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August 15, 2005
Over-mighty Congress a Foe of Private Property, Pot
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Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law." |
For the sake of whichever party is out of power in Washington, the answer has to be "Yes." Congress has come to view itself as an entity with plenary power to enact any law it desires, and because Justice Scalia has been soft on nondelegation, it is wholly unlimited when it comes to its ability to shift the hard choices to unaccountable agencies.
To date, the Rehnquist has produced a very modest federalism doctrine that checks congressional exercises of power on the margins, and only on the margins. The Court took a serious misstep this last term when it held in Raich (the medical marijuana case) that the state of California could be forbidden from legalizing medical marijuana, because the federal government is engaged in a comprehensive war on drugs. As Justice O'Connor's dissent stated so well, that decision betrayed the principled heart of federalism, which is to permit the states to be 50 social experiments. Like Justice O'Connor, I'm not sure as a legislator that medical marijuana would be my choice, but there is no reason for Congress to be able to trump a wholly intrastate activity involving health, safety, and welfare.
Where Congress's overreaching is most apparent is with the Religious Land Use and Institutionalized Persons Act, which has been a scourge on residential neighborhoods. Everyone was upset about the Supreme Court's decision in Kelo, which permitted local authorities to have broad power to define "public use" and, therefore, developers to overrun private homeowners. It was a dismal decision (as Justice O'Connor once again explained in dissent). But RLUIPA put Congress in the position of devaluing and ruining residential homeowner's neighborhoods by giving religious entities the power (both political and in court) to get around local zoning laws to the detriment of their residential neighbors. Religious entities have exercised this power all over the country, leaving homeowners in the same position as Kelo left them — defenseless. RLUIPA invades the last bastion of local control, land use, which is inherently local, and is the very best evidence that Congress sees no limits on its power. And, as the Framers understood so well in King George III's shadow, unlimited power is tyrannical power.
Posted at August 15, 2005 01:44 PM