July 15, 2008

Chemerinsky's idea of "Enhancing Government."

Jonathan Adler points to Jon O. McGinnis's review of Erwin Chemerinsky's new book "Enhancing Government: Federalism for the 21st Century. The book sketches out the liberal position on the various federalism issues, and this is the position that — McGinnis aptly asserts — you can expect Obama-appointed Supreme Court Justices to take.

Chemerinsky argues (unsurprisingly) that the Constitution's enumerated powers in fact permit Congress to reach any matter it chooses to regulate. What is left to the states is what Congress deigns to leave to the states. On questions of federal court jurisdiction, Chemerinsky would give the party he would like to advantage — the civil plaintiffs and criminal defendants who assert federal rights — their preference whether to litigate in state or federal court. And Chemerinsky would make it hard for federal law to preempt state law, and this would preserve the regulation of business at dual levels of government, federal and state.

If voters think about Supreme Court appointments at all, they usually focus on the scope of individual constitutional rights (especially abortion). I wish people would pay attention to these federalism issues. As McGinnis writes, the liberal position on federalism is very widespread and elaborately worked out in the legal academy. The Burger and Rehnquist Courts were somewhat successful in keeping this thinking from migrating into the case law. Chemerinsky's idea of federalism is not simply expanding federal power at the expense of the states. It's more complicated (and more policy-oriented in its complication). Even though this approach allows Congress to regulate anything, it preserves state regulation where Congress has not expressly preempted it, and it preserves the power of state courts when a litigant with a federal law right prefers state court. So the liberal idea of "Enhancing Government" is about expansive federal regulatory power combined with enthusiasm for regulating business and enforcing federal rights.

Maybe you like that idea. I'm just saying: Think about it.

37 comments:

Brad V said...

Down with the Dormant Commerce Clause.

kengoodsmith said...

I was taught that the Constitution grants limited powers to the government--apparently the Constitution changed somewhere along the line.

halojones-fan said...

"Chemerinsky argues (unsurprisingly) that the Constitution's enumerated powers in fact permit Congress to reach any matter it chooses to regulate."

...wha...guh...you fucking what?

Someone gave him money to write that?

former law student said...

Beginning in 1937, the Commerce Clause became something that the Congress could drive a Mack truck through. Congress was finally reined in a decade or so ago, when the USSC ruled it had no power to prohibit gun ownership within 1000 feet of schools, make assaults on women a federal crime, or conscript local police into enforcing federal law. States are still not free to permit pot smoking within their borders, even if it is entirely home grown for personal use, under Wickard.

Ann Althouse said...

Halojones -- it's important to note that there are still limitations in the form of constitutional rights, but the enumerated powers extend to everything that Congress could want to regulate, commercial or noncommercial, large or really tiny, interstate or completely in one person's backyard.

Palladian said...

"I was taught that the Constitution grants limited powers to the government--apparently the Constitution changed somewhere along the line."

It's a Living Constitution, don't you know?

Ann Althouse said...

In Chemerinsky's approach, I mean.

Quayle said...

If we are not troubled by the notion that the federal government can and should absolutely control and prohibit a single farmer from growing wheat on his own land for his own family (because it affects the stream of commerce and the wheat market as a whole), then I wonder if we understand the concept of freedom at all.

Paul Snively said...

Shorter Chemerinsky: "Federalism means that Congress can regulate whatever it wants to."

<inigo_montoya>You keep saying that word. I do not think it means what you think it means.</inigo_montoya>

Richard Dolan said...

"So the liberal idea of 'Enhancing Government' is about expansive federal regulatory power combined with enthusiasm for regulating business and enforcing federal rights."

Another way to think about this in terms of the role of the courts vis-a-vis the legislatures (state and federal) in setting national policy. Basically, except as to matters covered by the Bill of Rights, this approach would mostly get the courts out of the business of overriding legislative judgments by Congress or the states. Presumably Chemerinsky (and liberals generally) will opt from broad readings of individual rights (whether founded directly on some provision in the Bill of Rights) so that their favorite decisions (e.g., Roe) are preserved.

There are some obvious tensions in his approach. The idea that Congress gets to read its enumerated powers broadly, without much concern for historical arguments about how they were construed in 1789, presumably is intended to reflect the fact that the national economy today is truly one marketplace, not the multiple, effectively separate markets that existed 200 years ago. But that idea conflicts with the notion that each state can adopt its own regulatory scheme as to the small bit of the national marketplace that falls within the state's borders, without much concern for the impact that conflicting regulatory schemes can have on the national market. Chemerensky would permit federal courts to deal with that problem only if Congress has expressly preempted state regulation. The problem is that a lot of "state regulation" takes the form of judge-made tort law, which can intrude in many areas. Congress doesn't often address those issues because it doesn't often adopt statutes dealing with tort issues.

I'm not sure what his approach would do to the Ninth and Tenth Amendments. Presumably, they would be consigned to the dustbin -- i.e, the same place where Chemerensky would have liked to consign the Second Amendment.

But the implied limitation on the role of courts in setting policy provides some room to sell this approach to folks who would not normally include themselves within the definition of "liberals."

Eric Muller said...

Further to Ann's of 11:33, it's important to note that on Chemerinsky's view, there are still limitations other than those imposed by courts.

Simon said...

"Chemerinsky argues (unsurprisingly) that the Constitution's enumerated powers in fact permit Congress to reach any matter it chooses to regulate."

It strikes me as obvious that if your interpretative method allows you to read the Constitution in such a way that it permits the federal government to do anything it wants, instead of concluding that the federal government can do anything it wants, you should conclude that your interpretative method must be wrong. Cf. the Shakespeare Test. When you're adding two and two and getting six, you should check your arithmetic, not write a book on a wonderful new "Math for the 21st Century" you've discovered.

"What is left to the states is what Congress deigns to leave to the states."

This isn't federalism for the 21st century, it's abandonment of federalism. Period. Eric suggests otherwise above, but with all due respect, he cannot be so naive, and nor can Chemerinsky. To leave federalism to Congress is to leave the foxes in charge of the henhouse in the hope that the people will elect vegetarian foxes; like Garcia, it is requires one to willfully adopt a pre-17th Amendment mindset.

"On questions of federal court jurisdiction, Chemerinsky would give the party he would like to advantage — the civil plaintiffs and criminal defendants who assert federal rights — their preference whether to litigate in state or federal court."

I've more and more come to believe that any suit in which a question of state law that is less than entirely and indisputably settled plays a significant part belongs in state court, period, and that federal courts should abstain as long as there's an adequate state forum in which to litigate the issue. Even if there's a federal law issue, even if there's a federal constitutional question. Cf. my post here.

Simon said...

former law student said...
"Congress was finally reined in a decade or so ago, when the USSC ruled it had no power to prohibit gun ownership within 1000 feet of schools, make assaults on women a federal crime, or conscript local police into enforcing federal law."

Don't forget commandeering state legislatures, see New York v. United States, 505 U.S. 144 (1992), trying to redefine rights to bootstrap jurisdiction, see City of Boerne v. Flores, 521 U.S. 507 (1997), and the sovereign immunity cases which also represent modest limits. My biggest concern about the Chief and Justice Alito is that I don't think that they are nearly as good on federalism as Rehnquist and O'Connor were. I think we've lost ground on perhaps the most important thing that the court does. It's sometimes said that the Court's preeminent mission is the enforcement of federal rights. I couldn't disagree more. I don't believe that courts have a "mission"; I think they exist to decide cases. But to the extent that they do have a mission, I believe it's to enforce and protect the structural Constitution.

LutherM said...

The Supreme Court can be clever when it reaches a decision to overturn some idiotic State law - witness the "penumbral right of privacy" in Griswold v. Connecticut. But establishing, or "finding" a new right can lead to subsequent decisions never dreamed of by any framer of the Constitution.
I have been uncomfortable with the expansion of central power since studying the various cases arising out of the New Deal. Apparently Erwin Chemerinsky is not making a Natural Law argument, similar to "The Forgotten Ninth Amendment" by Bennett B. Paterson - "for these favors we are truly grateful, O Lord". I would have no problem with the idea that, rather than have some Court decide, it is better for Congress to indicate that it intends to preempt State laws. But the reviewer of the book, John O. McGinnis is correct; " The regulation of medical devices, for instance -- unlike the regulation of guns near schools -- substantially affects a national market. When Congress has gone to the trouble of establishing a regulatory apparatus, and its regulators have arrived at a judgment about the safety of a medical device, the court is right to infer that Congress does not want states simply to "opt out" of the judgment if they like."
Frankly, I haven't thought in depth about this issue in over 30 years, contenting myself to be mildly amused with the lamentations of Liberals whenever the Supreme Court DOES recognize limits on central power.
ANN;
You ask us to think about preemption, and federal-state relations. You teach the subject. WHAT DO YOU THINK?

Simon said...

former law student said...
"States are still not free to permit pot smoking within their borders, even if it is entirely home grown for personal use, under Wickard."

I've sat on the fence about Raich for some time. I have to admit that Scalia's concurrence has a great deal of force. It's a "reasonable construction of the Necessary-and-Proper clause, as applied to Congress' commerce power" that "when it is impractical for Congress to separate those members of the regulated class who are in interstate commerce from those who are not, Congress' power to regulate interstate commerce could not be effectively exercised unless Congress is allowed also to regulate those members of the class who do not affect insterstate commerce." Redish, The Constitution as Political Structure 57 (1995). The sweeping clause permits Congress to go beyond its enumerated powers - but only, I think, when not only necessary but proper. If one examines the large-scale structure that the Constitution sets forth and finds that a given act of Congress infringes on that structure, that act would seem quite plainly to be improper. That is, the bite of structural analysis is at its zenith when evaluating (a) exercises of direct grants of power that are ambiguous as to whether they support that act, and (b) exercises of power deemed to necessarily fall within the sweeping clause.

TMink said...

I have to admit that I am all in favor of Federalism when my state's majority opinion concurs with my own and I am more fond of a strong federal branch when my own position is at odds with my state majority.

But Chemerinsky does not know what Federalism is, or he is trying to use words to define it out of existence.

Trey

Simon said...
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Simon said...

Luther said...
"ANN; You ask us to think about preemption, and federal-state relations. You teach the subject. WHAT DO YOU THINK?"

She's written a number of articles over the last couple of decades that I think hint at the answer to that question but that might be ill-served by a whistle-stop tour. Well worth the time to read and digest them all.

Simon said...

Trey, he's a very smart guy. He understands it. It's the latter. He's trying to do sub rosa what Sandy Levinson is willing to do in the glare of public scorn.

dr kill said...

I know right from wrong, but I know nothing about the law.

michaelyi said...
This comment has been removed by the author.
michaelyi said...

After reading that "[Irwin] Chemerinsky argues (unsurprisingly) that the Constitution's enumerated powers in fact permit Congress to reach any matter it chooses to regulate," Halojones-fan gasped in astonishment, "Someone gave him money to write that?"

Alas, yes someone --namely the Regents of the University of California-- gave Chemerinsky money which he used to write that sort of drivel. Prof. Chemerinsky was recently appointed Dean of UC Irvine's new law school. If UC's mission was truly to serve the public of California, that should have been a new nursing school; California has a tight labor market for nurses and a surplus of lawyers. Ahh, but UC is an independent institution and can largely do what it pleases with the state-owned assets it controls.

blake said...

Ahh, but UC is an independent institution and can largely do what it pleases with the state-owned assets it controls.

Gee, the Feds should come in and stop that.

matthew said...

And Chemerinsky would make it hard for federal law to preempt state law

I wish this part of Chemerinsky's analysis got more attention, since this is the part I mostly strongly agree with him about. Federal pre-emption tends to cut regulation at the price of State's Rights. And Federal pre-emption is a growing doctrine - you see it claimed a lot more often now than in the past...

Among the more obvious things, the Bush administration is also going be remembered for expanding federal control over a whole slew of regulatory issues (which in most cases has a had de-regulatory effect), and the expanding power of the executive branch over the regulatory agencies.

Ann Althouse said...

On preemption, I think Congress is to blame for not making it express when it should be, but the courts shouldn't go too far in finding preemption where it isn't express. Still, there are some times when the dual regulation is unfair or puts a business in an impossible situation, so there must me some more reach to it (as Chemerinsky probably acknowledges). But basically, I think it's good for states to experiment with higher standards and good for courts not to relieve Congress of the pressure to make preemption explicit.

Revenant said...

Simon, I think you're blinded by your love for Scalia.

If the state's alleged (but never demonstrated) inability to distinguish between marijuana grown for personal consumption and marijuana grown for interstate distribution is sufficient grounds for deeming a ban on the former "necessary and proper" then there is no federalism. All the federal government has to do is plead incompetence -- no matter how ridiculous the plea -- and what would normally be a gross violation of federalism magically transmogrifies into an entirely constitutional use of federal power. Want a federal law banning the use of blue fescue in front lawns? Just wring your hands and say you can't figure out if the fescue crossed state lines. Want to ban handguns within 1000 feet of schools, just say you are incompetent to stop criminals and terrorists from crossing state lines to attack schools. Etc, etc.

What Raich revealed is what had been widely known in libertarian circles for years: that Scalia doesn't give a shit about federalism and never has. He accepts federalist arguments solely in cases where his preferred outcome -- as a social and political conservative -- would be favored by a federalist position.

Revenant said...

Still, there are some times when the dual regulation is unfair or puts a business in an impossible situation

My personal favorite example was when California made it illegal for teachers to NOT turn in suspected illegal immigrants among their students, while federal law made it illegal for them TO turn in suspected illegal immigrants. It was literally impossible for any teacher who suspected the presence of an illegal in her class to obey the law.

ZZMike said...

"And Chemerinsky would make it hard for federal law to preempt state law."

I like that part. As some have already pointed out, every now and again a state passes a law - usually by initiative, that says "this is OK", or "this is not OK", ans some loon brings a suit and the Federal Court says "sorry, you got it wrong".

EnigmatiCore said...

You may like it, zzmike, but only because you chose to focus on that line rather than the one that completely contradicts that idea.

Ann, this is completely incoherent. "What is left to the states is what Congress deigns to leave to the states... And Chemerinsky would make it hard for federal law to preempt state law"

So what is left to the states is what the Feds say is left to the states, but state law should get preferred status over federal law. Huh?

And throw on top of it that neither the states nor the feds should be supreme. No, instead, it is: " On questions of federal court jurisdiction, Chemerinsky would give the party he would like to advantage — the civil plaintiffs and criminal defendants who assert federal rights — their preference whether to litigate in state or federal court."

So feds can take supremecy over everything. Except it should be hard for them to overrule state law. But if they are in some conflict, then those filing lawsuits and criminal defendants get to choose.

My God, on top of being incoherent, it is government for the lawyers and their clients, by the lawyers, of the lawyers.

Simon said...

matthew said...
"Federal pre-emption tends to cut regulation at the price of State's Rights."

Federalism and so-called "states' rights" are not the same thing. "Although we usually think of federalism in the modern age as protecting the state prerogatives against federal incursion, this is really but a shorthand for saying that the prerogatives of both the states and federal governments ought to be respected the one by the other, a shorthand that results from the fact that in the modern age, it's usually the federal sphere encroaching on the state sphere rather than vice versa." See also Younger v. Harris 401 U.S. 37, 44 (1971).

"And Federal pre-emption is a growing doctrine - you see it claimed a lot more often now than in the past."

Depending on what "the past" means, that may reflect the broader scope of federal law rather than growing likelihood to claim preemption. That said, Prof. Hills agrees with you in seeing preemption as a federalism concern.

"[T]he Bush administration is also going be remembered for ... expanding power of the executive branch over the regulatory agencies."

Sure, but that's unexceptional. Agencies are executive in nature, and so the chief Executive should have control over them. If not, that raises real constitutional concerns and undercuts one of the bases of Chevron.

Simon said...

Revenant said...
"Simon, I think you're blinded by your love for Scalia. If the state's alleged (but never demonstrated) inability to distinguish between marijuana grown for personal consumption and marijuana grown for interstate distribution is sufficient grounds for deeming a ban on the former 'necessary and proper' then there is no federalism."

I think that's overstated, even though I'm skittish about the result in Raich (you have to understand that if I could remake the doctrine with a swish of my hand, we'd be back to E.C. Knight). It can't be denied that the sweeping clause expands Congress' power beyond the reach of its enumerated powers; even if it wasn't clear as a matter of text and original understanding, that point is so long gone as to fall well within my concept of exoconstitutionality. The question is, how far? Obviously it has limits, and obviously a construction that effectively eliminates limits - as Chemerinsky urges - fails. So long as one accepts my position that the federal courts must enforce the structural constitution, it seems to me that there is still a significant limit on what will fly. What is truly dangerous to federalism is letting the elected branches decide the perimeter of their own power. I think that if the politicians are subject to adult supervision - real review that takes seriously the structural constitution - the kind of laws you suggest may be enacted, but will not survive scrutiny.

None of which means that I buy Raich - but I do think that the handwringing over it is overwrought. My problem is that I don't have a better suggestion to bring forward about how to move us - gradually - back towards a genuinely limited federal government that at the same time doesn't overturn a century of precedent overnight, provoking the absolute worst outcome, viz. the amendment or dismemberment of the Constitution. I really worry that we don't have the talent or the cohesion in this country at this time to do anything but violence to our system of government if we go down that road now.


"What Raich revealed is what had been widely known in libertarian circles for years: that Scalia doesn't give a shit about federalism and never has."

IIRC, Ann has suggested much the same thing in a post way back when (I'd like to hear more about that, by the way), and I think it's certainly true that he wasn't as concerned about federalism as was Rehnquist, for example. No one's perfect. ;)

"He accepts federalist arguments solely in cases where his preferred outcome -- as a social and political conservative -- would be favored by a federalist position."

That's hard to square with his and Thomas' position in Carhart, for example.

Zach said...

If the state's alleged (but never demonstrated) inability to distinguish between marijuana grown for personal consumption and marijuana grown for interstate distribution is sufficient grounds for deeming a ban on the former "necessary and proper" then there is no federalism. All the federal government has to do is plead incompetence -- no matter how ridiculous the plea -- and what would normally be a gross violation of federalism magically transmogrifies into an entirely constitutional use of federal power.

If you hold that necessary and proper doesn't require necessity or propriety, you could reach that conclusion. But when you deal with medical marijuana -- which is 100% indistinguishable from the illegal variety, and which in practice is grown by the same growers as the illegal variety -- then you really have to pay attention to Scalia's argument about how medical marijuana is never more than an instant away from the illegal market.

States can infringe on federalism, too. Providing a safe harbor for the manufacture and storage of marijuana would be a good example.

matthew said...

Simon: Sure, but that's unexceptional. Agencies are executive in nature, and so the chief Executive should have control over them.

It's not unexceptional in the fact that no president has claimed this sort of "unitary executive" power in the past. That makes Bush's view very much the exception. (see the concluding notes of the CRS report on EO 13422 here http://www.fas.org/sgp/crs/misc/RL33862.pdf

From a purely policy perspective, I think expanding executive control over these matter, combined with federal pre-emption doctrine, can give the Executive branch an unequal share of the governmental powers, but leaves the individual states with little recourse. Frankly, I just don't like it.

And on a constitutional prospective, I think this sort of "unitary executive" analysis goes against the careful balancing of powers ingrained in the constitution. Especially given the toothless non-delegation analysis over legislative actions...

Simon said...

Matthew, as I see it, the "unitary executive" not only does not "go[] against the careful balancing of powers," it's required by it. Executive functions must come under the perview and control of the President. That includes agencies; as Justice Stevens pointed out in Chevron, agencies are either accountable through the chief executive or not at all.

We should be careful, though, to avoid the politicized misunderstanding of that term. By the unitary executive, I refer to that doctrine in the proper sense, i.e. the intrabranch power of the Presidency vis-a-vis other executive branch efforts. I would distinguish that from the quite different concept of the President's power vis-a-vis the other branches that I've elsewhere termed the "robust executive." Issues such as the inherent executive power of the Presidency, for example, fall into the latter category, in my view; they are entirely separate from unitary authority issues. Put another way, Scalia's (correct) dissent in Morrison goes to the unitary executive; Thomas' (wrong) dissent in Hamdi goes to the robust executive.

I do understand the concern that if agency regulations can easily preempt state law, that poses an even more serious federalism concern than legislative preemption. And I don't disagree with Ann that preemption ought to be subject to a clear statement rule. Nevertheless, her observation that "the courts shouldn't go too far in finding preemption where it isn't express" makes me nervous; not "too far," I agree - but in the case where a state law and a federal law or regulation are truly incomptatible, one must be law, and the latter must be held to preempt the former even without a clear statement. At least, when the latter is actually valid, and that's the point I want to turn to next.

Many legal problems can be looked at from more than one angle. Printz could have been litigated as a Second Amendment case, as Ann elegantly explained in The Vigor of the Anti-Commandeering Doctrine in Times of Terror, 69 Brook. L. Rev. 1231 (2004), and Medellin could have been litigated as a federalism case, as Ted Cruz explained at a recent Federalist Society panel. I think -- and perhaps this is a way to synthesize the tension that some commentators claim to find between the Roberts court's apparently expansive view of preemption with the Rehnquist court's modest federalism claims -- that perhaps the better way to approach this is not to worry about it from the perspective of preemption, but of federalism, limited powers, and nondelegation. That is: regulation X seems to preempt state law Y, and there's no clear the product of statement so we should presume against preemption - but is regulation X valid in the first place? Is this regulation the fruit of an unconstitutional delegation? Cf. Ginsburg, Delegation Running Riot, 18 Regulation No 1. 83 (1995). And, even if the delegation is valid, is this statute valid in the first place?

You allude to this in calling review "toothless," but you seem to take that problem for granted and go on to treat the symptom; I would go directly to the disease. Before worrying about preemption, I think that courts should consider the ultra vires problem - without a thumb on the scale. It should go without saying that I think this inquiry should be based around a very much more constricted view of what is intra vires than Chemerinsky would advocate. If done correctly, this preserves both robust preemption and protections for the states. That approach would deal not only with the cases where you have true incompatability, which I think are going to be the minority, but would also frame the clear statement inquiry, which could serve as a tiebreaker in some cases (where constitutionality is dubious, a clear statement will incline the court towards upholding). But the key - the key to everything - is for the courts to start with precisley what Chemerinsky wants to eviscerate: "first principles. The Constitution creates a Federal Government of enumerated powers. As James Madison wrote, the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

jeff said...

Did I read the same article? Why should one expect that Obama's appointments will follow this theory? I saw an assertion, but I'm still in search of its aptness. If anyone can find a non-tenuous link, lemme know. K thanx.

Simon said...

Jeff, as Ann said, Chemerinsky's book "sketches out the liberal position on the various federalism issues" in painfully orthodox terms, and Obama has repeatedly shown himself to be a very orthodox liberal. Here's the better question: assuming that you aren't disputing that Chemerinsky's position is liberal orthodoxy (since that would be an untenable position), what is it that makes you think that Obama is not a subscriber to the same orthodoxy?

M. Simon said...

But when you deal with wheat in interstate commerce -- which is 100% indistinguishable from the illegal variety, and which in practice is grown by the same growers as the illegal variety -- then you really have to pay attention to Scalia's argument about how wheat is never more than an instant away from the illegal market.

Now all we need is a department devoted to wheat policing.