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Chief Justice John Marshall: Not the Big Government Guy You Might Think

Chief Justice John Marshall: Not the Big Government Guy You Might Think

John Marshall
John Marshall

Chief Justice John Marshall (in office 1801-1835) is often identified with an expansive “big government” interpretation of the Constitution. Fans of big government cite him as an ally; opponents as an enemy.

This view of Marshall is a caricature. It is true that Marshall was a Federalist—he occupied a place on the political spectrum of his day closer to Alexander Hamilton than to Thomas Jefferson. But to say that he subscribed wholly to Hamilton’s constitutional views would be untrue. It is even more inaccurate to claim him as a justice who would uphold the constitutionality of the modern federal regulatory welfare state. Marshall was far more moderate than that.

The caricature of our greatest Chief Justice was created in his own time by his political opponents. In the modern era it has been nurtured by “progressives” who claim Marshall for their version of the Constitution. Among the latter group are Supreme Court justices who quote his words out of context, book authors who omit critical passages from his opinions, and law professors unfamiliar with other things Marshall wrote and with the law and language of his time.

In 2011, I authored an article correcting the record. I also co-authored another with the Independence Institute’s own Dave Kopel, explaining why Marshall would have held Obamacare to be unconstitutional.

Now Dr. Thomas K. Lindsay of the Texas Public Policy Foundation has joined in. A new contribution by Dr. Lindsay relies mostly on my research, but he introduces it to a new and much larger audience. You can read Dr. Lindsay’s essay here.

And here is my own detailed posting on the subject.

Is Obama Violating the "Take Care" Clause?

Is Obama Violating the "Take Care" Clause?

2013-0822 RGN
The Constitution requires the President to “take Care that the Laws be faithfully executed.” This “take Care” language came from 18th century commissions and formal instructions by which higher officials delineated what lower officials were to do. The premier examples were royal instructions to colonial governors, but the Continental and Confederation Congresses used the same language in instructing civil and military officials.

The Constitution’s language is both a grant of enumerated power to the President and a mandatory duty imposed on him.

The Obama administration’s partial refusal to enforce various laws has raised questions of whether the President is violating the Constitution’s command, and thus committing an impeachable offense.

The question can be a difficult one, because everyone recognizes that the President has some discretion in exercise of the executive power. For example, the cost of full enforcement might be far greater than the appropriated funds for enforcement, requiring the President to set priorties. Also, fully enforcing the law against some persons technically in violation can work great injustice.

So is Obama violating his constitutional duty or not? Legal scholar Zachary Price examines this question in a thoughtful, balanced article written for Vanderbilt Law Review.

He concludes that in its partial non-enforcement of marijuana laws, Obama is within the scope of his discretion, although somewhat close to the line. Obama crossed the line, however, in refusing to enforce mandates imposed by the Affordable Care Act (Obamacare) and in granting exemptions from the immigration laws to whole classes of people.

Professor Price finds that the George W. Bush administration also exceeded the scope of its discretion in underenforcing “New Source Review” environmental laws.

More Evidence From Last Term That It's Not a "Conservative Supreme Court"

More Evidence From Last Term That It's Not a "Conservative Supreme Court"

Rob at the Univ. of Montana
Rob at the Univ. of Montana

Note: This article was first published at cns news.

There is a common media myth that the current U.S. Supreme Court, or at least a majority of the current justices, is “conservative.”

But if a “conservative” justice is one who consistently interprets the Constitution in accordance with traditional methods of judging—as the Founders intended for it to be interpreted—then the Court is anything but conservative.

On social issues the Court has been pushing society to the Left. Otherwise, the best description of its jurisprudence is “status quo.” And in this instance, preserving the status quo renders the Court liberal, not conservative.

That is because the status quo the justices are preserving is a body of liberal jurisprudence created in the 20th century when the Court was usually controlled by “progressive” majorities.

The Court’s tendency to protect liberal jurisprudence appears even in cases where the specific outcomes are pleasing to conservatives. In fact, the “conservative” outcomes often are relatively marginal—minor victories—while the jurisprudence that underlies the result is a major triumph for liberals.

Three cases from the Supreme Court term illustrate the point.

The first is the famous Hobby Lobby case, in which the Court ruled that the Religious Freedom Restoration Act (RFRA) protects an employer’s right not to provide abortifacients. I have written elsewhere about a liberal victory in Hobby Lobby that received almost no publicity. But there was another, more important, liberal victory on a point of fundamental principle.

The Hobby Lobby dispute arose from federal regulations of employment and of health insurance purportedly authorized by Congress in the Affordable Care Act (Obamacare). Unlike the “tax” justification for Obamacare’s individual insurance mandate, the supposed constitutional basis for those regulations is Congress’s Commerce Power, contained in the Constitution’s Commerce Clause and Necessary and Proper Clause.

Everyone concedes, at least in theory, that Congress has only the authority the Constitution grants it—Congress’s “enumerated powers.” But properly construed, Congress’s enumerated power to regulate “Commerce” does not encompass employment relations or insurance, except in some peripheral situations. The Supreme Court recognized this consistently for the Constitution’s first 150 years. Indeed, during that time the Court held repeatedly, and unanimously, that most insurance is NOT “Commerce.” It was not until “progressive” justices took control in in the late 1930s and 1940s that the rules changed, and it was not until relatively recently that Congress began systematically to interfere in the insurance market.

A bench consisting of traditional (conservative) justices, therefore, would have held that the Obamacare regulations were outside the federal government’s enumerated powers, and thereby invalid for that reason. Such a court would not have reached the RFRA issue because there was no need to do so.

A second example from the Supreme Court term just past is the campaign finance decision in McCutcheon v. Federal Election Commission. This case invalidated a congressional effort to limit the total amount any person could donate to all candidates combined. The basis for the decision was the Free Speech Clause of the First Amendment. Media outlets have described this case also as a “conservative” triumph.

Yet a truly conservative court would never have reached the First Amendment issue because in presuming to regulate campaigns, Congress again exceeded its enumerated powers. The Constitution does confer on Congress authority to regulate the “Manner of holding [congressional] Elections.” But this constitutional grant does not extend to regulation of campaigns.

The scope of the constitutional grant is quite clear from the historical record, as I explained at length a 2010 article cited last year by Justice Thomas, the only member of the Court who consistently interprets the Constitution in the traditional (“conservative”) manner. Congress’s authority to regulate “the Manner of holding Elections” refers strictly to voting mechanics. For example, Congress may specify whether we vote by open or secret ballot and whether a candidate needs a majority to win or can win by a plurality. But the Constitution leaves regulation of campaigns to state laws governing defamation, corrupt practices, and so forth.

The Supreme Court did not hold that “Manner of Election” included campaigns until a “progressive” majority did so in 1941. The Court’s accompanying opinion was based on little or no inquiry into the real meaning of the constitutional language.

Yet in McCutcheon the justices (and the parties) accepted that suspect holding without question, and proceeded immediately to the First Amendment issue.

The third example from the term just ended is NLRB v. Noel Canning, which unanimously invalidated some of President Obama’s “recess appointments.” The Constitution’s Recess Appointments Clause is an enumerated power of the President that grants him the prerogative, without Senate consent, “to fill up all Vacancies that may happen during the Recess of the Senate.” The Court needed to decide (1) whether the “Recess” meant only the intersession recess or encompassed other breaks as well, and (2) whether for a vacancy to “happen” it had to arise during the recess or could merely continue into a recess.

The Founding-Era record is crystal clear on both questions: A “Recess” means only an intersession break and the vacancy must arise then. A traditional (“conservative”) bench would have so found. And, in fact, four justices did so find—relying on an article I wrote earlier this year that documented the Founders’ understanding at length.

But the majority did not follow the Recess Appointments Clause as the Founders understood it. Rather, it applied a sort of balancing test of the “living constitution” variety. President Obama lost only because he had violated even that flaccid and malleable standard.

The result was a small conservative victory, but at great cost: That cost was a complete revision and a serious weakening of an important constitutional check-and-balance—yet another example of the fundamentally liberal jurisprudence of a Court that many in the national media insist on calling “conservative.”

Did Obamacare Violate the Constitution’s Origination Clause? No. . . and Yes

Did Obamacare Violate the Constitution’s Origination Clause? No. . . and Yes

Rob at the Univ. of Montana
Rob at the Univ. of Montana

Note: This a modified version of an article that appeared at The American Thinker.

Two years ago, the Supreme Court declared Obamacare’s penalty for failure to purchase conforming insurance to be a “tax.” Several plaintiffs subsequently sued in federal court arguing that the penalty is invalid for violating the Constitution’s Origination Clause. The Origination Clause says that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

The argument of the plaintiffs is that the Affordable Care Act and its taxes originated in the Senate, and that the tax/penalty is therefore void. (A 1990 Supreme Court case does strongly suggest that taxes originating in the Senate are void.) Thus far, those lawsuits have been unsuccessful, but they have provoked much commentary.

H.R. 3590 initially was a 6-page bill addressing (1) a federal income credit and (2) acceleration of certain estimated corporate income tax payments. The bill probably would have had little revenue effect, and may even have cost money. After H.R. 3590 passed the House, the Senate gutted it entirely and inserted 2,076 pages of Obamacare. The Senate voted for H.R. 3590 in that form, and transmitted it to the House, which likewise approved it.

As readers of this site know, I have my own political views, but I do my best to conduct objective research. And I insist on reporting my results whether I personally like them or not. In January, I began an independent research project to determine if the Origination Clause lawsuits have merit. The answer turns out to be both “yes” and “no.”

There are several key issues involved:

*    The Constitution’s Origination Clause applies only to “Bills for raising Revenue.” What does that phase mean?

*    Was the original H.R. 3590 a “Bill for raising Revenue?”

*    If it was, then the Senate had power only to “propose or concur with Amendments as on other Bills.” What is an “Amendment” as the Constitution uses the word? Was the complete replacement of the text of H.R. 3590 an “Amendment?”

The most commonly-used sources for recovering original constitutional meaning are the records of the 1787 Philadelphia Convention, the debates in the state ratifying conventions, and orations and publications (such as The Federalist) issued in advance of ratification. I found, as some other scholars have, that this material was insufficient to explain the scope and meaning of the Origination Clause.

I often have to venture well beyond the sources customarily used, and that was the case here. The origination rule came from the British Parliament, so I examined 50 years of parliamentary debates, as well as historical works on Parliament. I read 18th century treatises on the topic. I examined the legislative records of American colonies. I also examined the legislative records of the Continental, Confederation, and first Federal Congresses. Finally, I studied the origination rules in the newly-independent American states (14 of them, counting Vermont). This required perusing early state constitutions and legislative records. I disregarded materials generated too late to have influenced the founders.

I embodied my conclusions in a new, and rather lengthy, article. Here they are:

*    The constitutional phrase “Bill for raising Revenue” means a “tax” or a change in the tax code justifiable only under the Constitution’s Taxation Clause. (An exaction for regulating commerce is not a “Bill for raising Revenue.”)

*    H.R. 3590 in its initial form was a “Bill for raising Revenue” as the Constitution uses that term. It does not matter that H.R. 3590 in that form was revenue-neutral or revenue-negative. All changes to the tax code are within the origination rule.

*    H.R. 3590 properly arose in the House of Representatives.

*    The Senate had power to propose “amendments” of H.R. 3590. An amendment could take the form of a compete substitution. In fact, I found a fair number of examples of founding-era legislatures amending measures by complete substitution.

*    However, the constitutional word “Amendment” is limited to the subject matter of the original bill. The claim made by some writers that an “Amendment” could include an unrelated substitute turned out to be erroneous.

*   In other words, the power of an amending chamber over a revenue bill is less than the power of an originating chamber.

*   For constitutional purposes, all “Revenue” is the same subject matter, so it is irrelevant that the Senate’s revisions completely altered the nature of the taxes in H.R. 3590. Thus, because the Supreme Court has held the penalty to be a tax, the penalty was within the power of the Senate to add. Also valid are Obamacare’s other levies, such as the medical equipment tax.

*    On the other hand, because the underlying H.R. 3590 was limited to the subject of revenue and any “Amendment” must address the same subject as the underlying bill, the Senate’s addition of regulations and appropriations was not within its power.

I concluded that the Origination Clause lawsuits are attacking the wrong part of the law. The invalid portions of Obamacare under the Origination Clause are not its taxes, but its multitude of appropriations and its regulations on health care providers, employers, insurance companies, and others.

One final observation: In dismissing one of the origination suits late last month, the U.S. Court of Appeals for the D.C. Circuit held that the Obamacare tax was not a “Bill for raising Revenue” because it was passed for regulatory purposes. But the anterior constitutional test is whether the initial H.R. 3590 was a revenue bill—and it certainly was, according to the constitutional definition.

If the Court of Appeals were correct that the penalty is regulatory, then the penalty would be invalid as outside the Senate’s amendment power.

More importantly, however, the Supreme Court specifically held that congressional regulatory purposes were outside the scope of Congress’s other enumerated powers. Only the Taxation Clause supports the penalty, and it can be preserved only as  a tax.

The Dark Side of Hobby Lobby: Contraceptive Coverage as a 'Compelling Government Interest'

The Dark Side of Hobby Lobby: Contraceptive Coverage as a 'Compelling Government Interest'

Rob at the Univ. of Montana
Rob at the Univ. of Montana

Note: This item originally appeared at the website of The American Thinker.

The Hobby Lobby case is being hai​led by freedom advocates as a great victory.  On balance it certainly it is a victory for those who value personal freedom. But it also contains land mines that may one day prove destructive to freedom.

One of these land mines is how the justices treated the question of whether mandated abortifacient insurance promotes a “compelling government interest.”

In its principal opinion, the Court assumed for purposes of argument that the U.S. Department of Health and Human Services (HHS) contraceptive mandate serves a compelling government interest.  ​However, five members of the Court – ​a majority – went farther:​ Justice Kennedy stated in concurring opinion that the decision’s “premise” was that the federal government had a “compelling interest in the health of female employees.”  The four dissenters affirmatively claimed that the mandate furthered “compelling interests in public health and women’s well being.”

​ The mandate in question was issued ​under the Affordable Care Act (ObamaCare).  In 2011, a federal district judge found that another Obamacare mandate also ​served a “compelling interest” (Mead v. Holder).

It is a very serious matter when the Supreme Court classifies a law or other government action as serving a “compelling interest.”  ​In the Court’s jurisprudence, most​ laws promote only “legitimate” interests, and a few promote legitimate interests that are “important” as well.  On rare occasions, a legitimate interest is held also to be “compelling.”  If a​ law is deemed “necessary” to advance the compelling interest, the law may actually overrule portions of the Bill of Rights.  It also may overrule basic liberties listed elsewhere in the Constitution or in the Religious Freedom Restoration Act.

Although the ObamaCare mandate in Hobby Lobby ultimately ​did not override the Religious Freedom Restoration Act, the ObamaCare​ mandate in Mead v. Holder did.

In our federal system, the states enjoy broad powers to regulate to promote health, safety, morals, and general welfare.  In other words, states can employ the law for many legitimate purposes.  The Court has found that some of these legitimate purposes are compelling.  For example, a state vaccination law designed to prevent epidemics may overrule ​one’s ​right to refuse vaccination.  Similarly, the Court holds​ that a state’s interest in stamping out racial discrimination is not only legitimate, but compelling.

Still, the number of compelling interests is fairly small.  Even state health laws usually are not compelling enough to overrule fundamental rights.

Unlike the states, the federal government is limited to the enumerated powers granted in the Constitution.  The Supreme Court has ​ruled​ that some of these​ enumerated powers also serve compelling interests, such as national defense and Congress’s 14th Amendment authority to remedy discrimination by state governments.  But federal peacetime economic regulations, like state laws, are almost never “compelling.”

That brings us to ObamaCare.  The Affordable Care Act has all sorts of social and health care implications, but (aside from its taxes and spending provisions) it is justified constitutionally as a set of commercial and economic regulations.  For example, when arguing that the Supreme Court should uphold ObamaCare, the president characterized it as “a[n] economic issue … that I think most people would clearly consider commerce.”  In her Hobby Lobby dissent, Justice Ginsburg likewise cited economic factors to justify the contraceptive mandate.

Thus, despite ​ObamaCare’s ​health implications, its constitutional ​purpose is economics or, ​more precisely, commerce.  ObamaCare’s regulations on insurance companies and employers, such as the contraceptive mandate, specifically are said to rest on the Constitution’s Commerce Clause.  This is because the Constitution grants the federal government no enumerated​ power over health care.  The great Chief Justice John Marshall made this very point in his famous opinion in Gibbons v. Odgen, when he wrote that “health laws of every description” were reserved exclusively to the states.

But if, constitutionally, ObamaCare is but a ​collection of economic regulations – and if peacetime economic interests are virtually never “compelling” – then why is ObamaCare different?  Is it just that the ObamaCare is popular among the class of people who serve as federal judges?

The answer is that in this sense, ObamaCare is not different.  It is constitutionally similar to many hundreds of other economic regulations enacted by Congress and the states.  It is just more comprehensive and much more intrusive.

Now consider the risk to freedom from allowing such a law to be lifted to “compelling” status.  That risk extends far beyond the threat to religious liberty.  If, for example, providing “free” contraceptives is a compelling interest, then Congress might pass a law forcing companies to produce them.  Or if forcing people to buy insurance serves a compelling interest, then federal officials might well demand laws to jail people who try to dissuade others from signing up.

Remember the Supreme Court’s formula: a law necessary to promote a compelling interest can override the Bill of Rights.  ObamaCare is barely constitutional – if it is constitutional at all.  We must not allow the courts to sanctify it.

Post script: More than two years ago, I predicted that the Supreme Court would dismiss the anti-mandate First Amendment claims and that Mead v. Holder raised the possibility that some judges would treat Obamacare as “compelling.” You read it here first!