Wash. Post (Nov. 29, 2016). Eire is the author of Learning To Die in Miami: Confessions of A Refugee Boy (2010) and Waiting for Snow in Havana (2003).

[5] DeYoung, Trump’s threat to terminate opening to Cuba may draw opposition from business, Republican states, Wash. Post (Nov. 29, 2016); Miroff, Cuba faces renewed tensions with U.S., but without Fidel Castro, its field marshal, Wash. Post (Nov. 28, 2016); Dube & Johnson, Donald Trump’s Line on Cuba Unsettles Latin America, W.S.J. (Nov. 28, 2016); Klobuchar, Minnesota Artists, Leaders Reflect on Castro’s Legacy (Nov. 26, 2016);  Miroff & Booth, In wake of Castro’s death, his legacy is debated, Wash. Post (Nov. 28, 2016).

[6] See List of Posts to dwkcommentaries—Topical: CUBA.

[7] Previous posts have discussed the Seventh Summit of the Americas in April 2015. https://dwkcommentaries.com/?s=Summit+of+the+Americas.

[8] Previous posts have discussed the U.N. General Assembly resolutions on the embargo in 2011, 2014, 2015 and 2016 and the suggested international arbitration to resolve the disputes about Cuba’s damage claims resulting from the embargo. (See posts listed in “U.S. Embargo of Cuba” section of List of Posts to dwkcommentaries—Topical: CUBA.

[9] See posts listed in “U.S. Democracy Promotion in Cuba,” “U.S. & Cuba Normalization, 2014-2015” and “U.S. & Cuba Normalization, 2015-2016” sections of List of Posts to dwkcommentaries—Topical: CUBA.

[10] See posts listed in “U.S. & Cuba Damage Claims” section of List of Posts to dwkcommentaries—Topical: CUBA.

[11] See list of posts in “Cuba & Other Countries” section of List of Posts to dwkcommentaries—Topical: CUBA.

Conservative Columnist George Will Condemns Donald Trump

This blog recently has discussed the severe criticism of Donald Trump by a Wall Street Journal editor and by other conservatives and Republicans. Another longtime conservative commentator, George Will, also has aggressively condemned Donald Trump, both before and after the latter’s July 21 Republican presidential nomination. Moreover, in June, when Trump was the presumptive nominee, George Will changed his party affiliation from Republican to “unaffiliated” because of Trump.[1]

Here are at least seven of these condemnations by Mr. Will.

Pre- Nomination

1.Donald Trump relishes wrecking the GOP[2]

Trump “boasts of his sexual athleticism, embraces torture and promises to kill terrorists’ families.” He has “ myriad [religious] conversions-of-convenience.” More importantly for Will, Trump has disavowed Will’s conservative milestones by liking the Obamacare mandate and by opposing Social Security reform and reductions.

2. The albatross of a Trump endorsement[3]

 “Trump’s distinctive rhetorical style — think of a drunk with a bullhorn reading aloud James Joyce’s ‘Finnegans Wake’ under water — poses an almost insuperable challenge to people whose painful duty is to try to extract clarity from his effusions.”

“Trump, the thin-skinned tough guy, . . . has neither respect for nor knowledge of the Constitution, and he probably is unaware that he would have to ‘open up’ many Supreme Court First Amendment rulings in order to achieve his aim. . . . [of chilling] free speech, for the comfort of the political class, of which he is now a gaudy ornament.”

Trump, “whose breadth of . . . ignorance is the eighth wonder of the world, actually thinks that judges ‘sign’ bills. Trump is a presidential aspirant who would flunk an eighth-grade civics exam”

3. Do Republicans really think Donald Trump will make a good Supreme Court choice?[4]

Trump is “a stupendously uninformed dilettante who thinks judges ‘sign’ what he refers to as ‘bills.’ There is every reason to think that Trump understands none of the issues pertinent to the Supreme Court’s role in the American regime, and there is no reason to doubt that he would bring to the selection of justices what he brings to all matters — arrogance leavened by frivolousness.”

“Trump’s multiplying Republican apologists do not deny the self-evident — that he is as clueless regarding everything as he is about the nuclear triad.”

4. If Trump is nominated, the COP must keep him out of the White House?[5]

“Donald Trump’s damage to the Republican Party, although already extensive, has barely begun. Republican quislings will multiply, slinking into support of the most anti-conservative presidential aspirant in their party’s history. These collaborationists will render themselves ineligible to participate in the party’s reconstruction.”

“If Trump is nominated, Republicans working to purge him and his manner from public life will reap the considerable satisfaction of preserving the identity of their 162-year-old party while working to see that they forgo only four years of the enjoyment of executive power.”

5. How entangled with Russia is Trump?[6]

After bewailing Trump’s many statements supporting Russia and Putin, Will says it “is unclear whether any political idea leavens the avarice of Trump and some of his accomplices regarding today’s tormented and dangerous Russia. Speculation about the nature and scale of Trump’s financial entanglements with Putin and his associates is justified by Trump’s refusal to release his personal and business tax information. Obviously he is hiding something, and probably more than merely embarrassing evidence that he has vastly exaggerated his net worth and charitableness.”

 Post- Nomination

 6. Trump’s shallowness runs deep [7]

Trump’s “speeches are . .syntactical train wrecks. . . . [He] rarely finishes a sentence. . . . [But maybe] he actually is a sly rascal, cunningly in pursuit of immunity through profusion.

“The nation, however, is . . . [being damaged] by Trump’s success in normalizing post-factual politics. It is being poisoned by the injection into its bloodstream of the cynicism required of those Republicans who persist in pretending that although Trump lies constantly and knows nothing, these blemishes do not disqualify him from being president.”

7. The sinking fantasy that Trump would defend the constitution,[8]

According to Will, “Trump knows nothing about current debates concerning the [Supreme Court’s]. . . proper role.”

Moreover, Trump has erroneous views on what Will regards as “the two most important [Supreme Court] decisions this century.

Trump has criticized Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010), which held corporations have a first amendment free speech right to make financial political contributions and which Will favors on the ground that “Americans do not forfeit their free-speech rights when they band together in corporate form to magnify their political advocacy.”

The other case, Kelo v. City of New London, 545 U.S. 469 (2005), held, 5-4, that a municipal government “behaved constitutionally when it bulldozed a residential neighborhood for the ‘public use’ of transferring the land to a corporation that would pay more taxes than the neighborhood’s residents paid to the government.” For Trump, his “interests as a developer and a big-government authoritarian converge in his enthusiasm for Kelo.” Will, however, thinks this decision “did radical damage to property rights.”

In addition, Will decries President Obama’s use of executive orders, which Trump promises to expand.

Conclusion

Although I disagree with George Will on the various political issues he discusses in these columns, I do endorse his condemnation of Donald Trump’s temperament, judgment and knowledge.

==================================================================

[1] Diaz, George Will: Trump’s judge comments prompted exit from GOP, CNN (June 21, 2016).

[2] Will, Donald Trump relishes wrecking the GOP, Wash. Post (Feb. 21, 2016).

[3] Will, The albatross of a Trump endorsement. Wash. Post (Feb. 28. 2016).

[4] Will, Do Republicans really think Donald Trump will make a good Supreme Court choice, Wash. Post ( March 18, 2016).

[5] Will, If Trump is nominated, the GOP must keep him out of the White House, Wash. Post (April 29, 2016).

[6] Will, How entangled with Russia is Trump?, Wash. Post (July 29, 2016).

[7] Will, Trump’s shallowness runs deep, Wash. Post (Aug. 3, 2016).

[8] Will, The sinking fantasy that Trump would defend the constitution, Wash. Post (Aug. 5, 2016).

 

 

 

The U.S. Constitution’s Interstate Commerce Clause After the Supreme Court’s Decision on the Affordable Care Act

U.S. Supreme Court Justices, 2012

As has been widely reported, the U.S. Supreme Court on June 28, 2012, decided, 5-4, that the Affordable Care Act (ACA) was constitutional under Congress’ constitutional power in Article I, Section 8(1) to “lay and collect taxes.” The Court’s Chief Justice and four of the Court’s Associate Justices also said in separate opinions that this statute was not constitutional under Congress’ constitutional power in Article I, Section 8(3) to “regulate commerce . . . among the several States.” The other four Associate Justices came to the opposite conclusion that the statute was constitutional under this provision.

This post will review what was said about the interstate commerce clause in the four opinions in the case and then analyze the status of that constitutional provision after this decision.

The Supreme Court’s Opinions on the Interstate Commerce Power

Chief Justice John Roberts’ opinion said that the Affordable Care Act was not constitutional under the interstate commerce clause. The same conclusion was reached in the joint dissenting opinion of Associate Justices Kennedy, Scalia, Thomas and Alito, and Associate Justice Thomas added a separate dissent to express an additional reason why he thinks the statute was invalid under this clause.

The opposite result was reached in the opinion by Associate Justice Ginsburg that was joined by Associate Justices Breyer, Sotomayor and Kagan.

All of these opinions are available online.

1. Chief Justice Roberts’ Opinion.

Chief Justice         John Roberts

First, Roberts gave a fair summary of the existing law on the Constitution’s interstate commerce provision. He said, “Our precedents read that to mean that Congress may regulate ‘the channels of interstate commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate commerce.’  The power over activities that substantially affect interstate commerce can be expansive.  That power has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s extortionate collections from a neighborhood butcher shop.” For this summary, Roberts cited  Wickard v.  Filburn, 317 U. S. 111 (1942),which previously had been criticized by Justice Scalia, and  Perez v. United States, 402 U. S. 146 (1971). (Roberts Slip Op. at 4-5.)

Roberts emphasized this concession when he said, “[I]t is now well established [by the Supreme Court’s prior cases] that Congress has broad authority under the Clause.  We have recognized, for example, that ‘[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states,’ but extends to activities that ‘have a substantial effect on interstate commerce.'”  Moreover, he said, “Congress’s power . . . is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others.” (Id. at 17-18.)For this last point he again cited the Wickard case. (Id.)

Nevertheless, Roberts continued, “As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching ‘activity.'” (Id. at 19.) The Affordable Care Act, however, according to Roberts, would require people to do something, i.e., to buy health insurance. Such a requirement, said Roberts, distinguished all of the prior Supreme Court precedents and, therefore, invalidated the statute. (Id. at 18-24.)

2. Associate Justices Kennedy, Scalia, Thomas and Alito’s Dissenting Opinion.

Associate Justice Anthony Kennedy

Although the joint dissenting opinion did not specifically endorse Roberts’ interpretation and conclusion, it implicitly did so. It did not attempt to overrule any of the Supreme Court’s precedents on the interstate commerce clause. Instead, it said the Wikard case, which Scalia previously had criticized, “held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated” and “always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. ” (Joint Dissent Slip. Op. at 2-3.) But Wickard and other precedents, according to the dissenters, “involved commercial activity.” The ACA, on the other hand, attempted to regulate economic inactivity, i.e., the failure to buy health insurance, and, therefore, was unconstitutional under the interstate commerce clause. (Id. at 2-12.)

Associate Justice Clarence Thomas

Justice Thomas was a co-author of this joint dissent and, therefore, agreed with all of its contents. His separate dissenting opinion was issued to reiterate his previously expressed view that the Court’s “‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” (Thomas Slip Op.)

3. Associate Justice Ginsburg’s Opinion.

Associate Justice Ruth Bader Ginsburg

Justice Ginsburg started with her summary of the Supreme Court’s precedents on the interstate commerce clause. She said, “Consistent with the Framers’ intent, we [Supreme Court Justices] have repeatedly emphasized that Congress’ authority under the Commerce Clause is dependent upon ‘practical’ considerations, including ‘actual experience.'” The Court has recognized that Congress has the “power to regulate economic activities ‘that substantially affect interstate commerce'” and regulate “local activities that, viewed in the aggregate, have a substantial impact on interstate commerce.” (Ginsburg Slip Op. at 14-15.)

She added from the Court’s precedents regarding the impact of the Constitution’s Fifth Amendment’s “due process” and implied equal protection clause that the Court repeatedly had said that it owed “a large measure of respect to Congress when it frames and enacts economic and social legislation” and that when “appraising such legislation, we ask only (1) whether Congress had a ‘rational basis’ for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a ‘reasonable connection between the regulatory means selected and the asserted ends.'” In addition, Ginsburg stated, “In answering these questions, we presume the statute under review is constitutional and may strike it down only on a ‘plain showing’ that Congress acted irrationally.”  (Id. at 15-16.)

Ginsburg then criticized Roberts’ supposed distinction between the Court’s precedents in this area and the Affordable Care Act. That distinction, she said, had no support in those precedents, and his minor premise–the Affordable Care Act required some people to buy a product (health care) they did not want– was erroneous. (Id. at 18-31.)

The Interstate Commerce Power After the Supreme Court’s Decision

Before the Supreme Court issued its decision in this case, I was concerned that the shrill cries of columnist George Will and two judges on the Court of Appeals for the District of Columbia Circuit that called for the Supreme Court to overrule 75 years of Supreme Court precedents on the scope of the interstate commerce clause would resonate with the five so-called conservative Justices of the Supreme Court. My worries were exacerbated by the initial reports that those five Justices had concluded that the Affordable Care Act did not satisfy their view of what that clause allowed.

When I had read the Court’s opinions, however, I discovered that eight of the nine Justice had not overruled any of those Supreme Court precedents and indeed essentially had endorsed them. Only Justice Thomas called for overruling one subset of those precedents, i.e., those allowing Congress to adopt laws under the interstate commerce clause if there were substantial effects on that commerce from local activities.

Therefore, all of those cases are still good law on the expansive nature of the federal power over such commerce. As an advocate for strong federal powers for the U.S. in the 21st century, I am pleased with this result.

As noted above, five of the current nine Justices believe that all the other Supreme Court precedents over at least the last 75 years can legitimately be distinguished from this case over the validity of the Affordable Care Act on the ground that all of the precedents involved regulation of economic activity whereas this current case involved attempted regulation of economic inactivity. Is this a legitimate distinction?

Justice Ginsburg and three of her colleagues did not think so as previously discussed. I leave it to constitutional scholars to analyze the validity of this purported distinction.

There is also a serious question as to whether Roberts’ opinion on the interstate commerce clause (when coupled with the similar discussion in the joint dissent) together constitute a binding decision of the Court under the doctrine of stare decisis.

  • First, there is no official “Opinion of the Court” on the interstate commerce issue that could be considered as the basis for stare decisis. Roberts’ opinion on this issue is his alone. The similar opinion of the other four Justices (Kennedy, Scalia, Thomas and Alito) is a dissenting opinion that does not express concurrence in Roberts’ opinion on the issue.
  • This careful reading of the opinions, however, may be overcome by section III-C of the Roberts’ opinion on the taxing power issue that states, “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from regulated activity.” This section of the Roberts’ opinion is concurred in by four other Justices (Ginsburg, Breyer, Sotomayor and Kagan), but they disagreed with this interpretation of the commerce clause. (Roberts Slip Op. at 41-42; Ginsburg Slip Op. at 2-36.) And Justice Thomas in his own dissent said, “The joint dissent and Chief Justice Roberts correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.” Perhaps these oddities are merely evidences of plain sloppiness in finishing the opinions in this case.
  • Second and more important, the opinions of Roberts and the four dissenters on the interstate commerce issue might be regarded as dicta and, therefore, not binding on the Court in subsequent cases or on lower federal courts. Since the Affordable Care Act was held to be constitutional on a different ground (the power to tax), then all of the discussion about the interstate commerce clause was not necessary to the decision and, therefore, dicta.
  • Justice Ginsburg was alluding to this principle in her opinion when she said that Roberts’ conclusion that the statute was constitutional under the taxing power should have meant there was “no reason to undertake a Commerce Clause analysis that is not outcome determinative.” (Ginsburg Slip. Op. at 37 n.2.)
  • Roberts responded to this argument in his opinion: “It is only because the Commerce Clause does not authorize such a command [to buy health insurance] that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that . . . [the relevant statutory provision] can be interpreted as a tax.  Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” (Roberts Slip Op. at 44-45.)
  • All of this discussion might be regarded as hyper-technical because so long as the Court’s composition remains the same, a majority (five Justices) is clearly on record on the limitation on the commerce clause power expressed in their opinions.

There is also disagreement on the significance of the new limitation on the interstate commerce power announced by Roberts and the four dissenters. Justice Ginsburg’s opinion says that Roberts ‘ opinion on the issue exhibits “scant sense and is stunningly retrogressive” and a “crabbed reading of the Commerce Clause [that] harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.” (Ginsburg Slip Op. at 2-3, 37.) This view was echoed by George Will and other commentators who said the reading of the commerce clause was an ultimate victory for libertarians and conservatives. However, one of those conservatives–John Yoo— said this reading of the clause “does not put any other federal law in jeopardy and is undermined by its ruling on the tax power” and in fact is “a constitutional road map for architects of the next great expansion of the welfare state.”

I am an agnostic on the question of the significance of the new limitation. I think Justice Ginsburg overstates the fear of horrible consequences because at least four of the Justices who articulated the new limitation also endorsed the 75 years of precedents expanding the scope of the interstate commerce power. Moreover, Chief Justice Roberts in his opinion in the Citizens United case articulated his concept of stare decisis that makes it unlikely that he would countenance such a large-scale overruling of precedents, in my opinion. A lot depends upon who wins the 2012 presidential election and who will be appointed to the Court over the next four years.

It is interesting and somewhat ironic that while the Supreme Court was struggling with legal arguments that would restrict the power of the U.S. federal government to respond to national economic problems, European countries were struggling with how to create a central power or authority to rescue the  European economy and currency from imminent collapse.

Other Approaches to Interpreting the U.S. Constitution Regarding Economic Regulation

A prior post examined the large body of existing U.S. Supreme Court cases interpreting the Constitution regarding economic regulation and sustaining the constitutionality of the Affordable Care Act. That post also examined the  strong views of U.S. Supreme Court Associate Justice Antonin Scalia on interpreting the U.S. Constitution (and other legal texts) and the vituperative pleadings of George Will and two appellate court judges for changing the interpretation of the Constitution regarding economic regulation.

Those views, however, are not universally accepted. Now we look at the equally strong views regarding such interpretation from Supreme Court Associate Justice Stephen Breyer and a  group of legal scholars known as “the New Textualists.” Those scholars also confirm the constitutionality of the Affordable Care Act now pending in the Supreme Court.

Justice Stephen Breyer

Associate Justice Stephen Breyer

In his 2005 book, Active Liberty: Interpreting Our Democratic Constitution, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings will fit those purposes. He argues that the constitutional authors sought to establish a democratic government involving the maximum liberty for its citizens. “Modern liberty” for Breyer is freedom from government coercion. In addition, Breyer asserts, there is “active liberty” or the freedom to participate in government.

Both kinds of liberty should be protected by the courts, according to Breyer, who believes the guiding theme in constitutional interpretation, whether in upholding statutes or enforcing rights, should be enabling democracy — “a form of government in which all citizens share the government’s authority, participating in the creation of public policy.”

Therefore, in his opinion, courts should behave modestly—if not deferentially—when striking down legislation. Courts should acknowledge that the greater number of people involved in legislatures makes them more likely to be circumspect than the considerably fewer people sitting as judges on any court. Unless the legislature has perpetrated an egregious violation of rights, such deference in and of itself promotes the Constitution’s democratic objective by allowing the process of representative government to play out.  Finally, he believes, promoting active liberty simply produces better law.

Moreover, Breyer believes courts should use legislative history to determine the intent of constitution-makers and legislatures when the texts are ambiguous.  In a book on that very subject and in other writings he has identified five primary situations in which judges should use legislative history: (1) to avoid an absurd result; (2) to correct drafting errors; (3) to identify specialized meanings; (4) to identify the purposes of the statute; and (5) to choose among reasonable interpretations of a politically controversial provision.

Justice Breyer also claims that using legislative history is preferable to relying more heavily on canons of interpretation or construction as advocated by Justice Scalia. First, for every canon there exists an equal and opposite canon of construction. The sources of many interpretive canons are old and obscure. Breyer questions what validity a canon created in the nineteenth century has on statutes  in the twenty-first century. Breyer also questions the legitimacy of the Supreme Court’s adopting new canons of interpretation or construction. Finally, Justice Breyer doubts that using canons actually helps those who either write or are affected by legislation.

The “New Textualists”

A different perspective on interpreting the U.S. Constitution is provided by Jeffrey Rosen, Professor of Law at the George Washington University Law School and Legal Director of The New Republic magazine. In an article in that magazine entitled “Constitution Avenue–Liberals discover a theory to crush conservative jurisprudence,” Rosen summarizes some of the work of three of the so-called New Textualists: Professor Akhil Reed Amar of the Yale Law School; Professor Einer Elhauge of the Harvard Law School; and Professor Jack Belkin of the Yale Law School.

Akhil Amar

Amar in his book, America’s Constitution: A Biography,  emphasizes the original public meaning of the constitutional text. But the text is more than the original Constitution; it includes all of the amendments too. He points out that the Constitution has been far more democratic than is conventionally understood. Even though the document was drafted by white landholders, a remarkably large number of citizens (by the standards of 1787) were allowed to vote up or down on it, and the document’s later amendments eventually extended the vote to virtually all Americans.

According to Amar, the Affordable Care Act is constitutional under the Constitution’s Interstate Commerce clause as that has been interpreted by the Supreme Court. He said:

  • “What Congress does has to be in the enumerated powers [granted by the Constitution].. One of those powers is the Interstate Commerce Clause. What are the limits on that power? It only applies to regulations that are interstate and commercial. So Congress has to be actually trying to address a commercial problem that spills over state lines. And that’s clearly true here.”
  • “At any given nanosecond, millions of Americans are out of state. Most of my students at Yale are out of state. Three days a week, I am out of my home state. And if I or my students or any of these Americans fall sick, we go to a local ER. That’s an interstate issue. Similarly, if we don’t cover preexisting conditions, we have a lock-in for labor mobility — many workers will be unable to take better jobs out-of-state and thereby contribute more to their families and to the economy. And that’s what the Interstate Commerce Clause was all about: Getting rid of the impediments to genuine interstate commerce, to the free movement of goods and labor.”
Einer Elhauge
Einer Elhauge has addressed the constitutionality issue of the Affordable Care Act by pointing out that in the early years of our Republic, Congress  passed several laws mandating that individuals and companies buy certain things and that most of the constitutional framers supported these measures and none objected on constitutional grounds. These measures were the following:
  • “In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington.”
  • “In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. . . . Four framers voted against this bill, but the others did not, and it was also signed by [President] Washington.”
  • In “1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. . . . [T]his Congress, with five framers serving in it, . . . enacted a federal law requiring the seamen to buy hospital insurance for themselves.”

Moreover, Elhauge has responded to a criticism of the relevance of these statutes to the constitutional argument.

Jack Balkin

Professor Belkin in his book, Living Originalism, concludes that the best versions of originalism and living constitutionalism are not in conflict, but are compatible. It shows why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And it explains how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.

Belkin concludes that the Affordable Health Care Act is constitutional under Article I, Section 8 of the Constitution permitting Congress to “lay and collect taxes.” The Act, he says, does not actually require all (or certain classes of) individuals to purchase health insurance. Instead, it is a tax that people would not have to pay if they purchased health insurance.

Conclusion

The Supreme Court now has only five days next week in which to announce its momentous decisions in the cases involving the Affordable Care Act and the Arizona immigration law.

I again invite comments supplementing, correcting or challenging the assertions in this post.

 

 

Interpreting the U.S. Constitution Regarding Limitations on Economic Regulation

By the end of June the U.S. Supreme Court should issue its decisions on the constitutionality of the federal Affordable Health Care Act and the Arizona immigration law. These cases involve important issues requiring the interpretation of the U.S. Constitution.

These cases and recent commentaries by Supreme Court Justice Antonin Scalia, columnist George Will, two judges on the U.S. Court of Appeals for the D.C. Circuit and a law professor reveal another important issue of legitimate federal power that is bubbling below the surface: what should be the constitutional standard for review of federal and state regulation of economic activities under the Fifth and Fourteenth Amendments to the U.S. Constitution.

U.S. Supreme Court Justice Antonin Scalia

Justice Scalia

A new book— Reading Law: The Interpretation of Legal Texts –by U.S. Supreme Court Justice Antonin Scalia and Bryan A. Garner discusses the general approach to such interpretation used by the Justice. It comes with this disclaimer: “The views expressed in this book are those of the authors as legal commentators. Nothing in this book prejudges any case that might come before the [U.S.] Supreme Court.”

The book is a series of short essays on principles or canons of statutory and constitutional construction that supposedly guide judges and lawyers. The book, however, does make telling comments on issues in the pending health care and immigration cases.

One of the central precedents advanced by the Obama Administration for the constitutional validity of the Affordable Care Act is a 1942 Supreme Court case, Wickard v. Filburn, 317 U.S. 111 (1942), which held that a farmer’s cultivation of wheat for his own consumption affected interstate commerce and, therefore, could be regulated by the federal government under the Commerce Clause of the U.S. Constitution that grants (in Article 1, Section 8) Congress the power “To regulate Commerce . . . among the several States. . . .”  The new Scalia-Garner book, however, says the Court in the Wickard case “expanded the Commerce Clause beyond all reason.”

Another canon says that “a federal statute is presumed to supplement rather than displace state law.” In other words, Congress must make express any intent to displace or preempt state law. This relates to the pending case about the Arizona immigration law. The main argument for its unconstitutionality is preemption of state law regarding immigration by federal law.

The book also says, “A statute presumptively has no extraterritorial application.” Again this is a presumption and thus requires Congress to make explicit any intention for a statute to have extraterritorial application. This relates to a case to be reargued next term on whether the federal Alien Tort Statute of 1789 applies to alleged foreign human rights violations. A related issue is whether corporations may be held liable under that statute.

Another canon is “Words must be given the meaning they had when the text was adopted.” Moreover, for Justice Scalia, as he writes in the book and in many judicial opinions, it is the words of the text under consideration that must be at the center of legal inquiry. Other sources and values — the intentions of those who wrote the words or the consequences of a given interpretation — are, in his opinion, illegitimate.

Columnist George Will

George Will

 George Will in his recent column, “Unleash the high court” lambasts a recurrent theme in many Supreme Court cases that express deference to the choices of the democratically-elected legislative and executive branches. Similarly Mr. Will criticizes George Romney’s presidential campaign website for saying that federal judges should “leave the governance of the nation to elected representatives.” Will argues that “judicial deference to elected representatives can be dereliction of judicial duty.”

Will specifically targets the Supreme Court’s decision in the Slaughterhouse Cases, 16 Wallace 36 (1873), regarding the “privileges or immunities” clause of Section 1 of the 14th amendment to the U.S. Constitution that was ratified in 1868. That provision is as follows:

  • No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.)

At issue in the Slaughterhouse Cases was whether a Louisiana statute that granted one firm a monopoly of the slaughterhouse business in New Orleans and banned already established competitors was valid under the “privileges or immunities” clause, and the Court held, 5 to 4, that it was constitutional.

The Court in the Slaughterhouse Cases reached this conclusion after it had determined that there was a distinction between U.S. citizenship and state citizenship and that this clause of the 14th Amendment only protected the former. Such U.S. citizenship privileges or immunities, according to the Court in this case, included the right of a citizen “to come to the seat of the government to assert any claim he may have upon that government;” the “right of free access to its seaports;” and the right “to demand the care and protection of the Federal government over his life, liberty, and property on the high seas, or within the jurisdiction of a foreign government.” But they did not include the right to engage in a business.

The Slaughterhouse Cases also rejected the claims that the Louisiana statute violated the “due process” clause and the “equal protection” clauses of the 14th amendment.

According to George Will, the decision in the Slaughterhouse Cases was a “still-reverberating mistake . . . [by taking] a cramped view of the 14th Amendment’s protection of Americans’ “privileges or immunities,” saying these did not include private property rights, freedom of contract and freedom from arbitrary government interference with the right to engage in enterprise.” This led, he says, in the 1930s to the Court’s formally declaring economic rights to be inferior to ‘fundamental’ rights. As a result, according to Will, the Slaughterhouse Cases “begot pernicious judicial restraint — tolerance of capricious government abridgements of economic liberty.”

Circuit Judges Brown and Santelle

Chief Judge Sentelle & Judge Brown

George Will’s call for “unleashing” the Supreme Court was made more explicit in an astonishing concurring opinion in April of this year by two judges on the U.S. Court of Appeals for the D.C. Circuit–Judge Janice Rogers Brown and Chief Judge David Bryan Sentelle— in Hettinga v. United States.

In that case the appellate court, 3-0, affirmed the dismissal of a complaint alleging that a federal statute subjecting large milk producers-handlers to financial contributions to a fund for payments to producers violated the Fifth Amendment to the Constitution’s due process and implied equal protection provisions. Following Supreme Court precedents, as the circuit court was required to do, the latter’s per curiam opinion stated the governing legal principle as follows:

  • “We grant statutes involving economic policy a “strong presumption of validity.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993). A statutory classification that “neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 313. “Where there are plausible reasons for Congress’ action, our inquiry is at an end.” Id. at 313–14. The challenger bears the burden of showing that the statute is not a rational means of advancing a legitimate government purpose. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).”

The appellate court then found that the challenged federal statute did have the requisite rational basis and, therefore, was constitutional.

The concurring opinion that was authored by Judge Brown and joined by Chief Judge Sentelle said that no other result was possible in light of the Supreme Court precedents. They then went on to suggest that the Supreme Court should overturn its large body of cases holding that economic regulations were subject to a rational basis test and return to the Lochner-era when there was strict judicial scrutiny of such regulations. The concurring opinion said:

  • “America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”
  • “First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.
  • “As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. . . .”
  • “The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).
  • “The hope of correction at the ballot box is purely illusory. . . . Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.”

The third circuit judge on the panel in Hettinga, Judge Thomas B. Griffith, filed his own concurring opinion to announce that he did not join the concurring opinion of Judge Brown and Chief Judge Sentelle “with its spirited criticism of the Supreme Court’s long-standing approach to claims of economic liberty. Although by no means unsympathetic to their criticism nor critical of their choice to express their perspective, I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.” (Emphasis added.)

As of the close of business on June 19th, the Supreme Court website did not report the filing of a petition for certiorari in the Hettinga case. But keep watching for such a petition and for the Court’s ruling thereon. If it grants the petition, be on guard. 

Supreme Court Interpretation of Constitutional Restraints of Federal and State Economic Regulations

Will’s article and, to a lesser extent, the Brown and Sentelle concurring opinion jump over an important period of our constitutional history.

Starting in 1905 in the U.S. Supreme Court used the “due process” clause of the 14th amendment to invalidate numerous state statutes regulating various aspects of economic activity. An early leading example of this jurisprudence was Lochner v. New York, 198 U.S. 45 (1905), that held a New York statute limiting the hours of labor in bakeshops to be unconstitutional. This approach continued into the early 1930s when the Court held various New Deal statutes unconstitutional until the conflict between the Court and President Roosevelt’s New Deal legislation reached a head in early 1937 with a presidential proposal for reorganizing the federal judiciary by appointing additional judges when an incumbent reached his 70th birthday (the so-called “Court-packing” proposal).

This proposal never went anywhere, but the Court suddenly changed course by upholding various federal and state economic regulations. This was the so-called “switch in time that saved nine.” Important cases in this reversal of course by the Supreme Court were West Coast Hotel  Co. v. Parrish, 300 U.S. 379 (1937) and United States v. Caroline Products Co., 304 U.S. 144 (1938). In West Coast Hotel, the Court, 5 to 4, upheld a state minimum wage law and overruled a contrary decision from 1923 (Adkins v. Children’s Hospital of D.C., 261 U.S. 525 (1923)). In Caroline Products, it upheld the constitutionality of a federal statute prohibiting certain milk from being shipped in interstate commerce because it was supported by substantial public-health evidence and was not arbitrary or irrational. The latter case also explained that regulations of economic activity would be subject to a “rational basis” review while restrictions on more fundamental rights would be subject to a higher level of scrutiny. Presumably George Will was referring to Caroline Products as the 1930s decision that, in his opinion, dastardly relegated economic rights to an inferior position to fundamental rights.

Another case in this new Supreme Court direction was Palko v. Connecticut, 302 U.S. 329 (1937), although it did not involve economic rights. Instead this case held that a state statute permitting the prosecution to take appeals from lower courts in criminal cases did not violate the 14th Amendment. This conclusion followed from the Court’s decision that this Amendment did not protect all of the rights set forth in the first eight amendments to the U.S. Constitution, but only to those “implicit in the concept of ordered liberty” and those principles of justice “so rooted in the traditions and conscience of our people to be ranked as fundamental.”

Also important in the Court’s new direction was the previously discussed Wickard v. Filburn, 317 U.S. 111 (1942), which upheld a federal statute establishing a wheat-marketing quota system that included wheat consumed on the same farm. It thereby repudiated an old distinction in the law between direct and indirect effects on interstate commerce. This case–the one criticized by Justice Scalia–made it clear that the Court would uphold the federal regulation of any economic activity, no matter how local, if it could have a demonstrable effect on interstate commerce.

This interpretation of the 14th Amendment as applied to economic regulations has now been followed for roughly 75 years in a huge body of cases in the Supreme Court and other U.S. courts.

As discussed in a prior post, in the mid-1970s I relied upon this well established body of law in a successful defense of an acquisition of an Iowa bank by an out-of-state bank holding company at about the same time that the Supreme Court upheld the constitutionality of a New Orleans ordinance that only allowed two push-cart vendors in the French Quarter of that city.

Given this long-established and firmly embedded interpretation of the Constitution, I was astounded to discover the George Will column and the concurring opinion in Hettinga calling for obliteration of this large body of law.  I also was startled to read a commentary by David Bernstein, the George Mason University Foundation Professor at the George Mason University School of Law:”There is virtual unanimity among modern conservative and libertarian scholars that the broadening of federal power during the New Deal era resulted from mistaken Supreme Court decisions.”

Prof. Geoffrey Stone

Such a position seems to me to be contrary to the principle of starie decisis. As stated by Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago (my alma mater), “Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.”

Chief Justice          John Roberts
Justice Samuel Alito

Indeed, in the infamous Citizens United v. Federal Election Commission case from 2010 that overruled a prior Supreme Court case regarding election financing, Chief Justice Roberts submitted a concurring opinion that was joined by Justice Samuel Alito solely “to address the important principles of judicial restraint and stare decisis implicated in this case.” After this concurring opinion reviewed the reasons for starie decisis, it quoted earlier Supreme Court decisions that said the principle was not an “inexorable command” or a “mechanical formula of adherence to the latest decision.” Otherwise, Chief Justice Roberts (and Justice Alito) said, “minimum wage laws would be unconstitutional.” Here, Chief Justice Roberts cited with approval West Coast Hotel Co. v. Parrish’s overruling of Adkins v. Children’s Hospital of D.C.

Presumably that would at least make it more difficult for Roberts and Alito now to overrule 75 years of Supreme Court case law on the constitutionality of economic regulations and to hold, explicitly or implicitly, that West Coast Hotel was an erroneous decision.

I, therefore, was somewhat relieved to read Professor Bernstein’s further observation that “there is less unanimity on what to do about it [the belief by some legal scholars that the rational basis standard for review of economic regulations was erroneous]. One school of thought, represented by former Judge Robert Bork and Judge Ralph Winter of the U.S. Court of Appeals for the Second Court, says it is too late to rely on the judiciary to reverse the centralizing trend of modern government. Winter claims that the unraveling of the modern Leviathan must be done through the political process, because it would be too disruptive to society and to the economy for judges to strike down federal programs wholesale. And, because judges must act on principle, they cannot pick and choose which laws to declare unconstitutional. Richard Epstein argues that, at least on the margins, the Supreme Court can still restrain national economic regulation. He thinks “that it is possible to make incremental changes by principled adjudication.”

Conclusion

In a subsequent post I will review other theories of interpreting the Constitution.In the meantime, I invite comments correcting, amplifying or contesting the assertions in this post.