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It is all the fashion these days to criticize the opinion in Roe v. Wade (and the companion case, Doe v. Bolton), which 40 years ago today guaranteed a women's constitutional right to privacy with regard to pregnancy.
While neanderthals like Andrew Sullivan label Roe the "the worst decision ever made by the Supreme Court" (Dred Scott? Plessy? Dagenhart? Korematsu? Bush v. Gore?), even intelligent individuals like Jack Balkin and the Yale Law School crowd have argued that Roe was poorly reasoned, if correctly decided.
I come here today to defend the opinion in Roe, which, while not the most articulate of opinions, still holds up as an exercise of reasoned judicial decision making. Read why I think so on the flip.
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If you read about how the federal constitution came about, one thing is crystal clear: it was devised by people who wanted to create a strong federal government and saw the states as obstacles to doing so. The people who believed in states rights and an anemic federal government — the ancestors of today’s Tea Party — were the Anti-Federalists. And they lost.
Regular readers know this: see The Republican Party, The Anti-Federalists And The Tea Parties, Taking The Tenth Amendment Seriously, The Tea Party v. Alexander Hamilton, What The Tea Party Believes, What The Founders Believed and David Brooks' Dishonest Invocation of Alexander Hamilton.
Marshall reports on the somewhat more honest GOP attempts to reinstate the Articles of Confederation. Marshall writes:
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I'm participating at a Yale Law School conference on Constitutional Interpretation on Jack Balkin's book "Living Originalism. I wrote about it last week. Some previous posts on the subject: Constitutional Interpretation, Originalism and a Living Constitution and Dred Scott, Originalism and a Living Constitution..
You can watch a live stream of the conference. It should be fascinating.
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Here is the opinion (PDF).
As I have argued repeatedly, the case is a simple one and Judge Silberman reaches the obvious conclusion. I do think the Anti-Tax Injunction Act may provide the SCOTUS an escape hatch for avoiding deciding the case in 2012.
I'm really busy so no deeper analysis from me until next week.
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In today's New York Times, Lawrence Tribe misses the mark on the argument about the Fourteenth Amendment's requirement that "The validity of the public debt of the United States, authorized by law, shall not be questioned. Tribe creates a straw man, declaring that "[s]ome have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause." No one has argued that as a general proposition. The argument is that "public debt authorized by law" may cause the debt ceiling to violate the Fourteenth Amendment, and in those circumstances, the President MAY be empowered to ignore the debt ceiling law.
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Opinion here (PDF). The vote was 2-1. I discuss the dissent on the flip.
First, the court ruled that the individual mandate regulates economic activity:
The minimum coverage provision regulates activity that is decidedly economic. In Raich, the Supreme Court explained that “‘[e]conomics’ refers to ‘the production, distribution, and consumption of commodities.’” Id. at 25 (quoting Webster’s Third New International Dictionary 720 (1966)). Consumption of health care falls squarely within Raich’s definition of economics, and virtually every individual in this country consumes these services. Individuals must finance the cost of health care by purchasing an insurance policy or by self-insuring, cognizant of the backstop of free services required by law. By requiring individuals to maintain a certain level of coverage, the minimum coverage provision regulates the financing of health care services, and specifically the practice of self-insuring for the cost of care. The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan. Thus, the financing of health care services, and specifically the practice of self-insuring, is economic activity.
More on the flip.
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We agree that the term "hostilities" should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad.[. . . W]e also believe that as a general matter the presence of our armed forces in a foreign country whose government comes under attack by "guerrilla" operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to "command, coordinate, participate in the movement of, or accompany" the forces of the host government in operations against such guerrilla operations. 16 50 U.S.C. § 1547(c).
[. . .] The structure and thrust of those provisions is the "introduction" of our armed forces into such a situation and not the fact that those forces may be engaged in hostilities. It seems fair to read "introduction" to require an active decision to place forces in a hostile situation rather than their simply acting in self-defense.
(Emphasis supplied.) Obviously, it was the Obama Administration that introduced US military power into Libya. This was no act of self defense. It is beyond debate, in my view, that the 1980 OLC opinion conflicts with the Obama Administration argument that the United States is not engaged in "hostilities" covered by the WPA. More . . .
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By the Constitution, Congress alone has the power to declare a national or foreign war. [. . .T]he President [. . .] has no power to initiate or declare a war either against a foreign nation or a domestic State. - The Prize Cases
One of the more bizarre aspects of the Obama Administration's arguments regarding the non-applicability of the War Powers Resolution to American involvement in the Libya conflict is the blithe dismissal of the fact that the Constitution does not authorize the President to engage the Nation in war at all. Consider Jack Goldsmith's reaction to the Administration's arguments:
The administration’s theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution’s time limits[.]
How about without regard to the Constitution? Of course, this is not new, see (in recent history, see Panama, Grenada.) But it is sad that no seems to even give a passing thought about the Constitution on this issue. More . . .
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Let's look at the Constitution:
Arizona's "birther bill" has passed the state Senate. The bill requires a sworn statement confirming the candidates residents and... drum roll... (sorry for the caps):A CERTIFIED COPY OF THE PRESIDENTIAL CANDIDATE'S LONG FORM BIRTH CERTIFICATE THAT INCLUDES AT LEAST THE DATE AND PLACE OF BIRTH, THE NAMES OF THE CANDIDATE'S MOTHER AND FATHER, INCLUDING INFORMATION SUFFICIENT TO DETERMINE THE CITIZENSHIP OF BOTH PARENTS, THE NAMES OF THE HOSPITAL AND THE ATTENDING PHYSICIAN, IF APPLICABLE, AND SIGNATURES OF ANY WITNESSES IN ATTENDANCE.
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Can the United States Congress employ an enhanced Commerce Clause authority to mandate expectant mothers undergo amniocentesis testing in order to identify and treat individuals, yet unborn, whose extraordinary medical expenses may someday be cost-shifted onto the society-at-large? To each of these questions, the state of Missouri answers “No.” Such federal authority would require a generalized police power or a separately enumerated power, but is not cognizable under the Commerce Clause.
I agree that the Constitution does not permit the Congress to enact such a law, but for reasons different than those articulated by the Attorney General of Missouri. Indeed, I believe the Attorney General's argument begs the question - does he believe a State could enact such a law? I believe neither a State nor the federal government could do so. The reason is that the constitutional right to privacy and liberty preclude such governmental action, absent a compelling state interest, whether the attempt is by a state government or a federal government. The question I have for the Missouri Attorney General is this - does he believe the State of Missouri has the power to effect such a law? More on the flip.
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Over the years, I have written often about The Living Constitution. See, e.g. On Constitutional Interpretation: Originalism v. A Living Constitution; Scalia's Nonsense on Originalism,Dred Scott,Originalism and A Living Constitution, Constitutional Interpretation: Originalism v. A Living Constitution, Uncertainty In Life:Justice Souter's Harvard Commencement Address. I spilled tens of thousands of words on the subject, but Justice Souter's commencement address at Harvard last year wonderfully described the philosophy that I believe underpins the Living Constitution idea:
[B]ehind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.
[. . .] If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.
Brilliant words from one of the finest of our modern Justices (now about that Twombly decision. . . .) It is important to realize that this concept does not always redound to consequences that we may feel are optimal. One of those for me is the modern understanding of the war power under the Constitution. The words are simple enough. Article I, Section 8 of the Constitution provides:
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One of the unexplored issues (at least in my internet travels) regarding the importance of public sector unions is the issue of whether federal labor laws can be applied to States and their subdivisions. One of the principal arguments, I would posit, for the critical importance of public sector unions is the strong possibility that federal labor laws do not apply to States (and their subdivisions) as States. That is, to States as employers. Absent federal standards, public sector employees, more so than even private sector employees, strongly rely on their unions to guarantee their rights. In order to flesh out this proposition, a review of the pertinent case law is in order.
In 1976, relying on principles of federalism, the Supreme Court, in National League of Cities v. Usery, declared that federal labor laws can not apply to the States as employers:
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[T]he Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the Government to general reasoning. To its enumeration of powers is added that of making 'laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department thereof.' [. . .]
[T]he Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are Constitutional.
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Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. [. . .] This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.” Lopez, supra, at 567—568. - Justice Scalia in concurrence in Gonzales v. Raich
At the Volokh Conspiracy, Professor Orin Kerr notes that Judge Roger Vinson in his decision (PDF) striking down the individual mandate and the Affordable Care Act ignored Supreme Court precedent and instead relied upon his own conceptions of the "first principles" of the Constitution. something a district court judge is not permitted to do:
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In his decision striking down the health bill, Judge Vinson found it necessary to perform a double backflip and explain that while the individual mandate was "essential"to the Affordable Care Act, it was not Necessary and Proper to the implementation of the law. Vinson wrote (PDF):
The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. [. . .] .The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is.26 Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper."
Why is the individual mandate not "proper?" According to Vinson:
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