Archive for the 'supreme court' Category

Bennett-Burr “Bipartisanship” = Yet Another Federal Power Grab

Posted by on Jan 01 2014 | congress, Constitutional History, Constitutional Law, Economics, federalism, Growth of Government, Health Care, Natelson Rob', obamacare, Op-eds, Rob Natelson, supreme court, Tenth Amendment, U.S. Constitution

When politicians start talking about “bi-partisan cooperation,” smart citizens get nervous. It usually means another transfer of freedom and taxes to the federal government at the expense of individuals, families, localities, and states.

Case in point: a Denver Post op-ed by two U.S. Senators (or their staffs) on their latest “bipartisan” deal. The Senators are Michael Bennett (D.-Colo.) and Richard Burr (R.-N.C.). The op-ed is pure political blather, a haze of almost incomprehensible feel-good rhetoric. But the upshot is this: The two distinguished solons are very proud of themselves for managing yet another transfer of authority from the states to the federal government.

You can read the op-ed here. As you can see, it is filled with mind-deadening phrases refined by pollsters and focus group research: “we have worked with,” “bipartisan,” “ensure the safety,” “stakeholders,” “pragmatism and hard work,” etc., etc.

As for the law itself, it has the kind of title we have come to expect from Congress in recent years: The Drug Quality and Security Act. (Doesn’t that title make you feel good?) Of course, many of these labels have about as much correspondence to the real world as the “Patient Protection and Affordable Care Act.”

The text of the measure is almost impossible for anyone without legal training to understand. (You can see for yourself here.) Essentially, however, it transfers to the federal government areas of drug compounding and distribution traditionally controlled by the states. It imposes new obligations, licenses, and/or paperwork on manufacturers, repackagers, wholesalers, and your local pharmacy. It takes major steps toward federal control of our state pharmacy boards, and restricts state regulatory choices in the areas it covers.

The bill is also about revenue: It authorizes the federal government to collect various new “fees.” (I put the word in quotation marks because those “fees” are really taxes.)

Like the op-ed, the text of the law is filled with mind-numbing, and sometimes deceptive, language. Consider this provision:

Nothing in this section shall be construed to preempt State requirements related to the distribution of prescription drugs if such requirements are not related to product tracing as described in subsection (a) or wholesale distributor and third-party logistics provider licensure as described in subsection (b) applicable under section 503(e) (as amended by the Drug Supply Chain Security Act) or this subchapter (or regulations issued thereunder).

At first, you might think the bill leaves state regulations in effect. But look closer: The provision really is about where federal law does preempt: “requirements . . . related to product tracing . . .. [and] wholesale distributor and third-party logistics provider licensure.” Another passage makes it clear that much state flexibility is gone:

Beginning on the date of enactment of the Drug Supply Chain Security Act, no State or political subdivision of a State may establish or continue any standards, requirements, or regulations with respect to wholesale prescription drug distributor or third-party logistics provider licensure that are inconsistent with, less stringent than, directly related to, or covered by the standards and requirements applicable under section 503(e).

The measure does not set forth its constitutional justification. In other words, it does not cite any of Congress’s enumerated powers as the basis for the authority it claims. Occasional mentions of “commerce” suggest that it relies on the Constitution’s much-abused grant of power to “regulate Commerce . . . among the several States.” In fact, however, the bill sweeps deeply into in-state commerce and into activities that really are not “commerce” at all.

The op-ed touts the bill’s “strong [meaning "intrusive"], uniform” [meaning "centralized"] standards. But the Constitution limited congressional powers precisely to protect us from too many centralized standards. The federalism created by our Constitution is about local control, responsiveness to local preferences, better government, diversity, and the ability of each state to learn from the experience of others. Moreover, as the Supreme Court has pointed out repeatedly, federalism is also about fracturing power to preserve freedom.

Our Founders and generations of Americans have concluded that human freedom and the other benefits of federalism are worth the occasional inconvenience arising from lack of uniformity. This should be particularly true today, when technology has reduced both the benefits of uniformity and the costs of diversity.

“The Drug Quality and Security Act,” however, appears to have been the product of one of those classic deals among politicians and lobbyists. The two Senators assure us that all the “stakeholders” (i.e., groups with lobbyists) were consulted.

But were you?

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How a Conspiracy Cracked a Monopoly

Posted by on Dec 01 2013 | Constitutional Law, Constitutional Theory, federalism, Health Care, health control law, Individual Mandate, Internet, Law schools, Legal professor, Natelson Rob', obamacare, Popular Constitutionalism, Rob Natelson, Spending Clause, supreme court, Taxing and Spending Clause, Tenth Amendment, U.S. Constitution

Anyone interested in the constitutional debate over the “Affordable Care Act” should pick up a copy of the new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case.

This “conspiracy” was not a political plot or an illegal combination. Rather, it is one of the nation’s two top constitutional law websites—a blog called the Volokh Conspiracy, founded by UCLA law professor Gene Volokh.

The book is about more than constitutional arguments over Obamacare. It is also about the cracking of a monopoly (or more precisely an oligopoly): the grip on constitutional discourse by a relatively small, and overwhelmingly liberal, cohort of professors who teach at certain elite law schools. These schools include the University of Michigan, Columbia, the University of Chicago—and most notably Harvard and Yale.

Faculty at elite law schools tend to dominate constitutional discourse for a number of reasons. Their prestige attracts a disproportionate amount of legal talent—bright students who later take influential positions as judges, advocates, and policymakers. (Disclosure: I was admitted to several of these institutions, but nevertheless elected to attend Cornell Law School, which is considered very good but not in the “top ten.”) The mainstream media seeks out these professors, largely to the exclusion of other legal experts.

The elite professors also dominate, indirectly, the highly influential law journals published by their own law schools. These journals are edited by law students, who lack the knowledge necessary to measure the quality of a submitted article. Hence, in deciding whether to publish a submission they often rely on the attitudes of their own faculty and/or where the article’s author teaches or attended law school. My own publication career offers two (negative) illustrations of the monopoly’s methods: (1) As a student I resigned from from my own law review in disgust because the editorial board, in imitation of the elite journals, was running the review with a leftist agenda, and (2) as a law professor, I saw all my earlier constitutional articles—including those that ultimately proved most influential—uniformly rejected by the Harvard-Yale axis.

When the Obamacare law was first challenged in court, the Harvard-Yale axis pronounced it “obviously” constitutional. The six authors of this book dared to disagree, and most of the book consists of their postings. In addition to the Independence Institute’s own Dave Kopel, the authors include five full-time law professors, none of whom work at Harvard or Yale. They are Randy Barnett of Georgetown, Jonathan Adler of Case Western, David Bernstein and Ilya Somin of George Mason, and Orin Kerr of George Washington University. All lean libertarian except Kerr; his dissents add spice to the discussion.

Of course, these authors ultimately were vindicated. The Supreme Court’s decision to uphold the individual insurance mandate as a “tax” was a 5-4 squeaker. The Court also held that the mandate was outside the Commerce Clause and the Necessary and Proper Clause, and that the Obamacare Medicaid expansion was partly unconstitutional. As you make your way through the book, you can see how the winning arguments evolved. My favorite was the realization that the Supreme Court’s “substantial effects” test is a (mis-) application not of the Commerce Clause but of the Necessary and Proper Clause.

At the end of the volume is a section called “Postscript and Concluding Thoughts.” It encompasses six original essays in which the authors discuss the Obamacare case and its outcome. Probably the longest of these is Dave Kopel’s. I personally found it most interesting because it provides historical context and tells the story of the Independence Institute’s participation in the case.

A Conspiracy Against Obamacare is published by Palgrave MacMillan and edited by the Cato Institute’s Trever Burrus. Paul Clement, the former U.S. Solicitor General who argued the case against Obamacare in the Supreme Court, has written an engaging Foreward.

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Does the Supremacy Clause mean that the federal government always wins?

Posted by on Oct 02 2012 | Constitutional Law, Criminal Procedure, federalism, Habeas, supreme court

Last week, I filed an amicus brief on behalf of petitions for certiorari in Chafee v. United States and Pleau v. United States. These related cases could be among the most important federalism cases before the Court this term. The amici are the Cato Institute and the Independence Institute.

The State of Rhode Island and the federal government are fighting for custody of Jason Pleau, who is accused of perpetrating a murder during the course of a bank robbery. Rhode Island got him first, by revoking his parole for previous crimes. Pleau has offered to plead guilty in Rhode Island state court, and receive a sentence of life without parole for the murder/robbery. Although Pleau’s robbery of the bank’s night depository involves no particularly strong federal interest (such as the murder of a federal officer), the U.S. Attorney for Rhode Island wants to prosecute Pleau in federal court, and has stated that capital punishment may be sought.

Over four decades ago, the States entered into an interstate compact, the Interstate Agreement on Detainers Act (IADA). The Act provides the procedures for the temporary transfer of a prisoner from one state to another state, for criminal prosecution in the second state. Congress liked IADA so much that it not only gave permission for the compact, it also enacted IADA as a federal statute, and made the U.S. a party to the compact. So under IADA, the U.S. functions just like any other “sending” or “receiving” state.

The U.S. Attorney filed a detainer under IADA, to obtain temporary custody of Pleau. IADA explicitly provides that the Governor of the sending state has an unlimited right to refuse to transfer a prisoner. Rhode Island Governor Lincoln Chafee exercised this right. Because Rhode Island does not have the death penalty, Chafee believes that it would be contrary to Rhode Island public policy for Pleau to be subject to capital punishment for a crime perpetrated in Rhode Island, by a Rhode Island citizen, against another Rhode Island citizen.

Having been rejected under IADA, the U.S. Attorney then sought to obtain Pleau by asking a federal district court to issue a writ of habeas corpus ad prosequendum. This common law writ is used by a court to obtain a prisoner for prosecution, and it is implicitly recognized in the 1948 federal habeas corpus statute.

Lower courts split on whether the ad prosequendum writ could be used to evade IADA. Rhode Island lost in federal district court, won 2-1 before a First Circuit panel, and then lost 3-2 before the First Circuit en banc. What made the case of particular interest to Cato and the Independence Institute was the en banc majority’s casual use of the Supremacy Clause as a trump card automatically resulting in a win for the federal government.

The National Governors Association filed an amicus brief on behalf of Governor Chafee before the en banc panel; the NGA argued vigorously against the U.S. Attorney’s theory that the Supremacy Clause can override a valid compact between the States and the federal government. The NGA argued that this interpretation makes all federal/state compacts into worthless scraps of paper, as far as federal adherence to the compact is concerned.

Although the Solicitor General initially declined to respond to the cert. petitions by Chafee and Pleau, the Supreme Court has requested a response from the SG, which should be filed later this month.

The Cato Institute’s write-up of the case is here. Scotusblog’s collection of the various briefs is here, including the cert. petition amicus briefs of the National Governor’s Association and the Rhode Island ACLU. (Note that this is for docket number 12-223, the Chafee case. The related case of Pleau is 12-230, which is linked from the Scotusblog page for Chafee.) Below is the summary of argument from my amicus brief:

The First Circuit’s decision violates Supreme Court teachings about the relationship between habeas corpus writs and state sovereignty, as explicated by Chief Justice Marshall in Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807), and by Chief Justice Taft in Ponzi v. Fessenden, 258 U.S. 254 (1922). More fundamentally, the First Circuit misuses the Supremacy Clause to make it an absolute trump card to defeat any state claim. This is not, and never has been, the meaning of the Supremacy Clause.

The decision below mangles the Supreme Court’s major case about the Interstate Agreement on Detainers Act, United States v. Mauro, 436 U.S. 340 (1977). Westlaw characterizes the First Circuit’s decision as the “most negative” of the more than 600 lower court cases applying Mauro. The decision below does not merely misread Mauro, but instead chops quotes and inverts language so as to turn Mauro into the opposite of what Mauro actually said.

There is no evidence, let alone an “unmistakably clear statement,” that any act of Congress, including the 1789 and 1948 habeas corpus statutes, was intended to abrogate state sovereignty, including the sovereign right of Governors to refuse a writ of habeas corpus ad prosequendum.

The First Circuit grants unauthorized additional power (indeed, statutorily forbidden power) to the federal government, which makes it imperative that this Court grant certiorari to protect our constitutional system of dual sovereignty.

Thanks to my fine summer interns, Christopher Ferraro and Rachel Maxam, of Denver University Sturm College of Law, for their work on this brief.

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The Bar Review version of NFIB v. Sebelius

Posted by on Jul 10 2012 | Commerce Clause, Constitutional Law, Individual Mandate, Originalism, supreme court, Taxing and Spending Clause

Over at Scotusblog, I present the legal rules of NFIB v. Sebelius, as they might appear in a bar review outline, or in a student study aid for a Constitutional Law I class.

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VIDEO: Rob Natelson’s Health Care Rally Speech

Posted by on Jul 05 2012 | Health Care, health control law, obama, obamacare, PPC, supreme court, U.S. Constitution

In case you missed the Hands of my Health Care rally at the state capitol last week, we’ve got a sample of what went down on behalf of health care freedom. In this video, Constitutional scholar and Independence Institute senior fellow Rob Natelson shares his thoughts on the Supreme Courts decision to uphold the individual mandate as a “tax.” He calls the reasoning, “sophistry.” Heh. Go get ‘em Rob!



Extra special thanks to Ari Armstrong for filming Rob and putting it on YouTube.

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Next step: Repeal the individual mandate because it is unconstitutional

Posted by on Jun 29 2012 | congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, supreme court, Taxes, Taxing and Spending Clause, Uncategorized

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

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Is the individual mandate a “tax” according to the original meaning?

Posted by on Jun 29 2012 | Constitutional History, Constitutional Law, Individual Mandate, Originalism, supreme court, Taxing and Spending Clause

Absolutely not. Rob Natelson explains why in this 27 minute podcast from iVoices.org.

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NFIB as Marbury

Posted by on Jun 29 2012 | Constitutional History, Constitutional Law, federalism, Individual Mandate, Politics, Spending Clause, supreme court, Taxing and Spending Clause, Unconstitutional Conditions

My article yesterday for Scotusblog discussed the tremendous importance of the Court’s 7-2 use of the non-coercion rule to limit Spending Clause violations of State sovereignty and independence. The rule has been around ever since Steward Machine Company v. Davis (1937), but NFIB v. Sebelius is the first decision by any federal court to find that a conditional congressional grant violates the rule.

The folks who think that the “evolving Constitution” completed its evolution in 1937-42, and that everything the Court did during those years must be applied today with the broadest possible reading, should be especially pleased with the NFIB Court’s vigorous enforcement of a very important New Deal precedent.

My essay argues that the application of the non-coercion rule, as well as the  application of the doctrine of incidental powers for the Necessary and Proper Clause, are among the many elements of the Roberts opinion whose significance approaches that of some of the most important opinions by Chief Justice Marshall.

Although we do not know Chief Justice Roberts’ motives, I suggestion a comparison of NFIB to Marbury v. Madison: adroitly escaping from a partisan assault on the Court itself, the opinion moves constitutional law very far in the opposite of the direction favored by partisan assaulters–and does so in a way that leaves the partisan assaulters unable to use the case in their attacks on the Court.

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Kopel Explains Obamcare Decision on Devil’s Advocate

Posted by on Jun 29 2012 | Constitutional Law, Idiot Box (TV Show), PPC, supreme court

Looking forward to a Friday night full of passion, suspense and intrigue? C’mon, we all know that ‘aint going to happen. So go ahead and find the sweet spot on the couch and tune into the Independence Institute’s public affairs tv show Devil’s Advocate as host Jon Caldara is joined by Dave Kopel, constitutional law professor and attorney of record for two (count ‘em, two) Independence Institute amicus briefs in the Obamacare Supreme Court case, to dissect and explain the court’s rulings on the controversial health care law. That’s tonight at 8:30 PM on Colorado Public Television 12.

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Georgia-Pacific West v NEDC: a good case for certiorari

Posted by on Jun 20 2012 | Administrative Law, Environment, supreme court, Uncategorized

Court-watchers are wondering if Thursday, June 21, will see the release of Supreme Court rulings on Obamacare or Arizona’s laws against illegal aliens. There’s another important decision that the Court almost certainly make on Thursday: whether to grant certiorari in Georgia-Pacific West v. Northwest Environment Defense Center.  (All the relevant documents are here, on Scotusblog.) Jonathan Adler blogged about it earlier today.

The Georgia-Pacific case involves a complex question of environmental law and regulatory deference, but its economic impact is enormous. In short: the federal Clean Water Act requires that most types of “point source” discharges of pollutants into waters can be allowed if the point source has discharge permit. A classic point source is a sewage discharge pipe from a factory or a municipality, that discharges into a river.

Federal law has separate controls for “non-point source” discharges of pollutants into waters. For example, if pesticides that are sprayed on a golf course run off into a river, that would be a non-point source of water pollution. In practice, most non-point sources involve farming, ranching, forestry and so on. The EPA has particular regulations for run off from such sites.

Now suppose that someone builds a logging road. There road itself is not a “pollution.” in any normal sense of the word. It’s just made of natural dirt and travel. Rainwater falls on the road, and runs off the road. For many roads, some of the rainwater run-off might eventually end up in a ditch or culvert, and the ditch or culvert might lead to a stream or lake. (The ditch or culvert helps reduce erosion.) Is the the ditch or culvert therefore a “point source” that requires a Clean Water Act discharge permit?

The EPA’s answer has always been “no.”  EPA regulations in 1976 said so explicitly. In 1987, the Clean Water Act was amended to require point source permits for stormwater runoff “associated with industrial activity”. CWA section 402(p). In writing regulations to implement the 1987 amendments, the CWA correctly decided the runoff of natural, unpolluted water from logging roads is not covered by section 402(p). One of the reasons that this is correct is that CWA definition of “point source” expressly excludes “agricultural stormwater discharges.”

However, the 9th Circuit’s decision in Georgia-Pacific held the EPA regulations invalid. 640 F.3d 1063. This creates a direct circuit split with the 8th Circuit’s Newton County Wildlife Association v. Rogers, 141 F.3d 803. If the 9th Circuit decision stands, it will essentially shut down logging within the enormous territory of the Circuit. If the 9th Circuit is right, then discharge permits are necessary not only for new roads, but for existing roads–and on private land as well as public land. Obtaining a permit can take years, and the permitting process offers many opportunities for anti-logging activists to monkey wrench and delay. If you wanted to destroy the American timber business, the 9th Circuit’s Georgia-Pacific decision is the perfect tool.

Last December, the Supreme Court asked the Solicitor General for a brief regarding Georgia-Pacific’s cert. petition. The brief agrees with petitioners (and their amici, including the majority of states Attorneys General) that the Ninth Circuit was wrong. However, the SG urged the Court not to take the case, because the EPA says it is writing new regulations which will supposedly fix the problem.

In my view, the Court should grant the petition. First, the Court should determine whether or not the Clean Water Act itself can even plausibly be read to give EPA power over rainwater runoff from logging roads.  This a very important issue for which the nation needs a definite answer.

Second, in order to give the Court time to act, Congress enacted an appropriations rider forbidding enforcement of the new permitting requirement under the Georgia-Pacific theory. (And since EPA can’t issue permits, private plaintiffs cannot sue to compel road owners to either obtain permits or shut down the road.) But the ban expires on September 30. (That the Solicitor General took have a year to file a cert. amicus brief prevented the case from possibly being heard on the merits this spring.) Because of the time necessary for Notice and Comment for EPA rulemaking, the new EPA regulation cannot possibly be operative before the litigation freeze expires.

Besides that, if the 9th Circuit is correct, then EPA “cannot” make the regulatory choice not to require discharge permits for logging roads. Thus, EPA’s new rule will itself the subject of further litigation. As long as the 9th Circuit’s panel decision in Georgia-Pacific remains valid, EPA will have to write a regulation complying with it, and so it seems inevitable that a huge number of logging roads will be requires to get point source discharge permits.

If cert. were granted, then the 9th Circuit (or failing that, the Supreme Court) should issue a stay for enforcement of Georgia-Pacific.

Even without a stay, if the Court granted cert., the grant itself would deter many private lawsuits brought under the Georgia-Pacific theory. If suits were brought, most lower courts would probably decide not to issue preliminary injunctions, and not to let the suits move forward, until the Supreme Court decided the case.

As the amicus briefs for the cert. petition explicate, the damage caused by Georgia-Pacific would be enormous. Although Georgia-Pacific involves issue of Chevron/Auer deference (including the question of whether EPA’s regulation is ambiguous), the more fundamental question is whether Congress, when enacting the Clean Water Act in 1972 (and then amending it in 1987), and setting up an intensive and strict system of permitting for waste pipes from factories, sewage pipes, and other point sources, meant for that very same system to apply to hundreds of thousands of miles of logging roads.  It is implausible to believe that Congress intended to wipe out the timber business, and to destroy the network of hundreds of thousands of logging roads which are used every day by hunters, other outdoor recreationists, farmers, and ranchers. Certainly any proposal in Congress to impose such far-reaching, harmful legislation would have engendered extensive debate.

Congress did not enact such a foolish law, nor did it give EPA the discretion to do so (in whole or in part) by regulation. It is time for the Supreme Court to say so, with finality.

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