Results tagged “Dormant Commerce Clause” from PlanetGreen.org

The DOJ's Executively Under-Privileged Claim in the 9th Circuit

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Yesterday afternoon, the Ninth Circuit Court of Appeals heard oral arguments in Washington v. Trump, (17-35105), considering whether to stay a temporary injunction halting the President's controversial executive order curtailing immigration from seven countries known to harbor substantial terrorist threats to our nation.

Plaintiffs, the states of Washington and Minnesota, contended that the order is unlawful and "unconstitutional" because it leaves their university students in limbo, separates families within their borders, and is allegedly in violation of the Establishment Clause; the federal government countered that the states do not have standing to sue on behalf of either their citizens or foreign nationals, and also that no irreparable harm will result from the issuance of a stay. However, in light of the importance of our immigration policy to ensuring our national security, the aspects of the case the DOJ declined to mention may turn out to be the most vital.


No Mention of Reynolds Endangers National Security


Throughout the hearing, the panel repeatedly questioned Justice Department lawyer August Flentje about potential limitations of judicial review of the imperiled order. At one point, when he briefly invoked the reservation of power to the President and the difficulty of assessing the validity of a critical security decision, presiding judge Michelle Friedland asked outright: "Are you arguing, then, that the President's decision in that regard is unreviewable?" (12:51-12:56). Flentje agreed after a long pause, but immediately reverted to the question of standing and entirely ignored the sensitive nature of our ongoing fight against international terror. This choice could cost the government heavily in subsequent phases of this case, as Flentje effectively waived any privilege the U.S. could otherwise claim during discovery.


Under United States v. Reynolds, 345 U.S. 1 (1953), the federal government retains the privilege - and the obligation - to protect the public's safety by withholding documents containing classified or confidential material, such as military intelligence relating to the activities of extremist groups within the affected nations. The primacy of the privilege is exemplified in the text of Reynolds itself - "Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake" - and specific invocations of its protections have always been treated deferentially by the courts. As the Supreme Court wrote per Justice Field in the wake of the Civil War, "It may be stated as a general principle that public policy forbids the maintenance of any suit in a court of justice the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential and respecting which it will not allow the confidence to be violated." Totten v. United States, 92 U.S. 105, 107 (1875). One hundred and twenty-six years later, the D.C. Circuit recognized the validity of this "privilege and prerogative of the Executive," writing further that courts cannot "compel a breach in the security which that branch is charged to protect." National Council of Resistance of Iran v. Dep't of State, 21 F.3d. 192 (2001), see Global Relief Foundation v. O'Neill, 315 F.3d 748 (7th Cir. 2002) and People's Mojahedin Organization of Iran v. Dep't of State, 327 F.3d 1238 (D.C. Cir. 2003). In Jabara v. Kelly, it was similarly concluded that "[i]n the case of claims of military or state secrets' privilege, however, the superiority of well-informed advocacy becomes less justifiable in view of the substantial risk of unauthorized disclosure of privileged information." 75 F.R.D. 475 (E.D.Mich. 1977). As the Fourth Circuit recognized in 1972, "The courts, of course, are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area." United States v. Marchetti, 466 F.2d 1309, 1318, cert. denied at 409 U.S. 1063 (1972), see also Black v. United States, 62 F.3d 1115 (8th Cir. 1995), Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236 (4th Cir. 1985). The court in Heine v. Raus espoused an expansive view of the privilege, holding that "if the two interests cannot be reconciled, the interest of the individual litigant must give way to the government's privilege against disclosure of its secrets of state." 399 F.2d 785, 791 (4th Cir., 1968). See Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975), Cresmer v. United States, 9 F.R.D. 203 (1949) and Zuckerbraun v. General Dynamics Corp., 935 F.2d 544 (2nd Cir. 1991). Lastly, in Halkin v. Helms, the D.C. Circuit acknowledged the heightened importance of the privilege in the modern era:


"It requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate." 598 F.2d 1, at 8 (1978).


In this case, however, the DOJ opted not to assert the rights contained in Reynolds, and therefore may be compelled to disclose any relevant intelligence during discovery or risk the automatic loss of this lawsuit. Either alternative could place the government at a disadvantage when promulgating new immigration regulations and severely jeopardize our collective security in the interim.


The Dormant Naturalization Clause


Additionally, even though Flentje emphasized Washington's lack of standing in the instant suit, he did not challenge its attempt to interfere with U.S. foreign policy. The Constitution explicitly reserves the power "To establish an uniform Rule of Naturalization" to the federal government in Article I, Section 8, an assignment of authority which plainly indicates that only the United States can control its rules pertaining to immigration. This is made clear in Edwards v. California, 314 U.S. 160 (1941), in which the respondent unconstitutionally attempted to curb migration from the Midwest by penalizing those aiding indigent travelers, and in State v. Steamship "Constitution," 42 Cal. 578 (1872), in which a California statute that sought to deny admission to international immigrants was struck down as infringing on the sole right of the U.S. government to regulate entry to this nation.


It is a long-standing principle that certain rights enumerated as belonging to the federal government in the Constitution cannot be usurped by the several states. Our national jurisprudence concerning the Dormant Commerce Clause best illustrates this. In Quill Corp. v. North Dakota, the Supreme Court declared: "The [Commerce] Clause, in Justice Stone's own phrasing, 'by its own force' prohibits certain state actions that interfere with interstate commerce. South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U.S. 177, 185 (1938)." 504 U.S. 298 (1992), see also Tyler Pipe Industries v. Washington State Dept. of Revenue, 438 U.S. 232 (1987), Nat'l Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U.S. 753 (1967), Toomer v. Witsell, 334 U. S. 385 (1948). In this case, Washington contends that it sues on its own behalf and to protect its own interests; however, it is still unlawfully arrogating the functions of the United States government under Brimmer v. Rebman, where it was held that "a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to all the people of the States, including the people of the State enacting such statute." 138 U. S. 78 (1891). So long as a state possesses the intent to appropriate the plenary powers of the federal authorities, "that legislative effort is clearly impermissible under the Commerce Clause of the Constitution." Philadelphia v. New Jersey, 437 U. S. 618 (1978); Leloup v. Port of Mobile, 127 U. S. 640, 648 (1888); Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662 (1981); Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 10 (1928). Finally, as the Court once asserted per Chief Justice Marshall:


"It has been observed that the powers remaining with the states may be so exercised as to come in conflict with those vested in Congress. When this happens, that which is not supreme must yield to that which is supreme. This great and universal truth is inseparable from the nature of things, and the Constitution has applied it to the often interfering powers of the general and state governments, as a vital principle of perpetual operation. It results necessarily from this principle that the... power of the states must have some limits. It cannot reach and restrain the action of the national government within its proper sphere." Brown v. Maryland, 12 Wheat. 419 (1827).


Conclusion


A decision in this case is expected by the end of the week, and the lawsuit will proceed regardless of whether the emergency stay is granted or denied. However, the hearing yesterday provided us with a revealing glimpse of both the Justice Department's contentions and the important concepts left unmentioned - which could effectively shape the future of this litigation over the next weeks.

Why I'm a Textualist (Loosely Speaking)

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"We must always remember that it is a Constitution we are expounding."

So spoke Chief Justice John Marshall in 1819, delineating for almost the first time the plenary powers of the federal government. Our country was then in its infancy. The boundary between state and national authority was still unclear; the promise of "liberty" in the Bill of Rights was still a new, ambiguous, unexplained provision; our union was composed of only twenty-one states; and the crucial document in question only had twelve amendments. For over one hundred and ninety-seven years, we have read that ubiquitous decision and cited those ringing words; but somewhere along the way, we appear to have clean forgotten.

The Supreme Court was the first issue brought up in the last Presidential debate, and both candidates were asked how they interpreted our nation's founding charter. Hillary Clinton answered that she saw its articles as flexible, adaptable guidelines changing with the times; Donald Trump indicated that he thought the forefathers' intent should govern their phrases, and it should be construed "as it was meant to be." These views of the Constitution may typify the standpoints of the presidential hopefuls' respective political parties, but both involve a significant amount of reading between its every carefully written line. In light of the ongoing national polemic over the future of our country and the Court, I have re-examined my own perspective on these vital issues - and, once again, have concluded that the Constitution simply means what it says.

The trouble with the Democratic vision of an ever-changing, living document is that simple words are routinely lifted out of their ordinary, relatively constant meanings and given entirely new definitions to further a particular social aim. For example, the case of Goldberg v. Kelly determined that welfare benefits were the rightful property of recipients and therefore cannot be terminated without a full adjudicatory hearing. The motive for this decision was doubtlessly the worthy desire to strengthen the legislative and judicial framework of social reform measures, but the result entirely ignored the nature of the "property" in question - benefits, designed to help an individual get back on his feet without entitling him to an interminable supply of free money. And not only did the holding corrupt our understanding of the word "property" in the Due Process Clause, it continues to cost both the government and its citizens: every time gratuitous payments are made to persons no longer requiring assistance, or the unnecessary expense of holding these hearings is incurred, taxpayer "property" funds the furtherance of this misreading.

That's not to say the Republican conception of a Constitution exactly as the forefathers meant it is perfect either. To think that the authors of any statute, much less the supreme law of the land, wrote down and ratified conclusive, binding words simply because they sounded good; or to think that our fundamental law is to be interpreted like modern poetry, and meaning is to be extrapolated from unspoken undertones and the climate of the time it was written, drastically underestimates the foresight of the Framers. Surely they didn't intend for their broad ringing guarantees of liberty to be straitjacketed by the very institutions they created, just as certainly as they must have realized they were enumerating the central tenets of an enduring nation and therefore must communicate their purposes very clearly. (And if they couldn't figure out that much, then it probably doesn't matter what their master plan for our country was. But personally, I give them more credit than that). Compounding this problem is another dilemma: exactly which Founding Father gets to determine the meaning of the Constitution for all time, anyway? Are we going with Thomas Jefferson's original intent, John Marshall's, Alexander Hamilton's, Benjamin Franklin's, or Gunning Bedford Jr.'s? Because Gunning Bedford Jr. doubtlessly had his own opinion on the matter, and has just as much right to decide on the significance of the sentences he signed as do any of those other estimable persons.

That's where we're left in the dark. The debate on constitutional interpretation is as old as the Constitution itself - it was to the Framers what each of them believed it to be. In 1787 there were as many varied perspectives on these vital issues as there are today, and it ignores the very idea of pluralism our country was founded to foster to suppose that there is one true, correct "originalism." Perhaps to James Iredell, the First Amendment only prohibited prior restraint, just as to James Madison it protected citizens' freedom of expression under nearly all circumstances. Any cursory examination of contemporary essays and speeches reveals these differences and the fallacy of supposing there was any solitary, conclusive opinion on the division of rights between state and federal government and the individual.

They gave us only one place to look to find their final compromises, the one clear statement of their unified purpose: the unambiguous wording of the Constitution itself. Whatever they each understood the phrases to mean, they eventually agreed that those were the phrases that should govern our nation for coming decades and centuries, and we ought to live by that. Each clause shouldn't be constricted or stretched to accommodate a particular political climate, but should be read in its natural and everyday context, meaning no more and no less than it plainly says.

For starters, let's dispense with the misbegotten notion of a Dormant Commerce Clause. All the Constitution itself says on the matter is that Congress retains the right "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." That's it. It says nowhere that states have to accept hazardous waste originating in other states. Or that lower tax rates for local small businesses are unconstitutional, while "incentive packages" for massive out-of-state factories are perfectly fine. Or that a state doesn't have the freedom to contract to sell its own property, adding the simple condition that raw timber currently on its own land be processed in the state before being exported. (Better believe it. Philadelphia v. New Jersey, 437 U.S. 617 (1978), South-Central Timber Development v. Wunnicke, 467 U.S. 82 (1984)). "Dormant Commerce Clause" aside, all of those measures are lawful uses of the States' police power to protect citizens and further their economic development (and far better ways to do so than the Goldberg v. Kelly approach, if you ask me). The Constitution's plain language does not admit of the subtle inferences that have allowed large corporations to nullify the most basic rights reserved to the states.

While we're at it: the Ninth Amendment, true to its wording, does not mean any one thing in particular. That's the beauty of it. Rather, it recognizes that the Constitution doesn't mention everything and provides the needed elasticity for an enduring document designed to be interpreted literally. A charter riddled with such seldom-invoked protections as the right not to have soldiers quartered in your home (haven't yet found a use for that one myself), while missing vital liberties like freedom of choice or freedom of travel, would not last very long without the Ninth Amendment. But it, like all other constitutional provisions, shouldn't be interpreted either strictly or broadly: it should simply be construed to say exactly what it does. Which boils down to one fundamental tenet on which our national conception of freedom is based:

You have the right to do whatever it is that you want to do, as long as you're not hurting anyone or making anybody pay for it.

Simple enough?

At least it's got to be simpler than the chaos resulting from tailoring straightforward language to promote even the best of political agendas, and/or trying to decide which Founding Father's personal understanding of his government ought to be the law of the land. As Hugo Black once said, "The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation." Our country would do well to remember that now.

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