Birther Bill Back

The Birther Bill is back. After making no progress at the federal level (H.R. 1503 was referred to a committee more than a year ago and hasn't been heard from since), the Birther Bill concept has devolved to the states. Arizona's House of Representatives just passed a version that would require presidential candidates to file proof of eligibility -- i.e., age, residency, and natural born citizenship -- to get on the ballot in that state.

Some editorialists are quick to dismiss Birther Bills as "fringe lunacy." And yes, in some sense, they are. It is pretty crazy, in the face of all the evidence, to continue to believe that President Obama is ineligible to serve because he is not a natural born citizen. And there is little doubt that the motivation behind the Birther Bills is to embarrass the President and to suggest that he is ineligible (or at least to appease those who adhere to this kooky belief).

But on the other hand, as I've observed before, if we could somehow detach the Birther Bills from the absurd controversy about President Obama particularly, and think of them in the abstract -- imagine, say, that they came up 50 years ago, or 50 years from now -- we would see that they are actually good public policy. The Constitution does require that the President be a natural born citizen at least 35 years of age. The Constitution should be enforced. There is a strong argument that the courts could not enforce the presidential eligibility requirements. Therefore, some other enforcement mechanism is necessary.

The mechanism we have now -- do nothing, and just hope that the requirements are complied with -- actually works pretty well. The tremendous publicity associated with any preisdential campaign tends to ensure that no one would even try to get around these requirements, because they would almost certainly be caught. But while it's not likely that a problem would arise that couldn't be ferreted out by the current system, the problem, if it did arise, would be very significant. So why not take some extra steps to prevent it? Especially when the necessary steps would not be particularly burdensome -- candidates would just have to file proof of eligibility with appropriate state or federal authorities.

So while the current situation is not exactly a crisis calling out for a remedy, it does pose a small risk of a big problem, and requiring presidential candidates to file proof of their eligibility seems like a good way of avoiding problems. (Actually, repealing the eligibility requirements would be even better, but so long as they are in the Constitution they should be enforced.)

Could this be done at the state level? Some people have suggested that states the lack constitutional authority to enforce the presidential eligibility requirements. But the Constitution gives the states great control over selecting their presidential electors -- it just says that each state shall appoint its electors " in such Manner as the Legislature thereof may direct." States don't even have to hold presidential elections if they don't want to. So I would think they would have great control over the manner of holding the election, if they choose to have one, and it's hard for me to see how a state could be faulted for refusing to put on their election ballots someone who isn't eligible for the office sought.

Deem and Pass

As health care nears its final showdown, everyone's talking about "deem and pass," the procedural mechanism that the House may use to pass the Senate bill. Instead of voting directly on the Senate bill, the House would vote on a rule that provides that the Senate bill is "deemed" to be passed. Can they do that? Glad you asked.

1. As far as I can tell, deem and pass is constitutional. The Constitution permits each house to make its own rules of proceeding. This would be a procedural rule for passing a bill, and it would require a majority vote, so it seems OK to me. It's been used before many times.

And besides, the Senate is constantly doing things without voting on them directly. Some Senator seeks "unanimous consent" that something be deemed accomplished. This procedure is constantly used for confirmation of nominees, and it's used for bills too. Why, just this past Wednesday, Senator Durbin asked unanimous consent that the Congressional Award Program Reauthorization Act "be read a third time and passed," and the presiding officer simply said, "without objection, it is so ordered." There was no actual vote, but the bill was deemed passed. Happens all the time. If it's good enough for the Senate, it's good enough for the House.

2. Even if it's not constitutional, I don't think there would be judicial review of the problem. There's a little number called the "enrolled bill rule," which provides that if the President and Congress claim that a bill was enacted into law, the courts will not look behind that claim to see if the bill was really enacted. So even if "deem and pass" were invalid, I don't think anyone could do anything about it.

3. Having said that, why is the House doing this? As we lawyers like to say, it's not what a prudent lawyer would do. It would just give the courts an extra opportunity to strike down the whole health care reform bill on a silly procedural ground. And by the time the Supreme Court gets the case, it'll be two or three years from now, Congress will have changed, and who knows if the bill could ever get passed again. It's not a huge risk, but it is a risk.

4. And what is anyone getting in exchange? I've never claimed to understand politics, but I don't see what the advantage is in saying, "I didn't vote for the health care mandate, I only voted for a rule that deemed the mandate to be passed." Just vote for the bill, I say.

As far as I can tell, the advantage is that this way, a single vote passes the Senate bill and also gets the amendments the House wants past the House. That way, there can't be a screw-up in which the Senate bill passes but the amendments don't. (Of course the amendments still have to pass the Senate too -- that's the "reconciliation" part.)

So maybe that's why "deem and pass" is on the table, but I still think it would be better to just vote for the bill. I don't think the public understands why this strange procedure is needed, and it looks dodgy. "Deem and pass," apart from the (not very large) constitutional risk, is giving the Republicans the chance to make the Democrats look weasely. If the Dems want the health care bill, they should be proud of it and proud to vote for it.

More on Health Care

While we're on the topic of health care federalism, we are so proud of the great state of Idaho, which has now actually passed the Idaho Meaningless Political Grandstanding Act -- pardon me, the Idaho Health Freedom Act, which, among other things, provides that "the public policy of the state of Idaho, . . . is that every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty by the federal government of the United States of America."

As I explained yesterday, this law will have no impact on the validity of a federal health care mandate. Such a mandate might be valid or invalid, but it won't matter what any state's law says.

What's particularly cute about the Idaho law is that only covers federal penalties. In fact, the statute even defines "penalty" as something imposed by the United States. So I guess Idaho thinks it's fine for the state to push people around with regard to health care choices. Which is not a wholly indefensible position from a federalism perspective, but is somewhat bizarre if one thinks the issue is really about personal freedom.

About Time

It's only been 52 years since Congress decreed that corporations are deemed to be citizens of their "principal place of business" for diversity purposes, so it was about time the Supreme Court got around to deciding what that means. The circuits have spent decades debating between the "muscle" test, which considers that the principal place is business is the place where the corporation does its main business activity, and the "nerve center" test, which locates the p.p.o.b. at the corporate headquarters. The statute has meant different things in different parts of the country all this time.

Finally, the Supreme Court has stepped in and settled the debate. The principal place of business is the nerve center -- the corporate headquarters. It was unanimous, and the Court even wrote a pretty good opinion, pointing out that the nerve center test has the virtue of being easier to apply, even though it will lead to occasional anomalies.

The only question is why it took so long!

Blasphemy!

It is easy to smile at the new Irish blasphemy law, which apparently imposes a whopping fine of 25,000 Euros (over $35,000) for "publishing or uttering matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby intentionally causing outrage among a substantial number of adherents of that religion." A group of Irish athiests is attempting to challenge the law by breaking it with a posting of famous blasphemous quotes.

But did you know that some American states also prohibit blasphemy? Oh, yes, they do. And it's not even the states you're thinking of.

A 1931 Michigan state law, still in force, provides "Any person who shall wilfully blaspheme the holy name of God, by cursing or contumeliously reproaching God, shall be guilty of a misdemeanor." (And the next section says, "Any person who has arrived at the age of discretion, who shall profanely curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost, shall be guilty of a misdemeanor.")

A Massachusetts statute (apparently going back to 1697, but still in force) provides, "Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior."

Oklahoma law (sorry, no ready link) provides that "Blasphemy consists in wantonly uttering or publishing words, casting contumelious reproach or profane ridicule upon God, Jesus Christ, the Holy Ghost, the Holy Scriptures or the Christian or any other religion," and that "Blasphemy is a misdemeanor," although it exempts words used in the course of "serious discussion."

Sure, these laws are probably unconstitutional. But they're on the books. So Ireland isn't the only one limiting free speech in the name of protecting God from verbal abuse.

Who Loves States' Rights?

Yesterday, the Senate defeated a proposed law that would have required states to allow people to carry concealed weapons if they have a valid weapons permit from some other state.

Naturally, Republicans, who believe in states' rights, were against this proposal. Because they're such strong supporters of federalism, Republicans would, of course, want to protect each state's right to have its own gun requirements. If, for example, one state requires a strict safety training course before issuing a gun permit, it shouldn't be required to recognize a permit from some other state that doesn't, they would say. And, of course, if states want to recognize other state's permits on some kind of reciprocal basis, they don't need Congress's permission to do it. So no need for federal action, according to the Republicans.

Oh, wait. Actually, all but two Republican voted for this measure. It was Democrats who defeated it.

A persistent them in the federalism debates is hypocrisy. Republicans don't really believe in state's rights. They just believe in laws they like. If they can get the federal government to pass those laws nationwide -- on securities litigation, tort reform, gun licensing, or whatever -- they're happy to do it, and states' rights be damned. But when it looks like the federal government might mandate something they don't like, states' rights are sacred.

I have to admit, though, that the Democrats aren't really all that much better on this issue. They're somewhat more consistent but they're not above touting states' rights when it suits them, either.

The bottom line is that neither party has a real commitment to principles of federalism, either way. They're just something that's convenient to bring up, sometimes, and to ignore, other times.

Credit Check

Congress passed a bill yesterday that will impose some limits on credit card companies. You'll be entitled to 45 days notice of rate increases; the rate on an existing balance can't increase without some permitted reason (including being 60 days late in paying); penalty fees have to be reasonable; and so on. Of course the credit card companies are protesting that credit will be less available.

Unfortunately, the bill doesn't address the number one problem with credit cards -- they charge interest rates that would be usurious if anyone else did it. Most states have limits on the rate of interest that a lender can charge on a loan, and many credit card interest rates exceed the rate permitted by the usury laws.

How can this be? The federal government is responsible -- which makes it appropriate for the federal government to take action to do something about it. The Supreme Court decided in 1978 that, by virtue of the National Bank Act, a bank can charge interest permitted by the state where the bank is located, even if the borrower is in another state that has a lower limit on interest rates. You can imagine what happened -- banks flocked to states with high interest limits, or, better still, no limit at all. South Dakota, which repealed its interest rate ceiling altogether, got most of the business. That's why, if you look carefully, you'll notice that your credit card company is probably located there.

So what Congress should really do is restore state control over interest rates, or fix some national limit, so we're not all helpless in the face of South Dakota's freewheeling, laissez-faire attitude. But in the meantime, it's good that Congress has recognized that it can pass consumer protection laws. Now if it could just do something about airlines and cell phone providers.

What the Spending Bill Says

The Iraq funding bill going to the President's desk is described as "requir[ing] troop withdrawals to begin by Oct. 1." But wasn't the bill also described as having "nonbinding" timelines? What does the bill actually say?

If you want to know what a statute says, there's nothing like actually reading it. H.R. 1591 is a massive bill; to find the relevant provisions you need to turn to sections 1901 and following. The answer is that the bill contains a mix of requirements and nonbinding goals.

First, there's a requirement about military units being "mission capable." Section 1901(b) requires that no money be spent to deploy a unit to Iraq "unless the chief of the military department concerned has certified in writing to the Committees on Appropriations and the Committees on Armed Services at least 15 days in advance of the deployment that the unit is fully mission capable." But section 1901(d) permits the President to waive this requirement on a unit-by-unit basis. So this turns out to be nonbinding, really.

Similarly, section 1902 prohibits the use of funds to deploy a reserve unit for more than 365 days (210 days for Marines), but again, the President may waive this limitation on a unit-by-unit basis. So, nonbinding.

Then section 1903 prohibits the use of funds to deploy a unit that was deployed within the last 365 days (210 days for Marines), but again, waivable by the President. Nonbinding.

Then we get to the nub of the matter. Section 1904(a) requires the President to report on Iraqi progress in achieving four benchmarks: (1) giving U.S. and Iraqi forces authority to pursue all extremists, and making substantial progress in delivering necessary Iraqi security forces, and other security-related matters, (2) meeting its commitment to pursue reconciliation initiatives, (3) reducing the level of sectarian violence, and (4) ensuring the rights of minority political parties.

If the President fails to determine that each of the benchmarks is being met, "the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq no later than July 1, 2007, with a goal of completing such redeployment within 180 days."

If the President determines that all of the benchmarks are being met, "the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq not later than October 1, 2007, with a goal of completing such redeployment within 180 days."

The, after the conclusion of the redeployment, forces can remain in Iraq only for limited purposes (e.g., protecting U.S. citizens and "Engaging in targeted special actions limited in duration and scope to killing or capturing members of al-Qaeda and other terrorist organizations with global reach.")

So it looks like the bill really does require withdrawal. But read it carefully. It only requires the Secretary of Defense to "commence" the redeployment on July 1 or October 1. Technically, that could mean redeploying one soldier. And the completion of the redeployment within 180 days in either case is only a "goal."

So even this bill, I would say, is essentially nonbinding. If the President is willing to sign a bill with benchmarks and a nonbinding timetable, he could sign this one.