Letters from an Ohio Farmer

The American Conversation

To My Fellow Citizens:

It is Constitution Day again. Two-hundred-and-twenty-five years ago, on this day in 1787, the delegates to the Constitutional Convention in Independence Hall in Philadelphia signed the document which, when ratified by the people, would become the "supreme Law of the Land." This act was the culminating episode in the historic drama begun in the same hall 11 years earlier when the Declaration of Independence, appealing to the "Laws of Nature and of Nature's God," proclaimed to the world the experiment in self-government being inaugurated by the newly sovereign American people.  

In 1776, the American Revolutionaries had pledged their lives, fortunes, and sacred honor to what Lincoln would later call America's "philosophical cause." At the heart of that cause was the central idea from which all other American political ideas radiate, the self-evident truth that "all men are created equal."  These most American words contain within themselves the idea of limited self-government—the idea of political freedom itself: All men are equally endowed with certain unalienable natural rights, governments are instituted with the limited purpose of securing these rights, and the just powers of government are derived from the consent of the governed.

In 1787-88, in the greatest constitutional conversation the world has yet seen, the American Framers would author and the American people would authorize a Constitution intended to establish forms through which Americans might more perfectly achieve the ends set forth in 1776. The Constitution would be an instrument by which the sovereign consent of the American people might govern not willfully, but reasonably, as the cool and deliberate sense of the country.  Governing ourselves through the forms of the Constitution we would make ourselves a constitutional people, demonstrating to ourselves and to the world, as it had never been done, the capacity of mankind for self-government. 

One-hundred years ago, in his successful 1912 presidential campaign under the banner of the "New Freedom," Woodrow Wilson repudiated this American constitutionalism and the American Constitution itself as outmoded ideas that needed to be replaced by continually new ideas to fit continually new times. He repudiated the Founders' appeals to the laws of nature and to natural rights in favor of the laws of evolution, the laws of History and Progress. More than any other figure, Wilson became responsible for bringing directly into American political life the idea of a "living constitution," a constitution to complement a government whose powers must continually "evolve" and expand to meet continually evolving and ever-expanding needs.  Wilson's New Freedom was the first wave of progressivism in what would become in decisive respects a progressive century.

The New Freedom was soon followed by Franklin Roosevelt's New Deal, in which FDR, bringing up to date the famous first 10 amendments to the Constitution, proclaimed a "second Bill of Rights"—an "economic bill of rights"—that continues to set the progressive agenda to this day. These alleged "rights"—which include, among other desirable things, a well-paying job, recreation, a decent home, a good education, and adequate medial care—have in the eyes of progressives assumed constitutional status under the living constitution. They achieved the status of "entitlements," not through any amendment procedure authorized by the Constitution, but through the mysterious amendment process of history with a capital H and progress with a capital P. To secure such vast entitlements, with which we are allegedly endowed by History and Progress, government must become vast—it must become the "welfare state," which has replaced the limited constitutional government constructed by the Founders to secure our natural rights and the civil rights following from them. 

A generation after Roosevelt's New Deal, Lyndon Johnson's Great Society aimed not only to complete the New Deal, but to expand it immeasurably. "The Great Society," said LBJ, "is a place where every child can find knowledge to enrich his mind and to enlarge his talents . . . where leisure is a welcome chance to build and reflect . . . where the city of man serves not only the needs of the body and the demands of commerce but the desire for beauty and the hunger for community. . . ." LBJ's Great Society aimed not only to relieve all material needs, but to provide spiritual fulfillment to all Americans. To secure these hitherto unimaginable new entitlements would, of course, require government without limit. Limited constitutional government responsive to the cool and deliberate sense of the citizenry was buried under multiplying labyrinthine bureaucracies, staffed by supposed experts.

These three great waves of progressivism, each one offering new transformations of the Founders' Constitution, justified by endlessly evolving History and Progress, constitute an evolutionary revolution that has in the course of a century made limited constitutional government in America almost invisible. "Hope and Change" was intended as the next progressive wave. Barack Obama's promise just before his election in 2008 was perfectly in keeping with the spirit of his progressive predecessors: "We are five days away," he vowed, "from fundamentally transforming the United States of America." He wasted no time proving he meant exactly what he said.

The determined progressivism of the new President and his party sparked a widespread movement among American citizens to restore limited constitutional government in America. The historic 2010 elections brought into office a House of Representatives that insisted in unprecedented ways on respect for the Constitution. The constitutional seriousness of this movement and this Congress was greeted by progressive politicians and intellectuals with arrogant contempt. The arrogance came from the essential progressive article of faith—the belief that, above all, beliefs must go unquestioned—that history with a capital H and progress with a capital P are irrevocable, that "you can't turn back the clock."

But this could not be true, if the moral and political axioms of the American Revolution and Founding are true. Self-government and political freedom are not a wind-up clock. Repealing the President's disastrous progressive Patient Protection and Affordable Care Act (Obamacare) would be one effective way of proving this point, among innumerable other possibilities that present themselves to citizens and their representatives who are not frightened by the bogeyman of "History" and "Progress," and are determined and happy to think for themselves about what might be best for the country.  And so, a constitutional conversation began.

This is the kind of conversation the American people characteristically have at pivotal moments in our history—about the foundations, purposes, scope, and form of our government, about the rights and duties of citizens, and the responsibilities of their representatives. This series of essays modestly hopes to contribute to this urgently necessary American conversation.

Ohio Farmer

Taxation and a Republican Constitution

To My Fellow Citizens:

The Supreme Court recently held the Patient Protection and Affordable Care Act (Obamacare) to be a valid exercise of Congress's constitutional authority. Surprisingly, the Court did not find the Act constitutional under the Commerce Clause as the law's proponents had argued, but under the taxing power.  Perhaps no Supreme Court ruling in our lifetimes will be as heavily scrutinized as this one, so serious citizens will want to think about it and come to their own conclusions. 

As I noted in an earlier letter, progressives for the past century have justified expanding federal regulatory power over the economy by insisting on a broad reading of the Commerce Clause. It was a breathtakingly aggressive claim that underlay Obamacare, namely, that Congress may "regulate" commerce by mandating that individuals purchase health insurance or else face a financial penalty.  Chief Justice Roberts rejected this claim. But he then upheld Obamacare's constitutionality, nonetheless, under the taxing power.

Outraged conservatives took little solace in his rejection of the Commerce-Clause justification of the law. What difference does it make, some wondered, whether the federal government tramples our liberties under the Commerce Clause or the taxing power?  And where exactly in the Constitution does the Chief Justice find authorization for such use of the taxing power? Still, the distinction between regulation and taxation is not a case of mere semantics, and maybe this is a distinction that could make a difference.

Taxation occupies a unique place in American history and civic consciousness.  While few citizens know the origins of the Commerce Clause, nearly everyone understands that taxation somehow ignited the American Revolution.  We've all heard the phrase "no taxation without representation."  Schoolchildren learn of oppressive taxes on stamps and tea—oppressive not because British officials imposed a heavy financial burden but because they raised taxes without colonial consent.  Indeed, the colonists felt driven to resistance primarily because Parliament acknowledged no limits to its authority. 

Episodes such as the 1794 Whiskey Rebellion show that Americans' resentments over taxation persisted after the Revolution.  Nowadays elected officials often take a pledge not to raise taxes, a pledge they ignore at their peril.  In short, taxes tend to command Americans' attention and arouse their anger in ways that commercial regulations do not.  Is it mere wishful thinking to suppose that it will be more difficult for proponents of unlimited government to expand federal authority under the taxing power (than under the Commerce Clause) without alarming the sovereign people?  Chief Justice Roberts's opinion seems in some respects to throw the entire question back to the political arena.  At least to this extent, is his decision a welcome development for those Americans who don't want the Supreme Court to serve as the final arbiter of all constitutional debates?

Thomas Jefferson thought that if the Supreme Court came to be regarded as the sole interpreter of the nation's fundamental law, it would threaten the very existence of constitutional self-government.  In an 1819 letter to Judge Spencer Roane, Jefferson argued that "The constitution, on this hypothesis," would be "a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."  Jefferson preferred genuine separation of powers in which "each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action."  He believed, as did most of his contemporaries, that presidents and members of Congress shared in the responsibility of interpreting the Constitution and thus maintaining the balance essential to free government. 

When Jefferson and Alexander Hamilton quarreled over the constitutionality of a national bank, or when Federalists and Republicans in Congress quarreled over the constitutionality of Jay's Treaty, they did not submit the question to the Supreme Court for a final verdict.  The Constitution's framers never meant for the Supreme Court to become the final and sole arbiter of constitutional meaning. They expected Americans to elect legislators who think seriously about constitutional questions, and this could happen only if the people took it upon themselves to think seriously about such questions, assuming their rightful role as guardians of their republican experiment.          

Of course, Obamacare supporters, who tend to want to subject politics to bureaucracy, now wish the matter closed.  But the matter is not closed. It is very much in the hands of the American people, who have a historic opportunity to assert the republican spirit that has served them so well for more than two centuries.  The health-care debate has reminded us anew of our obligation to think about the powers we wish our government to wield.  In that sense, at least, let us hope that it will prove to be good for our political health.

Ohio Farmer

The Distributive Constitution and the Election of 2012

To My Fellow Citizens:

In recent letters (here and here), I reflected on the views of some of our learned fellow citizens on the left.  According to one of them, a professor at a public university, democracy requires that citizens enjoy material security.  Without material security, no one has the independence to be a citizen.  Without such security, a citizen lacks the self-respect to stand up for his rights.  A market economy does not provide material security.  It is too unpredictable in its support and leaves citizens at the mercy of a corporate oligarchy.  Since material security is necessary for democracy to function, and since the market cannot provide it, government must do so.  To provide this security, to which every citizen has a right, the government should redistribute wealth.

In response, I argued that what the leftist professor approves in American life would have been impossible, if his argument were correct.  If less well off citizens could not function effectively in a democracy and the corporate oligarchy was all powerful, how did laws favorable to working men get passed and candidates favoring their interests get elected?  That such laws have passed and such candidates have succeeded is a sufficient refutation of the professor's views.  Material security is not necessary for democracy, because those who passed the laws and elected the candidates did not have this security.  But consider this further evidence of how wrong the professor's critique of our democracy is.  Although the left rails that unequal wealth corrupts democracy by giving some more power than others, no one who has studied the connection between money and elections has been able to show that money can buy an election.  Favored candidates attract more money, but more money does not buy favor. 

The professor's claims about what ails our democracy are all wrong.  His remedy, redistribution of wealth, is therefore unnecessary.  If carried out, it would be paradoxical and dreadful in its consequences.  A moment's reflection will assure us that no government, no power on earth, can provide the material security he insists must be considered a right.  Any government with the power and ambition to try would become tyrannical.  The effort to insure democracy through the power of government would paradoxically extinguish freedom.

Arguments like those the left makes about redistribution and democracy do not occur only in theoretical discussions.   They apply directly to political issues.  For example, one of the professor's equally learned colleagues, a distinguished academic, a former President of the American Political Science Association, has written recently that redistribution is central to Affordable Care, the health plan passed by the Obama administration.  She criticizes her fellow leftists for their tepid support of the President.  More needs to be done, she agrees, but then admonishes them that "Affordable Care . . . is a redistributive and regulatory breakthrough" that deserves their support. 

More is at stake, however, in the Affordable Care act, she argues, than just health care.   "Affordable Care, on top of Social Security, Medicare, and Medicaid, could strengthen the bond between middle class Americans and a national government that supports security for all."  The ultimate purpose of these distributive programs, then, is to bind Americans to the national government, to make them dependent on that government.           

A virtue of academics is that they will say clearly what politicians will obscure.  And so our learned friends on the left have posed the issue before us clearly.  For about 100 years, we have sought ways to manage the changes wrought by industrialization.  Those on the left have argued that the concentration of power in corporations brought about by industrialization requires a second revolution, a movement away from the principles of the first American Revolution, a movement away from individuals relying on themselves, their families, friends, and communities, to individuals depending on the government.  Politicians on the left have tended to shy away from talk of revolution, fearing perhaps to associate themselves with such a radical change.  Instead, they and their supporters have focused on specific changes, on Social Security, Medicare, Medicaid, and Affordable Care, for example, not the principle behind such programs, which academic leftists have candidly articulated. 

The piecemeal political approach to revolution worked for a long time.  The real costs were in the future and did not have to be faced.  But now the bills for a system of government dependence are mounting and coming due.  More important, as the pieces of the revolution come together, its character is harder to hide.  It is increasingly evident that it aims to transfer power from the people to the government, so the government can transfer wealth from those it supposes have too much to those it supposes have too little.   The revolution is necessary, the left tells us, to save our independence.  But we see ever more clearly that it aims to makes us dependent on the government.  We see ever more clearly that in the name of saving democracy it will destroy democracy.

As what is at stake becomes clear, it affects our politics.  We currently suffer from political paralysis and bitter political infighting not because of our system or the influence of the media or for any of the other reasons typically offered.  We suffer from paralysis because compromising will no longer work.  Lurking behind the compromises was a fundamental disagreement.  As long as we could afford to, we avoided facing that disagreement.  But as our finances grow threadbare and the threat to free government becomes more evident, the disagreement becomes more obvious, a choice less avoidable.  The learned left is clear again about this too.  "The stakes in 2012 are as high as in any pivotal election in U.S. history (except 1860)" one of them has recently written.

The importance of the election of 2012 is one thing on which we and the left agree.  But we hope its outcome will be a turn away from the distributive constitution toward free government.

Ohio Farmer

To Secure These Rights

To My Fellow Citizens:

Rights are at the heart of American politics. Anyone wanting to understand our experiment in self government must grasp what we meant when we began that experiment by proclaiming, as self-evident truths, "that all men … are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," and that it is "to secure these rights" that "Governments are instituted among Men."  In our last letter, we reflected that the phrase "among these" is evidence that the authors of the Declaration of Independence, when listing three rights any legitimate government exists to secure, did not want to rule out the possibility of other rights deserving protection—such as the right to property.

We see the same concern reflected in the Constitution's Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Both our great founding documents, then, the Declaration of Independence and the Constitution, sought to protect against the danger that future governments might construe too narrowly the rights that defined their duties and justified their powers. Both documents explicitly reject the idea that the natural rights they enumerate are necessarily the only unalienable rights that government must protect. What they did not do and could not do is provide an exhaustive list of such rights.

Enter Franklin Roosevelt and the New Deal. FDR's New Deal presented itself as a necessary updating of the American Founding's 18th century principles to make them applicable to urgent 20th century realities.  "This Republic had its beginning," said Roosevelt in his 1944 State of the Union address, "and grew to its present strength, under the protection of certain inalienable political rights...." But,

As our nation has grown in size and stature... – as our industrial economy expanded – these political rights proved inadequate....

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all....

History had made "self-evident" to FDR and his progressive forebears that the self-evident truths of the American Founding were inadequate as a foundation for a just political order in our time. "Social justice," as Roosevelt had written in 1938, "is essentially a conception of this century. It was not visualized by the men who founded the nation." A re-founding was needed, and that is what the New Deal offered. Anyone resisting the new vision and wishing to return to the principles of the original Founding would be a reactionary.

Roosevelt's second Bill of Rights included rights to adequate employment, business opportunities, housing, medical care, education, and protection against old age, sickness, and unemployment. Those who find it hard to imagine a guarantee of economic security that is not included in this list are not thinking like New Dealers. A year before the 1944 State of the Union Address the National Resources Planning Board, an agency created to map out a domestic policy agenda for implementation after victory in World War II, had submitted a report to Congress with its own bill of social welfare rights. It included "The right to education, for work, for citizenship, and for personal growth and happiness," and "The right to rest, recreation, and adventure, the opportunity to enjoy life and take part in advancing civilization."

Replacing the Founders' understanding of unchanging natural rights with an ever-evolving wish-list under the name of rights is central to the modern liberal enterprise and is the key to understanding the boundlessness of that enterprise. The Obama administration recently demonstrated one of the problems with this approach: If any social policy goal may be proclaimed a right, any right may be regarded as just another policy goal. The Department of Health and Human Services navigated this two-way street by announcing that the Affordable Care Act required non-profit employers to offer contraceptive coverage to their employees, even if they have never done so in the past due to religious convictions. The rationale, according to HHS Secretary Kathleen Sebelius, was to strike "the appropriate balance between respecting religious freedom and increasing access to important preventive services." The implication is clear: The government is going to balance two commensurate things, religious freedom and the provision of important preventive services. For the latter to become a right, just like the former, the former needs to be whittled down to fit a domestic agenda, just like the latter.

The biggest problem with the HHS contraception rule is not that HHS made the wrong decision, but that HHS was wrong to make a decision. A properly constituted republican government protects, rather than occupying and managing, the space wherein citizens follow their consciences while securing the employment and insurance arrangements they desire. Such restraint comes naturally to a government that exists to secure a finite number of unchanging natural rights (even if it is imprudent to proclaim an exhaustive list of those rights) but is foreign to one that supposes historical progress vouchsafes an endless list of rights—so that, as a result, nothing is really a right.

Ohio Farmer

 

The Just Powers of Government

To the Members of the 112^th Congress:

In the last letter, I considered why and how it is that in the American logic of freedom, the just powers of government are derived from the consent of the governed. In this letter, I am concerned with a current development in our politics that threatens dangerously to remove our government from our consent. If the letter seems painfully burdened with acronyms, please forgive the fact as a vice inseparable from the subject.

Several lawsuits have been filed against the Patient Protection and Affordable Care Act (PPACA or "Obamacare") since it was enacted in March 2010.  The ones that have worked their way into the federal court system so far contest the law's "individual mandate," which subjects people to monetary fines if they fail or refuse to enroll in a health insurance policy.  The lawsuits' question, which the court and the people must consider, is whether the legitimate powers of the federal government respect or traduce the inalienable rights of the people by requiring them to buy a financial product from a private vendor.

One lawsuit against PPACA raises a different and equally important question: Does the law violate the constitutional principle of separation of powers?  The Goldwater Institute challenges, specifically, the constitutionality of PPACA's "Independent Payment Advisory Board" (IPAB). The Board is the law's chief mechanism for bending the medical cost curve downward by reducing the growth rate of Medicare outlays to the rate at which the Gross Domestic Product increases, plus one percent.  IPAB's 15 members will be appointed by the president and confirmed by the Senate.  Since it won’t adjust the premiums or deductibles paid by Americans enrolled in Medicare, IPAB's power derives from its mandate to set the rates at which Medicare reimburses doctors for the various services or procedures they perform.

IPAB's power is buttressed by PPACA's extraordinary protections for it, whose constitutionality is at issue.  Even though IPAB is an executive branch agency, its "legislative proposals" – the PPACA uses the term repeatedly – become law unless Congress passes a bill that cuts medical spending by an amount equal to the IPAB proposal. They become law, that is, if Congress does nothing.  If Congress tries to do something, its alternative can prevail over the IPAB proposal only if the former garners a three-fifths majority in the Senate.  The law makes no provision for citizens, such as doctors, to challenge IPAB's determinations administratively or judicially.  Furthermore, PPACA asserts the right to dictate what future Congresses may do, and when: IPAB can only be abolished, according to its provisions, by legislation introduced and enacted between February 1, 2017 and August 15, 2017.  Even if enacted in that small window, the abolition cannot take effect until 2020.

Peter Orszag, President Obama's director of the Office of Management and Budget at the time PPACA was enacted, said, "I believe [IPAB] is the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve."  He was speaking approvingly.  Democratic congressman Pete Stark, who got a 90% rating from the liberal Americans for Democratic Action in 2010, made the same point about IPAB far less fondly, calling it "an unprecedented abrogation of Congressional authority to an unelected, unaccountable body of so-called experts."

In a nation founded upon the principle that governments derive their just powers from the consent of the governed, the decision by Congress to yield so much of its sovereignty to an unelected, unaccountable body is really a decision to yield the people's sovereignty for them.  Thus, if PPACA withstands all its challenges in federal courts, an outraged public could elect a ferociously anti-IPAB Congress in 2012 and 2014 – to no avail whatsoever.  The Board remains beyond the voters' reach until after the 2016 elections – and then only for a 6½-month period, after which the door slams shut again, bolted against meddling by mere citizens for the duration of the republic.  

Like most bad ideas, IPAB is the elaboration of a less bad idea.  Its predecessors include such bodies as the Base Realignment and Closure Commission, which drew up lists of military bases for the Pentagon to close, lists that Congress could accept or reject in their entirety, but could not add to or subtract from.  If Congress did nothing, the BRAC proposal was enacted. 

"Stop us before we pander again," seems to be the legislative principle embedded in these commissions.   Or do you think that is an unfair assessment?  It seems to me that when Congress voluntarily surrenders some of its legislative power to a commission, it is admitting that rendering good government as good politics is too daunting and risky.  Wise and judicious policies, you seem to be saying, might prove to be too hard to explain to the voters; or they might be criticized by a political opponent in a 30-second television ad.  Better, then, to leave the tough calls to commissioners who derive their powers from the consent of the governed in arcane, impenetrable ways.  

Once entrenched, it is doubtful that government of the people by the commissions will ever be dislodged.  The threat comes not only from the prospect that the commissioners' power will tend to corrupt them, but from the citizenry's passive acquiescence in the attenuation of their own sovereignty.  At the heart of the American experiment is the belief that democratic government can also be good government.  If it turns out that only philosopher-kings, benevolent dictators, or unaccountable experts can provide good government, the experiment will have failed. 

IPAB, then, is not just outrageous, it is contemptible.  By out-sourcing its legislative power Congress is saying that it doesn't trust the people to make wise decisions, and doesn't trust itself to explain such decisions to them.  If IPAB stands unchallenged, the American polity will have suffered a grievous blow.

Ohio Farmer

The Lost Art of Legislation

To the Members of the 112^th Congress:

One of the head-scratching moments of the congressional debate leading up to the passage last year of the Patient Protection and Affordable Care Act (otherwise known as “Obamacare”) was then-House Speaker Nancy Pelosi’s response when asked about the contents of the 2,000-page draft law [see Ohio Farmer Letter, "Reconstitutionalizing America"].  You recall that Speaker Pelosi said, “We have to pass the bill so you can see what’s in it.”  She was not alone with this thought.  Senator Max Baucus, chairman of the Senate Finance Committee that had key jurisdiction over the health care bill, said something similar: “I don’t think you want me to waste my time to read every page of the health care bill. You know why? It’s statutory language.  We hire experts.”

Both comments generated considerable ridicule, especially from people who opposed the legislation.  But both comments bring to light a fundamental fact of modern American government: Congress no longer “legislates” (that is, passes binding universal laws) in the way the Founders intended when they wrote the Constitution.  Instead, Congress passes general statutes containing policy goals, but delegates the power to write the actual operating laws to executive branch administrators and independent agencies.  In practical terms, this means that the executive branch and independent administrative agencies, rather than Congress, actually determine the details—the real law as it will operate on citizens.  This might be acceptable except that the process of administrative government is increasingly arbitrary, and arbitrary government is the very definition of lawlessness. 

Some short sections of the health care law will require hundreds of pages of detailed regulations, which administrative experts are going to spend the next several years working out.  Sen. Baucus is right: the statutory language does not tell you how the law will operate in practice.  The 2,000 page statute will grow to perhaps 30,000 pages by the time the administrative agencies finish filling in the blanks.  Here is another wrinkle: the health care law shows that Congress is now passing “laws” that cannot take effect as written, because they are so woefully incomplete.

Two recent news items highlight this problem.  First, the health care law contains a number of mandates on insurance companies and businesses intended to correct what are widely regarded as abuses of the private marketplace for insurance and health services.  Yet the Department of Health and Human Services is handing out “waivers”—exemptions from the letter of the law—like Halloween candy to labor unions, big businesses (McDonald’s), small businesses (boutique restaurants in San Francisco), and several of the large insurance companies who are thought to be part of the problem.  The health care law’s waiver process is like telling the traffic police that they get to set a “safe” speed limit, but then allowing them to decide that different motorists get to drive at different speeds.  We’re no longer equal under the law when a government administrator can decide who has to obey a law and who doesn’t.  Prior to this moment, federal government waivers tended to be applied only to state and local governments in their implementation of federally-funded programs like welfare or highway construction or public education.  Now the government is extending waivers to private citizens and their businesses, treating equal people unequally.

The second news item ringing alarm bells is the decision of the National Labor Relations Board (NLRB) ordering the Boeing aircraft company to build its new Dreamliner airplane in Washington state, rather than South Carolina, where Boeing has already spent over $1 billion building a new assembly line for the Dreamliner [see Ohio Farmer Letter, "The Spirit of Checks and Balances"].  The NLRB based its decision on a clause in the Wagner Act that says private companies may not “retaliate” against labor unions, and argues that locating aircraft production in a non-union state amounts to “retaliation” against the unions that have struck Boeing three times in the last decade in Washington state.  The “retaliation” clause has never been interpreted this way before; and, in any case, we should be asking why an independent agency—the NLRB—gets to enforce the law, rather than the Justice Department, an executive department politically accountable to the President, working through the ordinary federal court system.   The NLRB was set up to provide labor unions a privileged position in our legal order, but it means that any company might be prohibited from moving or expanding from a unionized state to a right-to-work state.  It is doubtful Congress meant the statute to be construed this way when it was passed, or that any Congress would consent to such a construction.  As a practical matter the Boeing case is likely to be isolated, but that just makes the Boeing precedent all the more troubling, as it reveals our labor law to be arbitrary.  And the NLRB is hardly alone in this style of unaccountable government that blurs the separation of powers between the branches.  The Environmental Protection Agency operates in a similar fashion, and the new financial regulations of the Dodd-Frank law passed in response to the banking crisis of 2008 will also be determined by the administrative organs of government.

It may be necessary for Congress to delegate the working out of many details to administrative agencies.  But this practice has come with the high cost of degrading the deliberative function of Congress’s lawmaking power.  The easy delegation of the details is why many large laws are rushed to passage in a less than transparent manner.  True debate and deliberation has atrophied.  This slow abdication of legislative responsibility on the part of Congress started many decades ago, and is no simple matter to fix.  As a general principle members of Congress ought to refuse to vote for statutes that delegate large amounts of the real lawmaking to another branch.  If the health care law’s perverse consequences (such as the possibility that, without a waiver, McDonald’s would have had to drop health insurance for all its employees) were laid at the feet of Congress, then Congress would write laws more carefully, or move more quickly to amend them as they should.  In one word, is this not a good occasion for Congress to assume more responsibility for its actions?

Ohio Farmer

The Commerce Clause

To the Members of the 112^th Congress: 

Are there any limits, in principle, remaining on federal power in America?  We have seen in these letters that there are elected and appointed officials and citizens in the country who would answer, for all practical purposes: “No.” We have also seen that the question is not closed and that it is not just for lawyers or judges to decide; it belongs to all the people, and to all three branches of government.  Let us reflect on one path our nation took that, over the course of a couple of generations, made assertions of unlimited federal power commonplace in America; and let us consider some recent decisions by the courts that remind us that the constitutional conversation is not over. 

Much of the current debate over federal authority (including the lawsuit over the Patient Protection and Affordable Care Act—PPACA or Obamacare) turns on how much power Congress has under the Commerce Clause, which states that “Congress shall have Power to . . . regulate Commerce . . . among the several States.”  The Founders inserted the Commerce Clause into the Constitution to correct a deficiency in the Articles of Confederation, which led states to impose duties on goods from other states, or goods which traveled through their states.  James Madison lamented that, in some cases, it was cheaper to buy goods from Great Britain than from a neighboring state given the taxes and duties that the states were placing on the goods.  The Commerce Clause was intended to give Congress the authority to facilitate the free flow of goods among the states. 

In the late 19^th and early 20th century, states began to regulate areas like working conditions, hours, and crop production and pricing, but Progressives argued that federal regulation was necessary to bring about more reforms.  Many of these policies enjoyed (and continue to enjoy) some measure of popular support. But there was a problem for those who wished to implement the policies at the federal level: the Constitution provided no general authority to regulate businesses.  And so, Progressives and New Dealers in Congress and the White House turned to the Commerce Clause.   

For a time, Progressives and New Dealers were politically successful in promoting their agenda in Congress and the White House, but they had less success in the courts, which found that, while Congress had authority to regulate some local activities that affected interstate commerce, the authority was limited. With retirements, replacements, and threats of court packing, the Court’s position changed over time.  By 1942, the Court decided a case in a way that many believed spelled the end of any limitation on federal authority.  In Wickard v. Filburn, the Court found that the federal government could regulate wheat grown by a farmer for personal consumption under the theory that such local activity, when aggregated, could substantially affect interstate commerce.  

After Wickard, Congress passed innumerable regulations covering business and non-business activity alike based upon the Commerce Clause and the theory that, when aggregated, just about any activity could substantially affect commerce.  Over the course of decades, presidents of both parties signed legislation based upon expanding notions of federal authority, and on the popularity of the underlying legislative policy, and the courts acceded to the enterprise. But the constitutional conversation continued. In the mid-1990s, the Supreme Court struck down the Gun Free School Zones Act, finding that the federal government does not have a general police power to regulate the non-economic act of carrying a gun in a school zone.  Next, the Court struck down a provision of the Violence Against Women Act (VAWA), which permitted individuals to sue their alleged attackers for gender motivated violence.  The Court again found that non-economic violent actions could not be aggregated to establish a substantial connection to interstate commerce. 

Both of these bills were popular, passing Congress with overwhelming majorities.  And why not? Very few would argue in the abstract against banning guns at schools or prohibiting gender-motivated violence.  Given the popularity of the legislation, the Court’s decisions were first widely attacked, but over time they began to receive acceptance in quarters where few expected it. A constitutional conversation was kindled, between the branches—and among the people. Some feminists, for example, who chastised the Court for striking down VAWA, recognized that they did not like the idea of a federal government with unrestricted regulatory authority over their lives.  Citizens and their representatives began to talk not merely about whether the policy objectives sought by Congress were desirable, but whether the federal government was empowered to act in that sphere at all. 

Which brings us back to Obamacare.  Is it bad policy?  That is a very important question. But whatever we might think about that, let us not fail to give our full and best attention to the separate and even more important question: Is it constitutional?  Even the courts that have upheld the act have recognized that there is something unprecedented at play.  Never before has Congress ordered citizens to buy something, and penalized them for failing to do so. If this is permitted, what are the limits? Congress doesn’t have the power to pass any law it wants; it has the powers given to it by the American people through our Constitution—nothing less, but also nothing more. Limits matter. A law based on the assumption that the commerce power is unlimited violates the basic principle of constitutional self-government.

What limits are there to federal authority? This should be the focus of our constitutional conversation.

Ohio Farmer

A Boundless Field of Power

To the Members of the 112^th Congress:

Do the powers granted by the Constitution authorize the federal government to require private citizens to purchase health insurance policies? Leading progressive politicians and intellectuals dismiss this question as not serious—in their view the question is closed, irrevocably settled by the triumph of the New Deal. Nonetheless, the nation is taking it seriously, and is engaged in a historic constitutional deliberation on the question.

This individual mandate, as it has come to be called, is widely considered to be crucial to the Patient Protection and Affordable Care Act (PPACA), the “Obamacare” law enacted in 2010. It is considered crucial because the law prohibits health insurance companies from refusing to sell policies to people on the basis of pre-existing medical conditions, and from imposing a lifetime cap on the dollar amount of reimbursements.  In light of these provisions, it is reasonable to expect that without an individual mandate, many people will respond to Obamacare’s incentives by waiting until they’re seriously ill to buy insurance.  No health insurance company could survive if forced to operate under that arrangement, in the same way no property insurance company could survive if its customers could wait until their houses were on fire to buy homeowner’s policies.  

As part of our constitutional deliberations, lawsuits have been filed against PPACA, with mixed results; some federal judges have upheld the constitutionality of the individual mandate, and others have deemed it unconstitutional.  While the question makes its uncertain way to the Supreme Court, American citizens who are not necessarily judges, scholars or lawyers continue to wrestle with it as a matter of politics, in light of the larger question: What can the federal government do under the Constitution, and what can’t it do?

America has an instructive history of considering this question. The first big fight over it concerned the federal power to create a Bank of the United States.  When President George Washington’s Secretary of the Treasury, Alexander Hamilton, proposed such a bank in 1791, Secretary of State Thomas Jefferson objected.  He contended that because the power to create a bank was “not among the powers specially enumerated” in the Constitution, its establishment would be “a single step beyond the boundaries” drawn around the federal government, which would lead it to “take possession of a boundless field of power, no longer susceptible of any definition.” Hamilton’s position was that for each power the Constitution confers on the government it also and necessarily confers “a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power,” unless the Constitution specifically denies a particular exercise of power to the federal government. Hamilton’s argument persuaded Washington to sign rather than veto the bill creating a Bank of the United States.

Twenty-eight years later, Hamilton’s and Washington’s view was upheld in the famous Supreme Court decision, McCulloch vs. Maryland (1819).   As Chief Justice John Marshall wrote for the Court: “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” But Marshall also wrote that the government of the United States “is acknowledged by all to be one of enumerated powers,” and the “question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist.”  

The debate over Obamacare shows that, as Justice Marshall expected, the question about where to draw the line between legitimate and illegitimate exercises of federal authority is still very much alive in the American constitutional conversation.  Jefferson, so to speak, continues to argue with Hamilton. Those who challenge the constitutionality of the law seem concerned, among other things, at the “boundless field of power” Congress seems to claim when it asserts a power to compel all Americans to enter into whatever private economic relationships Congress deems convenient to its purposes. Federal district court judge Roger Vinson expressed some of this concern in the Florida case, State of Florida v. United States Department of Health and Human Services, where he wrote that "Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States."

It is true, as I remarked in my last letter, that with the entrenching and expanding of the New Deal and the Great Society, America has reached a point where “the federal government can do just about anything it wants, and can do it just about any way it wants.”  Our progressive politicians and intellectuals insist that this condition is irreversible—beyond serious question. The movement of American politics over the past two years seems to be proving that this is not the case. And so the progressive insistence that the question is closed gets louder and more desperate.  Just opening the question is a significant achievement, though it leaves much statesman’s work still to do—as Hamilton and Jefferson teach us. We can learn much from both of them as we continue to recover the kind of constitutional reasoning these letters hope to help restore to governing in our country.

Ohio Farmer

Reconstitutionalizing America

To the Members of the 112^th Congress:

To bring American government back within the bounds of the Constitution —to reconstitutionalize it—will be no easy or simple task.  How dismissive of the Constitution our government has become was memorably expressed by then Speaker of the House, Nancy Pelosi, in two widely quoted remarks about the health care bill that ultimately became the Patient Protection and Affordable Care Act (PPACA), whose constitutionality is seriously in dispute right now.  It is worth recalling her words, because they are a surface expression of an attitude toward our politics that is deeply entrenched and must be replaced by a very different attitude if we are to recover constitutional self-government. In October 2009 when a reporter from CNSNews.com asked, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Pelosi replied, “Are you serious?  Are you serious?”  Then in a March, 2010, speech, Pelosi said, “We have to pass the bill so you can find out what’s in it.”

Her rhetorical question—“Are you serious?”—was, of course, meant not to begin but to end conversation. Such contemptuous dismissal of citizens’ serious concern about constitutionality made many voters indignant last November, and they carried their well justified indignation with them to the ballot box.  The arrogant contempt continued in the sniffing dismissals that greeted the new Congress’s show of respect for the Constitution.  This arrogance comes from a belief that is held to be unquestionable. This is the belief that the New Deal irrevocably transformed America into a country whose central government has the authority to address any social or economic problem, and to mandate or proscribe any individual conduct plausibly related to alleviating that problem.  To the former Speaker and those who agree with her, it is preposterous—mind-boggling—that any 21st century American should presume to question this article of faith. The same arrogant incredulity struts and postures angrily in Wisconsin and Ohio and other states where public employee unions and their advocates in the media assert a right to collective bargaining that is somehow supposed to be regarded as sacred and beyond question. Whatever citizens may think of the merits of the question, the arrogance of such assertions sticks in the craw of those who cherish self-government.  

Pelosi’s second statement acknowledges that in this post-New Deal America, when Congress does something, it’s not really Congress that does it.  We have to pass a bill to find out what’s in it because what’s “in” it resides nowhere in the language of the legislation, but in the rulings and regulations that will be handed down, months and years after the bill-signing ceremony, by administrative agencies empowered by Congress to make all the practical policy determinations. What one New Dealer advocated in 1937 has come to pass—every important law enacted by Congress is really “a declaration of war, so that the essence of the program is in the gradual unfolding of the plan in actual administration.”  In PPACA’s declaration of war on the problem of people being uninsured, under-insured, or over-insured, it creates 159 new federal entities to devise and execute a battle plan.

Representative Pelosi is right about the way America is governed now: The federal government can do just about anything it wants, and can do it just about any way it wants.  It can do this because, in the course of the last two generations, the federal government has assumed responsibility for the social and economic well-being of every American.  This required the creation of programs for managing in minute detail all the social and economic relations between all the different members and segments of American society—employers and employees, producers and consumers, doctors and patients, husbands and wives, parents and children, and on and on. Because Congress cannot possibly write legislation governing so many details of so many interactions, it must outsource rule-making to boards, agencies and commissions, such as the Elder Justice Coordinating Council or the Cures Acceleration Network created in PPACA.   

As the New Deal was gathering steam the Supreme Court held, in 1935, that such “delegation run riot” violated the Constitution’s assignment of legislative power to Congress.  That is, the Constitution does not permit Congress to delegate its powers to any other governmental entity.
The Court has never explicitly overturned that decision, though it has implicitly negated it over the subsequent 76 years by acquiescing as Congress plunged ahead in riotous delegation.  When Congress delegates real governance in this way to agencies not answerable to the American people, it creates the conditions for lawless policy, subjecting every detail of American life to regulators bound by nothing but their own will.  

In the reading of the Constitution with which the newly elected House of Representatives began its first session, one hopes that every member gave full attention to Article One, Section One: “All legislative powers herein granted shall be vested in a Congress of the United States.” Supreme Court justice Hugo Black famously wrote about the First Amendment that “‘No law’ means no law.”  By the same token, we cannot reconstitutionalize American government until jurists, legislators, and citizens begin to insist, “‘All legislative powers’ means all legislative powers.”

This reconstitutionalization would have been assisted if the House had also sat for a reading of the Declaration of Independence, especially the part about governments “deriving their just powers from the consent of the governed.”  The 62nd Federalist Paper warned us against the sort of hyperactive government needed to secure every citizen’s socioeconomic well-being: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be tomorrow.”  The predicament becomes much worse when the blizzard of edicts is issued, not by “men of our own choice,” but by appointed and usually life-tenured civil servants who cannot be removed or rebuked by mere citizens.  This arrangement dilutes and attenuates the consent of the governed so severely that it deprives the government of what the founders considered the only source of legitimate power.   We should bend our efforts to recovering the full range and authority of the constitutional consent from which the just powers of government are derived.

Ohio Farmer