2017: Year of the Constitution

Analysis, Opinion No Comments on 2017: Year of the Constitution 38

Around this time last year, it was fashionable to complain about how horrible the year 2016 was. This was partly because of an inordinate number of terror attacks and increased tensions between cops and black communities. But the primary motivation was, of course, the November victory for Donald Trump – the biggest American presidential upset since Truman’s victory over Dewey in 1948.

Judging by headlines in the mainstream media, 2017 was a year marked by Russian espionage, Nazi resurgence, and an all-out assault against the First Amendment rights of the press. Scary stuff. And on top of that, America endured the largest mass shooting in its history. So, why are no pundits labeling 2017 as the “worst year ever”?

Perhaps, despite the constant negative press covfefe, 2017 was not such a bad year after all. From the perspective of conservative Constitutionalists, 2017 was one of the best years on record. Here are some highlights.

DACA Executive Order

Back in 2011, before his re-election, then President Obama remarked that unilateral executive action on immigration reform would transgress American tradition and “violate our laws”. Three years later, Obama took unilateral executive action to reform immigration law, by signing an executive order known as DACA (Deferred Action for Childhood Arrivals). This usurpation of legislative power stood unchallenged throughout the rest of Obama’s presidency.

In early September 2017, President Trump rescinded Obama’s DACA executive order, sending the immigration reform issue back to Congress, where it belongs. Some conservative pundits were upset that Trump’s action prevented the Supreme Court from declaring Obama’s executive action unConstitutional, but Trump made the right move. Continuing a policy he knew to be unConstitutional would violate his Presidential oath of office.

Net Neutrality

“Net Neutrality” began as a series of laws proposed to Congress which were designed to extend the federal government’s regulatory control over the internet. Between 2005 and 2012, “Net Neutrality” laws were proposed five times. They were defeated each time. However, mega-corporations like Google, Netflix, and Facebook continued to lobby heavily in favor of the regulations.

In 2015, under the guidance of President Obama, the FCC redefined internet service as a “public utility”, which extended its regulatory control over the internet without Congressional approval. Although a federal appeals court upheld the move, this was a violation of the spirit of the Constitution. The Constitution empowers the Legislature, not the Executive, to decide what regulatory powers executive agencies should have.

In 2017, FCC chairman Ajit Pai led the charge to restore Constitutional normalcy on the issue of internet regulation. In mid-December, the FCC voted to relinquish its regulatory control over the internet, sending the issue back to Congress, where it belongs.

Individual Mandate

In March 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (ObamaCare) into law. The act instituted a massive federal regulatory apparatus designed to use the existing healthcare system to transfer wealth from the young and healthy to the old and sick. A major piece of this apparatus was the individual mandate, a provision that forces citizens to buy health insurance, whether they want it or not, or face a federal penalty. This provision is a violation of the Constitution by any reasonable interpretation.

Two years later, a challenge to the individual mandate rose to the Supreme Court. In a move reminiscent of FDR, President Obama gave a speech pressuring the Court to rule in favor of his namesake legislation. And, as happened back in 1936, a Justice named Roberts caved to the political pressure.

In order to rule the mandate provision Constitutional, Chief Justice John Roberts infamously decided to redefine a federal penalty into a “tax”. As has been the case since McCulloch v. Maryland, “the power to tax is the power to destroy”. Defined as a “tax”, it is unclear whether there could be any limit to the federal government’s power to penalize (i.e. “destroy”) a private citizen who does not purchase health insurance. Could the “tax” be $100,000? No one knows. The ruling is too opaque to set clear precedent.

In December 2017, the United States Congress, with the approval of President Trump, passed the Tax Cuts and Jobs Act (Tax Reform), putting an end to the individual mandate to purchase health insurance. This may have dire policy consequences for the ObamaCare Rube-Goldberg machine, but it is a big win for the Constitution.

Contraception Mandate

The unConstitutional effects of ObamaCare were not limited to the individual mandate. The law empowered the Health and Human Services Secretary to decide what must be covered by health insurance plans provided by private employers. Obama’s HHS Secretary, Kathleen Sebelius, included contraception on the list of required services. Churches were exempt from this mandate. But other Catholic organizations, like hospitals and charities, were not.

The Little Sisters of the Poor, a Catholic institute for women who care for the elderly, was required by the mandate to purchase contraception for its employees, against religious objections. This is a clear violation of the First Amendment right to Freedom of Religion. The Little Sisters were given the Hobson’s choice of violating their sincerely held religious beliefs, or giving up their charitable work. The Founders rolled in their graves.

In 2014, Congressional Republicans tried to override the HHS decision to mandate contraception coverage. Senator Roy Blunt proposed an amendment to the Affordable Care Act which would exempt religious organizations from the mandate. Democrats defeated the bill. In May 2016, the Supreme Court punted on the issue, sending it back to lower courts.

President Trump accomplished what the Senate Republicans and the Supreme Court did not. In October 2017, he announced that all religious organizations may claim exemption from the mandate, ending a half-decade of dubious attacks on the First Amendment.

Gorsuch Appointment

Before then end of Barack Obama’s second term, Justice Antonin Scalia died. This was the Justice who had quietly protested Obama’s pressure on the court by wearing a Thomas More hat to Obama’s second inauguration. Scalia was a textualist, who was committed to faithful interpretation of the Constitution. Obama and the Democrats were eager to replace him with a liberal. Republicans in Congress successfully delayed the appointment until after the next election.

In one of his first acts as newly-elected president, Donald Trump appointed Neil Gorsuch to fill the vacancy on the Supreme Court. Gorsuch had been universally hailed by all sides as a respectable judge, as was demonstrated by the Democrats’ unanimous support for his appointment to appeals court in 2006. He was also ideologically akin to Scalia, which restored the liberal/conservative balance in the nation’s highest court.

But, most importantly from a Constitutional standpoint, Gorsuch is another faithful textualist. Like Scalia, he will remain an enemy of judicial activism. And, so far, his record clearly indicates that he has a robust understanding of both the First and Second Amendments.

Title X Funding for Abortion

Ever since the Griswold v. Connecticut ruling in 1965, the federal government has usurped the authority of the States to set policy regarding family planning. This culminated, of course, in the 1970 Roe v. Wade decision, in which the Supreme Court decided to essentially write new federal law and manufacture a “right” to abortion. States have henceforth been forbidden to make laws regarding abortion that do not conform to the system invented by the Court itself.

In the final days of his presidency, Barack Obama further usurped the authority of States, by enacting a rule which funneled Title X funding to organizations that provide abortions. According to the new policy, States would be powerless to prevent funds from going directly to abortion mills, despite the existence of the Hyde Amendment, which bans the federal government from funding abortion.

In April 2017, President Trump rolled back the Obama-era rule, allowing States to deny Title X funding to abortion providers. While this is not nearly enough to restore Constitutional normalcy on the abortion issue, it is a step in the right direction.

Second Amendment

In 2012, in response to the shooting at Sandy Hook Elementary School, President Obama crafted a rule that banned sales of guns to persons who the FBI deemed “mentally incapable of handling their financial affairs”. The link between financial affairs and an ability to properly handle a firearm was unclear. Regardless, taking away the ability to legally obtain a firearm from a disabled person without Due Process is a violation of the Second Amendment to the Constitution.

In February 2017, the Republican Congress passed a resolution which ended this Obama-era rule. President Trump signed it into law, restoring a legal situation that fits with the current Supreme Court interpretation of the Second Amendment.

The Paris Accords

In September 2016, President Obama signed the Paris Climate Accords, a multilateral agreement on Climate Change which placed international obligations upon the United States. According to the Constitution, an agreement of this kind constitutes a treaty, which requires consent of the Senate. The Senate never ratified the Paris Accords. In order to make the United States compliant anyway, Obama implemented Paris-compliant climate policy through executive order.

In June 2017, Donald Trump signalled his intention to withdraw from the accords in a letter to the U.N. This was the only measure that the U.N. would recognize as a legal pathway out of the agreement, because the Paris Accords technically disallow parties from pulling out of the agreement for four years. Whether one supports Trump’s coal-friendly America-first policy or not, pulling out of the accords was one of only two ways to fix the Constitutionally dubious situation created by agreeing to a treaty without Senate approval.

More to Come

Here are some things we might see come down the pike in 2018:

  • The CHOICE Act might pass, which would repeal unConstitutional “too big to fail” elements of the Obama-era Dodd-Frank financial reform bill.
  • Religious liberty might be upheld in the Masterpiece Cakeshop case, based on some promising indications in the Oral Arguments of the way Justice Kennedy might rule.
  • A Constitutional version of DACA might pass with significant funding for a border wall and other security measures that could restore the rule-of-law to America’s immigration system.
  • The removal of marijuana from a Schedule I controlled substance to a more reasonable classification as Schedule II or III.

When Trump said on the campaign trail that he wanted to “make America great again”, no one really knew what he meant. But if his actions in his first year are any indication, the rule of law figures prominently in his understanding of American greatness. This bodes well for more Constitutional victories in 2018.

 

 

 

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