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THE FIVE TESTS FOR A CONSTITUTIONAL AMENDMENT

August 15th, 2012 by ahawks

THE FIVE TESTS FOR A CONSTITUTIONAL AMENDMENT

Every proposed constitutional amendment should pass five analytical tests:

     1.     The Suitability Test: Is the proposal suitable for inclusion in the Constitution?

This test is not about the substance or merits of a proposed constitutional amendment, but whether it raises the broader concern of James Madison in Federalist No. 49 that frequent constitutional changes would “deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest government would not possess the requisite stability.”  For Madison, the amendment process was best reserved for “certain great and extraordinary occasions.”  Determining when a “great and extraordinary occasion” has arisen requires us to ask (1) whether the problem will remain important to future generations rather than of immediate concern to the generation seeking its adoption; (2) whether the proposal seeks to achieve a particular policy or partisan result instead of (i) addressing a systemic or structural problem or (ii) expanding individual political or civil rights; and (3) whether the problem can, as a practical or legal matter, be addressed by statutory, executive, or other (non-constitutional) means.   The paradigm example of a constitutional amendment that failed the suitability test is the 18th Amendment, which sought to impose alcohol prohibition on a nation caught up in the fervor of “progressive” reform.  (Although to be fair, the advocates of alcohol prohibition at least recognized that such prohibition required a constitutional amendment, unlike the drug prohibitionists of today.)

2.     The Policy Test: Is the proposal good policy?

This test is about the proposal’s substance or merits.   The suitability test will eliminate most proposed amendments, but assuming that the problem being addressed is serious enough to quality as a “great and extraordinary occasion”, is the proposal itself the best solution for actually solving (or at least diminishing) the problem?  Answering this question requires us to ask searchingly what result we are trying to achieve and whether this result is consonant with the moral and political values that we want to see prevail.  It is also a matter of judgment as to the costs of success, for we must never forget the law of unintended consequences should we actually achieve the result we are seeking.  Again the 18th Amendment is a cautionary tale.  Attempts to restrict the rights of our fellow citizens are almost always misguided, but when they lead so directly to massive crime and corruption, no benefit from such a proposed amendment can justify its ratification.

     3.     The Enforcement Test: Is the proposal self-executing or otherwise enforceable?

This is the test that is most often overlooked or intentionally ignored.  Some amendments are indeed self-executing, such as the 22nd (presidential term limits), or readily enforceable by the courts, such as the 24th (no poll taxes).  But Members of Congress often propose or co-sponsor amendments for their symbolic value to buttress their political standing or insulate them from political pressure, knowing full well that the amendment cannot or will not be enforced if ever ratified.  Here the paradigm is the so-called Balanced Budget Amendment (BBA) that has been periodically approved by the House of Representatives and which in March 1995 failed by a single vote in the Senate.  For decades I have been waiting for BBA supporters to explain how it would be enforced, but the only responses that they have ever given are (1) “fidelity to the Constitution” (i.e. Members of Congress will only pass balanced budgets because they swear an oath to the Constitution) and (2) super-majority voting to raise the debt ceiling.  Leaving aside the various loopholes in the BBA for war, national security, and 3/5th majorities, fidelity to a constitutional oath is not self-executing.  The more likely scenario is that lawmakers will claim to have honored their oaths by voting against spending which they personally oppose, yet fail to reach an overall consensus on legislation that actually balances the budget.  As for using the debt ceiling to enforce fiscal discipline, we were reminded how vacuous this idea was last summer when Congress raised the debt ceiling for the 75th time since March 1962 (Congressional Research Service Report RL31967, April 5, 2011 https://opencrs.com/document/RL31967/).

     4.     The Drafting Test: Has the proposal been properly drafted to achieve its policy goals?

This is perhaps the trickiest test to apply and meet because it not only has a practical component but an aesthetic one as well.  A constitutional amendment must accomplish the intended goal in language that is as clear, simple, and direct as possible, but without opening the door to judicial reinterpretations that twist the original meaning so as to gut the amendment in whole or in part.  We have still not recovered from the 1873 Slaughterhouse Cases that effectively rewrote the Privileges or Immunities Clause to make it a dead letter in all but a few uncontroversial instances of federal or national citizenship.  Drafters can seek to protect themselves from subsequent “judicial amendments” with detailed provisions, but this can result in wording akin to the prolixity of the tax code.  Even then there is no guarantee that the original meaning will be honored.  The framers of the P&I Clause could never list all of our “privileges or immunities”, any more than the framers of the 9th Amendment could list all of our unenumerated rights.  There is also the problem of language changing or simply being forgotten over time.  This concern can sometimes be addressed by adding specifically defined terms to an amendment, but if a court is determined to achieve a certain result, there is very little that can be done, at least in the short term.  Just ask Chief Justice Roberts what a “tax” (or “direct tax”) is for constitutional purposes.

5.     The Political Test: Is the proposal politically viable?

Lastly, it is important to remember that proposed amendments must achieve deep and widespread political support to run the proposal and ratification gauntlet under Article V of the Constitution.  The proposal must therefore have the potential for political viability, which in turn means that it must eventually gain bipartisan support.  To be sure, many of our greatest constitutional provisions were not seen as politically viable when first proposed.  The Civil War Amendments (13th, 14th, and 15th) required, well, a civil war, and the 19th Amendment required decades of political activism to achieve women’s suffrage.  Still, most of us have limited time and energy, so it is best to focus on proposals that are serious and significant, yet do not favor any political party or which are so ideologically motivated as to ensure failure.  One of my favorite proposals would change Tax Day from April 15 to the first Monday in November, but this should not be the focus of one’s Article V efforts given the enormity of our fiscal problems and the need to make spending restraint by the federal government our first priority.

The decision in McCulloch v. Maryland was handed down on March 6, 1819, and it did not take long for Marshall’s critics to mount a newspaper campaign denouncing the decision, particularly what they viewed as Marshall’s erroneously expansive reading of the word “necessary” in the Necessary & Proper Clause.

The first two news articles, signed by “Amphictyon” (believed to be Judge William Brockenbrough of Virginia) were published three weeks later, prompting two reply articles by Marshall under the pseudonym of “A Friend of the Union.” The debate continued with four additional articles by Marshall’s fiercest critic, Virginia Supreme Court Justice Spencer Roane (signing as “Hampden”), which in turn led to nine more essays by Marshall, this time as “A Friend of the Constitution.” For 150 years the full extent of this debate was unknown, but all of these articles were finally collected and published in 1969 by Stanford Law Professor Gerald Gunther in John Marshall’s Defense of McCulloch v. Maryland.

This ideological battle was a replay of the earlier struggle between the restrictive Jefferson-Madison-Randolph view of “necessary” as “indispensable,” on the one hand, and the expansive Hamilton view of “necessary” as merely “convenient,” on the other. In McCulloch, Marshall appears to have sided with Hamilton by equating “necessary” with “convenient” or “useful” to uphold the creation of the Second Bank of the United States.

But Marshall also equated “necessary” with “needful,” requisite,” “essential,” and “conducive to,” which created a conundrum that has distorted interpretations of the Necessary & Proper Clause ever since. How can something be “essential” yet “merely convenient” at the same time? Was Marshall just being too clever by half, straddling both sides of a linguistic fence, or was he actually far more respectful of the restrictive Jefferson-Madison-Randolph view than is generally understood?

As the “Friend” essays make clear, McCulloch was fundamentally an affirmation that the purpose of the Necessary & Proper Clause was to import the English common law doctrine of incidental powers, whereby lesser powers are implied if needed (“necessary”) to execute the enumerated principal powers, as long as they are employed in a manner consistent with the “letter and spirit” of the Constitution (“proper”).

Here is Marshall speaking as A Friend of the Constitution: “[E]verything necessary to give full effect to the grant, everything essential to the perfect enjoyment of the thing granted, passes by implication.” He traces this doctrine to the venerable English jurist Sir Edward Coke, whom Marshall quotes as saying that “when the law doth give anything, it giveth, implied by whatsoever is necessary for the taking an enjoying of the same. And, therefore, the law giveth all that which is convenient, … as much as is necessary.”

Coke’s use of both the words “necessary” and convenient” in the foregoing quote was a balancing act that Marshall further described as follows: “When so used, they signify neither a feigned convenience nor a strict necessity, but a reasonable convenience, and a qualified necessity; both to be regulated by the state of the parties, and the nature of the act to be done.”

A full understanding of the doctrine of incidental powers then explains the conundrum above and harmonizes the meaning of “necessary” in both its restrictive and expansive meanings. Since most, if not all, powers can be executed in a variety of ways, none of which by themselves are absolutely indispensable, Congress is restricted to those “proper” means that actually execute the enumerated power, but it is given a choice as to which “proper” means are most expedient or convenient to use in a given situation.

In other words, the Necessary & Proper Clause authorizes any means that might be necessary or essential as long as they are proper; and for Marshall, “proper” meant that (1) they could not be expressly prohibited by the “letter” of Constitution (e.g. the Bill of Rights); nor (2) implicitly prohibited by the “spirit” of the Constitution (e.g. structural principles of separation of powers and federalism, or unenumerated rights retained by the people).

The choice of means within these constraints is left to Congress’s discretion. It is in this sense that “necessary” is both “essential” and “convenient”: Congress can choose the most convenient means from among any means that might be essential if such means were the only one available, as long as the means chosen meet the standards above for propriety.

To underscore this point, Marshall added the restriction in McCulloch that Congress was also precluded from passing laws so attenuated from the enumerated power as to be nothing more than a “pretext of executing its powers … for the accomplishment of goals not entrusted to the government.” If Congress did any of these things, then McCulloch made clear that “it would become the painful duty of this tribunal … to say that such an act was not the law of the land.”

In explaining how incidental powers could be implied under the Necessary & Proper Clause, Marshall made two important distinctions in his “Friend” essays. First, he was careful to distinguish between what he called a “direct” means for executing an enumerated power and incidental powers that help perfect the use of the enumerated power. A direct means would be a statute that, for example, executed the Tax Power by actually laying and collecting taxes, or that executed the Postal Power by establishing post offices and post roads. An incidental power would be a second statute that supported or perfected the first statute by criminalizing tax evasion or mail fraud.

Second, Marshall differentiated between the ultimate goals or “objects” of the Constitution and the powers (both enumerated and incidental) granted by the Constitution to achieve those goals. In his initial “Friend of the Constitution” essay, Marshall identified the “objects” of the Constitution, not as the enumerated powers themselves, but as the grand purposes set forth in the Preamble: “to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their prosperity.”

The point of enumerating specific powers was to set forth those principal powers that the Framers believed would be collectively sufficient to achieve any of the “objects” in the Preamble. The point of the Necessary & Proper Clause was to ensure that those (express) principal powers could be executed by whatever (implied) incidental powers might be needed to supplement and perfect the direct means for executing the principal powers – assuming that the incidental powers themselves did not result in a violation of the Constitution or a pretext for violating the Constitution.

If the enumerated principal powers were not enough to achieve one of the Preamble’s goals, either because they were insufficient in themselves, or because the only available incidental powers were improper or pre-textual, then Congress has only one choice: formally add another enumerated power under the Article V amendment process, not add a principal power under the guise of an implied incidental power.

In terms of Obamacare, a direct means of executing the Commerce Power would be a statute that actually regulated interstate commerce by requiring health insurance policies sold across state lines to contain “guaranteed issue” and “community rating” provisions. An incidental power would be a criminal or civil sanction against any insurer that failed or refused to comply with this requirement. In the next post, I will examine how the actual Obamacare statute fares under the doctrine of incidental powers and Marshall’s insistence on distinguishing direct means v. incidental powers, on the one hand, and objects v. powers, on the other.

Copyright © 2012 Anthony W. Hawks. All rights reserved.

During the recent Supreme Court oral arguments on the Obamacare individual mandate, Chief Justice John Marshall was invoked no less than three times: once by Justice Sotomayer to suggest that Marshall’s opinion in Gibbons v. Ogden allowed Congress to police itself with respect to the Commerce Clause; once by Solicitor General Verrilli to assert that Congress’s reliance on a individual mandate  was well within the broad discretion over choice of means that Marshall upheld in McCulloch v. Maryland; and once by the challengers’ attorney, Paul Clement, who argued that the “great Chief Justice” would never have extended McCulloch so that Congress could force people to make deposits in the disputed Second Bank of the United States.

My purpose here is not to argue whose side Marshall would have chosen, but rather to show how Obamacare illustrates the ease with which the Supreme Court can “amend” the text of the Constitution with imprecise language that attempts to interpret that text.  (For a compelling argument that Marshall would indeed have struck down the individual mandate, read Federalism & Separation of Powers – ‘Health Laws of Every Description’: John Marshall’s Ruling on a Federal Health Care Law by Robert G. Natelson & David B. Kopel.)

The imprecise language here is from McCulloch itself, and it can be found in what is perhaps the most iconic statement of law ever written by the “great Chief Justice”:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

For nearly two centuries now, this language has been the lodestar for interpreting the Necessary & Proper Clause, which empowers Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” that are specifically enumerated in Article I, Section 8 and elsewhere in the Constitution.

Now look closely again at the beginning of Marshall’s quote and notice that he said the “end” should be legitimate, even though the Necessary & Proper Clause refers only to executing an enumerated power and nothing about using those powers to achieve legitimate “ends”.  By using an amorphous word like “end” instead of the specific textual word “power”, Marshall created a precedent that later enabled the Supreme Court to substitute “end” for “power” in the context of Commerce Clause cases that arose during the New Deal.

The “end” to which Marshall was referring was the execution of an enumerated power itself, not any goal or purpose that Congress might want to attain through an enumerated power.  But this changed in Commerce Clause cases following the 1937 decision in N.L.R.B. v. Jones & Laughlin Steel Corp.  Now the Necessary & Proper Clause was no longer tethered to “means” that actually “execute” the power to regulate interstate commerce; henceforth it would authorize any “means” that might achieve the goal or purpose that Congress was hoping to accomplish through the Commerce Power.

If you accept this linguistic sleight of hand – where Marshall’s notion of a legitimate “end” is magically transformed from the execution of an enumerated power to any permissible policy goal that Congress wants to achieve – then the argument for upholding the individual mandate is easy to make, reducible to a simple syllogism:

1st Premise: The primary goal or “end” of Obamacare’s Patient Protection and Affordable Care Act (Public Law No. 111-148 ) is to expand health insurance coverage for individuals to the greatest extent practicable.

2nd Premise:  The principal means for achieving this goal are the so-called “guaranteed issue” (no denials for pre-existing conditions) and “community rating” (no higher premiums for medical condition or history) reforms of the health insurance market.  The effectiveness of these reforms, however, creates an “adverse selection” problem (foregoing insurance until medical care is needed) that undermines the effectiveness of the statute as a whole by bankrupting insurers who must implement the guaranteed issue and community rating reforms.

3rd Premise:  The individual mandate counteracts the adverse selection problem by requiring virtually all individuals, but especially healthy ones, to buy health insurance before they need medical care.

Conclusion:  The individual mandate is constitutional because it is a necessary secondary means for ensuring that the primary means of guaranteed issue and community rating achieve the legitimate end of expanding health coverage.

Leave aside the startling fact that this argument gives Congress an unlimited power to fix any problem that Congress itself creates in trying to realize a constitutional goal; look instead at what Marshall actually meant to say in McCulloch:

Let the [power] be legitimate, let it be [an enumerated power] within the scope of the constitution, and all [direct means and incidental powers] which are appropriate, which are plainly adapted to [the execution of that enumerated power], which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

How do we know that this is what the “great Chief Justice” meant to say?  Because he told us in his public defense of McCulloch presented in a series of 11 essays published in the spring and summer of 1819, shortly after McCulloch was decided.  These essays, and how Obamacare would fare under this corrected reading of the Necessary & Proper Clause, will be the subject of the next post.

Copyright © 2012 Anthony W. Hawks. All rights reserved.

WHAT A REAL SWORD OF DAMOCLES WOULD LOOK LIKE.

November 23rd, 2011 by ahawks

Why did the deficit reduction super-committee fail?

For the same reason that the “Byrd Amendments” mandating a balanced budget failed in 1978, 1980, and 1982.

For the same reason that the Gramm-Rudman-Hollings law  and its sequestration procedures failed in 1985, and 1987.

For the same reason that the various “Budget Enforcement Acts” with their deficit reduction targets failed in 1990, 1993, and 1997.

For the same reason that the perennial PAYGO rules have always failed.

For the same reason that the Public Debt Limit has always failed.

The reason: none of these statutory measures have ever imposed (or could impose) an enforceable penalty of sufficient severity to compel Congress to balance the budget.

The media metaphor for such a penalty is the “Sword of Damocles,” which for the super-committee was supposed to be the automatic sequestration cuts that were part of last summer’s debt ceiling deal (Public Law 112-25).  To the surprise of no one, these sequestration cuts are either a charade if Congress rescinds them before they take effect on January 2, 2013 or a joke even if President Obama follows through on his pledge to veto any rescission bills.

Still, the Sword of Damocles metaphor is apt when you consider what Damocles did after seeing the sword hanging above.   According to legend, Damocles (think Congress) was a pandering courtier in the court of Dionysius II of Syracuse, who praised Dionysius for his great wealth and good fortune.  Dionysius thereupon offered the throne to Damocles, who gladly accepted only to discover the sword pointed directly overhead and hanging by a single hair of horse tail.  Damocles quickly decided that Dionysius was not so fortunate after all and hopped off the throne.

As told by Cicero, the moral is that no one can be happy living in constant fear, which Dionysius took to be the lot of any great leader.  Congress no doubt concurs since it hops off the throne any time the sword (think actual budget cuts) is about to fall.  For Dionysius, however, the fear was constant and could only be escaped by abdicating the throne, which he refused to do, just as Congress refuses to restrain its spending, much less abdicate its power of the purse.  Congress though does not need to relinquish its spending power because the threat posed by the statutory “swords” listed above can always be removed by simply passing an overriding statute.

The only way Congress can be forced to live in constant fear of losing its spending power is by constitutional amendment, but any such amendment must contain a penalty – a true Sword of Damocles – that is genuinely feared.  This is why the Balanced Budget Amendment that just failed in the House deserved to fail: it contained no penalty that would actually restrain the fiscal profligacy of Congress.

Such penalties do exist and here are three possibilities: (1) a Balanced Budget Veto Amendment that gives item veto power to the President whenever a fiscal year ends with a deficit; (2) a Balanced Budget Rotation Amendment that prohibits Members of Congress from running for re-election after five straight years of deficits; and (3) a Balanced Budget Pay-Cut Amendment that reduces Congressional pay by the same percentage of federal borrowing in the preceding fiscal year.

A Balanced Budget Veto is the most apt penalty (since it would also hold the President accountable for failing to use the item veto), and it would probably be sufficient as a stand-alone penalty given Congress’s severe jealousy over the power of the purse.  Of course you will never see Congress adopt any of these measures precisely because Congress will never impose a genuine penalty on itself.

Under Article V of the Constitution, however, the states can impose this type of Sword of Damocles penalty on their own.  With the collapse of the super-committee (and a budget deal unlikely to occur in a presidential election year), the door is now wide open for the states to succeed where our national leaders have failed.

Copyright © 2011 Anthony W. Hawks. All rights reserved.

The recent “Conference on the Constitutional Convention” (www.conconcon.org) at Harvard Law School began a civil and, I hope, fruitful dialogue among liberals, conservatives, and libertarians on the need and potential for an Article V convention to amend the Constitution.

The most striking aspect of the conference was the desire by both the left and right to invoke Article V, especially the fact that this desire arises out of a mutual concern over the influence that special interests now exert over national policies.  In a sense, this mutual concern parallels a similar congruity between Tea Party groups and the Occupy Wall Street (OWS) protesters.  Here is a Venn diagram illustrating what I mean:

(Hat tip: Jim Harper at the Cato@Liberty blog here).

A similar consensus could be found at ConConCon 2011, where liberals were targeting the Supreme Court’s Citizens United decision because they believe that it further corrupts our political system by greatly increasing the power of large corporations to influence federal elections and law-making.  For their part, conservatives and libertarians at ConConCon 2011 were focused on the excess of power that government already exerts, which facilitates rent-seeking by all special interests, not just large corporations.  As the Venn diagram illustrates, the area of common interest between Tea Partiers and OWSers is opposition to rent-seeking, at least by large corporations.

Another way to understand this point is to deconstruct the left’s growing attacks on the so-called “rich.”  Leave aside how any monetary threshold for defining the “rich” is purely subjective; the distinction I wish to draw is between the “economic rich” and the “political rich.”  By “economic rich” I mean anyone who becomes wealthy by creating wealth for others.  We just saw the passing of Steve Jobs – someone who epitomized what I mean by “economic rich” – and I do not recall a single commentator on the left or right decrying Jobs’ well-earned riches. Is this really the type of rich person whom OWS protesters want to castigate?

The ‘political rich,” on the other hand, are those persons who become wealthy by taking or diminishing the wealth of others through political connections and clout.  There is a world of difference between these two categories of “rich.”  It is easy to deplore the unsavory collapse of Solyndra because it resulted in the loss of a $535 million taxpayer subsidy, but libertarians would have deplored the result even if Solyndra had succeeded.  Such success would have meant the creation of another member of the “political rich” ready to fund favored politicians in return for yet more political favors.

If the OWS protesters are upset at Wall Street simply because of how much wealth has been acquired there, then they won’t get much support from the right, or I believe, from most of the middle class.  If, however, they focus their anger on how Wall Street wealth has often been acquired through influence peddling and a rigged political system, then they may well earn our sympathy.

These themes were played out at ConConCon 2011 in Professor Larry Lessig’s keynote address “from the left,” which was an updated version of what can only be described as the stump speech in his campaign to overturn Citizens United.  As entertaining as it was informative, the speech brought a standing ovation even by skeptics like me who nonetheless believe that the Lessig solution (public financing of federal elections) is seriously misguided.

The problem that so disturbs Professor Lessig is special interest legislation and the problem of rent-seeking at the federal level, for which he offered three egregious examples: (1) the Sonny Bono Copyright Term Extension Act of 1998 (also known as the “Mickey Mouse Protection Act”), which perverted the notion of copyright as an incentive to creative artists and authors by adding decades of copyright protection to their heirs and successors; (2) the prevalence of high fructose corn syrup in our diets as a result of sugar tariffs and corn subsidies, resulting in wide-spread obesity for the benefit of sugar and corn producers; and (3) the failure of then Vice President Gore to deregulate the telecommunications industry in 1994 because the legislators in Congress needed regulations for leverage in raising campaign funds.  The scourge in all three cases, according to Professor Lessig, is both the constant pressure for Members of Congress to raise money and the fact that they have become so dependent on lobbyists for their fundraising.  For Lessig, this illegitimate dependency of elected officials on the funders of elections has displaced the legitimate accountability of elected officials to the voters in elections, corrupting the political system to an unprecedented and dangerous degree.

In response, Lessig’s fellow ConConCon co-chair, Mark Meckler of Tea Party Patriots, suggested that problem was not one of dependent government, but overweening government, with the root cause being “money in government,” not money in campaigns.  As David Boaz of the Cato Institute has often remarked, “when you lay out a picnic, you get ants.”  Similarly, when you spend $3.7 trillion in a single fiscal year (2011), you draw lobbyists to Members of Congress like ants on steroids.

Ironically, Meckler’s point was demonstrated by Lessig’s story about Vice President Gore’s failed attempt at telecommunications de-regulation.  Rent-seeking suggests that it is always the special interest who comes to Capitol Hill (and The White House) in search of political favors.  The telecommunications example reveals just the opposite: rather than showing how an industry pressures Congress for preferences or protection, it confirms how Congress purposefully creates a benefit (or threatens a burden) that they can then withhold (or impose) as leverage to assure campaign contributions from the industry being “favored.”  We need to coin an idiom other than “rent-seeking” to describe this phenomenon – “rent-trolling” perhaps?

Also impressive was the second ConConCon 2011 keynote address, this one “from the right” by Professor Glenn Harlan Reynolds of the University of Tennessee College of Law (and Instapundit fame).  The Reynolds keynote picked up on a metaphor that he used in his Foreword to the Tennessee Law Review symposium discussed in the previous post.  Professor Reynolds compared the Constitution to a computer operating system, as opposed to all the “application software that is layered on top” in the form of statutes, regulations, and Supreme Court case law.

The point of the metaphor was cautionary in suggesting that even modest changes in the Constitution/operating system can crash the “machinery of government” in potentially catastrophic ways.  This led Professor Reynolds to conclude that a “constitutional convention is analogous to the ‘hyperspace’ button in the old Asteroid videogame – worth pressing only in extremis, since it was almost as likely to kill you as to save
you.”

Maybe so, but there are many who believe, like me, that today’s constitutional operating system has not been modestly changed, but drastically changed to the point where it is nothing like the operating system actually written into the Constitution.  For this we can thank not only (1) the numerous “judicial amendments” that have resulted from the Supreme Court’s failure to constrain the legislative power of Congress, especially on interstate commerce and “general welfare” spending; but also (2) the less numerous ”presidential amendments” that have resulted from Congress’s failure to constrain the executive power of the President, particularly with respect to war powers.

Finally, I should note who was not at ConConCon 2011, but should have been:  Professor Rob Natelson  of the Independence Institute in Golden, Colorado (who not coincidentally has the most substantive and research-based article of the Tennessee Law Review symposium) and Professor Michael Stokes Paulsen of the University of St. Thomas School of Law in Minneapolis.  These two scholars are perhaps the leading advocates
of opposing viewpoints on what is the central obstacle (in both theory and practice) to calling an Article V convention:  whether states can submit valid applications that are limited in subject matter.  Professor Natelson argues that they can, and Professor Paulsen asserts that they cannot.  Since I side with Professor Natelson on this issue, I will critique Professor Paulsen’s article, How To Count To 34: The Constitutional Case for a Constitutional Convention, in the next post.

Copyright © 2011.  Anthony W. Hawks. All rights reserved.

ARTICLE V NEWS

October 8th, 2011 by ahawks

When I began this blog in June I wondered whether there would be enough Article V-related topics to sustain it.  Fortunately, the summer gave us the debt ceiling debate, which provided a steady flow of commentary because of its many similarities to the flawed Balanced Budget Amendment (BBA).  Now, almost simultaneously, we have three significant events relating to an Article V convention that will provide blog topics for many weeks to come.

The first event is the recent release of the Spring 2011 symposium volume of the Tennessee Law Review on “Article V Constitutional Conventions.”   This is an understandable but misleading title since an Article V convention was/is intended to focus on proposals for discrete amendments, rather than a general “constitutional convention” where everything is up for grabs.  A hard-copy volume can be ordered for $13.00 by contacting Micki Fox, Business Manager, Tennessee Law Review, UT College of Law, 1505 W. Cumberland Avenue, Knoxville, TN 37996-1810 (email mfox2@utk.edu).

The first group of articles discusses the purpose, history, mechanics, and potential dangers of an Article V convention.  Most of the authors have now posted their symposium articles on the Internet, including Glenn Harlan Reynolds (who first suggested the symposium and wrote the Foreword); Rob Natelson (who is the only writer to have offered a detailed originalist “how-to” guide to calling an Article Convention); Elizabeth Price Foley (who discusses the range of federalism-restoration amendments that an Article V convention might consider); and two writers who debate the “runaway convention” problem, Michael Stern (here and here), who believes that safeguards can keep a convention in check, and Mary Margaret Penrose, who argues that “runaway” concerns are real and substantial).

A second group of articles each promotes a specific type of constitutional amendment that the various authors would want Congress or an Article V convention to propose, including Randy E. Barnett’s proposal for a Repeal Amendment; renewed calls for an Equal Rights Amendment by Ann Bartow
and for Term Limits by Richard A. Epstein; reform of Article V itself by Timothy Lynch; a Truth-in-Legislation or Single-Subject Amendment by Brannon P. Denning & Brooks R. Smith; and, lastly, a rather surprising amendment requiring that executions be made public by David Lat &
Zachary Shemtob
.  Sanford Levinson closes out the symposium with an afterword, but like the Barnett and Epstein articles, they do not appear to be posted yet on the Internet.

The second event was the recent “Conference on the Constitutional Convention” (www.conconcon.org) at Harvard Law School over a delightful New England autumn weekend (September 23-25, 2011) in Cambridge.  Like the TLR symposium volume above, ConConCon, as it was called, had the phrase “Constitutional Convention” in its title, which was both ironic and unfortunate.  It was ironic because there seemed to be a consensus at the conference that an Article V convention is not actually a “constitutional convention;” and unfortunate since the biggest obstacle to an Article V convention is the exaggerated fear of a “runaway” convention, which is only likely if a true constitutional convention were held.

I will only hazard a guess as to the number of participants – several hundred perhaps – but attendance aside, it more than met my expectations in a number of ways.  First, and foremost, both the presentations and follow-up discussions were serious and, for the most part, well-informed.  Second, the conference was ideologically balanced in the both the topics and speakers, which is appropriate since an Article V convention will only move  forward on a bipartisan basis.  For this, you have to credit the two Co-Chairs Larry Lessig (a passionate and nationally prominent liberal Harvard law professor) and Mark Meckler (co-founder of Tea Party Patriots), who together also set the tone for reasoned debate.  Finally, it was reassuring that the speakers and participants came from such a wide variety of backgrounds.  This was not an academic conference dominated by legal scholars with an esoteric interest in a long-neglected provision of the Constitution.  Rather the participants included scholars, think tank writers and activists, state legislators, community organizers, and even a cable TV host.  I will discuss the substance of ConConCon in the next post.

Finally, the third event is new law review article, How To Count To 34: The Constitutional Case for a Constitutional Convention by Professor Michael Stokes Paulsen of the University of St. Thomas School of Law in Minneapolis.  This article is important for three reasons:  (1) he is one of the few legal scholars to have actually waded through the hundreds of state applications to determine whether there are actually 34 states who have already called an Article V convention; (2) his current article is an update of a seminal article from 1993 (not readily available on the Internet) called   A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677 (1993); and (3) both articles are founded on the erroneous premise that state legislatures cannot limit their convention applications to a single issue or topic.  Indeed, Professor Paulsen concluded in 1993 that there were 45 valid state applications requiring Congress to call a general Article V convention, and today he believes that there remain 33 valid state applications for a general (but only a general) convention.  The problem here of course is that a general convention is exactly the type of convention that most states oppose, so if Professor Paulsen’s position prevails, and this the only type of convention that Article V authorizes, then Article V is effectively a dead letter. Fortunately, Professor Paulsen is wrong on this point, as I will discuss in later post.

Copyright © 2011
Anthony W. Hawks. All rights reserved.

By his own admission, the President’s primary objective in the recent debt ceiling debate was to ensure that it would not be repeated until after the 2012 elections.  By all appearances, he has achieved this goal.  No one can know for sure, of course, how long this deal will postpone the next debt ceiling debate – another Hurricane Katrina or 9/11 attack can always bust next year’s budget – but most press accounts believe that President Obama has pushed it off until 2013.

What we do know is that under the new Budget Control Act of 2011, the previous debt ceiling of $14.294 trillion was immediately raised by another $400 billion in exchange for $917 billion in promised reductions in future spending increases over the next 10 years (aka “spending cuts”).  As for more debt ceiling increases, the President can certify another $500 billion increase by December 31, 2011, and a further $1.2 trillion increase in 2012.

This last increase of $1.2 trillion can go as high as $1.5 trillion if (i) Congress approves up to $1.5 trillion in additional “spending cuts” through 2021 (in which case the debt ceiling increase and spending cut totals are supposed to match), or (ii) Congress passes a joint resolution with the words “balanced budget amendment” in its title, the precise terms of which have yet to be worked out – sort of like the baseball equivalent of a “player to be named later.”  All of these debt ceiling increases, except the immediate raise of $400 billion, can be disapproved by Congress, but only if a majority in both Houses affirmatively vote to disapprove.  Any tie goes to the President.

Regardless of how this budget deal is implemented, we can all be grateful for the constitutional debate it has sparked over the Public Debt Clause, particularly how it has driven opponents of the debt ceiling to seek legal justifications for having President Obama borrow money without Congressional authorization if the debt ceiling were not raised.  The President wisely refrained from doing so, which would have caused far more damage to our Constitutional system of checks and balances than would have resulted from a failure to pay every obligation that Congress has foisted on the American taxpayer.  Still, the mere fact that this argument gained traction in the media and legal academy underscores the premise of this blog (see Statement of Purpose), which is that the Constitution has been amended many times outside of Article V.

If the President had claimed the power to borrow money without Congressional approval and this action had been allowed to stand, then no less than five separate provisions of the Constitution would have been effectively amended, not just the Public Debt Clause that opponents of the debt ceiling want to rewrite:

1.   The Revenue Origination Clause (Article I, Section 7, Clause 1) would have been amended from “All Bills for raising Revenue shall originate in the House of Representatives” to “All Bills for raising Revenue shall originate in the House of Representatives, except for Revenue that the President raises by borrowing Money without Congressional authorization.”

 2.  The Borrowing Clause (Article I, Section 8, Clause 2) would have been amended from “Congress shall have the Power … To borrow Money on the credit of the United States” to “Congress and the President shall each have the Power … To borrow Money on the credit of the United States, but Congress can only borrow Money by enacting a Statute that is subject to Presidential veto, while the President can borrow Money without any Congressional authorization.”

3.   The Public Debt Clause (14th Amendment, Section 4, Clause 1) would have been amended from “The validity of the public debt of the United States, authorized by law, …, shall not be questioned” to “The validity of the public debt of the United States, whether or not authorized by law, …, shall not be questioned.”

4.   The Enforcement Clause of the 14th Amendment (Section 5) would have been amended from “The Congress shall have the power to enforce this article by appropriate legislation” to “The Congress shall have the power to enforce this article by appropriate legislation, while the President shall have the power to enforce the first sentence of Section 4 of this article by executive order.

5.   The Appropriations Clause (Article I, Section 9, Clause 7) would have been amended from “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” to “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law, except for Money drawn from the Treasury that the President raised by borrowing without Congressional authorization.” 

This manner in which the Appropriations Clause would be amended is particularly interesting because it would parallel the way in which the Taxing Clause (Article I, Section 8, Clause 1) was amended in 1936-1937, to what is now called the “General Welfare Clause.”

A detailed discussion of how this amendment took place outside of Article V is beyond the scope of this post and will be addressed at a later time, but the bottom line is that the Supreme Court in a series of decisions (United States v. Butler in 1936 and Helvering v. Davis in 1937) used the Taxing Clause language “to pay the Debts and provide for the common Defense and general Welfare” to convert a limitation on the taxing power into an independent spending power.

Before 1936, this language meant that Congress could only raise taxes for three general purposes: (1) paying debts of the United States; (2) promoting the common defense of the United States; and (3) promoting the general welfare of the United States, all of which had well-understood public meanings when the Constitution was first ratified.  By 1937, this language had been changed to mean that Congress now had a spending power that was no longer incidental and subordinate to the principal powers enumerated in the Constitution.  The problem was  greatly compounded, when as part of this amendment process, the Supreme Court gave Congress the exclusive power to define “general welfare” as it wished.

The linguistic sleight of hand by which the Supreme Court amended the Taxing Clause was to assume that any tax revenue raised for the “general welfare” could also be spent for the “general welfare” (defined as broadly as Congress wishes), rather than for the far more limited purpose –  imposed by the Necessary and Proper Clause (Article I, Section 8, Clause 18) – of implementing just those powers enumerated in Section 8 and elsewhere in the Constitution.

Returning now to the Appropriations Clause, opponents of the debt ceiling are making the converse argument.  Whereas the amended “General Welfare Clause” enables Congress to spend whatever tax revenue it can raise, opponents of the debt ceiling now want the Appropriations Clause to mean that the President can raise whatever tax revenue Congress decides to spend.  Such is what passes for constitutional debate these days.

The lead article in today’s Washington Post is all about how House Republicans, following a two-year strategy, “created a majority and gave itself a ‘leverage moment’ in the epic clash over the debt deal.”  When the yet-to-be proposed balanced budget amendment is rejected later this year, and the new super-committee is deadlocked over tax and entitlement reform, I seriously doubt many of the Tea Party-inspired Republicans will feel enthusiastic over the “epic” victory they supposedly achieved last week.

If this happens, we will only have the promise of $1.2 trillion in future “spending cuts” that are supposed to be automatically enforced by the new “sequestration” rules.  At that point, we may re-discover that sequestration can be also waived by Congress.  Are we then left with having to wait for another debt ceiling “epic clash” in 2013?  Maybe, but if so, opponents of another debt ceiling increase should start planning now.

As it turns out there is a strategy that fiscal conservatives can pursue – without waiting for the new “super-committee” – which will not only (i) make the debt ceiling a real ceiling the next time around, but also (ii) create a realistic chance for adopting a balance budget amendment that is not only enforceable, but also self-executing.  This strategy will be the subject of the next four posts.

Copyright © 2011 Anthony W. Hawks. All rights reserved.

LIBYA, WAR POWERS, AND THE CONSTITUTION

June 26th, 2011 by ahawks

Several recent events make it appropriate and timely to begin discussing the Constitution’s allocation of war powers.  First, today marks the 100th day of Libyan bombing by NATO and U.S. forces, well after the maximum 90-day deadline for terminating the use of American military force under the War Powers Resolution (WPR).

Second, on Friday (June 24) the House refused to authorize military involvement in Libya in a symbolic vote (123 to 295), but then acquiesced in President Obama’s imperious dismissal of the WPR by refusing in a substantive vote (180-238) to cut off most, but not all, funding.  (The proposed bill contained limited exceptions for search and rescue; intelligence, surveillance, and reconnaissance; aerial refueling; and operational planning).

Finally, we now know that President Obama rejected the conclusion of the DOJ Office of Legal Counsel that military operations in Libya constituted “hostilities” under the WPR.  Instead President Obama had his own John Yoo “torture memo” moment, when he insisted on shopping around until government lawyers could be found who were willing to tell the President what he wanted to hear.

No one disputes that the WPR raises difficult constitutional issues over the proper balance between Congress’s power to declare war, and the President’s role as Commander-in-Chief.  Still, there is a basic misconception in the current debate over Libya shared by both supporters and opponents of the President.  This misconception is that, whatever your views on the constitutionality of the WPR or the merits of the Iraq War, President George W. Bush at least complied with the WPR by obtaining prior congressional approval for his invasion of Iraq.

For example, in his most recent Washington Post column (“Who takes us to war?”), Charles Krauthammer denigrates the constitutionality of the War Powers Resolution, but urges every president to have the “constitutional decency to get some congressional approval when he takes the country to war.”  He then cited President Bush as a “model for such constitutional restraint.”

In fact, the Iraq War Resolution that President Bush signed in October 2002 (Public Law 107-243) is a prime example of a President abusing his powers as Commander-in-Chief to nullify Congress’s power to declare war.  As written and proposed by the Bush White House, the original draft of the Iraq War Resolution identified three objectives:

1.   “defend the national security interests of the United States against the threat posed by Iraq”;

2.   “enforce the United Nations Security Council Resolutions” regarding Iraq; and

3.   “restore international peace and security in the region” (emphasis added).

The resolution passed by Congress and enacted into law, however, only contained the first two limited objectives, re-worded slightly as follows:

1.   “defend the national security of the United States against the continuing threat posed by Iraq”; and

2.  “enforce all relevant United Nations Security Council resolutions regarding Iraq.”

Significantly, Congress refused to grant President Bush a blank check to “restore international peace and security in the region” and removed this war aim from the final draft.  As the Iraq War proceeded, however, the first objective was achieved when Saddam Hussein was captured in December 2003.  Similarly, the second objective was achieved no later than September 2004, when the Iraq Survey Group issued its final report on the absence of weapons of mass destruction in Iraq.  At that point, the limited objectives of the war that Congress had constitutionally authorized were all met and the limited war based on those objectives was over.

From a constitutional perspective, President Bush should have declared “mission accomplished” at that point and either (i) begun withdrawing our troops from combat areas, or (ii) returned to Congress for explicit authorization of his original goal of “restor[ing] international peace and security in the region” or a similar open-ended goal like building a stable democracy in Iraq.

Instead, President Bush ignored the fact that Congress had already rejected his third objective and chose instead to act as if Congress had endorsed it, fearing no doubt that Congress would have refused a second request.  As a result, the Iraq War that continued after 2004 was never constitutionally authorized, and it was this second unauthorized Iraq war that President Bush was unprepared to fight and which the American public ultimately abandoned in the 2006 and 2008 elections.

President Obama’s legal justification for flouting the War Power Resolution – the lack of actual “hostilities” in Libya – is risible, and one wonders why he refrained from seeking congressional authorization in the early days of bombing.  Congress would doubtless have passed such a resolution, thereby giving the President political cover if the war began to drag on and became too costly and unpopular, as now appears to be happening.

It is probably too late now for President Obama to seek congressional authorization, relying instead on the “you must support the troops, now that they are fighting” argument that President Bush invoked so often and so well.  The experience of the Iraq War Resolution, however, shows that even if President Obama had obtained a formal resolution, it is easy to forget how easily such resolutions can be snubbed in practice.

Copyright © 2011 Anthony W. Hawks. All rights reserved.

When the Framers adopted Montesquieu’s separation of powers framework for the 1787 Constitution, the point was to divide political power between Congress and the President, not between opposing political parties.   From the beginning, however, there has been no escape from party conflict, whether the Federalist v. Anti-Federalist debates of the 18th Century or today’s divide between Democrats and Republicans.

Not surprisingly, a frequent lament among voters and commentators alike is the inability of our political leaders to cross party lines and reach compromise solutions.  But as Senator Robert Byrd (D-WV) often reminded us, this is precisely the type of political courage that supporters of the Balanced Budget Amendment wrongly believe we can legislate into the Constitution.

 If we truly want Congress to be less partisan and more willing to compromise, then we need to invoke the old saw that the enemy of my enemy is my friend.  For Congress the “enemy” should not be the other party, but rather a constitutional penalty that applies to the institution as a whole, so that both parties are affected equally and all Members of Congress are at similar risk.  If Democrats and Republicans both view such a penalty as the “enemy,” then each side has an incentive to become the other’s “friend.”

Bipartisanship of course is not a solution in itself.  For decades Congress and the President have frequently joined in a bipartisan effort to increase the scope, size, and cost of government.  Instead, what is needed is a bipartisan (or non-partisan) constitutional penalty for deficit spending.  What would such constitutional penalty look like?

The answer lies in recognizing what Members of Congress value most, regardless of party affiliation, namely: (1) political power; (2) tenure in office; and, to a lesser extent, (3) the compensation they receive as government employees.  A loss in any of these areas can be viewed as a penalty, so here are three concrete solutions, all of which admittedly require a constitutional amendment:

First : a novel type of item veto that shifts the power of the purse from Congress to the President, but only until Congress balances the budget – call it a Balanced Budget Veto Amendment;

Second: a requirement that Members of Congress leave office if they serve for five consecutive fiscal years of deficit spending – call it a Balanced Budget Rotation Amendment;

Third: an automatic reduction in the compensation of Congress by the same percentage by which each fiscal year is financed by deficits – call it a Balanced Budget Compensation Amendment.

A detailed discussion of these three proposals will have to await future blog postings.  For the present, I would just note that each of these penalties have the following elements in common:  (1) they would give all Members the same institutional stake in balancing the budget; (2) they would be nonpartisan in not favoring one political party over the other; (3) they would threaten sanctions severe enough (collectively, if not individually) to overcome each Member’s fear of political retribution from balancing the budget; and (4) they would be self-executing in that judicial enforcement would be rare and annual budgets would not become embroiled in perpetual litigation.

An institution-wide penalty is appropriate because no single Member of Congress can be held responsible for failing to balance the federal budget.  Moreover, Congress is a political institution so the penalty for failing to balance the budget should be political, not judicial, in nature.  Elections are political of course, but the very nature of elections must favor one party over the other and thus cannot provide the institution-wide pressure needed to overcome the pervasive political gridlock in Washington.

When it comes to deficit spending or the national debt, if you want political courage, then you must first legislate political fear.  Any serious effort to rein in the growth of government, much less impose actual cuts in spending (as opposed to phantom cuts in the growth of spending) must threaten a loss of political power or loss of political office or reduced compensation for all Members of Congress across both parties and the entire ideological spectrum.

Each of the three proposals described above legislates a different type of political fear, and they can stand alone as separate amendments.  Or they can be joined into a single omnibus amendment – let’s call this one the Fiscal Enforcement And Responsibility Amendment, or FEAR Amendment for short.

Copyright © 2011 Anthony W. Hawks. All rights reserved.

In October 1993, the leading opponent of the Balance Budget Amendment (BBA), Senator Robert Byrd (D-WV), issued a challenge to his colleagues that no one in Congress has ever met.  In a Washington Post op-ed piece, he demanded to know why Congress would balance the federal budget just because a constitutional amendment required it:

“Saying it will not make it happen, even if it is the Constitution that says it…. The bottom line is courage.  I do not see how a constitutional amendment will give us politicians any more spine than we now have.”

Senator Byrd was arguing that you cannot legislate political courage, but is this really true?  The ineffectiveness of the national debt ceiling certainly suggests that it is true, as do similar statutory failures like the Gramm-Rudman-Hollings law.  The last-minute budget compromises that typically end these political fights, however, provide a better answer to Senator Byrd’s challenge: instead of trying to legislate political courage, we need to find better ways of legislating political fear.

Suppose you are on a plane, and the flight attendant hands you a parachute with instructions to jump because the plane is flying into a dangerous storm.  Would you have the “courage” to jump?  Probably not – even if you believed the plane was in danger.  Now suppose the entire crew tells you that the plane is going to crash, and they proceed to jump themselves.  Chances are you would quickly summon the “courage” to follow them, regardless of any misgivings.

Jumping from a plane in these circumstances would doubtless show courage, but it would not be courage that motivated you to jump.  Rather it would be the fear of an unacceptable alternative.  Similarly, Congress will have the political “courage” to balance the budget only when they fear something greater than the political backlash they now dread from cutting spending or raising revenue with higher taxes.

How do you legislative political fear?  I will offer concrete answers to this question in later posts, but for the moment let us start with the premise that Congress will only make the hard choices needed to balance the federal budget when a penalty exists that makes it more painful to Congress not to balance the budget.

This is what House Republicans were trying to accomplish in April with their hold-up of funding for the remainder of 2011, and what they are trying to achieve now with the debt ceiling.  The problem with forcing hard choices by refusing to raise the debt ceiling or pass annual spending bills is that these actions, if implemented, would penalize the country – not Congress – with fiscal chaos or government shutdowns.  Instead of harming the country as a whole, any constitutional penalty for deficit spending should be aimed at Congress, which after all is the institution responsible for both taxing and spending.

Of course, the President has an important role to play in proposing an annual budget, but no constitutional amendment is needed to hold the President accountable for this role in the budget process.  Congress has all the constitutional authority required to pass a statute compelling the President to propose a balanced budget and/or spending less than 18% percentage of GDP.  Indeed, the current version of the BBA contains such a requirement, but its supporters cannot explain why a superfluous provision like this is needed.

 Congress, on the other hand, will only act if there is constitutional penalty for failing to act.  One would like to think that the Constitution already provides such a penalty by giving voters to ability to vote out profligate legislators.  Experience has shown, however, that voters cannot effectively pressure Congress to limit spending, regardless of their support for a balanced budget in the abstract.

 Fortunately, the Framers did not simply rely on elections to rein in our politicians.  They also created a system of limited enumerated powers that would be exercised in a separation of powers framework designed to have our branches of government keep each other in check. To rein in deficit spending we need an institutional penalty directed at Congress that invokes and strengthens this framework.  What an institutional penalty of this nature might look like will be the subject of the next post.

 Copyright © 2011 Anthony W. Hawks. All rights reserved.

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