Edward J. Erler
Professor of Political Science
California State University, San Bernardino
Edward J. Erler is professor of political science at California
State University, San Bernardino, and a senior fellow of the
Claremont Institute. He earned his B.A. from San Jose State
University and his M.A. and Ph.D. in government from Claremont
Graduate School. He has published numerous articles on
constitutional topics in journals such as Interpretation, the
Notre Dame Journal of Law, and the Harvard Journal of Law
and Public Policy. He was a member of the California Advisory
Commission on Civil Rights from 1988-2006 and served on the
California Constitutional Revision Commission in 1996. He has
testified before the House Judiciary Committee on the issue of
birthright citizenship and is the co-author of The Founders on
Citizenship and Immigration.
Two cases that are currently making their
way to the Supreme Court may well in the short term decide the
constitutional issue of the reach and extent of the federal
government. At stake, in other words, is the future of limited
government. And together, these two cases present an exceedingly odd
situation. In the case of the Arizona illegal alien law, the federal
government is suing a state for constitutional violations; and in
the case of the Patient Protection and Affordable Care Act—that is,
Obamacare—more than half the states are suing the federal
government, contesting the Act’s constitutionality. It is indeed a
litigious season.
But the Supreme Court’s decisions in these
two cases may not be the last word, because both of them present
eminently political issues that will have to be decided ultimately
by the American people.
The administrative state, of course,
always seeks to extend its reach and magnify its power. This is an
intrinsic feature of a system where administration and regulation
replace politics as the ordinary means of making policy. If there
are to be limits to the reach of the burgeoning administrative
state, they will be political limits imposed by the people in the
ordinary course of partisan politics. The advent of the
administrative state poses the greatest challenge to limited
government, because it elevates the welfare of the community—whether
real or imagined—over the rights and liberties of individuals. The
task today is to confine the federal government to its delegated
powers. The minions of the administrative state seek to destroy
constitutional boundaries in their desire to replace politics with
administration. This is tantamount to denying that legitimate
government derives from the consent of the governed, or that limited
government rests on the sovereignty of the people.
One of the proofs offered in the
Declaration of Independence that King George was attempting to
establish an “absolute Tyranny” over the American colonies was the
fact that “He has erected a multitude of New Offices, and sent
hither swarms of Officers to harrass our people, and eat out their
substance.” Obamacare certainly fits the description of the
activities denounced in the Declaration. The number of regulations
and the horde of administrators necessary to execute the scheme are
staggering. We have only to think here of the Independent Payment
Advisory Board. It is a commission of 15 members appointed by the
President, charged with the task of reducing Medicare spending. This
commission has rule-making power which carries the force of law. The
Senate, it is true, will have the power to override its
decisions—but only with a three-fifths majority. There are no
procedures that allow citizens or doctors to appeal the Board’s
decisions. The administrative state—here in the guise of providing
health care for all—will surely reduce the people under a kind of
tyranny that will insinuate itself into all aspects of American
life, destroying liberty by stages until liberty itself becomes only
a distant memory.
The advent and extraordinary success of
the Tea Party movement, with its emphasis on restoring limited
government, has made this a propitious time to rethink what the
Framers meant by limited government and how they understood the
relationship between limited government and the protection of rights
and liberties. It is rare to see a people acting spontaneously in a
political cause. The Tea Party movement must be regarded as a
testament to the independent spirit—the freedom-loving spirit—of the
American people.
How did the Framers understand limited
government? In the first place, limited government was not for the
Framers identical with small government, as the Tea Party sometimes
tends to believe. The identification of limited government with
small government was the position of the Anti-Federalists who
opposed the ratification of the Constitution. Limited government,
for the Anti-Federalists, meant government that was too weak to
threaten the rights and liberties of the people. Small government
was, therefore, both the necessary and sufficient condition of
political freedom. Consequently, the Anti-Federalists preferred a
purely confederal form of government in which the states assumed
priority.
The Federalists, on the other hand,
regarded confederal government as an attempt to do the impossible:
to create a sovereignty within a sovereignty. Conflicting claims to
sovereignty would be debilitating and would render the government of
the whole ineffective—as was surely the case under our first
constitution, the Articles of Confederation.
The Framers of the Constitution settled
upon a novel design for government, one that Madison said was
“partly national, partly federal.” For some purposes, Madison
explained, we will be one people; for others, we will be multiple
peoples. With respect to the national features—those things that
concern the nation as a whole—the federal government will have
sovereignty—complete and plenary power to accomplish the objects
entrusted to its care in the Constitution. Those objects are
principally found in Article I, Section 8 of the Constitution.
National defense, for example, is exclusively delegated to the
federal government. And since the exigencies that face nations in
foreign affairs are unpredictable and innumerable, the federal
government must have sovereignty to fulfill this delegated trust.
And if that trust is to be fulfilled, the federal government must
also be accorded the necessary means to achieve that end. If this
entails large government—and today it surely does—then large
government must be compatible with limited government. Similar
reasoning applies to all the objects delegated to the care of the
federal government.
The Declaration of Independence provided
the authoritative statement of America’s political principles. For
the first time, government was said to derive its legitimacy—its
just powers—from “the consent of the governed.” This was a turning
point in world-historical consciousness: no longer would it be
possible to argue that sovereignty belonged to governments or
kings—even if kings claimed appointment by divine right.
In order to form just government, the
people delegate a portion of their sovereignty to government to be
exercised for their benefit. The fact that only a portion of
sovereignty is ceded by the people is the origin of the idea of
limited government. The people delegate only some of their
sovereignty to government, and what is not granted is retained by
the people—the people, for example, always reserve (and can never
cede) the ultimate expression of sovereignty, the right of
revolution. The Declaration describes this right as “the Right of
the People to alter or to abolish” government when it becomes
destructive of its proper ends—namely, the protection of the safety
and happiness of the people. This right of revolution, as understood
by the Founders, was the right that secures every other right,
because it serves as a constant reminder of the sovereignty of the
people.
The Anti-Federalists never understood
these revolutionary implications; they seemed to believe still that
governments, not the people, were the ultimate repositories of
sovereignty, and that the only way to secure the rights and
liberties of the people was to weaken the power of government—as if
freedom existed only in the exceptions to government power. But as
Madison wrote, “Energy in government is essential to that security
against external and internal danger and to that prompt and salutary
execution of the laws which enter into the very definition of good
government.”
What limits the federal government is not
a limit on its power to act, but the limited range of objects
entrusted to its care—the enumerated powers of government. The
powers not delegated to the federal government nor forbidden to the
states in the Constitution (e.g., ex post facto laws, bills of
attainder, and laws impairing the obligation of contracts) are
reserved to the states. These are the police powers, which are
generally described as the power to regulate the health, safety,
welfare and morals of the citizens of the states.
In cases of conflict, the supremacy clause
of the Constitution gives preference to the federal Constitution and
laws made in pursuance of the Constitution. The supremacy clause was
described by Madison as an essential improvement over the Articles
of Confederation. Where there is no final authority to arbitrate
disputes between the federal government and the states in this
“compound Republic,” government will be paralyzed. Madison
confessed, however, that the exact boundary between the powers of
the federal government and the state governments will be impossible
to determine in advance. The precise lines of demarcation will have
to be worked out in practice. The Supreme Court—and through the
supremacy clause, the state courts—will have to determine conflicts
on a case by case basis.
An illustration of the difficulties of
drawing clear lines between federal and state authority in our
“compound Republic” is the Arizona illegal immigration bill, passed
in April 2010. The law allowed police officers to verify the
immigration status of any person after a valid stop or arrest if
there “is a reasonable suspicion that the person is unlawfully
present in the United States.” Everyone remembers the hysteria that
was unleashed when the bill passed. The President called the law
irresponsible, saying that it threatened “basic notions of
fairness.” Others said the provision of the bill relying on
“reasonable suspicion” would mandate racial profiling; and some of
the more hysterical commentators even insisted that the law was
tantamount to genocide. The Assistant Secretary of State felt
compelled to apologize to members of a Chinese delegation visiting
the United States for this egregious assault upon human rights. One
can only imagine the bemused looks on the faces of the Chinese
delegation.
The President ordered the Justice
Department to intervene. And to the surprise of many, the Justice
Department’s lawsuit did not seek to enjoin the law based on racial
profiling or equal protection or due process, arguing instead that
the law conflicted with the federal government’s exclusive power to
regulate immigration. Perhaps someone had explained to the Attorney
General that “reasonable suspicion” has been a part of our due
process jurisprudence for many years. It means that a police officer
can question on suspicion that is less than probable cause;
reasonable suspicion, of course, must be something more than a hunch
or a guess or an intuition—it must be based on articulable facts. In
addition, the Supreme Court in 1975 ruled that ethnicity could be
one of the factors determining reasonable suspicion. The Arizona
law, in contrast, disallowed any use of ethnicity in determining
whether a person could be asked about his immigration status.
In United States v. Arizona, the Federal
District Court judge enjoined the operation of the law because it
intruded upon the federal government’s exclusive power to regulate
immigration and control foreign policy. On appeal from the District
Court, one piece of evidence adduced by the Ninth Circuit Court of
Appeals that the Arizona law was an unconstitutional impingement
upon the federal government’s exclusive power to conduct foreign
policy was the fact that the President of Mexico and the heads of
several other Latin American countries had expressed severe
criticisms of the bill both in the press and in amici briefs! Rarely
do we encounter such humor in court opinions, however unintended the
humor might be.
The Constitution, of course, does not
specifically grant control over immigration to the federal
government. Instead Congress has power to “establish a uniform Rule
of Naturalization.” Control over naturalization, however, seems to
imply control over immigration—so uniform rules governing
immigration would seem, by necessary implication, to fall within the
scope of federal power. The real question here—although it was not
addressed by the District Court or the Court of Appeals—was what
power, if any, devolves upon state governments when the federal
government fails to carry out its obligations. The District Court
had candidly noted that the Arizona law was passed “against a
backdrop of rampant illegal immigration, escalating drug and human
trafficking crimes, and serious public safety concerns.” In the face
of federal inaction or manifest indifference, does Arizona have the
reserved power—indeed the obligation—to secure the safety of its
citizens? The President’s recent remarks that the border has been
secured and that it is now time to think of providing a path to
citizenship for illegal aliens is, in reality, a statement of
declared indifference to the people of the State of Arizona and to
all the border states similarly situated. Surely those states have
the constitutional right, sustained by their police powers, to
protect themselves through laws that are as unobtrusive as the
Arizona law. But in the District Court’s judgment, the Arizona law
invoked “an inference of preemption” because it placed an
“impermissible burden” on federal “resources and priorities” and
inevitably “will result in the harassment of aliens.” The burden on
federal resources stems from the fact that there will be an
increased number of requests to verify immigration status. This
increased burden will in turn force the immigration services to
reallocate resources away from other priorities. Such is the logic
of the District Court.
These reasons seem trivial when compared
to the real and pressing dangers that Arizona faces as a result of
federal inaction and indifference. Surely this is not what the
Framers had in mind when they crafted the supremacy clause, while at
the same time reserving to the states the essential responsibility
of protecting the safety and welfare of their citizens. Madison
wrote in The Federalist that “the powers reserved to the several
States will extend to all the objects which, in the ordinary course
of affairs, concern the lives, liberties and properties of the
people, and the internal order, improvement, and prosperity of the
State.” This extensive power reserved to the states should weigh
heavily on preemption decisions. In this light, the Arizona law
seems to have been a clear exercise of the state’s police powers,
and any burden imposed on the federal government to have been
incidental and insignificant.
Obamacare is another issue that tests our
understanding of the Constitution and the role of limited
government. In federal courts, the Obama administration has defended
the bill as a legitimate exercise of Congress’ power to regulate
commerce. At issue here is the individual mandate that forces
individuals to purchase health care insurance and carries a penalty
for failure to do so. Congress has the power to regulate commerce;
but does it, as here, have the power to create commerce—i.e., to
force individuals to engage in interstate commerce by purchasing
health care insurance from private providers? Another way to look at
the issue would be to ask whether, under the commerce clause,
Congress has the power to regulate inactivity, i.e., the refusal to
buy insurance. This would indeed be a novel extension of commerce
clause jurisprudence and utterly impossible to square with any
notion of commerce that was held by the framers of the Constitution.
In addition to the commerce clause
argument, the Obama administration maintains that the individual
mandate is authorized by Congress’ power to tax and spend for the
general welfare. Congress’ power here is extensive. Over the years,
the Court has generally deferred to Congress in determining what
constitutes the general welfare. This is proper, since Congress
represents the nation and what promotes the general welfare is
essentially a political question. If Congress determines that a
universal health care system serves the general welfare, then the
courts will not interfere. The power to “lay and collect Taxes,”
however, has been subject to judicial scrutiny. While Congress may
tax for the purpose of raising revenue, it may not use the power of
taxation for the express purpose of regulation. A tax that is merely
a subterfuge for regulating activities will not be allowed, although
a tax that only incidentally regulates behavior will pass
constitutional muster as long as the principal purpose is raising
revenues.
Madison argued that the general welfare
clause was actually a limitation on the federal government. Taxes
could be imposed and money spent only for the general
welfare—meaning the welfare of the whole of the American people. It
is true that Alexander Hamilton had a more extensive view of the
general welfare clause, but throughout much of our history Madison’s
view prevailed. Today, however, the idea that the general welfare
clause was ever intended as a limit on the reach of government has
been destroyed by the progressive architects of the welfare state.
In any case, if the individual mandate is
to be defended under the general welfare clause, what the plain
language of the bill calls a penalty must be regarded as a tax for
the express purpose of raising revenue. If the penalty can be sold
as a tax, the Obama administration argues, then Obamacare is
authorized by the general welfare clause. In the Florida District
Court case, the Justice Department made the wholly tendentious—not
to say absurd—argument that since the IRS was charged with
administering the individual mandate and collecting the penalties,
this was sufficient to convert a penalty into a tax. But as Florida
District Court Judge Roger Vinson remarked: “Besides the fact that
President Obama confidently assured the American people that there
would be no new taxes to support the medical insurance scheme, no
amount of administrative indirection should be allowed to convert a
penalty into a tax for raising revenue. This is not a revenue
raising measure and therefore cannot be justified under the general
welfare clause.”
But here is a somber thought: If, instead
of using the individual mandate, Congress had relied on its general
revenue-raising powers, under current Supreme Court doctrine, it is
almost certain that Obamacare would be constitutional. It would be
an example of Congress spending money for the general welfare.
In conclusion, the only certain method of defeating universal
health care and other cases of federal overreach—as it appears that
the American public desires to do—is political opposition. A
political party dedicated to genuinely limited government—not small
government—is an urgent political task. Whether the Tea Party is up
to this task remains to be seen—but it is probably our best hope.
The Tea Party will have to learn, however, that the task today is
not to weaken the power of government—it is to confine the
government to the exercise of its delegated powers and to restore to
its full vigor the partly national, partly federal form of
government that was the legacy of the Founders.