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Viva National League of Cities v. Usery
As it tends to do when not in political control in Washington, the Left has rediscovered the power of state sovereignty. That doctrine is being used to resist the new administration’s federal immigration policy in a way that’s identical, in formalistic terms, to the Right’s tactics during the early days of the Obama administration—albeit in service of an opposite outcome.
Justice Scalia and Congress’s Power to Regulate Immigration
In a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various areas. But the positions that Justice Scalia took in many of these cases – including a prohibition on state affirmative action, limitations on regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity – could have been defended on originalist grounds. One area, however, where there is little to be said for Justice Scalia’s position has largely been ignored: the federal government’s power over immigration. In Arizona v. United States, Justice Scalia started strong, initially questioning the federal…
The Constitution Created an Expansive, not a Strictly Limited Federal Government
In response to: The Constitution’s Structural Limitations on Power Should Be the Focus of the Bill of Rights
The nation's founding documents displayed under subdued light at the National Archives, Washington, D.C. Image: Library of Congress Prints and Photographs Division Washington, D.C. LC-DIG-highsm-15688 (digital file from original)The revolution of 1787-1791 overthrew a constitution that strictly limited the federal government in favor of one with general welfare and necessary and proper clauses that allowed the federal government to absorb state powers over time. It also tossed out the dogma of separation of powers in favor of a more sophisticated balance of powers. When the states proposed to put that dogma back in the Constitution by Amendment and James Madison convinced the House of Representatives to include it in its Amendment package, the Senate, with its extensive executive powers, disagreed to it.1 Almost all Federalists claimed the Constitution was…
More Responses
There is much to commend Professor Garry’s essay. He is eminently correct in saying that the Constitution contemplated a limited government. Whether it adhered to a “limited government model” is a different issue. What is more than curious, however, is Professor Garry’s statement that the “the overall scheme of the original Constitution” is primarily concerned with…
Patrick Garry’s essay “The Constitution’s Structural Limits on Power Should Be the Focus of the Bill of Rights” contains many valuable insights. In particular, it re-affirms the proposition – lost for many years but perhaps gaining some new currency – that the so-called “structural” provisions of the Constitution are, and were intended to be, not…
Sam Tanenhaus’ Calhounian Discipleship
I write from the Washington, DC suburbs, now quivering in fear from the violence of the last few weeks, from madmen, our police, and our Redskin-baiting politicians. But a Canadian immigrant (and I don’t mean Mark Steyn) relieves some discontent while producing even more.
In furious rage against the Cruz-sade, this weekend’s New York Times regular op-ed page columnists sputter about President Obama resorting to sinking aircraft carriers; Washington DC Hunger Games workouts led by Paul Ryan; and our sick politics that has produced gerrymandered red-lite districts. But there is an adult in the room, Times writer-at-large and sadly, former Book Review Editor Sam Tanenhaus, who gets to the heart of the crisis in his op-ed, “The Benefits of Intransigence.”
NFIB v. Sebelius: A Case About Sovereignty
I have spent the last several days reading and re-reading the opinions in NFIB v. Sebelius, hoping to find a unifying “theme” to organize all my thoughts about the case before posting about any of them. This exercise has left me with a deeper appreciation of how blogging differs from other forms of expository writing; a headache; and a vague sense that NFIB v. Sebelius is in part a case about sovereignty (as I had thought when I submitted this amicus brief (link no longer available) to the Eleventh Circuit).
We Should Accept the Supreme Court’s Invitation to Check and Balance Washington, D.C.
Rarely does a unanimous Supreme Court announce a sea change in the balance of power between the states and the federal government. But nearly a year ago, on June 16, 2011, the Court did just that. In Bond v. United States, the Court effectively extended an invitation to strategic lawmaking and litigation under the Tenth Amendment. Constitutionalists should accept the Court’s invitation.
The unanimous opinion penned by Justice Anthony Kennedy could signal the beginning of the end of the federal government’s inexorable expansion into areas the Tenth Amendment reserves exclusively to state and local government, such as local criminal law, health care and firearms regulation. With unusual clarity, the Court ruled our system of dual sovereignty denies “any one government complete jurisdiction over all the concerns of public life.”[1] It underscored that the primary reason for dividing power between the states and the federal government is to protect individual liberty; observing, “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity . . . Federalism secures the freedom of the individual.”[2]
In view of these principles, the Court ruled that individual citizens can sue the federal government when it violates the Tenth Amendment. But the Court went even further than that—it declared that the states themselves may advance the goals of federalism through “positive law.” Bond expressly declared that our system of federalism empowers “[s]tates to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.”[3] And all of this took place within the context of a case that challenged a federal law stemming from an international treaty on chemical weapons—a context in which federal power would otherwise seem to be at its zenith under modern case law.
