• We are given the flexibility to decide which insurers are permitted to offer their products.
• All the law's expensive benefit mandates are waived, so that our citizens aren't forced to buy benefits they don't need and have a range of choice that includes more affordable plans.
• The law's provisions discriminating against consumer-driven plans, such as health savings accounts, are waived.
• We are given the freedom to move Medicaid beneficiaries into the exchange, or to utilize new approaches to the traditional program, instead of herding hundreds of thousands more people into today's broken Medicaid system.
• Our state is reimbursed the true, full cost of the administrative burden to be imposed upon us, based on the estimate of an auditor independent of HHS.
• A trustworthy projection is commissioned, by a research organization independent of the department, of how many people are likely to wind up in the exchange, given the large incentives for employers to save money by off-loading their workers.
Obviously, this is a very different system than the one the legislation intends....
That's a GOP proposal on how to tweak health care reform, which is what Obama and others have said they need. With the prospect of 21 states dropping out of the enforcement regime, there should be real pressure to work with them and try to draw them back in.
On the other hand, you really are in favor of a fully nationalized health-care system, then you might celebrate the states failure to go along with the attempt to include them. And if what happens is, as Daniels predicts, "first-rate operational catastrophe," then that sets up the collapse into the only workable fix a fully nationalized health-care system.
I just turned on C-SPAN and hit the 2d Amendment right on the nose. Do I have some kind of right-wing instinct?
Here, you can watch on the internet. Hurry! They're up to the 6th Amendment.
UPDATE: The 10th Amendment won a spatter of applause.
UPDATE 2: John Lewis read the 13th Amendment – abolishing slavery — and that got a big round of applause. Section 1 of the 14th Amendment — read by Democrat Mel Watt — also got some healthy applause.
UPDATE 5: You have one sentence to read: How can you mispronounce one of the words? Compulsatory, etc. etc.
UPDATE 6: Applause... either for the document as a whole, now completely read, or for the idea that they shouldn't give themselves a raise, which was the last thing read.
(I'm just starting to listen. I'll pick some clips out and add them below. Here's the NYT article on Randy's proposed constitutional amendment — which would empower the legislatures of 2/3 of the states to repeal any federal law.
ADDED: Randy talks about the repeal amendment here, and Sandy dumps on it here.
No right under the [European] Convention was violated [where the plaintiffs were able to travel to another country to obtain an abortion], the court said by a vote of 11 to 6. Granted, “the process of traveling abroad for an abortion was psychologically and physically arduous” for these women. And granted also that in their particular circumstances, they could have obtained legal abortions in 35 to 40 other countries covered by the Convention. But because Ireland’s law is based “on the profound moral views of the Irish people as to the nature of life,” the court said, Ireland was entitled to an extra “margin of appreciation.” This phrase expresses a measure of deference toward a country’s right within the framework of international law to chart its own domestic course. With its extra margin, Irish law prevailed.
Greenhouse notes that the European Court accepted a situation similar to what would come into being if the United States Supreme Court withdrew the constitutional right to abortion and the matter were left to state law. She says the case gave her "the eerie feeling that I was peering into a domestic future."
Obviously, not all states would choose to join the anti-abortion bandwagon, even if they had the Supreme Court’s permission. California, New York, the District of Columbia, Connecticut and Massachusetts (once two of the most anti-abortion states, but times change) would remain places of refuge for desperate women, Englands to the Irelands that are Wyoming (which has no abortion provider), the Dakotas, or the Deep South, where a shrinking handful of doctors provide abortions in a hostile regulatory climate. More than a third of all women live in counties without an abortion provider, and that number is growing. Long-distance travel is made more onerous in the half of the states that require 24-hour waiting periods after “counseling,” necessitating two trips or an overnight stay.
The second commenter over there brings up Justice Kennedy's interest in referring to international law:
The right has roundly criticized Justice Kennedy for his interest in international law. Whaddaya bet they won't criticize him for citing the case of A, B & C v. Ireland? Watch the Court chip, chip, chip away at Roe & at Planned Parenthood v. Casey.
Well, what about the left? What about those who approve of the use of the decisions from foreign court in the analysis of American constitutional law? Whaddaya bet they won't want to have to pay any attention to "the right to life of the unborn... based on profound moral values deeply embedded in the fabric of society"?
Watch here. Chris Wallace does a great job of needling him about things Breyer's written about constitutional interpretation and, Breyer, as I'd expect, rises to the occasion. Breyer literally waves the Constitution around, in tiny booklet form, and figuratively waves around a bigger book, his book "Making Our Democracy Work."
Now, let's rummage through the transcript. Chris Wallace questions him about "just applying the law as written," and Breyer plugs in the expected elementary lesson about the concision of the phrases in the Constitution and the need to apply them in the changed circumstances of the modern world (airplanes! the internet!), and then Wallace displays the text of the 2d Amendment:
WALLACE: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms" -- the right of the people to keep and bear arms -- "shall not be infringed." Now, Justice, I understand why, as a matter of policy, in a world with a lot of urban violence and big cities, that some people would say we need gun control, particularly in a big city like Washington, as they have here, and in Chicago. You ruled in both of those cases. And in both cases the court voted twice over your dissent that the founders meant what they said, people have a right to bear arms.
Breyer, of course, is ready for this:
BREYER: Yes. Yes. That's a wonderful example because, of course, it's not a matter of policy. It is a matter of what those framers intended. And you saw that first phrase, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." What does that mean, the militia? Historians told us, and the dissenters thought they were right, that what that meant was that James Madison, thinking, "I've got to get this document ratified," was worried about opponents who would think Congress would call up state militias and nationalize them. "That can't happen," said Madison. And therefore, he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right.
There's some talk about judges acting like judges and how history can't answer some of the details. How do the old words and the old intent apply to new things? Breyer lists machine guns and torpedoes, and then, deviously, handguns. Wallace responds:
WALLACE: I understand. But it certainly didn't provide for a ban, at least that's what the court's decision was, your court's -- it didn't provide for a ban on all handguns as they have here in Washington, D.C.
BREYER: Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have...
WALLACE: But -- but it's...
BREYER: ... a gun.
WALLACE: ... but that's a policy issue. That's not a constitutional issue.
Breyer chooses not to jump on this point, perhaps because he'd have to say things that conservatives say. He'd have to promote federalism. Let me sketch it out.
If there isn't a right covering this particular subject, then state and local government will be able to legislate the policies that they, as a community, think are best. Yes, it's a policy issue, and — Breyer would say, if he'd gone on — that's why it's appropriate for legislative bodies to make decisions about it. If you don't like those decisions, the great thing about the United States is that you can move around and go to places that have policy preferences that suit your tastes. You have a right to travel and a right to change your residence to another state. And you also have the right to participate in politics, so there's also the alternative of trying to get the law in your state or city changed, so that handguns are not banned. Breyer's approach to the Second Amendment lets the people make the gun control laws what they want them to be and, when they do, they won't get caught up in litigation over the choices they make.
This is what conservatives say all the time about abortion and the separation of church and state (to cite the 2 most glaring examples). But here's Right Wing News — Chris Wysocki — excoriating Breyer for saying "get on the subway and go to Maryland."
Mind-boggling really, isn't it? Gee little black girl, do you want to go to the same school as white girls? Well, get on the subway and go to Maryland!
Well, no. There is a federal constitutional right covering that point, so you don't get the state-to-state variation. And that's the question: Is it a federal constitutional right or not? When you're arguing that there isn't a right, you're saying the law can vary from state to state. When is that intolerable and when isn't it? We all agree (now) to the uniform resolution of the school segregation problem that excluded decentralized decisionmaking. There is an Equal Protection right.
But there was, recently, a disagreement about the Second Amendment, and Breyer was on the side that thought there was no individual right. Put another way, Breyer's side of the Court thought that decentralized policymaking could govern. Do you think that's terrible? If you believe that there's a right, then, yes, of course, you do. But think of something else, where you think the Court is wrong about saying there's a right — perhaps, for you, abortion — and then, don't you remember all the times you made the argument that it wouldn't be so terrible because individual states could make their own decisions and people could move (or travel) to the states that gave them what they wanted?
Wysocki continues:
So mister, what if you are in a wheelchair? This doctor's office has stairs. If you want to see an accessible doctor, get on the subway and go to Maryland!
Whoa! You think the Constitution obliges private citizens, like doctors, to make their buildings wheelchair accessible?! That's so left-wing! Check your blog's name! What's the "Right Wing News" today, that righties have gone all lefty? That would be news!
***
(I have some more things to say about the Breyer interview, but I'll start a new post for that.)
CORRECTION: Sorry, I had "Chris Matthews" in the first sentence of this post. It's Chris Wallace.
Dana Milbank notes "the unfortunate echo of nullification," but nullification was the idea that individual states could disregard federal law they opposed. The Repeal Amendment would institute an orderly structural safeguard as part of the Constitution, a check on federal power that requires a supermajority vote of the states.
The amendment process, after all, is part of the Constitution. The Framers had no illusions that they were creating perfection, and believed in the sovereignty of the people and in the power of the people to revise the Constitution as needed, through the process they created. The idea that the text of the Constitution should be revised only through judicial reinterpretation is a modern conceit, and one that does no honor to the Framers at all.
Since the Repeal Amendment, proposed by Randy Barnett, can easily be portrayed as an effort to return to something closer to the balance of power provided for in the original Constitution, it is pretty silly to portray yourself as brimming with respect for the Founders when what you really support is the shift of power to the national government that occurred over the long stretch of time, a shift that the courts have allowed to take place.
You know what else is silly? This, from Milbank:
Lest you think this is a hair-brained scheme by one Republican lawmaker, consider that the Repeal Amendment... has won the endorsement of the man who will be the next House majority leader, Rep. Eric Cantor (R-Va.).
Folk etymology is the term for the creation of new words by mistake or misunderstanding or mispronunciation....In today's language, "Hare-brained" is often giddily and irresponsibly misspelled "Hairbrained," perhaps on the notion that the hair is near the brain.
Folk etymology... hmmm. There's also folk constitutional interpretation, isn't there? Or is folk the wrong word when it's journalists purveying the bogus constitutional wisdom?
"That left me in a tough position. That would arouse controversy anywhere. To do so in the Deep South, where there had been centuries of states' rights tensions, could unleash holy hell."
I was struck by that passage in Bush's memoir, "Decision Points." Bush, of course, ended up getting criticized for seemingly not "car[ing] about black people," so it's interesting to think that his delays — at least as he presents them now — had to do with the history of the South. But look closely as the 2 concerns that slowed Bush's imposition of federal authority in New Orleans:
1. Gender. Bush didn't like the image of the male pushing the female aside. He thought he'd be criticized for that.
2. "States' rights tensions." That's a strange way to evoke the history of racism in the south if you want to convey that you cared about the suffering of black people. "States' rights" was the cry of those who resisted federal efforts to advance integration. Bush was, in fact, being deferential to the Southern governor.
Bush, sensitive to potential criticism about sexism and states' rights, exercised restraint, which exposed him to criticism about race.
There was rapper Kanye West who told TV viewers: "George Bush doesn't care about black people." Jesse Jackson compared the plight of some survivors with being trapped in the "hull of a slave ship".
"Five years later, I can barely write these words without feeling disgusted. I am deeply insulted by the suggestion that we allowed American citizens to suffer because they were black... The more I thought about it, the angrier I felt. I was raised to believe that racism was one of the greatest evils in society," Bush writes. "I faced a lot of criticism as president. I didn't like hearing people claim I had lied about Iraq's weapons of mass destruction or cut taxes to benefit the rich. But the suggestion that I was a racist, because of the response to Katrina, represented an all-time low. I told Laura at the time that it was the worst moment of my presidency. I feel the same way today."
He feels bad about this criticism and is contemptuous of those who expressed it, but: 1. His own words indicate that he put racism third on a list of 3 things he was worried he'd be criticized for, and 2. Jackson and West were speaking emotionally at the time when the suffering was going on.
Prop 19 failed. In yesterday's Bloggingheads — the "Non-Obsolete Edition" — Matt Welch and I talked about the effort to legalize the so-called "recreational" use of marijuana, which is far less popular than the "medical" use. You can watch the whole segment here, but — I know these Bloggingheads things are long — I don't want you to miss the part where I connect the favoring of medical legalization to left-wing values that I despise. It's only 80 seconds:
Note that the "medicinal" use of alcohol — "self-medicating" — is considered especially bad. The good alcohol use is for personal pleasure — one might say the pursuit of happiness — and most certainly not out of a physical need. Isn't it odd that it's the other way around for marijuana?
***
If you watch the whole segment — 16+ minutes long, sorry — there's a lot of discussion of the way the federalism problem would work out if the state stopped criminalizing marijuana. It's a misnomer to say that would "legalize" marijuana, because the federal crimes still apply. It would still be a crime to possess, grow, or distribute marijuana. The federal government can't force state officials to carry out the enforcement of the federal law. (It can lure them into that role with conditions on spending, but it can't commandeer the state law enforcement personnel. That's Printz.)
As Matt notes, Eric Holder announced a few weeks ago, that if Prop 19 passed, federal drug agents would "vigorously enforce" the federal law in California. California's a huge state, and that would be damned hard to do. I suggest that Holder may have only said that to try to influence California voters to reject Prop 19, and Matt seems certain that was the reason. And that seemed to work.
It would have been quite chaotic if Prop 19 had gone the other way. In the 16+ minute clip, you can see that Matt loves the idea of the chaos that would destabilize everything with, perhaps, the ultimate result that the federal government would give up on its marijuana crimes. I, on the other side, resist the chaos. I don't think it would work well to have something appear to be legal and at the same time be a very real federal crime. Much as I like decentralized law and the benefits of federalism, where there is valid federal law, it supersedes state and local law. That is the constitutional structure.
"I've read your brief, I've read the District Court opinion, I've heard your interchange with my two colleagues, and I don't understand your argument," Noonan told deputy solicitor general Edwin S. Kneedler. "We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That's not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don't have an argument."
"With respect, I do believe we have an argument," responded Kneedler, who said the Arizona law is unconstitutional and threatens civil liberties by subjecting lawful immigrants to "interogation and police surveillance.''
Yeah, well, but that's not preemption.
Here's my old post trying to make sense of the preemption argument. I came up with this (admittedly strange and politically inadvisable) argument:
The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration. Given that federal policy and the supremacy of federal law, one could argue that it is not within the state's proper power to dictate a different policy and impose it on the federal government (by referring a lot of new cases of individuals violating federal law).
I really need to see the whole transcript. Ah! Here's today's oral argument:
ADDED: I'm reading the opinion. Judge Roger Vinson rejects the argument that the individual mandate is actually a tax and therefore that the Anti-Injunction Act is an obstacle to the lawsuit. Key point:
[I]t is inarguably clear that Congress did not intend for the exaction to be regarded as a tax...
Congress didn't call it a tax and "the defendants are wrong to contend that what Congress called it 'doesn’t matter.'"
Congress did not state that it was acting under its taxing authority, and, in fact, it treated the penalty differently than traditional taxes.
The failure to call it a tax was especially important because the act was so controversial:
One could reasonably infer that Congress proceeded as it did specifically because it did not want the penalty to be “scrutinized” as a $4 billion annual tax increase, and it did not want at that time to be “held accountable for taxes that they imposed.” In other words, to the extent that the defendants are correct and the penalty was intended to be a tax, it seems likely that the members of Congress merely called it a penalty and did not describe it as revenue-generating to try and insulate themselves from the potential electoral ramifications of their votes.
Because it is a penalty and not a tax, the act cannot be upheld with the taxing power. The question must be the scope of the Commerce Power.
AND: Judge Vinson upheld the standing of the individual plaintiffs and the state plaintiffs, and he held that the claims were ripe. Even though the mandate doesn't go into effect until 2014, it is "certainly impending" and "responsible individuals, businesses, and states will have to start making plans now or very shortly to comply with the Act’s various mandates."
Finally, the judge considered the motion to dismiss for failure to state a claim. He dismissed some of the claims relating to state sovereignty, and I won't bore you by attempting to paraphrase this part. If you don't know the law in this area, you'd be better off trying to read pages 41-58 of the opinion. So let me confine myself to the individual mandate. Judge Vinson rejects the due process argument, because the scrutiny in this area is minimal and Congress had a rational basis for the mandate. But the Commerce Clause challenge survived.
At this stage in the litigation, this is not even a close call. I have read and am familiar with all the pertinent Commerce Clause cases... This case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before.... There are several obvious ways in which Heart of Atlanta and Wickard differ markedly from this case... Those cases... involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel or growing wheat, you are engaging in interstate commerce and subject to federal authority....
... The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive....
The appeal comes at a tough time for Obama, who has been trying to shore up his liberal base ahead of the contentious congressional elections when his fellow Democrats are expected to lose many seats to Republicans. Democrats could lose control of the House of Representatives.
A key concern has been whether those who have supported Obama in the past will show up to vote in the November 2 midterm elections. He has opposed same-sex marriages but supported civil unions and extended some benefits to gay partners of federal employees.
To be fair, in his 2008 campaign, Obama said he was opposed to same-sex marriage. But, of course, people who wanted to believe he embodied the hope that they wanted to hope believed that he really, secretly, supported same-sex marriage. And he opposed DOMA:
As your President, I will use the bully pulpit to urge states to treat same-sex couples with full equality in their family and adoption laws. I personally believe that civil unions represent the best way to secure that equal treatment. But I also believe that the federal government should not stand in the way of states that want to decide on their own how best to pursue equality for gay and lesbian couples — whether that means a domestic partnership, a civil union, or a civil marriage. Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) – a position I have held since before arriving in the U.S. Senate
If you brightened at that February 2008 statement, did you perceive that if a court said the same thing — that DOMA is antithetical to federalism principles and to equality — that Obama would fight against that court decision? Obama only supports Congress repealing DOMA — did you notice that at the time? — and if Congress — the new Democratic Congress — applies its first burst of power in 2009 to other matters... well, too bad. Vote for them again in 2010 and maybe they'll do something for you some day. The arc of history is long!
But heaven forbid that the courts rouse themselves to the point where they strike down the statute. Did Obama ever give you the impression that he believed that courts should be in the forefront, protecting the rights of the oppressed and downtrodden — that courts ought to have "the empathy to recognize what it's like to be ... gay"? Did you take that empathy remark the wrong way? To say a judge should "recognize what it's like" is not to say the judge should perceive that you have rights and actually enforce them. You silly voter!
Because if Barack Obama follows through with even half of the promises he made to the LGBT community during his campaign, he'll have done more to advance gay rights in this country than any President before him – combined.
How can he rake in votes just by seeming to care about the rights and interests of gay people? Not even seeming all that much — he's against same-sex marriage! — but just by stirring hopeful feelings and looking like somebody who cares. Well, he's already done it once. Why shouldn't he believe that what worked once will work again?
That was written in May 2009 — Springtime for Obama — and now it's Fall 2010. Things aren't so warm and sunny anymore, and now is when he needs to maximize the votes. Most Americans oppose gay marriage, and he can't alienate them, so won't you gay people (and you people who support them) continue to do what you're supposed to do and vote for those Democratic candidates? You know the Republicans won't help you. That's the grubby argument.
I will never compromise on my commitment to equal rights for all LGBT Americans. But neither will I close my ears to the voices of those who still need to be convinced. That is the work we must do to move forward together. It is difficult. It is challenging. And it is necessary. Join with me, and I will provide that leadership. Together, we will achieve real equality for all Americans, gay and straight alike.
[T]he dread over the same-sex marriage issue was almost palpable as Mr. Obama’s senior adviser David Axelrod tried to explain on MSNBC on Thursday that Mr. Obama opposed same-sex marriage, “But he supports equality for gay and lesbian couples, and benefits and other issues, and that has been effectuated in federal agencies under his control.”
Lawprof Jack Balkin doesn't like the way Judge Hudson dealt with the Anti-Injunction Act in the opinion that allowed Virginia to go forward in its attack on the Obamacare individual mandate:
In essence, Judge Hudson argues that by passing [the Virginia Health Care Freedom Act] that says that Virginia will interpose itself to protect its citizens from the individual mandate, Virginia has succeeded ... in getting around the federal tax-anti-injunction act.
... The fact that Virginia can get around the tax anti-injunction act simply by passing a statute saying that it thinks the federal law is unconstitutional means that every state in the Union can do so as well. This undermines the purposes of the tax anti-injunction act, which was to keep tax protesters from littering the federal courts with protest litigation; the act requires that challenges to tax laws proceed in an orderly fashion through requesting refunds.
Tax protesters? You see the states, acting through their legislatures, as presenting the same problem of frivolous, wasteful litigation posed by private litigants?
There is a built-in check here that is not present for those private litigants, which is that elected representatives of the people of a state have gone through a deliberative process in making that statute, and, in addition, the state executive branch has made the decision to bring the lawsuit. These tiers of public accountability make a difference with respect to the necessity of the Anti-Injunction Act.
That act, as Judge Hudson noted, does not refer to a state as being barred from bringing suits for injunctions, only a "person." There's a question of interpretation about whether a state should be included in the word "person," and there's good reason to think it should not. For one thing, the general rule of statutory interpretation is that "person" does not mean state. And, even more important, as I've just explained, structural checks mean that the state as a litigant doesn't present the same problems posed by an individual litigant.
Indeed, the logic of the opinion seems to suggest that if Virginia had objections to any other part of the federal tax laws, it could pass a Virgina Tax Freedom Act related to that provision, claiming that the tax provision was beyond the reserved powers of the states under the Tenth Amendment.
How big of a threat is that? The federal tax power is extremely broad, so that virtually any lawsuit like this would be easily dismissed on the merits. You don't need a broad interpretation of the Anti-Injunction Act to solve this problem. Nearly all of the cases you ask us to fret about would either never be brought or be dismissed quickly for failure to state a claim. In the Virginia case, by contrast, the question on the merits is very difficult, and the judge held back from resolving it. How often could that happen? And when it does happen, should there be a way to challenge it in court?
(Also, Balkin can't mean the state would be "claiming that the tax provision was beyond the reserved powers of the states under the Tenth Amendment." He must have meant to write that the claim would be "the tax provision was beyond the enumerated powers of Congress and thus reserved to the states the states under the Tenth Amendment.")
Judge Tauro ... wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families....
In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?...
The modern state depends heavily on the federal government's taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA's direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable-- and unconstitutional-- to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.
According to the Washington Post, that assertion is at the core of the federal government's lawsuit challenging Arizona's new immigration law. So... the federal government has massively failed to deal with the problem of illegal immigration, but at least the failure is spread fairly equally among the states. Even though Arizona may only want to take responsibility for its its own problem, it can't do that without referring the cases to the federal government and straining and unbalancing federal resources. The courts are supposed to buy the paradox: Because the federal government can't do very much about a problem — or chooses not to do much — an individual state can't act either, no matter how bad things get within that state.
But let's think this through. I'm just trying to grasp what the argument is, so discuss this with me. Brainstorm. Argue. Consider this: The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration. Given that federal policy and the supremacy of federal law, one could argue that it is not within the state's proper power to dictate a different policy and impose it on the federal government (by referring a lot of new cases of individuals violating federal law).
It will be interesting to hear how the lawyers for the federal government make their argument. Assuming it's not legally ridiculous, is it politically wise? To make it work legally, won't they have to own pathetically weak enforcement as a deliberate and important policy? Won't they have to be very clear that Arizona must shut up and accept the current situation? Who will get better political leverage out of this lawsuit — those who favor stronger enforcement of immigration law or those who favor leniency?
In this morning's opinion in McDonald v. City of Chicago, Justice Alito writes for a majority, explaining the doctrine of incorporation with useful clarity. The question to be answered is: "whether the right to keep and bear arms is fundamental to our scheme of ordered liberty... or as we have said in a related context, whether this right is 'deeply rooted in this Nation’s history and tradition" (page 19 of the opinion).
Applying that standard:
Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.... (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family”.... Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.”
Heller makes it clear that this right is “deeply rooted in this Nation’s history and tradition.”
Justice Alito — at page 42 — rejects the 4 factors that Justice Breyer, in his dissenting opinion, argues should affect incorporation:
First, “there is no popular consensus” that the right is fundamental; second, the right does not protect minorities or persons neglected by those holding political power; third, incorporation of the Second Amendment right would “amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government” and preventing local variations; and fourth, determining the scope of the Second Amendment right in cases involving state and local laws will force judges to answer difficult empirical questions regarding matters that are outside their area of expertise. Even if we believed that these factors were relevant to the incorporation inquiry, none of these factors undermines the case for incorporation of the right to keep and bear arms for self-defense.
Rand Paul is coming under attack for things he said about the Civil Rights Act of 1964, which outlawed race discrimination in privately owned restaurants and hotels. He's also being defended, of course, notably here, by Allahpundit:
I don’t like to go back-to-back on the same subject but a hot rumor hit Twitter as the last post was being published that Paul told NPR he would have voted against the 1964 CRA. (Much like certain Democrats who are still serving in the Senate did.) As you’ll see, it’s not true. The reporter, smelling blood, badgers him about it, but Paul never quite gives him a straight answer. And he qualifies his response with enough virtue — he opposes institutional racism, would have marched with MLK, likes a lot of what was in the CRA — that there’s really no wound inflicted here. His reservations about the law have to do not with the ends but with the means of federal compulsion; he wants business owners to serve everyone but clearly prefers using boycotts and local laws to pressure them. It’s not a question of being pro- or anti-discrimination, in other words, it’s a question of how federalism and civil-rights enforcement mesh. The left’s going to give him plenty of grief for that — expect questions soon about whether he would have voted to ratify the Fourteenth Amendment — but the “closet Klansman” narrative that NPR’s going for here is D.O.A.
It's true that Rand made many expressions of his opposition to race discrimination in what was a hearty effort to blunt the effect of what he was saying, but it is not true that his "reservations" were limited to federalism concerns. (As to federalism, there was an argument, rejected long ago by the Supreme Court, that the Constitution did not empower Congress to regulate in this area.)
Rand was also expressing the view that owners of private businesses have a right to decide whom they will serve. Such a right would not run counter to the 14th Amendment, because the 14th Amendment only protects individuals from the actions of the state and privately owned restaurants and hotels are not the state. If you want a legal requirement that these businesses treat people equally, you need to pass a statute, which is why the Civil Rights Act of 1964 was passed. And that statute was susceptible to arguments it violated the right of the business owners to do what they wanted with their own property. When the Supreme Court upheld the Civil Rights Act of 1964, not only did it need to find an enumerated power for Congress to act, but it also had to deal with the argument that the Act violated the Due Process Clause. Rand's statement harkened back to both of those old arguments.
I don’t like the idea of telling private business owners—I abhor racism. I think it’s a bad business decision to exclude anybody from your restaurant—but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that’s most of what I think the Civil Rights Act was about in my mind....
I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things. . . . It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior.
He likens private property rights to free speech rights. If you care about free speech rights, you defend even the people who say horrible things — Nazis, the KKK, etc. That's standard constitutional law doctrine. In Rand's view — and in the view of many libertarians — property rights work the same way. So you could have this horrible racist restauranteur who excluded black people, and the government would have to leave him alone, just as the government couldn't do anything about it if a white person had a dinner party at his house and only invited his white friends.
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A few years ago, I was at a conference with libertarians, and I was confronted with exactly this point of view. I expressed my concern that they were putting an extreme and abstract idea above things that really matter in the world. I challenged them — in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism. Which came first, the proud defense of private property or the shameful prejudices that polite people don't admit to anymore?
I am struck -- you may think it is absurd for me to be suddenly struck by this -- but I am struck by how deeply and seriously libertarians and conservatives believe in their ideas. I'm used to the way lefties and liberals take themselves seriously and how deeply they believe. Me, I find true believers strange and -- if they have power -- frightening.
I appreciate libertarians up to a point, but the extreme ones are missing something that is needed if you are to be trusted with power. I'm glad Rand Paul is on the scene, but I'm going to hold him to his own statements, and it is plain to me that Allahpundit has misunderstood or misrepresented what he said. I'm certainly not saying he's a racist, but he seems to support a legal position that would place racist private businesses beyond the power of anti-discrimination statutes.
UPDATE: Rand Paul goes on the Laura Ingraham show and, with the help of her very supportive questions, finally gets around to saying that if he were in Congress in 1964, he would have voted for the Civil Rights Act. Here's audio of the entire segment. Here's a text summary.
Althouse’s point is that Paul opposes any government interference in how someone runs their business, which would be strong form laissez faire; I assumed, because he danced around NPR’s questions and because this was obviously about to become a major headache for him, that he was taking the more palatable, weaker form position that it’s more acceptable for state and local agencies to act against discrimination but that the feds should stay out. (As it turned out, he now says having the feds interfere is fine.) That’s why I brought federalism into it, and that’s why I thought the Fourteenth Amendment would eventually end up in the discussion. If Paul doesn’t want the feds meddling in private businesses to protect minority rights, does he at least support letting them meddle with state governments that refuse to do so?
"Meddle" in what way? Require the states to legislate? Under New York v. United States, that is more of a constitutional problem than directly regulating. Do you mean putting conditions on accepting federal funds? That could be done most easily. If you mean using §5 of the 14th Amendment, that shouldn't work, because the states are not violating rights by failing to control the choices private citizens that are not, in fact, rights violations. It's hard to believe Paul would support these things (even before he conceded that he'd vote for the CRA of 1964).
The big problem is not just that the Court ruled that Congress had the power to detain “sexually dangerous” federal prisoners who have already completed their sentences. By itself, this is a relatively minor policy (except, of course, for the people detained). The really dangerous element of the majority opinion is that it adopts the highly deferential “rational basis” test for assessing assertions of power under the Necessary and Proper Clause, holding that “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”
Though "the statute involved here is somewhat peculiar," so that it might be distinguished in future cases, Eugene Volokh says that the Chief Justice's joining the majority suggests that the Court has lost its taste for striking down federal laws on the ground that they exceed Congress's enumerated powers.
To be sure, the facts of this case are unusual, because the law here applies only to people who had already been convicted of federal crimes. But the majority’s rationale seems quite broad; it concludes that federal power challenges should be upheld so long as they are “rationally related to the implementation of a constitutionally enumerated power” — that’s the famously extremely deferential “rational basis” test....
Comstock involved whether ample connection existed between the law incarcerating sexual predators after their federal criminal sentence had been completed and an enumerated power....
With the challenges to the individual mandate, however, Congress is explicitly asserting that the individual mandate is “necessary and proper” to execute its power under the Commerce Clause. Moreover, the argument for “necessity” is reasonably straight-forward: it is necessary to compel all uninsured persons into the insurance pool to pay for the increased costs being imposed on insurance companies by the Act. Under the Court’s normal deferential approach, finding “necessity” won’t be hard.
The problem with the mandate is whether it is a “proper” means to achieve a constitutional end. ...
In Comstock, nothing about the incarceration of sexually dangerous persons was alleged to be an “improper” means of pursuing an enumerated end. The issue was whether or not the statute was enacted pursuant to an enumerated power....
