Tea Party Economics

Posted on Categories Business Regulation, Federalism, Political Processes & Rhetoric9 Comments on Tea Party Economics

Readers of this Blog know that I have a longstanding interest in the debate over the scope of the federal government’s power to regulate the economy under the Constitution.  I am also inclined to take the Tea Party Movement seriously as a political phenomenon rather than writing them off as a group of buffoons or extremists, unworthy of attention.  For that reason, I read with some interest Kate Zernike’s article in the New York Times  on October 2 that discussed the writers whose books are most often said comprise the intellectual foundation of the Tea Party movement. 

Taking pride of place among the “long-ago texts” highlighted in the article is Friedrich Hayek’s 1944 book The Road to Serfdom.  Hayek is often cited by the movement’s followers for his argument that a government that intervenes in the economy will inevitably intervene in every aspect of its citizen’s lives.  If one accepts this premise, it is easy to understand why members of the Tea Party Movement reacted with hostility to the Troubled Asset Recovery Program (TARP), health care reform, and the bailout of the domestic auto industry.  For Tea Party followers, these separate policies – when viewed together — comprise a centrally planned economy reminiscent of the Soviet Union’s infamous Five Year Plans. Continue reading “Tea Party Economics”

Perry v. Schwarzenegger and the Slippery Slope

Posted on Categories Constitutional Interpretation, Federalism5 Comments on Perry v. Schwarzenegger and the Slippery Slope

As just about everyone knows, yesterday a Northern District of California judge struck down California’s Proposition 8 as unconstitutional. There has been a tremendous amount of blog commentary on this already, much of it worth reading. (See Orin Kerr (here and here), Dave Hoffman, Eugene Volokh, Dale Carpenter, Howard Wasserman, Rick Hasen.) The one issue I want to comment on is what Perry means for the future of the constitutional treatment of same-sex marriages.

Many advocates for legal recognition of same-sex marriage are deeply worried by Perry. Dale Carpenter, for example, is concerned that the breadth of the arguments considered in Perry could lead to a sharply negative precedent if the case is reversed on appeal. Those fears are legitimate. An Equal Protection or Due Process argument mandating equal treatment for low-status individuals is what might be called “a nuclear bomb of a legal theory” — it applies everywhere, all at once, and obliterates legal distinctions meant to enforce low social status. The same applies, to a lesser extent, to arguments that the Full Faith and Credit Clause mandates recognition of valid same-sex marriages by every other state in the union. Courts might be hesitant to, so to speak, stop worrying and learn to love the bomb. Marched to the precipice too quickly, they might find some way to pull back from the brink.

If that happens, and if American society continues to develop tolerance for same-sex couples, will we be locked into sub-optimal constitutional doctrine? Not entirely. As I argue in my forthcoming article on this subject (in the Alabama Law Review), there is an escape valve. Continue reading “Perry v. Schwarzenegger and the Slippery Slope”

Best of the Blogs

Posted on Categories Civil Procedure, Federalism, Labor & Employment Law, U.S. Supreme CourtLeave a comment» on Best of the Blogs

Is American law too complex?  PrawfsBlawg featured an interesting exchange on this question last week.  Eric Johnson initiated the exchange with this post, in which he observed:

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it’s not there. It’s so large as to be beyond overwhelming.

The problem is this: Our system of justice is absurdly complex and time consuming.

. . .

There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.

In addition to a lively string of comments (including a couple by our own Rick Esenberg), Eric’s comments also prompted a thoughtful responsive post by Paul Horwitz.   Continue reading “Best of the Blogs”

The Constitutionality of Health Reform’s “Individual Mandate”

Posted on Categories Constitutional Interpretation, Federal Law & Legal System, Federalism, Health CareLeave a comment» on The Constitutionality of Health Reform’s “Individual Mandate”


As noted in my blog post last week (“The Beginning of Health Reform“), pushback against the federal Patient Protection and Affordable Care Act was swift.  Members of nearly 40 state legislatures have proposed legislation or constitutional amendments limiting or opposing certain provisions of the Act, with most of the proposals targeting the Act’s requirement that individuals have health insurance coverage or subject themselves to financial penalties (the “individual mandate”).  Virginia, Idaho, and Utah are the only states thus far to have enacted new statutes (each of which more or less prohibits compliance with any law that imposes a fine on an individual for declining to enter into a contract for health insurance coverage), and their validity is sure to be challenged in court on Supremacy Clause and other grounds.  Idaho has also passed a non-binding resolution “urging Congress to take action forthwith to amend the United States Constitution by adding a Twenty-eighth Amendment to provide that Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance program.”

Most dramatic, though—if drama is measured by the amount of media coverage generated—is the lawsuit initiated by the Attorney General of Florida and joined by 19 other state Attorneys General maintaining that several components of the health reform law violate Article I of and the Tenth Amendment to the U.S. Constitution.  The argument that is drawing the most attention concerns the constitutionality of the Act’s individual mandate.  Like the contention at the heart of the state proposals, the Florida lawsuit argues that the Act’s requirement that individuals have health insurance coverage or pay a tax penalty amounts to an unconstitutional mandate that cannot be upheld under the Constitution’s Commerce or Spending Clauses.

The lawsuit seems unlikely to ultimately succeed, given the procedural and substantive hurdles it has to clear.  Continue reading “The Constitutionality of Health Reform’s “Individual Mandate””

What Are The Core Constitutional Values Behind The Tea Party Movement?

Posted on Categories Constitutional Interpretation, Federalism, Health Care, Legal Scholarship, Political Processes & Rhetoric1 Comment on What Are The Core Constitutional Values Behind The Tea Party Movement?

I recently posted an article on SSRN entitled “Charters, Compacts and Tea Parties: The Decline and Resurrection of a Delegation View of the Constitution.”  You can download the article here.

The emergence of the Tea Party Movement as a political phenomenon has generated a great deal of media attention and punditry over the last year.  Most observers have concluded that those who self-identify as “tea partiers” comprise a loose amalgamation of libertarians, states’ rights advocates and opponents of government intervention in the free markets.  While most activists have a Republican voting record, the Movement appears to have arisen independent of the Republican Party.  Critics of the Bush Administration’s domestic spying activities stand shoulder to shoulder with skeptics of the Obama Administration’s health care reform efforts.  To the extent that Tea Party activists share one common political philosophy, that philosophy might best be described as “rage against the federal government.”

Liberals seem inclined to deny the existence of any intellectual content behind the Tea Party Movement, preferring to focus on the undeniable presence of some racists, militia members, and conspiracy theorists among the activists.  While it is safe to assume that, for some, anger at the federal government seems inextricably connected to the fact that an African-American is President, Juan Williams is correct when he identifies the core concerns of the Movement as non-racial.  Similarly, the “birthers” and other fringe elements in the Movement are merely piggy backing on a generalized anger against the federal government that does not derive from their parochial concerns.  Our nation’s public discourse would benefit greatly if conservative intellectuals did more to repudiate these fringe elements, much the way that William F. Buckley famously repudiated the John Birch Society in 1965, but the “anger industry” that profits off of cable television, books and political fundraising appeals is apparently loathe to alienate any of its prime consumers. Continue reading “What Are The Core Constitutional Values Behind The Tea Party Movement?”

Federalism, Free Markets, and Free Speech

Posted on Categories Business Regulation, Constitutional Interpretation, Corporate Law, Election Law, Federalism, First Amendment, Judges & Judicial Process, Legal History, U.S. Supreme Court11 Comments on Federalism, Free Markets, and Free Speech

2not even-handed justiceThe Supreme Court decision in Citizens United v. FEC strikes down as unconstitutional a federal law that prohibits corporations and unions from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of candidates for office.  The majority opinion, written by Justice Kennedy, ignores hundreds of years of Supreme Court history in interpreting the subjects of federalism, free markets, and free speech.  In its place, Justice Kennedy presents a textualist interpretation of the First Amendment that is divorced from any history or context.  Justice Kennedy engages in the sort of “faux originalism” (syn. “fake,” “artificial,” “false”) that has been criticized by Judge Richard Posner.  Kennedy places a historical glaze on his own personal values and policy preferences, and calls the result the “original understanding” of the First Amendment.

As such, Citizens United v. FEC stands with District of Columbia v. Heller, the Second Amendment case decided in 2008, as an example of the Justices slapping the “originalist” label on a profoundly un-originalist interpretation of the Bill of Rights.  It is appropriate to view the two cases together.  Both are exercises in raw political power employed in order to accomplish conservative objectives.  Both ignore hundreds of years of understanding about the meaning of the relevant constitutional provisions, in favor of a meaning derived by taking the words of the Amendment out of context.  And both embrace interpretations of the constitutional Amendment at issue that are inconsistent with the meaning ascribed to that same language by the intellectual father of originalism, Robert Bork.  In the same way that modern scholars deride the “Lochner era” as a misguided period in American Constitutional Law, I believe that future scholars and judges will recognize and reject the intellectual dishonesty of the “Heller era.” Continue reading “Federalism, Free Markets, and Free Speech”

Are There Any Tories On Tory Hill?

Posted on Categories Federalism, Media & Journalism, Political Processes & Rhetoric1 Comment on Are There Any Tories On Tory Hill?

fairlie3In a few months, the Marquette University Law School community will pack up and move to its new building, located on Tory Hill.  Perhaps this is a good time to consider whether any actual “Tories” will reside there.  This is doubtful, because American political thought does not have a history of embracing the Tory philosophy.  Nonetheless, in today’s political climate, we all might benefit from hearing an occasional Tory point of view.    

The Republican Party in America currently stands at a crossroads.  There has been a great deal of debate within the political punditry concerning whether the Tea Party movement is a positive or a negative development for the Republican Party.  Some observers have noted the friction between the rage being expressed by Tea Party activists at the government bailout of the financial markets and at the expansion of government regulation of the health care sector, on the one hand, and the more business and government friendly track record of establishment Republican officials on the other.  This friction was most evident last month, when conservative activists rejected the establishment candidate put forth by party leaders for the 23rd Congressional District in New York, split the Republican vote, and delivered the seat to a Democrat.   

Similarly, Sarah Palin’s book tour has engendered speculation about her future political plans.  Some have applauded her anti-Washington and anti-big government philosophy as reflective of the public‘s current attitudes.  In the wake of the Administration of President George W. Bush, who spoke like a “States’ Rights” Texas governor while simultaneously expanding the federal government in the name of education and national security, many conservatives look to the former Alaska governor as someone who might actually govern in accord with a political philosophy that promotes decentralized government.  However, other observers have questioned whether Sarah Palin’s appeal extends beyond regional and rural areas of the country.

Democrats have their own problems. Continue reading “Are There Any Tories On Tory Hill?”

Federalism and Criminal Law

Posted on Categories Criminal Law & Process, Federal Sentencing, Federalism, U.S. Supreme Court1 Comment on Federalism and Criminal Law

mapThis is the fourth in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.

Habeas corpus presents the classic federalism problem in criminal law: how can federal courts overturn flawed state-court judgments while maintaining due respect for state sovereignty and the autonomy of state criminal-justice systems?  But federalism issues can also appear in criminal cases that originate in federal court.  In its new term, the Supreme Court has at least two such cases.

First, in United States v. Johnson, the Court will consider whether a battery conviction in Florida state court counts as a violent crime for purposes of the Armed Career Criminal Act, a federal sentencing statute.   (I have posted several times about ACCA in the past year, most recently here.)  Although “battery” normally evokes images of serious violent crime, Florida law defines battery so that it includes any nonconsensual touching, regardless of risk of injury.  For that reason, the Florida Supreme Court has already ruled that battery is not a violent crime for state-law purposes.  Thus, in Johnson, the United States Supreme Court is confronted with a question of whether it should defer to state-court characterizations of state crimes for purposes of implementing a federal statute.

Second, in United States v. Weyrauch, the Court must decide whether a state official can be convicted of honest-services fraud based on a conflict of interest that did not violate state law.  (This is one of three new cases in which the Court will consider various dimensions of the federal crime of honest-services fraud.)  Continue reading “Federalism and Criminal Law”

Searching for Negative Space in the Constitution

Posted on Categories Constitutional Interpretation, Federalism, Judges & Judicial Process, Legal History, U.S. Supreme Court3 Comments on Searching for Negative Space in the Constitution

Escher011Some people dislike the game of soccer.  They observe the players running around on the field and it all seems like random chaos.  Soccer aficionados, however, are not focusing on the players.  They are watching the spaces in between the players.  These empty spaces ebb and flow, like waves in the ocean, creating momentary opportunities for the attacking side.

Some people dislike jazz.  To them, the melody of the song gets lost in a blizzard of noise.  Jazz aficionados hear something different.  They are listening to what the musicians do in the spaces in between the notes of the melody.

The United States Constitution creates a positive space for government.  The federal government is delegated specific powers.  The governments of the states retain those powers not delegated to the federal government or otherwise retained by the people.

However, the United States Constitution also creates negative space for government.  What happens when a changing world, changing social values, or new technologies cause the public to demand an expansion of government into spaces that fall in neither the delegated powers of the federal government nor the traditional realm of the states?  Typically in our nation’s history, this has occurred in response to a crisis that implicates a national economic interest or a national security interest, making reliance on the individual state governments for solutions inadequate.  Examples would include the Great Depression and the response to the September 11 attacks.  In these situations, the federal government rushes in to fill the negative space, despite the fact that a strict reading of the Constitution does not provide for the federal authority to do so. Continue reading “Searching for Negative Space in the Constitution”

A Republican Form of Government

Posted on Categories Constitutional Interpretation, Federalism, Legal History, U.S. Supreme Court11 Comments on A Republican Form of Government

King-George-III-xx-Allan-RamsayOn September 17, I participated in the Constitution Day program at the Law School.  All of the presenters were asked to discuss one part of the United States Constitution that is often overlooked.  My choice was the “republican form of government” clause, Article IV Section 4, which reads as follows: “The United States shall guarantee to every state in this Union a Republican Form of Government . . .  .”   

To call this clause of the Constitution “overlooked” is an understatement.  The authors of the Federalist Papers spent little or no time discussing the meaning of this clause.  The Supreme Court, when asked to interpret this clause, has generally admitted that it doesn’t have the slightest idea what it means—with the consequence that the Court has rendered the clause irrelevant and left it devoid of meaning.  This is a shame because, properly understood, I believe that this clause is one of the most important in the Constitution.

The federal government guarantees every state a Republican form of government.  What does the word “republican” mean?   It certainly does not refer to a specific political party.  Political parties did not even exist in 1789.

Today’s school children are generally taught that the clause is intended to guarantee that state governments use the mechanics of representative democracy over the mechanics of direct democracy.  This interpretation is incorrect.  While the Framers often wrote of the benefits of a political system whereby voters elected representatives who would make important decisions on their behalf, especially in instances where the geographic territory to be governed was large, the Framers never expressed the opinion that the direct exercise of democracy by the people should be prohibited.

Indeed, this incorrect interpretation of the clause is dangerous because it has led some observers to question the constitutionality of state-wide voter initiatives altogether, such as the ones that regularly go before the voters in California.  These types of initiatives may be unwise as a means of using direct democracy to determine the policies of state government.  But the use of state-wide initiatives of this type is certainly constitutional.

So if the “Republican form of government” clause does not prohibit the use of direct democracy as a means of state government, what is its purpose?  Simply stated, the clause prohibits the people of any state in the Union from amending their state constitution in order to adopt a monarchy or an aristocracy. Continue reading “A Republican Form of Government”

A Good Crisis and an Opportunity: The Lessons of Catholic Social Teaching

Posted on Categories Federalism, Religion & Law7 Comments on A Good Crisis and an Opportunity: The Lessons of Catholic Social Teaching

In conjunction with some papers that I am completing, I have been thinking a lot about the Catholic notion of subsidiarity and what how it may inform our thinking about proposed expansions of the state in response to various “crises,” e.g., the financial seizure, global warming and perceived flaws in the delivery of health care.

Subsidiarity tells us that a “higher order” of authority should not do what individuals or a “lesser order” can do for themselves. Thus, the argument might proceed, the federal government should not do what a state goverment could do. Government should not do what voluntary mediating institutions can do.

Conservatives often advance subsidiarity as a justification for limited government and it often is. But it’s not that simple either.  Continue reading “A Good Crisis and an Opportunity: The Lessons of Catholic Social Teaching”

McCormick on the Persistence of Ex Parte Young

Posted on Categories Federal Law & Legal System, Federalism, Speakers at MarquetteLeave a comment» on McCormick on the Persistence of Ex Parte Young

The faculty at Marquette Law School welcomed Professor Marcia McCormick of the Samford University’s Cumberland School of Law to a faculty workshop this past Tuesday.  Professor McCormick, who focuses on the law of federal courts and employment discrimination, among other areas, discussed her new paper on the persistence of the case of Ex Parte Young in the face of the Federalism Revolution of the last two decades or so.

In her presentation, Professor McCormcick described the large number of U.S. Supreme Court decisions in the last twenty-five years that have touched on the relationship between the federal government and the states. In this time, the Court seems to have substantially limited the power of the federal government and expanded that of the states, as many Commerce Clause, Tenth Amendment, and Eleventh Amendment cases suggest.

She also maintained that despite what were seen by many to be revolutionary shifts, two doctrines that provide great power to the federal government seem to have survived so far with little or no change: Congress’ power under the Spending Clause to require states to engage in or refrain from engaging in certain conduct; and the federal courts’ power under Ex Parte Young to hear suits by private parties to force state officials to follow federal law, including laws created under the Spending Clause. The combination of these two doctrines provides for quite a bit of federal power, she argued, and it is the extent of that power which makes the continued survival of the doctrines so surprising.

Professor McCormick then explored the extent of power the federal courts and Congress can exercise over the states through the use of those combined doctrines and suggested some reasons the Court has not removed that power.  In this vein, she argued that it was likely that the Court sees this limited federal power as a necessary check on the states to ensure the supremacy of federal law, to maximize the efficient use of both federal and state power, and to maximize accountability and the rule of law for both the states and federal government.

A lively question and answer session followed Professor McCormick’s talk.   I have it on good authority that Professor McCormick’s favorite culinary adventure involved Kopp’s Custard in Greenfield.

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