Month: June 2017

The Commerce Clause

The Commerce Clause

Before President Trump took office, I addressed the possibility of him abrogating treaties and agreements signed by President Obama.

Since President Obama often eschewed the formal process outlined in the Constitution and acted on his own, the accords he signed can also be unilaterally nullified by a subsequent President without offending the Constitution.

Since President Trump announced withdrawal from the Paris Climate accords; threatened actions of local state officials raise interesting constitutional issues.

Even though the President’s cancelation is not effective for three years, Governor Jerry Brown and a handful of other governors and Mayors with great bluster and fanfare have rushed to the nearest microphone to announce they are stepping into the fold and are going to defy the federal government and take action to comply with the Paris accords themselves.

Regardless of what one thinks of such opportunistic posturing, or the fact that they undermine the ability of the administration to negotiate an agreement more favorable to this nation’s economic well being, what does the Constitution say about their ability of States to promulgate rules and regulations that affect climate change contrary to the Federal Government? Can a handful of states impose their own climate control provisions?

Since modernly it is hard to imagine a scenario in which a State regulatory action would not affect businesses or transportation in other states we are dealing with the most boring sounding provision of the Constitution, but one of the most important: The Commerce Clause.

The provision is seemingly a simple one: it states that Congress shall have the authority to “regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.”

Originally the clause applied only to commerce between states (interstate). Through constitutional interpretation, however, it has been made applicable to activities that occur wholly within the borders of a state (intrastate) IF they AFFECT interstate commerce.

To truly appreciate the expansive scope of the Commerce Clause one only has to consider the famous case of Wickard v. Filburn. (Listen closely and you will hear the extremely perceptive and straight talking Senator Rand Paul regularly railing against the reach of this case.)

In Wickard, a wheat farmer growing wheat for his own family was fined for exceeding production regulations designed to stabilize the price of wheat during the Depression. The court upheld the sanction finding that his actions in growing wheat for his own family affected the price of wheat nationally and could, therefore, be regulated by Congress under the Commerce Clause power of the Constitution.

The court has further held under what they call the “Dormant” Commerce Clause doctrine, States are prohibited from passing regulations of activities that MAY affect interstate commerce even though Congress has not acted in the area.

So if Governor Brown and others of his ilk actually attempt to pass laws and regulations severely impacting certain industries, like fossil fuel production and those rules are found to affect interstate commerce they will be declared constitutionally invalid.

Its one thing to bluster in front of cameras but states can’t have fifty different sets of laws and regulations regarding industry and commerce. Much less individual cities. That is why the power over Interstate Commerce was placed in the Federal Government in the first place. And that is why the bluster of Brown and his acolytes is just that, bluster.

Seating Congressmen

Seating Congressmen

As someone who held elective office for over two decades, I would counsel those who choose to run for political office against knocking some rude, obnoxious reporter on his behind.  It’s not that you don’t want to do it; it’s not that some of them don’t deserve it; its not that that it wouldn’t garner a number of sympathetic votes, but over the long run it’s probably not the most prudent political move.

Gene Gianforte, a winning candidate for Congress from the state of Minnesota, recently apologized for body slamming a reporter.  The Sheriff of the county later served him with a misdemeanor citation.

Considering the fact that he may face prosecution for misdemeanor assault, may the House of Representatives refuse to seat the newly elected Congressman from Minnesota?

Qualifications to serve in Congress are specified in the Constitution.

To serve in the House of Representatives, a person must be at least twenty-five years old, a citizen of the United States for at least seven years, and an inhabitant of the state where he runs for election.  (Interesting side-note: a member of the House does not have to be a resident of the district he represents.)

Because those qualifications are express provisions in the Constitution, State Legislatures may not change them.  For example, efforts to impose Term Limits on Congressmen have largely failed because it would take a constitutional amendment to change the qualifications to serve.  And that is a very steep hill to climb.

Additionally, the Decision whether a person meets the qualifications to take a seat in Congress is left to Congress and Congress alone.

Article I, section 5, states that “each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.”

This has been held to mean it is Congress who gets to determine if someone seeking a seat meets the age, residence, and citizenship requirements.  And they may exclude them if, in their judgment, they do not.  Additionally, it there is a dispute about the number of votes or legality of votes, it is Congress, not state officials, who will determine who won the election.

There are, however, limits to Congress’ power to Exclude elected representatives.

In 1967, Adam Clayton Powell, a Congressman who had represented Harlem for decades was reelected, but due to allegations of misuse of funds and unbecoming conduct (we used to care about such things), the House refused to seat him.  The Supreme Court found that Congress’ Exclusion power was limited to the qualifications specified in the Constitution and ordered he be seated.

The question then became whether once seated May a Congressman be Expelled?

Article I, Section 5 also provides that “each house may . . . with the Concurrence of two thirds, Expel a member.”

However, although there has not been a case directly on point, most scholars believe the power to Expel is limited to a Member’s conduct After he is seated Not to conduct that occurs Before his term begins.

The bottom line is that The Congress has no power to Exclude Mr. Gianforte even if he is eventually prosecuted for assaulting the hapless reporter.  And it is doubtful they could Expel him given that his body slam happened before his term began.

Commerce Clause Part II, “The Switch in Time That Saved Nine”

Commerce Clause Part II, “The Switch in Time That Saved Nine”

Considering the arrogance and vitriol of rulings by the Federal Courts on President’s Trumps Travel Ban, one wonders if a major confrontation between the Executive Branch and the Federal Judiciary is brewing.

We have had such a confrontation before.

In 1935, Franklin Roosevelt had just been re-elected President by a landslide. His party dominated both houses of Congress, by large margins.

But he was worried.

He knew a reactionary Supreme Court was threatening to lay waste to programs he had, in his first term, steered through Congress to lift the nation out of the Great Depression.

He was right.

Over the next few months the Court found over a half dozen of Roosevelt’s programs unconstitutional. In private he accused the Supreme Court of adopting a “horse-and-buggy definition of interstate commerce.” And it appeared his new Social Security and National Labor Relations Acts would suffer the same fate.

Roosevelt, however, had a plan. A Court Packing Plan. Within two months of the inauguration, he struck. In a surprise move he asked Congress to authorize him to appoint a new justice to the Federal Courts for every justice over the age of seventy. The average age of the Justices was seventy-one. His plan would give him six new Supreme Court appointments and over forty new lower court Justices.

His proposal was and is constitutional. Nothing in the Constitution requires that the number of Justices be limited to nine. Nor does it specify any standards regarding qualifications. Only that the “judicial power of the United States be vested in One Supreme Court and such inferior courts as the Congress may from time to time ordain and establish.”

Over the next 6 months there was a very public battle. Almost every editorial writer in the country opposed the proposal and of course the legal community rushed to protect the so-called the “independence” of the judiciary.

Nevertheless, most everyone on both sides of the debate assumed Roosevelt’s plan would pass. Then, unexpectedly two important New Deal programs were upheld by the Court. One concerned the minimum wage and the other the National Labor Relations Board. The Supreme Court and one justice in particular had switched how they were ruling on cases involving Roosevelt’s programs. After the rulings, Congress dropped The Court packing plan.

Revisionist historians, many from the legal profession, as is their métier, argue the change in rulings was not a result of Roosevelt’s court packing plan. Their explanations are facile. The results were clear. From that point forward, No other New deal program was ever overturned by the Supreme Court. As Roosevelt said, he may have lost the battle but he won the war. My favorite biography of FDR is aptly titled “The Lion and the Fox.” He was both.

The results of the Court Packing Scheme and what commentators called the “Switch in Time that saved Nine” are noteworthy from a constitutional perspective.

The first is that regardless of later revisionist history, it was clear that the Supreme Court and at least some justices switched how they were ruling out of political expediency. They sensed that they had gotten severely out of step with the Public and a President sent to the Washington to get things done. And in this confrontation with the Executive Branch, they were going to ultimately lose. They switched their rulings to save their institution from change.

The second is not only did all of FDR’s New Deal Programs pass constitutional muster from that point forward, but for the next 60 years the Supreme Court never reversed one, not one, case involving an expansion of federal powers under the Commerce Clause. The result was the creation of vast administrative agencies and millions of pages of regulations that intrude on virtually every aspect of our daily lives.

We may be headed for a similar confrontation between the Executive Branch and the Federal Judiciary. Hopefully not, but if it happens, however it turns out, it can have extremely long term consequences for every one of us.

The Slants

The Slants

Simon Tam named his band “The Slants.” The name was intended to be a slur against people of Asian decent. Simon, himself a person of Asian descent, felt that by taking ownership of the derogatory term, he could drain it of its “denigrating force.”

When he applied for a trademark for the name, the Federal Government denied Tam’s request based upon agency rules that prohibited the registration of trademarks that might “disparage . . . or bring . . .into contempt or disrepute” any “persons, living or dead.”

Serious football fans know that there is a similar case pending in the federal courts concerning the trademark registration for the Washington Redskins Football team. The same agency suspended the registration of their trademark and the Redskins sued. In a similar vein, the students and alumni of one of our local high schools was affected when the State of California banned the use of the term “Redskins” for public school mascots.

The Supreme Court this week ruled against Political Correctness and Strengthened the case for the Washington Redskins. They held that the Federal Agency violated the Free Speech clause of the Constitution when they denied Tam his trademark.

Some types of speech are less protected than others. For example, Commercial Speech (ads for cars and such) does not have the same protections as Political Speech.

So-called government speech is not protected at all. For example license plates can be regulated as government speech. The court in the Tam case found, however, that Trademarks are private not government speech.

Under the Constitution, the Government may regulate the “time, manner, and place” of speech if the regulation is ‘Viewpoint neutral”. For example the government might be able to ban billboards of a certain size that advertised medical clinics under the rationale they were a distraction to drivers, but they could not ban billboards for medical clinics that performed abortions. Such a rule would not be Viewpoint Neutral.

The Tam case turned on the finding that Offensive speech, however repugnant is a Viewpoint.

The court found that “a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on the disapproval of the ideas or perspectives the speech conveys.” The government’s denial of a trademark because the government decided the term “Slants” was offensive was not Viewpoint Neutral.

And the fact the though the speaker may not mean to offend, but the audience, nevertheless would be offended is not enough to take the speech outside First Amendment protections. As the court stated: “The Government may not insulate a law from charges of Viewpoint Discrimination by tying censorship to the reaction of the speaker’s Audience.”

This language in the opinion is especially important in these times of rampant political correctness on the campuses of public colleges. When colleges, supported by public funds, seek to impose speech codes, ban certain speakers from campus or commencements, or punish the use of words and speech which college administrators or their minions deem “Hate Speech” they violate the Constitution.

“The danger of Viewpoint Discrimination”, the court opined, “is that the government is attempting to remove certain ideas or perspectives from a broader debate. The danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive.”

And finally they said, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

The bottom line is that the government attempted to ban a name of a band, the Slants, because the name might have offended a portion of the public. The speaker’s intent and the public’s reaction was irrelevant. The government’s denial of the trademark for the Slants was Viewpoint Discrimination and is prohibited under the First Amendment.

It now appears that if the name the Washington Redskins football team is changed someday because it is deemed offensive, it will be because the owners want it changed. It won’t be because the Government ordered it changed. That is as it should be under the Constitution.

As to local high schools around the state that changed the name of their mascots to conform with politically correct dictates from the State Government, it is unlikely anyone would challenge the law at this point. The constitution requires an actual case or controversy for the Supreme Court to throw out a rule. In those cases, it appears the government’s thought police won and the First Amendment lost.