Would Scalia consider the draft constitutional?

[imreallyperplexed]

Given Scalia's remarks during the PPACA SCOTUS oral arguments suggesting that governments (state and Federal?) cannot compel citizens to participate in a market whether it is a market for broccoli or a market for health insurance, and the current assertion by some on PJ that - despite the SCOTUS ruling - that a mandate is unconstitutional, I am wondering where these folks would draw the line. What can the government compel or mandate under the constitution? Or must all citizen behavior be "voluntary."

So let's take the draft. I did a quick search on the Internet to see if I could find any discussion of the constitutionality of the draft. I found the following:

http://www.usconstitution.net/consttop_drft.html

According to this article, it seems to be "well-accepted" that the draft is constitutional. However, two or three years ago, it was also "well-accepted" that the individual mandate was constitutional. (This article elaborates on this point.
http://bipartisanpolicy.org/news/articles/2012/06/unpopular-mandate )

I am wondering whether Scalia would be open to revisiting the government's ability to conscript Americans to serve against their will in the Armed Forces - particularly for a war that they did not consent to. Conscription is involuntary participation. Why is this different from voluntary participation in a market for health insurance (which Scalia asserts is just like a market for broccoli)?

 

[gabriel]

before or after his information gathering meetings at the pentagon??

 

[imreallyperplexed]

I don't know the answer to that question. I am wondering if conservatives have any opinions. Several of them seem to consider themselves experts on constitutional law and the limits of government.

before or after his information gathering meetings at the pentagon??

 

[fairsheet]

Scalia would do what he's always done, and I'm not being the least bit facetious. Scalia would start by deciding whether or not he was down with the Commander-in-Chief who called for the draft. If he was, he would find basis in the Constitution, for affirming that draft. If he wasn't, he'd do the opposite.

 

[imreallyperplexed]

Honestly fair, I agree with you about Scalia the man. But I would welcome any conservatives who wants to argue that the government has the power to conscript American citizens into a war against their will (anymore than Scalia thinks that the government has the power to force American citizens to not only purchase broccoli but to eat broccoli.)

Scalia would do what he's always done, and I'm not being the least bit facetious. Scalia would start by deciding whether or not he was down with the Commander-in-Chief who called for the draft. If he was, he would find basis in the Constitution, for affirming that draft. If he wasn't, he'd do the opposite.

 

[fairsheet]

Honestly fair, I agree with you about Scalia the man. But I would welcome any conservatives who wants to argue that the government has the power to conscript American citizens into a war against their will (anymore than Scalia thinks that the government has the power to force American citizens to not only purchase broccoli but to eat broccoli.)

Scalia's broccoli allusion was a pathetic testament to Scalia "the judge". As good as that allusion makes the simple feel about themselves, it's moronic in the context of the health insurance discussion. Supreme Court Justices - even ones with different perspectives from mine - are supposed to be above that sort of Foxfartian wedgie-whistlin'.

 

[imreallyperplexed]

Fortunately, Chief Justice Roberts didn't buy into Foxfarian wedgie-whistlin'.

Scalia's broccoli allusion was a pathetic testament to Scalia "the judge". As good as that allusion makes the simple feel about themselves, it's moronic in the context of the health insurance discussion. Supreme Court Justices - even ones with different perspectives from mine - are supposed to be above that sort of Foxfartian wedgie-whistlin'.

 

[trapdoor]

I've always felt the draft was unconstitutional -- Americans are supposed to be protected against involuntary servitude.

 

[imreallyperplexed]

trapdoor,

I thank you for being consistent and for a reasoned answer. Do you think that Scalia would be as consistent as you?

BTW, do you think that Congress has the right to levy taxes (or borrow money as with the Iraq invasion) to fund a war on citizens who are personally opposed to the "military adventure"?

I've always felt the draft was unconstitutional -- Americans are supposed to be protected against involuntary servitude.

 

[trapdoor]

trapdoor,

I thank you for being consistent and for a reasoned answer. Do you think that Scalia would be as consistent as you?

BTW, do you think that Congress has the right to levy taxes (or borrow money as with the Iraq invasion) to fund a war on citizens who are personally opposed to the "military adventure"?

The tax authority is in the Constitution and unlimited, so yes, Congress can do that.

 

[imreallyperplexed]

So you agree with Chief Justice Roberts on PPACA?

The tax authority is in the Constitution and unlimited, so yes, Congress can do that.

 

[trapdoor]

So you agree with Chief Justice Roberts on PPACA?

No, I do not. If the law had said from the outset that it was imposing a tax on people who didn't purchase insurance, I'd agree with him. The law did not -- the language in the law is not "tax" but "penalty," and Roberts decided that this penalty was actually a tax.

As the taxing authority is unlimited, it seems to me that Congress can tax anything -- even inactivity as is happening here. What is not unlimited, however, is the spending authority, and I doubt the constitutionality of any program that entails spending not necessary and proper to the federal powers enumerated in Article 1, Section 8 of the Constitution.

 

[imreallyperplexed]

OK. But it seems that changing the penalty to a tax would be a simple adjustment to make to the law. Roberts essentially did that for Obama. That - it would seem to me - is within the purview of a justice.

Your other argument is that there are "legitimate" ways in which the Federal government can "spend" money and that bills like the PPACA are not included. However, in my understanding of the PPACA, the bulk of increased spending involves subsidies and enlarged Medicaid along with some modifications to Medicare. Medicaid and Medicare have already passed constitutional muster. The mandate to set up insurance and oversee insurance exchanges and administer the bill do not involve significant spending on the part of the government. And no one challenged the constitutionality of the exchanges etc., etc.

So if I read you correctly, your challenge goes further than challenging PPACA but challenges Medicaid as well. (Medicare is a little difference because folks pay into Medicare so they defray at least part of the cost.) What you seem to be saying is that things like Medicaid are unconstitutional. Or at least they are unconstitutional for the Federal government. You might consider programs like Medicaid constitutional for the states.

Is this anywhere near correct?

No, I do not. If the law had said from the outset that it was imposing a tax on people who didn't purchase insurance, I'd agree with him. The law did not -- the language in the law is not "tax" but "penalty," and Roberts decided that this penalty was actually a tax.

As the taxing authority is unlimited, it seems to me that Congress can tax anything -- even inactivity as is happening here. What is not unlimited, however, is the spending authority, and I doubt the constitutionality of any program that entails spending not necessary and proper to the federal powers enumerated in Article 1, Section 8 of the Constitution.

 

[trapdoor]

OK. But it seems that changing the penalty to a tax would be a simple adjustment to make to the law. Roberts essentially did that for Obama. That - it would seem to me - is within the purview of a justice.

I don't see the action as being within the purview of a justice. Laws are written by the legislature, not the courts. If the language of the said "penalty" (as it does) and the court determines that a penalty is unconstitutional (as it has), then legislature has to change the language of the law from "penalty" to "tax" for the law to be constitutional.

Your other argument is that there are "legitimate" ways in which the Federal government can "spend" money and that bills like the PPACA are not included. However, in my understanding of the PPACA, the bulk of increased spending involves subsidies and enlarged Medicaid along with some modifications to Medicare. Medicaid and Medicare have already passed constitutional muster.

Actually, I'm not certain either program has been put to a constitutional test. Their legitimacy rests on the finding in Helvering v. Davis, a 5-4 ruling from the New Deal era that is itself a questionable decision. That ruling, which legitimized the idea that Congress can spend money on "general welfare" outside the powers enumerated in Article 1, Section 8 of the Constitution, made it possible for the Congress to ask itself "is this constitutional" and answer itself "yes."

So if I read you correctly, your challenge goes further than challenging PPACA but challenges Medicaid as well. (Medicare is a little difference because folks pay into Medicare so they defray at least part of the cost.)

You left out Social Security, for which I believe there is also no authority -- not that anything can be done about that at this point in time, save for amending the Constitution to provide the authority. I want to point out also that I don't think there's anything wrong with these programs as matters of policy -- I merely think they're not authorized by the Constitution as it exists today. All of them violate the language of the 9th and 10th amendments.

What you seem to be saying is that things like Medicaid are unconstitutional. Or at least they are unconstitutional for the Federal government. You might consider programs like Medicaid constitutional for the states.

That is fundamentally my position.

 

[imreallyperplexed]

I don't see the action as being within the purview of a justice. Laws are written by the legislature, not the courts. If the language of the said "penalty" (as it does) and the court determines that a penalty is unconstitutional (as it has), then legislature has to change the language of the law from "penalty" to "tax" for the law to be constitutional.

Well, we are reaching a point where I don't have the background to really argue one way or the other. But someone else might. It seems to me that the it would be within the purview of a judge to find "intent" in language. One reason that Roberts' logic made sense to me is that the penalty was collected through a taxing agency, the IRS. (I do know from having been involved with a couple of contractual cases that courts do sometimes attempt to determine intent by interpreting the language and the context in which a contract was entered into.)

Actually, I'm not certain either program has been put to a constitutional test. Their legitimacy rests on the finding in Helvering v. Davis, a 5-4 ruling from the New Deal era that is itself a questionable decision. That ruling, which legitimized the idea that Congress can spend money on "general welfare" outside the powers enumerated in Article 1, Section 8 of the Constitution, made it possible for the Congress to ask itself "is this constitutional" and answer itself "yes."

You left out Social Security, for which I believe there is also no authority -- not that anything can be done about that at this point in time, save for amending the Constitution to provide the authority. I want to point out also that I don't think there's anything wrong with these programs as matters of policy -- I merely think they're not authorized by the Constitution as it exists today. All of them violate the language of the 9th and 10th amendments.

That is fundamentally my position.

Actually, I thought that that was your position based on previous discussions. I just wanted to avoid putting words in your mouth. In fact, you think that the whole effort to institute some sort of universal health care program is beyond the power of the Federal Government and is unconstitutional. I disagree with that position and think that the precedents of the last 75 years are contrary to that position. I also cannot see the SCOTUS - even one with as many conservatives as this - overturning these precedents. For example, though Romney and Ryan seem to want to privitize Social Security and Medicare, they do seem - implicitly - to think that the Federal government has a role to play in "preserving" both programs. But I am guessing that even these Republican positions might be considered unconstitutional in your view. Am I missing something?

 

[trapdoor]

Well, we are reaching a point where I don't have the background to really argue one way or the other. But someone else might. It seems to me that the it would be within the purview of a judge to find "intent" in language.

But the intent in the language was not to tax, but to penalize. I can (if called to do so) find quotations from a number of people supporting the law who expressly said it contained no tax.

One reason that Roberts' logic made sense to me is that the penalty was collected through a taxing agency, the IRS. (I do know from having been involved with a couple of contractual cases that courts do sometimes attempt to determine intent by interpreting the language and the context in which a contract was entered into.)

If you fail to file your tax return, once the IRS comes after you'll have to pay both the taxes you owe, and the penalty for failure to file. Although it is collected by the IRS and goes into the general revenue fund of the government, that penalty is not itself a tax. No different for this. The crux of this is that for political reasons the supporters of the legislation didn't want to say up front that their universal health care scheme would require taxing people, so they wrote the law in a way that didn't overtly tax people, masking their revenue enhancement as a penalty. I think the legal penalty they should have faced for this obvious obfuscation was to have the court strike down the law.

Actually, I thought that that was your position based on previous discussions. I just wanted to avoid putting words in your mouth. In fact, you think that the whole effort to institute some sort of universal health care program is beyond the power of the Federal Government and is unconstitutional.

That's true -- the provision of universal health insurance is not among the authorities delegated to the federal government via the Constitution.

I disagree with that position and think that the precedents of the last 75 years are contrary to that position. I also cannot see the SCOTUS - even one with as many conservatives as this - overturning these precedents.

I don't think it will overturn those precedent, either, even though the three key rulings from the New Deal era were all 5-4 decisions made under duress (the FDR court-packing scheme).

For example, though Romney and Ryan seem to want to privitize Social Security and Medicare, they do seem - implicitly - to think that the Federal government has a role to play in "preserving" both programs. But I am guessing that even these Republican positions might be considered unconstitutional in your view. Am I missing something?

What I think they're looking at is not so much privatization, an end to the program, as individual accounts -- the difference being that individual accounts can earn money and be passed on to heirs, allowing families to build more wealth, an option not available for Social Security as it stands today. My bottom line on Social Security is simply that it is a power not granted to the government, and an amendment should be required to extend it. That's setting aside the financial problems the system has, which cannot be solved using the political tools at our disposal today.

 

[imreallyperplexed]

But the intent in the language was not to tax, but to penalize. I can (if called to do so) find quotations from a number of people supporting the law who expressly said it contained no tax.

First, I am not a legal scholar so I take my own thoughts with a grain of salt. But it seems to me that we are getting into into an important distinction between the common law tradition (of which the U.S. is a part) and the Roman/civil law tradition (which holds in most of Western Europe). In particular, the common law tradition does allow for "judge made" law that relies on precedent and allows judges to interpret the intent of Congress in passing legislation. Now, we can argue all day whether Roberts should have interpreted things this way, I do think that it was within his purview as a judge in a common law tradition to make the interpretation that he did. I don't know nearly as much about the Roman/civil law tradition but it is my understanding that judges actually have much less latitude in interpretation, that precedent (and juries) are not important, and judges are really more like legal bureaucrats.

If you fail to file your tax return, once the IRS comes after you'll have to pay both the taxes you owe, and the penalty for failure to file. Although it is collected by the IRS and goes into the general revenue fund of the government, that penalty is not itself a tax. No different for this. The crux of this is that for political reasons the supporters of the legislation didn't want to say up front that their universal health care scheme would require taxing people, so they wrote the law in a way that didn't overtly tax people, masking their revenue enhancement as a penalty. I think the legal penalty they should have faced for this obvious obfuscation was to have the court strike down the law.

Well, I understand your point. However, as far as I know, no one ever challenged the constitutionality of the "tax penalty" for not filing taxes and there was no legal ruling as to whether it was or was not a tax. In fact, I would argue that Roberts and the four left judges may have set a precedent that any fee, penalty, or tax collected by an agency such as the IRS is - for the purposes of law - considered a tax. The situation is unique and it is the first time that the court ever really dealt with this issue from a legal (rather than a "common sense" or "political") point of view.

That's true -- the provision of universal health insurance is not among the authorities delegated to the federal government via the Constitution.

I understand your position. We can just agree to disagree.

I don't think it will overturn those precedent, either, even though the three key rulings from the New Deal era were all 5-4 decisions made under duress (the FDR court-packing scheme).

Our predictions - at least - are the same.

What I think they're looking at is not so much privatization, an end to the program, as individual accounts -- the difference being that individual accounts can earn money and be passed on to heirs, allowing families to build more wealth, an option not available for Social Security as it stands today. My bottom line on Social Security is simply that it is a power not granted to the government, and an amendment should be required to extend it. That's setting aside the financial problems the system has, which cannot be solved using the political tools at our disposal today.

So I take it that whether or not we call it privitizing social security, the Republican plan is still meant to "modify" a program that you feel is fundamentally unconstitutional (independent of the policy prescriptions). Correct?

 

[Woolleybugger]

I find that this is exactly how folks that are true literalists fall into a giant trap. Your comment is one that ignores the very essence of why we have a federal government in the first place. That is to protect us, serve us and provide for things that are national in scope which cannot be done in any other fashion. The idea that forcing young people to defend the nation in time of war is unconstitutional is so bizarre that you have to wonder what kind of ideological mine field Trap lives in to believe in this suicidal nonsense.

The nation exists in whatever form we deem it necessary to exist in order to preserve the nation itself. A little thing like some explicit enumeration of powers keeping a POTUS from drafting every young man tomorrow if he so desires in a legal war is so self-destructive that it is almost funny. Here is something to think about:

In an important section of her opinion joined by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg suggests that Congress’s Article I powers were meant to encompass this broad grant of authority, including the implied power to address whatever national problems the states are incapable or unwilling to address on their own; in short, to solve collective action problems. Seeking to stamp out this heresy, Justices Scalia, Kennedy, Thomas, and Alito write:

"[Justice Ginsburg's opinion] treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is 'the Nation’s course in the economic and social welfare realm,' and more specifically 'the problem of the uninsured.' The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power."

But this has come up before so lets go walk down history lane for a second:

In his concurring opinion in Knox, Justice Bradley elaborated on the same theme:

"The Constitution of the United States established a government, and not a league, compact, or partnership. It was constituted by the people. It is called a government. In the eighth section of Article I, it is declared that Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof. As a government it was invested with all the attributes of sovereignty...."

"The United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality….It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike and which require uniformity of regulations and laws…. "

"Such being the character of the general government, it seems to be a self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such and as being essential to the exercise of its functions…." Id. at 554-56 (emphasis original)

and then we have:

The idea that the United States would be legally incapable of solving difficult problems affecting the entire nation because the appropriate means were not enumerated in the Constitution would come as a surprise to many of the Framers. The sharpest legal minds in the founding generation – James Wilson, Gouverneur Morris, Alexander Hamilton, James Madison, John Jay, William Patterson, John Marshall, and others—understood or clearly expressed at various points in time that the Constitution was a corporate charter, which had been carefully framed in such a way as to ensure that the federal government, like any well-designed corporation, would possess all the express and implied powers it needed to adapt to unforeseeable circumstances and to fulfill the broad purposes for which it was established. In this respect, the three most critical provisions were the Preamble, the Sweeping Clause, and the Supremacy Clause—all of which Wilson and Morris took the lead in drafting, putting in place doctrines that they and their nationalist allies had forcefully advocated from 1776 onward.

nuff said.

http://balkin.blogspot.com/2012/07/theodore-roosevelt-on-federal.html

 

[imreallyperplexed]

Just to be sure I understand you Wooley, you think that the SCOTUS should have upheld the PPCA 9-0 and recongized authority under the commerce clause for the mandate. Is that right?

What I found refreshing about trapdoor was his consistency. As fairsheet wrote, I suspect that Scalia himself would find the draft constitutional.

I find that this is exactly how folks that are true literalists fall into a giant trap. Your comment is one that ignores the very essence of why we have a federal government in the first place. That is to protect us, serve us and provide for things that are national in scope which cannot be done in any other fashion. The idea that forcing young people to defend the nation in time of war is unconstitutional is so bizarre that you have to wonder what kind of ideological mine field Trap lives in to believe in this suicidal nonsense.

The nation exists in whatever form we deem it necessary to exist in order to preserve the nation itself. A little thing like some explicit enumeration of powers keeping a POTUS from drafting every young man tomorrow if he so desires in a legal war is so self-destructive that it is almost funny. Here is something to think about:

In an important section of her opinion joined by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg suggests that Congress’s Article I powers were meant to encompass this broad grant of authority, including the implied power to address whatever national problems the states are incapable or unwilling to address on their own; in short, to solve collective action problems. Seeking to stamp out this heresy, Justices Scalia, Kennedy, Thomas, and Alito write:

"[Justice Ginsburg's opinion] treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is 'the Nation’s course in the economic and social welfare realm,' and more specifically 'the problem of the uninsured.' The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power."

But this has come up before so lets go walk down history lane for a second:

In his concurring opinion in Knox, Justice Bradley elaborated on the same theme:

"The Constitution of the United States established a government, and not a league, compact, or partnership. It was constituted by the people. It is called a government. In the eighth section of Article I, it is declared that Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof. As a government it was invested with all the attributes of sovereignty...."

"The United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality….It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike and which require uniformity of regulations and laws…. "

"Such being the character of the general government, it seems to be a self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such and as being essential to the exercise of its functions…." Id. at 554-56 (emphasis original)

and then we have:

The idea that the United States would be legally incapable of solving difficult problems affecting the entire nation because the appropriate means were not enumerated in the Constitution would come as a surprise to many of the Framers. The sharpest legal minds in the founding generation – James Wilson, Gouverneur Morris, Alexander Hamilton, James Madison, John Jay, William Patterson, John Marshall, and others—understood or clearly expressed at various points in time that the Constitution was a corporate charter, which had been carefully framed in such a way as to ensure that the federal government, like any well-designed corporation, would possess all the express and implied powers it needed to adapt to unforeseeable circumstances and to fulfill the broad purposes for which it was established. In this respect, the three most critical provisions were the Preamble, the Sweeping Clause, and the Supremacy Clause—all of which Wilson and Morris took the lead in drafting, putting in place doctrines that they and their nationalist allies had forcefully advocated from 1776 onward.

nuff said.

http://balkin.blogspot.com/2012/07/theodore-roosevelt-on-federal.html

 

[ya-ta-hey]

Given Scalia's remarks during the PPACA SCOTUS oral arguments suggesting that governments (state and Federal?) cannot compel citizens to participate in a market whether it is a market for broccoli or a market for health insurance, and the current assertion by some on PJ that - despite the SCOTUS ruling - that a mandate is unconstitutional, I am wondering where these folks would draw the line. What can the government compel or mandate under the constitution? Or must all citizen behavior be "voluntary."

So let's take the draft. I did a quick search on the Internet to see if I could find any discussion of the constitutionality of the draft. I found the following:

http://www.usconstitution.net/consttop_drft.html

According to this article, it seems to be "well-accepted" that the draft is constitutional. However, two or three years ago, it was also "well-accepted" that the individual mandate was constitutional. (This article elaborates on this point.
http://bipartisanpolicy.org/news/articles/2012/06/unpopular-mandate )

I am wondering whether Scalia would be open to revisiting the government's ability to conscript Americans to serve against their will in the Armed Forces - particularly for a war that they did not consent to. Conscription is involuntary participation. Why is this different from voluntary participation in a market for health insurance (which Scalia asserts is just like a market for broccoli)?

Mr. Perplexed,

The Selective Service Draft is not a market nor a product which someone is forced to buy, so your argument, re the Commerce Clause, either does no apply or is a dishonest red herring in lieu of a debate point on your part.

Perhaps you should do some real research, rather regurgitate this talking point which I thought wilted on the vine two years ago for lack of substance. The draft has been challenged several times, and each time, the SCOUS has ruled unanimously that it is constitutional.

Hope that helps.