In the 220+ years since it was drafted and ratified, the United States Constitution has been amended 27 times. The first 10 amendments were actually adopted prior to Vermont’s ratification of the Constitution itself (Vermont was the last of the 13 colonies to ratify), as part of a strategic concession by Federalists to secure ratification. Two of the remaining 17 amendments cancel each other out, as the 21st Amendment was adopted specifically to repeal the nationwide prohibition of alcohol established by the 18th. Another 3 amendments — the 13th, 14th, and 15th — are direct results of the Union victory in the Civil War, while the 16th (authorizing a national income tax) and the 26th (lowering the voting age to 18) are quite clearly the indirect results of two other wars — World War I and the Vietnam War, respectively. Finally, the 27th Amendment, ratified in 1992, was actually proposed in 1789 and is therefore best viewed as part of the initial pre-1804 amendments.
On Corporate Personhood, Balanced Budgets, and Constitutional Amendments
Some Follow-up Thoughts on the Significance of the Tenth Amendment and National Government
* This post is a follow-up to a brief post on the Tenth Amendment from last summer.
In the months between Abraham Lincoln’s election and the start of the Civil War on April 12, 1861, Americans became embroiled in something of a philosophical conversation about their relationship to their own national government. Was the American Union nothing more than a collection of states — a “club,” so to speak, that states voluntarily joined and could leave at any time and for any reason? Or was it something more — a creation of the people designed to perpetuate intact despite the desires of the people of any one state?
Abraham Lincoln addressed this issue in his First Inaugural Address as follows:
It is seventy-two years since the first inauguration of a President under our National Constitution. During that period fifteen different and greatly distinguished citizens have in succession administered the executive branch of the Government. They have conducted it through many perils, and generally with great success. Yet, with all this scope of precedent, I now enter upon the same task for the brief constitutional term of four years under great and peculiar difficulty. A disruption of the Federal Union, heretofore only menaced, is now formidably attempted.
I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.
Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?
Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union.”
But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.
It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.
And going back approximately four score and seven years, James Madison, in Federalist 45, spoke on the subject in response to Antifederalist concerns about how adoption of the Constitution would affect the rights of states:
Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the governments of the individual States, that particular municipal establishments, might enjoy a certain extent of power and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the old world, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the new, in another shape — that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object.
It took a bloody Civil War over the extension of slavery to enshrine Lincoln’s vision of a Constitution that created a perpetual union and placed the states in a position clearly inferior to the national government of the people. But though you might think the issue was conclusively settled in 1865, if you listen carefully, you’ll hear echos — some subtle, some not so subtle — of the controversy persisting today.
Arguments about states rights, federalism, and even overregulation, have roots in the ongoing debate over the nature of the Union created by the Constitution. So is the (somehow) revived debate about the merits of state nullification of federal law.
Ultimately, the Constitutional language and the history are ambiguous enough on this matter (as on many others) that it’s impossible to know exactly what the Framers intended when they created the Constitution. Almost certainly, they collectively had a number of intentions, and even more certainly, some of them changed their minds over time about just what it was they had done. And whatever intentions were for America at the start, the whole American experiment was substantially redone in the 5 years following the end of the Civil War.
But despite the general ambiguity, we do have some clues. And, one of those clues is, I think, the 10th Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The 10th Amendment speaks conclusively about the reservation of powers not delegated to the national government–but it speaks ambiguously about to whom the non-delegated powers are reserved: ”to the states respectively, or to the people.”
The Articles of Confederation contained a similar provision to the 10th Amendment, which stated:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
While its Articles of Confederation equivalent is written in the active voice, from the perspective of a state, the 10th Amendment is fully passive. The 10th Amendment is also less agressive in that it does not expressly declare each state’s independence and sovereignty, and omits the word “expressly” when referring to delegated powers (presumably to comport with the existence of the Necessary and Proper Clause in the Constitution). Finally, the 10th Amendment speaks about “the people,” whereas the Articles of Confederation provision referred only to states.
As an aside, Wikipedia — citing an article by Henry Rollins (!) describing his visit to the National Archives in Washington D.C. – asserts that the phrase (“to the people”) was added to the 10th Amendment as a handwritten edition as the draft amendment circulated between houses of Congress . . . suggesting, I’m not sure what, exactly. But it is fascinating.
I’ve long been puzzled by the existence of the “or to the people” clause of the 10th Amendment. What should we make of it?
If it was the states that formed the Constitution, and therefore the states that delegated power to the national government, why mention the people at all? If it was the people, as a national whole, who formed the national government and delegated its powers, why mention the states? Maybe the drafters and ratifiers of the 10th Amendment (and we should remember, we’re technically talking Congress in 1791, not the Constitutional Convention) conceived of the national government is a creation of the people, who have delegated some power to their state and local governments and some power to their national government, and, as a result, retain whatever powers they have not delegated. Therefore, to the extent people have not already delegated power to any particular level of government, that power resides in the people. Or maybe the phrase “or to the people” was added simply to make it clear that the 10th Amendment encompassed all rights — rights that the people could delegate to their government (i.e., rights involving the exercise of coercive authority) and rights that they really couldn’t because they are conceived of as residing in individuals (e.g., the rights to speak and worship). Of course, the ambiguity could always be a matter of political expediency — perhaps the ratifiers couldn’t agree on what to put in the 10th Amendment and therefore comprised by including both the states and the people as the beneficiaries of reserved powers?
But — to me — the fact that the 10th Amendment mentions both the states and the people counts for something.
How much significance does this all have? I’m not sure. But it seems to me that the 10th Amendment’s ambiguity lends support Lincoln’s conception of the American Union (even pre-Civil War) and whatever consequences that may have.
Thoughts on Nullification: A Response to Thomas Woods
Lately, I’ve seen some outspoken support for the resurrection of the doctrine of nullification — the idea that a state (or, most accurately, it’s legislature) should be able to declare unconstitutional (in its view) laws null and void within the state’s geographic boundaries. Nullification is, and always has been, a misguided attempt at trying to preserve an eviscerated Union through a poor man’s secession.
Nullification is a bad idea, for so many reasons. As a result, it died (at least as a practical matter) 150 years ago. Thanks heavens for that.
Yet, the notion that states can continually execute their own mini, bloodless rebellions against tyrannical (in their view) authority without adverse consequence persists with near romantic appeal for some today, and has found its newest champion in Thomas Woods, a historian and author of Nullification: How to Resist Federal Tyranny in the 21st Century (note: I haven’t read the book, and likely will not since it’s *way* down on my already too long reading list). But from what I have read, Woods promotes a revisionist (that this isn’t always a bad word) history of nullification, one that focuses on its use by Founding Fathers like Thomas Jefferson and James Madison, as well as its (more) noble employment against the Alien and Sedition Acts and by northern states in opposition to fugitive slave laws.
Woods says that those who oppose nullification do so based on only a superficial knowledge of the doctrine — equating it with John C. Calhoun and a convenient justification for the continuation and expansion of slavery. Woods calls his opponents zombies who mindlessly repeat platitudes while refusing to confront the question of nullification on its merits. In particular, Woods suggests that you can script how an opponent will respond to the idea of nullification — with a parade of horribles about slavery, segregation, neo-confederacy.
So, allow me to take up the challenge and give 5 more abstract reasons why nullification would still be a really bad idea, even if it were only employed in noble causes:
(1) It lessens the incentive for compromise and fixing bad laws. Don’t like a law? Lost a political battle in Congress? Don’t worry about correcting and adjusting it — nullify! Go your own way. Congress passed an unconstitutional law? Who cares? Not your problem — nullify!. Leave it on the books for New York and California to deal with. You can just nullify and ignore it, because it doesn’t affect you.
(2) It would destroy the Union. There has been nothing more beneficial to the American people than the strong Union of the states created by the Constitution. Nullification would, unquestionably, destroy the American Union. Those who believe otherwise are indulging in a fantasy. Under a regime of nullification, states become a law unto themselves. They cannot be coerced. At most, the Union would persist as little more than a shifting compact held together by nothing more than mutually perceived self-interest, little different than than the EU or ASEAN.
(3) It has no limiting principle. While theoretically nullification could only be employed when the federal government oversteps its constitutional bounds, the premise of the doctrine swallows the theoretical limit. The premise of nullification is that the federal government cannot be the sole arbiter of the extent of its own power, and that political checks through Congress and an elected executive are insufficient. Are we really expected to believe that a state legislature that nullifies a federal law because it believes the law is unconstitutional will be persuaded simply because the Supreme Court says otherwise? Of course not, and, indeed, that is the whole point. The Supreme Court is also the federal government, and just as capable of sanctioning an overreach as Congress is. Under a regime accepting of the doctrine of nullification, you would have no fewer than 51 “supreme” courts, all but one of them comprised of politically-ambitious elected officials, and none of which are accountable to any other.
(4) It would create a regulatory nightmare. Think we live under oppressive regulation right now? Try it when two-thirds of the states have a major federal regulatory regime, while one-third have opted out through nullification, and, as a result, almost every regulation is under meaningless judicial challenge.
(5) It would make a coherent foreign policy impossible. The United States could not speak with a single voice when it comes to foreign policy. This would be true when it comes to wars, but also for diplomatic recognition, economic sanctions, and other soft-power methods of exerting pressure on other states.
Now, a libertarian who likes the idea of nullification may look favorably on this list of consequences. After all, the idea of rendering Congress largely ineffectual, practical prevention of U.S. coercive power abroad, and an America in which sub-national free agents negotiate and deal with each other on the basis of immediate mutual interest appeals to their philosophical core.
But even if this picture of America is attractive to some, it’s not an America that a devotee of our Constitution should recognize. This is the America of the Articles of Confederation, the America the Constitutional Convention was called to change.
And why should we be surprised that this would be the end result of nullification, since the doctrine is, at its core, anti-constitutional — in the sense that’s its purpose it to enforce a conception of proper government by undermining constituted government itself, when necessary. In short, nullification is antithetical to America — not because of the causes in which it might be employed — but because what it would do to the American Union and the government created by the Constitution.
Obamacare and Chief Justice Roberts
Who is Chief Justice Roberts?
Is he the methodic, calculating, conservative revolutionary, that Obama had the foresight to oppose for confirmation to the Court based on his inability to discern what was in the now-Chief Justice’s heart? Is he the pragmatic conservator of the Court’s institutional capital at the expense of the Court’s obligation to make authoritative constitutional pronouncements? Or is he yet another conservative appointee driven ever left by mysterious unidentifiable substances in the Washington D.C. water supply?
And what to make of the Court’s decision today upholding Obamacare as a valid exercise of Congress’ taxing power?
Is it an unmitigated disaster that spells inevitable socialistic decline for America — assuming of course Mitt Romney and Orrin Hatch can’t team up on Democrats using the Senate Finance Committee and Oval Office? 
Is it a secret long-game win for conservatives masterminded by the Chief Justice at the expense of the unwitting liberals now praising his name?
So many questions to answer, so little time.
Rather than bore you with a treatise, I’ll just give you a few of my thoughts after reviewing the opinions (and trust me, this will be long enough).
1. This decision is an unqualified loss for conservatives. Though Roberts may have something of a long game in mind here (see point 4 below), it’s really hard to spin this as a win for conservatives. Overall, the thrust of the opinion is, “you can find a way to uphold congressional action, even when it’s an unprecedented extension of federal power.”
To be fair, Roberts did throw conservatives some bones in his opinion. For example, it’s clear that he purposefully reached the Commerce Clause issue unnecessarily, in order to send a message about mandates. His explanation to the contrary was unpersuasive (to me, anyway):
JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that § 5000A can be upheld under the taxing power. Post, at 37. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that § 5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.
So it’s a tax only because it’s not a penalty? Pretty weak . . . and that means he reached the issue to send a message. Whatever his reasons for upholding, he obviously wanted to make clear that federal efforts to mandate conduct as a way of bootstrapping in to Commerce Clause authority are non-starters.
And one has to acknowledge that Roberts did refuse to countenance an extension of Congress’ spending/commandeering power. Ultimately, however, it’s hard to see how that does much for federalist types when the practical thrust of his opinion is that even statutes that are written as exercises of the Commerce Clause authority, and exceed that authority, are nonetheless constitutional taxes (even when not denominated that way and denied publicly). This allows Congress to avoid the political consequences of enacting taxes while pretty much giving Congress the type of unbridled legislative authority rejected under the Commerce Clause.
2. Robert’s opinion will not make it procedurally easier to repeal Obamacare politically. Today’s decision may very well have the effect of galvanizing conservatives for the upcoming elections (apparently it’s been a monetary windfall for Mitt), but those claiming (and I’ve seen a few posts on this today) that Justice Roberts judicially declared Obamacare a tax in order to ensure that, under the Democrats own congressional rules, efforts to repeal would be immune from filibuster (that captures the substance if not the precise form of the argument), clearly didn’t read Justice Roberts careful parsing of the difference between statutory and constitutional tax status:
Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.” Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally.
Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions like a tax. It is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other. Congress may not, for example, expand its power under the Taxing Clause, or escape the Double Jeopardy Clause’s constraint on criminal sanctions, by labeling a severe financial punishment a “tax.”
The Anti-Injunction Act and the Affordable Care Act, however, are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the best evidence of Congress’s intent is the statutory text. We have thus applied the Anti-Injunction Act to statutorily described “taxes” even where that label was inaccurate.
The desperate efforts of conservatives to label this decision a “win” for them remind me of Democrats attempts to rationalize President Obama caving to Republicans on the debt ceiling as grand liberal strategy.
3. Roberts tax opinion is more persuasive than conservatives want to admit. Although all the focus leading up to the case was on the Commerce Clause, Roberts’ opinion boils down to this: constitutional authority to legislate depends on the substance of the legislation and not congressional magic words. That’s a familiar principle, and persuasive in a number of contexts. The effect of my contract depends on the written language and the intent of the contracting parties, not on the use of precise words to accomplish specific functions.
Should this be any different? Well, we do have this sense that Congress should be allowed to use the tax designation as both a sword (justification for enacting authority) and a shield (insulation for political consequences of raising taxes). But since when has Congress been estopped from legislating? It’s also a bit surprising that Roberts went different ways on the Anti-Injunction Act and Taxing Power (see quote language above) . . . one felt that if the Court reached the merits of the case it would do so based on the finding that Obamacare was not a tax and therefore would be forced to decide the issue on Commerce Clause grounds alone. But Roberts neatly worked around that dilemma by holding that the individual mandate was indeed a tax, just not a tax to which Congress intended the Anti-Injunction Act would apply.
4. Even though this is a loss for conservatives, there is something of a silver lining. Between Roberts’ opinion and the Joint Dissent, there is a 5-member majority in support of unusually strong language on Commerce Clause federalism. The language is so strong, in fact, that it likely forecloses any attempt at “compelled commerce” regulation in the near future. This means that, if, down the line, conservatives are able to chip away at the rather deferential constitutional construction of a tax and/or expand on the Chief Justice’s anti-commandeering rationale, the field for Congressional action will have been limited. It seems like Roberts’ opinion might also spawn some new Republican political strategy, like citing judicial authority to justify characterizing every regulation as a tax, or inserting punitive penalties into regulatory laws to sabotage them constitutionally . . . maybe I’m just reaching here, but no question congressional Republicans are committed and creative 
5. Roberts v. Scalia. In case anyone doubted the sincerity of his commitment to judicial restraint (especially after Citizens United), Roberts’ opinion should allay that doubt (for now). While Scalia’s commitment is, first and foremost, to originalist interpretation, Roberts’ jurisprudence is (in my opinion) guided to a significant extent by his beliefs about the role of the Court vis-a-vis the political branches and, to a lesser extent, preservation of its institutional capital. I really think that this is the best way to look at his decision. Which is the better approach? I’ll leave that for you to decide . . . .
6. Another “switch in time”? Although there is already a healthy ongoing debate over this, it does look (to me) as though Chief Justice Roberts changed his vote relatively late in the process. It is hard for me to avoid the conclusion that the Joint Dissent (Scalia, Thomas, Kennedy, and Alito) was written by Scalia as a majority opinion. It contains numerous references to “the dissent,” despite itself being a dissent. It is also written, like a majority opinion, using the plural “we,” as opposed to the singular “I.” Here’s an example:
The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government. The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact criminal laws, . . . the power to imprison, . . . and the power to create a national bank.” Is not the power to compel purchase of health insurance much lesser? No, not if (unlike those other dispositions) its application rests upon a theory that everything is within federal control simply because it exists.
Why were these references left in? It could because of a last minute switch . . . but I doubt it. Justice Roberts had to have time to write his opinion, and the Justices and clerks who write Supreme Court opinions are some of the very brightest people around — these edits could have been made no matter how late the change. So, were they left in purposefully, as a signal to the world of a betrayal by the Chief Justice? Well, I kind of doubt that as well . . . . But whatever the explanation, it’s certainly interesting.
7. Let’s get political! Thus far in the battle over Obamacare, both sides have alternated being overly optimistic. Prior to oral argument, quite a few Democrats were contemptuous of the merits of the legal challenge. After oral argument, conservatives were prematurely dancing on Obamacare’s grave. Liberals rejoicing today should take into account that it looks (if my sense if correct) like Obamacare was headed down to defeat and was saved only by a last minute defection (that was, in all likelihood, not wholly based on the merits of the case). Furthermore, there is still a long way to go in the war over national health insurance in America, despite today’s decision. And, while the Supreme Court will have more of a role to play, Roberts’ opinion, consistent with his commitment to circumscribing the judicial role, ensures that, going forward, this battle will be fought primarily politically from here on out.
Anyway, I’d love to hear your thoughts, whether on the opinion or my own commentary. Type away — I can take it
H.B. 351, Opt-Out of Order on White House Rural Council — Rep. Ivory
After a long, work-induced hiatus from blogging, Utah Political Summary returns today with some brief commentary on H.B. 351, a bill sponsored by Representative Ken Ivory.
H.B. 351 is part of our legislature’s ongoing effort to step federal government meddling in local government by preemptive state meddling in local government. Specifically, it’s a response to Executive Order 13575 (“EO13575″), which was issued by President Obama last June and creates a White House Rural Council (“WHRC”) to “enhance Federal engagement with rural communities.”
EO13575
The WHRC would be chaired by a representative of the Department of Agriculture, comprised of a representative of every other federal department, and tasked with the mission of “coordinat[ing] development of policy recommendations to promote economic prosperity and quality of life in rural America,” and “coordinate[ing] [the Obama] Administration’s engagement with rural communities.”
Specifically, the WHRC will:
- Make recommendations to President Obama on how to streamline and leverage the impact of federal investment dollars in rural communities;
- Coordinate and increase the effectiveness of federal engagement with rural America’s stakeholders; and
- Identify and facilitate rural energy development, outdoor recreation and conservation-related opportunities.
On its face, EO13575 appears to be nothing more than an attempt to coordinate efforts across departments, to make the administration’s “rural policy” more cohesive and effective.
But it’s got Representative Ivory up in arms. In fact, he refers to it on his Facebook page as an order creating “White House zoning and planning authority over all ‘rural America.’” So he’s crafted H.B. 351 — a legislative response consistent with his apparent alarm.
H.B. 351
Representative Ivory’s bill, which was passed out of committee on February 27, 2012, would require any “department or agency of the state” that wants to implement a “directive” of the White House Rural Council created by EO13575, to file a report to the legislature’s Natural Resources, Agriculture, and Environment Interim Committee containing the following information:
(3) (a) The report required under Subsection (1)(a) shall include:
(i) the directive from the White House Rural Council; and
(ii) a description of:
(A) the requirements imposed by the directive and how the agency would implement the directive;
(B) the effect of implementing or not implementing the directive;
(C) the cost to the state or its citizens of implementing the directive; and
(D) the consequences to the state if the state does not comply with the directive.
(b) The report required under Subsection (1) may include an analysis by the agency or department that addresses whether a directive from the White House Rural Council:
(i) affects the distribution of power and responsibility among the state and national government;
(ii) limits the policymaking discretion of the state;
(iii) impacts a power or a right reserved to the state or its citizens by the Ninth or Tenth Amendment to the United States Constitution; or
(iv) impacts the sovereignty rights and interest of the state or a political subdivision to provide for the health, safety, and welfare of, and to promote the prosperity of, the state’s or the political subdivision’s citizens.
The required report is designed to give the legislature an opportunity to legislate in opposition to the “directive,” if it so chooses. In fact, after receiving the report from the “department or agency of the state,” the Natural Resources, Agriculture, and Environment Interim Committee can recommend to the legislature that it enact legislation that either specifically authorizes or prohibits compliance with the “directive.”
The supreme irony in the whole situation? Representative Ivory’s bill would be codified at Utah Code Ann. 63M-1-1607 et seq., as part of Utah’s already existing Rural Development Program, which is operated out of the Governor’s Office of Economic Development through the Office of Rural Development, which in conjunction with the Rural Coordinating Committee, provides support to the Governor’s Rural Partnership Board.
And the mission of the state’s Rural Development Program? Here’s a bulleted list:
- Facilitate within the Governor’s Office of Economic Development implementation of the strategic plan;
- Work to enhance the capacity of the Governor’s Office of Economic Development to address rural economic development, planning, and leadership training challenges and opportunities by establishing partnerships and positive working relationships with appropriate public and private sector entities, individuals, and institutions;
- Work with the Rural Coordinating Committee to coordinate and focus available resources in ways that address the economic development, planning, and leadership training challenges and priorities in rural Utah; and
- Coordinate relations between the state, rural governments, public/private groups engaged in rural economic planning and development, and federal agencies.
Some Thoughts
I think it’s pretty clear that Representative Ivory sees the White House Rural Council as another front on the war over western state lands. Perhaps it is. I don’t know. But there’s nothing in EO13575 or the duties set out for the WHRC authorizing it to make “directives” to local governments, and certainly nothing in it that authorizes it to engage in nationwide zoning.
President Obama, like other Presidents before him, undoubtedly has a “plan” for rural America, and will go about implementing his “plan” in whatever way he can, including, presumably, by conditioning the receipt of federal funds on local governments implementing plan objectives. But it’s questionable whether such “incentives” can fairly be characterized as “directives.” Thus, to have any effect, it appears that Representative Ivory’s bill would require all “departments or agencies of the state,” any time they want to implement a suggestion or recommendation originating from the WHRC, to first create a burdensome report for the state legislature. This is turf-war level of micromanagement that would do the most overreaching federal agency proud.
Now, Representative Ivory may believe that the Constitution grants the state exclusive authority to make recommendations to local governments and rural America. After all, Article II of the Constitution is pretty sparse . . . . But at some point, he, and the other members of the Utah GOP’s club of constitutional crusaders need to contemplate the extent to which their near myopic obsession over their own version of constitutional federalism is turning them is seriously undermining their core conservative governing principles.
If President Obama issues an order emanating from the WHRC that unconstitutionally dictates to rural Utahns what they may or may not do, then legislate against it or fight it in court as appropriate. But why borrow trouble and micromanage just out of antipathy toward one particular administration? President Obama will eventually leave office, the WHRC he created will be dissolved, and a Republican will be elected President again . . . but legislation persists. H.B. 351 is unnecessary, misguided, and not worth our legislature’s time.
Montana Supreme Court Thumbs its Nose at Citizens United, Upholds Montana Law Prohibiting Corporate Contributions
In a bolt from the blue last Friday, the Montana Supreme Court issued its decision in Western Tradition Partnership, Inc. v. Attorney General, pushing back against the United States Supreme Court’s decision in Citizen United v. Federal Election Comm’n. In Western Tradition Partnership, the court interpreted Citizens United to allow for Montana’s prohibition on corporate contributions for candidates because of Montana’s unique history and susceptibility to corruption from corporate money.
It’s a decision bound to generate a lot of buzz and have a lot of populist appeal. It’s also a ruling that runs completely contrary to the understandings of everyone — except, apparently, five of the seven members of the Montana Supreme Court — about what Citizens United meant and what it did. I’m sure it would shock Justice Stevens to know his concerns about the Supreme Court’s majority opinion in Citizens United were vastly overstated; after all, why all the worry when states can simply opt out by judicial decision??!!
Immediately upon learning about the ruling, I went and downloaded the full copy and started reading.
Despite headlines to the contrary (e.g., “Montana Supreme Court Rules that Citizens United Does Not Apply in Montana“), the Montana Supreme Court’s decision was actually based on its own interpretation and application of the rule of law set down in Citizens United. State supreme courts, as well as other inferior federal courts, do this kind of thing all the time. Whenever the United States Supreme Court sets down a rule, it does so in the context of a specific case. So, courts looking to apply that rule to another case, with a different set of facts, have to determine if there are factual distinctions that would justify a different result, even given the application of the same rule.
The Montana Supreme Court’s reasoning goes something like this (for a more pithy version, check out Marco Brown’s comment here): In Citizens United, the United States Supreme Court determined that the challenged FEC rules should be struck down because there was not a sufficiently compelling interest supporting them. But in Montana — a rural state with a small population, proud history of cheap, grassroots campaigning, susceptibility to large energy and mineral extraction corporations, and a long history of corruption — there is a greater interest that is sufficiently compelling to uphold a ban on corporate contributions. In addition, Montana elects its judges, and the potential for corporate domination of judicial elections is another factor that enhances Montana’s interest vis-a-vis the ones considered and rejected by the United States Supreme Court in Citizens United.
Its an approach to the question that’s theoretically legitimate. Indeed, if one believes that strict scrutiny should not be “strict in theory, but fatal in fact,” there should be some set of facts creating an interest sufficiently compelling that could be served by a narrowly tailored statute — right?
The trouble with the Montana Supreme Court’s approach is that it’s an approach that the United States Supreme Court expressly rejected last year, at least in the context of corporate political speech. From the majority opinion in Citizens United:
We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations (emphasis added).
Despite this unequivocal and unusually clear statement, the Montana Supreme Court persisted in its contention, that the United States Supreme Court wasn’t really talking about government in small-population mineral-rich rural states like Montana.
Western Tradition Partnership will (and should) be quickly reversed on certiorari appeal for the reasons set out by the primary dissenting Justice, James C. Nelson:
Unquestionably, Montana has its own unique history. No doubt Montana also has compelling interests in preserving the integrity of its electoral process and in encouraging the full participation of its electorate. And Montana may indeed be more vulnerable than other states to corporate domination of the political process. But the notion argued by the Attorney General and adopted by the Court—that these characteristics entitle Montana to a special “no peeing” zone in the First Amendment swimming pool—is simply untenable under Citizens United.
Admittedly, I have never had to write a more frustrating dissent. I agree, at least in principle, with much of the Court’s discussion and with the arguments of the Attorney General. More to the point, I thoroughly disagree with the Supreme Court’s decision in Citizens United. I agree, rather, with the eloquent and, in my view, better-reasoned dissent of Justice Stevens. As a result, I find myself in the distasteful position of having to defend the applicability of a controlling precedent with which I profoundly disagree.
That said, this case is ultimately not about my agreement or disagreement with the Attorney General or our satisfaction or dissatisfaction with the Citizens United decision. Whether we agree with the Supreme Court’s interpretation of the First Amendment is irrelevant. In accordance with our federal system of government, our obligations here are to acknowledge that the Supreme Court’s interpretation of the United States Constitution is, for better or for worse, binding on this Court and on the officers of this state, and to apply the law faithful to the Supreme Court’s ruling.
Granted, there are some in the legislative and executive branches of government who would call—and, in fact, have called—for Montana to thumb its nose at the federal government, to disregard federal law, and to boldly ignore the Supremacy Clause. Regardless of those views, however, all elected officials in Montana—legislative, executive, and judicial—are sworn to “support, protect and defend the constitution of the United States.” Obviously, this means in accordance with the Supreme Court’s interpretations of the United States Constitution. Thus, when the highest court in the country has spoken clearly on a matter of federal constitutional law, as it did in Citizens United, the highest court in Montana—this Court—is not at liberty to disregard or parse that decision in order to uphold a state law that, while politically popular, is clearly at odds with the Supreme Court’s decision. This is the rule of law and is part and parcel of every judge’s and justice’s oath of office to “support, protect and defend the constitution of the United States.” In my view, this Court’s decision today fails to do so.
There are, unquestionably, discomforting realities that accompany unlimited corporate political speech. One can easily understand the frustrations of the majority Justices, feeling as though their state’s political process is being dragged back to 1900 by a panel of conservative United States Supreme Court Justices that simply don’t understand the opportunities for distortion in the political process that accompany unfettered corporate speech in a sparsely populated rural state.
And maybe they’re right. But that doesn’t give them license to ignore the Constitution when the Supreme Court has spoken clearly on the matter. Perhaps the greatest irony of the majority opinion is the fact that it forcefully expresses concern for the potential distorting and corrupting effects that corporate speech might have on the Montana’s elected judiciary. Based on this opinion, it seems as though an elected judiciary’s understandable, though misguided, efforts to avoid Citizens United may themselves be causing the same kind of distortion.
Book Review — Plain Honest Men: The Making of the American Constitution, by Richard Beeman
I started reading Plain Honest Men as research for a blog post I was doing on the Seventeenth Amendment. I was trying to get a good sense of just what might have been in the minds of some of our Founding Fathers when they decided to locate authority to elect United States Senators in state legislatures. I had my own ideas, but I was looking to find some confirmation from a source that wasn’t too difficult to wade through.
I enjoyed it and learned a few things along the way.
There’s nothing new in Plain Honest Men. It’s a narrative history of the Constitutional Convention interspersed with biographical sketches of some of the major players. Beeman’s treatment of the convention and its participants is evenhanded, so much so that it occasionally makes things a bit dull. But for those looking for an accessible, blow-by-blow account of convention debates without being forced to wade through Madison’s Notes, Plain Honest Men is probably as good as anything out there.
Beeman takes as his starting point Shays Rebellion, focusing on how it energized calls for a convention to revise the Articles of Confederation and then follows the Constitution through ratification and the Bill of Rights. But although he addresses significant pre- and post-convention events (including providing some interesting commentary on the participants attitude toward exceeding their authority by supplanting the Articles of Confederation and how the perception and use of the Federalist Papers has changed over time) the focus of Plain Honest Men is squarely on the convention itself.
About one-half of the book is devoted solely to the debates (and eventual compromise) over representation. Beeman spends so much time on this one issue, in fact, that it becomes somewhat tedious. But then again, this is probably how the delegates felt themselves. Though a bit long-winded, Beeman’s treatment of the question of representation comprehensive and very informative. You’ll learn something new. Article III and the judiciary are (as they were during the debates themselves) treated only superficially.
Perhaps the most interesting parts of Beeman’s narrative (for me) dealt with the convention delegates’ struggles to envision a single executive that could fill the space between a monarch and prime minister. It was surprising for me to learn how even delegates supportive of a strong executive were very pessimistic on this point, with some going so far as to admit that they believed the system they were creating was doomed to fail in the short term (and they weren’t far wrong). You come away with the distinct sense that Constitution’s ambiguities about Presidential power were the direct result of delegates who not only couldn’t agree on what they wanted, but didn’t really know what they wanted when it came to the American President.
A close second to Beeman’s discussion of Presidential power was his treatment of slavery in the Constitution and the tortured efforts the delegates went through to avoid mentioning it — whether in the Constitution itself or even in the debates themselves.
The title of Beeman’s book was taken from a statement by Robert Morris, a Pennsylvania delegate to the convention, who, when asked about the Constitution and convention after the fact, stated his opinion that the Constitution was best viewed as a struggling, though successful, effort of plain honest men. Beeman obviously holds the same opinion.
Dan Liljenquist and State Level Medicaid Reform
If you’ve ever attended one of his “fiscal reality” town hall meetings, you’ll notice the passion with which Senator Dan Liljenquist talk about entitlement reform. He’ll tell you it’s what pulled him out of the private sector and into politics. You can hear the excitement in his voice when he talks about how Rhode Island — the bluest of all blue states — enacted sweeping pension reform legislation this past year to forestall a fiscal collapse. And you feel his real frustration when he speaks about the fact that a “mid-level bureacrat” is holding up Utah’s Medicaid waiver request over small proposed co-pay increases.
Liljenquist has built quite a name for himself as the state level entitlement reform guy nationwide. It’s what he does, and, thus far, he appears to have done it in impressive fashion. So these days, he’s the guy that other people talk to when they want to do it, too.
But despite all the notoriety, I suspect there are quite a few people, especially here in Utah, that don’t understand what exactly it is that Liljenquist has done when it comes to entitlements. So I wanted to put up this post summarizing the nature of Liljenquist’s Medicaid reforms here in Utah, and then offer some brief thoughts on the future of state-level Medicaid reform (and how it may tie in with Liljenquist’s future political plans, which may be the worst kept secret in Utah).
What’s Been Done
Liljenquist’s reform efforts were prompted by some alarming numbers. In the case of his Medicaid reforms, it was the accelerating growth of Medicaid as a percentage of Utah’s budget.
Medicaid, though jointly implemented by the federal government and the states, is a federal program. And the federal government sets uniform eligibility requirements for state Medicaid programs, while each state (with significant federal funding assistance, of course) is left to meet those requirements with its state level programs. The continually soaring cost of health insurance — whether employer-funded and privately purchased — together with the difficult economy has led to a rapid rise in eligibility for benefits. As a result, states are being forced to budget ever larger shares of their shrinking (or stagnant) revenue streams to meet the increased demand. And Obamacare, when fully implemented in 2014, will expand eligibility even further. These days, Medicaid expenses are growing fast enough, and becoming large enough, that they legitimately threaten to crowd out other important state services, including public education.
So, what to do?
Well, the federal government could grant limited waivers to Medicaid eligibility requirements for states who need them. But it won’t.
Kathleen Sebelius (President Obama’s Secretary of Health and Human Services) has made clear that states cannot expect any flexibility with Medicaid when it comes to eligibility; the current federal administration is not about to let Utah, or any other state, reduce eligibility requirements, even (and maybe especially) in the middle of a recession. And the two most reviled statutes in recent memory (at least from the right side) — the stimulus and Obamacare — both contain provisions protecting Medicaid eligibility.
Although Utah cannot control the number of people who are eligible for Medicaid benefits from the state level, Sebelius has suggested that states — as they have been in the past — will be given some flexibility when it comes to the nature of benefits themselves, and that’s the starting point for Liljenquist’s proposals.
The essence of Liljenquist’s reforms involve limiting costs by (1) tying Medicaid expenses to budget growth and (2) changing treatment incentives. These two components are designed to reduce total cost as well as to make expenses predictable in relation to each year’s revenue (which obviously fluctuates due to a number of different factors).
According to Liljenquist, Utah’s current Medicaid model — a combination of managed care and fee for service — incentivizes overtreatment by hospitals and physicians, and, more importantly, irresponsible overuse by Medicaid recipients (e.g., unnecessary trips to the emergency room). Liljenquist proposes moving Utah’s Medicaid system to a managed care+ philosophy designed to encourage more cost effective treatment. Here are the highlights:
- The state would allocate what amounts to block grants of its Medicaid funds to groups of healthcare providers known as Accountable Care Organizations (“ACOs”) on a statistically calculated (based on disease rates and risk profiles) per patient basis.
- Each patient would be assigned what’s called a “medical home,” and a healthcare provider would be assigned to manage that patient’s care. Patients would have a limited ability to choose their initial ACO and would have an option to switch ACOs once per year during an open enrollment period.
- The ACOs would profit from Medicaid to the extent they facilitate effective and responsible treatment for their patients; since Medicaid payments would no longer be tied to specific treatment services provided, Liljenquist’s reforms would reduce the incentive to over treat for profit.
- The state would offer some incentives, such as reduced co-pays or even cash rewards, for ACOs and patients who take advantage of preventative treatment options.
- The system seeks to avoid the potential incentive to under treat patients by requiring that ACOs maintain a quality of treatment equivalent with that provided under the current system.
- Compensation for services provided would remain in line with compensation under the current system; any expected savings would be generated by a relative predominance of more preventative and cost-effective treatment options.
- The state would infuse some predictability into Medicaid funding by tying it to budget growth going forward. In years where there is a surplus, the surplus would be put into a rainy day fund. In years where enrollment growth exceeds expectations, benefits would be reduced across the board according to a predetermined schedule.
- The state would seek modest increases in co-pay requirements for certain health services for those on Medicaid.
The Utah legislature’s fiscal analysts office estimates that the proposed reforms would result in savings of $770 million over the first seven years they’re implemented.
Liljenquist’s reform effort is just beginning, and can’t be implemented without permission from the U.S. Department of Health (USDHHS) and Human Services. The specific reform bill, S.B. 180, passed unanimously by the Utah legislature during the 2011 session, required the Utah Department of Health to develop the specific details of a reform plan, and submit a request for waiver to USDHHS, which it did on July 1, 2011. The waiver request is available online, for those interested in getting down into the details. If the waiver request is granted in time, the initial reforms are set to be implemented in July 2012.
Where Do We Go From Here? And What’s the Future for State Level Medicaid Reform?
Liljenquist’s proposed reforms are an attempt to work within the present system, frustrating as that system may be for reformers. And Utah’s new approach does seem promising. Of course, only time will tell whether the projected cost savings are realized and whether the quality of treatment for patients on Medicaid remain high. But what Utah is proposing to do, while not wholly innovative, is a significant step forward in deal with the problems created by partially-funded federal mandates that result in unpredictable expenses.
But ultimately, thanks to that pesky Supremacy Clause, state level Medicaid reform can only get you so far. Furthermore, you can never be certain that the reforms will be enduring, as they are subject not only to Congressional changes in course (see, e.g., Obamacare), but also to a somewhat unpredictable bureaucracy, subject to changes in approach based on the four-year Presidential election cycle. Finally, there is the oft-cited concept as the states as laboratories of democracy for federal policy; the irony in this case is that if state reforms are successful in providing effective care at a reduced cost, they might serve as models for National Health 2.0 — “Hey, Utah’s got this great approach to effective cost, statewide government funded health care, let’s try it nationwide!” Indeed, when I started investigating Liljenquist’s proposal, I thought to myself, if this works are well as they say it’s going to, it sounds like something that could go national and be, relatively speaking, cost effective.
All this reminds us, simply, is that Medicaid, despite the promise of state reforms, is a federal program, and real, fundamental change must happen at the federal level. The drivers of the Medicaid problem are eligibility and benefit standards, and, as a result, the basic components of real, substantive reform involves dealing with questions of eligibility and tiered-benefits, not just increased effectiveness in treatment and care delivery (which treat the symptoms).
The premise of Medicaid is about setting creating a safety net and setting a basic floor for those who can’t afford health care coverage. I think that’s a good thing, and I think that it’s probably something that should be done on a national level. This is, after all, all about people and not about states — and a person is a person, no matter what state they live in. But if Medicaid is going to continue to be implemented and significantly funded by the states, the overall national structure needs to provide, at minimum, necessary flexibility for states with vastly different budgetary needs and obligations and populations with different health profiles.
That can’t be done from a state legislature, no matter how many great ideas you’ve got. The future of Medicaid reform is not at the state level. Liljenquist knows that, and I suspect it’s a big part of what’s informing his future career plans.
The Seventeenth Amendment — Good Idea, or the Beginning of the End?
When the Constitution was first ratified in 1791, it provided that United States senators were selected by the legislatures of the individual states. In 1913, the states ratified the 17th Amendment, which required senators to be elected by the people of the several states.
For most of the almost 100 years that have passed since the 17th Amendment was ratified, it has been largely ignored; the business of government has moved on and the amendment has received little comment — especially in comparison to the amendments which bookend it (the 16th Amendment, which authorizes a national income tax; and the 18th Amendment, which constitutionalized Prohibition).
Recently, however, the 17th Amendment has become something of a cause de jour, garnering a good deal of attention from today’s limited government federalists who, confronted by what they view as massive, unconstitutional federal overreach, find in the 17th Amendment a principal villan.
Why don’t they like the 17th Amendment?
Anti-17th-ers believe that the 17th Amendment dealt state sovereignty a death blow. According to them, the Founders, as a check on national government supremacy, structured the Senate to represent the interests of the states, in contrast to the popularly elected President (well, kind of) and House of Representatives. But this carefully constructed balance was all undone, they say, by the direct election of senators. Rather than being the champion of state sovereignty in the national government, as the Founders intended, they argue that the Senate is now little more than House of Representatives-lite, the only difference between the two bodies is the length of term and breadth of constituency. And the Anti-17th crowd can point to the American historical timeline in support of their claims: the temporal convergence of the ratification of the 17th Amendment; the ascendency of social welfare legislation; the adoption of the 16th Amendment, which authorized a national income tax; and the expansion of the national government begun during WWI. They have a point when they say that the states have never been quite the same since.
So, are they right? Is one of the keys to a meaningful federalism is indirect election of senators? And have we betrayed our constitutional heritage by adopting the 17th Amendment?
I don’t think so.
17th Amendment = Decline of State Sovereignty?
The concentration of policy and power in the national government is not in any way, shape, or form a result of the elimination of a state check on national authority. Instead, it’s due to a combination of factors, the most important of which are the superior resources of the federal government, the civil rights movement, the judiciary preferring to take a very hands-off approach to Congressional action, and people demanding national-level policy on a whole host of issues.
To the extent indirect election of Senators and the movement of the center of government toward Washington, D.C., are related, it’s because they are both victims of the 20th Century progressive, internationalist turn in American politics, not because one was a cause (in any meaningful sense) the other.
Inconsistent with Original Intent?
Furthermore, the evidence that the Founders left the election of senators with state legislators in order to protect states from the national government is scant at best, resting essentially on a single statement by George Mason. The fifth resolution of Madison’s Virginia Plan (which was used to frame the debates at the Constitutional Convention) provided that “members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures.”
In other words, Madison proposed that that each state’s House delegation choose its senators. From the beginning, the Founders fixated on indirect election of the Senate, never seriously considering having senators be elected directly by the people. Why? Because they assumed that indirect election would result in more virtuous men serving in the Senate (i.e., they distrusted the people) and thought statewide popular elections were impractical. While the delegates considered other indirect options for choosing senators — including having senators elected by the House or appointed by the President — they rejected them all because they would compromise the principle of separation of powers. In short, there’s little or not\ evidence that they placed the responsibility to elect senator on state legislatures out of an overriding concern for state sovereignty — there was no just where else to put the responsibility other than the people.
Direct or Indirect?
Are we better off with the 17th Amendment? Or would we be better off repealing it?
I think we’re better off where we’re at.
I don’t know that indirect election of senators would have many significant policy impacts at the federal level. Does anyone really believe that the Vermont senate delegation, if elected by the Vermont legislature, would play a watchdog role on the federal government? Or that the Utah senate delegation, if elected by the Utah state legislature, would come down on states rights any different than it already does? If the people want national level policy, they’ll get it. If they want to return power to the states by limiting the federal sphere of action, they’ll get that, too (witness Mike Lee, Rand Paul, et al)
Furthermore, when senators are elected by state legislatures, state legislatures are tied to Congress. With indirect election of senators, you run the risk of making the position of state legislator at least as much about federal elections as state policymaking. In addition to campaigning to state legislators, Senate candidates would campaign to the people on behalf of their friends who are either in the state legislature or campaigning for the state legislature. During at least two election cycles every six years, we would elect state legislators based primarily on who they would support for senator in the next election.
There is also an increased potential for corruption. Indeed, the fear that state legislatures were “selling” Senate seats is one of the reasons commonly given for adopting the 17th Amendment. While there is some dispute over the frequency this actually occurred, it was a reason that resonated with the public. Returning the election to the people eliminates, if nothing else, the appearance of corruption on this basis.
Finally, a Republican form of government is supposed to be about people electing a representative to govern for them, not about a representatives electing other representatives. The Founders set things up the way they did because they thought the probability of more enlightened representation outweighed moving the government a bit further from the people. Turns out that it’s pretty clear they were overly optimistic on this point and overly pessimistic on some others. Indirect election of public officials distances the people from their representatives and erodes confidence in government.
Conclusion
Let’s remember that this government is about people, not states. We can have (and restore, to the extent it’s been lost) a meaningful federalism in America whether or not Senators are elected directly by the people.
The 17th Amendment was a good amendment to the Constitution and should be left alone.
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