Goodwin Liu: More of the Same

There has been much attention recently on the Republican decision to block President Obama’s nomination of law professor Goodwin Liu for the United States Court of Appeals for the Ninth Circuit. Attention is focused on his allegedly out-of-the-mainstream legal views.

But to this ex-law professor, Liu doesn’t look that unusual. He looks like just another of the dreary succession of tenured law professors who waste their considerable talents spinning “interpretive theories” to justify ever more federal power—particularly in areas outside the federal government’s constitutional responsibility. If you have ever studied Roman law, you will recognize their predecessors in second and third century imperial jurists who tortured the law in their efforts to explain why the Emperor should be all-powerful.

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What about Interstate Compacts? A frank look at the problems

In recent months, there has been interest in states forming compacts with each other to opt out of ObamaCare or other federal programs.  The idea is that because such compacts have the effect of federal law, they will supersede earlier federal laws (such as ObamaCare).

The strategy is apparently being driven by one or more enthusiastic financiers.  But I’d like to offer a few words of caution—not just as a constitutional/legal scholar but also as a former businessman and successful political activist.

Although the compact strategy is not a complete waste of time (see below), ultimately I think it is less cost-effective than other state “push-back” methods, such as local health care freedom laws, coordinated legal challenges, and (especially) applying for an Article V amendments convention.

Why so?  Well, let’s begin with the Constitution—Article I, Section 10:

“No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State. . . . ”

As this section says directly, the states can negotiate all they want, but nothing is effective unless Congress approves.  Now what do you think the chances are of Congress approving states opting out of Congress’s own laws?

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Is health insurance “Commerce among the States?”

Behind the current constitutional debates over ObamaCare, there is an assumption that Congress has power to regulate health insurance as “Commerce among the States.”  However, in various decisions over 150 years, the Supreme Court ruled that “insurance” was not within the Constitution’s definition of “Commerce.”  Only a single aberrant Supreme Court case says it is.…

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How Can Congress Spend All that Money? – Part II

In a recent post, I explained that Congress obtains authority to spend money from its enumerated powers.  All of those powers inherently require some expenditures—at least to buy the pen and ink needed to write the laws.  Some powers, such as the power to “maintain a Navy” (Art. I, Sec. 8, cl. 13)  require expenditure of great deal of money.

In addition, the Necessary and Proper Clause (I-8-18) enables Congress to spend funds to carry out a power in ways customary at the Founding or reasonably necessary.  For instance, Congress may hire revenue officers to collect the taxes authorized by I-8-1 because such was Founding Era custom, and it may maintain IRS websites because such has become reasonably necessary for efficient tax collection.

The Constitution imposed several limits on taxes, of which two are important here.  First, Congress could tax only to raise funds to be spent “to pay the Debts and provide for the common Defence and general Welfare of the United States.”  (I-8-1).  During the Confederation era, there had been many cases of states discriminating against other states, even in conduct of the Revolutionary War.  As explained during the ratification debates, the General Welfare Clause was designed to ensure that taxes could not be imposed purely to benefit particular sections of the country or particular special interests.  The goal was to ensure that government spent money impartially—a goal inherent in the Founders’ belief that government was a public trust, subject to fiduciary standards.

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The U.S. Budget Situation is Even Worse than You Imagined

Last week, Senator John Kerry (D.-Mass) was unhappy with a Republican plan to cut as much as $61 billion out of the federal budget.  “I think it’s an ideological, extremist, reckless statement,”Kerry said of the plan.

I hadn’t kept up on all the numbers recently, so I took a look at President Obama’s 2011 budget.  My shock at the numbers was matched only by my shock that even Kerry could say something that demented.

The fiscal situation America now faces is unutterably appalling.  I don’t want to bury you in numbers, so I’ll just mention a few, rounding out to the nearest hundred-billion.

First, the deficit is not just a few percentage points in the budget.  Fully a third of all spending is now on borrowed money—that is, $1.3 trillion out of 3.8 trillion.  That would be like spending $100,000 a year on a salary of $67,000.

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How Can Congress Spend All that Money?

How can a government that supposedly is one of enumerated powers spend trillions of dollars on everything from semi-porn art exhibits to bridges that lead to nowhere? How could a government of enumerated powers have gotten us into such a sinkhole of debt?

This posting will explain how the Constitution authorized Congress to spend money. Next week’s posting will explain how the Constitution limited spending. It also will explain how politicians and judges have burst those limits, resulting in the present chaotic situation.

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Does Congress really have authority to regulate campaign finance?

[Rob Natelson is the author of the new book, The Original Constitution: What it Actually Said and Meant. To learn more about this topic, hear Rob's podcast on Election Law and the Election Clause.]

The Constitution granted Congress only enumerated powers. Did those powers include measures of “campaign finance reform?”

Congress justifies campaign regulation as flowing from its constitutional power to regulate the “Time, Place and Manner of holding” elections for the House of Representatives and the “Time . . . and Manner of holding Elections” for the Senate. (Article I, Section 4, Clause 1.) The Supreme Court has assumed that when the Founders wrote “Manner of holding Elections” they included campaign rules, but there has been astonishingly little published research on the subject, either by the Court or by other legal writers. When the Court hears campaign finance cases, it focuses mostly on the First Amendment rather than seriously investigating whether the Constitution granted Congress the power in the first place.

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