Tuesday, December 28, 2010

The United States Constitution: The Tenth Amendment and Federalism Post 1


    The best study of the Tenth Amendment and Federalism and the substantial collapse of it over the past hundred years is being pursued by the Texas Public Policy Foundation (TPPF).  The TPPF Center for Tenth Amendment Studies published a study titled, Reclaiming the Constitution: Towards An Agenda for State Action in November, 2010. The authors are Ted Cruz and Mario Loyola.  The authors’ qualifications, which are exceptional, are at the end of this essay.  The best way to learn about the Tenth Amendment and Federalism is to read the study I’ve just listed, but I will try to summarize the most salient features here, leaning upon the source heavily.  You can find the TPPF at www.texaspolicy.com.
   The first case involving federalism is the famous Gibbons v. Ogden, 1824.  Chief Justice John Marshall wrote that the power spelled out for Congress in Article I, Section 8, Clause 3 applies to navigation and commerce that crosses state lines.  The Constitution says that Congress has the power to regulate commerce “among the several States, with foreign nations, and with the Indian tribes”.  This power is specific; all powers granted to Congress are specific and limited in Marshall’s understanding of the Constitution, just as Madison and Jefferson thought. Because the federal power is specific and limited, Marshall takes care to assert that in that narrowly defined area of activity, which was navigation and commerce across state lines, federal law prevails.  He underlines his own understanding that the states are self-governed and they are in charge of almost all of the writing of regulations of citizens’ activities.  The Court points out that if Congress had control of all commerce in the nation, including all internal as well as external commerce for all states, the phrase commerce “among the several states” would not have been used by the writers of the Constitution.  He continues:

“The genius and character of the whole government seems to be that its action is to be applied to all the external concerns of the Nation and to those internal concerns which affect the States generally; but not to those which are completely within a particular state, which do not affect other States, and with which is not necessary to interfere for the purpose of executing some of the general powers of the government.  The completely internal commerce of a state, then may be considered as reserved for the state itself.”

Furthermore, Marshall points out that there is an “immense mass of legislation” not surrendered to the federal government by the states.  The Constitution granted to the federal government a narrow, stringently constrained domain in which it had supremacy.  The majority of any citizen’s experiences throughout his or her life were subject to his or her state’s laws; very seldom would their daily lives be touched by the federal government.
   Things have changed.  The domain controlled by the federal government has been massively expanded through the years. The Civil War shook the very foundations of the Constitution, and amendments 13, 14 and 15 were made during Reconstruction.  The industrial revolution came of age in the U.S. and America became a Great Power.  Out of the Farmers’ Alliance in the 1870s, the Populist Party in the 1890’s and the Bull Moose Party of 1912, all attracted by socialism, came the Progressive Movement.  Amendment 16 permits the federal income tax and Amendment 17 calls for the direct election of U.S. Senators; both were passed in 1913.
   In 1916 the Supreme Court widened the interpretation of the Commerce Clause in the Shreveport Cases.  The Court ruled that the federal government could regulate the fees charged by a railway between Dallas and Marshall, Texas.  Federal mandates had run afoul of regulations of the Texas Railroad Commission.  If one of the purely intrastate carriers complied with the federal mandates, they would have to pay penalties to the Texas Railroad Commission.  The Supreme Court said that the feds take sovereignty over the state regulations when interstate and intrastate regulations are mingled.  When mingled, the activity falls within the commerce power, and that is because of their “close and substantial relation.”
   The New Deal delivered a crushing blow against the Supreme Court’s opposition to Franklin Delano Roosevelt’s overreaching in 1937.  FDR threatened the destruction of any chance of non-partisan protection of the Constitution on the Supreme Court by promising to increase the number of justices and to pack the Court with pro-New Deal men when done.  The Court quailed and acquiesced to FDR’s New Deal legislation, allowing the destruction of restriction on the power of the federal government to regulate commerce. 
   NLRB v. Jones & Laughlin Steel Corp. came before the Supreme Court in 1937, shortly after FDR’s threat that it would become a meaningless independent branch of the federal government if it continued to block his agenda.  It held that Congress can regulate activities that “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions” in state law.  The same Court had ruled two years earlier that a federal regulation of labor in a purely intrastate business was unconstitutional. The federal government argued that it had the right to regulate intrastate businesses that have “indirect” relation to interstate commerce.  The Court said that if the feds were to regulate intrastate business activities that bear an “indirect” relation to interstate commerce “ there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government.”  The 180-degree turn by the Court in two years’ time did not bode well for the vitality of federalism.
   In 1942, Wickard v. Filburn virtually completed the elimination of constraints on the federal government under the Commerce Clause.  In it, the Supreme Court held that a farmer who grows wheat strictly for personal use is engaged in interstate commerce.  If other farmers across the Nation did the same thing, the Court said, there could be an aggregated, therefore, substantive effect on commerce, and that places that activity under the power of the federal government to regulate commerce “among the several states.”
   So, over the first half of the 20th century, the “evolution” of the Commerce Clause acted as a malignant cancer on federalism.  As written in Reclaiming the Constitution:…:

The doctrine that anything with a ‘direct effect’ on interstate commerce could be regulated under the federal commerce power was replaced by a rule allowing regulation of anything with a “substantial effect” on commerce (even if indirect).  Then came the doctrine that anything which, if ‘aggregated’ across the Nation, had a “substantial effect’ on interstate commerce, was properly within the federal commerce power.

Anything done by anyone engaging in “commerce” anywhere, anytime in the Nation could be identified as something “aggregated” across the Nation and could have a “substantial effect” on interstate commerce.  What is there not to be regulated?  According to the Reclaiming the Constitution:…, “the federal government has grown from a 19th century average of 4 percent of GDP to a peacetime peak of 27 percent in 2010.”
   The Republic is suffering, but not yet deceased.  In 1995 the Rehnquist Court held that there are limits to the commerce power.  Chief Justice William Rehnquist wrote the decision in U.S. v. Lopez.  His dogged determination to remain within the precedents set before him a daunting challenge.  In the decision he is confident that limits exist, but he is vague about them.  Justice Clarence Thomas wrote a concurring opinion in which he returns to Gibbons and the Court of 1824.  He makes the point that the precedents have made the enumerated powers (surrendered to the federal government by the states) superfluous.  The overreaching interpretations mean that the writers of the Constitution wrote meaningless sentences.  Referring to Wickard, he writes, “Congress can regulate whole categories of activities that are not themselves either ‘interstate’ or ‘commerce’…The aggregation principle is clever, but it has no stopping point.”
    Chief Justice Rehnquist wrote the decision in U.S. v. Morrison in 2000, a case in which the Court struck down a federal law named the Violence Against Women Act.  He concluded that “the Constitution requires a distinction between what is truly national and what is truly local.  In recognizing this fact we preserve one of the few principles that have been consistent since the (Commerce) Clause was adopted.”
   According to Reclaiming the Constitution:…
   Five years later, however, in Gonzales v. Raich (2005) the Supreme Court seemed to retreat from its reinvigoration of the Commerce Clause, and it has not revisited the issue since then.
As the crisis of 1937 shows it is difficult for the Supreme Court to uphold constitutional constraints against federal power when the President, Congress, and popular opinion are all against it.  The Supreme Court is not supposed to be a political branch but its perceived legitimacy is vital to the rule of law, and that legitimacy depends on political consensus.  In other words, in our democratic republic, even the Supreme Court ultimately derives its power from the people.  The other side of the coin is that the better Americans understand the vital importance of a federalist framework in the Constitution, the more strongly they yearn for a return to the Constitution’s founding principles, and the easier it will be for the Supreme Court to reassert its role as guardian of enumerated powers constraints.
Disentangling nearly 100 years of Commerce Clause precedent is a tall order, but Gibbons v. Ogden might offer a way forward.  Chief Justice Marshall’s opinion in Gibbons has been often quoted for the proposition that the federal government’s power is supreme and complete within its enumerated powers.  This observation was entirely predicated on Marshall’s basic understanding of federalism, in particular the stringent constraints on federal power, which restricted its scope to just a few areas of regulation, and left the “great mass” of legislation to the States.  A more complete reading of Gibbons could help guide the Supreme Court back to the original understanding of the commerce power.  Defining the Commerce Clause should not be just a matter of defining the scope of “interstate commerce” from the point of view of federal power; equally important is the other side, the great mass of regulation that is not interstate commerce and was meant to be left to the States.  The Supreme Court has had trouble devising a precise definition for what interstate commerce is partly because it stopped focusing on what it isn’t-namely those things that were meant to be left to the States.  As Michael Greve (part of the American Enterprise Institute) argues, the Court must reclaim its role as guardian of constitutional constrains on federal power.  It can take its cue from the people, and their desire to return to a more decentralized and responsive system.  This desire underpins the promise of a constitutional renaissance now sweeping the Nation.

   The next post on the matter of Federalism and the Tenth Amendment will consider spending---how federal funds can be used to bend the will of states to the federal government’s wishes, overcoming the Tenth Amendment for the federal government and how the federal government might “commandeer” state instrumentalities, which is to force States and locals do the work of the feds in executing laws.

Pamela Fowler
  
Source:
  One of the two authors of Reclaiming the Constitution: Towards An Agenda for State Action is Ted Cruz.  He was the Texas Solicitor General from 2003 to 2008, wrote 80+ briefs and made 8 arguments to the U.S. Supreme Court out of 38 oral arguments he has made.  He has been lauded in several of the most influential law magazines and journals in the country, especially celebrated for so many achievements early in his life.  A talented minority, he graduated from Princeton and Harvard Law School; served as law clerk to Chief Justice William H. Rehnquist on the U.S. Supreme Court; was Domestic Policy Advisor to President George W. Bush on the 2000 Bush-Cheney Campaign; and he served as Associate Deputy Attorney General at the U.S Department of Justice.  An adjunct professor of law at the University of Texas Law School from 2004-2009, he taught U.S. Supreme Court Litigation. He is now a Senior Fellow at the TPPF, serving as the leader of the Center for Tenth Amendment Studies.
   Mario Loyola is the other author of the “Reclaiming the Constitution: Towards An Agenda for State Action”.  He specialized in corporate finance law when he began practicing law, then he moved into public policy in 2003, researching and writing at policy institutes at times, employed by the government at other times.  At the Pentagon he served as a special assistant to the Under Secretary of Defense for Policy and then served as counsel for foreign and defense affairs to the U.S. Senate Republican Policy Committee.  Also, he was a state advisor to Senator Kay Bailey Hutchison.
    He has been published in the National Review, the Weekly Standard and op-eds in The Wall Street Journal and has been on the Glenn Beck Show, CNN International, BBC Television, Radio America, and more.

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