Category: Congress

War and Emergency Powers

War and Emergency Powers

The prospect of war abroad and insurrection at home are not thoughts we welcome. However, I’m not sure they can much longer be avoided.


Abroad North Korea, ruled by a fat little despot with a bad haircut, has nuclear bombs, is developing missiles to deliver them and threatens to use the weapons against the United States and its allies.


In the Mid-East, Iran is also developing nuclear weapons and missiles and also repeatedly engages in provocations against United States forces in the region.


A miscalculation in either theatre could lead to a wider war.


At home, scenes from City streets like Saint Louis, Baltimore and Berkeley are cause for concern.   Police authorities, public institutions and even private homes of public officials are subjected to pre-planned violent attacks. The burning, looting and lawlessness resemble riots and insurrections more than protests.


It is worthwhile to pause a few moments and consider whether under the Constitution the powers of the Federal Government expand and individual rights shrink in time of war and insurrection?


It’s an important question because if there is a time when Constitutional restraints on the exercise of power by the Government are stretched to the outer limits it is in times of war. It is in times of national emergencies. Abraham Lincoln, like many of our leaders, had to ponder the ultimate question: “Is it possible to lose the nation,” he asked, “yet preserve the Constitution?”


The Framers of our Constitution were not fools. While they took pains to limit the powers of the federal government in order to avoid tyranny, they also knew there could be wars, rebellions, even insurrections and that if the government didn’t have the power to deal with such challenges, the country could be lost.


What are some of those powers?


Congress, as we know, has power to declare war by a simple majority vote of both houses. But what they also have the power to do is prepare the nation for war. They may pass Conscription laws, drafting private citizens to serve in the armed services. Congress may authorize the seizure of private property to aid in a war effort. And they may impose price controls as well as rationing of food, fuel and other materials.


Additionally, the Constitution guarantees the individual States a republican form of government and “protection against invasion.” And the Constitution empowers Congress to federalize militias and units of the National Guards to suppress insurrections that threaten republican forms of government and repel such invasions.


Congress also has the power under the Constitution to suspend the writ of Habeas Corpus in times of rebellion or invasion “or when the public safety requires it.” That has obvious implications for individual citizens detained by the government who wish to challenge the legality of their detention.


And While the Constitution has no express provision for the imposition of Marital Law, in fact it has been used numerous times in our history.


Additionally, by Executive order, the President may order the killing of American Citizens who wage war against the United States, both on foreign soil and actually within the jurisdictional borders of the United States. He may establish military tribunals to try and punish enemies of the United States. By Executive order and with the support of Congress, the President may establish internment camps for entire classes of citizens if it is deemed in the interest of National Security in times of war.


And lest there be any doubt about these powers, each of them has been used at some point in our history, and the Supreme Court has upheld the actions as Constitutional.


It is unknown if all those rulings would be the same to day, but if history teaches us anything it teaches us war is different, emergencies are different and what in peace time one believes would never happen can happen. And does happen.







Religious Tests Under the Constitution

Religious Tests Under the Constitution

Religious Tests Under the Constitution


California Senator, Dianne Feinstein, abetted by Senate Colleagues recently demeaned the Catholic faith of a nominee to the Seventh Circuit Court of Appeal.


The nominee, Amy Barrett, is a professor of law from Norte Dame. She has impeccable legal, intellectual and educational credentials and once clerked for Supreme Court Justice Antonin Scalia. At her confirmation hearing, she was subjected to an aggressive line of questioning concerning her religious beliefs as a practicing Catholic. In one particularly offensive exchange, Senator Feinstein scolded her and said, “When you read your speeches the conclusion one draws is that the dogma lives loudly within you.”


U.S. Bishops condemned the comments as “anti-Catholic bigotry” that reveal “a thinly veiled anti-Christian bias.” The President of Norte Dame, John Jenkins, said it was “chilling” to hear from a United States Senator that one’s religion might disqualify them from service as a federal judge.


Senator Feinstein’s motivation in examining a nominee’s religious views is no secret. She wants to know if the nominee agrees with the religious teachings of her church regarding the morality of abortion or homosexual activity. She wants to know if the candidate would uphold or overturn Roe v Wade (abortion) or Lawrence v. Texas (gay sexual activity) because of her religious beliefs. And if the nominee does not answer by expressly rejecting such religious teaching she risks having her nomination voted down and being denied the public office she seeks.


This is not the first instance in our modern history that the faith of individuals wishing to serve in public office has been attacked by Senators.


At one time not so long ago the questioning of judicial nominees by Chuck Schumer, Dick Durbin and others, became so egregious that a public information campaign was launched under the title “Catholics need not apply!” In reaction a coterie of Catholic Senators, led by Pat Leahy, proposed a Senate rule prohibiting inquiry into a person’s religious beliefs. The rule failed to come to a vote. Even, John Roberts, our current Chief Justice, at his confirmation hearing, was aggressively examined under oath about his Catholic faith. And only recently, Socialist Senator Bernie Sanders attacked Russell Vought, a nominee to the post of budget deputy director over his Christian faith.


Does such questioning of a nominee’s religious beliefs violate the Constitution?


Article VI, Clause 3 states, inter-alia, “. . . . all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to Support this Constitution, but no religious Test shall be required as a Qualification to any Office, or public Trust under the United States.”


While Senators may question any nominee on any subject outside the committee room, it is different when the person is placed under oath before being questioned. Placing them under oath moves the examination of their religious beliefs into the realm of a religious test which the Constitution forbids.


The founders were very familiar with religious oaths and tests. Oaths confirming or rejecting selected religious views were required of anyone seeking public office in merry old England as well as in many of the states at the time the Constitution was written. Those tests were used to protect state favored churches. For example in England an act of Parliament passed in 1672 required all persons who wished to hold public office to take an oath concerning the sacrament that effectively precluded Catholics from serving. Many of the States in pre-revolutionary America had similar provisions. For example the state of New York required an oath disavowing allegiance to a foreign prince, to wit, the Pope.


And Oaths meant something to the founders. To be bound by an oath was a solemn undertaking. The promise to keep one’s word had real meaning. To break a covenant either with God or the State was a serious breach of morality.


The inclusion of the “no religious test” phrase in the same sentence in Article VI as the requirement of an oath or affirmation to support or defend the constitution is significant. Because the phrases are separated by the conjunction “but” means that the “no religious test” clause is an exception to the oath to defend and support the constitution. It means government may not require an oath concerning religious beliefs as a condition of taking a public office or judgeship. And placing someone under oath and attempting to force them into making a choice of rejecting the teachings of their church or forfeiting the opportunity to take a public office or judgeship is a religious test and violates Article VI of the U.S. Constitution.







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.