RedState

By Republican Logic, What Else Is Unconstitutional?

CNN’s newest correspondent, Erick Erickson of RedState, offers this explanation of why the new healthcare act is unconstitutional:

Insurance contracts are not within the stream of interstate commerce. That’s why when you buy insurance for your house, your car, or your health you deal with state insurance commissioners, not a federal insurance czar.

Congress does not really regulate insurance contracts. They are contractual obligations at the state level, not goods and services in the stream of commerce. So can Congress then force you to buy a product not in interstate commerce to regulate interstate commerce, when insurance regulations are clearly within the purview of the states?

He goes on to argue that, a fortiori, this means that you’re now a slave. To a black man. Yeah, the rest of the article is worth a read, and it’s not race-baiting at all. Three cheers for intellectual integrity!

Anyways, try to parse the law from the rhetoric. It’s not easy, but Erickson’s argument seems to be that insurance contracts are regulated by the states, and therefore not “interstate”; and further, they’re not “goods,” and therefore not within the stream of commerce anyways, so neither do they constitute “commerce.” Let’s unpack and apply.

If state regulation rebutted the interstate quality of a good, nothing would be within Congress’ power. Most regulatory regimes consist of overlapping zones of federal and state power. For example, federal securities laws, like § 10(b) of the Exchange Act and its critical Rule 10b-5, coincide with state “Blue Sky” laws to create a regime for the punishment of fraud. None dispute that, despite state “Blue Sky” laws and strong state regulation, these financial products constitute “interstate”

In much the same way, “contractual obligations” are most certainly commerce, and comprise the greater part of the American economy. When I walk to work in the morning, I don’t pass factories: I pass securities clearinghouses, and the law firms that represent them. If you live in a city, you do too. These financial products enter the stream of commerce and have the potential to enrich, or wreak havoc on, the parties that control and are controlled by them. None dispute that they constitute commerce.

But under Erickson’s view of the Constitution, because they supplement or preempt state solutions, and concern neither goods nor services in the traditional sense, the Securities Act of ’33, the Exchange Act of ’34, and all related acts are flat-out unconstitutional.

Similarly, if you work for a large company, or state government, odds are your retirement plan is backed by the federal ERISA regime (Employee Retirement Income Savings Act). This is a good thing. It’s like an FDIC for your pension — at least in that it’s a safety net, and requires state-law plans to meet certain federal minima to guarantee solvency. Under Erickson’s logic, ERISA is gone too.

Erickson’s is not a responsible way of looking at the world. Going beyond these examples, Erickson’s reasoning would gut the Department of Labor — so long OSHA Occupational Safety and Health Act), FLSA (Fair Labor Standards Act), etcetera. That means a return to child labor, and a thousand new Triangle Shirtwaist incidents.

This is the world in which the newly mainstreamed, radical right wants you to live: a world where the Progressive Era and the 20th century never happened, where employees and families remain at the mercy of the unregulated market. The 1800s were not a happy time. We forget that at our peril, and repeat it at our pain.

CNN — fire this man.

Equating the Trend with the End

This statement may be incredibly obvious, but just in case:

The chief (only?) Republican strategy lately takes the form of a dishonest attempt to equate the fact that a given political issue implicates a principle, with the opinion that it in fact destroys the principle. Let’s canvass common examples:

• Government expenditure tends to implicate the question of fiscal responsibility. Therefore, any spending measure independently and on its own force destroys the budget.
• Regulation tends to implicate the question of the limits of regulatory power. Therefore, any regulation necessarily violates the Commerce Clause.
• Federal programs tend to implicate state sovereignty. Therefore, any regulation violates whatever power is left in the residual Tenth Amendment. (Nota bene: this is a case where the premise isn’t even true.)
• A commitment to decency tends to trigger personal impulses to suppress potentially offensive commentary. Therefore, urging self-restraint is the equivalent of government suppression of speech, somehow (?). This is a Palin favorite.
• Civil rights (e.g., freedom from search & seizure; the guarantee of trial by jury) sometimes require that we trade away safety. Therefore, independent of the right’s textual existence, any recourse to any right compromises national security.
• Rules of criminal procedure circumscribe the government’s ability to try accused criminals. Therefore, independent of any requirement that the rules be used, their reference or use constitutes the complete abdication of the government’s ability to convict the guilty.
• Gay marriage relaxes one part of traditional societal limitations on the marriage tradition. Therefore it obliterates all societal limitations. On everything.

Numbers one through three figured prominently in what passed for a health care “debate” in this country.

Each argument, clearly, relies on a deep-seated dishonesty, but the sin of the tactic goes deeper still. This type of argumentation implicitly rejects a middle ground. When every step down a road implies reaching the destination, there’s no honest way to reach a compromise. If you want to know why we never saw any bipartisanship in the health care debate, that’s your answer. By their rhetorical choices, the Republican Party sold their constituents, and ultimately themselves, on the concept that bipartisanship implied a complete loss. The result is people like this.

RedState Insults the Declaration of Independence

From Erick Erickson, somehow a CNN correspondent now, for no goddamn reason:

But whether this legislation actually passes or not, the GOP can now do a couple of things:

1. Pledge immediate repeal in toto of Obamacare should it pass. No nibbling at the edges — the whole thing and we pledge our lives, fortunes, and honor to crushing any member of Republican leadership who refuses to get on the full repeal bandwagon.

From the Declaration:

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Now, I don’t begrudge conservatives their right to play dress-up, but this is a bridge too far. The Founders’ pledge of “our Lives, our Fortunes, and our sacred Honor,” was a literal pledge: by putting their names to the document, they in fact gave up their lives, and in fact committed all their resources to the defeat of an implacable foe who, if victorious, would lynch them, their families, and their friends, before surely decimating the country they sought to free.

By way of comparison, Erickson writes a blog. There, he tells people to send gag gifts to unpopular politicians, and calls Supreme Court justices pedophiles. Especially because his honor was long ago forfeit, he has nothing on the line here. It’s fine to spin pathos-laced equivalences with the Revolutionary War era, but to pretend that you’re actually risking as much as they did, well, that’s just insulting.

Just Adorable

The House Rules Committee is considering a procedural solution to passing the current healthcare bill, where they would “deem” a Senate version passed, and then send it to the President’s desk (the “Slaughter” rule). It’s more complicated than that, but just as ballsy, and just as flimsy as it sounds at first blush. Specifically, there are real concerns about whether passing a bill under this scheme would result in a valid act. There’s a way to do it, but while it plausibly cures the constitutional defect, it doesn’t make the Slaughter rule a good move. Nothing could.

So why bring it up? Well, given the chance to finally note a real constitutional defect in a Democratic plan, rather than just screeching about nullification, the far right flubbed it. From RedState:

The two bills that the House is now contemplating directly contradict each other. [. . . .] I think the constitututional principle being violated here is known as the “nondelegation doctrine.” By saying two contradictory things at the same time, the House would be delegating its power to the Senate and the White House, allowing the latter to pick which meaning they like best.

Congress could use the same approach to allow a line-item veto, by passing a thousand budgets instead of one, and letting the President pick whichever one he likes best.  And that would also violate the nondelegation doctrine.

Really? The nondelegation doctrine? You’re doing it wrong! The nondelegation doctrine is a real constitutional issue, but (1) it’s been substantially dead for about seventy years, and (2) that’s not how it works, were it to work at all. Let’s examine.

Simply put, nondelegation prevents the legislature from writing itself out of the separation of powers equation. In a constitutional democracy, the legislature will, necessarily, bear the political risk for new initiatives. Representatives thus have a real interest in punting any given issue down the field, to, say, a politically insulated administrative agency.

In fact, that’s how we run a lot of our government, and it’s fine, so long as the legislature delegates discretion to act within the bounds of an intelligible principle of Congress’ own formulation. “Regulate trade in the best interests of the American people,” for example, is not an intelligible principle; it’s a complete derogation of one of the legislature’s Article I, § 8 powers. See A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935). On the other hand, “draft sentencing guidelines for federal criminal cases, within the following bounds,” is an intelligible principle. See Mistretta v. U.S., 488 U.S. 361 (1989).

Thus, it’s literally nonsensical to talk of the House over-delegating to the Senate, or vice versa, because a delegation that does not result in transmitting power between branches of government is no delegation at all. And, to the extent that “delegation” occurs between the legislative chambers, it’s called “cooperative drafting,” or, “politics when you don’t have a filibuster.” Delegating power to the executive is the type of thing we worry about; but passing a few bills, and handing them to the President to sign one, results in the derogation of only that specific power normally surrendered in the lawmaking process. Or, put another way, it’s not an over-delegation because it supplies the ultimate intelligible principle: a full legislative framework.

As a function of the need for a fully functional administrative state, something acknowledged by both the Supreme Court and academicians, the nondelegation doctrine is also substantially dead, in that wider and wider swaths of power have been delegated away every year since 1935. The danger is both that the doctrine has weakened, and that the effects of delegation are cumulative: even if no one act will ever over-delegate, the legislature can, instead, die by a thousand progressively widening papercuts.

The one place the courts actually use the nondelegation doctrine today, as one of my professors used to say, is when they invalidate criminal statutes for “overbreadth” or “vagueness.” The theory is that a vague criminal statute doesn’t just fail to give notice to potential lawbreakers; it also gives law enforcement, a subsidiary of the executive, too much discretion. Criminalizing “obscenity,” with no further descriptor, would effectively let local police write their own law. Clever, no? God, I wish I could say I’d come up with that.

Yes, the RedState post was just an excuse to talk for a while about nondelegation. But seriously, how cool is nondelegation?

Crime, War, and Punishment: No Easy Paradigm for Counterterrorism Work

Continuing conservative America’s latest trend — selectively remembering everything that happened before January 20, 2009 — RedState’s Erick Erickson today excoriated President Obama for daring to try the Christmas Day bomber, Umar Abdulmuttalab, as a criminal, because these proceedings will entitle him to a lawyer, and the right to reach a compromise with prosecutors through a plea bargain. According to Erickson,

Bush decided to send foreign terrorist enemies to GTMO for questioning by the military and, in a few cases, to be water boarded to get answers.

Sure. But Bush also saw to it that Richard Reid, the “shoe bomber,” whose situation most closely matches that of Mr. Abdulmuttalab, was tried in federal court and sentenced to life in prison without parole, where he remains to this day.

RedState distorting history isn’t new, and it isn’t really that exciting. But the question of whether we should try terrorists as criminals is interesting, and deserves an answer. The issue is essentially this: what paradigm should we use to fight terror? The warfare model, where detainees are treated as prisoners of war (or less), or the crimefighting paradigm, where detainees are entitled to the full protections of the criminal system?

Erickson’s fault, one duplicated by players on the right and on the left, is assuming that there must be one easy answer. There can’t be. Facts on the ground in Afghanistan most closely match a real shooting war — even if the enemy isn’t necessarily a state actor, day-to-day life comports with a traditional state of war. Accordingly it’s quite natural to expect that, on the battlefield, soldiers will (and should) shoot first, and detain prisoners with something less than the protections afforded criminal defendants.

On the other hand, settled law prevents the warfare paradigm from operating on American soil. In Boumediene v. Bush, the Supreme Court held that terrorists must be afforded some level of due process, depending on the exigencies of their particular situation, but always entitling detainees held within American sovereign territory to seek a writ of habeas corpus, or a similar instrument. Similarly, since President Lincoln’s time, and the Posse Comitatus Act, the army has had no law enforcement power on American soil. Violations of American laws on American soil are criminal acts thats, when the harm terminates or is prevented, must be redressed within the crimefighting paradigm.

To date, the crimefighting paradigm has proven quite effective to address problems like Mr. Reid, and Mr. Abdulmuttalab. Erickson assumes that lawyers and plea bargains will result in acquittals, or the release of the accused terrorist — but this assumption betrays a fundamental mistrust of the rule of law. The outcome of a criminal trial is committed to the discretion of the people (through the prosecuting attorney) and the court. The defendant plays a part, but he does not determine his own fate. Defense lawyers can offer plea bargains, and make arguments, but courts and prosecutors must accept both before either can matter. Erickson’s interpretation reads these safeguards out of the process, and treats lawyers as “get out of jail free” cards.

I expect that opinion bleeds over into a distrust of criminal law generally. If that’s the case, we may query to what extent Mr. Erickson, himself, believes in his country.

RedState’s Christmas Gift: Historical Revisionism

I intended to let Christmas pass without a note of partisanship, but because our honorable friends opposite have opted otherwise, I feel obligated to reply. RedState’s Erick Erickson wants to make much of the fact that, per Time, the First Family did not attend Christmas services:

• No Churchgoing Christmas for the First Family: Why should we be surprised or upset by this? The Obamas are not, to my knowledge, Christians and typically only Christians go to church on Christmas. At least he’s not trying to pretend anymore. Good for him.

But Erickson glosses over the source article’s context:

Other Presidents and their families have opted to stay in Washington for the holiday. The Clintons traditionally went to midnight mass at the Washington National Cathedral and woke up in the White House on Christmas morning before heading south for vacation. President Reagan also remained in Washington over Christmas — reportedly so members of the Secret Service could be near their families — although Reagan didn’t venture out to a local church service. (Emphasis ours)

A moment of further research reveals that Reagan’s ecclesiastical absenteeism even became a campaign issue:

President Reagan’s spokesman said today that the President seldom attended church services because he disliked inconveniencing parishioners. He also said that Mr. Reagan did not intend to make morality a campaign issue.

Larry Speakes, the deputy press secretary, faced questions about the President’s religious habits in the wake of Mr. Reagan’s overtly religious speech Tuesday to the National Association of Evangelicals and his push for approval of a constitutional amendment allowing voluntary prayer in public schools.

Apparently, empty words about religious faith are enough for Erickson. What a surprise.

RedState Now Officially Celebrating Unemployment

Unemployment to hit 10.4? “Wonderful. Simply wonderful.”

Except it won’t, and if it does, it won’t be.

Victory!

Finest muffins & bagels in all the land, &c — foe of all conservatives everywhere, Judge David Hamilton, is now easily slated to take his seat on the Seventh Circuit Court of Appeals. Apparently Hamilton had a leadership position in the ACLU and had raised money for ACORN. We could fact-check RedState on this, but what’s the use? If it’s true, it just means they lost harder than expected.

Republicans Redefine Class, Again

Finally confronted with the text of the House healthcare bill, Michelle Bachmann’s angry horde of “tea party” “activists” chose to tear up the bill, rather than read it.

Granted, tearing up legislation you’ve never read, but assume you won’t like, is a step up from mailing fake dog poop. So there’s that.

There’s a Special Place in Hell for Erick Erickson

Late today, an army major, apparently disturbed by stories of the war abroad, murdered twelve of his comrades at Fort Hood. The man had a Arabic-sounding name, but stated “no religious preference” on his military paperwork. I’m sure you know what’s coming next:

As the sun set tonight, tragedy came to Ft. Hood. A muslim [sic] soldier began shooting other soldiers.

What we know so far is that the soldier was a muslim [sic] and began yelling at his fellow soldiers statements in Arabic.

Leave it to RedState to support our troops — by twisting their deaths for unrelated political gain.

Update: apparently he was Muslim. This changes nothing. His religion wasn’t relevant to the crime, except to permit pundits from Erickson to Malkin to blame his religion and Muslims generally.