LWOP

Having covered the truly significant decision in yesterday's post, let's get to the flashier but not really as important decision in Graham v. Florida. The Supreme Court held that it is unconstitutional "cruel and unusual" punishment to sentence a juvenile offender to life without parole ("LWOP") for a crime not involving a homicide.

I don't really have strong feelings about the decision -- although I think I might have joined the second part of the Chief Justice's opinion, which concluded that LWOP was an unconstitutionally disproportionate sentence for the crime involved in the particular case before the Court, without deciding whether such a sentence could never be appropriate for any juvenile convicted of a nonhomicide offense, no matter how horrible and depraved that offense might be.

What interests me about the decision, though, is this: Justice Thomas, joined by Justice Scalia, expressed the view that there is no proportionality requirement whatever in the Eighth Amendment's Cruel and Unusual Punishment Clause. That clause, they believe, prohibits torturous methods of punishment, but has no application to the question of whether a punishment that might be permissible for some crime is too severe for some other crime. The Court majority, on the other hand, stated that "[t]he concept of proportionality is central to the Eighth Amendment." How can five Justices think something is "central" to the Amendment and two Justices think it not involved at all?

As is often the case, part of the answer comes down to textualism versus other interpretive methods. Justices Thomas and Scalia, in my view, put too much weight on textualism in this question. The Eighth Amendment's single sentence provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." It is true that the text does not expressly impose a proportionality requirement on prison sentences. But it does prohibit excessive fines. Can anyone possibly explain why the Constitution would provide that society cannot impose a fine on a criminal that is disproportionate to the criminal's offense, but could impose a disproportionate prison sentence?

I'm sorry, but it just doesn't make sense. One can understand how the Framers might have neglected to specify that prison sentences shall not be excessive, because, as Justice Thomas himself notes, prison sentences were not a common punishment in the eighteenth century -- criminals were punished by fines, whipping, or shaming, or, if that was not sufficient, then by death. But it is hard to understand how anyone could want to prohibit excessive fines but not excessive prison sentences, and the appropriate solution is to subsume the excessiveness requirement in the prohibition on cruel and unusual punishment.

Potentially Important Harbinger

Most of the legal press attention yesterday went to the Supreme Court's ruling that states can't impose life sentences without parole on juveniles who commit offenses other than murder. But really, in terms of overall significance, the more important ruling was the one that held that the federal government can civilly commit and detain sexually dangerous prisoners beyond the date they would be released under their criminal sentences.

This other case, United States v. Comstock, was significant because it turned on the scope of Congress's affirmative powers. It wasn't about constitutional limitations such as the Due Process Clause, but whether Congress has power to enact a statute in the first place. Under the Constitution, Congress, unlike a state legislature, does not have general, indefinite powers. Its powers are limited to those specified in the Constitution (mostly in Article I, section 8). If Congress doesn't have the power to pass a statute in the first place, it doesn't matter whether a state could pass the same statute without violating individual freedoms. That's why the Supreme Court struck down provisions of the Gun-Free School Zones Act in the landmark case of United States v. Lopez.

Comstock considered this issue in a somewhat rarefied context, but it could be an important harbinger of how the Supreme Court will rule on the vital question of the constitutionality of the individual health care mandate in the health care reform act, which is being challenged on the same ground. The important point is that Comstock confirmed the traditionally broad view of Congress's powers, including its power, under the Necessary and Proper Clause, to pass all laws that are necessary and proper to put its other powers into execution.

The Court reaffirmed that the word "necessary" in the Necessary and Proper Clause does not mean "absolutely necessary," but rather something more like "convenient" or "useful." The Clause, the Court noted, leaves Congress a "large discretion" in choosing the means to be employed in executing its powers. And the Court adhered to precedents showing that a statute may be valid under the Necessary and Proper Clause even though there are multiple steps in the chain of necessity from one of Congress's expressly enumerated powers to the statute in question -- Congress is not limited to things one step removed from expressly granted powers. Thus, for example, Congress is expressly empowered to "Establish Post Offices and Post Roads," from which, it has been inferred, Congress has the power to carry mail along the post roads, from one post office to another; and from this, it has been secondarily inferred, that Congress has power to punish those who rob the mails. The Court even went so far as to suggest that, in reviewing whether a statute is "necessary and proper" to the execution of Congress's powers, a court should apply the highly deferential standard of asking only whether the statute is "rationally related to the implementation of a constitutionally enumerated power."

Significantly, Chief Justice Roberts joined the Court's opinion, and Justices Kennedy and Alito concurred in the result. Justice Kennedy, the fabled "swing voter" of the Court, thought the Court's opinion went too far in invoking the "rationally related" standard -- he thought there should be somewhat more searching judicial review of whether a statute is "necessary and proper." But he agreed that there is no requirement that a statute be only one step removed from a specifically enumerated power, and he agreed that the test is deferential.

None of the Justices mentioned the health care mandate, but surely they all understand that it lurks in the background. The biggest challenge to the mandate, as I have previously discussed, will be the claim that it exceeds Congress's affirmative powers. The mandate looks a little more secure now than it did before this case. It's still not a slam dunk, but this case suggests that the Supreme Court is not in the mood for further radicalization of its jurisprudence regarding Congress's affirmative powers.

Poignant Letter

And speaking of British politics, I enjoyed this short but poignant letter that appeared in the Guardian newspaper:

"I should like to check a couple of things in the British Constitution. Where can I buy a copy?"

American constitutional law is hard enough, but at least the Constitution consists of a text that anyone can read. Britain's "constitution" consists of an ill-defined set of important statutes plus an even less well defined set of traditions.

Some work is in progress to provide Britain with a written Constitution -- and I am proud to tell you that this project was announced in a speech at George Washington University by Jack Straw, Britain's Justice Secretary, when he was here a couple of years ago -- but at the moment there is of course nowhere to "buy a copy" of the British Constitution.

It must make things tough when things like a hung Parliament arise. The previous Prime Minister, Gordon Brown (who apparently is still Prime Minster, at least for now), initially insisted that the rule for that situation was that he had the first opportunity to form a new government, but David Cameron (leader of the Conservatives, who got the most seats) thought that it was his prerogative. The matter was effectively decided by Nick Clegg, leader of the third-party Liberal Democrats, who agreed with Cameron.

Of course, we have plenty of doubtful points arising under our written Constitution too. But at least we know what the Constitution is, even if we don't always know what it means.

The Constitution and Car Bombs

As might have been predicted, the arrest in the NY car bombing case has set off a wave of arguments about whether the suspect should be afforded the usual protections of the criminal law. Some Republicans members of Congress are suggesting that we should ignore the usual constitutional rules of the criminal law, charge the suspect as an enemy combatant, and bring him before a military tribunal.

Let's not listen to anything I have to say about the issue. Let's turn to that noted radical liberal, Supreme Court Justice Antonin Scalia, who said:

"Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention
without charge."

Apparently lots of people are ready to ignore constitutional restraints in the war on terror. Justice Scalia thinks the Constitution is there to protect us in peacetime and wartime and that its time-tested restraints should be honored. Even as to citizens who wage war against us, the Constitution, Justice Scalia says, requires us to treat them as criminals and charge them accordingly.

Health Care Mandate

I've done some more media lately on the constitutionality of state laws that purport to exempt a state's citizens from the new federal health care mandate, which has led to more e-mails on this topic. I've already given a more detailed explanation of my point, but there's obviously a lot of interest in this issue, so let's go over it again.

First, here's a link to an article by Jack Balkin of Yale, which appeared in the New England Journal of Medicine, explaining in more detail why the health care mandate would be constitutional. As Professor Balkin explains, there are several constitutional bases of congressional power to impose this mandate.

The health care mandate is structured as a tax. It doesn't actually require people to buy health insurance; it taxes them if they don't. Congress has the power to "lay and collect taxes." And Congress is constantly using the tax code to incentivize or disincentivize behavior for social policy purposes -- there are all kinds of tax breaks and tax penalties for doing or not doing something. So using the tax code to incentivize buying health insurance would be in keeping with what Congress does with the tax code all the time. So Congress's taxing power supports the health care mandate.

In addition, Congress has the power to "regulate commerce . . . among the several states," and it also has the power to do everything "necessary and proper" to make its regulation effective. Remember that the main point of the health care bill is to prohibit insurance companies from discriminating among customers based on pre-existing health conditions. In order to make that prohibition effective, an individual health care mandate is necessary. Otherwise, healthy people wouldn't buy health insurance until they got sick. Only sick people would buy health insurance, and the health insurance companies would all go bankrupt. So the commerce power, combined with the "necessary and proper" power, also supports the health care mandate.

It's true, as my e-mail correspondents note, that the commerce power applies to interstate commerce. But this power has been interpreted broadly, and it has been understood to cover matters that "substantially affect" interstate commerce. Health care is commerce (in fact, it is one sixth of our national economy), and there can be no doubt that the primary goal of requiring insurance companies not to discriminate based on pre-existing conditions would substantially affect interstate commerce.

So that's why I would predict with pretty strong confidence that the individual health care mandate will be held constitutional by courts, although, as I have remarked before, the argument is not a 100% slam dunk and different views are possible. Suits challenging the new law's constitutionality have already been filed, which is perfectly proper. By all means let these suits go forward and we'll see what the courts say.

The other point, which is the main one that I have been making in the media, is that, in determining whether the health care mandate is constitutional, state law is irrelevant. And that really is a slam dunk.

If the health care mandate is constitutional, it trumps state law because, under the Constitution, federal law is the "supreme law of the land." So, again assuming the mandate is constitutional, no state can exempt its citizens from the mandate.

Of course, as noted above, it is conceivable (thought not, I think, likely) that the mandate is unconstitutional. If so, it's ineffective. But it would then be ineffective everywhere, without regard to what any state's law says about the matter.

So maybe the individual health insurance mandate is constitutional and maybe it's unconstitutional. I think it's constitutional. But in any event, no matter how you look at it, state law is irrelevant. The states that have passed laws that purport to exempt their citizens from the mandate are grandstanding. They must know that those laws are ineffective. If they want to challenge the federal mandate, by all means let them do so. We'll see what happens. But passing a state law about it is not the right means to challenge the mandate and will have no impact on whether the mandate is upheld.

Federalism in the News

I've been getting a lot of e-mail (some sensible and restrained, some apoplectic and vituperative) because I told CNN that state laws that purport to exempt a state's citizens from the proposed federal health care mandate would be ineffective. My correspondents ask, what about the 10th Amendment? How does Congress have the power to mandate that we all buy health insurance? Here's a little more detail:

1. By virtue of Article I, section 8 of the Constitution, Congress has the power to "regulate Commerce . . . among the several States." This power has been understood broadly, and includes the power to regulate matters that substantially affect interstate commerce.

Health care is commerce. That is why Congress has power to regulate it, including the power to impose a health insurance mandate. Doing so would substantially affect interstate commerce.

The Tenth Amendment would not affect Congress's power in this regard. The Tenth Amendment concerns "[t]he powers not delegated to the United States by the Constitution," but the power to regulate commerce is one of the powers that is "delegated to the United States by the Constitution."

2. I recognize that point #1 is not a 100% slam dunk. Someone will surely challenge the federal health insurance mandate (if it gets passed), and it is conceivable -- though, I think, unlikely -- that the Supreme Court will hold it to be outside the scope of Congress's commerce power. But that's not what I was saying to CNN anyway.

The point I was making to CNN is that whether any particular state passes a law prohibiting health insurance mandates in that state is irrelevant. That's because federal law trumps state law. The Constitution provides that federal law "shall be the supreme Law of the Land." So where state and federal law conflict, federal law wins.

That's why, for example, the Supreme Court has held that Congress (using its commerce power!) can prohibit the use of marijuana, even in states, like California, that expressly permit marijuana use for medical purposes. The Court specifically said, "state action cannot circumscribe Congress' plenary commerce power." In other words, federal law trumps state law.

So if Congress passed a law requiring everyone to buy health insurance, that law would trump any state law that says that no one in the state has to buy health insurance.

Of course, to be supreme, a federal law has to be constitutional. So yes, someone could challenge the constitutionality of a federal health insurance mandate. Maybe it would be constitutional, maybe not (I think it would be). But in any event, it wouldn't matter what any state's law said.

That's the point that I was making to CNN. Some states are passing or considering laws that declare that there are no health insurance mandates in those states. Those laws are pure political grandstanding. They will have no effect of the validity of a federal health insurance mandate. The federal health insurance mandate might be valid or invalid, but it will be valid or invalid everywhere, without regard to the law of any state.

Census Kooks

As faithful readers know, I have an interest in "tax protestors," who are kooks who believe that there's no law that requires payment of federal income taxes. Every ten years, these tax kooks are joined by census kooks, who proclaim that people shouldn't fill out their census forms.

The latest nonsense along these lines is the idea that the census is unconstitutional because it asks for more information than the Constitution authorizes. The Constitution, the argument goes, only allows the government to gather sufficient information to apportion the House of Representatives, which would require only knowledge of how many people live in each place. Depending on how far this argument is pressed, it could theoretically mean that the census isn't even allowed to ask people for their names, but it would certainly suggest that the census isn't authorized to ask for people's race, age, or home ownership status, as in fact it does. People who should know better, including Cato Institute members and members of Congress are pushing these arguments.

It's always tiresome to see people making arguments like this without doing even the most basic research. As can be easily discovered on the Census Bureau's website, courts have considered and upheld the constitutionality of the census. As early as 1870, the Supreme Court used the census questions as an example of a "power [that] may exist as an aid to the execution of an express power, or an aggregate of such powers, though there is another express power given relating in part to the same subject but less extensive." Legal Tender Cases, 79 U.S. 457, 536 (1870). The Court did not have the census before it, so technically it did not pass on the issue, but it used the extra census questions as an example of something that was not specifically provided for in the Constitution, but was so clearly constitutional that no one would even question it. Other court cases, cited on the Census Bureau website, specifically uphold the constitutionality of the census against the objection that it gathers unnecessary information.

The census kooks conveniently ignore the fact that Congress, in addition to its specific powers, has the general power to do all things "necessary and proper" to carry its powers into execution, and this power has always been read broadly. As one court that considered a challenge to the census pointed out, the Census Clause only requires the gathering of enough information to apportion the House of Representatives, but nothing in the clause forbids the gathering of additional information, and if the information is "necessary and proper" to the intelligent exercise of Congress's powers, it is perfectly constitutional for Congress to gather it, and there can be no objection to doing so through the convenient mechanism of the census. United States v. Moriarity, 106 F. 886 (C.C.N.Y. 1901).

So census protesting seems about as logical as tax protesting. But having said that, let me add that if census kooks want to throw their census forms in the trash, fine, it'll just end up helping people like me. The more people refuse to fill out the census, the fewer representatives their states will get, and the less federal money too. So go ahead, census kooks, we all know which states you're mostly from, and if you want those states to get less representation in the House and less federal money, those of us who will end up with more representation and more federal money aren't going to complain too much.

Watch What You Say

I am quoted in this week's Newsweek, which has got people e-mailing me about it. It's got me remembering that press quotations can be misleading.

Newsweek's reporter initially contacted me about some bills working their way through the Virginia legislature that would say that no one in the state would be required to buy health insurance. It had previously been reported that these bills, if passed, would "make it illegal to require people to buy health insurance." Federalism is one of my areas of expertise, so he asked me whether a state could prevent Congress from requiring people in that state to buy health insurance. I pointed out that (a) that's not even what the bills say, and (b) of course if they did say that, they would be pre-empted by a federal law that mandated health insurance, if Congress passed one. So any state that passed a bill that purported to protect people in that state from a federal mandate requiring health insurance coverage would just be engaged in meaningless grandstanding, as politicians so often are. (The chairman of the Federation of Virginia Tea Party Patriots said that the bill was a focus of major lobbying by Tea Party volunteers. It says a lot about the Tea Party that one of their major priorities is a bill that wouldn't actually do anything.)

He also asked me more generally about the health care bill working its way through Congress, and whether it would be constitutional for Congress to require people to buy health insurance. I spent a good ten or fifteen minutes explaining that while of course we don't know yet what the final bill, if any, will actually say, it looks to me like it would be constitutional.

I pointed out that (a) health care is commerce, in fact 1/7 of our national economy, and Congress's power to regulate commerce is very broad, and (b) as I understand it, the bill doesn't actually require people to buy health insurance; it just imposes a tax penalty on people who don't, and Congress is constantly using the tax system to impose incentives or disincentives on various behaviors, so that would be commonplace and would probably be OK. I also referred him to the analysis by my old professor Akhil Amar, which supports the bill's constitutionality. And I observed that lots of governments require people to buy things, including insurance (e.g., auto insurance), so that wouldn't be unheard of either.

I even explained why Senator Orrin Hatch's analysis claiming the bill would be unconstitutional is wrong. Hatch doesn't like the fact that the bill provides that if states don't set up "health insurance exchanges," the federal government will do it for them. But this makes the plan constitutionally better, not worse, because this way the states aren't required to set up health insurance exchanges; they have the option to do so or not.

Having said all that, I did say that the federal government would be doing something new, and that whenever that happens, people challenge it. Given that, as far as I know, the federal government has never done this before, I suggested that a constitutional attack on a federal mandate to buy health insurance would not be trivial or frivolous, but that, in my opinion, it would fail.

So out of the whole 20 or 30 minute interview, what got quoted? Naturally, the quote is:

"The federal government would be doing something new," says Jonathan Siegel, a constitutional-law scholar at George Washington University. "It's not a trivial claim" for the states to make. "It's not frivolous."

There you are. I am accurately quoted, and I can't put any fault on Newsweek, but it looks like I am attacking health care legislation, when I spent 99% of the interview defending it.

So watch what you say when you talk to the media. They only have space to quote one thought from you, and you never know which one it will be.

Blasphemy!

It is easy to smile at the new Irish blasphemy law, which apparently imposes a whopping fine of 25,000 Euros (over $35,000) for "publishing or uttering matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby intentionally causing outrage among a substantial number of adherents of that religion." A group of Irish athiests is attempting to challenge the law by breaking it with a posting of famous blasphemous quotes.

But did you know that some American states also prohibit blasphemy? Oh, yes, they do. And it's not even the states you're thinking of.

A 1931 Michigan state law, still in force, provides "Any person who shall wilfully blaspheme the holy name of God, by cursing or contumeliously reproaching God, shall be guilty of a misdemeanor." (And the next section says, "Any person who has arrived at the age of discretion, who shall profanely curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost, shall be guilty of a misdemeanor.")

A Massachusetts statute (apparently going back to 1697, but still in force) provides, "Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior."

Oklahoma law (sorry, no ready link) provides that "Blasphemy consists in wantonly uttering or publishing words, casting contumelious reproach or profane ridicule upon God, Jesus Christ, the Holy Ghost, the Holy Scriptures or the Christian or any other religion," and that "Blasphemy is a misdemeanor," although it exempts words used in the course of "serious discussion."

Sure, these laws are probably unconstitutional. But they're on the books. So Ireland isn't the only one limiting free speech in the name of protecting God from verbal abuse.

Czar Wars

Two interesting articles on the Washington Post Op-Ed page recently about the increasing number of policy ”czars” in the White House. These officials report to the President, are not subject to Senate confirmation, and play a nebulous role in policy formulation and implementation. Senator Kay Bailey Hutchison suggests that czars therefore damage the constitutionally required separation of powers. Lawyers David Rivkin and Lee Casey respond that the President can get advice from anyone he wants, and that, if anything, it would be unconstitutional for Congress to stop the President from getting advice from policy czars.

Both articles go too far, but, basically, Rivkin and Casey are right and Hutchison is wrong. As Rivkin and Casey point out, the President can get advice from whomever he wants. He could get all his advice from me if that’s what he wanted to do. He doesn’t need Congress’s permission to seek anyone’s advice.

Hutchison expresses concern that the czars may be “impos[ing] the administration’s agenda on the heads of federal agencies and offices who have been vetted and confirmed by the Senate.” But if we’re talking about officials who serve at the President’s pleasure, what’s wrong with that? The President would be entitled to tell these officers personally what they need to do to keep him pleased (the President does that all the time with Executive Orders, for example). But the President doesn’t have time to keep on top of every one of the innumerable officials who serve at his pleasure, so he appoints some trusted intermediaries to serve that function, and so what?

Of course, these intermediaries could not, any more than the President himself, order officials to do anything illegal, but the President, like any boss, can tell his suboridnates that what would please him best would be for them to do what some intermediate official tells them, insofar as it is lawful to do so. Imagine, for example, that the President said, “I want the heads of DOJ, DHS, the military, State, and Treasury to report directly to me. Everyone else who serves at my pleasure, do what Joe Biden tells you to do.” Could there be anything wrong with that? I think not.

And with regard to officers who exercise power but who don’t serve at the President’s pleasure, the President’s ability to influence them is more limited, but again, whatever the President can do with these officials personally, he can tell them that someone else is his voice in their affairs. So the President can’t exactly order Ben Bernanke to do something, but whatever influence the President has with Bernanke, he could say, “Ben, whatever my economic czar tells you, that’s what I want.”

So I think Hutchison is wrong to suggest that there’s a constitutional problem. Of course, whether having so many czars makes sense as a public policy matter is a different question.

And I do think Rivkin and Casey go too far in one respect — they suggest that there would be a constitutional problem in Congress’s insisting on vetting White House czars. I’m not so sure about that. If the President wants to seek my advice, Congress can’t stop him. But if someone wants to be on the federal payroll, then Congress is footing the bill. If Congress wants to eliminate the budget for czars, I’m hard pressed to see how it could be prevented from doing so. The President has a lot of power, but the power of the purse is pretty potent, too.

More on the Birther Bill

In commenting yesterday that the Birther Bill is actually a good idea (and don't scoff until you've read my reasons), I neglected to mention that a still better idea would be to amend the Constitution to repeal the presidential eligibility requirements. If the people of the United States decide that we want a President who is foreign-born, or under 35, or who hasn't lived here for very long, that should be our choice. I suppose it makes sense that the President should be required to be an U.S. citizen, but really, even that hardly needs to be a constitutional requirement. A noncitizen candidate would face such enormous natural resistance that, if he or she somehow managed to win the election, it would be an indicator that the candidate was so truly extraordinary that the American people determined that he or she should be President, alienage notwithstanding. If that's what the American people want, why should their choice be denied?

Similarly, it would be very tough for someone under 35 to win the presidency, but if they have such amazing qualities that they make it there anyway, it's hard to see why the public choice should be restrained. And the prohibition against naturalized citizens is somewhat offensive -- it might have seemed appropriate 200 years ago but today it smacks of unfair discrimination. It's almost un-American!

So the best solution to the "birther" madness would be to repeal the presidential eligibility requirements altogether.

(By the way, an amusing thing about the woman in the red dress in the birther video is that she doesn't even understand what she's upset about. She screams out that President Obama is not a U.S. citizen, thus showing her lack of comprehension of the point, which is that even though he is a U.S. citizen, he would be ineligible to be President if he were not a natural born citizen.)

Birther Bill

Today's Doonesbury cartoon calls attention to H.R. 1503, the "Birther Bill," which would require a presidential candidate's campaign committee to file with the FEC "a copy of the candidate's birth certificate, together with such other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility to the Office of President under section 5 of article II of the Constitution."

The "birther" movement, for those who may be reading this blog from Mars, is made up of people who believe that President Obama is not a natural-born citizen of the United States and therefore is ineligible to be President. Although this view has been thoroughly refuted, an astonishing 58 percent of Republicans either believe Obama was born abroad or are not sure about it. H.R. 1503 seems to be a direct outgrowth of the birther movement.

Now, let's start with the obvious: the birther movement is crazy and has a lot of crazy people in it. This can be seen in the now-famous video of a birther at a congressman's town-hall meeting. The Birther Bill almost surely springs from bad motivations and is correctly perceived as a vexatious political ploy.

But having said that, I do try, in this blog, to rise at least somewhat above partisanship and political ploys and to view things from a neutral public policy perspective. Looking at the matter in that way as best I can, I have to say that, if we could just view the Birther Bill in a neutral, detached way, separated from the utterly absurd political movement that has given rise to it (which is admittedly difficult to do), we would see that it is a good idea.

I'm sure some people will recoil in horror, but consider the following propositions:

* The Constitution of the United States should be enforced;

* The Constitution requires the President to be a natural born citizen, to be at least 35 years of age, and to have been a resident of the United States for 14 years;

* There is a strong argument that only Congress, and not the courts, can enforce these presidential eligibility requirements, and that it is Congress's duty to do so at the time it counts the votes of the presidential electors in each presidential election; and

* Congress should have a reliable means of obtaining the information that would allow it to fulfill its duty to enforce the presidential eligibility requirements.

Does anyone disagree?

The Birther Bill, which would apply to presidential elections starting in 2012, seems like a plot to try to embarrass President Obama when he runs for re-election. But imagine that the bill had been proposed 50 years ago, or were proposed 50 years from now, in a context separated from any controversy about any particular candidate. I would find it hard to argue that Congress should not have reliable information that would allow it to fulfill its duty to enforce the Constitution.

It is, of course, unlikely that anyone would try to evade the constitutional presidential eligibility requirements, because it is so likely that such evasion would be exposed. So the requirements of the Birther Bill would protect only against a pretty remote contingency.

But on the other hand, it's not as though the requirements would be very costly or burdensome. President Obama, for example, has already posted a copy of his birth certificate online. The bill only requires "a copy of the candidate's birth certificate" (not the alleged "vault copy" that birthers hysterically insist is being withheld), so all he would need to do would be to file a similar copy with the FEC, together with proof that he's lived in the US for 14 years. (Indeed, if anybody would have had a hard time complying, it would have been John McCain, who would have had to file proof that he was a "natural born citizen" even though he was born in the Panama Canal Zone.)

So even though one might argue that the bill is unnecessary because it protects against something that probably won't happen, the thing would be pretty important if it did happen, and the cost of compliance with the bill's protections would be small.

So if the bill were not the outgrowth of a crazy, political, anti-Obama movement, I would find it hard to oppose. The only thing that makes it a problem is the political context, which is that the bill is an attempt to embarrass President Obama.

But really, I don't see how President Obama would in fact be embarrassed or hindered by the bill's requirements. It wouldn't require him to do anything more than he's done publicly already. If he is re-elected in 2012, I strongly doubt that Congress would find itself unsatisfied with the birth certificate he's already released. And even if I'm somehow wrong about that (let's imagine that the new Congress elected in 2012 is controlled by the most unreasonable, hardest of hardline Republicans), any Congress that was inclined to make trouble over compliance with the Birther Bill could make the same trouble over compliance with the Constitution whether or not the Birther Bill had been passed. So it really wouldn't add anything to whatever potential problem exists.

Part of the purpose of blogging (and of academia) is to challenge conventional wisdom and to look at things in a true and fair light. The birther movement is crazy, and the Birther Bill springs from crazy origins, but that does not by itself prove that the bill is a bad idea. In fact, the bill would promote reliable enforcement of the Constitution of the United States.

'Vast There!

Sometimes it's hard to read a judicial opinion without hearing people cry "Hard-a-port! Man the Scuppers!" in the background. Today's opinion in Polar Tankers, Inc. v. City of Valdez, Alaska fits the bill, as the Supreme Court struck down a city tax because it violated the Constitution's Duty of Tonnage Clause.

The what? That's right, Article I, section 10, clause 3 of the Constitution provides that "No State shall, without the Consent of Congress, lay any Duty of Tonnage." You missed that in your Constitutional Law class? Frankly, so did I, but remember that in the Framers' day shipping and maritime matters were vital.

The City of Valdez imposed a personal property tax on large ships that traveled to and from the city -- with exemptions that effectively limited the tax to oil tankers. Ah, but our Framers had anticipated taxes like this. They didn't want coastal states to take advantage of their favored geographical position by imposing taxes that would burden inland states. So, even though a "duty of tonnage" is literally only a tax on the cubic capacity of a ship, the Supreme Court has struck down "all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port." Valdez's tax was, effectively, a charge for the use of its ports, so it got struck down.

Our eighteenth century ancestors still rule us today. And they cry "Hard-a-port!" as they do.

Another D.C. Vote Debate

Actually, this one isn't exactly a debate, but I will be testifying before a hearing of a D.C. Council's Special Committee tonight at the Wilson building. The hearing starts at 6:30 pm. I'll be on a panel discussing the constitutionality of H.R. 157, the District of Columbia House Voting Rights Act of 2009. As faithful readers know, I think the act is clearly unconstitutional. Others on the panel disagree, so there'll be something like a debate on the topic.

Interestingly, also on the panel will be Patricia M. Wald, former Chief Judge of the District of Columbia Circuit Court of Appeals. It isn't every day that I clash with the judge I clerked for, but she's on record as supporting the constitutionality of the act. So we'll be taking opposing views on the panel

And I might be questioned by Mary Cheh, who is both my colleague and a Council Member. Small world.

More on that Repeal

Update: I sent Professor Randy Barnett yesterday's post, and what do you know, he agreed! By e-mail, he informed me that he's modified his proposal so that it doesn't just repeal the 16th Amendment, but specify clearly that Congress cannot impose an income tax. Of course, we still disagree on the policy of it.

And here's one more thought: why would you need to pass a constitutional amendment to repeal the income tax? Congress can repeal the income tax any time. Remember that a constitutional amendment requires an extraordinary supermajority of Americans to sign on: either two-thirds of each house of Congress needs to propose an amendment, or legislatures of two-thirds of the states need to call a ratifying convention (that's Professor Barnett's ambitious plan, even though it's never happened), and then three-quarters of the states need to ratify any proposed amendment. My goodness, if there were sufficient opposition to the income tax to get a constitutional amendment forbidding it through that procedure, why wouldn't Congress just repeal the income tax?

Income tax is not imposed on us by aliens from Mars; it comes from politicians who are responsive to public opinion. There are a lot of impediments to getting anything through Congress, but I find it hard to believe that there could be sufficient public support for a constitutional amendment taking away Congress's power to impose the income tax but not enough support to get a repeal of the income tax through Congress itself.

"Federalism Amendment"

Professor Randy Barnett of Georgetown University writes in the Wall Street Journal to propose a "federalism amendment" to the U.S. Constitution that would limit the powers of Congress, allegedly to what was originally intended. Part of his proposed amendment would repeal the 16th Amendment, which, Barnett says, "authorized a federal income tax." Repealing the amendment would, according to Barnett, "eliminate[] the federal income tax," and Congress would then have to impose something else, such as a national sales tax.

Professor Barnett's proposal is a bad idea on policy grounds, because the income tax is one of the few progressive taxes we have (i.e., richer people pay a higher percentage of their income than poorer people), and even it doesn't do the greatest job on this score, as Warren Buffett has pointed out (because dividends and capital gains receive preferential treatment, he pays a lower tax rate than his secretary). But a sales tax is regressive, so Barnett's proposal amounts to saying that the less wealthy should bear a higher proportion of the national tax burden relative to their incomes.

But putting policy issues aside, the even bigger problem with Barnett's proposal is that it would be ineffective. It wouldn't "eliminate[] the federal income tax," because Barnett is wrong when he claims that the 16th Amendment "authorized a federal income tax." As every tax protestor knows, the 16th Amendment in fact "conferred no new power of taxation."

The power to impose an income tax was granted by Article I, section 8 of the Constitution, which gives Congress the power to "lay and collect Taxes, Duties, Imposts and Excises." As is explained in detail here, the Supreme Court approved an income tax as early as 1880, prior to adoption of the 16th Amendment.

It's true that the 16th Amendment became necessary because the Supreme Court ruled that certain aspects of income tax were unconstitutional because they were "direct taxes" that, in accordance with the Constitution, had to be apportioned among the states according to the census. In a case called Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, on reh'g, 158 U.S. 601 (1895), the Supreme Court, roughly speaking, disapproved an income tax on income from property (e.g., rents). That's the problem the 16th Amendment fixed.

So if the 16th Amendment were repealed, it might make income taxes on some income (income from property) unconstitutional, but it wouldn't eliminate taxes on wage and salary income. That would probably be OK with Professor Barnett, because if you like the idea of replacing a progressive income tax with a regressive sales tax, you probably like the idea of limiting income tax to wages and salary too, because it has the same effect of shifting the tax burden from the wealthy to the less wealthy. But apart from being a bad idea, it would not "eliminate the federal income tax."

It's also possible that the Supreme Court would conclude that Pollock was wrongly decided and that the constitutional prohibition on unapportioned "direct" taxes shouldn't apply to taxes on income from property, but only to taxes on the value of the property itself -- wealth taxes. In that case, repealing the 16th Amendment would have almost no effect on income taxes at all.

So if we're going to amend our precious Constitution based on bad policy ideas, we should at least do so effectively. Declaring that "the 16th article of amendment to the Constitution of the United States is hereby repealed," as Barnett proposes, would not eliminate the income tax. You'd need to say something more like, "Congress shall not impose a tax on incomes." If that's what you want, it's not so hard to state.

Wasted Energy

D.C. voting rights are progressing on the Hill, but with the unfortunate addition (in the Senate) of provisions voiding the city's gun control laws. Whether you like guns or hate them, the District's gun laws should be made by its elected representatives, not by our non-representative congressional overlords.

Unfortunately, D.C. is salivating so badly for a vote in Congress that our Mayor has actually said that he'd take the gun part if that's what's needed to get the vote.

Doesn't anybody understand that this is all wasted effort? The D.C. Voting Rights Act is patenly, blatantly, utterly unconstitutional. All that's going to happen is that its passage will lead to a 1-2 year court battle, following which it will be overturned unanimously in the Supreme Court. And then the energy necessary to get somewhere on D.C. voting rights will have been expended. Congress will have changed by then -- who knows who'll be in control. It'll be a decade before anything happens on this issue again.

This is our best chance to do something about D.C. voting rights, and we're expending the energy on a bill that won't change a thing because it's unconstitutional. We should seize this chance to do something effective.

D.C. Vote Advances Toward Unconstitutionality

The day when the D.C. Voting Rights Act is finally declared unconstitutional came closer, as the bill passed a Senate committee by a vote of 11-1. Although the bill fell 3 votes short of avoiding a filibuster in the last Congress, the Democrats' big gains in the Senate suggest that the bill could actually become law this year.

Sorry, it's still unconstitutional. Look, this isn't complicated. The Constitution provides that "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." Each representative is required to "be an Inhabitant of that State in which he shall be chosen." D.C. is not a state and Congress can't just pretend that it is. Full analysis here and here.

Besides, the Voting Rights Act is still a half-measure that wouldn't solve the problem of taxation without representation. It would be nice to have a Representative in the House of Representatives, but we need Senators too. Until we have both, the District will continue to be a sad exception to American principles of democracy.

Only a Lawyer

Now we really know we have a new President: he's admitted a mistake. He and Chief Justice Roberts flubbed the Oath of Office on Inauguration Day, so last night they did it again. That tells us something else about our new President: he's a lawyer. Only a lawyer would re-take the oath -- "out of an abundance of caution."

So was Barack Obama really President on Tuesday afternoon and Wednesday morning? Yes, he was. The Constitution provides (amend. XX) that "The terms of the President and the Vice President shall end at noon on the 20th day of January . . . and the terms of their successors shall then begin." So Obama's term began at noon on Tuesday, oath or no oath.

The Constitution also provides (art. II) that "Before [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation:--'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" So Obama was President, but he was required to take that oath before he entered on the execution of his office.

So the real question is, are the official presidential acts President Obama took (e.g., nominating cabinet officials) before he re-took the oath valid? I would say yes. We could argue this endlessly -- it's not a complete slam-dunk either way -- but considering the purpose of the oath requirement, I would say that a good-faith effort to take the oath, such as occurred on Tuesday, is valid, notwithstanding minor slip-ups. The purpose of the oath requirement is not to invoke magical powers that are released by reciting the words in the precise, constitutional order. The purpose is surely to have a public statement of the President's commitment to the Constitution -- a statement that can impress the importance of that commitment upon both the President and the public. Intentionally changing the words of the oath would interfere with that commitment, but unintentional and immaterial mistakes would not. So I would say that retaking the oath was unnecessary, although it was good, lawyerly practice.

And by the way, those who suggest that no one would have standing to challenge the oath mixup are, in my opinion, completely wrong. Anyione adversely affected by any of Obama's presidential acts would have standing to claim that the acts are invalid because Obama isn't really President, or can't really execute the office of President, because of the oath mixup. So the legal analysis is necessary.

That Veep Role Again

It sure does seem to be hard for people to say what the Vice President does. Sarah Palin famously overstated the Veep's role when she said that the Vice President is "in charge of the United States Senate." As I have explained, that overstatement was not really so bad as people have been making out, inasmuch as she was trying to explain the Vice President's job in a way that would be understandable to a third-grader.

But now George Will, who should really know better, responds that the Vice President has "no constitutional function in the Senate other than to cast tie-breaking votes."

Look, what is so hard about this? There's just one sentence that sums it all up. The Constitution provides that "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."

So while Palin overstated the Vice President's role, Will understated it. The Vice President does have a constitutional function in the Senate other than casting tie-breaking votes. The Vice President is the President, or presiding officer, of the Senate. So the Vice President presides over meetings of the Senate, which involves choosing Senators to speak and making rulings on points of parliamentary procedure.

It's not much of a role. The Senate rules rather sharply constrain the power of the presiding officer -- in part precisely because the Senate doesn't want the Vice President to show up and exercise a lot of power. Even in choosing which Senator to call on, the presiding officer is constrained -- the rules require calling on whichever Senator rises first. And rulings of the presiding officer on parliamentary questions can be appealed to the full Senate (although this rarely happens).

For this reason, the power of the presiding officer is sufficiently minor that most of the time the Vice President doesn't even bother to show up to exercise it. But it's not nothing -- it's sufficiently important that the majority party permits only members of the majority party to preside.

So if we're going to jump on Palin for overstating the Veep's role, we should be careful not to understate it either.