There has been a lot of agitation and, predictably, litigation over the President’s firm intent to whip “sanctuary cities” into line. The general tenor of the online commentary has been “Federalism Lives!” exultation, from Left (Jeffrey Rosen) to Libertarian (my colleague Ilya Somin, whose post links to like-minded writers). Courtesy of the Rehnquist-Roberts Court’s constitutional doctrines on federal funding and “commandeering,” the chorus chimes, the President cannot do what he has proposed to do by executive order—yank federal funds from non-cooperative jurisdictions.
For reasons I’ll explain at somewhat painful length, it’s not at all certain he can. The “let’s hear it for federalism” folks may yet be right—but for somewhat different reasons than they think.
In 1942, deciding the case of Wickard v. Filburn, the U.S. Supreme Court deemed the wheat grown by an Ohio farmer purely for his own use and consumption—not for sale—to “exert a substantial effect on interstate commerce.” This infamous decision led many to conclude that the scope of Congress’s authority under the Commerce Clause is essentially unlimited.
Now that understanding may be upended by a tiny, blind arachnid known as the “Bone Cave harvestman” (scientific name: Texella reyesi). This cave-dwelling invertebrate, which resembles a spider, has been included by the U.S. Fish and Wildlife Service on the Endangered Species list since 1988. Pursuant to the Endangered Species Act and its enabling regulations, the “habitats” of endangered species cannot be modified or “degraded” without a federal permit.
In House of Representatives v. Burwell, yet another big case arising over the Affordable Care Act, U.S. District Judge Rosemary Collyer has ruled that the administration’s implementation of the Act’s subsidy provisions violates the Constitution. Lots of fun here; let’s start with the basics.
The judiciary should strike down only laws that clearly violate the meaning of Constitution. For this reason, Jack Balkin’s project of Living Originalism is fundamentally flawed at least as to the judiciary, because he believes that judges have substantial discretion to construct the Constitution, even when the semantic meaning is not clear. But it does not follow that the judiciary cannot vigorously discover and enforce the meaning of provisions that might seem indeterminate to a layperson.
Judges have many tools to clarify the meaning of provisions that may seem vague, opaque, or ambiguous. The Constitution was not created ex nihilo but against a background of legal methods that help make legal meanings more precise. To decline to deploy these legal methods is to discard a valuable portion of our traditional science of law. Judges are simultaneously empowered and constrained by these methods.
As I have argued, this view of judicial duty had overwhelming support in the founding era. For instance, James Iredell, one of the first Supreme Court Justices, affirmed that judges have a duty of clarity before invalidating legislation under a constitution, whether state of federal. But he also made clear that judges use “every consideration” in forming a judgment as the meaning of the Constitution, even if this process proved “difficult.”
Justice Roberts provided an example of this process in NFIB v. Sebelius in his interpretation of the Commerce Clause.
In response to: In Defense of the Classical Liberal Constitution
Recently, I heard an observation about liberals and conservatives that rang true to me: Modern liberals tend to view themselves as freethinkers no matter how rigidly they adhere to liberal orthodoxy. Modern conservatives often display the opposite vice, imagining they speak for the average citizen even when election returns contradict that belief. One consequence is that many conservatives think of themselves as zealous advocates both of democracy and of limited government as envisioned by 18th century classical liberals. Until recently at least, they have often ignored the tension between the two. Richard Epstein’s wide-ranging The Classical Liberal Constitution: The Uncertain Quest…
I’m terribly sorry. I seem to have come in late. I missed the part where the classical liberal gets to write the constitution. I know that a good many classical liberals, including my friend Richard, have offered their thoughts on the subject, but that’s not how I understand constitutions to be made. Sir Lewis Namier thought…
Across the conservative legal movement, there is a reassessment of the principles that have guided legal conservatives since the end of the Warren Court. Ideas that were once orthodoxy are now open to question. At the level of doctrine, the movement’s longstanding defense of Chevron has been replaced with the deep unease evinced by the…
I should like to thank my three commentators for their observations on my lead essay. Those remarks by Gail Heriot (my former student, I am proud to say) and Joel Alicea are decidedly in the friendly camp, and thus need little response. The comment by my friend Frank Buckley shows a good deal of Canadian…
Apologies for the prolonged blogging hiatus. I’m not dead yet, just snowed under—I’ll resume my regular blogging at the nearest occasion. Herewith a forthcoming law review piece on the “Medicaid ruling” of NFIB v. Sebelius. The gist of it: NFIB didn’t really do very much about the horrendous economic incentives that drive the program. “Not very much” doesn’t mean “nothing”: on the margin, the ruling may have increased some states’ willingness to forego the “opportunity” to expand the program even further; and in the short term it is an opportunity. To illustrate: in my home state of Virginia, newly elected Governor McAuliffe promised to finance big road-building…
Last year’s Supreme Court decision on the constitutionality of the Affordable Care Act was one of the most controversial cases in American history. In NFIB v. Sebelius, a narrow 5-4 ruling, the Court upheld the ACA’s individual health insurance mandate on the grounds that it was a constitutionally permissible tax, but rejected the federal government’s central arguments in defense of the mandate: the claim that it was authorized by Congress’ powers under the Commerce Clause and the Necessary and Proper Clause. The mandate, which requires most Americans to purchase government-approved health insurance by 2014, was the central focus of challenges to the constitutionality of “Obamacare” mounted by 28 state governments and numerous private parties.
Harvard Law Professor Einer Elhauge’s book Obamacare on Trial is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions.