Emoluments! Get Yer Red Hot Emoluments Here!

You never know where carrying around a pocket Constitution will take you. A few weeks ago, while attending the Federalist Society's annual lawyers convention, I got to chatting with UCLA law professor (and former member of the Cato Supreme Court Review editorial board) Eugene Volokh about something that a commenter to his well-known Volokh Conspiracy blog had queried: might Hillary Clinton, then just-announced as "on track" to become the next Secretary of State, be constitutionally disqualified from that job? I quickly turned to Article I, section 6, clause 2 of my handy Cato pocket Constitution (I carry one in every suit jacket and can attest that they make great stocking-stuffers) to look at the source of the problem: the Emoluments Clause. Indeed, it seemed that Sen. Clinton's appointment -- or that of any member of Congress whose term coincides with a cabinet pay raise, nothing against her in particular -- would violate the clear constitutional text.

I won't rehash the arguments here, especially because both Eugene and then I myself (and many others, including the venerable Supreme-Court-justice-in-waiting-of-Obama's-first-male-appointment Laurence Tribe) blogged about it. I thought that would be the end of it, but they keep pulling me back in. Today, for example, I have an elaborated version of my earlier blog post in the American Spectator. And tomorrow I'll be appearing at a Judicial Watch forum discussing the issue along with John O'Connor, author of "The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution." (The panel is at the National Press Club, 529 14th St. NW in Washington, runs 1:30 - 3:00pm, and open to the public.)

Interestingly, though Congress last week passed a "Saxbe Fix" for Sen. Clinton, we now have another emoluments problem, with Sen. Ken Salazar (D-CO), whom President-elect Obama has just nominated to be his Interior Secretary. And leaving aside the constitutional issue, that makes four senatorial vacancies (and two gubernatorial vacancies) created by the victory of the Obama-Biden ticket, including, of course, the Rod Blagojevich mess in Illinois. That has to be some sort of record, but I fear it's the only way the incoming administration will reduce the size of government (and only temporarily at that).

[Cross-posted at Cato's blog.]

Tis Better to Be Regulated by One Gorilla Than by Fifty Monkeys

When Congress lawfully exercises its constitutional powers to regulate a particular aspect of interstate commerce, states cannot also regulate in that area. This anodyne principle, arising from the Constitution’s Supremacy Clause, is known as preemption. Today, in its last public action of 2008 and its first 5-4 decision of the term, the Supreme Court violated that principle in a case involving cigarette labeling, Altria v. Good. The Court erroneously determined that the Federal Cigarette Labeling and Advertising Act does not preempt a suit for fraudulent labeling under state law.

While the Act expressly covers labeling and advertising “with respect to any relationship between smoking and health,” Justice Stevens’s opinion somehow finds that it does not cover smoking- and health-related suits predicated on the general duty not to deceive. (The Court was not asked to address, and did not address, the threshold question of whether the Act infringes on the free speech rights of advertisers.)

As Justice Thomas points out in dissent, the majority has created an unworkable rule that depends on how one frames “the legal duty that is the predicate of the common-law damages action” rather than the text of the federal statute at issue. Thus, not only will cigarette manufacturers who dutifully comply with federal law now face countless suits under countless state laws, but their fates in those suits will hinge on the creativity of counsel and the gullibility of judges. And of course, this type of reasoning can easily be extended to circumvent preemption in other regulatory fields, including this term’s eagerly awaited FDA case, Wyeth v. Levine.

[Cross-posted at Cato's blog.]

Race-Based Government in Paradise?

The current Supreme Court term is a bit of a letdown for those of us who track and comment on the machinations of One First Street; a steady diet of technical statutory interpretation questions without many “meaty” constitutional issues. Well, yesterday Cato filed its first amicus brief of the term in a case that itself is fairly sui generis — the issue is whether Hawaii can sell certain state lands without getting approval from a weird racialist commission called the Office of Hawaiian Affairs (OHA). But the case has broader ramifications for the Court’s equal protection jurisprudence. Moreover, as Cato’s resident Hawaii expert (we have a low bar here for that niche), I can say that the case threatens to set a terrible precedent for a state that has otherwise been a model of racial harmony.

In the 2000 case of Rice v. Cayetano, the Supreme Court held that a race-based scheme allowing only statutorily defined “Hawaiians” to vote for the OHA’s trustees was unconstitutional. Despite Rice, and despite Justice John Marshall Harlan’s dissenting statement in Plessy v. Ferguson 112 years ago that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,” the OHA continues to view Hawaiian citizens through racial lenses. This practice has spawned numerous lawsuits, including the present legal crisis in which the state’s sovereign authority to manage its land for the good of all of its citizens has been replaced with a court-imposed duty to hold the land for the benefit of one racial class.

Specifically, the Hawaii Supreme Court blocked the sale of certain state lands based on a mistaken (and race-based) interpretation of a joint resolution that Congress passed in 1993 to apologize to Hawaiian people for the overthrow of the Kingdom of Hawaii — which was itself based on a slanted view of history. Cato’s brief, joining with the Pacific Legal Foundation and the Center for Equal Opportunity, argues that race-based government is impermissible under the Fourteenth Amendment’s Equal Protection Clause, that the Constitution’s Indian Commerce Clause does not provide a basis for laws that grant preferences to “Native Hawaiians,” and that the Apology Resolution neither amended nor rescinded the federal laws that gave the State of Hawaii full control over the disputed land.

For other filings in the case, see here. Argument is scheduled for February 25.

[Cross-posted at Cato's blog.]

Woe Canada!

In these heady days of hope, change, puppies, and rainbows, not too many people are paying attention to the political tableau playing out in our northern neighbor. Those wags who do remember that Canada had its own election in October -- resulting in the reelection of Prime Minister Stephen Harper -- quip that, come January, the United States will have the most liberal government in North America.

Not so fast. It turns out that while Harper's Conservatives did strengthen their minority government -- that is, they won by far the largest plurality in the nation's multi-party parliament, increasing their previous result -- by definition a minority government can be outvoted if other parties gang up on them. Here's the math: Canada's House of Commons has 308 seats (meaning 155 constitutes a majority), of which the Conservatives have 143, the Liberals 77, the Bloc Quebecois (whose sole raison d'etre is that Quebec should be a separate country) 49, New Democratic Party (socialists) 37, and unaffiliated independents 2. And here's the short version of what's gone down to upset the applecart: In a new fiscal program unveiled last week, PM Harper announced, among other things, cuts to public funding of political parties and restrictions on public sector unions' right to strike. The opposition would have none of this and quickly arranged what in other circumstances might be a called a palace coup: Liberal leader Stephane Dion (already a lame duck after leading his party to its worst showing ever), citing the Conservatives' failure to prepare for a recession (nevermind that Canada's economy grew in the third quarter, and by more than it has all year), agreed on a tripartite deal with the NDP and Bloc that would oust the Tory government.

The biggest news here is that, for the first time ever, a separatist party will be a formal part of the government -- the king-makers, no less. The federalism/Quebec "question" is, shall we say, a delicate one in Canada, so this is a pretty big deal.

While the Bloc will not have any ministers (the Liberals and NDP are to divvy up cabinet spots in a 3:1 ratio), it will, per the formal text of the deal, be part of a "permanent consultation mechanism." As blogger and National Post columnist Ezra Levant put it:

Well, we already have one of those – it’s called Parliament. But Parliament is a
little too public for this coalition – you know, with nosy Canadians watching
how deals are made. This consultation mechanism will be private – a way for the
separatists to make their demands in secret, and for Prime Minister Stephane
Dion to meet those demands in secret.

Indeed, those demands were many: an immediate $1 billion transfer to Quebec, along with a slew of patronage posts, including Senate seats (the Prime Minister appoints senators, and there are currently 18 vacancies). Apparently, Elizabeth May, leader of the Green Party (which won no seats in parliament but captured 6.8% of the vote) was also offered a Senate seat.

And, as part of a "Policy Accord to Address the Present Economic Crisis," the new coalition proposes such "stimulus" measures as "support for culture, including the cancellation of budget cuts announced by the Conservative government" and "support for Canadian Wheat Board and Supply Management." And then came word of a (further) $30 billion national "bailout," as yet undefined. In other words, a mish-mash of left-wing policy ideas dressed up as emergency measures.

OK, so now what happens? Well, according to parliamentary procedure, Dion, as Leader of Her Majesty's Loyal Opposition, will call for a "vote of non-confidence" in the government. Assuming the Liberal-NDP-Bloc coalition holds together -- Canada's mainstream media, displaying the same bias as America's, calls this the "Liberal-NDP" coalition so average Canadians don't think about the separatists -- the prime minister will have to resign and Governor-General Michaelle Jean (the titular head of state, filling the role the British monarch used to, in this case appointed by the Queen on former Liberal PM Paul Martin's recommendation) can either invite Dion to form a government or call new elections. Harper plans to head off this turn of events by asking Jean to "prorogue" (suspend) the parliament until January, by which point the Conservatives will have plead their case to the people and thereby either win a confidence motion or force new elections.

The bottom line: Canada is having a bit of a constitutional crisis, the most likely result of which is an unstable governing coalition composed of liberals, socialists, and socialist separatists. In the meantime, the Toronto Stock Exchange has tanked. It almost makes card check, the Fairness Doctrine, and the auto bailout look good by comparison.

[Cross-posted at Cato's blog.]