Constitutional Considerations

Tossing A Few Legal Queries Into The 'Void'

By GEORGE F. WILL
Posted 06/25/2010 06:32 PM ET

Given Elena Kagan's aversion to "vapid and hollow" confirmation hearings devoid of "legal analysis," beginning Monday she might relish answering these questions:

• It would be naughty to ask you about litigation heading for the Supreme Court concerning this: Does Congress have the right, under its enumerated power to regulate interstate commerce, to punish the inactivity of not purchasing health insurance?

So, instead answer this harmless hypothetical: If Congress decides interstate commerce is substantially affected by the costs of obesity, may Congress require obese people to purchase participation in programs such as Weight Watchers? If not, why not?

• The government having decided that Chrysler's survival is an urgent national necessity, could it decide Cash for Clunkers is too indirect a subsidy and instead mandate that people buy Chrysler products?

• If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?

• Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?

• In Federalist 45, James Madison said: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite."

What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?

• Is it constitutional for Arizona to devote state resources to enforcing federal immigration laws?

• Is there anything novel about the Arizona law empowering police officers to act on a "reasonable suspicion" that someone encountered in the performance of the officers' duties might be in the country illegally?

• The Fifth Amendment mandates "just compensation" when government uses its eminent domain power to take private property for "public use." In its 2005 Kelo decision, the court said government can seize property for the "public use" of transferring it to wealthier private interests who will pay more taxes. Do you agree?

• Should proper respect for precedent prevent the court from reversing Kelo? If so, was the court wrong to undo Plessy v. Ferguson's 1896 ruling that segregating the races with "separate but equal" facilities is constitutional?

• In 1963, President John F. Kennedy said Congress should "make a commitment . . . to the proposition that race has no place in American life or law." Was he right?

• In 1964, Sen. Hubert Humphrey, a principal sponsor of that year's Civil Rights Act, denounced the "nightmarish propaganda" that the law would permit preferential treatment of an individual or group because of race or racial "imbalance" in employment. What happened?

• William Voegeli, contributing editor of the Claremont Review of Books, writes: "The astonishingly quick and complete transformation of the Civil Rights Act of 1964, from a law requiring all citizens be treated equally to a policy requiring they be treated unequally, is one of the most audacious bait-and-switch operations in American political history." Discuss.

• In a 2003 case affirming the constitutionality of racial preferences in law school admissions, Justice Sandra Day O'Connor said: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." If you are a sitting justice in 2028, do you expect to conclude that such preferences can no longer survive constitutional scrutiny because they no longer serve a compelling public interest?

• The president is morose about the court's Citizens United decision holding that the First Amendment, which says Congress shall make "no law" abridging freedom of speech, means no laws abridging a corporation's freedom to speak, including nonprofit advocacy groups such as the National Rifle Association and Sierra Club.

The court called it "censorship" for government "to command where a person may get his or her information or what distrusted source he or she may not hear." Agree?

• You have noted that the court often considers legislative motives when deciding First Amendment cases. Should the court consider legislators' motives if, in response to Citizens United, they impose new burdens on corporate speech?

• When incumbent legislators write laws restricting the quantity, content and timing of speech about legislative campaigns, are not their motives presumptively suspect?

Just wondering.

© 2010 Investor's Business Daily, Inc.

Our Constitutional Imperative

Federalism must not be abandoned

By Orrin Hatch and Gary Herbert

Published: Thursday, May 13, 2010 12:01 a.m. MDT

The price of liberty, President Andrew Jackson said as he left office in 1837, is eternal vigilance by the people. As Americans, we must always protect the fundamental ingredients of liberty, such as intrinsic limits on government powers and a careful division of those powers between the federal and state governments.

We are at a crucial crossroads in our country. All across this great nation we are seeing calls to rein in the power of the federal government and to reassert our rights, as states and as a people, guaranteed by the 10th Amendment to the U.S. Constitution.

The rights of the people appear to have been, at best, forgotten and, at worst, ignored during the recent debate over health care reform in Washington. And the people, through the states, are pushing back.

Utah is one of a growing list of states, now numbering at least 39, proposing legislation or constitutional amendments to resist various aspects of the proposed federal takeover of the health care system.

Today, Americans are revisiting the words of James Madison, who wrote that the federal government's powers are "few and defined" while those retained by the states are "numerous and indefinite."

We understand that some government is necessary for liberty to exist. But we also know that it must be limited for liberty to thrive. This careful balance, called federalism, is difficult to achieve, but critical to maintain.

We look to history for guidance. President Franklin D. Roosevelt, certainly no conservative, discussed legislative initiatives, including health insurance mandates, with Frances Perkins, his secretary of labor. As she would later tell it, the two agreed that federal legislation in this area would pose severe constitutional problems, undermine federal-state relationships, and was best pursued at the state level. Even though FDR oversaw a vast expansion of federal power, too many in Washington today lack even his respect for federalism.

Of course, the relationship between the states and the federal government today looks much different than it did when the Constitution was ratified or during FDR's presidency. Everything is more interconnected, interactive and interdependent. But we must not abandon the principle of federalism, even as we apply it in new and different ways.

On the one hand, it is permissible for the federal government to help with funding and support while the states develop and administer certain programs. On the other hand, it is impermissible for the federal government to commandeer states to administer federal programs.

The recently enacted health insurance reform law approaches and perhaps crosses that line. It requires states to pass legislation and use their own funds to establish and operate health benefit exchanges. If states fail to do so, the secretary of health and human services will step in and run the state exchanges for them.

Nowhere in the Constitution is Congress granted the right to mandate that Americans purchase health insurance, another requirement of the new legislation. The Constitution does allow states to require such coverage of their residents, as Massachusetts has done, but that is a matter for the individual states to debate at the state level.

Utah is already at the cutting edge of health care reform. The Utah Health Exchange has become a model for increased access, transparency and competition. The possibility that this new federal law might undo Utah's own reform efforts is an affront to the founding principles of our great nation.

In challenging times, we should follow the advice of this country's founders and find the way forward by "recurring to principles." Federalism is not optional. It is a constitutional imperative and a fundamental limitation on government power. The vigilance that is the price of liberty requires that all Americans recommit ourselves to this principle.

Orrin Hatch is Utah's senior senator. Gary Herbert is the governor of Utah.

Trying to Fix What You Don't Understand

The Gulf Spill, the Financial Crisis and Government Failure

Both Republicans and Democrats fail to see the limits of centralized regulation in a modern market economy.

By GERALD P. O'DRISCOLL JR.

The Gulf oil spill and the global financial crisis both demonstrate the failings of big government. Partisan politics obscures the linkage, with the consequence that each political party repeats the mistakes of the other as its turn to govern arrives.

First, consider the oil spill. BP and its contractors are surely responsible for the accident. They may also be responsible for a poor response. The nature and scope of legal culpability is yet to be determined. What is the government's role? Offshore drilling is a dangerous activity with potential undesirable consequences now actualized. For this reason, as we have learned, it is heavily regulated. The agency directly responsible for regulating the activity is the Minerals Management Service (MMS) of the Department of the Interior.

Government regulation is intended to protect the public interest against bad or irresponsible behavior by private parties. In the case of offshore drilling, the federal government has assumed the role of solving a collective action problem. Potentially all Americans benefit from the drilling, but those living in coastal areas suffer disproportionate harm from mishaps. The government theoretically negotiates on their behalf and establishes rules to protect them.

Obviously, regulation failed. By all accounts, MMS operated as a rubber stamp for BP. It is a striking example of regulatory capture: Agencies tasked with protecting the public interest come to identify with the regulated industry and protect its interests against that of the public. The result: Government fails to protect the public. That conclusion is precisely the same for the financial services industry.

Financial services have long been subject to detailed regulation by multiple agencies. In his book on the financial crisis, "Jimmy Stewart is Dead," Boston University Professor Laurence Kotlikoff counts over 115 regulatory agencies for financial services. If more hands in the pot helped, financial services would be in fine shape. Few believe such is the case.

Advocates of heavy regulation promise that risky behavior by banks can be controlled and limited by regulators. There are two major reasons such efforts fail. I have already discussed the first: regulatory capture.

The second source of regulatory failure is the knowledge problem identified by Nobel Laureate Friedrich Hayek. The knowledge required by regulators is dispersed throughout the industry and broader economy. For regulation to work, that dispersed knowledge must be centralized in the regulatory agency. To successfully accomplish this requires central planning of the industry, if not the economy. But the local knowledge of specific circumstances of time and place cannot be aggregated in one mind or agency. We know that is impossible, and that impossibility was the reason for the collapse of the Soviet Empire and the transformation of the Chinese economy.

Regulatory practice represents islands of central planning in otherwise decentralized market economies. If we add back in the problem of regulatory capture, then we get industries coddled and protected by government. When business and politics become intertwined we move from market economies to crony capitalism.

What is the missed lesson from all this? When President George W. Bush had his Katrina moment, the federal government's bumbling response was blamed on him, on the Republicans, and on conservatives. Now it is President Obama's turn. His administration's faltering response to the disaster in the Gulf is attributed to his personal failings, staff ineptitude, communication failures, etc. And, of course, the two administrations have shared responsibility for the poor handling of the financial crisis.

A big-government conservative administration failed in crisis, as has a big-government liberal administration. The regulatory state did not prevent excessive risk taking whether in financial services, nor perhaps in offshore oil drilling. Government response to crises once they occur is slow and inept. All this is not because either Republicans or Democrats are in power, but because big government doesn't work. It can't deliver on its promises. Big government overpromises and underdelivers. In reaching to do more, big government accomplishes less. That is not an ideological statement, but an empirical observation.

In the case of financial services, virtually all the proposed regulatory reform offers more of the same. Additional regulations will be added to existing ones without addressing why existing ones failed to prevent the crisis. The same process will likely happen with respect to offshore drilling.

Einstein famously defined insanity as the belief that, if we repeatedly do the same thing, we will eventually get a different result. The response to the financial crisis, as to others, is policy insanity.

University of Chicago law professor Richard Epstein has observed that we need simple rules for a complex world. The complexity of rules is self-defeating, because that complexity requires more knowledge than can be acquired. Brazil has a simple rule for directors of failed banks: They are personally liable. That concentrates the mind of directors on reining in risk-taking by management more effectively than would creating a systemic-risk regulator.

The Obama administration and Congress propose more of the same failed approach to regulation. Instead they should heed Hayek, who observed that "the curious task of economics is to demonstrate to men how little they really know about what they imagine they can design."

Mr. O'Driscoll is a senior fellow at the Cato Institute. He was formerly vice president at the Federal Reserve Bank of Dallas and later a vice president at Citigroup.

Copyright 2009 Dow Jones & Company, Inc.

Abandoning Our Heritage

Constitution "Optional"

Scooter Schaefer

Monday, June 07, 2010

In a few weeks Obama's judicial nominee Elena Kagan will face the Senate Judiciary Committee and the American people in her nomination process to serve on the Supreme Court. As members of both parties draw their battle lines and rehearse their talking points in preparation for the hearings, conservatives are missing a clear opportunity to activate the American people in opposition to a global activist who will bring a Constitution "optional" judicial philosophy to the High Court.

If fiscal irresponsibility on the part of the federal government launched the current Tea Party movement, then disregard for the Constitution has fueled its flames. After all, it was an act of civil disobedience in Boston Harbor that would ignite a fire in the colonies and decades later culminate into a newly formed nation with a Constitution that would protect against the very same tyranny which spawned the original Tea Party.

As an academic, Elena Kagan and many of her elitist colleagues have shown disregard for the principles by which our nation was founded, and the importance of a document intended to restrain government and protect the individual.

In 2006 as Dean of Harvard Law School, Kagan overhauled the curriculum to no longer mandate Constitutional Law as a requirement to graduate; instead, Constitutional Law would be relegated to optional elective status. According to a Harvard press release concerning changes made to the curriculum, "each student will take one of three specially crafted courses introducing global legal systems and concerns - Public International Law, International Economic Law, and Comparative Law."

In the same press release Kagan goes on to explain that changes made will allow students to address "fact-intensive problems as they arise in the world," and to reflect on the "assumptions and methods of contemporary U.S. law and the perspectives provided by other disciplines."

Translation: Kagan effectively altered the curriculum at Harvard Law School to focus on international comparative law and issues rather than the traditional Constitutional Law framework which is the basis of our legal system.

Inevitably, Kagan's defenders in academia will point out that the Constitution is applied throughout the curriculum at Harvard and any other school of law and is therefore not needed as a required course of study. However, if you apply the same line of logic to other fields of study, such as American Foreign Policy, or U.S. History, it is easy to understand the significance behind omitting 'American' and 'U.S.' from a course simply because it may be implied.

In the changes she implemented as dean, Kagan advocated the philosophical convergence of the policies and laws of our nation and that of others. And, if the narrative coming out of one of our nations most "prestigious" law schools sounds familiar, look no further than comments made by the President at the recent West Point graduation ceremony. "All hands are required to solve the world's newest threats: terrorism, the spread of nuclear weapons, climate change and feeding and caring for a growing population."

In the past year and a half we have seen a movement spread like wildfire, advocating the simple message of a return to common sense in government. Comparisons to other nations and "perspectives provided by other disciplines" are not needed to restore our government to the way our Founding Fathers intended. Instead we should adhere to the principles that have made our nation great; fiscal responsibility, free markets, individual liberty, and protection from government infringement into our lives, defined by the Constitution.

What the American people must understand is that the fight for restraint in government will not just be won in the halls of Congress, but also in our courts. As a practioner of the current administration and its policies, Kagan will bring to the bench a global perspective on our laws and policies, while applying the Constitution as "optional."

Copyright © 2010 Salem Web Network. All Rights Reserved.

It's Not Greek to Me

Slouching Towards Athens

The Obama agenda and the Europeanization of America. By ARTHUR C. BROOKS

Our friends across the Atlantic are fond of saying that Europeans work to live while Americans live to work. According to the data, they are basically right. Statistics from the Organization for Economic Cooperation and Development show that while the average Italian, for example, enjoys 42 days of vacation per year, the average American has 16.

A predictable corollary: Many Europeans also expect others to work so they can live. The International Social Survey Programme asked Americans and Europeans whether they believe "It is the responsibility of the government to reduce the differences in income between people with high incomes and those with low incomes." In virtually all of Western Europe more than 50% agree, and in many countries it is much higher—77% in Spain, whose redistributive economy is in shambles. Meanwhile, only 33% of Americans agree with income redistribution.

Simply put, Europeans have a much stronger taste for other people's money than we do. This is vividly illustrated by the recent protests in the U.S. and Greece.

Why are citizens rioting and striking in Greece? Despite the worst economic crisis in decades, labor unions and state functionaries demand that others pay for the early retirements, lifetime benefits and state pensions to which they feel entitled. In America, however, the tea partiers demonstrate not to get more from others, but rather against government growth, public debt, bailouts and a budget-busting government overhaul of the health-care industry.

In other words, the tea partiers are protesting against exactly what the Greeks are demanding. It is an example of American exceptionalism if there ever was one.

Instead of celebrating this ethical populism, however, many political leaders here denounced the legitimacy of the tea party protesters. "It's not really a grass-roots movement," House Speaker Nancy Pelosi claimed after the tax day tea party protests in April 2009. "It's 'astroturf' by some of the wealthiest people in America to keep the focus on tax cuts for the rich." Senate Majority Leader Harry Reid borrowed her metaphor to discredit the ObamaCare protests a few months later. Holding up a square of synthetic turf at a press conference last August, Mr. Reid declared that the town hall demonstrations were "about as phony as this grass."

Average Americans are not as cynical. According to a Rasmussen poll conducted less than a week after the 2009 tax day protests, more than half of Americans viewed the protests favorably. And a September 2009 Kaiser/Harvard/NPR survey found that 61% of those polled believed the ObamaCare protesters at the town hall meetings were mainly individual citizens coming together to express their views. Only 28% bought the idea they were mainly coordinated by health-care interest groups.

While the "astroturf" claims were laughable, the politicians peddling them may yet have the last laugh. For their policies—just as the tea partiers fear—promise to quietly turn today's principled protesters into the "me-first" rioters in Greece.

The increasing size of the federal work force is an early indication of what lies ahead. The Bureau of Labor Statistics reports that in the last year the federal government added 86,000 permanent (non-Census) jobs to the rolls. And high-paying jobs at that: The number of federal salaries over $100,000 per year has increased by nearly 50% since the beginning of the recession.

Today, the average federal worker earns 77% more than the average private-sector worker, according to a USA Today analysis of data from the federal Office of Personnel Management. To pay for bigger government, the private sector will bear a heavier tax burden far into the future, suppressing the innovation and entrepreneurship that creates growth and real opportunity, not to mention the revenue that pays for everything else in the first place.

If these trends are not reversed, it is hard to see how our culture of free enterprise will not change. More and more Americans, especially younger Americans, will grow accustomed to a system in which the government pays better wages, offers the best job protection, allows the earliest retirement, and guarantees the most lavish pensions. Against such competition, more and more young, would-be entrepreneurs will inevitably choose the safety and comfort of government employment—and do so with all the drive that is generally thought to be "good enough" for that kind of work.

What will happen as our increasing number of state employees confront a shrinking private-sector tax base? Just look to the streets of Athens.

Mr. Brooks is president of the American Enterprise Institute and author of "The Battle: How the Fight Between Free Enterprise and Big Government Will Shape America's Future," just released by Basic Books.Copyright 2009 Dow Jones & Company, Inc.