Meaningful Limits

Colin received quite an honor today. After leaving a comment on a blog by Connor Friedersdorf's blog yesterday, Connor took an entire post to elevate and explain Colin's comment--even preemptively defending it in the face of "liberal commentators." In Colin's comment, he makes a point about the text of the Commerce Clause--the clause of the Constitution that vests Congress with the power to regulate commerce between the States. Colin rightly notes that 

[t]he Commerce Clause does not say that Congress has the power to regulate trade with foreign countries, the Indian tribes, and -- oh by the way -- also do whatever it pleases so long as it even tangentially has anything to do with commerce.

Connor, for his part, then launches into a discussion of whether liberals are wrong to cast aspersions of partisanship on the conservative judges for striking down ACA. He rightly defends the intellectual honesty and consistency of Thomas's position but then says this about the other conservative justices: 

The rest of the conservative justices face a more difficult decision. All are to varying degrees supporters of both stare decisis and the notion that a core function of the Constitution is to divide power among the federal government and the states, putting meaningful limits on Washington's power. Weighing in on the Affordable Care Act, they're inevitably going to undermine at least one value in which they earnestly believe.

But Connor's dilemma is false. The doctrine of stare decisis and the desire for "meaningful limits" on the Commerce Clause are not in conflict. In fact, the Court could--and should--uphold the ACA while observing both stare decisis and reinforcing meaningful limits on the Commerce Clause. As Professor Koppelman wrote in Salon last week:

But there already is a pretty big limit on the commerce power:  United States v. Lopez, a well-known 1995 decision that invalidated a federal ban on handgun possession near schools. Justice Breyer nicely summarized its holding: “Congress cannot get into local affairs, particularly where they are noncommercial.” With that decision on the books, the No Limits argument is like saying that unless you buy my rickshaw, you will have no way to move from place to place. You have legs.  Everyone can see them. Lopez placed limits on federal power.  Everyone can see them. The claim that there will now be no limits is weird. It denies the existence of what is there in plain sight.

What's more, Lopez interacts with another well known Commerce Clause case from the 1990s, Morrison v. Olson, to set a hard boundary on the extent of the Commerce Clause power. These cases, then, provide us with a meaningful limit on the power of Washington and they provide precedent. Upholding the ACA would violate neither of these and would adhere to an even more venerable Commerce Clause case (satisfying stare decisis) while not dismantling the existing limitation on Congress' Commerce Clause authority (satisfying the meaningful limits requirement).

Citizens United: Another Angle

Since it fostered so much debate yesterday, I thought it would be worth while to post a link to this piece in Democracy in America. Matt Steinglass raises the question of the appropriateness of foreign money being spent to influence U.S. elections. He lays out rather logically how the Citizens United decision makes it legal (and largely untraceable) for foreign governments to spend large sums of money to influence American elections. He notes:

Surely, the Supreme Court would hold it unconstitutional for Congress to pass a law prohibiting foreign citizens from getting up on a soapbox in Central Park and stating that they prefer one candidate or another in an American election. On what basis, then, can Congress bar foreign corporations from buying unlimited campaign advertisements advocating their preferred candidates in American elections? Ah, one might object, but buying campaign advertising is not the same as engaging in speech. And corporations are not the same as individuals. These are precisely the two principles that Messrs Kennedy, Roberts, Scalia, Alito, and Thomas rejected in Citizens United.

For me this brings back two things I thought were obvious until the Citizens United decision. 1) Buying advertising is not identical to practicing free speech and 2) Corporations (and unions) are not individuals. Of course, as Ben pointed out yesterday, the real kicker of the Citizens United decision was the removal of reporting requirements. We are now left with less data about the additional money being spent and where that money is coming from.

I wonder how the most vociferous defenders of the decision would feel if Saudi royals influenced city council elections in Dearborn, Michigan in the hopes of founding a Wahabi grade school? My gut says they would be non-plussed at the notion.

Pirates of the Gulf of Aden

A federal judge in the Eastern District of Virginia threw out piracy charges brought by the government against six Somali men who allegedly attempted to attack a US naval vessel. The defense, in challenging the charges, relied on the 1820 Supreme Court case United States v. Smith. That case defines piracy, according to the "law of nations," as "robbery upon the sea."

John McCain's Kagan Op-Ed

Sen. John McCain pens an Op-Ed in today's USA Today outlining his opposition to Elena Kagan's nomination to the Supreme Court. Sen. McCain's argument against Solicitor General Kagan is built on her actions as Dean of Harvard Law School in opposition to Don't Ask, Don't Tell. While the bulk of the Op-Ed rehashes Kagan's actions, McCain goes completely off the rails in the second section of his piece when he attempts to link Kagan's action as Dean to a judicial philosophy.

According to McCain, because the Supreme Court disagreed with actions like Kagan's, Kagan "stepped beyond public advocacy . . . into the realm of usurping the prerogative of the Congress and the president to make law and the courts to interpret it." One would be justified in asking how exactly an university administrator could possibly "usurp[] the prerogative of the Congress?" The statement is so baldly irrational it really defies critical examination. McCain's criticism might sound in reason if he were extrapolating her actions as Dean to some indication of judicial temperament--this too would be an extraordinary leap--but McCain goes out of his way not to do that. Instead he writes, "I do not believe judges should stray beyond their constitutional role and act as if they have greater insight than representatives who are elected by the people. Given the choice to uphold a law that was unpopular with her peers and students or interpret the law to achieve her own political objectives, she chose the latter." But Kagan's duty was to the students of Harvard Law School--all of those students, regardless of sexuality--it was to not interpret the Constitution of the United States. She embraced the rather long and generally celebrated tradition of American academia staking out positions that sometimes contravene current law in pursuit of justice and equality.

Don't Ask, Don't Tell was and is a stupid, half-measure of policy that has served only to discriminate against patriotic Americans. It is one thing for the Congress to pass such a law and for the Supreme Court to interpret it in accord with its plain meaning, however they manage to rationalize it with the principles of the American Constitution. It is entirely another matter for the Dean of an institution of higher learning--to say nothing of one dedicated to educating students in the law and justice--to invite onto campus recruiters compelled to discriminate in hiring against one or another minority.

Kagan's actions were civil disobedience. They were not an example of one branch of government overreaching and insulting another branch of government. I should hope that every future Supreme Court nominee in a position like Kagan's during the era of Don't Ask, Don't Tell--or any other patently discriminatory regime--would take similar action on behalf of her students.

Contesting the Constructionist Argument

Recently retired Justice David Souter have a fantastic commencement address at Harvard last week where he outlines several reasons the constructionist theory of constitutional law (he calls it the "fair reading model") is so flawed, and how progressive decisions from the bench isn't judicial activism, but rather the product of progress and the passage of time.

He cites specifically the Pentagon Papers case, where in the First Amendment's press protections are in direct conflict with latter Amendments concerning the government's responsibility to provide security. He makes much of the "paired desires" of the American people, which often stand in conflict. He notes,

"The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice. And choices like the ones that the justices envisioned in the Papers case make up much of what we call law."

If you have 15 minutes, read the whole thing. It's a remarkable argument.