A Publication of Hillsdale CollegeImprimis                               Over 2,000,000 Reader s Monthly                  ...
Hillsdale College: Pursuing Truth • Defending Libert y since 1844    	 The administrative state, of course,               ...
September 2011 • Volume 40, Number 9  hillsdale.eduFederalists who opposed the ratification       its legitimacy—its just ...
Hillsdale College: Pursuing Truth • Defending Libert y since 1844    to the states. These are the police powers,   Departm...
September 2011 • Volume 40, Number 9  hillsdale.edunot addressed by the District Court or           and prosperity of the ...
the express purpose of regulation. A tax      the fact that President Obama confidentlythat is merely a subterfuge for reg...
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Pi 2011 09 imprimis

  1. 1. A Publication of Hillsdale CollegeImprimis Over 2,000,000 Reader s Monthly September 2011 • Volume 40, Number 9The Constitution and LimitedGovernmentEdward J. ErlerProfessor of Political Science, California State University, San Bernardino Edward J. Erler is professor of political science at California State University, San Bernardino, and a senior fellow of the Claremont Institute. He earned his B.A. from San Jose State University and his M.A. and Ph.D. in government from Claremont Graduate School. He has published numerous articles on constitutional topics in journals such as Interpretation, the Notre Dame Journal of Law, and the Harvard Journal of Law and Public Policy. He was a member of the California Advisory Commission on Civil Rights from 1988-2006 and served on the California Constitutional Revision Commission in 1996. He has testified before the House Judiciary Committee on the issue of birthright citizenship and is the co-author of The Founders on Citizenship and Immigration.The following is adapted from a speech delivered at a Hillsdale College NationalLeadership Seminar on May 24, 2011, in Dallas, Texas.Two cases that are currently making their way to the Supreme Court maywell in the short term decide the constitutional issue of the reach and extent of thefederal government. At stake, in other words, is the future of limited government.And together, these two cases present an exceedingly odd situation. In the case of theArizona illegal alien law, the federal government is suing a state for constitutionalviolations; and in the case of the Patient Protection and Affordable Care Act—that is,Obamacare—more than half the states are suing the federal government, contestingthe Act’s constitutionality. It is indeed a litigious season. But the Supreme Court’s decisions in these two cases may not be the last word,because both of them present eminently political issues that will have to be decidedultimately by the American people. hill sdale.edu
  2. 2. Hillsdale College: Pursuing Truth • Defending Libert y since 1844 The administrative state, of course, Independent Payment Advisory Board. It always seeks to extend its reach and mag- is a commission of 15 members appointed nify its power. This is an intrinsic feature by the President, charged with the task of of a system where administration and reducing Medicare spending. This com- regulation replace politics as the ordinary mission has rule-making power which means of making policy. If there are to carries the force of law. The Senate, it is be limits to the reach of the burgeoning true, will have the power to override its administrative state, they will be politi- decisions—but only with a three-fifths cal limits imposed by the people in the majority. There are no procedures that ordinary course of partisan politics. The allow citizens or doctors to appeal the advent of the administrative state poses Board’s decisions. The administrative the greatest challenge to limited govern- state—here in the guise of providing ment, because it elevates the welfare of the health care for all—will surely reduce community—whether real or imagined— the people under a kind of tyranny that over the rights and liberties of individuals. will insinuate itself into all aspects of The task today is to confine the federal American life, destroying liberty by government to its delegated powers. The stages until liberty itself becomes only a minions of the administrative state seek to distant memory. destroy constitutional boundaries in their The advent and extraordinary suc- desire to replace politics with administra- cess of the Tea Party movement, with its tion. This is tantamount to denying that emphasis on restoring limited govern- legitimate government derives from the ment, has made this a propitious time consent of the governed, or that limited to rethink what the Framers meant by government rests on the sovereignty of limited government and how they under- the people. stood the relation- One of the −´ ship between limited Imprimis (im-pri-mis), proofs offered in [Latin]: in the first place government and the the Declaration of protection of rights and Editor Independence that Douglas A. Jeffrey liberties. It is rare to see King George was Deputy Editor a people acting spon- attempting to estab- Timothy W. Caspar taneously in a political Copy Editors lish an “absolute Emily Thiessen cause. The Tea Party Tyranny” over the Monica VanDerWeide movement must be Art Director American colonies Angela Lashaway regarded as a testament was the fact that “He Marketing Director to the independent has erected a multi- Fred Hadra spirit—the freedom- Production Manager tude of New Offices, Lucinda Grimm loving spirit—of the and sent hither Circulation Manager American people. swarms of Officers to Wanda Oxenger harrass our people, Staff Assistants Robin Curtis How did the and eat out their sub- Kim Ellsworth Framers understand Kathy Smith stance.” Obamacare Mary Jo Von Ewegen limited government? certainly fits the In the first place, description of the Copyright © 2011 Hillsdale College limited government The opinions expressed in Imprimis are not activities denounced necessarily the views of Hillsdale College. was not for the Framers in the Declaration. Permission to reprint in whole or in part is identical with small hereby granted, provided the following credit The number of regu- line is used: “Reprinted by permission from government, as the lations and the horde Imprimis, a publication of Hillsdale College.” Tea Party sometimes Subscription free upon request. of administrators tends to believe. The ISSN 0277-8432 necessary to execute Imprimis trademark registered in U.S. identification of limited the scheme are stag- Patent and Trademark Office #1563325. government with small gering. We have only government was the to think here of the position of the Anti-2
  3. 3. September 2011 • Volume 40, Number 9 hillsdale.eduFederalists who opposed the ratification its legitimacy—its just powers—fromof the Constitution. Limited government, “the consent of the governed.” This wasfor the Anti-Federalists, meant a turning point in world-historical con-government that was too weak to threaten sciousness: no longer would it be possiblethe rights and liberties of the people. to argue that sovereignty belonged to gov-Small government was, therefore, both ernments or kings—even if kings claimedthe necessary and sufficient condition appointment by divine right.of political freedom. Consequently, In order to form just government, thethe Anti-Federalists preferred a purely people delegate a portion of their sover-confederal form of government in which eignty to government to be exercised forthe states assumed priority. their benefit. The fact that only a portion The Federalists, on the other hand, of sovereignty is ceded by the people isregarded confederal government as an the origin of the idea of limited govern-attempt to do the impossible: to cre- ment. The people delegate only some ofate a sovereignty within a sovereignty. their sovereignty to government, andConflicting claims to sovereignty would what is not granted is retained by thebe debilitating and would render the gov- people—the people, for example, alwaysernment of the whole ineffective—as was reserve (and can never cede) the ultimatesurely the case under our first constitu- expression of sovereignty, the right oftion, the Articles of Confederation. revolution. The Declaration describes this The Framers of the Constitution right as “the Right of the People to alter orsettled upon a novel design for govern- to abolish” government when it becomesment, one that Madison said was “partly destructive of its proper ends—namely,national, partly federal.” For some pur- the protection of the safety and happi-poses, Madison explained, we will be one ness of the people. This right of revolu-people; for others, we will be multiple tion, as understood by the Founders, waspeoples. With respect to the national the right that secures every other right,features—those things that concern the because it serves as a constant remindernation as a whole—the federal govern- of the sovereignty of the people.ment will have sovereignty—complete and The Anti-Federalists never under-plenary power to accomplish the objects stood these revolutionary implications;entrusted to its care in the Constitution. they seemed to believe still that govern-Those objects are principally found in ments, not the people, were the ultimateArticle I, Section 8 of the Constitution. repositories of sovereignty, and that theNational defense, for example, is exclu- only way to secure the rights and libertiessively delegated to the federal government. of the people was to weaken the powerAnd since the exigencies that face nations of government—as if freedom existedin foreign affairs are unpredictable and only in the exceptions to governmentinnumerable, the federal government power. But as Madison wrote, “Energy inmust have sovereignty to fulfill this del- government is essential to that securityegated trust. And if that trust is to be against external and internal danger andfulfilled, the federal government must to that prompt and salutary execution ofalso be accorded the necessary means to the laws which enter into the very defini-achieve that end. If this entails large gov- tion of good government.”ernment—and today it surely does—then What limits the federal governmentlarge government must be compatible is not a limit on its power to act, but thewith limited government. Similar reason- limited range of objects entrusted to itsing applies to all the objects delegated to care—the enumerated powers of govern-the care of the federal government. ment. The powers not delegated to the The Declaration of Independence federal government nor forbidden to theprovided the authoritative statement of states in the Constitution (e.g., ex post factoAmerica’s political principles. For the laws, bills of attainder, and laws impairingfirst time, government was said to derive the obligation of contracts) are reserved 3
  4. 4. Hillsdale College: Pursuing Truth • Defending Libert y since 1844 to the states. These are the police powers, Department to intervene. And to the sur- which are generally described as the power prise of many, the Justice Department’s to regulate the health, safety, welfare and lawsuit did not seek to enjoin the law based morals of the citizens of the states. on racial profiling or equal protection or In cases of conflict, the supremacy due process, arguing instead that the law clause of the Constitution gives prefer- conflicted with the federal government’s ence to the federal Constitution and laws exclusive power to regulate immigration. made in pursuance of the Constitution. Perhaps someone had explained to the The supremacy clause was described Attorney General that “reasonable suspi- by Madison as an essential improve- cion” has been a part of our due process ment over the Articles of Confederation. jurisprudence for many years. It means Where there is no final authority to that a police officer can question on sus- arbitrate disputes between the federal picion that is less than probable cause; government and the states in this “com- reasonable suspicion, of course, must be pound Republic,” government will be something more than a hunch or a guess paralyzed. Madison confessed, however, or an intuition—it must be based on that the exact boundary between the articulable facts. In addition, the Supreme powers of the federal government and the Court in 1975 ruled that ethnicity could be state governments will be impossible to one of the factors determining reasonable determine in advance. The precise lines suspicion. The Arizona law, in contrast, of demarcation will have to be worked disallowed any use of ethnicity in deter- out in practice. The Supreme Court—and mining whether a person could be asked through the supremacy clause, the state about his immigration status. courts—will have to determine conflicts In United States v. Arizona, the on a case by case basis. Federal District Court judge enjoined the operation of the law because it intruded An illustration of the difficulties upon the federal government’s exclu- of drawing clear lines between federal sive power to regulate immigration and and state authority in our “compound control foreign policy. On appeal from Republic” is the Arizona illegal the District Court, one piece of evidence immigration bill, passed in April 2010. adduced by the Ninth Circuit Court of The law allowed police officers to verify Appeals that the Arizona law was an the immigration status of any person unconstitutional impingement upon the after a valid stop or arrest if there “is a federal government’s exclusive power to reasonable suspicion that the person is conduct foreign policy was the fact that unlawfully present in the United States.” the President of Mexico and the heads of Everyone remembers the hysteria that several other Latin American countries was unleashed when the bill passed. The had expressed severe criticisms of the President called the law irresponsible, bill both in the press and in amici briefs! saying that it threatened “basic notions Rarely do we encounter such humor in of fairness.” Others said the provision of court opinions, however unintended the the bill relying on “reasonable suspicion” humor might be. would mandate racial profiling; and some The Constitution, of course, does not of the more hysterical commentators even specifically grant control over immigra- insisted that the law was tantamount to tion to the federal government. Instead genocide. The Assistant Secretary of State Congress has power to “establish a uni- felt compelled to apologize to members of form Rule of Naturalization.” Control a Chinese delegation visiting the United over naturalization, however, seems to States for this egregious assault upon imply control over immigration—so human rights. One can only imagine uniform rules governing immigration the bemused looks on the faces of the would seem, by necessary implication, Chinese delegation. to fall within the scope of federal power. The President ordered the Justice The real question here—although it was4
  5. 5. September 2011 • Volume 40, Number 9 hillsdale.edunot addressed by the District Court or and prosperity of the State.” This exten-the Court of Appeals—was what power, sive power reserved to the states shouldif any, devolves upon state governments weigh heavily on preemption decisions.when the federal government fails to In this light, the Arizona law seems tocarry out its obligations. The District have been a clear exercise of the state’sCourt had candidly noted that the police powers, and any burden imposedArizona law was passed “against a back- on the federal government to have beendrop of rampant illegal immigration, incidental and insignificant.escalating drug and human traffickingcrimes, and serious public safety con- Obamacare is another issuecerns.” In the face of federal inaction or that tests our understanding of themanifest indifference, does Arizona have Constitution and the role of limitedthe reserved power—indeed the obliga- government. In federal courts, the Obamation—to secure the safety of its citizens? administration has defended the billThe President’s recent remarks that the as a legitimate exercise of Congress’border has been secured and that it is power to regulate commerce. At issuenow time to think of providing a path to here is the individual mandate thatcitizenship for illegal aliens is, in reality, forces individuals to purchase healtha statement of declared indifference to care insurance and carries a penalty forthe people of the State of Arizona and to failure to do so. Congress has the powerall the border states similarly situated. to regulate commerce; but does it, as here,Surely those states have the constitutional have the power to create commerce—i.e.,right, sustained by their police powers, to force individuals to engage in interstateto protect themselves through laws that commerce by purchasing health careare as unobtrusive as the Arizona law. insurance from private providers? AnotherBut in the District Court’s judgment, the way to look at the issue would be to askArizona law invoked “an inference of whether, under the commerce clause,preemption” because it placed an “imper- Congress has the power to regulatemissible burden” on federal “resources inactivity, i.e., the refusal to buy insurance.and priorities” and inevitably “will result This would indeed be a novel extensionin the harassment of aliens.” The burden of commerce clause jurisprudence andon federal resources stems from the fact utterly impossible to square with anythat there will be an increased number notion of commerce that was held by theof requests to verify immigration status. framers of the Constitution.This increased burden will in turn force In addition to the commerce clausethe immigration services to reallocate argument, the Obama administrationresources away from other priorities. maintains that the individual mandate isSuch is the logic of the District Court. authorized by Congress’ power to tax and These reasons seem trivial when com- spend for the general welfare. Congress’pared to the real and pressing dangers power here is extensive. Over the years,that Arizona faces as a result of federal the Court has generally deferred toinaction and indifference. Surely this is Congress in determining what constitutesnot what the Framers had in mind when the general welfare. This is proper, sincethey crafted the supremacy clause, while Congress represents the nation and whatat the same time reserving to the states promotes the general welfare is essentiallythe essential responsibility of protecting a political question. If Congress deter-the safety and welfare of their citizens. mines that a universal health care systemMadison wrote in The Federalist that “the serves the general welfare, then the courtspowers reserved to the several States will will not interfere. The power to “lay andextend to all the objects which, in the collect Taxes,” however, has been subjectordinary course of affairs, concern the to judicial scrutiny. While Congress maylives, liberties and properties of the peo- tax for the purpose of raising revenue,ple, and the internal order, improvement, it may not use the power of taxation for 5
  6. 6. the express purpose of regulation. A tax the fact that President Obama confidentlythat is merely a subterfuge for regulating assured the American people that thereactivities will not be allowed, although would be no new taxes to support thea tax that only incidentally regulates medical insurance scheme, no amountbehavior will pass constitutional muster of administrative indirection should beas long as the principal purpose is raising allowed to convert a penalty into a taxrevenues. for raising revenue. This is not a revenue Madison argued that the general wel- raising measure and therefore cannotfare clause was actually a limitation on be justified under the general welfarethe federal government. Taxes could be clause.”imposed and money spent only for the But here is a somber thought: If,general welfare—meaning the welfare instead of using the individual mandate,of the whole of the American people. It Congress had relied on its general revenue-is true that Alexander Hamilton had a raising powers, under current Suprememore extensive view of the general wel- Court doctrine, it is almost certain thatfare clause, but throughout much of our Obamacare would be constitutional. Ithistory Madison’s view prevailed. Today, would be an example of Congress spend-however, the idea that the general wel- ing money for the general welfare.fare clause was ever intended as a limiton the reach of government has been In conclusion, the only certaindestroyed by the progressive architects method of defeating universal healthof the welfare state. care and other cases of federal over- In any case, if the individual mandate reach—as it appears that the Americanis to be defended under the general wel- public desires to do—is political opposi-fare clause, what the plain language of the tion. A political party dedicated to genu-bill calls a penalty must be regarded as a inely limited government—not smalltax for the express purpose of raising rev- government—is an urgent political task.enue. If the penalty can be sold as a tax, Whether the Tea Party is up to this taskthe Obama administration argues, then remains to be seen—but it is probablyObamacare is authorized by the general our best hope. The Tea Party will have towelfare clause. In the Florida District learn, however, that the task today is notCourt case, the Justice Department to weaken the power of government—made the wholly tendentious—not to say it is to confine the government to theabsurd—argument that since the IRS was exercise of its delegated powers and tocharged with administering the individ- restore to its full vigor the partly nation-ual mandate and collecting the penalties, al, partly federal form of governmentthis was sufficient to convert a penalty that was the legacy of the Founders. ■into a tax. But as Florida District CourtJudge Roger Vinson remarked: “Besides

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