The E.U. as Peace-Maker: Bringing in Serbia and Kosovo

Serbia and Kosovo reached an agreement on April 19, 2013 bearing on how much autonomy Kosovo would allow Serb cities in return Serbia’s recognition of Kosovo’s remaining authority in the cities.[1] Kosovo had seceded from Serbia in 2008, and the ensuing conflict kept both states from joining the European Union. As it turned out, the prospect of accession gave both Serbia and Kosovo enough incentive to reach an agreement. Indeed, only a few days after the agreement had been reached, the governments of Serbia and Kosovo approved it. Such swiftness indicates how strong of an incentive accession can be for belligerent republics in Europe. The E.U.’s deployment of this “carrot” is fully in line with the main objective of the European Union: to prevent war in Europe. According to the New York Times, the accord is thus “an important victory” for the E.U.[2] An even further victory in line with the E.U.'s most important purposes would be to internalize both Serbia and Kosovo so any future interstate conflicts could be peacibly resolved. 

In the wake of World War II, the European Coal and Steel Cooperative was formed in order to keep an eye on Germany’s use of iron, should the Germans seek to re-militarize. The EEC was also formed to obviate war in Europe, and the E.U. inherited this central aim. Accordingly, it is fitting and proper that, as Kosovo’s deputy minister of foreign affairs, Petrit Selimi put it, “The incentive of joining the E.U. played a huge role in clinching an agreement.”[3] The E.U. thus played a role in forging greater peace in Europe. In fact, the negotiations took place in Brussels, according to Catherine Ashton, the E.U.’s secretary of state. “It is very important,” she told reporters, “that now what we are seeing is a step away from the past and, for both [Kosovo and Serbia], a step closer to Europe.”[4] Days after the agreement was signed, the European Commission recommended to the European Council  that talks start on Serbia’s accession. Belgrade had “taken very significant steps and sustainable improvement in relations with Kosovo,” the Commission announced. The Commission also noted that as Kosovo had met all its “short-term priorities,” talks toward a Stabilization and Association Agreement, a precursor to Kosovo gaining statehood, should commence.
Bringing both Serbia and Kosovo into the Union would represent a more permanent means of forestalling war in Europe. As this depends too on how much power the E.U. has in reconciling conflicts between the states, giving the federal government sufficient competencies in this regard would also represent a step toward sustained peace in Europe. While the prospect of accession has been shown to be enough of an incentive for a meaningful agreement to be reached, better still is the incorporation of trouble spots into the European Union, where more pressure can be brought to bear on any bellicose states such that any nascent conflicts between them can be peaceably resolved. Indeed, the E.U.’s competency, or enumerated power, to remove state obstacles to a common market is in part geared to forestalling potential conflict between discriminating states. This is also a reason behind the interstate commerce clause in the American system.
Lest a fixation on any of the contemporary crises hitting the E.U. inculcates a pessimism that is destructive to the Union and thus ruinous to its more basic purposes, it should be helpful to keep an eye raised to one of those fundamental aims of the project. Given the two major wars in Europe during the first half of the twentieth century, it is wise to keep perspective regarding the role of the E.U., both directly and indirectly, in obviating war.

1. Dan Bilefsky, “Serbia and Kosovo Reach Agreement on Power-Sharing,” The New York Times, April 20, 2013.
2. Ibid.
3. Vanessa Mock and Gordon Fairclough, “Serbia Ready for EU Accession Talks,” The Wall Street Journal, April 22, 2013.
4. Ibid.

On the Economic Justification of American Society and Federalism: The Oxymoron of Congress Mapping the Human Brain

In his 2013 State of the Union Address, President Obama cited brain research as an example of how the government could and in fact should literally “invest in the best ideas.”[1] He cited the $140 return to the economy from every dollar that had been invested to map the human genome, and added that funding the Brain Activity Map would be a job-creating investment in science and innovation. In terms of comparative economic advantage, he said, enlarging the “knowledge economy” would be a good strategy for maintaining a formidable standard of living. As laudatory as more knowledge of the human brain is, Obama's perspective suffers from economic reductionism and a lack of political basis.
Economic reductionism means that everything reduces finally to its economic impact. Mapping the genome may have good economic returns, but the impact in terms of human fulfillment is arguably much more beneficial and thus important. Finding the gene that causes baldness, for instance, would surely have an economic benefit for some, but the non-economic benefits to bald men would be much more important. More importantly, to the extent that mapping the genome has led to new treatments for illness, especially those that are fatal, the primary benefits have surely not been economic in nature. An old person who can live ten more years rather than one does not leap for joy because of the the additional retirement income. Because this is obvious, Obama's economic basis can now be seen as artificial or skewed at best even it it was politically and economically prudent for him to point to economic returns as they would have been particularly of interest to the companies that made campaign and other, less direct, economic contributions to the Wall Street president. Unfortunately, people reading or hearing his speech could have gotten the idea that the reduction to the economic effect is fitting rather than distorting. A government, after all, should look after the public good, which is not only economic. Of course, it has been by lip service to the general welfare that U.S. presidents have tried to justify federal spending in virtually any area, hence robbing the state governments of more and more sovereignty. 
That the federal government had any constitutional basis to be funding a map of the brain's activity is a question the federal president seems not to have considered. To be sure, balancing spending for the general welfare with the enumerated (i.e., limited) powers of the federal government is a difficult task unless the general-welfare spending is assumed to pertain only to the enumerated (i.e., listed) powers of that government. It makes no sense to say that government's powers are limited and yet spending can pertain to any domain, even preempting state spending. So by logic alone, it stands to reason that the spending clause must have been intended to furnish Congress with the authority to fund its enumerated powers.
Put another way for the faint of heart, if a positive economic return to the economy is the litmus test, then the federal government could intercede in so many areas that the state governments could eventually become little more than local governments. The crucial political benefit of federalism, wherein the state governments have the power to act as a check against encroaching or tyrannical federal power so the only check is not on the state governments by the federal government, is lost if federal lawmakers and the executive can amass virtually unlimited power for the U.S. Government (and themselves in the process!) especially if done at the expense of the states. 

A Congressional rendering of how the human brain might be mapped.      Source; nytimes.

Admittedly, a person could look at the U.S. Constitution and point out the spending clause, whereby the Congress has the authority to spend funds “for the general welfare.” in itself, the clause contains no limitation, and the general welfare is indeed wide in scope. Scientific advancement, it could be argued, is surely in line with advancing the general welfare of the people. Virtually any purpose, even those purposes in which the effect on the general welfare is merely a byproduct, could fit within the clause. To restrict the clause could foreseeably hold back the general welfare from what it would otherwise be. 
Turning to the enumerated powers of Congress, the commercial implications from mapping the brain's activity might seem to fit within the interstate commerce clause of the U.S. Constitution. After all, the U.S. Supreme Court had ruled in Wickard v. Filmore (1942) that even a farmer in Iowa who grows wheat for his family's own consumption can be subject to regulation. Even if his activity "be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect."[2] The majority opinion reasons that the harvests of wheat for private consumption, if aggregated, would have a significant effect on the interstate wheat commerce. Even an indirect effect on the interstate wheat market can justify even the growing of wheat for private consumption being subject to the interstate commerce clause, and thus federal power. So it is no accident that the federal executive publicly justified the federal funding to map the brain's activity by characterizing such a map as "a job-creating investment in science and innovation." Obama may have engaged in warped economic reductionism in order to gain more power for his government. He and the federal court before him both distorted logic for the sake of additional power going to the federal government.
The institutional and personal conflicts of interest should be obvious. Since that ruling, the reach of the commerce clause has expanded. Even something that is not itself commerce can be federally regulated as commerce. This flawed logic should be enough of a red-flag to tell us that something went deeply wrong in the federal court's reasoning where federal power was at stake or could be expanded. 
In regard to funding the mapping of the brain's activity, commerce of the completed map could indeed extend beyond state lines (i.e., be interstate commerce), but to argue that the regulating of interstate commerce extends to investing in manufacturing of the product itself conflates spending with regulating, which is to set rules. 
President Obama could be challenged for his presumption that the federal government is the definitive level of government for virtually any matter of public policy to be enacted into law. He could have quoted from Alexander Hamilton, a delegate to the Constitutional Convention and the first U.S. Treasury Secretary,  who had wanted the states to be mere districts implementing federal policy. Of course, he also wanted the U.S. president to be in office for life.
Before Obama was the federal executive, I asked Sandra Day O’Conner, a former justice of the U.S. Supreme Court, why the Court had allowed the Congress to encroach so onto state matters. "It takes a majority," she said (meaning of justices). Then she observed that Congress was “acting like a state legislature.” This remarkable insight would prompt me years later to wonder whether Obama himself was conflating the federal and state levels. He may not have fully realized the distinctiveness of federal government on the empire scale from governance on the state, or kingdom, level. Whereas an empire-scale government of a federation must take into account differences in culture, political and moral ideology, economy, and even religion that exist from state to state, a state government need not as a state can be homogeneous rather than diverse within. The British, who had once had an empire to manage, suppose their state in the E.U. is diverse. I submit that the E.U. itself is much more diverse from state to state, and so taking into account such differences is an appreciable aspect of E.U. governance but not of that of a state, even the United Kingdom (or California in the U.S.). Yes, Virginia, such a comparison is valid.
I submit that President Obama did not sufficiently heed the vital differences between the federal and the state governments. Nor have majorities of justices sitting on the U.S. Supreme Court. Viewing things from the perspective of the federal government, and even having its interests at heart, it is possible to interpret general welfare and the commerce clause so broadly as to warp logic and yet not even notice this or the eventual cost (to use an economic term!) to the Union itself (i.e., impairing its federal system). Economic reductionism can be placed in service, resulting in bloated federal power and a warping of priorities (i.e., financial as the definitive litmus test for everything, including the public good). Of course, big business feels right at home in such a society--societal norms and values reflective of those of business. Meanwhile, the warped system feeds on itself, without being noticed and becoming even more warped in the process. For all of the reliance on the general welfare, who exactly is looking out for it as regards the impact on it from the federal system of government and the economic reductionism? 

See related: Institutional Conflicts of Interest, Essays on Two Federal Empires, and British Colonies Forge an American Empire, available at Amazon.

1. John Markoff, “Obama Seeking to Boost Study of Human Brain,” The New York Times, February 17, 2013.
2. Wickard, 317 U.S. at 125.

Automatic Standing: The American States in Federalism Cases

Unlike that of the E.U., the U.S. system of public governance is structurally biased toward  political consolidation at the expense of federalism. In fact, the bias extends to jurisprudence. This is evident in a ruling by the U.S. Court of Appeals for the Fourth Circuit on September 8, 2011 against Virginia on the 2010 federal health-insurance reform law.

According to the Wall Street Journal, at issue was “whether the federal government can require Americans to either carry health insurance or pay a fee starting in 2014.” In a unanimous opinion, a three-judge panel at the U.S. Court of Appeals for the Fourth Circuit in Richmond Virginia “found Virginia Attorney General Ken Cuccinelli lacked legal standing to bring his challenge. That threw out a ruling [in 2010] by a lower court judge who said Mr.Cuccinelli was entitled to sue and found the law’s requirement to carry insurance went beyond Congress’s powers under the U.S. Constitution. Mr. Cuccinelli, a Republican, had argued Virginia had standing because, shortly after President Barack Obama signed the health law, the state’s previous governor had signed a law saying the state’s residents shouldn’t be required to carry health insurance. But the Fourth Circuit judges found that law alone wasn’t enough to generate standing for Virginia, and the state couldn’t show it was directly burdened by the insurance requirement. ‘If we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court,’ Judge Diana Gribbon Motz wrote. She and the other two judges were appointed by Democratic presidents.”

Analysis:

In her statement, Judge Motz fails to grasp one of the fundamental mechanisms of modern federalism—namely, that the two systems of government—that of the states and the federal government—check and balance each other. This is necessary because governmental sovereignty is divided up between the two systems in modern federalism. The division and the related enforcement mechanism of “check and balance” are means of protecting the citizens’ liberty at the expense of tyranny (i.e., unaccountable government action). For modern federalism to work effectively, any encroachment on the sovereignty of one system by the other must be repelled. Otherwise, even one successful encroachment by one system could snowball into such an imbalance of sovereignty between the two systems that the federalism itself is defeated and the union is either de facto dissolved or consolidated with the people’s liberty paying the ultimate price.

Accordingly, governments of republics that are members of a modern federal system of governance have standing constitutionally, as semi-sovereign members, to challenge possible encroachments by the general government. I contend that Virginia had standing in the appeal because a Congressional over-reach based on the interstate commerce clause (i.e., the enumerated power authorizing Congress to regulate the commerce between two or more states) would be at the expense of Virginia’s sovereign sphere. Moreover, it is in the interest of the federal system itself, and the U.S. Constitution, that members or branches of one of the two systems of government have standing to contest over-extensions by a member or branch of the other system because otherwise one system could come to eclipse the power of the other (i.e., consolidation or dissolution).

It could be argued that Virginia’s standing is pretty obvious given Virginia’s membership in the U.S. federal system and the fact that Congress’s encroachment would be at the expense of the polity members because the federal law would bind the Virginia government. The fact that the appeals court is itself a member of one of the branches of one of the parties may account for the judge’s refusal to find standing.

In terms of the constitutional law jurisprudence, being burdened should not be required of Virginia in order for the republic to have standing; merely having an interest in terms of its sovereignty should be sufficient. Such an interest is triggered by a possible encroachment by Congress beyond its enumerated powers because the Virginia government would not otherwise be confined in its legislative, executive or judicial actions. Above all, it is in the interest of the federal system itself, and thus the United States, that both systems of government within the system have standing to contest any and all possible encroachments. Perhaps if the state governments’ standing were recognized where it is possible that Congress, the president or a federal court has unduly constricted the states’ semi-sovereign situs in the federal constitutional order, the U.S. system of public governance would be closer to federalism rather than consolidation. Given the extent of the latter, it would not be a bad thing to have each state “become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court.” Perhaps then a balance of power—and of the respective sovereignties—which is necessary for a modern federal system (i.e., not confederalism, such as in an alliance), would be within reach; the check and balance between governments that exists in viable federalism could once again function (if it ever did in the American context).

Source:

Janet Adamy, “Court Upholds Health Law,” Wall Street Journal, September 9, 2011. 

Federalizing the Criminal Code: Racial Opportunity Costs

On December 13, 2011, a bipartisan group of legal experts told a panel of lawmakers in the U.S. House of Representatives that the federal criminal code had grown so large that U.S. citizens could not possibly keep up with it. “We ought to get rid of the old myth that you’re presumed to know the law,” Rep. John Conyers (D-Mich.) said. About 4,500 criminal statutes exist, according to Ed Meese, a former U.S. Attorney General under President Reagan. “This is in addition to over 300,000 other regulations that don’t appear in the federal code but nevertheless carry essentially criminal penalties including prison,” he said. “So the vast array of traps for the unwary that lurks out there in federal criminal law is more extensive than most people realize.” The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year.
Back in the 1990s, Sandra Day O’Connor, then a justice of the U.S. Supreme Court, said at a small gathering, “Congress is acting like a state legislature.” She went on to point to all the crimes being federalized. I asked her why the Rehnquist Court had not applied the brakes to this breach of federalism. “Because it takes five,” she replied. In other words, not even the Rehnquist conservative majority, which had been responsible for the Morrison and Lopez rulings, was sufficient to arrest the ongoing political consolidation via the federalizing of criminal law.
In late 2011, Rep. F. James Sensenbrenner, chairman of the U.S. House Judiciary Committee’s panel on crime, introduced a bill that would reduce the federal criminal code by a third and define the level of criminal intent that is necessary to break the law. Laying aside the matter of Congress over-criminalizing society at the expense of liberty, and the related matter of the “micro-managing” mentality that is implied in a ceaseless desire to “mold” or control others by threatening penalties, federalism itself ought to be brought to bear on Sensenbrenner’s proposal.
Specifically, in addition to reducing the quantity of federal criminal statutes and regulations to that which the citizenry can reasonably be expected to digest, each statute and regulation should be either retained or thrown out on the basis of whether it falls within one of the enumerated powers of Congress. By “falls within,” I do not mean indirectly or by extension, as in the specious argument that an Iowa farmer’s home-grown wheat used solely by the farmer (and his family) is subject to the reach of the interstate commerce clause because if enough farmers grew wheat for their own consumption, the price of wheat transported between states would be impacted. The term expressly need not be used in the U.S. Constitution for it to be understood that the enumerated powers do not distend through sheer reasoning to preempt those powers reserved to the American republics or their residual powers. Wheat that never leaves Iowa cannot, by definition, be considered to be part of interstate commerce. I suspect that the same logic is being broken in Congressional efforts to federalize criminal law.
The U.S. Constitution clearly states that the police power resides with the states. Considering the abuses associated by state officials in implementing (or abusing) that power (e.g., California police pepper-spraying students to manipulate them off the sidewalk on a public university campus), the U.S. Government could shift from undercutting federalism by “federalizing” criminal law outside the enumerated powers to strengthening federalism by acting on a check against abusive state officials. In other words, federal criminal law could be primarily directed to the states (i.e., their officers), and to citizens secondarily and only within the powers enumerated for Congress. This approach is consistent with the confederal element that is retained in the broader notion of modern federalism (e.g., as applied in the U.S. and E.U.), while acknowledging that the general government also reaches to the citizenry directly (“direct effect”).
One example of the federal government attempting to check a systematic abuse of power by police in a state’s county is the three-year investigation by the civil rights division of the U.S. Department of Justice of the Maricopa County sheriff’s office in Arizona. The ensuing report found “a pervasive culture of discriminatory bias against Latinos” reaching Sheriff Joe Arpaio himself. Deputies are said to “target Latino drivers on the roadways and detain innocent Latinos in the community in their searches for illegal immigrants,” according to the New York Times. Such practices, according to the report, are in violation of the Fourth Amendment’s prohibition on unreasonable seizures. The report adds that Latinos have been systematically mistreated in the county jail. Besides the report, a separate federal grand jury investigation was underway as well, focusing on accusations of abuse of power by the sheriff department’s public corruption squad.
For its part, the Justice Department was urging the sheriff to cooperate with the federal government in turning his department around, or risk a lawsuit and the loss of millions of dollars in federal money. Even so, Arpaio “brushed off the criticism in a news conference as politically motivated,” according to the New York Times. He was particularly upset that the homeland security secretary, Janet Napolitano, a former Arizona governor, had announced that the federal government would no longer allow the sheriff’s deputies to check the immigration status of inmates in their custody. In reaction, the sheriff remarked, “This is a sad day for America as a whole.”
Besides the inherent impoussance of the Justice Department’s plan “to do cultural change” in a sheriff department that is headed by intransigence, the sheer time during which the alleged abuses had been allowed to continue (e.g., the report taking three years) bespeaks a woefully inadequate priority in the federal government to act as a real check on the states. To be sure, Arizona is a sovereign state with regard to its police power, and the federal government is obliged to respect that sovereignty. However, neither a government of a state nor of the union is free to violate the U.S. Constitution, which is the source of all of the governmental sovereignty that is in the federal system (characterized by dual sovereignty—split between two systems of government, that of the states and that of the union). So Arisona is not free to violate the Fourth Amendment, and the general government can legitimately provide a check, as judged by the judiciary. Therefore, rather than usurping state criminal law by federalizing criminal statues, Congress should go to work to give the federal government better tools with which to act as a check on sheriffs such as Arpaio. Generally speaking, there is more than enough for the Congress to do within its federal role without encroaching on federalism itself paradoxically by “federalizing” powers assigned to the several states. The latter activity involves an opportunity cost that I dare say the Latinos in Maricopa County doubtless do not appreciate.

Sources:

Gary Fields and John Emshwiller, “Criminal Code Is Overgrown, Legal Experts Tell Panel, Wall Street Journal, December 14, 2011. 

Marc Lacey, “U.S. Says Arizona Sheriff Shows Pervasive Bias Against Latinos,” The New York Times, December 16, 2011. 

Wickard vs. Filburn: Federalism vs. Congress

If you are wondering how the Congress got away with taking over so much from the state legislatures, you need look no further than Wickard v. Filburn, on which the U.S. Supreme Court unanimously decided that the interstate commerce clause can reach all the way to penalize a farmer for growing his own wheat.

Filburn and his wheat.  (Mary Lou Spurgeon  NYT)

The complete essay is at Essays on Two Federal Empires.

The Affordable Care Act Running Up Against Federalism

In late 2010, Republicans were quick to declare that "ObamaCare was already on life-support in the wake of federal district court Judge Henry E. Hudson's ruling in Virginia that the Affordable Care Act’s (ACA) requirement to buy health insurance is unconstitutional. But in truth Virginia’s attorney general, Ken Cuccinelli, won only a partial victory. He sought to have the entire law overturned, but instead only the section creating an individual mandate was. This is perplexing to me, as the law contains a clause indicating that if any part is deemed to be unconstitutional, the entire act would fall. Clearly, the health insurance industry didn't want to be forced to pay out without being guaranteed the expanded customer base by the U.S. Government.  

According to Newsweek, "Judge Hudson was very explicit in his ruling that only the mandate that individuals have coverage and 'directly-dependent provisions which make specific reference' to it will be affected. Technically, this means virtually nothing but the mandate is eliminated. But as a practical matter, the requirements placed on insurance companies to make coverage more generous and available to everyone are economically dependent on the mandate. To keep the rest of the bill in place without the mandate would provoke the wrath of the insurance companies’ powerful lobby and set premiums on an upward-spiraling trajectory. On the upside, Medicaid would still be expanded so the millions of poor who are without health insurance will be insured."[1]  In my comparably small and insignificant view, this is the major significance in the entire law.

To Europeans much more so than Americans, generally speaking, healthcare is viewed as a right even for the poor as a matter of human rights. Lest the rich poo poo this right because theirs is secure, I can only shake my head in utter disgust; in a civilized society, even a person incapable of working has the right to survive. Not wanting to pay for this right when one enjoys other advantages of living in a society (e.g., police protecting one's property) is sheer selfishness.  I take the right to survival to be the kernel worth saving in Obamacare even if scrooges poo poo's the plight of their less fortunate fellow citizens while ignoring their own self-centeredness. Hudson also declined to prevent the law’s implementation while the courts sort out the constitutional question. The ACA has been upheld as constitutional by two district courts. According to Newsweek, "Hudson’s decision actually guarantees only one thing: that the constitutionality of the individual mandate will ultimately be decided by the Supreme Court. Legal experts are unclear which way the high court will go

The question of whether the mandate is constitutional hinges on whether it falls within the federal government's enumerated power to regulate commerce. In particular, the question is whether inactivity can be regulated. Failure to buy insurance is inactivity.  Is a decision to buy or not to buy to be counted as an activity?  Or is requiring Americans to carry health insurance a way of regulating how they pay for something that every American will use (i.e., health-care)?  It seems to me that this question has been overly simplied, whereas the past "logic" used by the U.S. Supreme Court to ok expansions in the commerce clause is notoriously invalid even as it has been generally accepted in American society.

Historically, the U.S. Supreme Court has not resisted ever deepening and broadening encroachments by the national legislature and executive on the States by means of the enumerated power of regulating interstate commerce.  In 1942, for example, the court held in Wickard v. Filburn—the most relevant precedent for this case—that a farmer growing wheat for his own chickens, above a maximum of growth allowed per acre at the time, was subject to federal regulation under the commerce clause because the resulting extent to which a farmer does not buy wheat to feed his chickens on the market affects the national market price of wheat. "This goes a step further than Wickard because it’s the omission of action that’s being defined as the interstate act," says Jonathan Turley, a constitutional law instructor at George Washington University. Critics of the mandate say that if you start defining choices not to buy things as actions that affect interstate commerce then there is no limit on what Congress can make you buy. In my view, the action/inaction distinction is not vital to whether the power of the U.S. Government is potentially unlimited under the commerce clause; <em>Wickard </em>itself evinces the potential unlimitedness in the power; even growing wheat for one's own use can be deemed as interstate commerce even though the wheat never even crosses the road.  It is the tenuous multiple links of inference that dwarfs even the action/inaction distinction. The legalese in the inferences has already supported Congress in using the interstate commerce clause to reach a variety of objects (Morrison and Lopez being the two exceptions, but even they allow for indirect effects to the commerce). As another example involving what one grows and consumes on one's property, in 2005 in Gonzales, the court held that the commerce clause entitles the federal government to outlaw California residents from growing marijuana for personal medicinal use. Of course, the government's purpose here was not to regulate commerce; the policy was against illegal drugs being used. This is precisely how the commerce clause can be stretched to cover virtually anything.

If the court throws out the health mandate, it might be just as well as the State governments really should be the ones to address health-care for the uninsured, given our system of federalism. If the mandate is declared to be unconstitutional, I would advise the justices to do it in a way that also exterpates the inferences of legalese that have for more than one hundred years enabled the federal government to encroach on the States--effectively ending the check on government that is afforded by federalism. In other words, the court could use the case as a means of setting definitive limits on the enumerated powers.  Otherwise, Congress will return to the clause for yet another encroachment using linkages--simply sidestepping regulating inaction. The case can occasion a wake-up call concerning the consolidation of governmental power at the center at the expense of the innate diversity that exists in an empire-scale polity. I doubt very much that the court will sound the alarm--seeing the forest through the trees--even if the mandate is declared to be unconstitutional. We simply are not good at looking at things in terms of the big picture; it is no accident that most members of Congress are lawyers.

1. Ben Adler, "Will the Supreme Court Rule on Health-care Reform?" Newsweek, December 15, 2010.

Regulating Commerce by Mandate: The Death of American Federalism?

The mandate to buy health-insurance may be an unconstitutional encroachment of the U.S. Government onto the liberty of its citizens. Furthermore, the rigid federal rules in the health-insurance reform law of 2010 may represent yet another way by which the state governments have been rendered servile in begging Washington for breathing room in a domain that may be rightly theirs, constitutionally (i.e., beyond the enumerated powers assigned to the U.S. Government). The bigger story in this jurdical piece on healthcare is perhaps whether American federalism itself was finally being extirpated and expunged in favor of consolidation. 

The full essay is at Essays on Two Federal Empires.

On the Health-Insurance Mandate: Nullification or Judicial Review?

A Republican U.S. President pushes hard for the U.S. Government to play a more active role in K-12 education under the rubric of “No Child Left Behind.” A Democratic U.S. President pushes hard for the U.S. Government to require residents to purchase health-insurance. Some of the same Republicans who cry foul on the insurance mandate insist that “marriage” be federalized through an amendment to the U.S. Constitution. From whichever vantage-point one cares to assume, political consolidation at the expense of federalism seems to be the name of the game in American politics.

Proponents of the health-insurance mandate have argued that Congress acted within its authority under the U.S. constitution’s commerce clause. However, Ken Cuccinelli, the attorney general of Virginia, argued the U.S. Supreme Court has never ruled that the clause allows Congress to require citizens to purchase a good or service in commerce. Cuccinelli’s complaint suggested that the Virginia law that outlaws the federal government from forcing state residents to purchase health insurance trumps the federal law because it is a matter assigned to the states under the Constitution’s 10th Amendment rather than enumerated to the purview of the U.S. Government. In other words, the supremacy clause pertains only to powers delegated to the U.S. Government. That government is not supreme where the states are sovereign. The latter is substantial in principle, even if not recognized in practice; all powers not explicitly granted to the federal government remain with the states or the people, according to the Tenth Amendment to the U.S. Constitution.

So it is rather perplexing that the State governments have generally been sleeping through federal encroachments since the time of the CSA-USA war in 1861-1865. As repeated efforts to thwart federal encroachment failed, I suspect the state governments have given up, though several of them seem to have woken up in contesting the federal mandate on health-insurance. Yet the objection is issue-specific, and thus not apt to lead to any fundamental realignment from consolidation back to federalism. Americans tend to be issue- rather than systemic-oriented, and this is reflected in the focus of their elected representatives. Unfortunately, this can mean that no one is left watching the store itself; everyone is debating the particular products on the shelves—and with carefree indifference to even the most relevant history. For instance, the history of nullification has apparently fallen off the shelf, at least with respect to any collective memory.

In 1830, Andrew Jackson sent federal troops into South Carolina because its legislature had decided that it could nullify federal law encroaching on its domains of governmental sovereignty. The South Carolina legislature relented (though its succession document would be retrieved in 1858, after the Congress had just passed another tariff on rice and cotton exports. Jackson’s message was that nullification of federal law would mean the dissolution of the Union.

Nevertheless, the governor of Virginia signed a bill into law in 2010 nullifying the federal mandate. The policy argument against nullification stresses that state opt-outs would reduce the size of the insurance pool and thus reduce the anticipated cost-savings. Similarly, Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on March 12, 2010 declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota. On the day before, Wyoming’s governor, Dave Freudenthal, a Democrat, had signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul. In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session that week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.” Alabama, Tennessee and Washington are considering bills or constitutional amendments that would assert local police powers to be supreme over the federal authority. Rhode Island, Vermont and Wisconsin — none of them known as conservative bastions — were considering bills that would authorize, or require, governors to recall or take control of National Guard troops, asserting that federal calls to active duty have exceeded federal authority.

Given the Nullification Crisis in the nineteenth century, the actions of public officials at the state level in the twenty-first century seem foolhardy. They were on much firmer ground in contesting the validity of the federal law through the federal courts, which can declare a law of Congress unconstitutional. However, this means is not without drawbacks.  In particular, there is a structural conflict of interest in having the federal high court decide a matter between the government of which the court is a branch and a state government. Not surprisingly, the U.S. Supreme Court has tended historically to interpret the U.S. Constitution in the federal government’s favor. It is like having a member of one of the teams as the umpire and finding that that umpire tends to rule in favor of his or her own team. The surprising thing is that onlookers are surprised when this happens.

“Everything we’ve tried to keep the federal government confined to rational limits has been a failure, an utter, unrelenting failure — so why not try something else?” said Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute, a nonprofit group in Auburn, Alabama. Article 6 of the U.S. Constitution indicates that federal law is superior over state law where there is a conflict, but this doesn’t make sense outside of the federal government’s enumerated powers—for otherwise why even enumerate? To rely on elections for the needed correction is not sufficient, according to Mises. “Whether the political impulse of states’ rights and nullification will become a direct political fault line in the national elections this fall is uncertain.” It is almost never asked: “Who is the sovereign, the state or the federal government?”—a question put by State Representative Chris N. Herrod, a Republican from Provo, Utah. Technically (but not in practice), both governments have governmental sovereignty in the American federal system; it is not an “either/or” question.

The question is perhaps whether a balance between the two systems of governmental sovereignty within the American system can be restored simply by reacting issue by issue. Is it possible, moreover, for the American people to embrace a constitutional moment wherein the architectonic of the system itself is the issue?

Sources:

Kirk Johnson, “States’ Rights Is Rallying Cry for Lawmakers,” New York Times, March 16, 2010. 

Alexander Mooney, “Virginia Governor to Sign Law Firing Back at Health Care Bill,” CNN, March 24, 2010.