The Volokh Conspiracy

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is a start at a topic that is worthy of much additional scholarly exploration.

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal.

Last week, Dale Carpenter blogged about a particular amicus brief filed in U.S. v. Windsor, the Defense of Marriage Act (DOMA) case. In this brief, Dale, as well as co-conspirators Jonathan Adler, Randy Barnett, and Ilya Somin, set forth a “federalism-based” argument against DOMA. With all due respect to my co-conspirators, I agree with Ed Whelan at National Review Online that the argument is unsound.

Section 3 of DOMA provides: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” It is codified at 1 U.S.C. 7, in the “Dictionary Act,” where it takes its place among a number of similar — though less controversial — definitions and interpretive rules that apply throughout the U.S. Code.

The “federalism” brief argues that this provision exceeds the enumerated powers of Congress and impermissibly trenches upon the power of the States over domestic relations. How can that possibly be so? This provision defines the word “marriage” only for purposes of federal law. Surely Congress has the power to define the words that it uses in its own statutes.

DOMA Sec 3, like all definitional provisions, is essentially a cut-and-paste function. Where you see X, you should read Y. Obviously Congress could simply have erased X throughout the US Code and replaced it with Y. Likewise, presumably, Congress could have added an “X shall mean Y” definitional section at the end of every single statute. And so, I can’t see any objection to a global definition at the beginning of the U.S. Code.

It seems to me — as a matter of federalism, at least — that such a definition could permissibly piggyback on state law entirely (“‘marriage’ shall mean marriage as defined by state law”), piggyback on state law partially (“‘marriage’ shall mean marriage as defined by state law, so long as it involves only one man and one woman”), or piggyback on state law not at all (“‘marriage’ shall mean a tuna fish sandwich”).

Indeed, the general presumption is against piggybacking at all. See Jerome v. United States, 318 U.S. 101, 104 (1943) (“in the absence of a plain indication to the contrary, … Congress when it enacts a statute is not making the application of the federal act dependent on state law.”).

Now, of course, one can imagine a problematic case, in which the definition itself runs afoul of some substantive constitutional provision. “Marriage means only a Catholic union between two Catholics as husband and wife.” And perhaps DOMA is such a case. But the problem, if there is one, has nothing whatsoever to do with federalism.

I analyzed these sorts of definitional and interpretive provisions at length in my first article, Federal Rules of Statutory Interpretation, which was published in the Harvard Law Review in 2002. As it happens, I honed this article while clerking for Justice Kennedy, and it was secretly disappointing that there was no opportunity for the Court to cite the article that Term. Now, at last, thanks to my co-conspirators, perhaps its time has come!

Over the past few days, the Court has been treated to an avalanche of briefs submitted by law professors, professional associations, prominent Republicans, and even football players arguing that California’s Proposition 8 and Section 3 of the Defense of Marriage Act are unconstitutional.  Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.  The federal govt can have no legitimate interest in regulating beyond its enumerated (and necessarily and properly implied) powers.  If DOMA Section 3 does not serve any legitimate interest — indeed, if a sweeping federal determination of marital status is constitutionally prohibited — then Section 3 cannot be justified under any level of scrutiny that might apply under equal-protection principles.  As we express it in the summary of the argument:

Before this Court addresses whether DOMA denies equal protection of the laws, there is a prior question of federal power. This question is prior not only because DOMA cannot stand if it falls outside Congress’s authority but also because DOMA can only survive an equal-protection challenge if it serves federal interests within Congress’s legislative jurisdiction. As Chief Justice Marshall recognized in McCulloch v. Maryland, only ends “within the scope of the constitution” are “legitimate.” 17 U.S. (4 Wheat.) 316, 421 (1819). That is true regardless of the level of scrutiny that this Court applies to Ms. Windsor’s equal-protection claim.

DOMA falls outside Congress’s powers. Marriage is not commercial activity, and DOMA is not limited to federal-benefit programs that might rest on the Spending Clause. Any action by Congress that falls outside its specifically enumerated powers must be justified under the Necessary and Proper Clause, and DOMA cannot pass that test. DOMA’s definition of marriage is not “incidental” to an enumerated power, see Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2591 (2012), because—as the Bipartisan Legal Advisory Group has said—its purpose is to make social policy regarding domestic relations rather than “carry into execution” some federal enumerated power. DOMA’s definition is also not “plainly adapted” to an enumerated end, see McCulloch, 17 U.S. (4 Wheat.) at 421, because it applies to more than 1100 federal statutes at once. Congress has never even considered how defining marriage to exclude same-sex couples will affect most of these statutory regimes, and BLAG does not defend DOMA in those terms. Finally, DOMA’s definition is not “proper,” see Printz v. United States, 521 U.S. 898, 923-24 (1997), because it violates the States’ equal sovereignty and lacks a limiting principle to cabin its usurpation of state control over domestic relations.

“[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.” Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). DOMA represents an unprecedented intrusion into this domain. That is true even though Congress has enacted statutes, such as for cross-border enforcement of child-custody and support orders, within the sphere of domestic relations. Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field—such as the power to define the basic status relationships of parent, child, and spouse—are reserved to the States.

Congress’s establishment of a competing federal definition of family undermines the States’ sovereign authority to define, regulate, and support family relationships. Federal law is massively intertwined with state law, and state officials implement many federal programs, like Medicaid, in parallel with their own legal regimes. DOMA thus wreaks confusion and imposes substantial administrative costs that undermine States’ attempts to define marriage for themselves. These contradictory legal regimes impose costs on individuals as well, who cannot rely on a single body of law to settle their domestic status or hold a single set of officials politically accountable.

DOMA’s appropriation of the power to define marriage cannot be justified as simply defining a term relevant to administering federal programs. The statute is not called the “Defense of Marriage Act” for nothing: Congress did not act, say, to make ERISA function more smoothly, but rather because it wished to establish and promote a national definition of marriage to compete with States’ changing definitions. BLAG’s argument in defense of DOMA could not be clearer on this point. It asserts that “the federal government has the same latitude as the states to adopt its own definition of marriage for federal-law purposes.” Br. 19.

BLAG is wrong. The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States’ policy judgments as if it had the same authority to make domestic-relations law as they do. That is the difference between a government with a general police power and a government of limited and enumerated powers. And it is sufficient to decide this case.

While sounding in federalism principles, the argument is ultimately aimed at the equal protection analysis the Court is set to review.  It is an argument that there is, in fact, a federalism component in the equal protection principles made applicable to the federal government through the Fifth Amendment’s Due Process Clause.  It is thus different from the 10th Amendment decision by Judge Tauro of the Massachusetts District Court in a similar case challenging DOMA.  Our argument doesn’t rely on the 10th Amendment, but on limits on federal power that would exist even without that amendment.  We take no position in the brief on whether there is also a 10th Amendment problem with DOMA.

The argument is largely the brainchild of Ernie Young, who led the drafting effort, along with the superb attorneys Roy Englert, Carina Cuellar, and Erin Blondel at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP.  You can read the entire brief here.

 

My wife Alison Somin and University of San Diego law professor Gail Heriot have published a short article in Engage criticizing recent claims that the Thirteenth Amendment, which bans “slavery” and “involuntary servitude,” and authorizes Congress to pass “appropriate” enforcement legislation, actually gives Congress broad authority to legislate on a wide range of other issues:

[W]hen one of the authors of this essay told a friend that she was going to an all-day academic conference on contemporary applications of the Thirteenth Amendment, he expressed shock that there could be any need to discuss this subject and inquired if he had missed a campaign proposal by Newt Gingrich to revive chattel slavery.

He was joking—obviously. Hardly anyone is foolish enough to believe that chattel slavery is in danger of making an imminent or not-so-imminent comeback in America.... Nevertheless, there has been a growing movement in both academia and the halls of Congress to use the Thirteenth Amendment’s Section 2 to address a variety of social ills thought to be in some way traceable back to slavery. This movement has had its greatest recent success with the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA). In passing that law, Congress relied solely on its Section 2 constitutional authority for its ban on crimes motivated by race and color....

The HCPA is not the only effort to make use of Section 2 in light of the breadth of the Jones decision. Scholarly articles argue that Section 2 authorizes hate-speech regulation; bans on housing discrimination based on sexual orientation; federal civil remedies for victims of domestic violence; federal child labor bans; bans on racial profiling; minimum-wage laws like the Fair Labor Standards Act; federal regulation of the mail-order bride industry; bans on race-based jury peremptory challenges; regulation of racial disparities in capital punishment; regulation of environmental problems in African-American communities; state laws like Colorado’s Amendment 2 that prohibit states and localities from passing bans on sexual orientation discrimination; regulation of the use of the Confederate battle flag; laws that aim to protect employees’ privacy and autonomy; federally funded job-training programs for the urban underclass; federal guarantees of public education; a federal ban on rape; anti-sexual harassment laws; legislation protecting “reproductive freedom”; bans on payday lending; and even changes to our nation’s “malapportioned, undemocratic presidential election system” because of its adoption on the alleged basis of “appeasement to southern slaveholding interests.” [footnotes omitted].

The Thirteenth Amendment is an attractive vehicle for advocates of nearly unlimited federal power because a broad interpretation of it would enable Congress to circumvent the limits the Supreme Court placed on Congress’ powers under the Commerce Clause and the Fourteenth Amendment in cases such as United States v. Lopez, United States v. Morrison, and NFIB v. Sebelius. Unlike a law authorized by the Commerce Clause, a law authorized by the Thirteenth Amendment need not have any connection to interstate commerce or “economic activity.” Unlike most parts of the Fourteenth Amendment, the Thirteenth Amendment is also not limited to regulating action undertaken by state governments, since it bans even purely private slavery and involuntary servitude.

The broad vision of the Thirteenth Amendment relies on nineteenth century precedent claiming that the Amendment was meant to ban the “badges and incidents” of slavery as well as slavery itself. But Gail and Alison effectively argue that these concepts were originally understood to be fairly narrowly construed. I would add that a broad interpretation of “badges and incidents” is inconsistent with the text of the Amendment itself, which bans “involuntary servitude,” as well as slavery. If the Amendment’s ban on slavery also covers anything even remotely connected to slavery as a “badge” or “incident” thereof, then there would be no need to include a separate ban on “involuntary servitude.” After all, such a broad theory of badges and incidents would surely make the ban on involuntary servitude completely superfluous. If anything qualifies as a badge or incident of slavery, involuntary servitude does.

So far, the broad interpretation of the Thirteenth Amendment has been primarily advanced by liberals. But, as Gail and Alison note, conservatives are starting to get in on the act as well, including in recent efforts to enact a federal law banning sex-selective and race-selective abortions.

On Tuesday, the U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights will hold a hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.” Senator Dick Durbin (D-Ill.) is Chair of the Subcommittee, and Senator Ted Cruz (R-Texas) is the Ranking Member. The Subcommittee has solicited letters from the public. My letter is below.

—–

Feb. 8, 2013

Dear Senator Cruz:

I am submitting this letter for the Feb. 12, 2013, Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.”

To begin with, the Subcommittee should acknowledge that crime reduction policy has been a great success in the United States in recent decades. For example, in the early 1980s, the U.S. homicide rate was more than 10 per 100,000 population. Today, that rate has fallen by over half, to under 5. This is comparable to the early 1960s. Overall rates of violent crime have also fallen sharply since their peak of several decades ago.[1]

There are many causes for this progress. Perhaps one of them is that today, 41 of the 50 states respect the constitutional right to bear arms, so that a law-abiding adult can obtain a permit to carry a concealed firearm for lawful protection, or even carry without a permit in a few states. In contrast, in the early 1980s, only about half a dozen medium or small states provided a fair system for licensing the carrying of firearms.

Second, the exploitation of the Newtown murders as an occasion to impose a plethora of new anti-gun laws is unwise. Professor Gary Kleck, of Florida State University, is by far the most eminent worldwide scholar on quantitative data about firearms, and the effect of firearms laws. His book Point Blank: Guns and Violence in America was the winner of the Michael J. Hindelang Award of the American Society of Criminology, for “the most outstanding contribution to criminology” in a three-year period.

Kleck’s 2009 article “The worst possible case for gun control: mass shootings in schools” [American Behavioral Scientist 52(10):1447-1464] explains why gun control laws enacted as part of an inchoate desire to “do something” after an atrocious crime such as a mass murder in a school are particularly unlikely to prevent future such crimes. Rather, the “do something” anti-gun laws typically amount to an expression of rage against guns or gun owners, and fail to make children safer.

Regarding some particular proposals that have been raised, as alleged responses to Newtown:

The “assault weapons” issue is one of the most long-standing hoaxes in American politics. The guns suggested for prohibition do not fire faster, nor do they fire more powerful ammunition, than guns which are not singled out for prohibition. External features such as telescoping stocks, or forward grips, make it easier for a user to control the firearm, to shoot it accurately, and to hold it properly. Features which make a firearm more accurate are not a rational basis for prohibition.[2]

Magazines holding more than 10 rounds are not “high capacity.” Semi-automatic handguns constitute over 82% of new handguns manufactured in the United States.[3] A large percentage of them have standard, factory capacity magazines of 11 to 19 rounds. The AR-15 type rifle has for years been the best-selling rifle in the United States. The factory standard magazine for an AR-15 rifle is 30 rounds.

Assertions by some prohibitionists that the aforesaid common guns and common magazines are only made for mass murder are a malicious libel against the millions of peaceable Americans who own these self-defense and sporting tools.

Pursuant to District of Columbia v. Heller, such firearms and magazines may not be prohibited, because they are “typically possessed by law-abiding citizens for lawful purposes.” 554 U.S. 570, 625 (2008). As Heller explained, the Second Amendment prohibits prohibition of “an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose” of self-defense. Id. at 628.

Senator Feinstein’s prohibition bill targets an enormous class of arms. Taking into account the at least 4 million AR-15 rifles, plus everything else, the Feinstein ban would likely apply to at least 10 million firearms.

As for the magazines, the Feinstein ban does not focus solely on genuinely “high capacity,” non-standard magazines (e.g. 75 or 100 rounds) but instead bans common magazines holding 11 or more rounds; the gigantic class of what she would ban probably numbers at least several tens of millions, and perhaps much more.

That in itself is sufficient, according to Heller, to make prohibition unconstitutional.

The conclusion is reinforced by Heller’s observation that handgun prohibition was unconstitutional “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Id. at 628. For substantive rights (as opposed to procedural ones), the two main standards are Strict Scrutiny and Intermediate Scrutiny. The former is for most situations of racial discrimination by government, and for most types of content-based restrictions on speech. The latter is used for government discrimination based on sex, as well as for most “time, place, and manner” regulations of speech in public places.

So we know that handgun prohibition fails Strict Scrutiny and also fails Intermediate Scrutiny. Although formulations of Intermediate Scrutiny vary from case to case, the general approach is that to pass Intermediate Scrutiny, a law must involve “an important government interest” and must “substantially” further that interest.

Now consider Intermediate Scrutiny as applied to handguns. Handguns constitute approximately one-third of the U.S. gun supply. They are used in about half of all homicides.[4]

And yet, a handgun ban fails Intermediate Scrutiny. If a handgun ban fails, then the bans on magazines and on so-called “assault weapons” must also fail.

The large majority of firearms banned by Sen. Feinstein’s bill are rifles. Rifles constitute about a third of the American gun supply. But rifles account for fewer than 3% of U.S. homicides—fewer than blunt objects such as clubs or hammers. The rifles covered by the Feinstein bill would account for even less.

Because handguns (very frequently used in crime) cannot be banned under Intermediate Scrutiny, rifles, or a subset of rifles (rarely used in crime) cannot be banned either.

There are no solid national statistics about the current use of 11+ magazines in crime. Given that 11-19 round magazines are standard for a large fraction of modern handguns, one might guess that 11+ round magazines would be used in some crimes. Even so, such magazines would be used less often in crime than handguns in general. Thus, a magazine ban also fails Intermediate Scrutiny.

It is important to remember that when applying Intermediate Scrutiny to a Second Amendment question, Heller’s methodology (by announcing that a handgun ban fails Intermediate Scrutiny) is that one must not consider solely the criminal uses of an arm. One must also consider the frequency of an arm’s use by “law-abiding citizens for lawful purposes.” The sheer quantity of what Senator Feinstein would ban is itself evidence that the banned firearms and magazines are “typically possessed by law-abiding citizens for lawful purposes.”

Heller makes it clear that some non-prohibitory controls are permissible. Because the Heller case was about a gun ban, the Court did not deeply explore the contours of legitimate non-prohibitory controls. However, the Court has said enough to at least raise questions about the constitutionality of “universal background checks.”

It is often said, by anti-gun lobbyists, that 40% of firearms sales take place today without checks. Notably, the study on which this claim is based was conducted before the National Instant Criminal Background Check System became operational.

Besides that, a great many private transfers of firearms take place between family members, or other persons who have known each other for many years.

More fundamentally, private transfers are not with the proper scope of Congress’s power to regulate “Commerce . . .  among the several States.” Pursuant to federal law since 1968, private sales may only take place intra-state. 18 U.S.C. §922(a). They are not interstate commerce. Nor, indeed, are they necessarily commerce of any sort, no matter how broadly defined, since many such transfers are gifts.

In Printz v. United States (1997), Justice Thomas’s concurring opinion suggested that a mandatory federal check on “purely intrastate sale or possession of firearms” might violate the Second Amendment. 521 U.S. 898, 938 (2007).

This view is supported by the Supreme Court’s opinion in District of Columbia v. Heller. There the Court provided a list of “longstanding” laws which were permissible gun controls. Heller at 626-27. The inclusion of each item on the list, as an exception to the right to keep and bear arms, provides guidance about the scope of the right itself.

Thus, the Court affirmed “prohibitions on the possession of firearms by felons and the mentally ill.” Felons and the mentally are exceptions to the general rule that individual Americans have a right to possess arms. The exception only makes sense if the general rule is valid. After all, if no-one has a right to possess arms, then there is no need for a special rule that felons and the mentally ill may be barred from possessing arms.

The second exception to the right to keep and bear arms is in favor of “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” This exception proves another rule: Americans have a general right to carry firearms. If the Second Amendment only applied to the keeping of arms at home, and not to the bearing of arms in public places, then there would be no need to specify the exception for carrying arms in “sensitive places.”

The third Heller exception is “laws imposing conditions and qualifications on the commercial sale of arms.” The word “commercial” does not appear because the Supreme Court was trying to use extra ink. Once again, the exception proves the rule. The Second Amendment allows “conditions and qualifications” on the commercial sale of arms. The Second Amendment does not allow Congress to impose “conditions and qualifications” on non-commercial transactions.

Federal law has long defined what constitutes “commercial sale” of arms. A person is required to obtain a Federal Firearms License (and become subject to many conditions and qualifications when selling arms) if the person is “engaged in the business” of selling firearms. This means:

a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms;

18 U.S.C. §921(a)(21)(D). Of course a person who is “engaged in the business,” but who does not have a FFL, is guilty of a federal felony every time he sells a firearm. 18 U.S.C. §§922(a), 924.

Currently, the federal NICS law matches the constitutional standard set forth in Heller. NICS applies to all sales by persons who are “engaged in the business” (FFLs) and does not apply to transfers by persons who are not “engaged in the business.”

President Obama has already ordered the Bureau of Alcohol, Tobacco, Firearms and Explosives to inform FFLs about how they can perform a NICS check for private persons who would like such a check. On a voluntary basis, this is legitimate, but it would be constitutionally dubious to mandate it.

Finally, there has been talk of new federal laws against gun trafficking and against straw purchases. Fortunately, gun trafficking and straw purchases are already illegal, and there are many people who have the federal felony convictions to prove it.

Allegedly, federal prosecutors will be more willing to enforce the already-existing bans on trafficking and straw purchases if the laws are restated by enacting new legislation. A simpler approach would be for the President or the Attorney General to order U.S. Attorneys to give greater attention to the enforcement of the existing laws. Moreover, new statutes, especially when drafted in a “do something” crisis atmosphere may turn out to be highly overbroad, and to impose harsh new penalties on persons who were not the intended targets of the new statutes. The poorly-named “USA PATRIOT Act” should provide a cautionary example.

Below are some articles which might be interest to the Subcommittee.

“Guns, Mental Illness and Newtown.” Why random mass shootings have increased and what to do about it. Wall Street Journal. Dec. 17, 2012. http://online.wsj.com/article/SB10001424127887323723104578185271857424036.html.

“Arming the right people can save lives.” Good guys with guns have managed to thwart many mass attacks. Los Angeles Times. Jan. 15, 2013. http://www.latimes.com/news/opinion/commentary/la-oe-kopel-guns-resistance-nra-20130115,0,955405.story.

My U.S. Senate Judiciary Committee testimony on gun violence. Jan. 30, 2013. http://davekopel.org/Testimony-Senate-Judiciary-Kopel-1-30-13.pdf.

“Ronald Reagan’s AR-15.” Volokh.com. Jan. 15, 2013. http://www.volokh.com/2013/01/15/ronald-reagans-ar-15/.

“A Principal and his Gun.” How Vice Principal Joel Myrick used his handgun to stop the school shooter in Pearl, Mississippi. By Wayne Laugesen. Boulder Weekly. Oct. 15, 1999. http://davekopel.org/2A/OthWr/principal&gun.htm.

Pretend “Gun-free” School Zones: A Deadly Legal Fiction. 42 Connecticut Law Review 515 (2009). http://ssrn.com/abstract=1369783.

“Gun-Free Zones.” Wall Street Journal, April 18, 2007. The murders at Virginia Tech University. http://davekopel.org/2A/OpEds/Gun-Free-Zones.htm.

 

Sincerely,

David B. Kopel

Research Director, Independence Institute

Associate Policy Analyst, Cato Institute

Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law.

Colorado’s Constitution (Art. X, sect. 20) is the Taxpayer’s Bill of Rights. Like similar provisions in other states, Colorado’s TABOR requires voter approval for tax increases, and for most spending increases that exceed inflation plus population growth. Several state legislators have filed suit in federal court to have TABOR declared unconstitutional. Allegedly, requiring voter approval for tax or spending increases violates Article IV, sect. 4 of the U.S. Constitution, which provides: “The United States shall guarantee to every State a Republican Form of Government. . . .”

In federal district court, the Colorado Attorney General filed a motion to dismiss Kerr v. Hickenlooper, based on the argument that RFOG claims are non-justiciable. That motion was denied, and the case is currently on interlocutory appeal to the 10th Circuit.

On Friday, I filed an amicus brief on behalf of the Independence Institute and the Cato Institute. The brief draws heavily from Rob Natelson’s article, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause. 80 Texas Law Review 807 (2002). Natelson shows that the Founders consistently used the words “republic” or “republican” to refer to governments which had direct democracy. As the brief summarizes an analysis of every known Founding-Era dictionary: “Not one of these sixteen definitions from nine different Founding-Era definitions contained the least suggestion that a republic had to be purely representative.”

Moreover, the Supreme Court, in Luther v. Borden and Minor v. Happersett, has stated that the admission of a State into the Union is a conclusive determination that the State, at the time of admission, had a Republican Form of Government. Significantly:

In 1907, Congress admitted Oklahoma into the Union, although Oklahoma’s Constitution contained very strong provisions for initiative and referendum (Okla. Const., art. V, §§1-7) and provided for a mandatory referendum before the legislature could incur debt. Id. art. X, §25. Similarly, in 1912, Congress admitted New Mexico with a constitution that specifically contemplated enactment of laws, including fiscal measures, by citizen initiative. N.M. Const., art. XIX, §3.

Opponents of direct democracy rely heavily on a line from James Madison’s Federalist no. 10. They are misreading the document, however. Madison was criticizing pure democracy (no representation, no magistrates). A fuller examination of The Federalist shows that direct democracy was an accepted feature of what was considered to be a “republic.” See Federalists 6, 39, 43, 55, 63.

 

 

Mike Ramsey has a nice post over at the Originalism Blog.

This will be my final post of the debate with guest-blogger Rick Pildes about whether a treaty can increase the legislative power of Congress. In this post, I will just make some brief concluding remarks.

1 Rick has been at pains to suggest a fundamental disagreement between Ilya and me. This is tactically clever – opening up a second front. And Ilya and I do have an interesting theoretical disagreement. But on the fundamental point — the point on which Rick and I agreed to debate, the point on which I wrote in the Harvard Law Review, the point on which the Court has granted certiorari — Ilya and I are in perfect agreement with Henry St. George Tucker’s leading treatise, with Senator Wilson Cary Nicholas during the Louisiana Purchase debate, with the Supreme Court in Mayor of New Orleans v. United States, and with Justice Scalia at oral argument last term: a treaty cannot increase the legislative power of Congress.

2 In my last post, I pointed out that Missouri v. Holland is in deep tension with Reid v. Covert, and that it is Rick’s burden to explain why a treaty cannot empower Congress to violate the Bill of Rights (or Article I, section 9, or certain structural limits like the anti-commandeering principle) but can empower Congress to exceed its enumerated powers. Rick’s most recent post acknowledges that his approach has this “Reid v. Covert ‘problem’” and that it is “a genuinely serious question.” But he makes no attempt to answer it. Instead, Rick resorts to jujitsu. This is “every bit as much a question for Nick,” he insists, and leaves it at that.

But Reid v. Covert does not pose a problem for me. The treaty power is a power given to the President in Article II, and forbidden to the states in Article I, section 10; thus it is not a reserved power of the states under the Tenth Amendment. If a treaty is self-executing, then it creates domestic law of its own force, per the Supremacy Clause, and that law must be consistent with all restrictions on the content of domestic law — the Bill of Rights, etc. However, it need not necessarily be on the same subjects enumerated in Article I, section 8 — a section that, by its terms, enumerates the lawmaking powers of Congress, not the treatymaking powers of the President. About all this, Rick and I actually agree (though he scarcely lets on that we do).

If, however, a treaty purports to promise that Congress will make domestic law in our usual way, via Article I, section 7, (as in Missouri v. Holland and Bond v. United States), then all the usual restrictions apply to any such acts of Congress. Congress must act via biacameralism and presentment (even if the treaty says that it need not); Congress cannot violate the Bill of Rights (even if the treaty says that it must), see Reid v. Covert; Congress cannot suspend habeas in peacetime (even if the treaty says that it can); Congress cannot commandeer state officials (even if the treaty says that it can); — and Congress cannot exceed its enumerated powers (even if the treaty says that it must), see Executing the Treaty Power.

It is only this very last bit, about enumerated powers, on which Rick disagrees — his one exception to the rule. This is the “Reid v. Covert ‘problem’ that [his] approach has.” It is a problem that he has acknowledged but made no attempt to solve.

3 Finally, I am obliged to point out that Rick has never offered a textual argument for his position, though I twice challenged him to do so (here and here). In his six long posts, he never so much as quoted the relevant constitutional clauses. Again, before 2005, defenders of Holland never needed a textual argument, because they relied on an ostensibly dispositive bit of drafting history. But now that this purported history has been debunked, see Executing the Treaty Power at 1912-18, the defenders of Missouri v. Holland will surely need to return to the constitutional text, to see what it actually says. On careful reading, it does not entail that a treaty can increase the legislative power of Congress.

In conclusion, let me offer my heartfelt thanks to Rick Pildes for conducting such a spirited debate on these pages. Rick signed on for a one-on-one debate, but I’m afraid that my excellent and irrepressible co-conspirators, Ilya Somin and Eugene Kontorovich, made it something more like three-on-one. Rick never complained, and he argued eloquently. I say again: he is the most worthy adversary that I have encountered on this topic. Thank you for your excellent posts, Rick.

Here, in chronological order, are links to all of our prior posts in this series.

1/13 Rosenkranz
1/13 Kontorovich
1/14 Pildes
1/16 Rosenkranz
1/16 Pildes
1/16 Rosenkranz
1/18 Pildes
1/19 Somin
1/19 Rosenkranz
1/20 Rosenkranz
1/20 Somin
1/21 Pildes
1/21 Somin
1/21 Kontorovich
1/22 Rosenkranz
1/27 Pildes
1/27 Somin
1/27 Konorovich
1/28 Rosenkranz
1/29 Rosenkranz
1/30 Rosenkranz
2/2 Pildes
2/3 Somin

I will return to this topic when the briefing begins in Bond v. United States.

Hopefully, I will be able to leave the treaty power issue alone for a while after this post, but let me finish elaborating my views in the context of also responding to the series of posts from Nick and others since my last posting.

1.  My principal argument has been directed against the specific limit on the treaty power that Nick argues follows from the Constitution’s text.  As I said in my initial post, I believe there might well be some constitutionally derived limits on the treaty power, but that Nick’s particular argument as to what those limits are is not convincing.  Curtis Bradley expressly agrees with me on that.   As I read him, Ilya appears to as well, but I’m not sure he has fully worked out his view yet.  But I don’t think anyone in this exchange has endorsed the specific view that is unique to Nick:  that self-executing treaties can override federalism constraints, but that non-self executing treaties, followed by implementing legislation, cannot.

It was Nick’s particular theory that I was primarily debating, not the full Missouri v. Holland set of issues.  At times, the discussion has run the former and the latter together, but to clarify what’s at stake, we need to be careful to keep Nick’s theory separate from other theories on how the treaty power might be constitutionally bounded.   If there are limits, we need a different account than Nick’s of what they might be.

2.  Further on Nick’s particular theory:  Nick’s theory has the same Reid v. Covert “problem” that my approach has, though nothing in Nick’s recent post on that issue recognizes that.  A longstanding question in this area has been if treaties cannot override individual rights provisions in the Constitution, why should they be able to override federalism-based constitutional provisions/doctrines (leave aside for now whether it’s actually right to conceptualize Congress as “overriding” any authority the Constitution otherwise grants states when Congress is enforcing treaties).

That’s a genuinely serious question, but it’s every bit as much a question for Nick as for me.  Nick’s view is that self-executing treaties can override federalism constraints — but of course, Nick does not believe self-executing treaties can override individual rights provisions of the Constitution.  So he, too, must give an account of why federalism constraints are treated differently than individual rights constraints when it comes to the scope of the national government’s power to adopt and enforce treaties.

3.  The same point is true about the debate on the historical evidence that Nick and I were having — though here I am guilty of not expressing my point clearly enough.  I still do not see virtually any historical evidence Nick can offer to support the specific understanding of the Constitution that he is advancing.  That is, I do not see any of the sources taking the view that the national government can expand the legislative power it otherwise has via self-executing treaties but not via non-self executing treaties.

However, it is definitely true that throughout U.S. history, particularly before the Civil War, one can find many statements from  political figures that treaties cannot expand the legislative power of Congress.  That is what Nick’s sources say and one could find many similar statements.  Some of my earlier posts inadvertently blurred this distinction, so I want to be clear that the anti-Holland view has been expressed throughout U.S history, especially by Southerners before the Civil War.  My reading of the record was that this was always a minority view, but at the point we start debating majority v. minority views, I recognize we are getting into more complex historical terrain.  It is Nick’s particular view that has virtually no historical support of which I’m aware.

4.  Putting Nick’s theory to the side, what are the more plausible places to look, in my view, for limits on the treaty power (in addition to the widely recognized Reid v. Covert, individual rights limitations)?  On this issue, I agree with a good deal of what Curtis Bradley has to say, at least in theory.  I also think any limitations have to apply the same way to self-executing and non-self-executing treaties; I don’t see any constitutional basis for distinguishing the two.  Turning then to those potential limits, I see three such possible limitations, at least in theory:

(1) Any legislation that purports to rest solely on Congress’ powers to implement treaties must actually be appropriately tied to the purposes, principles, and text of the treaty being implemented.  Federalism values, as well as other constitutional values, can influence judicial judgments of whether such legislation is closely enough tied to the treaty itself.  I suspect this might be the most important limitation, in practice, because it is the one it is easiest to imagine courts enforcing.

Indeed, in the Bond case itself, I share the intuition that there is something that seems odd, at least initially, in the notion that if the federal government would not otherwise have the power to criminalize a person’s use of toxic chemicals to attack another person, that such legislation is justified as an appropriate means of enforcing the Chemical Weapons Convention.  I have not studied the text of the Convention, the federal statute, or the facts enough to have a final judgment on that question, which is why I can only say that initially, the link between this application of the statute and the Convention seems thin.  I would hope the Court would give serious attention to that question.

(2) In addition, any treaty has to be a valid exercise of the treaty power, as I have said throughout.  What makes a treaty valid or invalid?  In principle, I would say something like a treaty must be an actual means of gaining the cooperation of other countries in ways that advance legitimate national policy goals of the national government.  More historically, this idea is reflected in the notion that treaties can deal with those subjects that are “appropriate objects of negotiation and agreement among states.”  Thus, if international cooperation is not helpful in achieving legitimate aims of the national government, the national government does not have the power to enter into a treaty on that subject.

I realize this formulation — or any one I can envision to replace it — will necessarily be vague.  It might also be that any limitation of this sort cannot be made judicially administrable and therefore should not be enforced by courts.  But a principle like this seems to me the right one, and I think an idea of this sort underlies Curtis’s analysis as well.

(3) This final limit is already contained within principle (2), I think, but just to be clear about it, let me also repeat, as I have said in earlier posts, that the national government cannot validly enter into a treaty solely for the purpose of gaining additional domestic legislative powers.  Pretextual treaties of this sort would not be valid exercises of the treaty power; such a treaty would not be a means of gaining the cooperation of other nations in ways that advance the legitimate national interests of the national government.

Although critics of the treaty power often like to raise these kind of examples, I want to reiterate that I am not sure there is strong evidence of the U.S. ever having entered into a treaty for this reason — even in the eras in which the Constitution was understood to limit the domestic powers of the national government much more greatly than since the New Deal.  So this fear might be the kind of abstract fear that could be raised about any powers the national government has, but real-world political constraints might make it highly unlikely such fears would ever come to fruition.

5.  The Tenth Amendment question is not, in fact, whether treaties can “override” federalism constraints.  The question is how the Constitution reconciles the national government’s treaty powers with the lawmaking powers states otherwise have. I think the answer is reflected in the three principles I’ve outlined above:  the Constitution does not permit the national government to displace state legislative authority except through a valid treaty and implementing legislation that is appropriate, according to some version of the three constraints above.  But if a treaty and legislation meet these criteria, then this is an area the Constitution makes one of federal power (states might have some concurrent power, of course, depending on how the treaty is written).

6.I don’t think my critics can escape so easily from the Treaty of Peace and similar examples at the time of the Constitution’s formation and early decades of operation.  As Curtis notes, many of these treaties — including the Treaty of Peace — deal not just with debtor/creditor relations, but with the ability of aliens to hold land and pass it on through inheritance in the states.  At common law, aliens did not have all of these rights, though states by legislation could grant them.  But the national government through treaties often guaranteed these rights and those guarantees trumped state property laws.  Some critics want to “save” the validity of these treaties(because they recognize the power of the notion that surely the national government must have the capacity to make and enforce these kinds of treaties, which serve such obvious national interests)  by arguing that Congress could have regulated state property laws through some enumerated power, such as the power over foreign commerce.

But I think these views are anachronistic.  As far as my understanding goes, neither constitutional doctrine nor political figures debating these treaties thought that the national government could regulate state property laws merely because an alien was involved.  It was only through these treaties (which were self-executing)  that the national government had the power to adopt substantive property rules of this sort.  In other words, these treaties were all exercises of the Missouri v. Holland power.  I think Curtis agrees with this, though I am not completely certain, in which case he agrees that valid treaties do give the national government the power to “override” state laws.  The real question, then, is what makes a treaty valid.  I agree that that should be the central question.

My thanks to Rick Pildes and to our commenters for pushing me to reframe the precise issue at stake in Bond and my precise position about it. I think we now have a better understanding of where we part ways.

Here is the question: If a non-self-executing treaty promises that Congress will do something that it otherwise lacks power to do, what happens? Can the President (with the consent of the Senate), just by making such a promise, thus empower Congress to do that thing, even if Congress lacked the power to do so the day before? Does the treaty increase the legislative power of Congress?

Now, Rick and I agree about the general importance of complying with treaties. And we agree that our pre-constitutional history of non-compliance was an important impetus for the Constitution. And yet — despite this important history that Rick keeps emphasizing — we also agree that the answer is generally no.

If the treaty promises that Congress will abridge the freedom of speech, despite the First Amendment, then Rick and I (and the Supreme Court) agree that the answer is no. Congress lacked that power yesterday, and the treaty cannot confer it. See Reid v. Covert.

If the treaty promises that Congress will suspend the writ of habeas corpus in peacetime, despite Article I, section 9, then Rick and I agree that the answer is no. Congress lacked that power yesterday, and the treaty cannot confer it.

If the treaty promises that Congress will commandeer state officials, despite Printz, then Rick and I agree that the answer is no. Congress lacked that power yesterday, and the treaty cannot confer it.

Now, what if the treaty promises that Congress will regulate INTRAstate commerce? What if, for example, it promises that Congress will regulate possession of guns near schools? In my view, the answer is the same. Congress lacked that power yesterday, see U.S. v. Lopez. And the treaty cannot confer it. See Executing the Treaty Power.

But this is where Rick and I part ways. This last case, Rick says, is an exception to the rule. In this case, Rick argues that even though Congress lacked the power to regulate INTRAstate commerce before the treaty, now it has the power. Rick argues, in other words, that in these circumstances, the treaty increases the legislative power of Congress.

Eugene Kontorovich and Josh Blackman and I have explained why this last case should not be an exception to the general rule. Rick has not yet explained why it should.

Guest-blogger Rick Pildes has now written five long and eloquent posts defending the proposition that a treaty can increase the legislative power of Congress. But I must say that I am struck by how little of his argument has anything to do with the Constitution as written. Rick’s five posts — like the five pages of Justice Holmes’s opinion in Missouri v. Holland — never so much as quote the relevant clauses of the Constitution. As I wrote two weeks ago:

The constitutional enumeration of federal legislative powers, plus the Tenth Amendment, surely puts the burden of proof on anyone who is arguing in favor of a particular congressional power — let alone arguing for a mechanism, outside of Article V, by which legislative powers can be expanded without limit. I would have thought that Rick would begin by gesturing to a particular constitutional provision. Where in the Constitution is one to find such a mechanism?

At last, in Rick’s fifth post, he has given his answer. He writes that this alleged mechanism is “a structural inference from the treaty-making power in Art. II and also a result of the necessary and proper (NP) clause.” That’s it. That is the sum total of the textual argument.

The Court has made it clear that this won’t do. One cannot simply gesture toward what the Court calls “the last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause.” Printz v. United States. One cannot simply assert that potentially limitless legislative power is “a result of” NP.

Scholars have tried this approach before, without really looking at the text, for a quite specific reason. For years, this position was bolstered by a celebrated bit of purported constitutional drafting history — drafting history so powerful that it seemed to obviate the need to parse the actual text. For years it was said that an early draft of the Necessary and Proper Clause actually included the words “to enforce treaties,” but that these words had been struck from the Clause as superfluous.

I have shown that this purported drafting history was simply false. See Executing the Treaty Power at 1912-18. As it turns out, no draft of the Necessary and Proper Clause ever included those words.

If nothing else, one would have thought that this revelation would send the defenders of Missouri v. Holland back to the text of the Constitution, to see what it actually says. When one reads it closely, one can see that it neither says nor implies that a treaty can increase the power of Congress. Holland‘s defenders have not yet offered a counterargument grounded in constitutional text.

Again, Justice Scalia has said: “I don’t think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government.” (oral argument, Golan v. Holder (2012)). To persuade Justice Scalia and his colleagues that he is wrong this time around, it will surely be necessary to point to some specific words in the Constitution.

Our treaty debate now seems to have several threads running at once. To make things a bit clearer, I plan to separate a few threads out into separate posts. In this post, I hope at least one thread can be put to rest: the intellectual history thread.

I have criticized Justice Holmes for concluding — in one unreasoned sentence — that treaties can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “That sentence in Holland merely reflects a position that had been close to universally accepted long before Holland and in the all the years since. In constitutional treatises throughout the 19th century, in political debates within Congress, in federal court decisions that touched on the issue, the view expressed in Missouri v. Holland had long been the essential position on this issue.”

This is simply not so, as I demonstrated in my last post — citing a leading treatise, the most important congressional debate, a U.S. Supreme Court opinion, and, for good measure, an editorial in a prominent New York newspaper (which purports to express the general consensus of the time).

Rick seems to have two responses to this contrary evidence. First, he says it tends to support Ilya’s position, not mine. Second, it’s still not enough; Rick would like to see more. These are, I think, unpersuasive responses.

On the first point, it is not so; take a look at the sources and decide for yourself. But even if Rick were right about this, that would be of no help to him. Again, Ilya and I agree (with Justice Scalia) on the fundamental point that a treaty cannot increase the legislative power of Congress. All the sources cited clearly support that general point. They are all flatly inconsistent with Rick’s claim that a treaty can increase the legislative power of Congress.

On the second point, about weight of authority, surely I have met my burden. Rick said his position was “close to universally accepted” before 1920, while citing no authority. I cited one powerful counterexample in each of the three categories that Rick suggested (treatise, congressional debate, supreme court case), plus an editorial for good measure. In response, Rick again offers zero citations — other than the ipse dixit in Missouri v. Holland itself — for the proposition that a treaty can increase the power of Congress.

Rick says only this: “For the evidence on the other side, showing how central it was to the Constitution’s design and structure that the U.S. be able to honor its treaty commitments and for the historical understanding of the treaty power, see the articles referred to in my earlier posts by Dan Hulsebosch and David Golove.” But we all agree about this general historical claim. What Rick needs is evidence of the claim at issue (which is, as Curt Bradley explains, a non sequitur): the claim that a treaty can increase the legislative power of Congress. As to that, Rick again offers no authority whatsoever. Neither, by the way, does David Golove. See Executing the Treaty Power at 1888-89.

Moreover, Rick surely bears a much greater burden than I do here. After all, he is trying to assert that his position was so well established in 1920 as to require no reasoning whatsoever in Missouri v. Holland. I need to show only that some respectable arguments were in the air on the other side. Surely a leading treatise, published just five years before, squarely in the opposite camp — let alone a Supreme Court case and all the rest — suffices to prove that point.

I would think we could agree — as the current Supreme Court apparently agrees — that the question merits at least some analysis. Happily, an opinion with no reasoning whatsoever has very little stare decisis force. If nothing else, we should celebrate that the Court is poised, at last, to give the question the de novo analysis it deserves.

Ilya’s response to Rick, that the Peace Treaty with Britain’s domestically applicable provisions could have been implemented through the foreign commerce power, seems right to me. But there may be another power that would have justified such legislation.

Peace is the flip side of war. Thus Congress’s power to decide on war also presumably includes the power to make peace, as Madison noted in the 1790s. Just as war does not need to be formally declared, peace can be established without a treaty. There may be international law advantages to a treaty, but peace could be created simply through a the cessation of hostilities, an executive agreement (such as an armistice), and so forth. Thus legislation dealing with the loose ends of a war would be independently justified, to some extent, by the War Power, as the Supreme Court recognized in Woods & Cloyd v. Miller.

Indeed, aside from the treaty with Britain, the Treaty Power would be an incomplete basis for legislating “peace conditions,” as it would potentially be difficult to exercise in cases of debilitatio, the collapse or disintegration of the enemy government.

The Constitution gives the Federal government numerous express powers for directly regulating transborder phenomenon, including war and foreign commerce. The difficulty with the potentially broad uses of the Treaty power today is that they deal with purely internal phenomenon, which are only of general “concern” to foreign countries.

In this interesting exchange from John Kerry’s confirmation hearings for the position of Secretary of State, Republican Senator Rand Paul presses Kerry on the contradiction between his longstanding view that President Richard Nixon’s bombing of Cambodia during the Vietnam War was unconstitutional because it lacked congressional authorization, and his defense of President Obama’s 2011 bombing of Libya, which also lacked congressional approval. Kerry first became nationally famous as an opponent of the Cambodia bombings and the Vietnam War generally in the early 1970s.

Kerry’s efforts to distinguish the two cases are far from successful. He claims that the Libya intervention was legal because of the need for swift, decisive action. But of course Nixon could and did make the same argument. Paul correctly points out that the Constitution gives the power to declare war exclusively to Congress and does not create any exceptions for cases where presidents believe that they need to act quickly. Moreover, as Allahpundit points out, the president actually had plenty of time to seek and gain congressional approval before he started the bombing, as he spent weeks mobilizing support from the United Nations, our European allies, and others.

If anything, there is a much stronger case for the constitutionality of the Cambodia bombing than for the Libya intervention. The Cambodia bombing was brought on by the fact that North Vietnamese and Viet Cong troops were using the country as a staging area for their operations in the Vietnam War, which Congress had authorized in the 1964 Tonkin Gulf Resolution. If enemy forces in the course of a war authorized by Congress use a neutral country’s territory, the president has the authority to order strikes against them without seeking further congressional authorization. If, for example, German forces had operated from Spanish or Swiss territory during World War II, FDR could have legally ordered air strikes against them without additional congressional action. Similarly, almost everyone agrees that President Obama had legal authority to order strikes against Osama Bin Laden and other Al Qaeda members in Pakistan, even though Congress never specifically authorized incursions into that country, which like Cambodia in 1970, is at peace with the United States. I am very far from being a fan of Nixon. But when it comes to Cambodia, he had a pretty good legal argument.

By contrast, there were no hostile forces using Libyan territory to attack the United States when Obama ordered his air strikes in 2011. If, as I believe, this was a military action large enough to qualify as a war, it required congressional authorization.

I previously wrote about the constitutionality of the Libya intervention here, here, here, and here.

UPDATE: I recognize that it’s easy to find similar self-contradiction by Republican politicians, including those who claimed that the War Powers Act is unconstitutional, only to later attack Obama for violating it in the case of Libya. But that doesn’t justify Kerry’s position.

UPDATE #2: Rand Paul also correctly pointed out that Obama’s defense of the Libya intervention contradicted his 2007 statement that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Like Paul, I think candidate Obama was closer to the truth in 2007 than President Obama in 2011.