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Deep Ignorance

Deep Ignorance

This column was first published in The Hill on February 20, 2018.

The web has been ablaze over the ignorance displayed by Senator Brian Schatz (D-Hawaii), who showed himself unaware of the Anglo-American legal heritage. Schatz revealed his lack of knowledge by mistaking Attorney General Jeff Session’s reference to that heritage for a racist dog whistle.

For those who have been living on Pluto — or serving in Congress — the phrases “Anglo-American heritage” and “Anglo-American legal system” are standard ways of referring to the jurisprudence America inherited from England. To a considerable extent, we still share that jurisprudence with our mother country. The Constitution itself is filled with English legal terms (such as habeas corpus, and privileges and immunities) that cannot be fully grasped without understanding the English heritage. Many, if not most, states — including Schatz’s state of Hawaii — have constitutional provisions or “reception statutes” formally adopting the common law of England.

If Schatz’s comment were unique, it would simply mark him as uniquely unfit to be a lawmaker. Unfortunately, in recent years other top officials have revealed similar deep ignorance. By this I mean ignorance not merely of academic or esoteric facts but of matters central to an officeholder’s responsibilities — and sometimes central to citizenship itself.

Readers may recall that in 2010 a reporter asked U.S. Rep. John Conyers(D-Mich.) what provision of the Constitution supported Obamacare’s individual insurance mandate. A video camera caught Conyers’ response:

Under several clauses. The good and welfare clause, and a couple others. All the scholars, all the constitutional scholars that I know— I’m chairman of the Judiciary Committee, as you know — they all say there’s nothing unconstitutional in this bill. 

Of course, the Constitution contains no “good and welfare clause.” What is just as disturbing is that Conyers apparently did not know that legal scholars had issued constitutional warnings about ObamaCare on several fronts, including its mandates on the states and the procedure Congress used in adopting it. (Some of these warnings were later vindicated by the Supreme Court.)

As Conyers observed, he was then chairman of the House Judiciary Committee. According to its website, that committee “has been called the lawyer for the House of Representatives because of its jurisdiction over matters relating to the administration of justice in federal courts, administrative bodies, and law enforcement agencies.” Because the Constitution is the federal government’s basic rule book, the committee is deeply immersed in constitutional issues. Conyers was not only its chairman; he had served on the committee for 45 years!

Educated citizens who enter politics eventually learn that deep ignorance is not unusual among elected officials. To idealists, the discovery can be a shock.

It was a shock to me. As a Montana political activist and candidate during the 1990s, I was stunned to learn that the incumbent Republican governor did not know whether the state budget he had approved was smaller or larger than the previous budget. He also was uninformed of the contents of other major bills he had signed into law. And after four years in office supposedly dealing with education issues, his second lieutenant governor still had no clue what a charter school was.

Deep ignorance is not limited to matters of law and policy. The “you didn’t build that” comments in 2012 by President Obama and Senator Elizabeth Warren (D-Mass.) represent a case in point. Claiming an entrepreneur did not build his business because he used pre-existing resources is like saying to an employee that he didn’t earn his salary because the employer provided the job. The comment reveals fundamental unawareness of how creativity and effort operate in a free enterprise context. This is a risk of electing people who have little or no private sector experience.

To be sure, deep ignorance is not the biggest problem in government right now. A more basic problem is that government has gotten too massive for officials to do their jobs, even if they all had the extraordinary knowledge and capacity of, say, the late Sen. Daniel Patrick Moynihan (D-N.Y.). Still, electing ignorant people to office aggravates the federal dysfunction so concerning to most Americans.

New Article on What "Taxes" Are (And Aren't) Under the Constitution, and the Implications for Obamacare

New Article on What "Taxes" Are (And Aren't) Under the Constitution, and the Implications for Obamacare

2005-10 RGNStPaulsWas the Supreme Court right to call Obamacare’s insurance penalty a “tax?”

Not according to the Founders.

Rob’s new article explaining just what the Constitution means by “tax” has just come out. It explains also the Constitution’s other financial terms: “Revenue,” “Excises,” “Tonnage,” “Duties,” and “Imposts.”

You can get a copy here.


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!

Is the Obamacare Mandate Unconstitutional Because It Originated in the Senate?

Is the Obamacare Mandate Unconstitutional Because It Originated in the Senate?

Rob at James Madison's home in Virginia
Rob at James Madison's home in Virginia

The Patient Protection and Affordable Care Act (PPACA or “Obamacare”) imposes a sliding-scale financial penalty on people who do not buy health insurance conforming to federal standards. In NFIB v. Sebelius, the Supreme Court upheld the penalty as a constitutional “tax.”

But that may not be the last word on its constitutionality.

A lawsuit brought by Matt Sissel, a self-employed artist, contends that the penalty is void under a provision in the Constitution called the Origination Clause: Article I, Section 7, Clause 1.  It reads as follows:

“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.”

As a tax, Sissel argues, the financial penalty is “for raising Revenue.” He then notes how Obamacare was adopted: First, the House passed H.R. 3590, which created a first-time homebuyer tax credit for armed services personnel and “accelerated” certain estimated corporate income tax payments. Next, when H.R. 3590 came to the Senate, that body gutted it and inserted the PPACA instead, which the Senate then passed. Finally, the House passed the new H.R. 3590. So as a practical matter, Sissel says, the Obamacare tax originated in the Senate—not, as constitutionally required, in the House.

If Sissel is right, then the same defect may afflict other levies imposed by Obamacare, such as the one on medical devices.

The case turns on two overarching issues:

(1) Is the penalty for not buying insurance a measure “for raising Revenue?” and
(2) Did the Senate’s action in gutting the original bill and replacing it with Obamacare constitute an “Amendment?”

Only if the penalty was “for raising Revenue” did the Origination Clause apply. Only if the Senate’s changes exceeded the scope of permissible “Amendment” (and thereby constituted an entirely new bill) did Obamacare unconstitutionally arise in the Senate.

In defending the law, the government argues that the penalty, even if the Supreme Court calls it a “tax,” was imposed for independent regulatory reasons, not to raise money. The government also argues that “gut and replace” is a permissible amendment procedure.

In my investigations, I’ve found—at least thus far—that the answer to the first question is a lot easier than the answer to the second.

As to the first question: It is clear that the financial penalty in Obamacare was adopted primarily to regulate the economy pursuant to the Commerce Power (Commerce Clause + Necessary and Proper Clause). If the penalty were valid as a regulatory measure, it would not be “for raising Revenue,” either under the Constitution’s original meaning or under Supreme Court precedent.

The problem for the government, however, is that in NFIB v. Sebelius the Supreme Court held that the penalty was NOT valid as regulatory measure because it exceeded Congress’s Commerce Power. The penalty’s sole constitutional justification was the revenue it could raise—estimated at $4 billion per year by 2017. (Recent revelations about the number of people who are spurning Obamacare-approved health insurance suggests this number may be far too low.)

In other words, the Obamacare penalty for not buying insurance is valid only as a revenue-raising measure, and the NFIB v. Sebelius decision compels the courts to treat it as such.

The second issue is whether the Senate’s action in gutting the original bill and replacing it with something else constituted an “Amendment.” If it was not, then Obamacare’s levies really arose in the Senate, and are unconstitutional.

This is a much harder question to answer. It requires first addressing a number of others:

*    What was the understanding of those who ratified the Constitution as to the scope of an amendment?

*    If the ratifiers’ understanding on this subject is not clearly ascertainable, then what was the original public meaning of the term “Amendment?” Answering this question requires going beyond the public discussion during the ratification debates and into sources such as 18th century dictionaries and treatises, and the records of contemporaneous legislatures—specifically of the British Parliament, the American colonial assemblies, and the legislatures of the newly independent states.

Previous treatments of these “originalist” questions in law journal articles are distinctly mediocre. This is a common problem because, as I have pointed out elsewhere, most legal scholars are ill-equipped for historical work or too agenda-driven to accomplish it reliably.

Anyway, the questions continue:

*    If the scope of “Amendment” requires a subject-matter connection to the original bill, then how much connection is necessary? The original H.R. 3590 was not about health care or health insurance at all. Does that mean that the Senate changes exceeded the scope of “Amendment?”

*    But the original H.R. 3590 was connected to revenue! It would have amended the Internal Revenue Code to create a tax credit. Is this sufficient?

*    If not, consider that the original H.R. 3590 not only helped a popular group (armed services homebuyers), but it also “paid for” their benefit by sticking it to an unpopular group (larger corporations). Specifically, the measure “accelerated” estimated corporate income taxes. Instead of larger corporations having to pay 100.25% of their taxes in advance, the original H.R. 3590 would have required them to pay 100.75% in advance. Of course, the corporations would have gotten their excess back eventually. But, as everyone in government knows, estimated tax “acceleration” is really a forced loan that makes cash flow to the government faster so as to create bookkeeping entries that cover other shortfalls. It is a financial stunt to enable politicians to effectively increase taxes by giving the government earlier use of citizens’ money, while enabling those politicians to claim they really didn’t raise taxes. So if this part of H.R. 3590 raised money, is this a sufficient connection with the Obamacare taxes to render Obamacare a mere “Amendment?”

I don’t know. But the investigation continues. Stay tuned.