Thursday, June 28, 2012

Excerpt From Sen. Rand Paul's Brief on "Spending Power"

Sen. Rand Paul's amicus brief in the Obamacare case focused on why the statute was unconsitutional under the Commerce Clause.  (Disclosure:  I was counsel of record on that brief.)  A majority of the court agreed with his reasoning, but upheld it under the so-called Taxing and Spending power.  This was the third layer of argument that the Obama administration advanced -- the fall-back to its fall-back.

Though it wasn't the primary focus of Sen. Paul's brief, he did address it briefly, focusing on the Framers' original understanding of the "Spending Power":

So, too, with PPACA, the statute’s proponents lean on the Commerce Clause, the Necessary and Proper Clause and the spending power to form a three-leggedstool to support the Act. None of these legs can support the Act’s constitutionality either in isolation or cobbled together in the regulatory morass that is PPACA.

. . .

The spending power is not a roundabout to evade the Constitution’s federalist plan of limited and enumerated powers. See Richard W. Garnett, The New Federalism, The Spending Power, and Federal Criminal Law, 89 CORNELL L. REV. 1, 24 (2003). Indeed, there is no “Spending Clause” per se, and there is considerable scholarly debate about what constitutional provision empowers Congress to spend. See, e.g., ORIGINALISM: A QUARTER-CENTURY OF DEBATE 253-85 (Steven Calabresi ed., 2007). For most of the first seventy years after the Constitution’s ratification, the spending power was understood to be limited to the enumerated powers, rather than a free-standing power. See John C. Eastman, The Spending Power, in THE HERITAGE GUIDE TO THE CONSTITUTION 95 (Edwin Meese III ed., 2005) (discussing narrow view of spending power leading to vetoes by Presidents Thomas Jefferson, James Madison and James Monroe).PPACA cannot be squared with this original understanding.

Here's Sen. Paul's reaction to today's ruling:

“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our health care right,” Sen. Paul said.

“Obamacare is wrong for Americans. It will destroy our health care system. This now means we fight every hour, every day until November to elect a new President and a new Senate to repeal Obamacare,” he continued.


Anonymous said...

As you pointed out at the end of your post, Sen. Paul asserted:

"Just because a couple people on the Supreme Court declare something 'constitutional' does not make it so. The whole thing remains unconstitutional."

This is simply false. It seems to me that the senator truly has no understanding of the way our system works. Regardless of Sen. Paul's opinion, the SCOTUS' ruling today means that "Obamacare" is, by definition, constitutional, and will officially remain that way forever, barring a future court overturning the decision. This is no longer a debatable, abstract issue; whether he thinks the court should have decided differently is irrelevant—it is an objective fact that the Patient Protection and Affordable Care Act is now officially a part of US law under our constitution.

Bridget M. Bush said...

I think Sen. Paul's point is that the Court got it wrogn. Just donning a black robe is no insurance that a Justice cannot make a ruling that cannot be squared with the text of the Constitution. That said, I am sure he understands Marbury v. Madison, that it is the province of the Court to say what the Constitution means.