Author: Gerard Magliocca


Nondelegation and the Bank

I’m going to observe a “no individual mandate” posting policy for a while. That issue has been flogged to death and there’ll really be nothing new to say until the circuit courts issue their opinions.

So let’s try out something on the nondelegation doctrine.  Most people don’t know that the first major controversy where this argument was made involved the Second Bank of the United States.  Consider these portions of Andrew Jackson’s Veto of the Bank:

“The Government is the only ‘proper’ judge where its agents should reside and keep their offices, because it best knows where their presence will be ‘necessary.’ It can not, therefore, be ‘necessary’ or ‘proper’ to authorize the bank to locate branches where it pleases to perform the public service, without consulting the Government, and contrary to its will. . . . The power which this act gives to establish two branches in any State, without the injunction or request of the Government and for other than public purposes, is not ‘necessary’ to the due execution of the powers delegated to Congress.”

“It is maintained by some that the bank is a means of executing the constitutional power ‘to coin money and regulate the value thereof.’ Congress have established a mint to coin money and passed laws to regulate the value thereof. . . . But if they have other power to regulate the currency, it was conferred to be exercised by themselves, and not to be transferred to a corporation. If the bank be established for that purpose, with a charter unalterable without its consent, Congress have parted with their power for a term of years, during which the Constitution is a dead letter. It is neither necessary nor proper to transfer its legislative power to such a bank, and therefore unconstitutional.”

Both of these passages (especially the latter one) make a nondelegation claim. Indeed, a similar point was advanced by the lawyers for Maryland in McCulloch, but Chief Justice Marshall ignored the issue in his opinion.


Reflections on Ronald Reagan

As you may know, today would have been Ronald Reagan’s 100th birthday. February 6th is also my birthday, and when I was a kid I was naturally a big fan of the President.  When Reagan ran for reelection in 1984, I played him in a school debate and distinctly remember explaining supply-side economics by doing a hand motion as I said that cutting tax rates would raise more revenue. Indeed, I’d say that I think of myself as a conservative because of him, though readers of the blog know that my views are kind of quirky.

What was his secret?  As a historian, I can see that Reagan flip-flopped and compromised about as much as any politician.  Maybe he just came along at the right time — leaders are a product of circumstance to a large extent (Winston Churchill would not be the right guy to be Prime Minister today).

In Reagan’s case, there is an easy way to think about that question.  Suppose John Hinckley had succeeded.  In that case,  George H.W. Bush would have become President in 1981.  Do you think that the 1980s would have turned out in largely the same way in that scenario?  I sure don’t.


The Compulsory Sale of Gold

I have a draft article up about The Gold Clause Cases, and there is an issue there that has some bearing on the individual mandate debate.

In 1933, Congress took the United States off the gold standard.  As part of that reform, a federal statute was enacted that barred (with a few limited exceptions) private ownership of gold and required gold owners to sell what they had to the Treasury at $35 an ounce, which was considerably less than the old market price.  Put another way, Congress required people to engage in a commercial transaction against their will.

How is this different from the individual mandate?  First, the gold statute was enacted pursuant to Congress’s power “to Coin Money, and regulate the value thereof,” not under the Commerce Clause.  I’m not sure this matters much.  The Commerce Clause was more limited back then, so that may explain why the choice was made.  Second, these mandatory sales were to the Government, not to a private party.  That, it seems to me, matters more. A compulsory sale to the Government is much closer to a tax, which most people concede would be constitutional.  Third, you could say that possession of gold was activity in a way that self-insurance for health care is not.

What do you think?


John Bingham and Originalism

I’ve mentioned before that, in my ongoing research on a biography of John Bingham, I can find no evidence that he either offered or was ever asked for his views about the original understanding of the Fourteenth Amendment after he left Congress in 1873.  (He died in 1900).  Now this could be because the sources are incomplete.  In other words, maybe he did say something or was asked but those records are lost.

There is another possibility though.  Maybe people were just not interested in originalism as an interpretive methodology back then.  Thus, there was no reason to care about what he thought about his work.  I’m not sure, but it is curious that Bingham’s obituaries didn’t even mention his role in drafting Section One of the Amendment.  He’s more important to us as a constitutional thinker than he was to his contemporaries.

UPDATE:  Another possible explanation is that Bingham’s reputation was damaged by his involvement in the Credit Mobilier scandal, thus perhaps he was personal non grata.


Crackdown in Egypt

I posted this during the Iranian suppression of anti-government demonstrations in 2009.

“The first thought that comes to mind is a line from ‘I, Claudius’ where a Roman Senator responds to the tyranny of the Praetorian Guard with:  ‘I never fully realized how a small mind, allied to unlimited ambition and without scruple, can destroy a nation full of clever men.'”

Sadly, sometimes it’s still true.

UPDATE:  Good thing Joe Biden told us Mubarak is not a dictator.  I’m so relieved.


28 Months Later

Since I’m stuck at home while the ice storm pounds Indiana (1.5″ of sleet so far), let’s try out this hypothetical.  It’s inspired by the Hall article on the individual mandate.

Suppose this summer an epidemic breaks out that involves a contagious pathogen. The disease does significant damage to interstate commerce because people die, others miss work, and quarantines must be imposed in an attempt to contain the outbreak.  Within a year, though, a vaccine is developed by Pfizer and they get a patent.  Lots of people buy the vaccine and have it administered.  Lots of people do not.  They’re concerned about possible side-effects (including getting the disease).  Their failure to take the vaccine, though, means that the menace cannot be eradicated.

To end this plague once and for all, Congress passes a statute under its Commerce Clause authority that requires everyone who has not taken the vaccine to buy it from Pfizer and get their shots.  Compulsory vaccination at the state level has already been upheld by the Court, so there is no liberty interest involved.  The only valid constitutional claim is that Congress can’t compel activity or regulate inactivity under the Commerce Clause. Would (and should) this statute be upheld?  I think that the answer is yes.

This points up a big problem with the activity/inactivity distinction.  It does not take externalities into account.  In other words, no matter how much my inactivity (or the aggregated inactivity of the similarly situated) burdens interstate commerce, Congress cannot respond.  Now if you think that the hypothetical law is constitutional, then all you’re doing is judging the necessity of congressional action.  It’s not a firm line–it’s just a balancing test.  Now perhaps heightened scrutiny should be given to the regulation of inaction (that is one way to square the circle), but that’s not what the opponents of the individual mandate are arguing.


Wrong and Unconstitutional

“Just because something is wrong doesn’t mean it’s unconstitutional.”  You’ve probably heard that phrase before.  The problem is that it isn’t true.

In practice, when a consensus exists that something is very wrong courts do hold that unconstitutional if the issue is subject to judicial review.  That is the doctrine under the Cruel and Unusual Punishments Clause (“evolving standards of decency”), but it is also an accurate description of how the Justices approach due process and equal protection.  While the question of whether a consensus exists is often hotly contested, few people insist that a state action that is clearly awful is still constitutional.  Saying, as Justice Scalia sometimes does, that stare decisis forecloses an accurate interpretation that would permit intolerable laws is just a dodge.

Why do people conflate justice with the Constitution?  Because “The Constitution Can Do No Wrong.”  That’s the title of a paper that I’m writing.  In other words, the Constitution’s legitimacy cannot survive if folks think that evil laws are countenanced by the text.  They can accept the idea that the Supreme Court is incorrectly interpreting the Constitution. But there must be some platonic or “real” Constitution that is pure.  In this sense, we use legal fictions just as England does when it says that “The Queen Can Do No Wrong,” even though individual monarchs can make mistakes.


Unrest in Egypt

Three years ago I lived in Alexandria for a month and taught admiralty law.  Since my classes were at night, I spent most of the day wandering around the city and talking to people.  (There’s really nothing to do in Alexandria other than sit in cafes and look at the water.)  The poverty in the city was clear, but what even more striking was how angry folks were at the regime.  As an American living there, I assumed that people would want to talk to me about Iraq or President Bush.  Instead, everyone wanted to talk about the corruption of President Mubarak and especially his son Gamal.  There was a sense of desperation; of people who wanted to get out; who had no hope. This was in sharp contrast to my students, who were extraordinarily nice but clearly came from the elite in society that was connected to the State.  They had family vacation homes on the beach and luxury cars.  Life was good.

I came away from that experience with the strong feeling that the country would blow up soon.  I thought it would be when Mubarak died, but the time is now.  It would be tempting to say that the Great Recession is the cause.  The trouble is that the Arab world has been in a great recession for decades.


Filibuster 1 — Reform 0

There is an urban myth that Foghorn Leghorn was based on a Senator from Kentucky.  Whether that’s true or not, I say, I say, I say that the bipartisan reform package put forward in the Senate today is useless. All we got is a gentlemen’s agreement not to abuse the cloture rules and to allow more minority amendments to legislation.  Let’s see how long that lasts.

The more interesting aspect is the accord between the party leaders holding that sixty-seven votes are required to amend the Senate rules and that no effort will be made to change the rules through a ruling of the chair upheld by a majority (the “nuclear” or “constitutional” option).  That’s bad news for the cause of reform, because getting a supermajority to change the filibuster is really unlikely unless enormous pressure is brought to bear on the Senate by other institutions, as described in my Essay.