Tenth Amendment Center: McCulloch v Maryland Supreme Ct Did NOT Support Expansive Federal Power

This article at the Tenth Amendment Center discusses the McCulloch v Maryland case. Harvard Law Today earlier this year said that the 1819 case paved the way for the modern administrative case. But Constitutional scholar Rob Natelson here says that this was not the intent Chief Justice John Marshall’s opinion at the time, but rather that the case in point was a much narrower ruling.

Why McCulloch v. Maryland – now 200 years old – is not a “big government” manifesto

…There are at least two well-grounded reasons Marshall’s opinion in McCulloch is important. The first is that it clarified some basic facts about the constitutional system.

McCulloch explained that the people, not the states, created the federal government and granted its powers. As a young lawyer, Marshall had been a leading spokesman for the Constitution, particularly in Virginia. In McCulloch, Marshall explained—as James Madison had before him—that the Constitution’s legal force comes from approval by popularly-elected state ratifying conventions meeting from 1787 through 1790.

It follows that the first rule of constitutional interpretation is the understanding of the ratifiers. It is not, as some conservatives say, the “intent of the framers” or “the original public meaning.” Nor should we, some liberals contend, construe the Constitution through “evolving social standards” or novel interpretive theories.

Moreover, McCulloch clarified that under the Constitution state and federal governments operate fairly independently of each other. Neither level of government should try to dictate to the other nor obstruct the other’s core functions. Because Congress designed the national bank to assist Congress in carrying out its core functions, McCulloch voided a state attempt to tax the bank.

The second reason McCulloch is so important is Marshall’s use of established law and legal methods—rather than tailor-made theories—for interpreting the Constitution. This is noteworthy in his discussion of whether the national bank was valid under the Constitution’s Necessary and Proper Clause.

The Constitution lists the powers of Congress. These include such functions as national defense, borrowing money, taxing, postal system, the monetary system, and regulating foreign and interstate commerce. In addition to these explicit items, the Constitution adds that “The Congress shall have Power . . . To make all Laws, which shall be necessary and proper for carrying into Execution” its listed powers.

The Constitution list of explicit powers does not include chartering a national bank. In McCulloch, the court had to determine whether chartering the bank was “necessary and proper” to carrying out Congress’s explicit powers.

Marshall, like other lawyers of his time, was familiar with documents by which one person or group granted authority to another—documents such as powers of attorney, wills, trust instruments, and statutes. The phrase “necessary and proper” was common in such documents.

As used in the Constitution, the “necessary and proper” phrase meant that in addition to the functions explicitly listed, the person or group receiving authority could exercise incidental powers. These were lesser powers intended to accompany the listed ones. Lesser powers usually were incidental if they were customary or necessary to carrying out the listed functions…

…In the 20^th century, the Supreme Court cited McCulloch to uphold unprecedented federal spending and regulatory programs. Law school constitutional law courses sometimes treat McCulloch the same way.

But with all respect, this approach is the product of historical ignorance. Those who depict McCulloch as a “big government” decision generally are unaware of how the Founders understood the Necessary and Proper Clause and how the bank debates of 1791 focused on the details of incidental powers law. They usually are unaware of critical changes in the English language—such as the fact that when Marshall’s used the words “convenient”and “appropriate” they embodied narrower and tougher standards than they do today. Without that kind of historical perspective, McCulloch is a difficult case to understand…

Click here to read the entire case at the Tenth Amendment Center.

Free Thought Project: Bill Would Bar State Enforcement of Fed. Red-Flag Gun Laws

A Senate bill has been filed in the Oklahoma Senate which would prohibit that state from enforcing any federal “red-flag” laws. The so-called “red-flag” gun laws are widely seen as unconstitutional. Current trends toward both immigration sanctuaries and Second Amendment sanctuaries harken back to the Nullification Crisis of the 1830s. The summary below comes from the Free Thought Project.

Landmark Bill Would Bar State from Enforcing Federal Red-Flag Gun Laws

A bill prefiled in the Oklahoma Senate would prohibit state enforcement of any federal “red-flag” laws, setting the foundation to nullify any such laws in practice and effect.

Sen. Nathan Dahm (R-Broken Arrow) filed Senate Bill 1081 (SB1081) for introduction in the 2020 legislative session. Under the proposed law, the Oklahoma legislature would “occupy and preempt the entire field of legislation in this state touching in any way federal or state extreme risk protection orders against or upon a citizen of Oklahoma to the complete exclusion of any order, ordinance or regulation by any municipality or other political subdivision of this state. “ In effect, only the Oklahoma legislature could pass any type of so-called red-flag law effective in the Sooner State.

The legislation also would declare that any federal red-flag law “which would infringe upon a citizen’s Constitutionally-protected rights including, but not limited to the right to due process, the right to keep and bear arms and the right to free speech, shall be null, void, unenforceable and of no effect in the state of Oklahoma.”

These declarations would have very little effect in practice, but SB1081 includes provisions that would make federal red-flag laws nearly impossible to enforce in Oklahoma. The proposed law would prohibit any Oklahoma agency or any political subdivision from accepting any federal grants to implement any federal statute, rule or executive order, federal or state judicial order or judicial findings that would have the effect of forcing an extreme risk protection order against or upon a citizen of Oklahoma.

It would also make it a felony offense for any individual, including a law enforcement officer, to enforce a federal red flag law. In effect, this would bar state and local police from enforcing a federal red-flag law.

EFFECTIVE

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states and localities can nullify in effect many federal actions. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Enforcing a red-flag law would be no different.

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.

Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state refusing to cooperate with federal gun control would make federal gun laws “nearly impossible” to enforce.

“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in the implementation and enforcement of a federal red flag law, states and even local governments can help bring these unconstitutional acts to their much-needed end.”

LEGAL BASIS

The state of Missouri can legally bar state agents from enforcing federal gun control. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.

Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”

WHAT’S NEXT

SB1081 will be officially introduced and referred to a committee when the Oklahoma legislature convenes on Feb. 2.

Tenth Amendment Center: The Presidency is Too Powerful

The following article was written by Trace Mitchell at the Foundation for Economic Education, but republished at the Tenth Amendment Center. In The Presidency is Too Powerful Mitchell lays out an explanation for how President after President has drawn more power to the office. And his analysis there is correct – Presidents have sought to increase the power of the office. However, after giving an example of President Trump’s rhetoric over China Mitchell says “That is how we got to where we are today.” This, unfortunately, ignores the fact that Congress on its own initiative has shifted more power to the executive over time through their desire to escape responsibility. Mitchell touches on it when he talks about Congress delegating their power, but he only puts it in terms of a response to Presidential rhetoric. Congress has accomplished this escape from culpability by unconstitutionally transferring their power and duty to pass all laws to various administrative agencies in the executive. The executive branch now writes administrative law which is enforced by executive agents and judged in executive administrative courts.

This problem was being noted as early as 1944 in a Virginia Law Review article titled “Administrative Law: A Threat to Constitutional Government?” There are times when Congress finds itself at an impasse over certain issues. They know that an action must be taken, but it get done in Congress because of political interests. Sometimes they are able to pass this off to independent committees which decide the outcome and Congress decides that they will vote yea or nay on the committee’s decision without subjecting it to further debate. Other times, though, Congress will simply pass a law that authorizes an executive agency to create the laws covering an area. Congress wins because they can tell their constituents that they acted to resolve an issue, but any negative outcomes can be blamed on the executive agency. Representatives are happy because they can’t be held accountable. Presidents are happy because the executive branch has more power. Citizens lose doubly.

An excerpt from The Presidency is Too Powerful:

Even if Trump does not have the power to directly order all U.S. firms to cease trade with Chinese corporations, the discretionary power held by the executive branch is strong—so strong that he may be able to achieve a similar outcome through other means. He could impose massive tariffs so large they essentially act as de facto prohibitions. He could threaten noncompliant firms with harsher regulations or enforcement that is more aggressive. He may be able to achieve his goals indirectly even if he cannot achieve them directly.

Executive Overreach

Either way, rhetoric like this shifts the Overton window further and further. We begin to accept things that seemed entirely unacceptable not long ago. We become desensitized. The dividing lines between the different branches of government become increasingly blurred. That is how we got where we are today.

Executive overreach is not a new phenomenon, but it does have an accumulative effect. Each president is able to get away with a little bit more, typically under the guise of an “emergency.” Slowly they amass greater and greater power. Slowly the concept of strictly limited, enumerated powers deteriorates. While each president since the founding has attempted to increase the scope of their power, this behavior took a new form after Woodrow Wilson.

Wilson was able to take advantage of an overly ambitious president’s best friend: war. As FDR’s Attorney General Francis Biddle said, “The constitution has not greatly bothered any wartime president.” Wilson began by going after one of the most fundamental constitutional guarantees: freedom of expression.

After being inaugurated into his second term, Wilson asked Congress to give him the authority to censor the press during times of war, to criminalize the promotion of America’s enemies, and to combat literature that was “of a treasonable or anarchistic nature.” Congress listened and passed the Espionage Act of 1917, which gave Wilson almost everything he asked for except the ability to censor the press. However, just a year later the Espionage Act was amended with the Sedition Act of 1918, which provided for more government surveillance of its citizens and further limited speech that was viewed as detrimental to the government. Wilson finally amassed most of the power he wanted.

Encroaching Power

Franklin D. Roosevelt continued this legacy of expanding executive power during times of distress. In fact, during his first week in office, FDR used the Trading with the Enemy Act of 1917—a law granting the president vast economic powers during times of war or national emergency—to order a “bank holiday” in order to prevent bank runs. This was particularly aggressive because the act did not give him the power to regulate the domestic economy. Since FDR, executive power has continued to expand and grow, increasing more and more under each successive president. Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush Sr., Clinton, Bush Jr., Obama, and Trump have each used and built upon the powers seized by their predecessors.

The Founders were afraid of this exact scenario. James Madison, often referred to as the “Father of the Constitution,” wrote that power “is of an encroaching nature” and thought “it ought to be effectually restrained from passive the limits assigned to it.” To combat this tendency, he created a system of checks and balances where each branch has significant authority over their domain and can limit the power of the other branches. Or, in the words of the great modern philosopher Kanye West, “No one man should have all that power.” However, Madison did not predict that branches would delegate their power to the extent they have with legislation like the Espionage Act or the International Emergency Economic Powers Act.

Click here to read the entire story at the Tenth Amendment Center.

Tenth Amendment Center: How Our Constitution Was Supposed to Work

Constitutional scholar and co-author of The Origins of the Necessary and Proper Clause and The Original Constitution Rob Natelson has written an article based on information from newly re-published essays by founder Tench Coxe about some limitations on federal power that were known and spelled out by the founding fathers.

How our Constitution was supposed to work: new evidence comes to light

Judging by the promises of presidential candidates, you might think the federal government is designed to fix whatever ails us: health care, education, crime, infrastructure, the common cold.

But the Constitution doesn’t grant the federal government such unlimited authority. And neither Congress nor the presidency nor the courts were created to exercise it.

The Constitution fashioned the federal government to address a limited number of activities, contained in the document’s “enumerated powers.” The remainder were exclusively the domain of state and local government and the private sector. This system of divided authority is called “federalism.”

…Despite the Constitution’s federal structure, many in the founding generation didn’t think it limited the central government sufficiently. They wanted to be able to govern themselves in their own states and local communities. They didn’t want Congress or federal judges or officials imposing uniform policies on the entire country.

These members of the founding generation had good reasons for fearing centralized power. They knew their history: Concentrated power usually grows into oligarchy or dictatorship. They questioned whether Congress would have the information or judgment necessary to tailor laws for every nook and cranny in the nation. They recognized that when government remained local, citizens enjoyed more say in how it was run. If someone was severely disaffected with state policies, he always could move to a different state.

This option of moving away is a vital safety valve. Without it, there is no practical way to vent anger among persistent political losers. Anger gives rise to hate: Hate fosters divisiveness and repression and, and in extreme cases, civil war.

Indeed, modern federal efforts to impose uniform “solutions” on the entire nation may be a leading cause of today’s toxic political environment.

…Coxe’s essays itemize many of the activities over which the Constitution granted the federal government little or no jurisdiction. Among them were social services (i.e., care for the poor and health care), education, religion, real estate, local businesses, most roads and other infrastructure, nearly all criminal law matters, and most civil court cases.

When people believed government should regulate those areas, the Constitution mandated that they turn to state and local government. No fleeting national coalition would be permitted to dictate to the entire country…

Click here to read the entire article at the Tenth Amendment Center.