The Constitution, Congress, and the Repeal Amendment

When Congress acts pursuant to its enumerated powers and does not infringe upon an individual right or liberty, the U.S. Supreme Court has traditionally treated the legislation with deference. This approach lately has come under fire. Randy E. Barnett, who teaches constitutional law at Georgetown, has endorsed the enactment of the so-called “repeal amendment” – an amendment to the Constitution which would provide for the repeal of a particular federal law or regulation “when the legislatures of two-thirds of the several states approve resolutions” favoring the same.

Such an amendment is contrary to the intentions of the framers as reflected in the text and structure of the Constitution itself. They met in Philadelphia in 1787 to address the inadequacies of government under the Articles of Confederation, finally recognizing that, in order for the young nation to move forward – for its economy to thrive, for its borders to be protected, for its people to be secure in the world – it needed a government to both represent and speak for all citizens – a government of the United States, supreme by design in matters of national policy both domestic and foreign. 

By subjecting every national policy to review by the people acting through their state legislatures, the repeal amendment would threaten the most vital aspects of the governmental plan adopted by the framers. As my late colleague George Dargo put it, “[t]o provide states with a mechanism for disapproving of federal laws would not only undermine the institution of Judicial Review, but it would fundamentally alter the architecture of American government as we have come to know it in the past two hundred years.”

Of course, altering the architecture of the American government is the point of the repeal amendment. Which begs the question whether our constitutional architecture, as understood by the Supreme Court, has truly failed us.  Proponents of the amendment assert that the federal government is out of control – an assertion that assumes the federal government is divorced from the people it serves. Indeed, Professor Barnett has argued, in the context of the challenge to the Patient Protection and Affordable Care Act, that, “[i]f Congress can mandate that citizens do anything that is convenient to its regulation of the national economy,” then sovereignty lies with the federal government rather than the people and “Congress has the prerogative powers of King George III.”

But that is not right: unlike an unelected king, Congress is not an entity separate from the people – it is the people. And if the people don’t like the individual mandate, or indeed any federal policy, they have ample means at their disposal to make that view known to their congressional representatives, as indeed many have since the Affordable Care Act became law.

The people, moreover, cannot reliably be expected to enforce the Constitution. When the Court reviews a Congressional enactment, it is engaged in the process of determining the law’s constitutional validity, a process dictated by established doctrines that describe the boundaries of acceptable Congressional action and at the same time respect the limits of the judiciary’s institutional role in our governmental system. These doctrines serve to direct and constrain judicial discretion, to push judges to exercise legal rather than political or emotional judgments about the action Congress has taken.

The repeal amendment, by contrast, invites the exercise of political and emotional judgments. People will favor the repeal of particular federal policies simply because they don’t like those laws. State legislative resolutions favoring repeal accordingly will be the result of passion, not reasoned judgment about the national policies Congress is constitutionally authorized to pursue.

In the end, then, proponents of the repeal amendment seek to achieve political and not necessarily constitutional goals. Luckily for them, we already have at hand the means through which we can control our representatives in Congress, and thereby control the reach of the federal government: they are called elections, every two years for Representatives, every six for Senators.

Lawrence Friedman

Misunderstanding the Governor’s Power to Appoint Judges Under the Massachusetts Constitution

As reported in the Boston Globe last week, the justices of the Massachusetts Supreme Judicial Court asked Governor Deval Patrick for a moratorium on judicial appointments. The recent budget cuts have severely undermined the ability of the courts to administer justice in the Commonwealth, and, as Associate Justice Robert J. Cordy put it, the system “can’t even support the judges we have in our courts now.”

The reaction from the Governor’s office was defensive and critical. The governor’s legal counsel, Mark Reilly, admonished the SJC for “this attempt to constrain the governor’s constitutional authority,” while Lieutenant Governor Timothy P. Murray stated that, despite the request by the justices, the governor would continue to make judicial appointments.

The Governor’s representatives—and perhaps the Governor himself—appear to be laboring under a misunderstanding about exactly what authority the Massachusetts Constitution provides the executive when it comes to judicial appointments.

Under the Massachusetts Constitution, the governor has the power to nominate and to appoint all judicial officers, with the advice and consent of the council. Importantly, nowhere does the constitution say that the governor is obligated to appoint judges when positions are vacant; rather, the constitution simply makes clear that the governor has the authority to fill vacancies in his discretion.

What this means, of course, is that the governor may choose not to use this authority, and to leave some judicial positions empty. The justices of the SJC were asking the governor to do just that, and for good reason: it makes no sense to fill judicial vacancies when the Massachusetts court system is in a state of fiscal crisis.

As recently reported, the court system’s funding has been reduced by 16 percent in the past three years. The system has lost more than a thousand employees in that time and now is faced with the prospect of shuttering almost a dozen courthouses in order to operate within its budget. Each new trial judge appointed will result in the court system laying off three staff members.

Neither the legislature nor the governor appears to recognize that the court system is not just another state agency. Rather, it is a co-equal branch of government charged with constitutionally-mandated tasks—namely, “the impartial interpretation of the laws, and administration of justice.” When the ability of courts to perform these core functions is severely threatened, the judiciary is not without recourse: it has long been understood that, as a constitutional matter and in appropriate circumstances, the courts have the power to prevent the impairment of their core functions due to inadequate facilities or resources.

At the moment, that power remains untouched. It is understandably a last resort, and the request that the governor suspend judicial appointments until the crisis has been resolved can be seen as an effort by the SJC to ensure that it remains a last resort. That the governor views this reasonable request as a threat to his authority to make judicial appointments is not just legally mistaken, it is short-sighted. Now is the time when the governor should be leading the effort to resolve the funding crisis, so that sooner rather than later he can resume making judicial appointments without further undermining an already overburdened court system.

Lawrence Friedman

Libya and the War Powers Act

In a recent post, my colleague George Dargo suggested that the Obama administration has no reason not to comply with the terms of the War Powers Act regarding our support of NATO forced in Libya. One of the members of the Obama administration who has argued that the War Powers Act does not apply is Harold Koh, the Legal Advisor to the State Department. He recently addressed an audience of international law and law of war experts at the annual International Law Conference, hosted by the U.S. Naval War College.

Mr. Koh sought to highlight ways in which the Obama administration’s approach to many of these issues fundamentally differed from his predecessor. Among the topics discussed was congressional authorization for U.S. military involvement and support for rebels in Libya who are seeking to topple the Gaddafi regime. The War Powers Act requires the President to seek congressional authorization for U.S. forces engaged in hostilities for more than 60 days. The Obama administration has been under pressure from some members of Congress to seek this authorization for continued military action. The administration’s position is that the War Powers Act does not apply because the nature of our military involvement does not rise to the level of “hostilities” as defined by the War Powers Act.

Mr. Koh repeated that assertion in his address. In addition, he made the following points:

- The military involvement in Libya is not the kind of military action that Congress contemplated when it passed the War Powers Act.
- If Congress wants to prevent the President from supporting the rebel forces in Libya, then Congress must take some affirmative action.
- If Congress decides to withdraw U.S. military support for the rebels, then it should do so with the understanding that it is giving Colonel Gaddafi the green light to resume the slaughter of his own citizens.

The War Powers Act is certainly fraught with problems, not the least of which it that it requires the President to remove U.S. forces from hostilities unless Congress takes some affirmative action authorizing their continued participation. Mr. Koh, however, repeated several times that the Obama administration was not challenging the constitutionality of the War Powers Act; it was simply arguing, primarily for policy reasons, that the Act does not apply to the situation in Libya.

Mr. Koh might have been seeking to convince the audience that, because the administration was not attacking the constitutionality of the War Powers Act, its view of presidential power is more limited than Mr. Obama’s predecessor. I am not sure that is the case.

First, claiming that the President does not have to seek Congressional authorization and that, if Congress wants to prevent the President from committing military support to NATO’s effort in Libya, then Congress must take some affirmative step turns the law on its head. One of the primary purposes of the War Powers Act was to prevent the President from committing military forces and then escalating that commitment over time without congressional approval. Recognizing that the President should have some leeway, Congress gave the President a 60 day window to commit forces into hostilities, and then make the case to Congress at the end of the 60 days why those forces should remain engaged in hostilities. Mr. Koh ignores this very fundamental purpose of the War Powers Act when he claims that the situation is Libya is not the kind of military engagement contemplated by the War Powers Act. The President’s actions seem to be exactly what Congress was concerned about when it passed the Act.

Even more interesting and, perhaps, more troubling is Mr. Koh’s policy assertion that if U.S. forces were to disengage from Libya, then Colonel Gaddafi would be able to resume killing his own citizens. This may well be true, but it is hardly a reason why the President can ignore the legal requirement to seek congressional authorization. In essence, Mr. Koh claims that the President can ignore the requirements of the statute if the President believes that compliance would frustrate important policy objectives. This view of presidential power is not so different than the arguments made by the Bush administration lawyers that the President did not have to comply with the requirements of the Foreign Intelligence Surveillance Act (FISA) because FISA interfered with his Article II powers as commander-in-chief.

While Mr. Koh’s argument may be subtler, it may also be more disingenuous. At least the Bush administration lawyers openly asserted that, in certain matters of national security, the President had the authority to ignore laws passed by Congress. The Obama administration seems to me making that same argument under the guise of statutory interpretation.

Victor Hansen

The War Powers Debate: Is the U.S. Engaged in “Hostilities” in Libya?

How many angels can dance on the head of a pin? When does the use of the armed forces of the United States trigger the War Powers Resolution of 1973? Why have we not intervened in "hostilities" within the meaning of that resolution with our military operations in Libya?

Learned counsel for the State Department and the White House appear to know the answers to such questions with reasons that would make medieval scholastics blush with embarrassment.

There are no caveats in the War Powers Resolution. The words are perfectly clear -- certainly clear enough for a former lecturer in constitutional law -- or even for a former dean of the Yale Law School -- to be able to comprehend and apply in the manner that Congress intended.

George Dargo

Is the Health Care Law Beyond the Commerce Power?

In his decision this week in Virginia v. Sebelius finding the Patient Protection and Affordable Care Act unconstitutional, United States District Judge Henry E. Hudson explains that Congress cannot, under Article I’s Commerce Clause, compel individuals to purchase health care insurance by assessing them a penalty if they choose not to do so. He distinguishes this case from Wickard v. Filburn. In that case, the Supreme Court concluded that Congress can regulate the activity of the individual wheat farmer, because such activity in the aggregate has a substantial effect on interstate commerce even if the wheat transactions of each individual farmer do not.

But wouldn’t there be a significant effect on interstate commerce—as Congress believes—if individuals declined to purchase health care insurance (assuming they are not otherwise covered)? Indeed, isn’t that the whole point of the new health care law—to avoid that effect by creating incentives, through the assessment of a tax penalty, for individuals to purchase coverage?

The answer to the second question is yes—but the answer to the first, according to Judge Hudson, depends on the activity in question. In his view, Congress’s commerce power only reaches activity in a market, not the decision not to participate in a market. Yet in Wickard, the Court allowed Congress to reach wheat farmers who chose not to sell the wheat they produced—just as in this case, where Congress is trying to reach individuals who have chosen not to purchase their own health insurance.

Not so fast, Judge Hudson tells us. In Wickard, the individual farmers could have avoided regulation entirely by choosing not to engage in the production of wheat, while in this case, he argues, individuals cannot avoid the regulation: they must either purchase coverage or pay the penalty.

This reasoning has a superficial appeal, but it ignores the fact that, unlike the farmer who chooses not to grow wheat, no individual living in the United States can help being a part of the health care market. If you choose (for whatever reason) not to have health insurance coverage, that does not mean that you are not participating in the health care market—and it does not mean the health care services you will inevitably receive at some point in your life have no economic value. Rather, you have simply chosen a different way to structure your particular health care transaction—namely, by relying upon the rest of us to pay for the consequences of your decision not to have coverage.

In the end, you may have chosen not to pay for health insurance coverage, but you have not chosen to avoid an economic transaction. Surely Congress has the authority under the Commerce Clause to regulate the aggregate effect on interstate commerce of all those individuals who have chosen to engage in that particular economic transaction.

Lawrence Friedman

State Power and Same-Sex Marriage

Advocates of state power praised the recent decision by Judge Joseph Tauro, of the United States District Court for the District of Boston, in Commonwealth v. U.S. Department of Health and Human Services. Tauro found Section 3 of the Defense of Marriage Act unconstitutional for several reasons, including that the law violates the Tenth Amendment. That Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”

Tauro reasoned (among other things) that states have the authority to regulate and define marriage, because marital status determinations traditionally have been viewed as falling within a state’s sovereign power. He noted that the federal government in its argument “offered little to disprove the persuasive precedential and historical arguments set forth by the Commonwealth to establish that marital status determinations are an attribute of state sovereignty.”

Of course, the fact that, as a historical matter, marital status determinations have been seen as within the power of the states does not mean that Congress has no authority at all in respect to such determinations. Indeed, as Jeff Jacoby recently noted in the Boston Globe, Tauro neglects at least one important historical example of federal control of marriage: the longstanding federal ban on polygamous marriage in the states of Utah, Arizona, Oklahoma and New Mexico—states whose admission into the union Congress conditioned upon their prohibition of such marriages.

More fundamentally, it is not clear from the Constitution itself that marital status determinations are off-limits to Congress. Though the U.S. Supreme Court has indicated there exist traditional areas in which state authority to regulate should be presumed, that is not the same as immunizing whole areas of policy from federal regulation.

Consider an example provided by Judge Tauro in the companion case to Commonwealth v. U.S. Department of Health and Human Services, Gill v. Office of Personnel Management. In Gill, he found that Section 3 of DOMA violates equal protection under the Fourteenth Amendment. Tauro reasoned that Congress has recognized all state definitions of marriage save this one, which undermines the federal government’s argument that the law operates even-handedly. But surely Congress could, under its spending power, create incentives for the states to deter all kinds of marital unions, including those that some states currently allow—like the one Tauro pointed to as permitted under DOMA, namely, the marriage of a thirteen year-old female and a fourteen year-old male, with their parents’ consent. Congress might even be able to regulate certain marital status determinations under the Commerce power if there were a sufficiently demonstrable interstate connection—say, prohibiting marriages in which one party was fraudulently induced to cross state lines to get married.

The decision in Commonwealth v. U.S. Department of Health and Human Services demonstrates the dilemma that advocates of states’ rights face. The Constitution enumerates limited categories of federal authority, but those categories may, depending upon the circumstances, encompass areas traditionally regulated by the states. In other words, while states have a great deal of power in our federalist system, some of that power may be exercised in the shadows cast by valid federal regulation. The best arguments for states’ rights advocates accordingly may lie in the realm of political action, rather than that of constitutional litigation.

Lawrence Friedman

The Modern Council of Revision

At the Constitutional Convention in Philadelphia in 1787, a few delegates proposed the adoption of a Council of Revision. The Council was to consist of a small group of high officials (mostly judges) whose job it would be to determine the constitutionality of any law under consideration by Congress. The purpose of the Council of Revision was to keep in check the dangerous excesses of popular majorities. In the end, cooler heads prevailed, and the Framers wisely rejected this proposal.

However, what we have today is an unstoppable U.S. Supreme Court fully determined to pass judgment on just about any significant Congressional enactment. Nearly every statute of consequence now has to meet the approval of a handful of these unelected, lifetime officials. The recently completed term of the Court is replete with examples of this -- most egregiously, the Citizens United case back in January which gutted the McCain/Feingold Campaign Finance Law, a law based upon extensive hearings and findings by Congressional committees. And a most important new piece of legislation, the Health Care Law, is being challenged by teams of conservative lawyers and state attorneys general who have every expectation that the Supremes will have lots to say about whether that Law is permissible or not.

Thus, for all practical purposes, we have allowed the old Council of Revision to become part of our system of government even though it was specifically rejected by the much venerated Founding Fathers. So much for the original intent of the framers of our Constitution.

George Dargo

Ironically, the Constitution is Lost in Supreme Court Confirmation Hearings

A recent Boston Globe article analyzed the impact of Senator Scott Brown’s vote on the candidacy of Solicitor General Elena Kagan to the Supreme Court of the United States. Quotes abound from each side of the political spectrum, stating that Brown’s vote will be a unique key in determining whether he is a “true” Republican or just a Massachusetts liberal in GOP clothing. Similarly, the media has bandied about its usual speculation whether certain GOP Senators will “follow party lines” and vote against the nomination or will “cross the isle to support Elena Kagan,” possibly to their own political detriment.

As far as I can tell, few Senators or media outlets mention the fact that these proceedings, as a matter of constitutional law, do not constitute an opportunity for Senators to get a pure “vote” on whether Solicitor General Kagan is the right person for the job. To the contrary, the Senate has a substantially subordinated role in this process, and equating a Senator’s vote with a pure statement of his or her political ideology inflates both the Senate’s constitutional authority in confirming justices and the importance of the vote in assessing a Senator’s conservative or liberal bona fides. Ironically, by aggrandizing the role of the Senate in this process, by overstating its “say” in this matter by implicitly equating the Senate with the White House, we blatantly lose sight of the Constitution. Let me explain….

Article II, Section 2 of the Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” (Emphasis added). There are several crucial aspects of this language. First, this provision is located in the part of the Constitution detailing the powers of the President. Thus, the appointment of Supreme Court justices is a power committed to the President, subject to the advice and consent of the Senate. Second, the appointment occurs with the advice and consent of the Senate, not with its “approval” (a term used in Article I, Section 7 of the Constitution, giving the President power to sign or veto legislation if he “approve[s]” of it). Thus, the Senate’s power here is not the same type of full review accorded by the term “approval,” but instead is limited to mere “advice and consent.” Third, this provision is a notable exception to bicameralism in that only the Senate, and not the full Congress, gives advice and consent. Thus, the Senate’s power here is far more limited than the Congress’s general power to legislate. Finally, a bare majority vote fulfills the Senate’s advice and consent duty. This contrasts with the treaty-making power, also enumerated in Section 2 of Article II, which requires a two-thirds vote of the Senate. Thus, the Senate’s limited role in confirmation is even more limited than its role in ratifying treaties.

From all of this, we can glean that the Senate’s role in the confirmation process is extremely limited. Yet, if one listens to the media, one gets the impression that Scott Brown and his colleagues are just as much the “deciders” (to use a term popular with the last administration) here as the White House. That’s just not so, and by inflating the Senate’s role, we add fuel to the fire of the increasingly partisan and far less substantive tenor of the confirmation process. Rather than focusing on whether the candidate is qualified for the position, the opposing party in the Senate simply cross-examines the nominee in search of a “gotcha” moment. Rather than discussing qualifications, the opposing party now demands empty statements of fealty towards judicial deference to Congress and pro forma vows of abhorrence for judicial activism.

Rather than recognizing the important balance of constitutional authority inherent in this process, opportunistic politicians have transformed confirmation into mere political muckraking evidenced by the increasingly close votes for candidates who were eminently qualified for the High Court. (Since the 1988 confirmation of Justice Kennedy, not a single nominee has won unanimous confirmation. Scalia, J.: 98-0; Kennedy, J.: 97-0; Souter, J.: 90-9; Thomas, J.: 52-48; Ginsburg, J.: 96-3; Breyer, J.: 87-9; Roberts, CJ.: 78-22; Alito, J.: 58-42; Sotomayor, J.: 68-31).

The media and the Senate should stop treating the confirmation process as a measure of a Senator’s ideological philosophy. Instead, we should recognize that a vote for an opposing party’s nominee is the same type of constitutional deference currently demanded of nominees during their grilling in the Senate. As Senator Orrin G. Hatch (R-UT), has stated: there “are myriad reasons why political ideology has not been — and is not — an appropriate measure of judicial qualifications. Fundamentally, the Senate’s responsibility to provide advice and consent does not include an ideological litmus test.”

That’s good advice on how to give good advice and consent.

Louis Schulze

Inherent Executive Authority and National Security

Professor John Yoo, one of the architects of the Bush administration’s terrorism policies, recently wrote in the New York Times that, “[i]n foreign affairs …the chief executive should enjoy flexible powers to grapple with challenges abroad for which Congress is ill suited.” He made this statement in the context of a critical evaluation of Elena Kagan’s position on executive power, suggesting that, on Kagan’s view, Presidents “do not have the power to detain or interrogate enemy terrorists without criminal trial, monitor their communications or fire missiles at their leaders.”

Obviously, the President has the power to undertake each of these actions—but not because, as Yoo assumes, the President has the inherent constitutional authority to do so.

Let’s take a step back to January 2009, the first month of the Obama administration. Early on, the administration sought to distinguish itself from its predecessor in respect to the war on terror by publicly disclaiming reliance upon notions of inherent authority to validate executive decision-making in respect to the war on terror. Instead, the Obama administration has relied upon Congress’s September 18, 2001, authorization to use military force against those responsible for the September 11 attacks. While the Bush administration relied upon that Congressional authorization, it also claimed inherent authority under the Constitution to launch the war in Afghanistan, detain enemy suspected terrorists, and even establish a domestic electronic surveillance program.

Of course, the Obama administration’s position does not mean it has disclaimed any future reliance upon the President’s inherent constitutional authority. It means only that, for the moment, the administration believes that it does not need to rely upon such constitutional authority for any of the anti-terrorism actions it is pursuing (many of which are identical to the actions of the Bush administration).

The decision to rely exclusively upon Congressional authority was a wise one. First, the validity of Presidential action is least questionable when authorized by Congress; as Justice Robert Jackson wrote in Youngstown Sheet & Tube v. Sawyer, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”

Second, it is far from clear that the Constitution actually supplies the President the expansive inherent authority claimed by the Bush administration, even in matters of national security. As David Barron and Martin Lederman concluded in their magisterial study of Presidential authority, published in the Harvard Law Review, the President as commander-in-chief wields not a vast executive power over national security and foreign affairs, but rather a “prerogative of superintendence”—that is, a presumption of exclusive control over “the vast reservoirs of military discretion that exist in every armed conflict.”

This is nothing more—or less—than the authority of the President to make tactical and strategic decisions in the midst of combat operations or their equivalent. And the President cannot exercise this power absent a precipitating action—like a Congressional declaration of war, or in modern times, the kind of authorization for armed conflict issued on September 18, 2001. In other words, other than the power of superintendence, what power the President enjoys in the realm of national security and foreign affairs does not become his unless and until it is triggered by Congress. This realm simply is not one in which the President enjoys plenary authority, except in extraordinary circumstances. This understanding makes sense in light of other textual limitations on executive authority—indeed, given that the President cannot appoint ambassadors without the consent of the Senate, it would be odd if he could unilaterally control the nation’s security efforts without Congressional involvement or approval.

Further, this understanding of the relationship between Congress and the President in respect to national security and foreign affairs is consonant with the scheme of separation of powers established by the Constitution. In no area of law- or policy-making does the Constitution favor one branch exercising unchecked authority—though it does suggest a preference for representative democratic decision-making. And this makes sense if the framers were concerned that the federal government be kept accountable for its actions.

Nor does this understanding of the relationship between Congress and the President undermine the ability of the federal government to keep the nation safe, to act appropriately and expeditiously in respect to the many serious threats we face. It simply means that, to the extent the President has any inherent authority in matters of national security and foreign affairs, that authority has limits. Absent an attack on the United States or similar exigency, the President must turn to Congress and convince its members that the circumstances warrant a grant of authority.

In its September 18 authorization, Congress gave the President substantial authority to conduct the war on terror. If the President needs still more expansive authority to fight this war, he can ask for it. The fact that he has to ask for this authority serves to prevent the aggregation of untoward power in one branch of government—power that inevitably will be exercised within our borders as well as without, given the nature of the terrorist threat. This check on tyranny has a value that transcends the war on terror, and its lasting importance should cause us to hesitate before uncritically accepting arguments about inherent executive authority, like the one proposed by Professor Yoo.