Tag Archives: scotus

Chevron decision is just more hacking at the branches by SCOTUS

“There are a thousand hacking at the branches of evil to one who is striking at the root.” – Henry David Thoreau

In LOPER BRIGHT ENTERPRISES ET AL. v. RAIMONDO, SECRETARY OF COMMERCE, ET AL. (“Raimondo”) the Supreme Court of the United States overturned the “Chevron deference,” a doctrine dating to the 1980s that said in judging whether a regulatory agency had exceeded the authority delegated to it by Congress, courts must defer to the agency’s interpretation of any ambiguous language in the law.

This is being decried by liberals as a crippling blow to the federal government’s ability to regulate and lauded by conservatives as a welcome return to stricter obedience to the Constitution.

In reality, it is just more hacking at the branches by SCOTUS rather than striking at the root.

The root of the problem is Congress delegating any authority to make rules at all to the executive branch. The Constitution is clear that the legislative power is delegated exclusively to Congress, meaning any rules either prohibiting or requiring human action must be written by legislators elected for that purpose, passed by both houses of Congress, and signed by the president. Calling the rules federal agencies write “regulations” instead of laws doesn’t change anything. It’s still legislating and any person honest with himself knows this.

Congress has no constitutional authority to delegate this power to another branch of government. There is a legal doctrine older than Chevron expressing this called the “nondelegation doctrine.” SCOTUS referred to it in its decision on President Biden’s proposed Covid vaccine mandates. But rather than striking down Congress’ ability to delegate its legislative power to the executive, rampant since the New Deal, the Court merely ruled Congress can’t delegate this power too much.

Hacking at the branches.

This has been the case with all the supposedly monumental decisions by the supposedly “hard right” Court that includes three appointments made by former President Donald Trump. Presented with opportunities to confront three spurious legal doctrines from the 20^th century that allowed power to be unconstitutionally transferred to the federal government in general and its executive branch in particular, the Court has largely affirmed these doctrines, merely massaging them differently to get results conservatives like.

The problem is that if even this Court, considered extreme by today’s standards, will not fundamentally enforce the nondelegation doctrine or strike down the Incorporation Doctrine, there will never be a chance to do so again.

This is a consent of the governed issue. It is not so much a matter of whether one or another of the particular laws or powers exercised are good or bad in a vacuum. It is a matter of who is exercising the power and how they acquired it. Our founding document preceding even the Constitution says government derives its just powers from the consent of the governed. And no one ever consented to the federal government striking down state laws or the executive branch legislating. On the contrary, the delegates at the constitutional convention emphatically denied the former power to Congress although proposed by Madison throughout the summer. The latter power wasn’t even considered as their separation was a foundation pillar of the constitution itself.

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Tom Mullen is the author of It’s the Fed, Stupidand Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

SCOTUS Has Provided a Roadmap to Civility and Peace

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The recent SCOTUS decisions on vaccine mandates, gun regulation, abortion, and the EPA are flawed from a strict constructionist perspective. Rather than striking down 20th century theories underpinning decisions which unconstitutionally expanded the powers of the executive branch and the federal government in general, respectively, the Court instead tried to set limits to the ways in which those doctrines could be applied.

Still, insofar as these decisions represent a change in direction, rather than the last word on these issues, they may provide a roadmap out of the political acrimony that is tearing American society apart.

The legislative power

In ruling against President Biden’s vaccine mandates and the EPA’s “Clean Power Plan,” the Court makes reference to a long-ignored principle called the “nondelegation doctrine,” which posits that Congress has no authority under the Constitution to delegate its legislative power to the executive.

In other words, when the Constitution says, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” it means no legislative powers are vested in the executive.

Strictly applied, this principle would mean striking down the New Deal, root and branch. Although there were examples of limited rulemaking by executive branch regulatory agencies prior to the 1930s, it was FDR’s coup that created and empowered to legislate the myriad “alphabet soup agencies” within the federal government.

Rather than such a radical change, the Court merely set limits to how far beyond legislation passed by Congress and signed into law by the president regulatory agencies can go in making legally enforceable rules themselves.

The “glass half empty” way to look at this is that the Court has further established that the executive branch can legislate – just “not too much.” The opposite view, as expressed by constitutional scholar Kevin Gutzman, is that these precedents represent the first indications of the Court turning away from 84 years of bad precedent and back towards a constitutionally limited government.

(For my discussions on this subject with Gutzman, see Episodes 1, 28, and 94 of Tom Mullen Talks Freedom).

The significance of this question cannot be understated. Garet Garret called the New Deal a “revolution” for good reason – it effectively transformed the U.S. government from its previous republican form to a new, soft form of fascism, with an executive branch issuing fiat commands instead of a legislature representing a diverse constituency writing laws.

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Instead of rioting over Roe, Democrats should bring a case on immigration

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Roe vs. Wade came as a shock, even to people who believe the power to regulate abortion is reserved to the states. Lost in the triumphant celebrations of the decision on one side and the abject horror and hysteria on the other is the fact states like my own (New York) are now less restricted in liberalization of their abortion laws.

The 1973 decision didn’t just strike down state laws prohibiting abortion. It wrote new ones, something no court, state or federal, has any legitimate power to do. This is the other edge of the sword in allowing federal judges to override state law. They have taken the power away from the states forever.

The Court did two things in its Roe decision. First, it implicitly affirmed the Incorporation Doctrine, the legal theory that the Fourteenth Amendment “incorporated” most of the first ten amendments to the Constitution to apply against the states. I recently had the opportunity to discuss this with constitutional scholar and historian Kevin Gutzman on an episode of my podcast (neither of us believe the doctrine is valid).

The Incorporation Doctrine was necessary to arrive at the original Roe decision. It provides the basis for a federal court to strike down state laws. Without this doctrine, the Bill of Rights is only applicable to the federal government, leaving protection of individual rights to the bills of rights in the state constitutions.

Second, the Court narrowed interpretation of the Incorporation Doctrine to those rights specifically enumerated in the Constitution or “rooted in the Nation’s history and tradition.” The Court did not find any evidence of an American tradition of a right to abortion, but rather a tradition of precisely the opposite: the longstanding tradition of states prohibiting abortion before Roe.

Note that this is not a finding that no right to abortion should exist. It is merely a finding that protecting this right, if it does exist, is not a power delegated to the federal government.

Neither is regulating immigration, according to James Madison, the man who wrote the words of the Constitution. In his Virginia Resolution of 1798, in opposition to the Alien and Sedition Acts, he wrote,

That the General Assembly doth particularly protest against the palpable and alarming infractions of the constitution, in the two late cases of the “alien and sedition acts,” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government;

Like Roe vs. Wade, the federal government’s power to regulate immigration was simply “discovered” by the Supreme Court in a decision at least as spurious as Roe. There are no words in the Constitution indicating this power is delegated to the federal government.

Proponents sometimes point to the naturalization power as somehow implying a power to regulate immigration. But this is ridiculous. Naturalization concerns only the power to determine who becomes a citizen of the United States. It has nothing to do with regulating who can or cannot cross the borders of any of the states.

Others point to the 1808 clause as meaning the federal government was delegated the power after 1808. While this argument is slightly more plausible, both it and the naturalization clause were written by Madison himself, who nevertheless stated regulating immigration was a power “no where delegated.”

Jefferson added in his own Kentucky Resolution of the same year that the 1808 clause was added merely out of “abundant caution,” not a grant of this new power after 1808.

As there has been no subsequent amendment to the Constitution delegating this power to the federal government, it must remain with the states.

While the Incorporation Doctrine would not apply as this is not a dispute regarding the federal Bill of Rights, it is noteworthy that at the time of the decision, there was no tradition or history of the federal government regulating immigration. On the contrary, the case in which the Court concluded this was a federal power concerned a dispute over the way the California State immigration officers were regulating immigration.

If there has been a federal power as contentious as regulating abortion, it has been regulation of immigration. Cities run by liberal politicians have declared themselves “sanctuary cities” in defiance of federal immigration laws. States like Florida and Texas, run by conservative politicians, have taken to shipping “undocumented immigrants” sent to their states either back to their point of entry or to Washington, D.C. in protest.

This is no way to conduct civil society.

The rancor over immigration is the predictable result of the federal government exercising authority never delegated to it by the states. The Post Office may be abysmal, but it doesn’t inspire the hatred federal immigration enforcement does because it is recognized as a power the states agreed to delegate to the federal government.

If either Democrats or Republicans brought a case on immigration, it would test the Court’s conviction to its constitutional principles. Immigration checks all the boxes of the Court’s own reasoning for a power improperly usurped by the federal government through a previous SCOTUS decision. In Dobbs, the Court wrote, “This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”

In the cases of both abortion and immigration, that is precisely what the Court did. Overturning Chy Lung vs. Freeman would right precisely the same wrong.

It is not as if federal regulation of immigration is working now. Under both liberal and conservative presidents, the process to immigrate legally has been woefully deficient, resulting in millions of immigrants entering the country illegally or (more often) staying long past their visas expire. There is every reason to believe the states would do a better job at this and could also tailor their immigration laws to be as strict or lenient as they wish.

To those who find the consequentialist arguments of Chy Lung vs. Freeman compelling, there is an opportunity to offer an amendment to the Constitution to properly delegate this power to the federal government. This would not simply be a dead-on-arrival letter. It would give Americans across the political spectrum a chance for input on the language of such an amendment and the limits, or lack thereof, on the power.

If no amendment agreeable to the requisite number of states can be written, then the process of trying will have proven this is a power which must be reserved to the states. If an amendment can be ratified, then the federal government can go on sucking at regulating immigration, just as it does at delivering the mail, without risking a civil war.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

SCOTUS Proves Once Again It Is the Wrong Body to Determine Federal Powers

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A leaked draft of an opinion written by Justice Alito of the U.S. Supreme Court suggests the Court is prepared to strike down the 1973 Roe v. Wade decision that found unconstitutional state laws prohibiting abortion. The ruling would also strike down modifications made in the Planned Parenthood of Southeastern Pa. vs. Casey decision of 1992.

If the final decision is substantively the same as the draft, it will continue a process of “re-federalization” that has been gaining momentum since the 2016 election cycle. Many viewed the Donald Trump presidency as divisive, but Trump’s election was more revelatory of existing divisions than divisive itself.

Long before Trump declared his candidacy, many states had already effectively nullified federal marijuana regulations and immigration laws. Talk of Texas seceding from the union had resumed during the Obama administration; similar rumblings in California began soon after Trump was inaugurated.

What has inspired the most rancor on both sides are cultural issues: abortion, what is taught in schools, who is allowed to get married, who is and is not required to bake the wedding cake, and who is and is not allowed to cross the borders, immigration being both a cultural issue and an economic one.

There is also an underlying dissatisfaction with economic outcomes, which are most affected by the monetary system and the New Deal regulatory structure, although neither conservatives nor liberals seem anxious to address either.

None of the federal powers above, including regulating immigration, are expressly delegated to the federal government in the Constitution. They were all “discovered” by the Supreme Court using reasoning arguably as dubious as that employed in Roe v. Wade.

The whole idea of judicial review for constitutionality is a suspect one. The reason for having a written Constitution in the first place is to ensure there is no confusion about what powers the federal government has been delegated and not delegated. It should not be necessary to hold a legal proceeding, followed by a lengthy written decision by the “finest legal minds in the land” to determine whether or not a given power is delegated to the federal government in a five-page document.

If there is any doubt at all, an amendment should be offered. That is the only honest way to obtain consent of the governed for a new power. Acquiring power through the court system is a transparent attempt to do so without the consent of the governed, with knowledge aforethought that you are imposing authority that would not be granted voluntarily.

Article V of the Constitution provides the means by which consent of the governed is obtained by the federal government. It is not obtained through federal elections. They merely determine who exercises power, not what power is exercised.

Neither are amendments ratified by a simple majority of United States citizens. They are ratified by a supermajority of the states, who are the parties to the Constitution. They formed a federal government, not a national one, for the express and stated purpose of preventing a simple majority of all U.S. citizens from ruling over a unitary nation.

This is clear from notes on the constitutional convention taken by James Madison and Robert Yates. Forming a national government with the states as mere subdivisions was thoroughly discussed and rejected. The union would be a federation of states with limited powers delegated to the federal government and all others retained by the states or the people.

This is more than just academic pedantry. The United States is a boiling cauldron of political hatred about to boil over. Once the abortion decision is official, we can expect a repeat of the rioting we saw in 2020 over George Floyd. We saw even the typically orderly right give into similar behavior last January. There is no reason to believe things will simmer down anytime soon.

Article V provides a way out of this. Offering amendments to grant the federal government those powers it has illegitimately acquired in the past through the courts will result in one of three outcomes for each disputed issue: 1) the amendment will be ratified as offered, 2) the amendment will be revised through negotiation into something a supermajority of states accept and then ratified, or 3) the amendment will fail completely, making clear to all this is a power that must be reserved to the states.

Perfection is unattainable in any political process. But any of the three outcomes above would provide a pressure valve on the issue in question. Amendments should be offered for all powers obtained by the federal government through the courts in the past, no matter how long ago the acquisition occurred: regulation of abortion, immigration, healthcare, education, and marriage included.

While we’re at it, why not settle the very first constitutional crisis the way it should have been settled: an amendment granting the government the power to incorporate a bank.

Given the exponential growth of the federal government over the past one hundred years, dozens of amendments should have been offered during that period. Yet, since 1933 only six have been ratified, one of those being what would have been the Second Amendment if ratified when originally proposed in 1789.

Both conservatives and liberals are reluctant to pursue the constitutional amendment process because it is difficult by design. But there are only two ways to exercise power: with the consent of the governed and without it. Americans have chosen the latter over the past century, taking the relatively easy, dishonest route to power through the court system. That has led us to where we are now: at each other’s throats.

We would be wise to retrace our steps and determine the federal government’s powers legitimately before we have a real insurrection on our hands.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

Progressives Want to Revive FDR’s Undemocratic Court-Packing Idea

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judgeandgavel Reeling in horror over President Trump’s nomination of Brett Kavanaugh (or whomever Trump may have picked) to replace retiring Justice Anthony Kennedy on the Supreme Court, there are now a slew of progressive liberals calling for implementation of one of the most undemocratic ideas in the history of the Democratic Party: FDR’s “court-packing” scheme. Roosevelt responded to the Court striking down some parts of the New Deal by proposing Congress pass a law to allow him to add a new justice to the Court for every current justice over seventy years of age.

The bill was ultimately struck down by the Democrat-controlled Senate in 1937, but only after both the Social Security Act and National Relations Labor Act were ruled constitutional by the Court earlier that year. Opponents of the New Deal specifically or expansion of federal power through SCOTUS in general view these decisions as somewhat coerced by the threat of Roosevelt’s court-packing proposal.

Whether that’s true or not really misses the point. Seeking to achieve political goals through Supreme Court rulings rather than the constitutional amendment process—when those goals involve the federal government undertaking new powers—amounts to acquiring power without the consent of the governed. It’s ironic that it is again supporters of the “Democratic” Party who are advocating avoiding a vote on their proposals.

Read the rest at Foundation for Economic Education…

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Jefferson and Madison: Regulating Immigration a Power “No Where Delegated to the Federal Government”

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immigration_constitution President Trump announced his second nomination to the Supreme Court on Monday. Perhaps as forward in the minds of conservatives as preserving the right to keep and bear arms, expressly protected from federal infringement by the Second Amendment, is how the new justice might rule on the Trump administration’s various immigration policies, decried by the left as “fascist!” and supported by the right as the federal government’s “constitutional duty.”

Yet, federal regulation of immigration is a power both Thomas Jefferson and James Madison maintained was “no where delegated to the federal government.” And since no amendment has granted that power since they made that argument in 1798, it is exercised by the federal government without the consent of the governed, legitimized only by the same kind of “activist Court” conservatives condemn when it sanctions federal power they don’t like.

First, to the document itself. Conservatives make two arguments for the Constitution somehow delegating this power. One is completely spurious; the other more plausible, but ultimately without merit. The first argument is the power is granted with the words, “To establish an uniform Rule of Naturalization,” in Article I, Section 8. But “naturalization” concerns only who can become a citizen of the United States, not who can visit, work or live as a permanent alien. When pressed, even most reasonable immigration hawks will concede this.

The second argument concerns the first paragraph of Section 9, which reads, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” The reasoning here is that since the federal government is prohibited from banning migration (immigration) or importation (the slave trade) only until 1808, it must be granted the power to do so after 1808.

This is the same backwards reading of the Constitution – that anything not prohibited to the federal government must be within its powers – that conservatives scream bloody murder about on almost any other issue. It is true that for individuals possessing an inalienable right to liberty, a law which prohibits, for example, certain activity on Wednesdays and Fridays does not restrict individuals from that activity on any other days of the week. That is a correct legal interpretation for laws pertaining to individuals.

However, the Constitution is not a set of laws pertaining to individuals and the federal government does not have an inalienable right to liberty. On the contrary, the Constitution is written with the assumption the federal government has no power not delegated to it. The Tenth Amendment was ratified to ensure that point wasn’t lost. Therefore, just because certain powers are prohibited to the federal government by one or another clause of the Constitution, one cannot assume that any power not prohibited is granted. Only powers explicitly delegated are within the federal government’s purview. Strict constructionists go so far as to point out the words “expressly delegated” were used in many of the ratifying conventions, “expressly” left out by Madison in drafting the Tenth Amendment because he thought it unnecessary.

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The Supreme Court Has Destroyed Consent of the Governed

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us-supreme-court As Americans celebrated the 242nd anniversary of their secession from Great Britain, references to the Declaration of Independence ratified on July 4, 1776 were many. But while the left reminded us “all men are created equal” and the right reminded us that all inalienable rights come from our Creator, far too little attention was paid to another phrase in Jefferson’s famous preamble: “deriving their just powers from the consent of the governed.” Judging from the way most Americans talk, almost no one remembers how that consent is supposedly obtained.

Hint: It isn’t from voting in elections, but that’s what most Americans seem to believe. According to this narrative, representatives are elected democratically, and by casting one’s vote, one consents to whatever legislation the representatives who win the election choose to pass, or whatever executive actions the elected president chooses to take. In the aftermath of Obamacare’s passage, surrogates for President Obama often justified that new federal endeavor with the quip, “That’s why we have elections.” Conservatives employ the same reasoning when their candidates win.

That raises the question: Why did the framers bother with Sections 8, 9 and 10 in Article I, Sections 2, 3 and 4 in Article II, or Sections 2 and 3 of Article III? Why did they include Article V at all?

The answer is that the aforementioned sections define the list of powers the people were consenting to, all others being reserved to the states or the people, while Article V was provided as the one and only means for the people to consent to any new powers. Put another way, any power exercised by the federal government that is not among those delegated in the Constitution is power exercised without the consent of the governed.

Read the rest at Foundation for Economic Education…