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 . . .

Arizona's brand of crazy:

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.

Let's look at the Constitution:

The Attorney General of Missouri has filed an amicus brief (PDF) in the case before the Eleventh Circuit, State of Florida, et al. v. Department of Health andHuman Services, et al.. While it repeats the litany of arguments seen previously (and ignores the import of the Necessary and Proper Clause I discussed in this post), it places a great deal of emphasis on the supposed invasion of federal power on state police power:

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.

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:

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:

Yesterday, Gibbons v. Ogden, today, a dramatization of McCulloch v. Maryland:

[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.

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:

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:

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 - Chief Justice John Marshall, writing for a unanimous Supreme Court in McCulloch v Maryland

The House of Representatives spent the day reading the Constitution (or parts of it anyway) into the Congressional Record. They might consider reading from this 1819 Supreme Court case that discusses the Constitution and Congressional power created thereunder:

A detailed analysis of the ridiculous decision by District Judge Henry Hudson (PDF) striking down the individual mandate would be superfluous as any honest and competent constitutional scholar knows that the decision is not even close to being in line with existing Supreme Court precedent, and it is certainly not the job of district court judges to ignore existing Supreme Court precedent. As Orin Kerr succinctly states:

The backdrop to this outrageous comment by a prosecutor post is an Aspen Daily News article about how the budget for the DA's office in the four county district that includes Aspen (Pitkin County) is five times bigger than that for the Public Defender's office. (2/3 of the defendants charged in the district qualify for court-appointed counsel. There are 14 DA's and 4 public defenders.) The Pitkin County Commissioners asked Martin Beeson, the elected District Attorney, to cut 5% off his $3 million budget. Instead, he asked for a $600,000. increase.

When asked about the funding disparity, Beeson responded with:

“Public defenders are not defenders of the public,” Beeson said. “They are not serving the public good. They are taxpayer-funded attorneys for criminals.”

Not serving the public good? Someone needs to clue Beeson in to the purpose of the Bill of Rights. It was designed to protect the rights of the individual accused against the power of the government, by restraining the government's power. [More...]

In a North Carolina town, the meaning of the separation of church and state is being well demonstrated:

The Christian flag is everywhere in the small city of King: flying in front of barbecue joints and hair salons, stuck to the bumpers of trucks, hanging in windows and emblazoned on T-shirts. The relatively obscure emblem has become omnipresent because of one place it can't appear: flying above a war memorial in a public park.

This is in keeping with the First Amendment - which prohibits government endorsement of religion AND government interference with the exercise of religion. Thus, while the religious flag (I never heard of it before myself) can not be flown by the government, every person has the right to fly that flag (and apparently they all are.) The lesson is apparently lost on some: