Thursday, June 28, 2012


Today's Supreme Court decision, of course, was mistaken in a number of respects, but the most serious problem with it is that the Court failed to correct certain precedents that, it had become clear, were erroneous. In this post, however, I will only object to an idea expressed by Chief Justice Roberts in the opinion -- not an original idea, on his part, but rather one that is at the center of what is wrong with the existing relationship between the Supreme Court and Congress.

The Chief Justice wrote:

"The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to 'make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.' Art. I, §8, cl. 18. We have long read this provision to give Congress great latitude in exercising its powers: 'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.' McCulloch, 4 Wheat., at 421."

This is an excellent example of the mistakes that can be made when judges receive precedents -- even the most venerable, best established precedents -- without adequate caution. In the first place, I do not think that either the "necessary and proper" clause or this quote, which is meant to explain it, can correctly be understood as extending the reach of the federal government (regardless of what politicians and justices have managed to actually reach by invoking them); instead, they strengthen its grip. That clause does increase what the federal government is empowered to do (other than so far as it is understood as the equivalent of certain common law maxims of interpretation, which were similar to it, in which case it only guarantees those implied powers), but only as a means of carrying other powers into effect. It does not authorize any new "ends," except for intermediate ones. Secondly, so far as the quote from McCulloch suggests otherwise, it is contrary to the Constitution and illegitimate. The body of "constitutional law" is not like the common law -- it is simply a tool for ascertaining the true meaning of the Constitution and giving it its proper effect. A rule of this "case law" that is contrary to the Constitution must be void for the same reason that Marshall explained that a statute that is contrary to the Constitution must be void: because if the two are inconsistent, one or the other must give way, and the Constitution, which is the Supreme Law of the Land, does not give way. As Edward Coke said of Magna Charta, our Constitution is such a fellow that he will have no sovereign.

"Our permissive reading of these powers is explained inpart by a general reticence to invalidate the acts of the Nation’s elected leaders. 'Proper respect for a co-ordinate branch of the government' requires that we strike down an Act of Congress only if 'the lack of constitutional authority to pass [the] act in question is clearly demonstrated.' United States v. Harris, 106 U. S. 629, 635 (1883). Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

To some extent, it is. The Constitution, if understood and applied faithfully, settles certain policy questions and protects us, to some extent, from the consequences of bad political choices by marginal or temporary majorities. However, we will not have the benefit of this protection so long as the Supreme Court persists in its policy of giving its blessing to Congress' exercise of unconstitutional powers.

Also, respect for a co-ordinate branch of the government, as the following paragraph of Chief Justice Roberts' opinion somewhat recognizes, does not involve ignoring any violation of the Constitution, or any practice of deferring to Congress other than when the unconstitutionality of the act "is clearly demonstrated," if a "clear" demonstration requires anything more than a satisfactory demonstration that the act is, in fact, unconstitutional. I might tend more to agree with such an application of the Court's respect for Congress if there were any reason to believe that Congress has actually developed and maintains something stating its own theory of the extent and nature of its constitutional powers, but based on what I know of Congress -- and I admittedly do not have an intimate, internal knowledge of Congress and its members and its operation -- Congress, as an institution, has no such theory or understanding of the Constitution, much less one that it treats as binding on itself, and certainly not one that persists, more or less intact, from Congress to Congress. Why should the Court treat with any respect a judgment which no recent Congress has actually made, concerning the true meaning and effect of the Constitution on its own powers? And if it does, is it not in doing so deciding that it is better for Americans to be bound by unconstitutional laws than for Congress to be bound by valid ones? Whatever the basis for such a policy decision might be, it is not of the Constitution.

"Our deference in matters of policy cannot, however, become abdication in matters of law. 'The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.' Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed."

That, for the most part, is true, but it again uses this language of "respect for Congress' policy judgments," which is only appropriate so far as those policy judgments concern subject matter and powers committed to the control of Congress, either explicitly or fairly implied, by the Constitution. Roberts rightly acknowledges that this respect may not extend so far as to cause the Court to ignore the limits of Congress' constitutional powers, but I think that by casting "respect for Congress' policy judgments" as a principle of its own, he wrongly -- and possibly unintentionally -- prepares the Court for the short-circuiting of its own consideration of the extent of Congress' powers, and to resolve questions that are not immediately clear with deference to Congress rather than by inquiring, reasoning, and arriving at a plausible conclusion concerning what power or rule was actually adopted and incorporated into the Supreme Law of the Land. Maybe this is how he was able to overlook the fact that certain uses of the powers of Congress are more in the nature of a regulation or a rule of conduct than a justifiable application of those powers (according to their own nature and internal logic), such as the use of the taxing power to fine certain courses of conduct, without designating that conduct as an offense or other form of unlawful conduct -- and without due process of law.

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