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Topic: Issues in the American Creed (Constitutional Law and related matters) (Read 394858 times)
Power User
Posts: 2268
Scalia (joined by 3) dissents in NFIB
Reply #1000 on:
May 09, 2013, 01:48:39 PM »
Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.
Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) go be- yond those powers. We conclude that they do.
This case is in one respect difficult: it presents two questions of first impression. The first of those is whether failure to engage in economic activity (the purchase of health insurance) is subject to regulation under the Commerce Clause. Failure to act does result in an effect on commerce, and hence might be said to come under this Courts affecting commerce criterion of Commerce Clause jurisprudence. But in none of its decisions has this Court extended the Clause that far. The second question is whether the congressional power to tax and spend, U. S. Const., Art. I, §8, cl. 1, permits the conditioning of a States continued receipt of all funds under a massive state-administered federal welfare program upon its acceptance of an expansion to that program. Several of our opinions have suggested that the power to tax and spend cannot be used to coerce state administration of a federal program, but we have never found a law enacted under the spending power to be coercive. Those questions are difficult.
The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal powerupon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to com- pel the States to function as administrators of federal programs.
That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942) , which held that the economic activity of growing wheat, even for ones own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.
As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Governments enumerated powers, see United States v. Butler, 297 U. S. 166 (1936). Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress enumerated powers, and only marginally related to commerce: the De- partment of Education, the Department of Health and Human Services, the Department of Housing and Urban Development. The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of managing a Federal Government large enough to administer such a system. That obstacle can be overcome by granting funds to the States, allowing them to administer the program. That is fair and constitutional enough when the States freely agree to have their powers employed and their employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the States have no choice.
The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Acts other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.
The Individual Mandate
Article I, §8, of the Constitution gives Congress the power to regulate Commerce . . . among the several States. The Individual Mandate in the Act commands that every applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individ- ual, is covered under minimum essential coverage. 26 U. S. C. §5000A(a) (2006 ed., Supp. IV). If this provision regulates anything, it is the failure to maintain minimum essential coverage. One might argue that it regulates that failure by requiring it to be accompanied by payment of a penalty. But that failurethat abstention from commerceis not Commerce. To be sure, purchasing insurance is Commerce; but one does not regulate commerce that does not exist by compelling its existence.
In Gibbons v. Ogden, 9 Wheat. 1, 196 (1824), Chief Justice Marshall wrote that the power to regulate commerce is the power to prescribe the rule by which commerce is to be governed. That understanding is con- sistent with the original meaning of regulate at the time of the Constitutions ratification, when to regulate meant [t]o adjust by rule, method or established mode, 2 N. Webster, An American Dictionary of the English Language (1828); [t]o adjust by rule or method, 2 S. Johnson, A Dictionary of the English Language (7th ed. 1785); [t]o adjust, to direct according to rule, 2 J. Ash, New and Complete Dictionary of the English Language (1775); to put in order, set to rights, govern or keep in order, T. Dyche & W. Pardon, A New General English Dictionary
(16th ed. 1777). 1 It can mean to direct the manner of something but not to direct that something come into being. There is no instance in which this Court or Congress (or anyone else, to our knowledge) has used regulate in that peculiar fashion. If the word bore that meaning, Congress authority [t]o make Rules for the Govern- ment and Regulation of the land and naval Forces, U. S. Const., Art. I, §8, cl. 14, would have made superfluous the later provision for authority [t]o raise and support Armies, id., §8, cl. 12, and [t]o provide and maintain a Navy, id., §8, cl. 13.
We do not doubt that the buying and selling of health insurance contracts is commerce generally subject to federal regulation. But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond adjust[ing] by rule or method, Johnson, supra, or direct[ing] according to rule, Ash, supra; it directs the creation of commerce.
In response, the Government offers two theories as to why the Individual Mandate is nevertheless constitutional. Neither theory suffices to sustain its validity.
First, the Government submits that §5000A is integral to the Affordable Care Acts insurance reforms and necessary to make effective the Acts core reforms. Brief for Petitioners in No. 11398 (Minimum Coverage Provision) 24 (hereinafter Petitioners Minimum Coverage Brief). Congress included a finding to similar effect in the Act
itself. See 42 U. S. C. §18091(2)(H).
As discussed in more detail in Part V, infra, the Act contains numerous health insurance reforms, but most notable for present purposes are the guaranteed issue and community rating provisions, §§300gg to 300gg4. The former provides that, with a few exceptions, each health insurance issuer that offers health insurance coverage in the individual or group market in a State must accept every employer and individual in the State that applies for such coverage. §300gg1(a). That is, an insurer may not deny coverage on the basis of, among other things, any pre-existing medical condition that the applicant may have, and the resulting insurance must cover that condition. See §300gg3.
Under ordinary circumstances, of course, insurers would respond by charging high premiums to individuals with pre-existing conditions. The Act seeks to prevent this through the community-rating provision. Simply put, the community-rating provision requires insurers to calculate an individuals insurance premium based on only four factors: (i) whether the individuals plan covers just the individual or his family also, (ii) the rating area in which the individual lives, (iii) the individuals age, and (iv) whether the individual uses tobacco. §300gg(a)(1)(A). Aside from the rough proxies of age and tobacco use (and possibly rating area), the Act does not allow an insurer to factor the individuals health characteristics into the price of his insurance premium. This creates a new incentive for young and healthy individuals without pre-existing conditions. The insurance premiums for those in this group will not reflect their own low actuarial risks but will subsidize insurance for others in the pool. Many of them may decide that purchasing health insurance is not an eco- nomically sound decisionespecially since the guaranteed-issue provision will enable them to purchase it at the same cost in later years and even if they have developed a pre-existing condition. But without the contribution of above-risk premiums from the young and healthy, the community-rating provision will not enable insurers to take on high-risk individuals without a massive increase in premiums.
The Government presents the Individual Mandate as a unique feature of a complicated regulatory scheme governing many parties with countervailing incentives that must be carefully balanced. Congress has imposed an extensive set of regulations on the health insurance industry, and compliance with those regulations will likely cost the in- dustry a great deal. If the industry does not respond by increasing premiums, it is not likely to survive. And if the industry does increase premiums, then there is a seri- ous risk that its productsinsurance planswill become economically undesirable for many and prohibitively ex- pensive for the rest.
This is not a dilemma unique to regulation of the health-insurance industry. Government regulation typically imposes costs on the regulated industryespecially regulation that prohibits economic behavior in which most market participants are already engaging, such as piecing out the market by selling the product to different classes of people at different prices (in the present context, providing much lower insurance rates to young and healthy buyers). And many industries so regulated face the reality that, without an artificial increase in demand, they cannot continue on. When Congress is regulating these industries directly, it enjoys the broad power to enact all appropriate legislation to protec[t] and advanc[e] commerce, NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 137 (1937) (quoting The Daniel Ball, 10 Wall. 557, 564 (1871)). Thus, Congress might protect the imperiled industry by prohibiting low-cost competition, or by according it preferential tax treatment, or even by granting it a direct subsidy.
Here, however, Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesirable consequences of the regulation. Congress desire to force these individuals to purchase insurance is motivated by the fact that they are further removed from the market than unhealthy individuals with pre-existing conditions, because they are less likely to need extensive care in the near future. If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamiltons words, the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane. The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).
At the outer edge of the commerce power, this Court has insisted on careful scrutiny of regulations that do not act directly on an interstate market or its participants. In New York v. United States, 505 U. S. 144 (1992) , we held that Congress could not, in an effort to regulate the disposal of radioactive waste produced in several different industries, order the States to take title to that waste. Id., at 174177. In Printz v. United States, 521 U. S. 898 (1997) , we held that Congress could not, in an effort to regulate the distribution of firearms in the interstate mar- ket, compel state law-enforcement officials to perform background checks. Id., at 933935. In United States v. Lopez, 514 U. S. 549 (1995) , we held that Congress could not, as a means of fostering an educated interstate labor market through the protection of schools, ban the possession of a firearm within a school zone. Id., at 559563. And in United States v. Morrison, 529 U. S. 598 (2000) , we held that Congress could not, in an effort to ensure the full participation of women in the interstate economy, subject private individuals and companies to suit for gender-motivated violent torts. Id., at 609619. The lesson of these cases is that the Commerce Clause, even when sup- plemented by the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce. And the last two of these cases show that the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power.
The case upon which the Government principally relies to sustain the Individual Mandate under the Necessary and Proper Clause is Gonzales v. Raich, 545 U. S. 1 (2005) . That case held that Congress could, in an effort to restrain the interstate market in marijuana, ban the local cultivation and possession of that drug. Id., at 1522. Raich is no precedent for what Congress has done here. That cases prohibition of growing (cf. Wickard, 317 U. S. 111), and of possession (cf. innumerable federal statutes) did not represent the expansion of the federal power to direct into a broad new field. The mandating of economic activity does, and since it is a field so limitless that it converts the Commerce Clause into a general authority to direct the economy, that mandating is not consist[ent] with the letter and spirit of the constitution. McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).
Moreover, Raich is far different from the Individual Mandate in another respect. The Courts opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced. 545 U. S., at 22. See also Shreveport Rate Cases, 234 U. S. 342 (1914) (Necessary and Proper Clause allows regulations of intrastate transactions if necessary to the regulation of an interstate market). Intrastate marijuana could no more be distinguished from interstate marijuana than, for example, endangered-species trophies obtained before the species was federally protected can be distinguished from trophies obtained afterwardswhich made it necessary and proper to prohibit the sale of all such trophies, see Andrus v. Allard, 444 U. S. 51 (1979) .
With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory schemes goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance.
The Government was invited, at oral argument, to suggest what federal controls over private conduct (other than those explicitly prohibited by the Bill of Rights or other constitutional controls) could not be justified as necessary and proper for the carrying out of a general regulatory scheme. See Tr. of Oral Arg. 2730, 4345 (Mar. 27, 2012). It was unable to name any. As we said at the outset, whereas the precise scope of the Commerce Clause and the Necessary and Proper Clause is uncertain, the proposition that the Federal Government cannot do everything is a fundamental precept. See Lopez, 514 U. S., at 564 (
f we were to accept the Governments arguments, we are hard pressed to posit any activity by an in- dividual that Congress is without power to regulate). Section 5000A is defeated by that proposition.
The Governments second theory in support of the In- dividual Mandate is that §5000A is valid because it is actually a regulat[ion of] activities having a substantial relation to interstate commerce, . . . i.e., . . . activities that substantially affect interstate commerce. Id., at 558559. See also Shreveport Rate Cases, supra. This argument takes a few different forms, but the basic idea is that §5000A regulates the way in which individuals finance their participation in the health-care market. Petitioners Minimum Coverage Brief 33 (emphasis added). That is, the provision directs the manner in which individuals purchase health care services and related goods (directing that they be purchased through insurance) and is therefore a straightforward exercise of the commerce power.
The primary problem with this argument is that §5000A does not apply only to persons who purchase all, or most, or even any, of the health care services or goods that the mandated insurance covers. Indeed, the main objection many have to the Mandate is that they have no intention of purchasing most or even any of such goods or services and thus no need to buy insurance for those purchases. The Government responds that the health-care market involves essentially universal participation, id., at 35. The principal difficulty with this response is that it is, in the only relevant sense, not true. It is true enough that everyone consumes health care, if the term is taken to include the purchase of a bottle of aspirin. But the health care market that is the object of the Individual Mandate not only includes but principally consists of goods and services that the young people primarily affected by the Mandate do not purchase. They are quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance. 2 Such a definition of market participants is unprecedented, and were it to be a premise for the exercise of national power, it would have no principled limits.
In a variation on this attempted exercise of federal power, the Government points out that Congress in this Act has purported to regulate economic and financial decision
to forego [sic] health insurance coverage and [to] attempt to self-insure, 42 U. S. C. §18091(2)(A), since those decisions have a substantial and deleterious effect on interstate commerce, Petitioners Minimum Coverage Brief 34. But as the discussion above makes clear, the decision to forgo participation in an interstate market is not itself commercial activity (or indeed any activity at all) within Congress power to regulate. It is true that, at the end of the day, it is inevitable that each American will affect commerce and become a part of it, even if not by choice. But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end.
Wickard v. Filburn has been regarded as the most expansive assertion of the commerce power in our history. A close second is Perez v. United States, 402 U. S. 146 (1971) , which upheld a statute criminalizing the eminently local activity of loan-sharking. Both of those cases, however,
involved commercial activity. To go beyond that, and to say that the failure to grow wheat or the refusal to make loans affects commerce, so that growing and lending can be federally compelled, is to extend federal power to virtually everything. All of us consume food, and when we do so the Federal Government can prescribe what its quality must be and even how much we must pay. But the mere fact that we all consume food and are thus, sooner or later, participants in the market for food, does not empower the Government to say when and what we will buy. That is essentially what this Act seeks to do with respect to the purchase of health care. It exceeds federal power.
A few respectful responses to Justice Ginsburgs dissent on the issue of the Mandate are in order. That dissent duly recites the test of Commerce Clause power that our opinions have applied, but disregards the premise the test contains. It is true enough that Congress needs only a rational basis for concluding that the regulated activity substantially affects interstate commerce, ante, at 15 (em- phasis added). But it must be activity affecting com- merce that is regulated, and not merely the failure to engage in commerce. And one is not now purchasing the health care covered by the insurance mandate simply because one is likely to be purchasing it in the future. Our tests premise of regulated activity is not invented out of whole cloth, but rests upon the Constitutions requirement that it be commerce which is regulated. If all inactivity affecting commerce is commerce, commerce is everything. Ultimately the dissent is driven to saying that there is really no difference between action and inaction, ante, at 26, a proposition that has never recommended itself, neither to the law nor to common sense. To say, for example, that the inaction here consists of activity in the self-insurance market, ibid., seems to us wordplay. By parity of reasoning the failure to buy a car can be called participation in the non-private-car-transportation market. Com- merce becomes everything.
The dissent claims that we fai[l] to explain why the individual mandate threatens our constitutional order. Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitutions division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government. The dissent protests that the Necessary and Proper Clause has been held to include the power to enact criminal laws, . . . the power to imprison, . . . and the power to create a national bank, ante, at 3435. Is not the power to compel purchase of health insurance much lesser? No, not if (unlike those other dispositions) its application rests upon a theory that everything is within federal control simply because it exists.
The dissents exposition of the wonderful things the Fed- eral Government has achieved through exercise of its assigned powers, such as the provision of old-age and survivors benefits in the Social Security Act, ante, at 2, is quite beside the point. The issue here is whether the federal government can impose the Individual Mandate through the Commerce Clause. And the relevant history is not that Congress has achieved wide and wonderful results through the proper exercise of its assigned powers in the past, but that it has never before used the Commerce Clause to compel entry into commerce. 3 The dissent treats the Constitution as though it is an enumeration of those problems that the Federal Government can addressamong which, it finds, is the Nations course in the economic and social welfare realm, ibid., and more specifically the problem of the uninsured, ante, at 7. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power.
The dissent dismisses the conclusion that the power to compel entry into the health-insurance market would include the power to compel entry into the new-car or broccoli markets. The latter purchasers, it says, will be obliged to pay at the counter before receiving the vehicle or nourishment, whereas those refusing to purchase health-insurance will ultimately get treated anyway, at others expense. Ante, at 21. [T]he unique attributes of the health-care market . . . give rise to a significant free-riding problem that does not occur in other markets. Ante, at 28. And a vegetable-purchase mandate (or a car-purchase mandate) is not likely to have a substantial effect on the health-care costs borne by other Americans. Ante, at 29. Those differences make a very good argument by the dissents own lights, since they show that the failure to purchase health insurance, unlike the failure to purchase cars or broccoli, creates a national, social-welfare problem that is (in the dissents view) included among the unenumerated problems that the Constitution authorizes the Federal Government to solve. But those differences do not show that the failure to enter the health-insurance market, unlike the failure to buy cars and broccoli, is an activity that Congress can regulate. (Of course one day the failure of some of the public to purchase Amer- ican cars may endanger the existence of domestic automobile manufacturers; or the failure of some to eat broccoli may be found to deprive them of a newly discovered cancer- fighting chemical which only that food contains, producing health-care costs that are a burden on the rest of usin which case, under the theory of Justice Ginsburgs dissent, moving against those inactivities will also come within the Federal Governments unenumerated problem-solving powers.)
The Taxing Power
As far as §5000A is concerned, we would stop there. Congress has attempted to regulate beyond the scope of its Commerce Clause authority, 4 and §5000A is therefore invalid. The Government contends, however, as expressed in the caption to Part II of its brief, that the minimum coverage provision is independently authorized by congresss taxing power. Petitioners Minimum Coverage Brief 52. The phrase independently authorized suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regu- latory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was im- posed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. 5 The two are mutually exclusive. Thus, what the Governments caption should have read was alternatively, the minimum coverage provision is not a mandate-with-penalty but a tax. It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.
In answering that question we must, if fairly possible, Crowell v. Benson, 285 U. S. 22, 62 (1932) , construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. [A]l- though this Court will often strain to construe legis- lation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . . or judicially rewriting it. Commodity Futures Trading Commn v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964) , in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961) ). In this case, there is simply no way, without doing violence to the fair meaning of the words used, Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884) , to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
Our cases establish a clear line between a tax and a penalty: [A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act. United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931) ). In a few cases, this Court has held that a tax imposed upon private conduct was so onerous as to be in effect a penalty. But we have never heldneverthat a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress taxing powereven when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act adopt
the criteria of wrongdoing and then imposes a monetary penalty as the principal consequence on those who transgress its standard, it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922) .
So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestion- ably is. The minimum-coverage provision is found in 26 U. S. C. §5000A, entitled Requirement to maintain minimum essential coverage. (Emphasis added.) It commands that every applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage. Ibid. (emphasis added). And the immediately following provision states that,
f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty. §5000A(b) (emphasis added). And several of Congress legislative findings with regard to §5000A confirm that it sets forth a legal requirement and constitutes the assertion of regulatory power, not mere taxing power. See 42 U. S. C. §18091(2)(A) (The requirement regulates activity . . .); §18091(2)(C) (The requirement . . . will add millions of new consumers to the health insurance market . . .); §18091(2)(D) (The requirement achieves near-universal coverage); §18091(2)(H) (The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market); §18091(3) ([T]he Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation).
The Government and those who support its view on the tax point rely on New York v. United States, 505 U. S. 144, to justify reading shall to mean may. The shall in that case was contained in an introductory provisiona recital that provided for no legal consequenceswhich said that [e]ach State shall be responsible for providing . . . for the disposal of . . . low-level radioactive waste. 42 U. S. C. §2021c(a)(1)(A). The Court did not hold that shall could be construed to mean may, but rather that this preliminary provision could not impose upon the oper- ative provisions of the Act a mandate that they did not contain: We . . . decline petitioners invitation to con- strue §2021c(a)(1)(A), alone and in isolation, as a command to the States independent of the remainder of the Act. New York, 505 U. S., at 170. Our opinion then proceeded to consider each [of the three operative provisions] in turn. Ibid. Here the mandatethe shallis contained not in an inoperative preliminary recital, but in the dispositive operative provision itself. New York provides no support for reading it to be permissive.
Quite separately, the fact that Congress (in its own words) imposed . . . a penalty, 26 U. S. C. §5000A(b)(1), for failure to buy insurance is alone sufficient to render that failure unlawful. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful: [W]here the statute inflicts a penalty for doing an act, although the act itself is not expressly prohibited, yet to do the act is unlawful, because it cannot be supposed that the Legislature intended that a penalty should be inflicted for a lawful act. Powhatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 252 (1861). Or in the words of Chancellor Kent: If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute. 1 J. Kent, Commentaries on American Law 436 (1826).
We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences of a penaltysuch as license (License Tax Cases, 5 Wall. 462 (1867)) or surcharge (New York v. United States, supra.). But we have nevernevertreated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a penalty. Eighteen times in §5000A itself and else- where throughout the Act, Congress called the exaction in §5000A(b) a penalty.
That §5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax who are not ex- empt from the mandatea distinction that would make no sense if the mandate were not a mandate. Section 5000A(d) exempts three classes of people from the definition of applicable individual subject to the minimum coverage requirement: Those with religious objections or who participate in a health care sharing ministry, §5000A(d)(2); those who are not lawfully present in the United States, §5000A(d)(3); and those who are incarcerated, §5000A(d)(4). Section 5000A(e) then creates a separate set of exemptions, excusing from liability for the penalty certain individuals who are subject to the minimum coverage requirement: Those who cannot afford coverage, §5000A(e)(1); who earn too little income to require filing a tax return, §5000A(e)(2); who are members of an Indian tribe, §5000A(e)(3); who experience only short gaps in coverage, §5000A(e)(4); and who, in the judgment of the Secretary of Health and Human Services, have suffered a hardship with respect to the capability to obtain coverage, §5000A(e)(5). If §5000A were a tax, these two classes of exemption would make no sense; there being no requirement, all the exemptions would attach to the penalty (renamed tax) alone.
In the face of all these indications of a regulatory requirement accompanied by a penalty, the Solicitor General assures us that neither the Treasury Department nor the Department of Health and Human Services interprets Section 5000A as imposing a legal obligation, Petitioners Minimum Coverage Brief 61, and that
f [those subject to the Act] pay the tax penalty, theyre in compliance with the law, Tr. of Oral Arg. 50 (Mar. 26, 2012). These self-serving litigating positions are entitled to no weight. What counts is what the statute says, and that is entirely clear. It is worth noting, moreover, that these assurances contradict the Governments position in related litigation. Shortly before the Affordable Care Act was passed, the Commonwealth of Virginia enacted Va. Code Ann. §38.23430.1:1 (Lexis Supp. 2011), which states, No resident of [the] Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services . . . . In opposing Virginias assertion of standing to challenge §5000A based on this statute, the Government said that if the minimum coverage provision is unconstitutional, the [Virginia] statute is unnecessary, and if the minimum coverage provision is upheld, the state statute is void under the Supremacy Clause. Brief for Appellant in No. 111057 etc. (CA4), p. 29. But it would be void under the Supremacy Clause only if it was contradicted by a federal require[ment] to obtain or maintain a policy of individual insurance coverage.
Against the mountain of evidence that the minimum coverage requirement is what the statute calls ita requirementand that the penalty for its violation is what the statute calls ita penaltythe Government brings forward the flimsiest of indications to the contrary. It notes that [t]he minimum coverage provision amends the Internal Revenue Code to provide that a non-exempted individual . . . will owe a monetary penalty, in addition to the income tax itself, and that [t]he [Internal Revenue Service (IRS)] will assess and collect the penalty in the same manner as assessable penalties under the Internal Revenue Code. Petitioners Minimum Coverage Brief 53. The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not. See, e.g., 26 U. S. C. §527(j) (2006 ed.) (IRS-collectible pen- alty for failure to make campaign-finance disclosures); §5761(c) (IRS-collectible penalty for domestic sales of to- bacco products labeled for export); §9707 (IRS-collectible penalty for failure to make required health-insurance premium payments on behalf of mining employees). In Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, we held that an exaction not only enforced by the Commissioner of Internal Revenue but even called a tax was in fact a penalty.
f the concept of penalty means anything, we said, it means punishment for an unlawful act or omission. Id., at 224. See also Lipke v. Lederer, 259 U. S. 557 (1922) (same). Moreover, while the penalty is assessed and collected by the IRS, §5000A is administered both by that agency and by the Department of Health and Human Services (and also the Secretary of Veteran Affairs), see §5000A(e)(1)(D), (e)(5), (f)(1)(A)(v), (f)(1)(E) (2006 ed., Supp. IV), which is responsible for defining its substantive scopea feature that would be quite extraordinary for taxes.
The Government points out that [t]he amount of the penalty will be calculated as a percentage of household income for federal income tax purposes, subject to a floor and [a] ca[p], and that individuals who earn so little money that they are not required to file income tax returns for the taxable year are not subject to the penalty (though they are, as we discussed earlier, subject to the mandate). Petitioners Minimum Coverage Brief 12, 53. But varying a penalty according to ability to pay is an utterly familiar practice. See, e.g., 33 U. S. C. §1319(d) (2006 ed., Supp. IV) (In determining the amount of a civil penalty the court shall consider . . . the economic impact of the penalty on the violator); see also 6 U. S. C. §488e(c); 7 U. S. C. §§7734(b)(2), 8313(b)(2); 12 U. S. C. §§1701q1(d)(3), 1723i(c)(3), 1735f14(c)(3), 1735f15(d)(3), 4585(c)(2); 15 U. S. C. §§45(m)(1)(C), 77h1(g)(3), 78u2(d), 80a9(d)(4), 80b3(i)(4), 1681s(a)(2)(B), 1717a(b)(3), 1825(b)(1), 2615(a) (2)(B), 5408(b)(2); 33 U. S. C. §2716a(a).
The last of the feeble arguments in favor of petition- ers that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement. The presence of such a requirement suggests a penaltythough one can imagine a tax imposed only on willful action; but the absence of such a requirement does not suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to scienter, we traditionally presume a mens rea requirement if the statute imposes a severe penalty. Staples v. United States, 511 U. S. 600, 618 (1994) . Since we have an entire jurisprudence addressing when it is that a scienter requirement should be inferred from a penalty, it is quite illogical to suggest that a penalty is not a penalty for want of an express scienter requirement.
And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be foundin Title IX, containing the Acts Revenue Provisions. In sum, the terms of [the] act rende[r] it unavoidable, Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax.
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubl- ing. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue. United States v. Munoz-Flores, 495 U. S. 385, 395 (1990) . We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); Americas Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Governments opening brief did not even address the questionperhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.
The Anti-Injunction Act
There is another point related to the Individual Mandate that we must discussa point that logically should have been discussed first: Whether jurisdiction over the challenges to the minimum-coverage provision is precluded by the Anti-Injunction Act, which provides that no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, 26 U. S. C. §7421(a) (2006 ed.).
We have left the question to this point because it seemed to us that the dispositive question whether the minimum-coverage provision is a tax is more appropriately addressed in the significant constitutional context of whether it is an exercise of Congress taxing power. Having found that it is not, we have no difficulty in deciding that these suits do not have the purpose of restraining the assessment or collection of any tax. 6
The Government and those who support its position on this point make the remarkable argument that §5000A is not a tax for purposes of the Anti-Injunction Act, see Brief for Petitioners in No. 11398 (Anti-Injunction Act), but is a tax for constitutional purposes, see Petitioners Minimum Coverage Brief 5262. The rhetorical device that tries to cloak this argument in superficial plausibility is the same device employed in arguing that for constitutional purposes the minimum-coverage provision is a tax: confusing the question of what Congress did with the question of what Congress could have done. What qualifies as a tax for purposes of the Anti-Injunction Act, unlike what qualifies as a tax for purposes of the Constitution, is entirely within the control of Congress. Compare Bailey v. George, 259 U. S. 16, 20 (1922) (Anti-Injunction Act barred suit to restrain collections under the Child Labor Tax Law), with Child Labor Tax Case, 259 U. S., at 3641 (holding the same law unconstitutional as exceeding Congress taxing power). Congress could have defined tax for purposes of that statute in such fashion as to exclude some exactions that in fact are taxes. It might have prescribed, for example, that a particular exercise of the taxing power shall not be regarded as a tax for purposes of the Anti-Injunction Act. But there is no such prescription here. What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries ver- bal wizardry too far, deep into the forbidden land of the sophists.
The Medicaid Expansion
We now consider respondents second challenge to the constitutionality of the ACA, namely, that the Acts dramatic expansion of the Medicaid program exceeds Congress power to attach conditions to federal grants to the States.
The ACA does not legally compel the States to participate in the expanded Medicaid program, but the Act authorizes a severe sanction for any State that refuses to go along: termination of all the States Medicaid funding. For the average State, the annual federal Medicaid subsidy is equal to more than one-fifth of the States expenditures. 7 A State forced out of the program would not only lose this huge sum but would almost certainly find it necessary to increase its own health-care expenditures substantially, requiring either a drastic reduction in funding for other programs or a large increase in state taxes. And these new taxes would come on top of the federal taxes already paid by the States citizens to fund the Medicaid program in other States.
The States challenging the constitutionality of the ACAs Medicaid Expansion contend that, for these practical reasons, the Act really does not give them any choice at all. As proof of this, they point to the goal and the struc- ture of the ACA. The goal of the Act is to provide near-universal medical coverage, 42 U. S. C. §18091(2)(D), and without 100% State participation in the Medicaid program, attainment of this goal would be thwarted. Even if States could elect to remain in the old Medicaid program, while declining to participate in the Expansion, there would be a gaping hole in coverage. And if a substantial number of States were entirely expelled from the program, the number of persons without coverage would be even higher.
In light of the ACAs goal of near-universal coverage, petitioners argue, if Congress had thought that anything less than 100% state participation was a realistic possibility, Congress would have provided a backup scheme. But no such scheme is to be found anywhere in the more than 900 pages of the Act. This shows, they maintain, that Congress was certain that the ACAs Medicaid offer was one that no State could refuse.
In response to this argument, the Government contends that any congressional assumption about uniform state participation was based on the simple fact that the offer of federal funds associated with the expanded coverage is such a generous gift that no State would want to turn it down.
To evaluate these arguments, we consider the extent of the Federal Governments power to spend money and to attach conditions to money granted to the States.
No one has ever doubted that the Constitution authorizes the Federal Government to spend money, but for many years the scope of this power was unsettled. The Constitution grants Congress the power to collect taxes to . . . provide for the . . . general Welfare of the United States, Art. I, §8, cl. 1, and from the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase the general welfare. Butler, 297 U. S., at 65. Madison, it has been said, thought that the phrase amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section, while Hamilton maintained the clause confers a power separate and distinct from those later enumerated [and] is not restricted in meaning by the grant of them. Ibid.
The Court resolved this dispute in Butler. Writing for the Court, Justice Roberts opined that the Madisonian view would make Article Is grant of the spending power a mere tautology. Ibid. To avoid that, he adopted Hamiltons approach and found that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. Id., at 66. Instead, he wrote, the spending powers confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress. Ibid.; see also Steward Machine Co. v. Davis, 301 U. S. 548587 (1937); Helvering v. Davis, 301 U. S. 619, 640 (1937) .
The power to make any expenditure that furthers the general welfare is obviously very broad, and shortly after Butler was decided the Court gave Congress wide leeway to decide whether an expenditure qualifies. See Helvering, 301 U. S., at 640641. The discretion belongs to Congress, the Court wrote, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. Id., at 640. Since that time, the Court has never held that a federal expenditure was not for the general welfare.
One way in which Congress may spend to promote the general welfare is by making grants to the States. Monetary grants, so-called grants-in-aid, became more frequent during the 1930s, G. Stephens & N. Wikstrom, Ameri- can Intergovernmental RelationsA Fragmented Federal Polity 83 (2007), and by 1950 they had reached $20 billion 8 or 11.6% of state and local government expenditures from their own sources. 9 By 1970 this number had grown to $123.7 billion 10 or 29.1% of state and local government expenditures from their own sources. 11 As of 2010, fed- eral outlays to state and local governments came to over $608 billion or 37.5% of state and local government expenditures. 12
When Congress makes grants to the States, it customarily attaches conditions, and this Court has long held that the Constitution generally permits Congress to do this. See Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981) ; South Dakota v. Dole, 483 U. S. 203, 206 (1987) ; Fullilove v. Klutznick, 448 U. S. 448, 474 (1980) (opinion of Burger, C. J.); Steward Machine, supra, at 593.
This practice of attaching conditions to federal funds greatly increases federal power.
bjectives not thought to be within Article Is enumerated legislative fields, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds. Dole, supra, at 207 (internal quotation marks and citation omitted); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 686 (1999) (by attaching conditions to federal funds, Congress may induce the States to tak[e] certain actions that Congress could not require them to take).
This formidable power, if not checked in any way, would present a grave threat to the system of federalism created by our Constitution. If Congress Spending Clause power to pursue objectives outside of Article Is enumerated legislative fields, Davis v. Monroe County Bd. of Ed., 526 U. S. 629, 654 (1999) (Kennedy, J., dissenting) (internal quotation marks omitted), is limited only by Congress notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives power to the Congress to tear down the barriers, to invade the states jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed, Dole, supra, at 217 (OConnor, J., dissenting) (quoting Butler, 297 U. S., at 78). [T]he Spending Clause power, if wielded without concern for the federal balance, has the potential to obliterate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach. Davis, supra, at 654655 (Kennedy, J., dissenting).
Recognizing this potential for abuse, our cases have long held that the power to attach conditions to grants to the States has limits. See, e.g., Dole, supra, at 207208; id., at 207 (spending power is subject to several general re- strictions articulated in our cases). For one thing, any such conditions must be unambiguous so that a State at least knows what it is getting into. See Pennhurst, supra, at 17. Conditions must also be related to the federal interest in particular national projects or programs, Massachusetts v. United States, 435 U. S. 444, 461 (1978) , and the conditional grant of federal funds may not induce the States to engage in activities that would themselves be unconstitutional, Dole, supra, at 210; see Lawrence County v. Lead-Deadwood School Dist. No. 401, 469 U. S. 256270 (1985). Finally, while Congress may seek to induce States to accept conditional grants, Congress may not cross the point at which pressure turns into compulsion, and ceases to be inducement. Steward Machine, 301 U. S., at 590. Accord, College Savings Bank, supra, at 687; Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 285 (1991) (White, J., dissenting); Dole, supra, at 211.
When federal legislation gives the States a real choice whether to accept or decline a federal aid package, the federal-state relationship is in the nature of a contractual relationship. See Barnes v. Gorman, 536 U. S. 181, 186 (2002) ; Pennhurst, 451 U. S., at 17. And just as a contract is voidable if coerced, [t]he legitimacy of Congress power to legislate under the spending power . . . rests on whether the State voluntarily and knowingly accepts the terms of the contract. Ibid. (emphasis added). If a federal spending program coerces participation the States have not exercise[d] their choicelet alone made an informed choice. Id., at 17, 25.
Coercing States to accept conditions risks the destruction of the unique role of the States in our system. Davis, supra, at 685 (Kennedy, J., dissenting). [T]he Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress instructions. New York, 505 U. S., at 162. Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. Id., at 161 (internal quotation marks and brackets omitted). Congress effectively engages in this impermissible compulsion when state participation in a federal spending program is coerced, so that the States choice whether to enact or administer a federal regulatory program is rendered illusory.
Where all Congress has done is to encourag[e] state regulation rather than compe[l] it, state governments remain responsive to the local electorates preferences; state officials remain accountable to the people. [But] where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished. New York, supra, at 168.
Amici who support the Government argue that forcing state employees to implement a federal program is more respectful of federalism than using federal workers to implement that program. See, e.g., Brief for Service Employees International Union et al. as Amici Curiae in No. 11398, pp. 2526. They note that Congress, instead of expanding Medicaid, could have established an entirely federal program to provide coverage for the same group of people. By choosing to structure Medicaid as a cooperative federal-state program, they contend, Congress allows for more state control. Ibid.
This argument reflects a view of federalism that our cases have rejectedand with good reason. When Congress compels the States to do its bidding, it blurs the lines of political accountability. If the Federal Government makes a controversial decision while acting on its own, it is the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular. New York, 505 U. S., at 168. But when the Federal Government compels the States to take unpopular actions, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision. Id., at 169; see Printz, supra, at 930. For this reason, federal officeholders may view this departur[e] from the federal structure to be in their personal interests . . . as a means of shifting responsibility for the eventual decision. New York, 505 U. S., at 182183. And even state officials may favor such a departure from the constitutional plan, since uncertainty concerning responsibility may also permit them to escape accountability. Id., at 182. If a program is popular, state officials may claim credit; if it is unpopular, they may protest that they were merely responding to a federal directive.
Once it is recognized that spending-power legislation cannot coerce state participation, two questions remain: (1) What is the meaning of coercion in this context? (2) Is the ACAs expanded Medicaid coverage coercive? We now turn to those questions.
The answer to the first of these questionsthe meaning of coercion in the present contextis straightforward. As we have explained, the legitimacy of attaching conditions to federal grants to the States depends on the voluntariness of the States choice to accept or decline the offered package. Therefore, if States really have no choice other than to accept the package, the offer is coercive, and the conditions cannot be sustained under the spending power. And as our decision in South Dakota v. Dole makes clear, theoretical voluntariness is not enough.
In South Dakota v. Dole, we considered whether the spending power permitted Congress to condition 5% of the States federal highway funds on the States adoption of a minimum drinking age of 21 years. South Dakota argued that the program was impermissibly coercive, but we disagreed, reasoning that Congress ha[d] directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds. 483 U. S., at 211. Because all South Dakota would lose if she adhere[d] to her chosen course as to a suitable minimum drinking age [was] 5% of the funds otherwise obtainable under specified high- way grant programs, we found that Congress ha[d] of- fered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. Ibid. Thus, the decision whether to comply with the federal condition remain[ed] the prerogative of the States not merely in theory but in fact, and so the program at issue did not exceed Congress power. Id., at 211212 (emphasis added).
The question whether a law enacted under the spending power is coercive in fact will sometimes be difficult, but where Congress has plainly crossed the line distinguishing encouragement from coercion, New York, supra, at 175, a federal program that coopts the States political processes must be declared unconstitutional. [T]he federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene. Lopez, 514 U. S., at 578 (Kennedy, J., concurring).
The Federal Governments argument in this case at best pays lip service to the anticoercion principle. The Federal Government suggests that it is sufficient if States are free, as a matter of law, to turn down federal funds. Brief for Respondents in No. 11400, p. 17 (emphasis added); see also id., at 25. According to the Federal Government, neither the amount of the offered federal funds nor the amount of the federal taxes extracted from the taxpayers of a State to pay for the program in question is relevant in determining whether there is impermissible coercion. Id., at 4146.
This argument ignores reality. When a heavy federal tax is levied to support a federal program that offers large grants to the States, States may, as a practical matter, be unable to refuse to participate in the federal program and to substitute a state alternative. Even if a State believes that the federal program is ineffective and inefficient, withdrawal would likely force the State to impose a huge tax increase on its residents, and this new state tax would come on top of the federal taxes already paid by residents to support subsidies to participating States. 13
Acceptance of the Federal Governments interpreta- tion of the anticoercion rule would permit Congress to dic- tate policy in areas traditionally governed primarily at the state or local level. Suppose, for example, that Congress enacted legislation offering each State a grant equal to the States entire annual expenditures for primary and secondary education. Suppose also that this funding came with conditions governing such things as school curriculum, the hiring and tenure of teachers, the drawing of school districts, the length and hours of the school day, the school calendar, a dress code for students, and rules for student discipline. As a matter of law, a State could turn down that offer, but if it did so, its residents would not only be required to pay the federal taxes needed to support this expensive new program, but they would also be forced to pay an equivalent amount in state taxes. And if the State gave in to the federal law, the State and its subdivisions would surrender their traditional authority in the field of education. Asked at oral argument whether such a law would be allowed under the spending power, th
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1001 on:
May 09, 2013, 01:58:38 PM »
"Where, in the last 30 years, did the 'conservative' Court roll back any of the excesses of the New Deal era?"
Power User
Posts: 42556
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1002 on:
May 09, 2013, 02:36:33 PM »
Haven't yet had a chance to read BD's two posts (#1000 and #1001) but Doug's post #999 makes sense to me-- including the point about the definition of conservative.
Power User
Posts: 9483
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1003 on:
May 09, 2013, 05:18:19 PM »
I will need Bigdog's help to understand if or how these opinions and decisions rolled back what conservatives considered to be the excesses of the New Deal era. (I think that was the point of the article that started this.)
I am aware of the joined dissent on Obamacare, but the point Thomas made alone was that he would go further, "reconsider" (overturn) previous decisions, which is the conservative view IMO. He would roll back federal powers derived from the commerce clause, not just oppose more expansions.
Regarding the 4 cases cited, same. In Lopez, controlling guns in schools was considered beyond the scope of the interstate commerce clause. That is a better decision than the alternative, but not exactly a right turn curtailing government excesses previously authorized (as I read it). US v. Morrison recognized limits on the further expansion of federal power, as did Solid Waste v. Corps of Engineers where the filling of a local pond at a landfill was prohibited under a migratory bird law pretending to be authorized by the commerce clause. (We still pay for a migratory bird commission, see below.) The Court said: "The grant of authority to Congress under the Commerce Clause, though broad, is not unlimited". Whew! And then in Sebelius, dissent aside, the Court essentially said that power IS unlimited. Four justices said that to my reading and one said he would stay up nights until he could find a way, any way, to uphold the expansionary products of the elected government. I wish he had stayed up to ponder the rights of mine he was trampling.
Asking this a different way, after these 30 years, what industry was controlled by the federal government then, that is not now, due to a shift in direction on the Court? I'm in housing. It is hard to find anything more local than housing and urban development. Which Supreme Court decision closed HUD? Even though housing is defined as a federal function, my city state and county all regulate it too!
Conservatives think federal government powers grew beyond original intent. After a conservative Court stripped the federal government of much of its regulatory authority, this is all that remains:
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Science and Technology Directorate
Environmental Measurements Laboratory
Innovation/Homeland Security Advanced Research Projects Agency
Office of Research
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Program Executive Office, Counter Improvised Explosive Device
Office of Transition
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Main article: United States Department of Housing and Urban Development
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Office of the Historian
Office of Policy, Planning and Resources for Public Diplomacy and Public Affairs
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Bureau of Transportation Statistics
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Treasurer of the United States
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Office of Advisory Committee Management
Office of Employment Discrimination Complaint Adjudication
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Small and Disadvantaged Business Utilization
Veterans Service Organizations Liaison
Administrative Conference of the United States
Advisory Council on Historic Preservation
African Development Foundation
Amtrak (National Railroad Passenger Corporation)
Armed Forces Retirement Home
Central Intelligence Agency
Central Counterintelligence Agency
Commission on Civil Rights
Commodity Futures Trading Commission
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Corporation for National and Community Service
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Public Broadcasting Service (Partially funded)
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Court Services and Offender Supervision Agency
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Federal Labor Relations Authority
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Federal Mediation and Conciliation Service
Federal Mine Safety and Health Review Commission
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Federal Trade Commission
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Helen Keller National Center
Institute of Museum and Library Services
Inter-American Foundation
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Merit Systems Protection Board
Military Postal Service Agency
National Aeronautics and Space Administration
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National Capital Planning Commission
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National Council on Disability
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National Endowment for the Arts
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National Labor Relations Board
National Mediation Board
National Science Foundation
United States Antarctic Program
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National Transportation Safety Board
Nuclear Regulatory Commission
Office of the Federal Coordinator, Alaska Natural Gas Transportation Projects
Occupational Safety and Health Review Commission
Office of Compliance
Office of Government Ethics
Office of Personnel Management
Federal Executive Institute
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Office of Special Counsel
Office of the National Counterintelligence Executive
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Intelligence Advanced Research Projects Activity
Overseas Private Investment Corporation
Panama Canal Commission
Peace Corps
Postal Regulatory Commission
Railroad Retirement Board
Securities and Exchange Commission
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Selective Service System
Small Business Administration
Social Security Administration
Tennessee Valley Authority
U.S. Trade and Development Agency
United States Agency for International Development
United States International Trade Commission
United States Postal Service
Strategic Economic and Energy Development
Inspector General - full list U.S. Inspectors General
Abraham Lincoln Bicentennial Foundation
Administrative Committee of the Federal Register
American Battle Monuments Commission
Appalachian Regional Commission
Architectural and Transportation Barriers Compliance Board (United States Access Board)
Arctic Research Commission
Arthritis and Musculoskeletal Interagency Coordinating Committee
Barry M. Goldwater Scholarship and Excellence in Education Foundation
Broadcasting Board of Governors
Chemical Safety and Hazard Investigation Board
Chief Acquisition Officers Council
Chief Financial Officers Council
Chief Human Capital Officers Council
Chief Information Officers Council
Citizens' Stamp Advisory Committee
Commission of Fine Arts
Commission on International Religious Freedom
Commission on Security and Cooperation in Europe (United States Helsinki Commission)
Commission on Wartime Contracting (Will sunset when announced (currently not announced) )
Committee for Purchase from People Who Are Blind or Severely Disabled
Committee for the Implementation of Textile Agreements
Committee on Foreign Investment in the United States
Coordinating Council on Juvenile Justice and Delinquency Prevention
Defense Acquisition University
Delaware River Basin Commission
Denali Commission
Endangered Species Committee
Federal Accounting Standards Advisory Board
Federal Advisory Committees
Federal Executive Boards
Federal Financial Institutions Examination Council
Federal Financing Bank
Federal Geographic Data Committee
Federal Interagency Committee for the Management of Noxious and Exotic Weeds
Federal Interagency Committee on Education
Federal Interagency Council on Statistical Policy
Federal Laboratory Consortium for Technology Transfer
Federal Library and Information Center Committee
Financial Crisis Inquiry Commission
Harry S. Truman Scholarship Foundation
Illinois and Michigan Canal National Heritage Corridor Commission
Indian Arts and Crafts Board
Interagency Alternate Dispute Resolution Working Group
Interagency Council on Homelessness
Interstate Commission on the Potomac River Basin
J. William Fulbright Foreign Scholarship Board
James Madison Memorial Fellowship Foundation
Japan-United States Friendship Commission
Joint Board for the Enrollment of Actuaries
Joint Fire Science Program
Marine Mammal Commission
Migratory Bird Conservation Commission
Millennium Challenge Corporation
Mississippi River Commission
Morris K. Udall and Stewart L. Udall Foundation
National Bipartisan Commission on the Future of Medicare
National Indian Gaming Commission
National Interagency Fire Center
National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling
National Park Foundation
Northwest Power and Conservation Council (Northwest Power Planning Council)
Nuclear Regulatory Commission
Nuclear Waste Technical Review Board
Preserve America
Presidential Commission for the Study of Bioethical Issues
President's Council on Fitness, Sports, and Nutrition
Presidents Management Council
Presidio Trust
Privacy and Civil Liberties Oversight Board
Regulatory Service Center (Office of Information and Regulatory Affairs)
Social Security Advisory Board
Susquehanna River Basin Commission
Taxpayer Advocacy Panel
United States Holocaust Memorial Museum
Veterans Day National Committee
Vietnam Educational Foundation
White House Commission on Presidential Scholars (Presidential Scholars Program)
White House Commission on the National Moment of Remembrance
These organizations are some of the organizations who hold a congressional charter. They aren't part of the United States government, even though some are funded by the United States government.
YMCA of America Inc.
YWCA of America Inc.
Boys and Girls Clubs of America
American Red Cross
American Red Crescent Movement
Boy Scouts of America
Girl Scouts of the USA
National Ski Patrol
National Academy of the Sciences
Quasi-Official Agencies
Legal Services Corporation
Smithsonian Institution
John F. Kennedy Center for the Performing Arts
State Justice Institute
United States Institute of Peace
National Trust for Historic Preservation
Brand USA
Graduate School USDA
Graduate School USA
Private Regulatory Corporation
Public Company Accounting Oversight Board
Internet Corporation for Assigned Names and Numbers
Municipal Securities Rulemaking Board
National Futures Association
Government entities created by acts but are independent or other entities
American Institute in Taiwan
Cotton Incorporated
Dairy Management Inc.
Protestant Episcopal Cathedral Foundation
Washington National Cathedral
Financial Industry Regulatory Authority
Howard University
National Consumer Cooperative Bank
National Corporation for Housing Partnerships
National Endowment for Democracy
National Fish and Wildlife Foundation
National Technical Institute for the Deaf
Neighborhood Reinvestment Corporation
Pennsylvania Avenue Development Corporation
The Financing Corporation
Sister Cities International
Twin Cities International
United States Olympic Committee (also chartered)
United States National Paralympic Committee
United States Anti-Doping Agency
Federal Government Enterprises
Farm Credit System Insurance Corporation
Federal Agricultural Mortgage Corporation (Farmer Mac)
Federal Home Loan Mortgage Corporation (Freddie Mac)
Federal National Mortgage Association (Fannie Mae)
Federal Home Loan Banks
Farm Credit System
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1004 on:
May 10, 2013, 08:43:49 PM »
"I will need Bigdog's help to understand if or how these opinions and decisions rolled back what conservatives considered to be the excesses of the New Deal era."
They change the line of precedent. Much of Roberts's discussion of the Commerece Clause was based on the cases I mentioned.
Also, Thomas by being so fanatical is not much of a strategist. Scalia at least gets other justices to join him, which is how cases are decided in your favor.
Power User
Posts: 15533
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1005 on:
May 10, 2013, 08:56:27 PM »
Quote from: bigdog on May 10, 2013, 08:43:49 PM
"I will need Bigdog's help to understand if or how these opinions and decisions rolled back what conservatives considered to be the excesses of the New Deal era."
They change the line of precedent. Much of Roberts's discussion of the Commerece Clause was based on the cases I mentioned.
Also, Thomas by being so fanatical is not much of a strategist. Scalia at least gets other justices to join him, which is how cases are decided in your favor.
Was the SCOTUS created by the founders with the intent that they rule on constitutional issues using some sort of strategy?
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1006 on:
May 11, 2013, 06:51:06 PM »
Strategy is a fact, GM. If you want change, you strategize.
Power User
Posts: 42556
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1007 on:
May 11, 2013, 07:15:33 PM »
OTOH if one does not want change from the strict construction of the Constitution, what is one to do?
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1008 on:
May 12, 2013, 06:41:11 AM »
Quote from: Crafty_Dog on May 11, 2013, 07:15:33 PM
OTOH if one does not want change from the strict construction of the Constitution, what is one to do?
Convince 4 other members of the Court.
And, its pretty hard to live up to strict construction.
Partial list of things not in the Constitution, several things that for damn sure aren't part of the Framers intent: political parties; congressional committees; presidential proclamations/executive orders/directives; nearly all of the executive bureaucracy, including ones that all the conservatives on this board seem to like such as the standing army and sixteen organization intelligence community.
Power User
Posts: 42556
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1009 on:
May 12, 2013, 11:40:36 AM »
Of course there are things for which the C. does not provide. Our FF, in their (divinely inspired) wisdom wrote it that way. The point, as I understand Scalia to make it, is that the text is to be strictly constructed.
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1010 on:
May 12, 2013, 01:05:46 PM »
And my point is that there is more than a mere solitary sole on the Court who is a conservative is thus supported.
Quote from: Crafty_Dog on May 12, 2013, 11:40:36 AM
The point, as I understand Scalia to make it, is that the text is to be strictly constructed.
Power User
Posts: 15533
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1011 on:
May 12, 2013, 01:29:35 PM »
At least they were able to decide that ObamaCare was a tax, which the IRS will of course administer in a fair and impatial way.
Power User
Posts: 42556
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1012 on:
May 12, 2013, 01:47:28 PM »
"And my point is that there is more than a mere solitary sole (sic) on the Court who is a conservative is thus supported."
With Obamacare being a tax, my understanding is that there is now a new basis for challenging the law-- it originated in the Senate, not the House. We shall see , , ,
Power User
Posts: 9483
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1013 on:
May 12, 2013, 11:38:13 PM »
I thought the sole opinion of Thomas on Obamacare was strategic, in a long term sense. Putting that view in a clear and concise way into the record is better than having no one express it. The persuasion might take a hundred years.
"And, its pretty hard to live up to strict construction."
I agree with this. These difficult cases don't lend themselves well to purity. So you at least look for the opportunities to take small steps in the direction of constitutional intent. Instead, with Obamacare, we took another giant leap away from constitutionally limited government.
Power User
Posts: 42556
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1014 on:
May 13, 2013, 12:03:18 AM »
"Putting that view in a clear and concise way into the record is better than having no one express it."
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1015 on:
May 13, 2013, 06:21:36 AM »
"Instead, with Obamacare, we took another giant leap away from constitutionally limited government."
Except, of course, you got five justice to sign on to opinions that further curtailed the Commerce clause.
From the article that started the current discussion (note that Barnett argued NFIB at the SCOTUS and is a Federalist Society member):
"In a decision that Chief Justice Roberts might have compared in his own mind with Marbury v. Madison, the court gave the president the decision on the continued existence of the program, but gave the Federalist Society what it was looking for on the law. The court accepted the society's argument that the health-insurance individual mandate was unconstitutional under the commerce clause, in part because it created commerce rather than regulated it, and because it regulated inactivity (failing to purchase health insurance) rather than activity. In addition, the court held that the provision penalizing states that refused to participate in the expansion of Medicaid was unconstitutionally coercive under the spending clause, the first time it had ever struck down legislation on that basis. It remains to be seen how much damage these doctrinal rulings will do in the future, but following the decision, Randy Barnett blogged, 'Who would have thought that we could win while losing?'"
Last Edit: May 13, 2013, 06:39:29 AM by bigdog
Power User
Posts: 42556
This seems rather alarming , , ,
Reply #1016 on:
May 15, 2013, 03:02:24 PM »
Power User
Posts: 2268
recess appointments invalidated
Reply #1017 on:
May 16, 2013, 01:39:31 PM »
Power User
Posts: 15533
Re: recess appointments invalidated
Reply #1018 on:
May 16, 2013, 09:57:11 PM »
Quote from: bigdog on May 16, 2013, 01:39:31 PM
This just in, second appeals court justices receive audit notices from IRS.
Power User
Posts: 15533
Re: recess appointments invalidated
Reply #1019 on:
May 16, 2013, 10:05:05 PM »
Puffington Host analysis:
2 out 3 second appeals court justices found to be racist and waging war on women....
Quote from: bigdog on May 16, 2013, 01:39:31 PM
Power User
Posts: 42556
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1020 on:
May 17, 2013, 12:29:40 PM »
I'd love to get some team effort on the issue presented my posse commitatus question in post #116 , , ,
This may help get things started:
Last Edit: May 17, 2013, 06:29:53 PM by Crafty_Dog
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1021 on:
May 21, 2013, 06:12:56 AM »
Quote from: Crafty_Dog on May 17, 2013, 12:29:40 PM
I'd love to get some team effort on the issue presented my posse commitatus question in post #116 , , ,
This may help get things started:
IMHO, this issue is much ado about nothing. The military is not going to issue this type of directive without executive and congressional oversight. The directive (see pages 15-16, primarily) includes limits that are in accord with PCA and longstanding law and custom in the US. GM may have more to say in the discussion on military/law enforcement relationship. I'd love his take here.
Power User
Posts: 42556
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1022 on:
May 21, 2013, 07:13:02 AM »
While we wait for GM, here is this:
The reliability of this source is unknown to me, but I have seen this mentioned in a couple of other places as well.
May 20th, 2013
The Posse Comitatus Act of 1878 was originally established to protect
American citizens from the federal use of military troops to enforce and
execute the laws of the land unless expressly authorized by the Constitution or
Congress. Since then, for over a century, this task has fallen upon local
and federal law enforcement. But with the War on Terror taking center stage
in the United States for the last decade, elements within the government
have been working tirelessly to expand the mission of the US military on the
domestic front.
First, they passed the Patriot Act, which gave the government sweeping new
powers to categorize any individual as a terrorist, whether they are
operating on foreign lands or here at home. In 2011, as America brought in the
New Year, they signed into law the National Defense Authorization Act, which
made it possible for American citizens who were categorized as domestic
terrorists under the Patriot Act to be detained and imprisoned indefinitely
without charge or trial.
Finally, last week we learned that, as President Obama came under fire for
the many scandals rocking his administration, the government was quietly
moving to give the Department of Defense unprecedented authority on U.S.
soil, effectively nullifying Posse Comitatus.
Eric Blair of Activist Post writes:
First, the senate is debating an expansion of the already broad powers of
the 2001 Authorization to Use Military Force (AUMF) so the U.S. can
essentially engage any area in the world in the war on terror, including America.
Which brings us to the second development: the Pentagon has recently
granted itself police powers on American soil.
Assistant Secretary of Defense Michael Sheehan told Congress yesterday
that the AUMF authorized the US military to operate on a worldwide battlefield
from Boston to Pakistan. Sheehan emphasized that the Administration is
authorized to put boots on the ground wherever the enemy chooses to base
themselves, essentially ignoring the declaration of war clause in the US
While Americans were distracted with three developing scandals pushed by
both wings of the mainstream media, sinister developments were taking place
behind closed doors. In essence, the US military has granted itself the
power to deploy troops on the streets of America without approval from the
President or Congress, and the AUMF, which was originally designed to target
the terrorists responsible for 9/11, has been expanded to give the government
authority to use military assets on the domestic front without a
declaration from Congress.
Charlie McGrath of Wide Awake News explains:
Thanks to the hard work of Eric Blair at Activist Post we understand that
Washington D.C. has been very busy eroding your freedom.
In fact, Senator Angus King went so far as to say that the hearing he was
involved in was the most astonishing and disturbing hearing he has ever
Even John McCain, war hawk John McCain, came out and said the government
has gone way beyond its authority.
What are they talking about? The AUMF Authorization to Use Military
This piece of legislation that was put into place way back when we started
the war on terror that is now turning from foreign enemies to YOU. Dont
be shocked by that, because you are on the list if you are a freedom minded,
free thinker that believes in a Constitutional Republic.
They are changing the wording of this thing so that the military can be
used on the streets of this country.
Its not a conspiracy theory. Its not some kind of a fancy fantasy that
may come true down the road.
It is happening right now, in the guise of other news events that are not
news events.
Even more terrifying is the fact that West Point has come out recently and
said that you if you have a theory that the federal government is trying
to take over and implement a national police force you could fall into
the category of a domestic terrorist.
A domestic terrorist that can be dealt with by military force
The only conspiracy here is what the government is telling us.
This legislation is real. The militarization of America is in full force.
We are the targets.
Power User
Posts: 15533
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1023 on:
May 24, 2013, 05:43:48 PM »
Quote from: bigdog on May 21, 2013, 06:12:56 AM
Quote from: Crafty_Dog on May 17, 2013, 12:29:40 PM
I'd love to get some team effort on the issue presented my posse commitatus question in post #116 , , ,
This may help get things started:
IMHO, this issue is much ado about nothing. The military is not going to issue this type of directive without executive and congressional oversight. The directive (see pages 15-16, primarily) includes limits that are in accord with PCA and longstanding law and custom in the US. GM may have more to say in the discussion on military/law enforcement relationship. I'd love his take here.
I think below is the crucial element:
a. DoD shall be prepared to support civilian law enforcement agencies consistent with the needs of military preparedness of the United States, while recognizing and conforming to the legal limitations on direct DoD involvement in civilian law enforcement activities.
b. Support of civilian law enforcement agencies by DoD personnel shall be provided in accordance with sections 112, 351, 831, 1116, 1751, and 1385 (also known and hereinafter referred to as The Posse Comitatus Act, as amended) of title 18, U.S.C. (Reference (n)); chapter 18 of Reference (d); section 1970 of title 2, U.S.C. (Reference (o)) (for support to the
DoDI 3025.21, February 27, 2013
U.S. Capitol Police); and other Federal laws, including those protecting the civil rights and civil
liberties of individuals, as applicable.
c. The restrictions in paragraph 1.c. of Enclosure 3 of this Instruction shall apply to all
actions of DoD personnel worldwide.
d. Exceptions, based on compelling and extraordinary circumstances, may be granted to the
restrictions in paragraph 1.c. of Enclosure 3 of this Instruction for assistance to be provided
outside the United States; only the Secretary of Defense or Deputy Secretary of Defense may
grant such exceptions.
In addition, I find it very unlikely that local level law enforcement (especially in my neck of the woods) would allow citizens to be arrested by the military. Per my state's laws, the Nat'l Guard, when under the direction of the Governor, can act as peace officers (Imagine riots/mass disturbances) but federal troops have no such powers. Seizing a person without legal authority is Kidnapping.
The FBI's HRT was formed when planning was started for the LA Olympics and it was at first assumed that any terrorism/hostage taking would be handled by various elite military units taked for the event. When the DOJ actually discussed with those unit commanders how every use of force would be investigated, treated as crime scenes, sworn statements taken and everything normally associated with law enforcement use of force, the military excused themselves from the job. The FBI then formed a team to do hostage rescue/high risk operations while working from the domestic law enforcement paradigm. I expect you'd see the military give the same answer today.
Power User
Posts: 2268
Subnational Constitutionalism
Reply #1024 on:
May 26, 2013, 07:40:09 AM »
Power User
Posts: 2268
SCOTUS term winds down
Reply #1025 on:
June 20, 2013, 07:36:33 PM »
The 2012 term is nearly done. Here is some discussion about decisions announced today. Ah, the build up to the ones everyone cares about...
Power User
Posts: 42556
J. Adams, Independence Day 1821
Reply #1026 on:
June 21, 2013, 09:35:08 AM »
"Wherever the standard of freedom and independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will recommend the general cause by the countenance of her voice, and the benignant sympathy of her example. She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself, beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom. The fundamental maxims of her policy would insensibly change from liberty to force."
--John Adams, Speech on Independence Day to the House of Representatives, 1821
Power User
Posts: 2268
DOMA is done
Reply #1027 on:
June 26, 2013, 10:10:58 AM »
Power User
Posts: 9483
Constitutional Law: A Political body over-rules a political body on Marriage
Reply #1028 on:
June 26, 2013, 10:12:02 AM »
If marriage means anything, marriage means nothing? Except for federal benefits. Now when we go to cut federal benefits it will be an attack on gays.
President Kennedy (Anthony Kennedy) decided the case, and had no trouble finding 4 liberals to go along with him.
Supreme Court strikes down key part of Defense of Marriage Act
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1029 on:
June 26, 2013, 10:14:51 AM »
I like your title: "Constitutional Law: A Political body over-rules a political body on Marriage"
With a few alterations, you could say the same about the Voting Rights Act.
Power User
Posts: 42556
Voting Rights Act decision
Reply #1030 on:
June 26, 2013, 11:43:50 AM »
Makes perfect sense to me to say that when the special circumstances justifying federal intrusion into the sphere of state sovereignty come to an end, so too must the intrusion. How is that a political decision?
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1031 on:
June 26, 2013, 12:06:02 PM »
The definition of the special circumstance is political. The question is about voting, the most political of all acts. Congress passed a law, and voted to continue on several occasions. The decision is down ideological lines. How is it NOT political?
Last Edit: June 26, 2013, 01:08:05 PM by bigdog
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Posts: 42556
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1032 on:
June 26, 2013, 01:45:42 PM »
And the definition here is one of Constitutional criteria; the failure to apply the C. is what would be political.
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1033 on:
June 26, 2013, 01:59:28 PM »
As is the case on this front, you and I will continue to disagree.
Power User
Posts: 9483
Bisexuals still left out of marriage by unconstitutional state restrictions
Reply #1034 on:
June 26, 2013, 03:32:04 PM »
First this: "And the definition here is one of Constitutional criteria; the failure to apply the C. is what would be political."
I agree with you, but what is political about getting it right with the constitution is that if J. Kennedy's political view happened to be the opposite, he would have gone with his political view instead of with the constitution. (My humble opinion based on his record)
The test is how disciplined each Justice is in adhering to the actual words and meanings in the constitution when it leads them to a vote or decision that is opposite of their personal view.
One interesting part of DOMA, it was often used as a rare example of conservatives using the federal government to dictate law onto the states. This was not true though because DOMA did not control marriage at the state level; it only defined federal benefits under federal law.
I still don't understand:
a) How is a law that adds gay-marriage to a group receiving special treatment and special benefits in law, to the exclusion of all others, any more constitutional than the old law?
b) How were gays discriminated against in any way that people who are long-term single are not? Why not, from a constitutional perspective, strike down all preferences and penalties for recognizing marriage instead?
c) What other gender distinctions are left that still need to be struck down?
Last Edit: June 26, 2013, 03:34:17 PM by DougMacG
Power User
Posts: 9483
Justice Scalia in Windsor dissent
Reply #1035 on:
June 26, 2013, 05:24:04 PM »
Justice Scalia in Windsor dissent:
"In the majority's telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one's political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today's Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent."
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Posts: 7842
The legal warriors involved.
Reply #1036 on:
June 26, 2013, 06:34:39 PM »
I don't get Ted Olsen.
Power User
Posts: 2268
Re: The legal warriors involved.
Reply #1037 on:
June 26, 2013, 06:40:37 PM »
Quote from: ccp on June 26, 2013, 06:34:39 PM
I don't get Ted Olsen.
He argued for individual freedom. And got it.
Power User
Posts: 9483
Re: The legal warriors involved.
Reply #1038 on:
June 26, 2013, 06:52:51 PM »
Quote from: bigdog on June 26, 2013, 06:40:37 PM
Quote from: ccp on June 26, 2013, 06:34:39 PM
I don't get Ted Olsen.
He argued for individual freedom. And got it.
Nothing says freedom like receiving federal benefits.
Power User
Posts: 2268
Re: The legal warriors involved.
Reply #1039 on:
June 26, 2013, 07:12:10 PM »
Quote from: DougMacG on June 26, 2013, 06:52:51 PM
Quote from: bigdog on June 26, 2013, 06:40:37 PM
Quote from: ccp on June 26, 2013, 06:34:39 PM
I don't get Ted Olsen.
He argued for individual freedom. And got it.
Nothing says freedom like receiving federal benefits.
Olson in oral arguments:
"It's an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It's a part of the right of privacy, association, liberty, and the pursuit of happiness."
"...marriage is a fundamental right and we are making a classification based upon a status of individuals...".
"...the case that's before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that - that marriage gives them."
"...this Court is the one that has said over and over again that marriage means something to the individual: The privacy, intimacy, and that it is a matter of status and recognition...".
"If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status."
"I respectfully submit that we've under we've learned to understand more about sexual orientation and what it means to individuals. guess the the language that Justice Ginsburg used at the closing of the VMI case is an important thing, it resonates with me, 'A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.'"
I'll add that I am surprised that you would turn on Olson. He is a good man who sees consistence with individual freedom and a right to marry. And that is why he argued the case. You do him a disservice.
Power User
Posts: 7842
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1040 on:
June 26, 2013, 07:41:37 PM »
Hi Bigdog,
""...the case that's before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that - that marriage gives them."
"right to privacy, liberty, association, spirituality" was/is not denied.
I am not sure anyone was interfering with this.
Beautiful stuff about love and romance aside the case was brought to avoid estate taxes (from what I read).
In any case the Court has decided.
I do not (and I don't think Doug was either) disparaging Mr. Olsen who is brilliant. But, he is such a crusader for gay marriage? Where did this come from?
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1041 on:
June 26, 2013, 09:23:59 PM »
It comes from his view of individual rights. His entire portion of the oral argument was based on this. There is literally nothing (based on a good reading the day after the case went to the USSC and a skim today) that Olson argues about property rights.
And thanks for the questions, ccp.
Power User
Posts: 42556
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1042 on:
June 26, 2013, 11:32:17 PM »
From the logic and language of today's holdings it seems clear to me that the court is going to declare that the Constitution compels gay marriage. This is wrong. As was the case in Roe, today's decisions deepen the divide in America as the quote from Scalia captures so well. Twice the people of California have voted for traditional marriage and twice the federal courts have denied the people's will-- this time through a subterfuge based upon standing. OF COURSE I get the general principle about denying standing to individuals, but here the State of CA refused to stand up for the voice of the people through the initiative process of California, a process which under the state's constitution is SUPERIOR to the executive and legislative branches. By denying standing to the parties whom brought the initiative in the absence of the State defending Prop. 8 the SCOTUS has liberated the state government from the control of the people from whom its powers derive.
Justice Kennedy's logic is result driven and as such is intellectually unsound, indeed, dishonest.
Power User
Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1043 on:
June 27, 2013, 07:56:06 AM »
As I noted earlier, as is the case on this front, you and I will continue to disagree.
Power User
Posts: 9483
Re: Issues in Constitutional Law, Government by the Elites
Reply #1044 on:
June 27, 2013, 09:58:01 AM »
Seeking greater clarity in disagreement... I agree Ted Olson (and perhaps BD and many others) see something noble and historic in the changing of marriage to included gay marriage.
The problem of course is that marriage is not marriage, but using the same word for a changed meaning. Marriage as it was, now heterosexual-marriage is (or was) the joining of a man and a woman to become husband and wife, to have and to hold, in sickness and in health, until death do they part (or something like that). Gays and singles have always had the right to wait, opt in, or opt out of that institution, with no legal difference in status than anyone else who waited, opted in, or opted out of that institution. Although half of marriages fail, the institution was so great that we needed to change it!
Marriage which meant heterosexual-marriage, is a unique union. Gay unions no doubt are capable of their own beauty and uniqueness. Do all heteros pursue or find lifelong happiness in hetero-marriage? No. Is it a good idea to encourage, through preferential laws, lifelong bonding for gays and lesbians who want and choose that too? Maybe yes. Should gays have all rights to associate, pursue happiness, bond, create unions, make legal designations? Yes. Will any change of words, meanings or definitions make gay marriage an identical bond to heterosexual-marriage? No.
The issue in Windsor was ESTATE TAXES. Does anyone remember that? Estate taxes on after-tax, accumulated wealth are wrong in a free society in the first place, and secondly they are discriminatory in the way they are levied. Did the noble work of forcing the political view of Anthony Kennedy along with 4 liberals on the nation change the fact that estate taxes are still discriminatory against everyone including me who did not get their status upgraded yesterday by this supreme political body? No.
"It's an individual right that this Court again and again and again has said the right to get married [man and woman b ecoming husband and wife], the right to have the relationship of [one man, one woman] marriage is a personal right. It's a part of the right of privacy, association, liberty, and the pursuit of happiness."
The Court has NOT said "again and again and again" that other relationships are identical to hetero-marriage. That law is new and was passed by 5 people out of 314 million, against the vote of the people and their elected representatives, no matter how right you or anyone else may think they got it. It was the estate tax law that was discriminatory in Windsor, and still is. Strike THAT down along with all other discriminatory taxation. MHO
Something creepy happened in Prop 8. The point of 'props' on ballots is to put the people over their elected representatives. The elected representatives then chose not to stand by the will of the people and the Court ruled those who did defend it lacked standing. So current law that is changing society was set by one judge.
Like other subjects in monarchies, we are lucky that our elites are benevolent and infinitely wise.
Power User
Posts: 42556
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1045 on:
June 27, 2013, 10:07:02 AM »
"Today the United States Supreme Court decided that the official proponents of California's Proposition 8 did not have the legal right to defend the case. In doing so, the high court overturned the judgment of the Ninth Circuit Court and ordered a dismissal of the case that appealed Judge Walker's 2010 decision. The Supreme Court did not consider the merits of the case and did not make a determination as to the constitutionality of Prop 8.
"Currently there is a stay on performing same-sex marriages that will remain in effect until the Ninth Circuit Court of Appeals removes it. This could occur within 25 days unless the proponents of Proposition 8 take further legal action.
"Governor Jerry Brown has directed the State's counties to begin issuing marriage licenses once the Court of Appeals lifts the stay. "The Governor is doing nothing different than when he failed to defend the people's vote while he was Attorney General," said Karen England, Executive Director of Capitol Resource Institute, "There is a difference between being defeated and being cheated. The Governor and Attorney General of California did not defend our vote. Proposition 8 and the voters of California were cheated not defeated.""
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Posts: 9483
Re: Issues in the American Creed, Constitutional Law, Scalia, Krauthammer
Reply #1046 on:
June 27, 2013, 01:04:28 PM »
Justice Scalia in dissent: "It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue herewhen what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it."
Crafty and others have this right in my humble layman's opinion, the Court leaped in front of the political process that was already moving their direction, ended the debate and forced the outcome. Just like Roe. What changed in either gayness or in the constitution regarding gayness in the first 224 years that the Supreme Court failed to find this right? Nothing, just a growing political acceptance. Like Obama who was against it before he was for it, the Court's majority said in effect, let's get out in front of this and put our names in the history books.
Another way to implement change is called consent of the governed. Even the abolition of slavery, the end of a slightly more severe discrimination than unrecognized marriage lacking federal benefits, went through the constitutional amendment process.
Charles Krauthammer appears to have been reading the forum:
"Overall, the decision, I think, will inevitably lead to the overturning of all the laws in all the states that disallow gay marriage and it is in the rational the Kennedy opinion. The Kennedy opinion says that the states are sovereign on the issue of marriage and thus the federal government cannot impose its definition in the states.
If Kennedy had stopped with that, it would have been a conservative decision, it would have been essentially been a way of saying status quo prevails, those states that allow it will allow it, and those will do otherwise. But he had a second rationale, it wasn't just the federalist one, and the second rationale was the reason that the federal government cannot discriminate in states in which it is allowed between a gay couple and a straight one is because it undermines the equal protection clause. So, it is a form of discrimination.
So the logic of that is why is it only discrimination if you discriminate against a couple, a gay couple, in a state that allows it like New York and not a discrimination in a state that doesn't allow, like Texas -- it doesn't even allow the marriage in the first place. So in this opinion, I think it is absolutely inevitable seed of overturning all -- essentially nationalizing gay marriage in a way that Roe nationalized and abolished all the abortion laws." (Special Report, June 26, 2013)
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Posts: 2268
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1047 on:
June 28, 2013, 08:03:10 AM »
From the article:
On Wednesday the Supreme Court struck down a key provision of the Voting Rights Act that determined which jurisdictions received increased federal oversight of their election procedures. Prior to the ruling in Shelby County v. Holder (summary here), states and counties with low voter turnout or registration during the 1960s, and a history of discriminatory election practices, needed to receive preclearance prior to changing any laws or regulations dealing with the electoral process. As the court warned in Northwest Austin Municipal Util. Dist. No. One v. Holder (2009), use of a coverage formula based on election results from 40 years ago raise
serious constitutional questions, culminating in the present rulings call for Congress to fashion a coverage formula grounded in current conditions rather than 40-year-old facts having no logical relation to the present day.
In this post, I address the present day turnout situation, making use of a nationwide individual-level database of turnout records, compiled by Catalist, LLC. Focusing on the gap between African-American and non-Hispanic white turnout rates, Ill show that recent state-level election results appear to back up the Courts assertion that black voter turnout is often not substantially lower, relative to whites, in southern states. However, the narrow focus on state-level figures hides the fact that higher black voter turnout may actually be associated with VRA-mandated redistricting, instead of a robust sea-change in Southern politics.
Power User
Posts: 2268
Public Opinion, the Court, and Justice Kennedy
Reply #1048 on:
June 28, 2013, 08:07:19 AM »
From the article:
But why would the Court respond to public opinion? Judges are not elected by the public. Isnt the purpose of a counter-majoritarian institution precisely that it does not follow swings in public mood? Still, political scientists have amassed an impressive array of evidence in favor of the hypothesis that the Court follows changes in public opinion. But why?
Power User
Posts: 42556
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1049 on:
June 28, 2013, 09:49:00 AM »
"recent state-level election results appear to back up the Courts assertion that black voter turnout is often not substantially lower, relative to whites, in southern states. However, the narrow focus on state-level figures hides the fact that higher black voter turnout may actually be associated with VRA-mandated redistricting, instead of a robust sea-change in Southern politics."
So the logic here is that the VRA worked means that it is still needed?
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