Ramming Through Radical Nominee Takes Back Seat to Ramming Through Obamacare

Senate debate on the health care reconciliation bill forced Democrats to postpone yesterday’s hearing for Goodwin Liu, President Obama’s controversial nominee to the Ninth Circuit (which covers the western states). Senate Judiciary Committee chairman Patrick Leahy accused Republicans of “exploiting parliamentary tactics and Senate Rules” — GOP senators have stopped consenting to afternoon hearings for the duration of the health care debate – to delay Liu’s appointment “at the expense of American justice.”

Nothing could be farther from the truth. Despite the postponement, Liu’s confirmation is proceeding at breakneck speed. His hearing was scheduled only 28 days after his nomination, while the average Obama appointee waited 48 days for a hearing and the average Bush appointee waited 135 days. And Senate Democrats themselves cancelled all hearings Tuesday afternoon so they could attend the ObamaCare signing ceremony at the White House.

Moreover, Leahy’s intent is not so much to urge the timely vetting of judicial nominees, but to further the government’s Blitzkrieg takeover of civil society – before the Democrats’ congressional majorities turn into pumpkins this November. As Liu stated in a January interview with NPR, “now we have the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice.”

According to Liu, that progressive vision includes constitutional rights to health care, education, housing, and welfare payments. Liu states outright that “rights to government assistance” are “essential to liberty.” He defends this contradiction by claiming that “experiences of other nations suggest that the existence of such rights is compatible with constitutionalism.”

Liu’s hearing before the Senate Judiciary Committee thus concerns much more than a seat on a federal appellate court (just when you thought the Ninth Circuit couldn’t get more radical). The Washington Post has noted that the hearing might serve as a test of Goodwin Liu as a Supreme Court nominee. With so much potentially at stake, postponing Liu’s hearing to ensure it receives the Senate’s undivided attention — and any other legal method of stopping or delaying by even one day his ascension to the bench — serves “American justice” rather than betraying it.

CP: Cato's blog

Is the Health Care Lawsuit For Real?

The Hill asked me the following question:

Thirteen state attorneys general have filled a lawsuit claiming that the new healthcare reforms are unconstitutional. Is this a real legal challenge or a political stunt?

Here’s my response:

The challenge is very real—and necessary—but we are in uncharted territory here
so it’s difficult to predict how courts will react.

The strongest and most important legal argument attacks the constitutionality of the individual mandate to buy a certain approved health insurance plan. Never before has the federal government—or any other—tried to force Americans to buy a particular good or service. Never before has it said that every man, woman, and child alive has to purchase a particular product, on penalty of civil or criminal sanction or
forfeiture. And never before have courts had to consider such a breathtaking assertion of raw power — not even during the height of the New Deal, when the
Supreme Court ratified Congress’ regulation of what people grew in their backyards on the awkward theory that such behavior affected interstate commerce.

The individual health care mandate is an even greater expansion of congressional power under the Commerce Clause. And it cannot be justified under the Necessary and Proper or General Welfare Clauses either, because these provisions guide the exercise of Congress’ enumerated powers without adding to them. In short, if the challenges to this health care “reform” fail, nobody will ever be able to claim plausibly that the Constitution limits federal power.

You can read here the responses of other pundits — including several non-lawyers, curiously.

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If You Think Obamacare is Bad...

Today the Senate Judiciary Committee will hold a hearing for the nomination of 39-year-old Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. Liu’s confirmation would compromise the judiciary’s check on legislative overreach and push the courts not only to ratify such constitutional abominations as the individual health insurance mandate but to establish socialized health care as a legal mandate itself.

Yesterday Cato legal associate Evan Turgeon and I published an op-ed on the Liu nomination in the Daily Caller. Here are some highlights:

While Liu purports to develop an original approach [to constitutional
interpretation], his nuanced methodology fails to generate a novel result. He
may “suggest a more cautious and discriminating judicial role than one that is
guided by a comprehensive moral theory,” but it is impossible to imagine a case
in which Liu would reach a different outcome than a judge employing the
(disfavored) “Living Constitution” analysis. And this is not surprising, given
that the stated purpose of Liu’s scholarship is to establish legal
justifications for “rights” foreign to the Enlightenment tradition on which our
republic rests — those that make demands on others (unlike, say, the right to
free speech, which makes no demands on anyone).
....
Even more dangerously, Liu’s approach flouts the Constitution’s very
purpose: protecting individual rights by limiting government power. As the
branch responsible for interpreting the Constitution, the judiciary must defend
citizens’ inalienable rights, such as the rights to life, liberty, and property,
from infringement by government actors. Liu’s approach turns that role on its
head. He views the judiciary not as a safeguard against state tyranny, but as a
rubber stamp for any legislation that reflects popular opinion. And it’s a
one-way ratchet: Liu would likely rule that the next Congress could not repeal
Obamacare because it is precisely the kind of “landmark legislation” — to borrow
progressive Yale law professor Bruce Ackerman’s phrase — that cannot be
undone.

As a member of the ACLU and chairman of the American Constitution Society,
it is no secret what kind of rights Liu would find justified by “collective
values.” Liu lists “education, shelter, subsistence, health care and the like,
or to the money these things cost” as examples of affirmative rights he would
seek to establish in law — to constitutionalize beyond a future legislature’s
reach.

Read the whole thing. Also read Ed Whelan’s series of posts on Liu at NRO’s Bench Memos blog. (I don’t agree with Ed on everything, but he’s doing a workmanlike job on this important nomination, as he did on Harold Koh.)

And if all the above isn’t enough, here’s Liu in the 2006 Yale Law Journal:

On my account of the Constitution’s citizenship guarantee, federal
responsibility logically extends to areas beyond education. Importantly,
however, the duty of government cannot be reduced to simply providing the basic
necessities of life….. Beyond a minimal safety net, the legislative agenda of
equal citizenship should extend to systems of support and opportunity that, like
education, provide a foundation for political and economic autonomy and
participation. The main pillars of the agenda would include basic employment
supports such as expanded health insurance, child care, transportation
subsidies, job training, and a robust earned income tax credit.

As Evan and I wrote:

We don’t expect a president of either party to appoint judges who adhere
100 percent to the Cato line — though that would be nice — so we do not object
to every judicial nominee whose philosophy differs from ours.

Goodwin Liu’s nomination, however, is different. By far the most extreme of
Obama’s picks to date, Liu would push the Ninth Circuit to redistribute wealth
by radically expanding — and constitutionalizing — welfare “rights.”

The Senate needs to understand who it’s dealing with here.

CP: Cato's blog

Individual Mandate Is Constitutional – If You Rewrite the Constitution

House Judiciary Committee Chairman John Conyers (D-MI) was asked on Friday where in the Constitution Congress gets the power to force people to buy health insurance. He said, “Under several clauses, the good and welfare clause and a couple others.”

As it happens, there is no “good and welfare clause” — which Conyers should know, as both judiciary chairman and a lawyer. But even if you excuse his casual use of constitutional language, what he probably means — the General Welfare Clause of Article I, Section 8 — is not a better answer. What that clause does is limit Congress’s use of the powers enumerated elsewhere in that section to legislation that promotes ”the general welfare.” (So earmarks are arguably unconstitutional, though you can make a colorable argument that, when considering a pork bill as a whole, with all parts of the country getting something, that monstrosity is collectively in “the general welfare” — maybe.) In any event, the General Welfare Clause doesn’t give Congress any additional powers — and I’d be curious to know what the other “several clauses” are.

Conyers also noted that, “All the scholars, the constitutional scholars that I know . . . they all say that there’s nothing unconstitutional in this bill and if there were, I would have tried to correct it if I thought there were.” Well, Mr. Conyers, to start let me introduce you to three constitutional scholars — not fringe right-wing kooks or anything like that, but respected people who publish widely — who think Obamacare is unconstitutional. Now will you try to “correct” the bill?

For a survey of the various constitutional issues attending Obamacare, see Randy Barnett’s oped from Sunday’s Washington Post.

CP: Cato's blog

Taxpayer Choice + Parental Choice = Education Reform That's Constitutional

Arizona grants income tax credits for contributions made to school tuition organizations (“STO”). These STOs must these donations for scholarships that allow students to attend private schools. This statutory scheme broadens the educational opportunities for thousands of students by enabling them to attend schools they would otherwise lack the means to attend.
The Ninth Circuit held that the tax credit program violated the Establishment Clause because many of the STOs — as it happens, a decreasing majority — provide scholarships for students to attend parochial schools. Counsel for the defendants, including the Institute for Justice, asked the Supreme Court to review the case — and indeed to summarily reverse the Ninth Circuit, based in part on a 2002 case (Zelman v. Simmons-Harris) rejecting a similar challenge to a school voucher program. Cato filed a brief, joined by the Foundation for Educational Choice and the American Federation for Children, supporting this request.

Our brief argues that the funds received by STOs are the product of individual taxpayers’ “genuine and independent choice” — the touchstone by which the Court judges the religious neutrality of statutes allowing for taxpayer money to fund religious education. Moreover, the tax credit scheme is indistinguishable from similar charitable tax deduction programs that the Court has previously held to pass constitutional muster. While the Ninth Circuit reasoned that Arizona parents feel pressured to send their kids to parochial schools due to limited scholarships available for secular schools, it failed to consider that the share of STO money available to secular schools was nearly twice as large as the share of families choosing to send their children to secular schools.

Far from being an impediment to parental freedom, the autonomy Arizona grants to taxpayers and STOs is ultimately essential to it. More generally, should the lower court’s opinion be allowed to stand, the progress made to broaden the educational opportunities of students across the country will be stifled.

The name of the case is Arizona Christian School Tuition Organization v. Winn. The Court will likely decide before it breaks for the summer whether to take it up — and, indeed, whether to summarily reverse the Ninth Circuit.

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Scalia Can No Longer Call Himself an Originalist

As I blogged last week, the Supreme Court didn’t seem amenable to Privileges or Immunities Clause arguments in last week’s gun rights case, McDonald v. Chicago. This is unfortunate because the alternative, extending the right to keep and bear arms via the Due Process Clause, continues a long-time deviation from constitutional text, history, and structure, and reinforces the idea that judges enforce only those rights they deem “fundamental” (whatever that means).

It was especially disconcerting to see Justice Antonin Scalia, the standard-bearer for originalism, give up on his own preferred method of interpretation — and for the sole reason that it was intellectually “easier” to use the “substantive due process” doctrine.

Josh Blackman and I have an op-ed in the Washington Examiner pointing out Scalia’s hypocrisy. Here’s a choice excerpt:

Without the Privileges or Immunities Clause … the Court must continue
extending the un-originalist version of substantive due process to protect the
right to keep and bear arms. To give original meaning to the Second Amendment,
it must ignore the original meaning of the Fourteenth Amendment!

Yet this is the line Scalia took last week: Instead of accepting the plain
meaning of the Privileges or Immunities Clause—which uncontrovertibly protects
the right to keep and bear arms—the justice chose a route that avoids disturbing
a 140-year-old precedent rejected by legal scholars of all ideological
stripes.

In 2008, Scalia wrote, “It is no easy task to wean the public, the
professoriate, and (especially) the judiciary away from [living
constitutionalism,] a seductive and judge-empowering philosophy.” But at the
arguments in McDonald, he argued that while the Privileges or Immunities Clause
“is the darling of the professoriate,” he would prefer to follow substantive due
process, in which he has now “acquiesced,” “as much as [he] think[s it is]
wrong.”

Put simply, if the opinion Scalia writes or joins matches his performance last week, he can no longer be described as an originalist (faint-hearted or otherwise). A liberty-seeking world turns its weary eyes to Justice Clarence Thomas — who has expressed an openness to reviving the constitutional order the Fourteenth Amendment was designed to create — to convince his wayward colleague that the way to interpret legal text is to look to its original public meaning.

Read the whole thing. CP: Cato's blog

Gun Rights Secure, Liberty Less So

This morning the Court heard argument in McDonald v. Chicago, the case asking whether the right to keep and bear arms extends to protecting against actions by state and local governments. Just as importantly, it asked whether the best way to extend that right would be through the Due Process Clause of Privileges or Immunities Clause of the Fourteenth Amendment (because the Second Amendment doesn’t apply directly to the states).

From the initial questioning through the end, it was quite clear that those living in Chicago — and, by extension, New York, San Francisco, and other places with extreme gun restrictions — will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves. Unfortunately, the Court did not seem inclined to adopt the arguments propounded by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go. Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it — even if that were the path that hewed more closely to the constitution’s true meaning.

This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution. As it stands now — and as it seems will be the case after McDonald is decided — many of our most cherished rights are protected only to the extent that judges are willing to label them as sufficiently “fundamental” to warrant such protection. That is an unprincipled jurisprudence and one that hurts the rule of law.

In short, it is a shame that the Supreme Court seems to be wasting a perfect opportunity to bring constitutional law closer to the Constitution. It is an even greater shame that it is wasting this chance to use guns to protect liberty.

CP at Cato's blog

Using Guns to Protect Liberty

Tomorrow the Supreme Court will hear oral argument in McDonald v. Chicago — the Second Amendment case with implications far beyond gun rights. The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.

In response to the oppression of freed slaves and abolitionists in southern and border states after the Civil War, the Fourteenth Amendment’s drafters sought to protect individual rights from infringement by state and local governments. The amendment’s Due Process Clause and Privileges or Immunities Clause provided overlapping but distinct protections for these rights. The Court decided in the 1873 Slaughter-House Cases, however, that the Privileges or Immunities Clause only protected Americans’ rights as national, not state, citizens. This reactionary holding eviscerated the clause, rendering it powerless to protect individual rights from state interference.

McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights. Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments. For a more detailed discussion of McDonald’s potential implications, and how the Court should rule, see my recent op-ed here.

I will also be participating in several public events this week on McDonald, the Fourteenth Amendment, and firearm regulation. Today at 4:00 p.m., I will be speaking at a Cato policy forum, which will be broadcast live on C-SPAN and which you may watch online here. Tomorrow at 3:30 p.m., I will participate in a post-argument discussion of McDonald at the Georgetown University Law Center, which event is cosponsored by the Federalist Society and the Georgetown Journal of Law and Public Policy (where Josh Blackman and I recently published a lengthy article on the subject). And on Wednesday at noon, I will be participating in a Cato Capitol Hill briefing on McDonald and the future of gun rights at the Rayburn House Office Building, room B-340 (more information here).

CP at Cato's blog