Category Archives: Constitution

Never Thought I’d Cheer States’ Rights…

It has been somewhat lost among all his other bluster, and more recently by the diversion of his air strike against Syria, but Trump has reiterated his threat to withhold federal monies from so-called “Sanctuary” cities and states. (As many people have pointed out, the sudden onset of humanitarianism that purportedly prompted those airstrikes has yet to prompt a willingness to accept children fleeing the hellhole that is today’s Syria.)

Trump’s threats are evidently as empty as his compassion. Talking Points Memo reports that, thanks to a Supreme Court decision in a lawsuit brought by Republicans opposed to the ACA, Trump can’t withhold funds from states acting humanely. It would be illegal.

File under “be careful what you wish for”….

In 2012, the Supreme Court forced the Obama administration to make Medicaid expansion voluntary for states instead of mandatory, ruling that when the federal government “threatens to terminate other significant independent grants as a means of pressuring the States to accept” a federal policy, it is unconstitutionally coercive.

Conservative groups that celebrated this victory over “infringement on state sovereignty by the federal government” may now be dismayed to learn that it could throw a wrench into the Trump administration’s current plan to punish sanctuary cities.

Attorney General Jeff Sessions recently warned local officials that continued refusal to co-operate with federal immigration authorities would jeopardize approximately $4 billion dollars in unrelated grants; those grants currently support local programs addressing everything from human trafficking, sexual assault, and gang violence to mental health, gun crimes and various public safety issues.

Sessions evidently neglected to research the Administration’s authority to follow through on that threat.

Stripping the cities and counties of this funding, however, is easier said than done. Doing so could violate the 10th Amendment, which protects states’ rights against federal intrusion, and a number of Supreme Court cases, including the 2012 case that struck down Obamacare’s mandatory Medicaid expansion, legal experts warn.

“It may be unconstitutional on several grounds,” said George Washington University Law School professor John Banzhaf III.

Banzhaf argues that U.S. law dating back to the mid-1800s bars the government from “commandeering” local officials to enforce federal law in almost all instances. The 2012 Supreme Court ruling in National Federation of Independent Businesses v. Sebelius expanded on this principle, holding that “states could not be required to expand Medicaid programs under threat of a loss of federal funds—the same coercive method threatened by Sessions—except where the threat was one mandated by Congress and signed into law, not a mere presidential order,” Banzhaf said.

Two other cases–one in 1987 and one from 1997–reinforce the limits on federal coercive power.

In the 1987 decision South Dakota v. Dole — which concerned a government attempt to cut highway funding to states that tried to lower the federal drinking age — the Court said the federal government can only cut grants related to the policy they are trying to enforce. Though the federal government’s argument trumped the state’s in that case, the ruling significantly narrowed the kind of funding the federal government can withhold when attempting to incentivize local governments to carry out a certain policy….

The Court went even further in 1997, ruling in Printz v. United States that “the Federal Government may not compel the States to enact or administer a federal regulatory program.”

Sessions has now indicated that future grants will be conditioned upon compliance with federal immigration law, a tacit admission that– his threats notwithstanding–he cannot reach previous awards issued without such provisions.

I’m sure those staunch defenders of states’ rights–the ones who were so sincere when they explained that their opposition to civil rights laws had nothing to do with racial animus–will applaud this current application of federalism doctrine.

On the other hand, perhaps I shouldn’t hold my breath waiting for their applause….

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Taxes and Religion

Last week, the Indianapolis Star did something called “journalism.” (These episodes have become sufficiently rare that we should applaud loudly when they occur. I’m clapping.)

Snark aside, the Star followed the money, in this case, our tax dollars, which are flowing ever more generously to Indiana’s parochial schools. And as the introductory paragraphs made clear, these are schools that take both their religious identity and religious instruction seriously.

At Colonial Christian, an Indianapolis school on the northeast side that receives public funds through Indiana’s private school voucher program, students are warned they can be kicked out of school for “promoting a homosexual lifestyle or alternative gender identity.”

At even more voucher-accepting schools, families are required to sign statements of faith as a condition of enrollment, affirming that they hold the same religious beliefs and values as the school.

Theology classes are required for four years at Bishop Chatard High School, as are hours performing service and outreach. And some schools, including Bethesda Christian in Brownsburg, require a recommendation by a pastor.

There is absolutely nothing wrong with having religiously-based private education available to parents who want their children educated in such environments. Whether that education should be paid for with tax dollars, however, is a different question.

The U.S. Supreme Court ruled several years ago that voucher programs could  pass constitutional muster, despite the Establishment Clause, because the voucher (theoretically) was issued to the parents, and those parents could (again, theoretically) choose either a secular or religious school.

When Indiana’s Supreme Court was faced with specific language in the state constitution that seemed to foreclose the federal evasion, Indiana’s Court nevertheless opted to follow the same “logic.” (So much for “originalism” and “textual” analysis, which–had either of those purported judicial approaches actually been applied–would have required a different outcome.)

The Star’s article on religious schools’ participation in the state’s voucher program was the fourth in a series on Indiana’s voucher program, a program that was “grown” by former Governor Pence to be the largest in the country. Pence–like Betsy DeVos– was clear about his intent to privilege religious education, and neither of them seems troubled by the constant stream of research showing that children using vouchers do more poorly in English and math than children from similar backgrounds who attend public schools.

In Zelman v. Simmons-Harris, the 5-to-4 Supreme Court decision upholding the constitutionality of vouchers, the majority indulged in an abstract–and intellectually dishonest– exercise: the pretense that the voucher went to the parents (it is my understanding that, while the parents choose the ultimate recipient, they never touch the money), and –far more consequently–that the parents are free to choose from among religious or secular private schools. The “facts on the ground” are otherwise; almost all of the nonpublic schools accepting vouchers are religious, and those that are not tend to be geared to special populations: children with disabilities or behavioral issues or the like.

Let’s be honest, at least. Vouchers are support for religious education, and the quotations from parents in the Star article underscore the reality that most parents opting for vouchers do so because they want to send their children to a religious school.

So–back to my original question: why should taxpayers who believe in science and the importance of science education pay for children to attend schools that teach creationism (one of the administrators interviewed insisted that opposition to the “theory” of evolution was essential to his school’s approach)? Why should taxes paid by LGBTQ citizens and their allies be used to send children to schools that proselytize against “homosexual lifestyles”? Why should tax dollars be diverted from a public school system that serves all children and sent to schools that are unaccountable to those taxpayers and that research tells us are not providing an equivalent education?

I remain convinced that the Court in Zelman got it wrong–on both the law and the facts. But even if vouchers are constitutionally acceptable, they fail any reasonable test for what constitutes good public policy. If Americans want to promote alternative educational approaches and parental choice, there are ways to do that within the public system; charter schools, for example, are still public schools, with (among other things) an obligation to teach science and abide by the Bill of Rights.

The Star has illustrated what many educators already know: Indiana’s voucher program is an effort to circumvent the Establishment Clause’s prohibition on government funding for religion.

Educational outcomes are incidental.

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Another Constitutional Convention? Perish the Thought…

In mid-2014, I wrote a column for the IBJ in which I strongly disagreed with an effort by Indiana State Senator Long to have Indiana “sign on” to an effort to call a new Constitutional convention. (Unfortunately, Senator Long was successful in his effort to have Indiana do so.)

After I wrote my column, the issue receded from prominence–at least, it disappeared from news coverage. More recently, it has reappeared; we are, apparently, only 5 states short of convening such a convention, and a particularly ominous bit of news has emerged: the money behind this effort comes from ALEC and the Koch brothers, whose motives–to be kind about it– are unlikely to be supportive of the common good.

Here was my original argument:

Periodically, lawmakers impatient to change government policies of which they disapprove will call for a Constitutional Convention.

Fortunately, these efforts have yet to succeed.

Why “fortunately”? Because—like poison gas—system change is only a great weapon until the wind shifts.

Activists clamoring for shortcuts to major change—revolution, a new constitution—always assume that the changes that ultimately emerge will reflect their own preferences and worldviews.

History suggests that’s a naive assumption.

Indiana Senator David Long wants the states to convene a new Constitutional Convention, at which delegates would devise “a framework for reigning in overspending, overtaxing and over-regulating by the federal government and moving toward a less centralized federal government.”

He claims the convention could be limited to consideration of those goals, but even if he is correct (and many constitutional scholars disagree) his “limited” goals are Pandora-box wide.

For example, Wall Street bankers argue that post-recession financial laws are “overregulation;” if polls are to be believed, most taxpayers view the new rules as barely adequate. Who wins?

My definition of “overspending” might be the massive subsidies enjoyed by (very profitable) U.S. oil companies; yours might be Medicare or farm subsidies. Many Americans think we spend too much on the military; others target foreign aid.

“Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.

But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes. It isn’t even the likely influence of well-heeled special interests. The real danger is in calling together a representative group of Americans and asking them to amend a document that few of them understand.

At the Center for Civic Literacy at IUPUI, we focus on the causes and consequences of what we’ve come to call America’s civic deficit. The data is depressing. Only 36 percent of Americans can name the three branches of government. Only 21% of high school seniors can list two privileges that United States citizens have that noncitizens don’t. Fewer than a quarter of the nation’s 12th graders are proficient in civics. I could go on—and on.

Even bright graduate students come into my classes with little or no knowledge of American history, episodic or intellectual. Most have never heard of the Enlightenment or John Locke. They certainly haven’t read Adam Smith.

A truly depressing percentage of undergraduates can’t explain what a government is, and they have no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.

To his credit, Senator Long is one of the few Indiana legislators who recognize the importance of civics education and who support efforts to remedy the deficit. His efforts in this area have been truly praiseworthy, which is why I find his willingness to turn over the task of rewriting our Constitution to people who don’t understand the one we have so puzzling.

Think about this: Last weekend, at the Indiana Republican convention, Richard Mourdock compared today’s America to Nazi Germany–and got enthusiastic applause.

Do we really want people like Richard Mourdock—or those who cheered his ahistorical and deeply offensive analogy—deciding how the American Constitution should be changed?

Furthermore, the Constitution already provides We the People with a handy remedy for unsatisfactory governance: it’s called elections.

We’re apparently too apathetic to use the tools we have.

I have no reason to revisit my original concerns about such a convention, but events since then have added several items to my list of “oh shit, what if’s.” I can only imagine what sorts of changes the extremely libertarian Koch brothers are hoping to make; add to that the delusions of the anti-journalism “Trumpers” who would undoubtedly participate, the proponents of Pence-style “religious freedom” (a/k/a the privileging of fundamentalist Christian bigotry), and a variety of other ideologues and know-nothings, and the prospects are genuinely terrifying.

Of course, we should remind those who see such a convention as their chance to get rid of all those pesky constitutional provisions that keep them from installing a government more to their liking that there are no guarantees– such a convention might end up with participants who think it’s time to get rid of the Second Amendment and the Electoral College.

If 2018 is a “wave” election–if Democrats, rational Republicans and Independents come out in force to reject Donald Trump and those who have enabled him–such a convention might prove to be an unpleasant surprise to its current enthusiasts.

Either way, holding a Constitutional convention when the U.S. is embroiled in extremely toxic, uninformed and polarized politics is a really, really bad idea.

As I recall, the headline of my IBJ column was “An Idea Whose Time Has Definitely NOT Come.”

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Are We Headed Toward a Constitutional Crisis?

What, exactly, constitutes a “constitutional crisis”? It is a term we are hearing more frequently, and over at Vox, they made a pretty good stab at defining it.

Dylan Matthews writes that he

decided to ask eight leading experts — six constitutional law professors and two political scientists — for their thoughts. They were unanimous that the situation as it exists now doesn’t count as a constitutional “crisis”; some cast doubt on whether that term, which has no firm definition, is even useful.

As one of the experts noted, the fact that something tends to undermine respect for constitutional institutions–like calling a judge a “so-called” judge, or showing lack of respect for the courts–can be a bad idea, yet not amount to a constitutional crisis. (As I tell my students, the fact that a policy is stupid or even dangerous doesn’t automatically make it unconstitutional.)

Matthews quotes constitutional scholar Keith Whittington for the definition of a genuine crisis.

“Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions,” he wrote. That didn’t happen in the impeachment (which unfolded according to the procedures laid out in Articles 1 and 2) or in the 2000 election (in which decisions of executive branch officials in Florida were challenged through normal legal channels and all actors respected the ultimate decision of the US Supreme Court, whether or not they thought it was rightly decided).

So what would qualify? Whittington divided constitutional crises into two categories. Operational crises occur “when important political disputes cannot be resolved within the existing constitutional framework.” That is, the Constitution itself is failing, and is allowing people engaged in a political conflict to each behave in ways that together can result in calamity. A “crisis of constitutional fidelity,” by contrast, occurs when, “important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions.” That’s when what the Constitution prescribes is clear, but one or more politician or branch of government willfully defies it.

The article is interesting, and (given the chaos that is today’s White House) worth reading, but it didn’t directly address a question that I’ve begun mulling, given the “drip, drip, drip” of new revelations (most recently, the scandal surrounding Sessions): What if it turned out that Russia really did “elect” Trump? In other words, what if investigations turned up evidence that Russia’s tampering really did “rig” the election?

The Constitution has no remedy for an illegitimate election, at least not that I am aware of. Trump’s electoral college victory rested on fewer than 80,000 votes spread among three states, giving him paper-thin margins in those states–and the win. If those votes were suborned or improperly counted, then neither he nor Pence would really have been elected.

What then? Would we follow the constitutional line of succession, and install Ryan–giving the Republicans a “win” they didn’t win?

Let me emphasize that I have absolutely no evidence that this actually happened; my guess is that the Russian efforts to influence the election were just that–efforts at influencing public opinion, rather than actually falsifying results. I raise the question because it is becoming clear that there are aspects of our current political life that neither our national charter nor our governing institutions anticipate or address. I doubt the Founders could have foreseen the nature of today’s democratic distortions caused by the Electoral College, or the way in which gerrymandering has deprived millions of Americans of meaningful votes, or the current iteration of the filibuster that requires Senate super-majorities in order to pass even routine legislation.

If a central function of a Constitution is to prescribe fair and transparent processes by which citizens govern themselves, we may need to do some repair work on ours.

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About Those Threats…

Trump has issued a number of threats against so-called “sanctuary” cities and states, and his supporters (most of whom, ironically, would be considered “states’ rights” supporters) have declared such local designations illegal.

So it was interesting to read a recent column by Ilya Somin, a conservative legal scholar, analyzing the relative constitutional rights involved.

President-elect Donald Trump has repeatedly promised to engage in large-scale deportation of undocumented immigrants. In order to accomplish that goal, he is likely to need the cooperation of state and local governments, as federal law enforcement personnel are extremely limited. But numerous cities have “sanctuary” policies under which they are committed to refusing cooperation with most federal deportation efforts. They include New York, Los Angeles, Chicago, Seattle, and other cities with large immigrant populations. Sanctuary cities refuse to facilitate deportation both because city leaders believe it to be harmful and unjust, and because local law enforcement officials have concluded that it poisons community relations and undermines efforts to combat violent crime. They also recognize that mass deportation would have severe economic costs.

The arguments and links in the foregoing paragraph, of course, are policy arguments. They detail why the proposed policy is stupid, but (as I frequently remind my students) just because something is stupid and/or mean-spirited and/or counterproductive doesn’t mean it is also unconstitutional.

After listing the reasons the policy is ill-considered, however, Somin does address the question of constitutionality.

Under the Constitution, state and local governments have every right to refuse to help enforce federal law. In cases like Printz v. United States (1997) and New York v. United States (1992), the Supreme Court has ruled that the Tenth Amendment forbids federal “commandeering” of state governments to help enforce federal law. Most of the support for this anti-commandeering principle came from conservative justices such as the late Antonin Scalia, who wrote the majority opinion in Printz.

But what about Trump’s threat to withhold federal funds from cities and states that refuse to help him implement his deportation program? According to Somin, while the President may be able to withhold some funds, the threat is far less “formidable” than it may seem.

Few if any federal grants to state and local governments are conditioned on cooperation with federal deportation efforts. The Supreme Court has long ruled that conditions on federal grants to state and local governments are not enforceable unless they are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” In ambiguous cases, courts must assume that state and local governments are not required to meet the condition in question. In sum, the Trump administration can’t cut off any federal grants to sanctuary cities unless it can show that those grants were clearly conditioned on cooperation with federal deportation policies.

It’s been truly  heartening to see how hobbled Trump has been by his complete ignorance of the way American government actually works. (For that matter, his obvious ignorance of the way law in general works helps to explain why he has been involved in–and lost–so many lawsuits.)

In an update to his original column, Somin highlights a “states’ rights” irony that might be filed under “be careful what you ask for.”

It is worth noting that if Congress were to pass a law stripping sanctuary cities of all their federal funding unless they help facilitate federal deportation efforts, it would be unconstitutional under the Supreme Court’s decision striking down the Obamacare Medicaid expansion in NFIB v. Sebelius (2012), which forbids funding conditions so coercive that they amount to a “gun to the head” of a state or local government.

Short version: If the federal government can’t force states to expand Medicaid, neither can it force states to help deport undocumented people.

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