• February 24, 2011
    The Perils of Federalism
    Race, Poverty and the Politics of Crime Control
    Lisa L. Miller

    By Lisa L. Miller, an associate professor of political science at Rutgers University.
    Conventional wisdom holds that federalism is one of the greatest contributions that the United States has made to modern democratic politics. Americans generally laud federalism for its limitations on government power, its facilitation of policy innovation at regional levels, and the multiple opportunities it provides for political engagement of the citizenry. This view is vividly on display in the recent state lawsuits filed against the federal government claiming that the health care bill, passed by Congress and signed by President Obama, is unconstitutional. The primary legal claim in these suits is that, in passing the bill, Congress violated the principles of American federalism by exceeding its power under the commerce clause (Article I, Section 8) and by infringing on the 10th Amendment through policymaking traditionally reserved to the states.

    My concern here is not with the legal technicalities of the lawsuits but, rather, with the implicit assumptions about American federalism upon which they rely, particularly with respect to federalism's origins, purpose and functions. Traditional claims about the importance of limiting the scope of congressional authority and the benefits of decentralized decision-making are complicated by empirical investigations into the origins and impact of American federalism on actual politics.

    A key claim about federalism is that it serves to promote citizen engagement and democratic representation by facilitating political activity at the periphery of the polity, not just the center. This is implicit in the health care lawsuits' claim that congressional action threatens the democratic practices reserved to states. But this claim is undermined by my research on actual patterns of political participation across different legislative venues. As I demonstrate in my book, The Perils of Federalism: Race, Poverty and the Politics of Crime Control, political participation and policy innovation by broad segments of the population can be hindered by federalism. This is because the fragmented and multi-layered American political landscape exacerbates classic collective action problems that plague groups concerned with broad social problems. Indeed, American-style federalism facilitates political activity by the exceptionally highly organized and those with the most robust resources, even when those groups represent only a fraction of political viewpoints on a given issue. Furthermore, it exacerbates existing race and class stratifications because citizens in greatest need of broad and deep political mobilization are those with the least capacity to sustain it across the fractured political terrain of American politics.

    An example of this that emerges from the book is the success of the National Rifle Association, which manages to appear at legislative hearings in local city councils, multiple state legislatures and Congress whenever there is even the appearance of gun control legislation on the horizon in one of these venues. By contrast, people actually suffering from gun violence, accidents and suicides in the high-risk communities where guns are readily available are more diffuse and have far fewer resources to help them migrate across these many venues. In large urban areas there is intense political pressure to restrict gun access but cities are notoriously weak under our federal system and the interests of these groups are largely out-maneuvered in venues farther up the vertical federalism hierarchy.

  • February 3, 2011
    Guest Post

    By Kathrine Jack, an attorney in Greenfield, Indiana.

    While national attention has focused on Congress's unsuccessful attempt to repeal the health care reform law, GOP members in state legislatures are looking to "nullify" last year's historic law by reviving rarely used constitutional arguments to do so.

    Measures currently pending in about a dozen state legislatures attempt to nullify health care reform by declaring the federal legislation unconstitutional and unenforceable within the state's borders.

    In Indiana, one of the states with a nullification bill pending, Senate Bill 505 purports to addresses the applicability of federal law in Indiana and "the inapplicability of certain federal law in Indiana." S.B. 505 directs that "A statute of the United States found inconsistent with the Constitution of the United States ... is not law in Indiana." After quoting that Ninth and Tenth Amendments of the U.S. Constitution, the bill then makes findings that the federal Patient Protection and Affordable Care Act is unconstitutional and that therefore, the law "is void in Indiana." The bill also creates a private right of action. While countless bills languish in state legislatures every year, S.B. 505 appears to be gaining traction and already has six state senators listed as co-authors. In Indiana, following a historic democratic win for Obama in 2008, republicans gained strong majorities in the state house and senate in the 2010 elections. Many of the new members espouse tea party values, including asserting that health care reform is unconstitutional. Republican Governor Mitch Daniels, mentioned as a presidential candidate, has not weighed in.

    Bills like Indiana's S.B. 505 are clearly an outlet for Republicans in state capitols to have a voice on the constitutionality of health care reform. As illuminated by a recent ACS Issue Brief and others, health care reform is on solid constitutional ground, and federal courts are currently addressing the question. But these nullification bills, being considered in other states, including Idaho, Maine, Montana, Nebraska, Oregon, Texas and Wyoming, raise additional, even more fundamental constitutional questions by presuming that state legislature have the power to do so. The claim that a state legislature could render a federal law unenforceable within the state raises questions of federalism not debated since perhaps the Civil War.

    The Framers seemed to have an answer. By looking at Article VI, Section 2 of the Constitution, statehouse legislators will note that federal law is "the supreme Law of the Land[.]"

  • February 1, 2011
    Guest Post

    By Adam Winkler, a constitutional law professor at UCLA School of Law. 
    Judge Vinson's opinion striking down the Affordable Care Act was remarkable for the ease with which it jettisoned two centuries of settled law. Ever since McCulloch v. Maryland, the Supreme Court has held that the Necessary and Proper Clause gives Congress the authority to reach matters otherwise beyond the strict confines of Congress's enumerated powers. Yet Judge Vinson - like Judge Hudson in the Virginia decision several weeks ago - effectively reads the Necessary and Proper Clause out of the Constitution.

    Vinson's logic goes like this. The minimum insurance requirement, he says, falls outside of Congress's power to regulate "commerce . . . among the several states" because it regulates inactivity, rather than activity. Of course, nowhere in the text of the Constitution is Congress's authority limited to regulating activity, but ignore that for the moment. Because Congress doesn't have power under the Commerce Clause to require taxpayers to purchase insurance, the Necessary and Proper Clause can't be used to justify the law either.

    The judge's decision can't deny that the insurance requirement is necessary. Indeed, it is so central to this comprehensive health insurance regulation that he held the whole law had to be struck down. The problem, he says, is that the minimum coverage provision isn't "proper" because it falls outside of Congress's powers under the Commerce Clause.

    If Vinson's tautology were applied to past Necessary and Proper Clause cases, they would come out the other way. In McCulloch, the law chartering a federal bank would be invalidated because Congress doesn't have any explicit power to charter a bank. In Gonzales v. Raich the Court upheld a federal ban on homegrown marijuana because, Justice Scalia's influential concurring opinion explained, it was an essential piece of a comprehensive regulation of a market - even though the growing of marijuana for personal use was beyond the reach of the Commerce Clause. Vinson's reasoning would mandate the opposite result. And just last term, the Supreme Court held in United States v. Comstock that the Necessary and Proper Clause empowered Congress to detain certain sex offenders even though, again, doing so was outside of any other enumerated powers.

    The basic purpose of the Necessary and Proper Clause is to give Congress the choice of means it can use to make a regulation of, say, interstate commerce effective. That is exactly what the minimum coverage requirement does. There's no doubt that the Affordable Care Act is a broad, comprehensive regulation of the health insurance market. Requiring individuals to finance their own medical expenses is closely and directly tied to the viability of that broader regulation. That's why it is both necessary and proper, however those terms are defined.

  • January 31, 2011
    Guest Post

    By Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center, and author of the ACS Issue Brief, "Mandatory Health Insurance: Is it Constitutional?"
    Today's decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century - since the New Deal - and, actually, dating back to Chief Justice John Marshall's expansive interpretations of the constitutional provisions directly at issue here. This decision, along with Judge Henry E. Hudson's recent decision to strike essential parts of the ACA, exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours.

    Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson's decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.


  • January 27, 2011
    The Myth of American Religious Freedom
    David Sehat

    By David Sehat, an assistant professor of history at Georgia State University.
    On the subject of religion in American public life, liberals and conservatives seem to have reached an impasse. Both sides are dug in to well-established camps with intellectual supplies running low. No minds are being changed, and nothing much seems to be happening. This intellectual impoverishment is especially apparent in the ways that both sides seek to use history.

    Liberals claim that the First Amendment separated church and state. But they neglect to mention that the First Amendment did not apply to the states for much of the nation's history. Since almost all legal issues concerning church and state appeared on the state level prior to 1940 - when the U.S. Supreme Court applied the religious clauses of the First Amendment to the states - the First Amendment could not have separated church and state in the way that liberals claim. In the absence of a single rule applicable to all levels of governance, states found numerous ways to preferentially support Protestant Christianity. Religious partisans in these states suggested that Protestant Christianity in particular provided the moral norms to be protected in law. This "moral establishment," as I argue in my book The Myth of American Religious Freedom, worked to suppress dissent and maintain religious control over law and governance for much of U.S. history.

    Yet the past was not the Christian utopia of conservative imagination. The presence of numerous dissenters - who included abolitionists, women's rights activists, labor organizers, educational reformers, and more - reveals the coercive and illiberal nature of this past religious regime. In the face of active religious control over the law, dissenters claimed that their rights were being disregarded and that the law was being perverted to advance an illegitimate religious agenda. So widespread was this conflict and so pervasive was Christian control over the law that I am forced into a curious admission: When religious conservatives claim that the United States was a Christian nation in the past, they are not wrong. In many ways, it was a Christian nation in the sense that Christians had significant control over law and governance and used it to enforce their morality. But if it was a Christian nation, it was not so by consent, relying as it did upon the coercion of law.