ALG Blasts Liu’s Views on Commerce Clause and “Welfare Rights”

April 16th, 2010, Fairfax, VA—Americans for Limited Government President Bill Wilson today condemned Barack Obama’s nominee for Judge to the Ninth Circuit Court of Appeals, Goodwin Liu, for his views on the Commerce Clause of the Constitution, saying “Liu leaves the door open for regulation of just about every aspect of life.”

In questioning from Senator Dianne Feinstein, who said the Supreme Court had taken a “constraining view” of the Commerce Clause and asked what Liu thought was the extent and scope of Congress’ power to regulate commerce.

Liu outlined what he viewed as the current doctrine adopted by the Supreme Court, saying, “the Court articulated the doctrine that the activity being regulated has to be economic in nature but it stopped short of saying that that is an absolute requirement” before the Court could determine if the activity or “class of activities” had a “substantial effect” on interstate commerce.

Liu promised to uphold that doctrine, saying, “that is the doctrine as I understand it, and I would faithfully apply that doctrine to any case that came before me as a judge.”

“In other words,” said Wilson, “Goodwin Liu is saying that an activity need not be economic in order for it to have a ‘substantial effect’ on interstate commerce, leaving the door open for just about every human activity to be regulated by Congress, even if it in reality has no bearing on interstate commerce.”

ALG Counsel Nathan Mehrens described Liu’s view of the Commerce Clause is “expansive,” adding that Liu had “a total lack of a philosophy that applies either the original intent or meaning of the Constitution.”

Mehrens said that the Supreme Court’s expansive view of Commerce Clause over the past century “has given rise to regulation in areas that have no relation at all to commerce, in everything from education to environmental policy.”

Wilson also criticized Liu for his previous controversial writings, which he said “were confirmed by today’s testimony. Liu acknowledged that if a ‘welfare right’ is created by Congress, ‘eligibility requirements’ of that ‘right’ could be heard by the courts.”

“In short, if something is subsidized by Congress, an individual could sue that they have a right to that ‘entitlement,’” said Wilson.

In a 2008 Stanford Law Review article, “Rethinking Constitutional Welfare Rights,” Liu discussed at length the concept of judicially-imposed welfare rights. In this context welfare rights mean a societal consensus that persons possess a right to certain goods and services, a consensus of “how a society understands its obligations of mutual provision.”

According to the article, Liu wrote that, “judicial recognition of welfare rights is best conceived as an act of interpreting the shared understandings of particular welfare goods as they are manifested in our institutions, laws, and evolving social practices.”

Liu explained what this would look like in context of his actual decision-making as a judge, “Some day yet, the Court may be presented with an opportunity to recognize a fundamental right to education or housing or medical care. But the recognition, if it comes, will not come as a moral or philosophical epiphany but as an interpretation and consolidation of the values we have gradually internalized as a society.”

Wilson said that “by saying that ‘eligibility requirements’ of an expansive ‘welfare right’ such as the recently enacted health care legislation can indeed be heard by the courts, Liu is opening the door for the national health care takeover to become a single-payer system by judicial fiat.”

Senator Jeff Sessions criticized Liu’s consistency, and questioned whether he had contradicted himself in his testimony, comparing his statements to his previous promotion of his book in promoting his book, Keeping Faith with the Constitution for the American Constitution Society.

Then, Liu suggested in a podcast that “What we mean by fidelity is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation,” as reported by National Review Online.

However, during testimony, Liu said his writings and books “would have no bearing on my role as a judge” and that “in any generation, the interpretation of the Constitution has to be guided by not what makes people happy, rather it has to be guided by the faithful application of the text, the underlying principles and the precedents that have accrued.”

Sessions said, “I’m going to try to fairly evaluate that answer, but I don’t think your writings reflect that… Is what you’re saying today consistent with what you said then?”

Wilson said “They are not at all consistent. What is the point of writings that urge judges to act in a certain way if now he claims those writings would have no bearing on his conduct as a judge?”

Wilson concluded, “Goodwin Liu is being dishonest with the Judiciary Committee, and he should be rejected for once again attempting to conceal his most controversial views from the scrutiny of the Senate by claiming that they now have no relation to how he as a judge will rule when the writings are about how a judge ought to rule.”


Goodwin Liu, Americans for Limited Government Nominee Alert, March 2010.

“Wonderland: The World According to Goodwin Liu,” Bill Wilson, March 24th, 2010.

“Why Goodwin Liu is Important,” ALG News Editorial, April 12th, 2010.

“Liu Guilty by Omission,” Robert Romano, April 8th, 2010.