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By Sonja Ralston, a judicial law clerk to the Hon. Guido Calabresi of the United States Court of Appeals for the Second Circuit. Ralston taught bilingual first grade prior to law school, and has published several scholarly papers on education law.

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On Tuesday, the federal Department of Education announced the winners of the final round of its Race to the Top program. Nine states and the District of Columbia join Delaware and Tennessee, which won the first round in April. All told, forty-six states and the District of Columbia competed for a share of the $4 billion in prize money to implement comprehensive education reform plans, making it the largest state-based "competitive, discretionary grant" - in short, prize - in national history.

Though prizes are not an entirely new means of governing (in 1714, Parliament established the Longitude Prize to develop accurate measures of longitude on the open water and awarded £100,000 over fifty years), the Obama administration has newly emphasized competitive grants. But even among the administration's prize programs, Race to the Top is special: unlike the Longitude Prize or the Department of Energy's prizes for energy-efficient light bulbs and better batteries, the goal is to spur policy rather than technological innovation. Therefore, it invites states rather than individuals, companies, universities, or cities to compete.

Race to the Top represents a new approach to federalism: one that strikes a better state/federal balance in substantive policymaking than traditional spending programs while simultaneously doing more to leverage the impact of federal dollars.

In terms of the balance of policymaking, Race to the Top puts more power in the hands of states than other federal education programs. Overall, the federal government provides around 10 percent of K-12 public education spending each year, but that funding is overwhelmingly concentrated in two areas: aid to high-poverty school districts under Title I of the Elementary and Secondary Education Act (ESEA) and aid to school districts for the education of students with disabilities under the Individuals with Disabilities Education Act (IDEA). In each of these block grant programs, Congress, not the states, decides how the money will be spent. For example, IDEA sets very specific standards for what counts as a disability, how students with disabilities must be accommodated in schools, and what procedures schools must follow.

In contrast, Race to the Top gives states greater discretion over how to spend the funds. Fifty percent of any Race to the Top award can be distributed as the state sees fit, within guidelines that are so loose that a state could comply by spending the money on essentially any education program. Additionally, the 500-point rubric for awarding Race to the Top grants has dozens of subcategories, allowing states to pick what reform issues to focus on. As a result, each state's application proposes a different approach to improving education. Race to the Top thus gives real meaning to the cliché, "laboratories of democracy."

Under Race to the Top, states, not the federal government, set policy even when uniformity is important, as it is for learning standards. Under the Race to the Top rubric, a state received up to 40 points for joining "a consortium of States that . . . develop[s] and adopt[s] a common set of K-12 standards." The federal Department of Education did not write the standards; it didn't even establish the group that wrote the standards. The National Governors' Association took the lead, starting last summer, and published the Common Core Standards this June, which forty-eight states (and the District of Columbia) helped develop and thirty-five (and the District) have already adopted.

Prizes also have the potential to leverage federal dollars. Consider the now-familiar Ansari X Prize. It awarded $10 million to the company that first produced a private manned spacecraft, whereas competitors spent over $100 million. The $4 billion the federal government is spending on Race to the Top is only around 25 percent of what it spends every year on Title I. Yet unlike other small programs, which are pilot projects only implemented in a small percentage of schools or districts, the process of merely applying for Race to the Top led to changes in the laws of nearly every state, from lifting caps on the number of charter schools to eliminating data firewalls.

Race to the Top gives the federal government more bang for its buck than most education spending. Unlike, for example, Title I (a block grant program the Department of Education administers according to a congressional formula), Race to the Top is a discretionary - and therefore flexible - funding program. Funds are awarded by the agency, not by Congress, so there's no push for pork, the program need not spend a proportionate amount in every state, and it is not the kind of block-grant pre-requisite that might lead to contentious congressional votes - like when attempts to add national standards to annual ESEA funding were repeatedly defeated.

Finally, Race to the Top is special because its competitors are states - and only states. This focus on states in the first two rounds has policy benefits: making the states the competitors is the most direct way to prod states to change course on alternative school structures like charters or autonomous schools, teacher tenure, and standards. But it also embraces a larger virtue: federalism. By giving the states real choices about how to accomplish federal policy priorities rather than just making them administrative go-betweens that cut checks and write reports, Race to the Top reaffirms states' status as sovereigns with authority over - and responsibility for - their citizens' welfare.

At a moment when the public is increasingly concerned about reasserting state authority (including by calling for the repeal of the Seventeenth Amendment), less radical ways to give states greater autonomy deserve attention. The so-far success of Race to the Top shows that prizes can spur policy innovation, especially in fields in which it is easier to agree on ideal outcomes (like having all children learn) than on how to reach those goals.

 

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By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. Professor Schwinn is also co-editor of the Constitutional Law Prof Blog.

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There's a lot to criticize in Federal District Court Judge Henry Hudson's ruling earlier this week allowing Virginia's case challenging the individual health insurance mandate to move forward. For example, the ruling gave credence to the recently enacted Virginia Health Care Freedom Act, the state's effort to nullify the federal mandate through legislation that purports to exempt Virginians. The Act was a thinly disguised attempt to legislate standing for the state-to give Virginia an interest in defending its own state laws. But Virginia has no real interest other than making a political statement. Its manufactured standing mocks Article III's case-and-controversy requirement and risks inspiring other states to fabricate standing simply by enacting legislation anytime a majority in a state legislature objects to a federal law.

Then there's the ruling's apparent conflation of Congress's Commerce Clause authority and its taxing authority under the General Welfare Clause. The ruling runs uncomfortably close to saying that congressional authority to tax is cabined by its authority to regulate interstate commerce - a position flatly rejected by the Supreme Court since 1936. In fact the ruling says almost nothing about Congress's taxing power; instead, it falls back on the Commerce Clause, suggesting, with little analysis, that the mandate looks more like a "penalty" (enacted under the Commerce Clause) than a "tax" (enacted under the General Welfare Clause).

These and other similar concerns with the ruling are troubling, but they come at only a preliminary stage of the litigation. The court will have another opportunity to consider the substance of the constitutional arguments, and not merely whether Virginia adequately pleaded its constitutional case. And as Judge Hudson wrote, this court will almost certainly not have the final say in the matter.

Aside from these immediate and serious, but perhaps fleeting, doctrinal concerns, there is another problem with the ruling: The court embraced and legitimized Virginia's theory that the mandate amounts to "regulating non-action," and in so doing transformed a mere political argument into a budding constitutional doctrine.

This "non-action" theory is by now well known: Congress can't require individuals to purchase insurance, because this amounts to regulating non-action; and non-action is inherently non-commercial, beyond Congress's Commerce Clause authority. Opponents of the individual mandate routinely make this argument, and Virginia pressed it hard before the court. The court bit, framing the mandate as "forg[ing] new ground and extend[ing] Commerce Clause power beyond its current high watermark." It wrote that "this case raises a host of complex constitutional issues," but that "all seem to distill to the single question of whether or not Congress has the power to regulate -and tax- a citizen's decision not to participate in interstate commerce."

But the "non-action" theory is constitutionally hollow. The decision to purchase health care without insurance is undoubtedly economic activity within the ambit of the Commerce Clause. We all at one time or another purchase health care - this is different than purchasing three servings of vegetables, the hypothetical that Senator Tom Coburn used to bait Elena Kagan-and the only question is whether we do it with or without insurance. Moreover, the government argued that the mandate was a critical element of the new national health care scheme. Just as the Supreme Court upheld federal regulation of home-grown marijuana for personal medical use as part of a larger federal regulatory scheme in Gonzales v. Raich, so too the mandate should be upheld as a critical part of a larger regulatory scheme that itself is authorized by the Commerce Clause. Finally, the aggregative impact of "non-action" certainly has a substantial effect on interstate commerce. The mandate is every bit as much within congressional Commerce Clause authority as the regulation of home-grown wheat for personal use in Wickard v. Filburn and the regulation of home-grown marijuana for personal use in Raich.

This conclusion is buttressed by the Necessary and Proper Clause and the Court's ruling this spring in United States v. Comstock. In that case, the Court held (7-2) that the Necessary and Proper Clause authorized Congress to enact a law that allows a federal district court to order the civil commitment of a federal prisoner designated as "sexually dangerous," even beyond the term of the prisoner's sentence. The ruling underscores the substantial sweep of the Necessary and Proper Clause and, taken with the Commerce Clause, the vast power of Congress. Federal power may be limited (as in "enumerated"), but in a complex, interdependent society it is not, as we so often hear, limited (as in "slight").

Thus the "non-action" argument isn't a serious constitutional argument at all. Instead, it's merely a political argument. And here's the problem: When opponents of the mandate (or of health reform in general) masquerade their political argument as a constitutional one, they risk constitutionalizing their ephemeral ideals for the sake of short-term, opportunistic politics. As a result, opponents contribute to a constitutional creep-first one judge, then the next, until rhetoric becomes reality. (This strategy -constitutionalizing ordinary political arguments - is played out over several constitutional provisions in today's politics. For example, the so-called "Tenthers" have been pressing their strong and novel states-rights version of the Tenth Amendment through public rhetoric and court cases to challenge federal policies that they don't like. At some point, with sufficient organization and support, their rhetoric could creep into our constitutional reality.) This could lock us all into a Commerce Clause that nobody likes when a future federal policy - perhaps one designed by the mandate's opponents - comes down the pike. For the opponents of the mandate, today's alluring argument against the mandate may become tomorrow's disfavored argument against their own preferred federal policies.

This is - and ought to be - the stuff of ordinary politics, not constitutional law. The debate shouldn't be about whether Congress has authority to enact the mandate; it does. Instead, the debate should be about whether Congress ought to exercise the authority in this way.

But that's not how the court treated the case this week. Instead, the court moved to constitutionalize the "non-action" argument by framing the case in its terms. The decision this week thus represents a first serious step toward transforming this political argument into a constitutional principle.

 

Missouri voters in a primary with Republican contests grabbing the majority of statewide attention approved a measure, called Proposition C, which asserts that the state will flaunt a major provision of the landmark health care reform law once it takes effect in 2014. The proposition supported in an election with low voter turnout says the federal government's mandate that individuals purchase health care insurance or pay a fine would not apply to folks in Missouri. AOL News's Andrea Stone wonders whether such a "populist backlash," will survive court scrutiny.

Regardless of whether a so-called populist backlash exists, Simon Lazarus, public policy counsel for the National Senior Citizens Law Center (NSCLC) and author of an ACS Issue Brief on the constitutionality of the health care provision, told Stone the vote on Proposition C was likely to be quickly forgotten.

A string of lawsuits are already lodged against the health care reform law. A a federal judge, earlier this week, allowed the one out of Virginia to proceed. The federal courts are likely to determine the constitutionality of the health care reform law before 2014.

Lazarus said, "If federal courts decide it is unconstitutional, then laws like this one will be superfluous. It has no legal consequences. It's symbolic."

Lazarus, noting that the vote occurred during a Republican-dominated election, added that the vote was akin to a "straw poll of Republicans."

For more on the constitutionality of the health care reform law and the state lawsuits against it, watch an ACSblog interview with Lazarus. Also see a recent guest post from Lazarus and NSCLC Staff Attorney Sergio Munoz on the ruling by the federal judge in the Virginia lawsuit.

[image via commons.wikimedia.org]

In a just-released ACS Issue Brief, Professor Stephen I. Vladeck (pictured right) looks to one high-profile terrorism case as an "an unvarnished example" of how the federal court system can adeptly handle trying terrorism suspects, providing new evidence in the ongoing debate on whether terrorism cases should be tried by civilian courts or military tribunals.

The case of Ahmed Omar Abu Ali, a U.S. citizen convicted of conspiring with al Qaeda to kill President George W. Bush, raised new and hard questions, Vladeck writes in "Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali," but they were questions the civilian criminal justice system is well-equipped to answer.

"[W]here unique national security concerns are implicated, Abu Ali suggests that courts will attempt to reach accommodations that take into account both the government's interest and the fundamental protections to which defendants are entitled, keeping in mind Justice Frankfurter's age-old admonition that ‘the safeguards of liberty have frequently been forced in controversies involving not very nice people,' " writes Vladeck (pictured right), a law professor at American University Washington College of Law.

Abu Ali's case presented the novel question of whether a defendant's Miranda rights were triggered where U.S. officials submitted questions to foreign officers for their use during interrogation. This question, Vladick points out, is not one that applies only in terrorism cases and the court's conclusion that the United States and Saudi Arabia were not engaged in a "joint venture" is applicable to other criminal procedure fact patterns.

Abu Ali also presented the new challenge of incorporating foreign depositions in a U.S. court proceeding. Judge Gerald Bruce Lee used "creativity and flexibility" to craft a method for performing a live, two-way video deposition that transmitted the proceedings to the Alexandria courtroom, during which defense lawyers were present in both Saudi Arabia and Alexandria, Vladeck writes. Lee's innovation showed how technology can help cabin proposed changes to current procedural rules, by adapting within the present framework, Vladeck adds.

Lastly, Abu Ali presented the controversial question of whether the court erred when it allowed the jury access to classified information, while the defendant had access only to a redacted version. The U.S. Court of Appeals for the Fourth Circuit agreed that this "silent witness" procedure was a violation of Abu Ali's right to confront witnesses against him, but it also concluded that the decision was harmless error.

"[T]he real lesson from this aspect of the Abu Ali litigation may just be that mistakes will be made, but the Supreme Court's increasing embrace of harmless error principles heavily mitigates the consequences of those mistakes," Vladeck writes.

Regardless of whether it was misapplied, the harmless error doctrine, like other aspects of the case, "does not turn on the centrality of terrorism and national security concerns in the litigation," he adds.

"Abu Ali reminds us," Vladeck concludes, "that sometimes, the law is set up properly to resolve the tension between the government's interests and the defendant's rights, even if reasonable minds could argue (in this area of law, as in any other) that judges sometimes get it wrong."

Vladeck's Issue Brief is available here.

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By Simon Lazarus and Sergio Munoz. Lazarus, author of an ACS issue brief, "Mandatory Health Insurance: Is It Constitutional?," and Munoz are attorneys with the Federal Rights Project of the National Senior Citizens Law Center.

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In the first judicial decision on the various pending constitutional challenges to the Patient Protection and Affordable Care Act, Pub. L. No. 11-148 (2010) ("Affordable Care Act," "the Act," or "ACA"), Judge Henry E. Hudson of the Eastern District of Virginia District Court denied the Justice Department's motion to dismiss the Commonwealth of Virginia's challenge to Section 1501 of the Act. Cuccinelli v. Sebelius, No. 3:10cv188-HEH (E.D.Va.) (August 2, 2010). Section 1501 requires that most Americans carry minimum levels of health insurance coverage or pay a tax penalty. Judge Hudson's ruling is procedural; it allows the case to proceed to an examination of the merits of Virginia Attorney General Kenneth Cuccinelli's complaint and of the Department's defense that the section is a lawful exercise of Congress' authority under the Commerce, Necessary and Proper, and General Welfare (tax and spend) Clauses of Article I of the Constitution.

The section challenged has been variously styled the "individual mandate," the "minimum coverage provision," and the "shared responsibility provision," the latter of which we will use here. As spelled out in the Department's briefs, statutory findings written into the Act, an amicus curiae brief submitted in the case by the National Senior Citizens Law Center and the Center for American Progress on behalf of 17 patient and health groups, and ACS' issue brief on the subject, the shared responsibility provision "is essential to make effective a prohibition on exclusion from coverage based on pre-existing medical conditions," to ensure that this and other health insurance reforms prescribed by the Act do not "cause premium rates to skyrocket," and to prevent the shifting of uncompensated costs of care for uninsured patients to every other participant in the system, totaling $43 billion annually or $1,100 per family in insurance premium costs. Hence, as acknowledged even in Attorney General Cuccinelli's complaint, the shared responsibility provision is indispensable to the overall structure of the ACA.

Virginia challenged Section 1501 on the grounds that it exceeds Congressional authority under the Commerce and General Welfare Clauses. The state asserted standing to challenge the provision - which applies only to individuals, not the state itself - primarily on the basis that it has a right to defend a state law, the Virginia Health Care Freedom Act ("VHCFA"), enacted shortly before the ACA itself became law, that purports to exempt Virginians from the shared responsibility provision. In her motion to dismiss, the U.S. Secretary of Health and Human Services challenged Virginia's standing to bring this lawsuit, the ripeness of the claims, and the court's jurisdiction under the Anti-Injunction Act. The district court accepted Virginia's standing argument and held that its arguments on the merits had sufficient substance to survive a motion to dismiss.

Judge Hudson first held that the VHCFA conferred standing on Virginia to defend its provisions, under precedents in which the Supreme Court has held that states may bring declaratory and injunctive actions to test the validity of state laws arguably preempted by federal laws; his decision rejected the Department's contention that all these rulings concerned state statutory regimes that had not, like the VHCFA, been attempts at "jurisdictional alchemy" enacted solely to nullify a federal law or in a time period virtually coterminous with the enactment of the conflicting federal law. As for the Anti-Injunction Act's bar to lawsuits seeking to escape federal taxes, the district court cited a little used exception to the act that permits such proceedings if a plaintiff does not otherwise have an alternative remedy. The district court also found the challenge to be ripe for judicial review, despite its effect on only "scores of people," because its effects were to be felt by Virginia and its citizens in preparation for lawful compliance with the ACA in "the near future" and the legal issues raised by the lawsuit were already framed.

Perhaps the most remarkable aspect of the district court's procedural ruling, however, was its first attempt at examining the substantive merits of the Commerce Clause challenge for the purpose of discerning if Virginia could articulate a plausible claim. Despite the Secretary's prior briefing that uninsured individuals' use of heath care is a significant cost to the system, and one that is spread amongst the majority of Americans through increased premiums in a system that occupies almost 1/5 of the American economy, the district court repeatedly accepted Virginia's framing of decisions not to purchase health insurance as "inactivity" - echoing the line repeated over and over by conservative legal advocates, politicians, and pamphleteers. The judge ritualistically acknowledged, but did not incorporate into his analysis of the issues at stake, the Department's contention that decisions to forego insurance are in effect affirmative decisions to shift the cost of uninsured care to other participants in the system - providers, hospitals, insured individuals and families, and taxpayers. Further, Judge Hudson seemed to assert that the state's characterization of foregoing insurance as "inactivity" could put it beyond, not only Congress' authority to regulate commerce, but beyond its authority to tax and spend for the general welfare as well - even though it has been established law at least since U.S. v. Butler, 297 U.S. 1, 66 (1936), that general welfare authority is not bounded by constraints of the other enumerated powers.

In short, while Judge Hudson was careful to emphasize that his ruling is purely procedural and simply permits the case to move forward toward a final factual and legal resolution, the manner in which he has characterized the issues appears to accept the frame proposed by opponents of ACA, which seriously misstates longstanding bedrock principles of constitutional law. As one of us has recently noted, such positions effectively call for rewriting the Constitution as it has been understood and applied at least since the New Deal.

 

 

Only one Republican member of the Senate Judiciary Committee, Sen. Lindsey Graham, joined the Democratic members in voting to send the nomination of Solicitor General Elena Kagan to the full Senate. But as an editorial in The New York Times notes, the vote was more than just action in favor of or against Kagan and the president.

A growing number of Republicans and especially leaders of the Tea Party, as noted in a new Issue Brief from the Constitutional Accountability Center (CAC), are openly begging the Supreme Court to limit congressional authority to enforce constitutional rights. More specifically these Republicans are looking for the Supreme Court to substantially limit the sweep of the Constitution's commerce clause, which over the decades has allowed Congress to better the lives of Americans, the editorial notes.

The Times' editorial states:

The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil Rights Act of 1964, outlawing segregation in the workplace and in public accommodations. In cases like these, the Supreme Court has said Congress can regulate activities that have a ‘substantial effect' on interstate commerce, even if they are not directly business-related.

But the editorial notes, Republicans are hoping for a Supreme Court that will start to radically weaken the commerce clause, especially since lawsuits aimed at bringing down the health care reform law are beginning to wend their way through the courts and could land before the high court.

As the editorial states, "Twenty states have joined lawsuits saying the national health care law is unconstitutional, particularly the provision requiring health insurance." And the opponents of the health care reform law are largely targeting the commerce clause, asserting that it is too expansive and must be reined in. Tea Partiers go even farther arguing that the Constitution as they see it was never intended to give the federal government much power.

A number of Senate Judiciary Republicans also suggested that Kagan, if confirmed, recuse herself if the health care law issue were to reach Court. In written answers to the senators, Kagan said she was not involved in administration discussion about the state attorneys general lawsuits, indicating "there's litttle chance she would recuse," the Blog of the Legal Times reported. 

But as noted time and again on this blog, constitutional law experts, such as law professors Jack Balkin, Erwin Chemerinsky and Robert A. Schapiro have all argued that the health care reform law is on solid constitutional ground because of the commerce clause and Congress's power to tax and spend.

In addition, in an ACS Issue Brief, Simon Lazarus, public policy counsel of the National Senior Citizens Law Center (NSCLC) provides a cogent case for individual mandates that are central to the health care reform law. Recently Lazarus talked with ACSblog about the state challenges to the health care reform law, blasting them as wobbly and politically motivated. Video of his interview is available here.

[picture via The White House's Photostream]

The Constitutional Accountability Center (CAC) applauds the emerging Tea Party's claims to be concerned about the U.S. Constitution, but warns in a new Issue Brief that the movement's notion of the Constitution and its principles is deeply flawed.

In "Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government," CAC's Elizabeth Wydra and David Gans maintain that it is important that a "national conversation engage the real Constitution of the United States and not the ‘Constitution According to the Tea Party.'"

Wydra and Gans note that Tea Party leaders have been loudly arguing that the Constitution sharply limits the powers of the federal government and essentially sets up a "weak national government, incapable of addressing national problems like the health care crisis in America." The authors say the Tea Party's arguments of such a constitution do not "stand up to the test of text and history."

As noted in the Issue Brief, Tea Partiers and their supporters are bent out of shape over the recently enacted health care reform law, maintaining that the measure goes way beyond the powers delegated to the federal government by the Constitution.

Wydra and Gans write:

Tea Partiers declare that they want to go back to the ideas of the Constitution, but what they really want is to return to the Articles of Confederation. The Tea Party's principal claim that our country's Founders established a sharply limited, weak national government fits more with the failed, discarded Articles of Confederation than with the Founders' second and lasting attempt to craft a national charter, our Constitution.

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The Articles of Confederation, adopted by the Second Continental Congress in 1777 and ratified in 1781, established a confederacy built merely on a ‘firm league of friendship' between thirteen independent states. There was only a single branch of national government, the Congress, which was made up of state delegations. Congress under the Articles of Confederation had some powers, but was given no means to execute those powers. Congress could not directly tax individuals or legislate upon them; it had no express power to make law that would be binding in the states' courts and no general power to establish national courts, and it could raise money only by making requests to the states.

The Tea Party's distortion of the Constitution includes intentional denial of the constitutional amendments that have "added to Congress's express constitutional powers, ensuring that Congress has all the tools it needs to address national problems and protect the constitutional rights of all Americans," Wydra and Gans write. "Indeed, most of the amendments added to the Constitution during the 19th and 20th Centuries expanded the power of the federal government. The Tea Party's reading of the Constitution depends on ignoring or repealing these critical amendments."

See CAC's entire report here. For further discussion of the Tea Party's twist on the Constitution, see Wydra's recent article for The Huffington Post.

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By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

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Cross-posted at The Huffington Post 

The emergence of the Tea Party movement as an increasingly persistent presence in the media and in politics has focused national attention on the Constitution, as Tea Party members invoke our Nation's Founding in their rhetoric and claim to root their agenda in the Constitution. In the abstract, such an effort is commendable: the Constitution should frame our political debates and should be followed by our leaders, whatever their political stripe. But just because you keep a copy of the Constitution in your purse or go to a Tea Party book club does not mean that your claims about the words and meaning of our Nation's charter are plausible. As Americans engage in conversations and debates about the Constitution, it is important we are all on the same page about what our Constitution says--and what it doesn't.

A close look at the Tea Party's version of the Constitution shows that it bears little resemblance to our actual Constitution. Constitutional Accountability Center put to the test the Tea Party's central argument--that our country's Founders established a sharply limited, weak national government--in an Issue Brief released today entitled Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government. Turns out this claim doesn't stand up to the test of text and history.

In fact, while the Tea Partiers declare that they want to go to back to the ideas of the Constitution, it seems that they really want to return to the Articles of Confederation, the failed experiment with a weak central government that was such a disaster George Washington once suggested that it nearly cost Americans victory in the Revolutionary War. The Tea Party's idea that the federal government has no power to act in key areas such as health care, environmental protection and civil rights fits more with the discarded Articles than with the Founders' second and lasting attempt to craft a national charter, our Constitution.

As a history refresher, the Articles of Confederation, adopted by the Second Continental Congress in 1777 and ratified in 1781, established a confederacy built merely on a "firm league of friendship" between thirteen independent states. There was only a single branch of national government, the Congress, which was made up of state delegations. Congress under the Articles of Confederation had some powers, but was given no means to execute those powers. Congress could not directly tax individuals or enact legislation that directly affected citizens; it could raise money only by making requests to the states.

By the time our Founders took up the task of drafting the Constitution in 1787, they had lived under the dysfunctional Articles for a decade and were focused on creating a new, better form of government with a sufficiently strong federal power. This is exactly what our Constitution establishes, giving Congress the power to, among other things, regulate interstate commerce and tax and spend for the general welfare.

The Tea Party story about our sharply limited national government is not only inconsistent with the words and intentions of our Founding generation, but it also requires a form of selective amnesia about the important changes made to the Constitution by successive generations of Americans. Since the Founding, the American people, at critical moments in our country's history, have amended the Constitution to ensure that Congress has all the tools it needs to address national problems and protect the constitutional rights of all Americans. Eight separate amendments expanded the enumerated powers of the federal government, giving vast powers to the government to protect equality, civil rights, and voting rights and to raise funds through taxes on income. Amendments such as the 17th Amendment, which took the power of electing U.S. senators away from state legislators and gave it to the people by popular vote, structurally increased the power of the federal government, vis-à-vis the states.

As the Senate debates Elena Kagan's Supreme Court nomination and the Tea Party continues to focus the Nation's attention on the Constitution, Constitutional Accountability Center will publish a series of posts taking up the various claims about the Constitution being made by Tea Party candidates such as Rand Paul and Sharron Angle, by Senators opposing Kagan's confirmation, and by other elected officials such as Virginia Attorney General Ken Cuccinelli. At the risk of taking too seriously what may simply be political arguments dressed up as constitutional claims, CAC will put these claims to the test, drawing upon the words of our Nation's charter, constitutional debates and other legislative history, and the best constitutional scholarship available. It is important that our national conversation engage the real Constitution and not the "Constitution According to the Tea Party."

To be sure, there are plenty of good faith disagreements to be had over our Constitution's meaning--but we've all got to be reading the same document. When the Tea Partiers' constitutional claims do not stand up to the test of the Constitution's text and history, Americans should not hesitate to speak up and prevent such potentially dangerous distortions of our Nation's charter. It's past time to set the record straight on the Constitution.

 

As the Senate Judiciary Committee prepares to vote on the nomination of Elena Kagan to the Supreme Court, Simon Lazarus looks at the battling rhetoric over the role courts play in enforcing constitutional values. In a piece for The Huffington Post, Lazarus, public policy counsel for the National Senior Citizens Law Center (NSCLC), says Democratic lawmakers may not be pushing back swift enough against a building Republican chorus that maintains that the courts should rein in congressional action, such as its enactment of the landmark health care reform law. During the Senate Judiciary Committee's confirmation hearings, Lazarus, notes for example that Sen. Tom Coburn "railed at ‘the courts,' for not doing ‘their job in limiting our ability to go outside of original intent on what the commerce clause was supposed to be.'"

Lazarus continued, "None too subtly, the Republicans specifically targeted the health reform law, and its allegedly ‘unprecedented' requirement that most Americans carry health insurance or pay a penalty - a prelude, Coburn warned, for mandates to ‘eat three fruits and three vegetables a day.'"

He added:

Other than a sentence in Judiciary Committee Chair Patrick Leahy's prepared opening statement - unreported by the press - the Democrats offered no counterpoint to the Republican's plea for judges to shrink Congressional authority or junk health care reform. Instead, the Democrats bore down on a different, more subtle strain of activism practiced by the Rehnquist and Roberts courts, generally below the radar of the press and public: tortured interpretations of statutory fine print that gut protections for consumers, employees, investors, retirees, or the environment. As they move the nomination to the Senate floor, Democrats certainly should keep up their populist critique of the Court's evisceration of the ‘pocket book' regulatory laws. But if the Republicans' new mantra goes unanswered, their vision of a tough-on-Congress federal judiciary could acquire political traction faster than the Democrats' tough-on-business vision. To begin with, their new rap could play well in Peoria. Polls indicate that bank bailouts and large deficits may, at least for the moment, have made anxiety about an ‘out of control' federal government more widespread than fear of corporate bullying.

See Lazarus's entire article here. In addition, Lazarus recently talked with ACSblog about the legal challenges to the health care reform law. His interview, which can also be downloaded as a podcast, is available here. Lazarus is also author of an ACS Issue Brief addressing the constitutionality of the health care reform.

Stephen Boyd’s video was the winner of the ACS Constitutional video contest. Boyd, 23, a junior at Ball State University, won $1,500 for his efforts. Click below for a catchy rap about the Constitution and the importance of judges.

 

Our second place winner, Tim Cone, reminds us of the importance of an independent judiciary through a moving tour of the Gettysburg battlefield.  Tim has been a member of ACS's Washington DC Chapter since 2001, and works on criminal appeals as an Assistant Federal Public Defender.