Relevant and even prescient commentary on news, politics and the economy.

Dearly Beloved

Our beloved Constitution has flaws. Only a very few, but these few have cost the Nation dearly, and, unless corrected, will continue to do so. It is very possible that unless corrected, they will lead to the Nation’s demise. These flaws have been and are being taken advantage of by the worst among us, and used against the rest of us. The electoral college, that most undemocratic of bodies, has, in just sixteen years, seated two of our most incompetent presidents, both of whom have greatly damaged the nation. The Senators from states with less than one-million population have as much say in our nation’s affairs as do those from states with forty-million population. The structuring of the Senate has from our early days allowed abhorrents like Mitch McConnell to extort the nation and stuff the courts with right wing ideologues. Presently, we have a supreme Court majority that would use the Constitution to deny some of our citizens the right to vote. A Court that has recently interpreted the Constitution as allowing for gerrymandering and other forms of voter suppression. In the face of such flaws, the ratifying of amendments is nigh on to impossible. Amendments have not, can not correct these flaws. Not some but all native born and naturalized citizens must have equal rights in every way, and know full and equal representation.  We know well of the difficulty of the bargaining, fault not those who bargained; but it is time to save all the good and great parts of our constitution and rid it of those few that paid paeanage to colonial governments, wealth, and slave holders in the barter for votes of ratification. Amendments can not adequately append modern concepts of personage and rights to the Constitution’s august body. There can be no full solution for these structural problems other than direct addressment of their cause. It is time to appoint a constitutional commission to list and correct these known flaws.

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Do ‘Right to Work’ Laws Violate the Constitution’s Article I Contracts Clause? [Updated]*

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

— Article I, Section 10, Constitution of the United States

No, I didn’t post this to highlight the prohibition against states’ granting any title of nobility.  I posted it to highlight the prohibition against states’ enacting a law impairing the obligation of contracts—which the Supreme Court has interpreted as a guarantee of the right to freely enter into contracts.  
That guarantee does have exceptions, of course, none of which includes the type of contract that state so-called ‘right to work’ laws bar.  Including the ones passed today by the Michigan legislature, after springing out of nowhere last week.  (Although maybe the proponents of these laws think these statutes come within this exception created by the current Supreme Court’s majority: any law that helps corporations is constitutional.  It’s a corollary to the majority’s maxim that any federal statute, such as ones concerning compelled contractual arbitration, or labor unions, or federal-court jurisdiction, be distorted beyond plausible recognition of the statute’s actual language, if necessary, to favor corporations.  This is known by them as “originalism” and “textualism.”  And known by others, not all of whom are justices, as cute, pick-and-choose gimmickry.)

But as Slate’s Matthew Yglesias points out today, what these bills do is use the force of law—state law—to interfere with the right of contract between two private parties: labor unions and private employers.  In Michigan, the legislature actually passed two separate laws today: one pertaining to labor contracts between labor unions and private employers, the other pertaining to contracts between labor unions and public employers (i.e., state and local governments).  But as a constitutional matter, this doesn’t matter.

Yglesias points out what does matter, although he argues it only as a matter of hypocrisy, not as a possible violation of constitutional law.  After saying that the concrete economic impact of these statutes is murky—something that Paul Krugman and most Angry Bears would dispute (and have disputed)—he hits the nail on the head about the actual nature of these laws:

[What is] not murky is the absurd hypocrisy that has to go into making the case for right-to-work legislation.

The way this works is that if there’s a labor union at a given business establishment that’s bargaining for some higher pay or benefits or better work-rules or whatever it’s rapidly going to find that there’s a free rider problem. Everyone in the relevant class of workers gets the benefits whether or not they join the union. So something the union is often going to want to bargain for is some kind of rule stating that everyone hired in the relevant class has to join the union, or has to pay dues to the union, or something else along those lines.

Now naturally an employer’s not going to want to agree to that. But he’s not going to want to agree to higher pay or more vacation days either. That’s why it’s a negotiation. A right-to-work law is a law banning employers from making that concession.

The impact, obviously, is to make it hard to form strong unions in a given jurisdiction and thus make it a more business-friendly jurisdiction. But note that this same trick works across the board. You could just ban pay raises in general. Any one firm, after all, faces a dilemma. On the one hand it would be more profitable to pay people less. On the other hand, it’s also unprofitable to have everyone quit to go work for some other higher-paying company. So a law against pay raises would make everyone more profitable, spurring crazy business investment and job creation. Except nobody does that because it would be (a) insane and (b) obviously unfair. And yet the proponents of right-to-work laws are generally exactly the people most inclined to stand up for freedom of contract under other circumstances.

And yet the proponents of right-to-work laws are generally exactly the people most inclined to stand up for freedom of contract under other circumstances, indeed.  They do this standing up in legislatures, think tanks, and lobbying firms.  And in court, including the Supreme one.  Some of them doing this standing from the black-robes-wearing, comfortable-leather-chair-sitting side of the courtroom bench.

Now that the gauntlet has been thrown, labor should pick it up and take it to court.  There is, I think, little doubt that these laws impair the obligation of current labor contracts and also impinge upon the right to freely enter into contracts.  The proponents of these laws will defend them on the ground that state laws impairing the obligation of this particular type of contract isn’t what the framers had in mind.  And undoubtedly they’re right; it’s a historical fact that the Washington, Madison, and the others considered union organizing right up there with sodomy and murder as unprotected by the Fourteenth Amendment, which they foresaw would be added to the Constitution a few decades later, or by the clause in Article 1, Section 10, prohibiting states from impairing the obligation of contracts. 

But labor unions still should challenge the constitutionality of these laws, even if they have to try to convince the courts, and eventually the Court, that the laws are Letters of Marque and Reprisal. 

Which, at least regarding the Reprisal part, sounds about right. 


UPDATE: Excellent, thorough article by Rick Ungar in Forbes today, titled “Right-to-Work’ Laws Explained, Debunked & Demystified.” Don’t miss it.

*I just posted a lengthy follow-up post, here.

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Virginia opposition given standing in federal district court

by Linda Beale
Excerpt from Ataxingmatter

The post in its entirety can be found at Linda’s Ataxingmatter Health Care Reform: the Virginia opposition given standing in federal district court:

The judge states that the “central issue” in the case is Virginia’s interest in upholding it’s “health care freedom act”–a declaration that Viriginia citizens do not have to buy insurance (in spite of the federal mandate). As Jack Balkin so ably comments (see link below), the judge’s acceptance of this argument opens the way for states to challenge anything in the Internal Revenue Code by passing a declaratory resolution indicating that they don’t think it should be treated as constitutional or that conflicts with the particular provision in question.

As for the commerce clause power, the court also treats Wickard v. Fillburn (the Supreme Court case that held that growing wheat for one’s own use is subject to the commerce clause power) as not decisive on this issue. Virginia claims that the decision not to purchase is not an economic act, compared to the decision to purchase or the decision to grow one’s own as a substitute for purchase. That distinction does not appear to have any merit. The decision not to purchase insurance and the decision not to purchase wheat are surely similar decisions to try to avoid the commercial flow by managing on one’s own. Yet surely one’s interaction with the health care system is much more clearly a question of interstate commerce even than one’s ability to grow wheat at home and avoid the purchase of wheat–even people who pretend to provide their own health care at home will at one time or another impinge on the health care system in all likelihood, whether because they are in a transportation accident, an accident outside their home, a work injury or illness, or taking advantage of free medical care such as vaccinations, etc. The judge however, concludes that the precedent is inconclusive and that the government has failed to show that the state has not stated a valid commerce clause claim.

Finally, the judge follows Virginia in conflating the Commerce Clause and Taxation Power arguments. It accepts the idea that if “economic inactivity” (which is a misnomer, since it is clearly economic activity to provide one’s own care, just as imputed income from providing one’s own home is real economic activity) is not accessible under the commerce clause, then it shouldn’t be reachable under the tax power. This is an extraordinarily poorly reasoned section of the opinion.

For a thoughtful and articulate analysis of the standing issues, see Jack Balkin’s blog, Judge Preserves Constitutional Challenge to Individual Mandate (Aug. 2, 2010) [hat tip Ellen Aprill and the Tax Prof discussion group].

Allowing this case to go forward leaves health reform in turmoil. It could take years for the different cases to wend their way through the courts, and ultimately the Supreme Court will likely have to rule.

Linda Beale

Beverly Mann, whose expertise is in certain areas of constitutional law and federal-court jurisdiction at the Annarborist, and who guests at Angry Bear, notes on the same topic (lifted from an e-mail to me):

Yeah. I read Lyle Denniston’s article about that opinion on Scotusblog a couple hours ago, and this sentence really strikes me: “‘While this case raises a host of complex constitutional issues,’ the judge wrote, ‘all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen’s decision not to participate in interstate commerce’ — that is, a private decision not to buy health insurance.”

Actually, the argument that that part of the legislation is within Congress’s purview under the Commerce Clause is that a citizen’s decision not to participate in interstate commerce—that is, a private decision not to buy health insurance—actually is not a decision not to participate in interstate commerce but instead (for many people at least) a decision to participate in interstate commerce by having others pay their emergency medical bills. If they are, say, injured in a car accident and treated at a hospital and then cannot pay their medical bills, the public pays those bills.

The problem with the judge’s argument is that people do not decide whether to have a serious medical emergency. When they do have one, and they receive major medical treatment, there is a bill for that.

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Constitutional Originalism and Immigration

by Bruce Webb

Something has been bugging me. Why is it that the same people that indignantly claim that a requirement for people to show proof of insurance is unconstitutional but that it is perfectly fine, nay imperative that people show proof of citizenship or legal residency? Exactly where in the Constitution does it give the Congress the right to control the border to start with?

Constitution of the United States

Neither in 1776 or 1789 were there barriers to visiting or working in the Colonies or the United States. And from what I see the power to determine who was a Citizen or not was left to the various States with the reservation in Article IV Sec 2 that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

There is a drive afoot led by Rand Paul and others to repeal that section of the 14th Amendment that provides that everyone born on American soil is as such a Citizen

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Well okay, but that would seem to just restore the situation to the status quo ante in which time there were no controls, and certainly no federal controls on free migration into or between the United States.

My ancestors did not have papers. Some of them reached the US before there was a US while others came from Ireland and Germany in the 1820s and 1830s and as far as I can tell the only requirement for entry was the price of passage. In fact from what I can glean the first restrictions on immigration only came in the 1870s and 1880s and were initially focused on criminals and lunatics to which in the 1890s were added ‘Asiatics’ and then in the 1920s national quotas, the latter designed to keep the US from being flooded with people from Southern Europe.

Tea Partiers and allied groups claim NOTHING about their efforts is based on race, ALL is about returning to the Constitution as interpreted by the Founders. They equally claim that the ‘General Welfare’ clause in the Preamble and in Article II is not meant to be interpreted as giving Congress explicit powers and equally claim that Congress has greatly abused the Commerce Clause. Which leaves me this question. If you folks are so focused on Original Intent why NOT restore the immigration laws back to what they were in 1840? Because clearly you wouldn’t want to be accused of cherry picking the Constitution. Would you?

Consider this an open thread on immigration, originalism or anything related.

(P.S. Please keep clear the distinction between ‘naturalization’ and ‘immigration’. Clearly the States individually and the United States as a whole had powers to control who was a citizen, the question is what the Constitutional authority is to regulate residence by non-citizens whether from another country or another state.)

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The Supremes did us a favor with Citizens United regarding Rand Paul et al

By Daniel Becker

Ok, if you have not heard, Mr Rand Paul made quite the impression during an interview with Rachel Maddow. The short of it: businesses should be free to discriminate as they see fit. It’s their right, though he’s not for discrimination. You know, citizens and all having equal rights.

Well, there is a problem with Mr. Paul and his like’s argument. The Supremes ruled that businesses (at least corporations) are people. You recall that “Citizens” United case? Seems to me, being that Corps are now citizens, they fall under the same citizen law regarding Civil Rights. That is they can’t discriminate. Thus, the entire argument that businesses have rights outside of citizens as presented by Paul et al is now moot.  The entire section of the Civil Rights act that Mr. Paul supported his argument on is now redundant within that law.

Of course, they could decide that being a corp and having the right to discriminate is more important than the right to spend on elections. But, I don’t think the US Chamber is willing to swap the money maker right for the right to be prejudicial. At least not based on what I received to day:

U.S. Chamber: DISCLOSE Act Is Partisan Effort to

Silence Critics and Gain Political Advantage
Donohue: ‘It’s Unconstitutional. It’s Un-American. And It Must Be Stopped’

WASHINGTON, D.C.—U.S. Chamber of Commerce President and CEO Thomas J. Donohue issued the following statement today in response to the House Administration Committee’s markup of the so-called “DISCLOSE Act:”

“The DISCLOSE Act is an unconstitutional attempt to silence free speech and a desperate attempt by Democratic Congressional Campaign Committee Chairman Chris Van Hollen and the immediate past chairman of the Democratic Senatorial Campaign Committee, Senator Chuck Schumer, to gain political advantage in the 2010 elections.

“Congress should not be wasting its time on an ‘Incumbent Protection Act,’ but instead should be focused on job creation. Nothing makes Americans angrier than members of Congress who are more concerned about protecting their own jobs, rather than creating new ones for unemployed constituents.

Hey Chamber and Rand Paul, you know what else is unconstitutional and unAmerican? Discrimination.  Infact that was the entire argument of Citizens United.

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The Maine Chance

Robert Waldmann

One strange thing about the health care reform debate is that insurance companies claim to support reform. I have tended to suspect that they are just playing possum.

Now I find positive proof that WellPoint is willing to do what it takes to make sure health care reform passes — they sued the state of Maine claiming they have a constitutional right to make a profit !?!

In fact they seem to support a public option. It will be a bit hard for Sens Snowe and Collins to explain why they think no public option is needed after this.

I have a challenge. Can anyone think of anything anyone could do which is better for the public option that this ?

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