In an important recent speech, Senator Max Baucus claims that there is a broad consensus among legal scholars (that the individual mandate is constitutional. He claims that “those who study constitutional law as a line of work have drawn th[e] same conclusion” as congressional Democrats. Similar assertions have been made in parts of the liberal blogosphere. For example, Think Progress denounces Republican Senators Ensign and DeMint for citing only “right-wing think tanks” in support of their claims that the mandate is unconstitutional, and chides them for supposedly being unable to cite “a single judge, justice or reputable constitutional scholar who believes that health reform is unconstitutional.”
There certainly are prominent constitutional law scholars who agree with Baucus. But the claim that there is an overwhelming expert consensus on the subject is simply false. As co-blogger Jonathan Adler points out, Baucus mistakenly cited him as a scholar who agrees with the Democrats’ conclusions even though he actually believes that the mandate is not constitutional. The “right-wing think tank” study cited by Ensign and DeMint was actually coauthored by co-blogger Randy Barnett, one of the nation’s most prominent constitutional law scholars, and an expert on the original meaning of the Commerce Clause (the provision usually cited as authorizing Congress to impose the mandate). Richard Epstein of NYU and the University of Chicago is another prominent legal scholar (one of the ten most cited in the country) who believes that the mandate is unconstitutional.
I certainly wouldn’t put myself on the same plane as Jonathan, Randy, or Richard Epstein. But I’m a professional constitutional law academic, federalism and the Commerce Clause are among my areas of expertise, and I think the mandate is unconstitutional too.
It probably is true that more constitutional law scholars believe that the mandate is constitutional than believe the opposite. But this simply reflects the fact that most constitutional law professors, like most other academics, are overwhelmingly left of center. There are many controversial constitutional issues that split experts along ideological lines. In such cases, it is misleading to claim that there is an expert consensus merely because there are more experts on one side of a broader ideological divide than the other. Moreover, it’s worth noting that most of those left of center con law scholars who believe that the mandate is constitutional hold that view in large part because they believe that there are essentially no limits whatsoever to Congress’ ability to use its power to regulate “Commerce . . . among the several states” to control anything that has even a remote potential affect on commercial activity. If you believe that Congressional power is basically unlimited (except by constitutional individual rights), then the mandate becomes an easy case. That view, however, is seriously at odds with the text and original meaning of the Commerce Clause, for reasons that I discussed in my earlier post on the subject of the constitutionality of the individual mandate, and in this article.
UPDATE: I have edited the title of this post to make it clearer.
richard says:
You are misquoting Baucus. Baucus did not claim that Adler believed the mandate is constitutional. He precisely quoted Adler and stated that Adler believes the mandate is constitutional under existing precedent. Adler believes that Baucus should have added Adler’s view that existing precedent is wrong and that the failure to do so may have created a misleading impression that Adler believes the mandate is constitutional but he did not accuse Baucus of misquoting him or of stating anything that was untrue about his views.
December 23, 2009, 6:25 pmGordo says:
There seems to be quite a bit of grumbling among Volokh Conspiratists (I count five of them now – Somin, Adler, Kopel and Lindgren, along with, of course, Barnett) about the health bill passed by the Senate recently. Lindgren is the only one who is grousing on policy grounds, accusing the Obama Administration of lying, while the other four raise constitutional issues.
As I read all of the constitutional challenges raised, they all seem to point to an outcome that will require the Supreme Court to decisively reject its currently valid decisions, and seem generally to return to a state of the Supreme Court that can be described as “pre-1937.”
As for the “individual mandate” issue, how is this “individual mandate” different from the “individual mandate” to participate in the Social Security program, enacted originally in the 1930′s, and the Medicare program, enacted originally in the 1960′s? These programs mandate that employers and their employees contribute money to them, so as to provide mandated benefits to those employees when they have reached retirement age.
If the health bill’s “individual mandate” is unconstitutional, then isn’t the Social Security program? Isn’t the Medicare program?
December 23, 2009, 6:26 pmBK says:
Gordo brings up a good point in that this health care program isn’t all that different from Social Security or Medicare. Then again, as someone who probably won’t ever collect a Social Security check, I wouldn’t mind if that program was kicked to the curb.
My beef is that this is not really a “regulation” of commerce between the several states. It places an affirmative burden on people to buy health insurance, or else face a penalty. Placing a requirement on individuals, to me, is beyond the “regulatory” scope of federal Commerce Clause power.
December 23, 2009, 6:38 pmChris Travers says:
Gordo: The following three questions are surprisingly separable:
1) Will the courts uphold the law against a Constitutional challenge?
2) Is the law Constitutional in the abstract (separable unless we conclude that “unconstitutional” is defined as failing a court challenge)?
3) If the law is Unconstitutional, does that necessarily mean the court should strike it down?
Let me give you a hypothetical that better describes this difference:
1) Would a House appropriations bill that allocates 34 million dollars as foreign aid to Iran for purposes of helping that country develop nuclear weapons be Unconstitutional in terms of violating the general welfare clause among others?
2) Assuming we answer yes, should the courts enforce such a provision against Congress?
3) Even without an answer to number 2, would the courts enforce such a provision against Congress?
December 23, 2009, 6:39 pmRyan says:
Not necessarily. Government’s power to tax is different than its power to regulate interstate commerce.
The SS and Medicare programs are taxes on your labor that are then used to lavish benefits on others. In contrast, the mandate forces you to purchase a consumer product and this constitutes “commerce” only if one (somehow) accepts that the refusal to participate in intrastate commerce somehow constitutes interstate commerce.
The difference is significant in political terms because politicians are, to a degree, held accountable for higher taxes. But when passing a mandate that will lead to higher prices in a consumer market, though economically similar to higher taxes, it’s much easier to blame the party offering the service (the insurers), thereby diverting constituent anger for the appropriation of their income to the non-blameworthy party.
This is very significant in a democratic system.
December 23, 2009, 6:44 pmLeo Marvin says:
Ilya,
Don’t you think there’s at least something approximating a consensus among law professors that the Supreme Court would probably find the mandate constitutional, irrespective of how some of the professors think the Court ought to decide? If so, is it the job of a majority liberal, pro-expansive Commerce Clause Congress to second guess the likely permissive ruling of a more conservative and presumably less expansively inclined Court?
December 23, 2009, 6:50 pmTwirip says:
Yes, and yes.
December 23, 2009, 7:02 pmbpbatista says:
Yet another bogus “consensus” being peddled by Democrats as a means to erode our liberties and expand their power.
December 23, 2009, 7:04 pmTwirip says:
It is the duty of Congress (liberal or conservative) to write laws which comply with the Constitution, regardless of what the SCOTUS says or does. They all swear that oath.
December 23, 2009, 7:05 pmdave hoffman says:
Ilya,
December 23, 2009, 7:05 pmI think you are using “constitutional” in a bit of a heterodox (or at least) academic way. The public & politicians understand constitutional to in the Orin Kerr sense: likely to be upheld in front of today’s court based on a reasonable reading of the available precedents. Randy (and others) are using that word in a decidedly different “what should the constitution look like” sense. I think there’s a very, very strong consensus in the legal academy and among practicing lawyers that the mandate is constitutional in the Kerrian sense, which is all that Baucus said (as Richard writes above).
The Volokh Conspiracy » Blog Archive » The Myth of a Consensus on the Constitutionality of Anything says:
[...] Archives « The Myth of an Expert Consensus on the Constitutionality of an Individual Mandate [...]
December 23, 2009, 7:15 pmjrose says:
Barnett argues the mandate isn’t Constitutional under current precedent. So did Rivkin and Casey.
I didn’t find their arguments persuasive, and apparently Ilya didn’t either. Could we agree there is a broad consensus, the above exceptions notwithstanding, that the mandate is constitutional under current precedent?
December 23, 2009, 7:20 pmAnon21 says:
Ryan:
Despite the way news stories typically characterize the consequences of failing to purchase health insurance (as a “fine”), I am fairly sure it is styled as a “tax” in the actual language of both the House and Senate bills. As such, this particular exercise of Congressional power falls under Congress’ expansive taxing and spending powers, and not under the Commerce Clause as is commonly supposed. Jack Balkin presented a defense of the mandate primarily along these lines, which Randy Barnett linked to a couple of weeks ago.
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[...] Eve Open Thread STOP THE ACLU Cuz Animals Are People Too, ya Know THE VOLOKH CONSPIRACY The myth of an expert consensus on the constitutionality of an individual mandate THE WESTERN EXPERIENCE Alabama Congressman, Parker Griffith, switches to GOP [...]
December 23, 2009, 7:26 pmLeo Marvin says:
That begs the question. What complies with the Constitution? Thus what I asked Ilya, as Dave Hoffman elaborates above.
December 23, 2009, 7:43 pmJeff says:
This is just like the AGW “consensus”.
If you are an academic who disagrees with the consensus, then you’re not reputable. So they simply manufacture a consensus with ad hominem attacks against anyone who disagrees (leaving their opinions out of “reputable debate”)
December 23, 2009, 8:05 pmwooga says:
What? “Tax and Spend” /= Constitutional. Congress can only “tax and spend” in furtherance of some other enumerated power. “Tax and spend” is not a source of Congressional authority, it is simply a method of exercising the authority defined elsewhere. Otherwise, there are no limits on Congressional power at all.
December 23, 2009, 8:27 pmAnon21 says:
Both Jack Balkin in the linked debate and the Supreme Court in Helvering v. Davis disagree with you, and construe the power to tax and spend as an independent power of Congress. Do you have contrary binding authority to cite?
December 23, 2009, 8:38 pmSara says:
No, wooga. It is an enumerated power:
December 23, 2009, 8:38 pmDoh-San says:
One of the Great Lies Of The Left is “Everyone knows/agrees that….” (fill in the blank). Their “consensus” is nothing but vapor.
December 23, 2009, 8:40 pmAnon21 says:
Both Jack Balkin, in the linked debate, and the Supreme Court in (among other cases) Helvering v. Davis, 301 U.S. 619 (1937) disagree with you, and construe the power to tax and spend as a separate and independent grant of power to Congress rather than an ancillary means of effecting other powers. Do you have contrary authority on that point?
December 23, 2009, 8:49 pmSara says:
You have very low opinion of yourself. It appears you are accusing yourself of being a political hack and all other constitutional experts, too.
What? That is a definition of consensus.
December 23, 2009, 9:03 pmTRE says:
Sara which dictionary equates consensus with majority view instead of unanimity?
December 23, 2009, 10:05 pmThe Myth of an Expert Consensus on the Constitutionality of an Individual Mandate | Liberal Whoppers says:
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December 23, 2009, 10:21 pmML says:
You said you think its constitutional, but didn’t you also say that the Supreme Court wouldn’t invalidate a major portion of the healthcare bill? Is this an academic exercise or a news story?
December 23, 2009, 10:40 pmSteve says:
It probably is true that more constitutional law scholars believe that the mandate is constitutional than believe the opposite. But this simply reflects the fact that most constitutional law professors, like most other academics, are overwhelmingly left of center.
This is a remarkably circular argument.
December 23, 2009, 10:55 pmDangerMouse says:
Sarah,
If congress’s power is so broad, why the need for the 16th amendment?
December 23, 2009, 10:58 pmSara says:
TRE
Dictionary.com lists this as a meaning:
And Miriam-Webster lists this as a meaning:
December 23, 2009, 11:04 pmSara says:
DM: As I recall, there were capitation issues.
December 23, 2009, 11:10 pmMark Field says:
The Supreme Court originally ruled that the income tax was not a direct tax, then changed its mind.
This had nothing to do with the extent of the power, just with how it was implemented.
December 23, 2009, 11:42 pmDavid McCourt says:
If sitting at home doing nothing but breathing in and out constitutes interstate commerce such that Congress has the power under the Commerce Clause to order one to buy a product, then the Commerce Clause is about as limited a grant of power as that enjoyed by the post-war Labour government of Clement Atlee, when it undertook to draft civilians into the peacetime labor force, forcibly “allocating” them to jobs of the government’s choosing.
December 24, 2009, 12:21 amThe Volokh Conspiracy » Blog Archive » How Much Consensus is there Among Constitutional Law Academics? says:
[...] Orin’s follow-up to my recent post on the health care mandate suggests that there are virtually no real areas of consensus among constitutional law scholars, and that “you can pretty much always find someone to say a controversial law is unconstitutional.” It is probably true that you can always find at least one person to say that. But it’s not true that there are no areas of overwhelming consensus, including consensus on politically controversial issues across ideological lines. Expert consensus does not require absolute unanimity, merely an overwhelming preponderance of professional opinion that cuts across ideological lines. For example, virtually no serious legal scholars who endorse claims that the income tax is unconstitutional, despite its popularity among some right-wing political activists and others (e.g. Will Smith). Likewise, most liberal constitutional law legal scholars disagree with claims that the Iraq War was unconstitutional, even though most of them believe the war was immoral or unwise. A less important but still interesting example: a wide range of con law scholars across the political spectrum support the view that Congress has the power to force federal courts to let their oral arguments be televised, despite the vehement opposition of the Supreme Court justices.There are other areas where the consensus is less overwhelming, but still cuts broadly across ideological lines. For example, even many conservative legal scholars such as Jack Goldsmith and my frequent coauthor John McGinnis, rejected the Bush Administration’s claims to virtually unlimited wartime executive power, as did nearly all liberal and libertarian ones. [...]
December 24, 2009, 12:31 amIlya Somin says:
You are misquoting Baucus. Baucus did not claim that Adler believed the mandate is constitutional. He precisely quoted Adler and stated that Adler believes the mandate is constitutional under existing precedent.
No. He quoted Adler among a list of several academics who he claims all have reached “the same conclusion” as he had about the constitutionality of the legislation.
December 24, 2009, 12:36 amIlya Somin says:
I think you are using “constitutional” in a bit of a heterodox (or at least) academic way. The public & politicians understand constitutional to in the Orin Kerr sense: likely to be upheld in front of today’s court based on a reasonable reading of the available precedents.
I’m using “constitutional” in the sense, of “in accordance with the Constitution.” Which is precisely the way most laypeople (and indeed most lawyers) use the term. Whether the Supreme Court – or any court – would correctly interpret the Constitution is a separate issue.
December 24, 2009, 12:38 amIlya Somin says:
Don’t you think there’s at least something approximating a consensus among law professors that the Supreme Court would probably find the mandate constitutional, irrespective of how some of the professors think the Court ought to decide? If so, is it the job of a majority liberal, pro-expansive Commerce Clause Congress to second guess the likely permissive ruling of a more conservative and presumably less expansively inclined Court?
It is the job of Congress and the President not to violate the Constitution regardless of whether the Court is likely to overrule the violation or not. For example, the Court’s decision in Korematsu did not justify the constitutionality of the president’s actions in interning the Japanese-Americans, even though their decision was predictable based on various precedents and the political situation at the time.
December 24, 2009, 12:41 amIlya Somin says:
It appears you are accusing yourself of being a political hack and all other constitutional experts, too.
No. I’m merely saying that when experts divide along predictable ideological lines, you can’t claim that your side is supported by a broad expert consensus based on nonideological professional judgment. Instead, you have to actually consider the merits of the arguments the different experts are making. You don’t have to be a “hack” for your judgment on difficult, controversial issues to be influenced by broader political commitments. There are very few if any experts who are completely uninfluenced by such factors. In any event, the real value of an expert’s arguments (or anyone’s) consists not in his motives for making them but in the quality of their logic and evidence.
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December 24, 2009, 12:59 amJohn L says:
“You don’t have to be a ‘hack’ for your judgment on difficult, controversial issues to be influenced by broader political commitments. There are very few if any experts who are completely uninfluenced by such factors.”
This statement is as indisputably true when Professor Somin makes it as when Justice Sotomayor, President Obama, and Justice Alito have made it. The insistence it is not true has been an important intellectual dishonesty of much of the right for some time. It was a low point of the Chief Justice’s performance during his confirmation hearing, in which he managed to be completely wrong about both law and baseball in one short metaphor, and of Justice Sotomayor’s hearing, when she denied the obvious to placate enough Republicans to sail through.
December 24, 2009, 3:29 amsputnik says:
It probably is true that more constitutional law scholars believe that the mandate is constitutional than believe the opposite. But this simply reflects the fact that most constitutional law professors, like most other academics, are overwhelmingly left of center. There are many controversial constitutional issues that split experts along ideological lines. In such cases, it is misleading to claim that there is an expert consensus merely because there are more experts on one side of a broader ideological divide than the other. Moreover, it’s worth noting that most of those left of center con law scholars who believe that the mandate is constitutional hold that view in large part because they believe that there are essentially no limits whatsoever to Congress’ ability to use its power to regulate “Commerce . . . among the several states” to control anything that has even a remote potential affect on commercial activity. If you believe that Congressional power is basically unlimited (except by constitutional individual rights), then the mandate becomes an easy case. That view, however, is seriously at odds with the text and original meaning of the Commerce Clause, for reasons that I discussed in my earlier post on the subject of the constitutionality of the individual mandate, and in this article.
December 24, 2009, 7:09 amOrson says:
FUCKING SCARY….
It only adds to the commonplace right-wing stereotype of academe as an ‘irvory tower’ fantasy-land, filled with dangerous utopians.
I think the right is only correct to start talking about tossing Leftists into a Gulag – they are too dangerous for real participation in a civilized society.
December 24, 2009, 7:22 amPeople who can read English says:
I don’t know about the “experts”, but the consensus among us is that it is quite obviously unconstitutional.
December 24, 2009, 9:11 amThomasD says:
When do we start parsing the limits of Congressional power as it relates to the ‘domestic tranquility’ power mentioned in the preamble?
Think it’s a joke?
December 24, 2009, 9:44 amRay G says:
I have one question. If this falls under the Commerce Clause, how can it be constitutional, when each state regulates their insurance policies and you can not carry them over state lines.
December 24, 2009, 10:05 amW. Keller says:
The nice thing about the Constitution is that our founders wrote it in plain English. It contains no “right” for the federal government to mandate health insurance any more than it states that health insurance is an inalienable right. I realize that all the legal eagles love to hash over what they consider the nuances of the wording, how it applies to the founders times, how it applies to the current times. It’s all crap.
I would ask you all to ponder this: how far can congress push the American people before they show up with guns rather than sign? We are at the point IMHO. Reckless spending, seizure of the automotive industry, banking industry, insurance industry and potentially the healthcare industry has infuriated Americans. The refusal by Senators and Representatives to meet with constituents over the summer helped fuel the fire. The secrecy of negotiations, the 2,500 page bills, the “tut, tut – you’re too stupid to understand” attitude has taken us to be very brink.
The founders understood very well the possible outcomes of unbridled federal power – hence the Second Amendment. Americans are beginning to remember as well. My advice to our good Senators and Congressmen – step back from the edge gentlemen and gentleladies, step back from the edge.
December 24, 2009, 10:06 amsputnik says:
exactly !!!
December 24, 2009, 10:07 amwe don’t like it- must be unconstitutional
MarkJ says:
Idle question: If leftists believe that the government can legally force citizens to buy a service or product against their will, then how could they object to involuntary “national service” or military conscription (i.e., Selective Service) if or, more likely, when it is reinstated?
Ruminate and discuss.
December 24, 2009, 10:13 amRobert says:
You’re not even allowed to buy insurance outside of your state. Doesn’t that in itself remove any applicability under the commerce clause?
@People who can read English: Damn straight.
December 24, 2009, 10:20 amBill the Cat says:
Not being a legal scholar: Is taxation for public schools constitutional? Is taxation for national highways constitutional?
December 24, 2009, 10:28 amMike M says:
regarding “consensus” does a majority view constitute a consensus? That’s not how I use the word. In my field of work (mathematics) a consensus view of experts in any field means a broad agreement over a wide range of the particular details. For example, the consensus view in computer science is that P =NP is false, although no one has proved it yet. However the related problem P=NC enjoys much less support, although probably also the majority view is that it too is false. “consensus” is used to distinguish these cases, as opposed to a narrow majority. In fact, I would only say there is a consensus if there was also general agreement among experts on why this claim was true or false, so the support for the claim has some robustness: even if one of the particular elements of the argument were to fail, most people would think the conclusion was still well supported.
I wasn;t sure if my useage was common, so of course I googeled “narrow majority but no consensus” with 2,900,000 hits with this one from political polling:
“A narrow majority of Americans support President Obama’s revamped strategy on Afghanistan, according to a USA TODAY/Gallup Poll taken Wednesday,….Those surveyed are more likely to favor Obama’s plan in general — by 51%-40% — than they are to endorse its individual components. There is little consensus in favor of his specific decisions to deploy 30,000 more U.S. troops or to set a timetable to begin their withdrawal in 2011.”
http://www.usatoday.com/news/washington/2009-12-03-poll-afghan-strategy_N.htm
a consensus is much more robust than a bare majority
December 24, 2009, 10:34 amTacoBill says:
I’m well into the planning for a pleasant visit to Lompoc after my refusal to pay the mandate. I know some unserious folks chat up armed rebellion, but the only practical way to stop this insanity is for MILLIONS of citizens to refuse to ante up, demand a jury trial, and go to jail.
Please read Civil Disobedience by Thoreau. “All men recognize the right of revolution; that is, the right to refuse allegiance to, and to resist, the government, when its tyranny or its inefficiency are great and unendurable”
There are not enough courtrooms, judges, jails cells, federal prisons or government lawyers to deal with a legal Cloward- Piven tsunami.
December 24, 2009, 10:35 amMark Field says:
Current rules on insurance are in place because of a federal statute (the McCarran-Ferguson Act) and are not Constitutionally required.
December 24, 2009, 10:41 ambyomtov says:
Some people can’t even reach a consensus in their own minds.
From Washington Monthly:
I suppose we’ll be hearing a lot of principled rhetoric from these people explaining how they take constitutional principle seriously, etc.
December 24, 2009, 11:00 amdave hoffman says:
Do you have any evidence that this is how “most laypeople (and indeed most lawyers)” “use” the term constitutional? Because I think that you are quite incorrect: lay and lawyers both think that constitutional means “under today’s precedents, and knowing the judges we have, what will likely happen to the bill if challenged.” That latter definition is part of the basic grammar of the confirmation process (umpires), in the kinds of questions that reporters ask me (i.e., professors) all the time, in the question that clients asks lawyers. Indeed, if a client were to ask a lawyer “is this action lawful,” and the lawyer answered using your method, it would be a pretty terrible exchange for the client.
Your view reduces to “whatever precedent says, and whatever we can reasonably predict judges will do, constitutional means what the court should do if it follows my particular constitutional interpretive methodology. If it doesn’t, it is incorrect.” I just don’t think that there are many people who would subscribe to the idea that your meaning of the constitution, or your meaning of constitutional, is widely shared.
I guess what’s oddest to me about your position here is the idea the hostility toward a system of talking about law as old as the republic. What lawyers do is look at the available evidence (what courts have done) and the political space (what’s they might do) and then predict what will likely happen. You imply that this is grubbing, pedestrian work, and that real thinkers ignore what’s been done and what’s likely to happen because it’s irrelevant to the pure constitutional questions at issue. But this is philosophy, not lawyering. There’s a reason that lawyers and law professors extract monopoly rents and philosophers and historians do not, and it’s not because we are better abstract thinkers about matters of great moment.
December 24, 2009, 11:03 amConcerned Citizen says:
Whether or not a group of constitutional law professors believes the pending healthcare bill is “constitutional” doesn’t really matter. The general public will be outraged when they find out what they are in for. Remember, over 60% of the country are satisfied with their current health insurance and even the lawyers have a hard time understanding all the implications in this 2,000 page monstrosity.
As Lao Tzu said, “The more laws are enacted and taxes assessed, the greater the number of lawbreakers and tax evaders.”
December 24, 2009, 11:05 amsputnik says:
Is there a “right” to be uninsured. Where is that in the constitution?
If it is not a crime, but simply a tax deduction or penalty, then it is not really a mandate. Medicare is a mandate, an I.R.A. is a tax incentive.
Advice:
If you are feeling angry or wealthy, get some religion or prove your wealth and take the exemption.
If you are feeling honest, lucky, and healthy, just pay the penalty and save the few thousand.
This gives the taxpayers the money, without any services or risk.
If you are feeling smart, buy a health policy with a very large deductible. This puts the affordable risk on the consumer, and the unaffordable risk on the insurer. You control the vast majority of choices and costs.
December 24, 2009, 11:35 ammemomachine says:
Hmmmm.
For years now I’ve held to the belief that America would be dramatically improved by shooting all the lawyers and hanging all of the judges.
You’re not changing my mind with this stuff.
December 24, 2009, 11:41 ammemomachine says:
Hmmmm.
Right where it says that all rights not assigned to the government belongs to the people.
December 24, 2009, 11:42 ambyomtov says:
It probably is true that more constitutional law scholars believe that the mandate is constitutional than believe the opposite. But this simply reflects the fact that most constitutional law professors, like most other academics, are overwhelmingly left of center.
So are you arguing that the left-of-center scholars are influenced by their ideology, while the right-of-center ones are intellectually pure, or that scholars’ opinions are based on their ideology more broadly?
December 24, 2009, 11:50 amOscar says:
Comparing the individual mandate to social security and MediCare is a flawed analogy. For the record, I think SS and MediCare ought to be abolished, but that is another issue entirely.
To get back to the topic at hand: SS and MediCare taxes are imposed on individuals ALREADY engaged in economic activity, i.e., employed or deriving some income. [Taxation of unemployment benefits can be argued to be constitutional inasmuch as unemployment checks are backed with income earned by the individual when s/he was employed, i.e., engaged in economic activity.] There is no mandate that individuals secure employment or raise income for the purposes of funding SS and MediCare. An individual who secures no income whatsoever cannot be compelled to contribute to these two programs, nor can that individual be committed to involuntary servitude as payment-in-kind for SS or MediCare tax liabilities.
In essence, no individual can be conscripted to engage in an economic activity into which s/he does not wish to enter. At the very least, the shadow of the 13th Amendment hangs over this individual mandate: if all individuals can be conscripted, in a time of peace, to engage in work to fund a government program, then the 13A is a dead letter. All Americans would be liable, from birth, for involuntary service to fund whatever program the federal government devises. That is slavery under any definition of the term.
December 24, 2009, 11:54 amsputnik says:
I am in favor of mandating the purchase of health insurance. Why? Because health care is not purely a consumer good and the market for health care is not a rational market. In a rational market, there is a price where the buyer will walk away. If you are a cash-pay patient dying of a heart attack, at what price do you walk away? Furthermore, our perception as a society is that it is a moral imperative to heal people no matter the cost. That means that even if a cash-pay patient shows up at the ER in the midst of a heart attack and can’t afford the care, he or she won’t be turned away, and someone (taxpayers, insured patients, or shareholders) will have to foot the bill.
There is no free lunch. If turning away a dying man at the emergency room door (the free market solution to no mandates) is unacceptable to us as Americans, then we have already cast our lot as to whether or not health care is a right. Now we just have to decide how to pay for it. For the poor, the taxpayers are going to foot the bill in any circumstance. But for those that could afford private insurance and choose to purchase other things instead, yet cannot afford to pay cash for their open heart surgery, I prefer not to subsidize their lack of personal responsibility.
December 24, 2009, 11:58 amBruce Hayden says:
I find it humorous that you would respond to the assertion that one of the reasons that there might be some appearance of a consensus here among law school academics is because a large majority of them are liberal, by citing a liberal academic.
Ever note though that Balkin may be just fine with this sort of expansion of federal powers, he was strongly on the other side when it came to fighting terrorism?
December 24, 2009, 12:03 pmDavid Nieporent says:
While Ilya’s particular interpretation may or may not be widely shared, I think his view of the constitution is. That is, I think there are a lot more people who think there’s an actual constitution, with actual meaning, independent of the courts’ interpretation thereof, than there are people who think the constitution has no determinate meaning and means whatever a judge says.
Right; it’s because a lot more legislators are lawyers than philosophers or historians.
December 24, 2009, 12:05 pmSara says:
Mike: re consensus.
The fact remains that ‘majority’ is one definition of consensus. That’s probably why you often see consensus preceded by augmenting adjectives (e.g., strong, robust, healthy, etc.) and even, occasionally, diminishing adjectives: (e.g., weak). Or you see attempts to specialize it, as the revised post has done. Or qualify it, as you have done.
December 24, 2009, 12:12 pmDavid Nieporent says:
The point where you can’t afford it, although I suppose you’re more likely to be rolled or carried away than to walk away. The fact that demand for something is highly illiquid does not make it “not a consumer good” or “not a rational market.”
Presumably you mean “no matter the cost” to someone else. There are very few people who are willing to pay whatever it costs out of their own pocket to heal people. But if they can get the rich, or “corporations,” or some other left-wing boogeyman to pay, great!
I vote for “whoever wants the guy treated.”
Charity. Has the virtue of aligning the people who want to pay with the people paying.
So don’t. Nobody asked you to.
December 24, 2009, 12:12 pmWhitehall says:
While obscure legal arguments can be very entertaining, the Constitution is a contract the people made and agreed to on the relationship between citizens and their government. Various people holding positions of trust within the federal government now propose a change that some other people in the government (5 Supremes) will likely vouchsafe.
So one party to the contract (the federal government) intends on changing the terms. The other party, the citizens, will have a chance to remove most of those responsible first through elections. I will argue with my fellow citizens that those who voted for this expansion of the federal government violated the terms of the Constitution and must be removed from their position of trust.
Our ultimate legal recourse on the constitutional authority of this act will be with the citizens at the ballot box. Will we let continue in power those individuals who advocate by word or deed the unlimited power of the federal government? let us pray not!
December 24, 2009, 12:15 pmWJ says:
If it is constitutional for the federal government to force me to buy health insurance, why can’t it force me to buy a pony?
Seriously, I would like to know the logical reasoning that would say health insurance yes and pony no. If it is just a matter of calling it a tax, then couldn’t it be called the “pony tax”?
December 24, 2009, 12:23 pmSome dude says:
Correlation and causation are two different things.
December 24, 2009, 12:27 pmCCM says:
I think we need a Czar of Domestic Tranquility, followed by a Department of Homeland Tranquility.
December 24, 2009, 12:38 pmMark Field says:
Do you believe the government can compel you to serve in the militia and to bring your own weapons as part of that obligation? Because the Founders sure did.
The fact that something is “highly illiquid” means that the market is not perfect, and therefore it makes no sense to apply the theoretical rules of perfect markets to that commodity.
December 24, 2009, 12:44 pm0bamacare/hellcare: not final yet « Spin, strangeness, and charm says:
[...] DC@C2 points out that several state attorney generals are examining whether the health bill is constitutional. At the Volokh Conspiracy, Ilya Somin weighs in. [...]
December 24, 2009, 12:48 pmCCM says:
If Congress can force/coerce me to purchase insurance, just for being alive and a citizen. Can it also at some point coerce me to join a union? Or give money to a political party or some other organization? Purchase a certain automobile, appliance, home, or lightbulb as well? If I don’t, the IRS could imprison me if I do not pay the fines?
Perhaps this sounds outlandish, but to me – it seems extremely logical. The government’s power over me in this bill would/could be the same for any other purpose beyond healthcare – regardless of the intention of this specific mandate.
December 24, 2009, 12:49 pmDavid Nieporent says:
I disagree, but in any case, when I wrote “illiquid,” I meant inelastic; I was busy on the phone at the time, and not paying quite enough attention to either.
December 24, 2009, 1:06 pmDavid Nieporent says:
There was no 13th amendment when they were around, so I don’t see how that’s responsive to his comment.
December 24, 2009, 1:08 pmTo Hayek With You says:
As interesting as it is to watch a bunch of lawyers justify one man robbing another for his own benefit it is ultimately irrelevant. We are at the point where large swaths of the electorate consider the US government to be operating outside the bounds of its foundational documents. We are not talking about some obscure provision of the health care bill. We are talking about the consent of the governed.
George Washington did not even think the Constitution allowed the government to create a pension for its soldiers yet somehow FDR got away with robbing one generation to pay the pension of another. It was, and is madness, and our first president saw it all coming. (On second thought, we know how FDR got away with it… he threatened to pack the court with his flunkies and since then the legal profession has been largely tamed from confronting the expansion of government power. Indeed it seeks that expansion as an enhancement of its own power. Ethics amongst lawyers, like water, always seek the lowest ground.)
Had the founders envisioned an era where a man has no say in what he shall and shall not buy or who he shall or shall not give his money to they would have had much less appetite for the whole revolutionary enterprise. Indeed we would still be an English colony… and just as well since one tyrant is as good as another. So, as usual, the legal “scholars” miss the point entirely — and I believe intentionally.
My advice to the legal profession is to keep squabbling over the placement of the deck chairs. It will make it all the easier for the rest of us to reach the lifeboats. God forbid the pols and their familiars in the judiciary should figure out how angry the American people are while there is still time to stop what is coming.
December 24, 2009, 1:21 pmChristopher Cooke says:
Bruce, I see no inconsistency. As a matter of constitutional law, Balkin’s views on what Congress can do depends on his views of the Commerce Clause, and its enumerated powers, whereas his views on the limits of the Executive Branch’s ability to undertake certain actions derives from his views on the limits of the President’s authority under Article II and the Commander in Chief clause. In fact, most of his criticisms of Bush’s Commander in Chief actions were based on his view that they violated laws enacted by Congress (FISA, prohibitions on torture).
December 24, 2009, 1:37 pmBrad says:
As America evolves from a two party system into a ruling party system, the whole rule of law thing becomes, shall we say academic.
December 24, 2009, 2:11 pmJohn Pitzel says:
McCarran- Ferguson prohibits offering health insurance across state lines. This healthcare bill calls for people to purchase a good that can not be offered interstate. It would seem that the current bill violates McCarran, and also regulated interstate commerce.
December 24, 2009, 2:19 pmBill45 says:
To those arguing the constitutionality of the Obama health care mandate, a question:
If the federal government can mandate private citizens to enter into these particular commercial contracts, what compulsory commerce can the federal government not compel?
Can the feds now force one to buy a car? A Buick?
December 24, 2009, 2:20 pmChris Travers says:
Founders of the 13th Amendment? Or are you arguing that the 13th Amendment doesn’t amend the Constitution?
Did the penalties for not owning a firearm usable for the militia exist at the time of the 13th Amendment? I don’t know, just asking’….
I agree with the substance of your argument but would differentiate it in a couple of important ways:
A reasonably proficient blacksmith can make a musket. Many Americans at the time of the Revolution were reasonably proficient blacksmiths, so such a law might be no different than requiring houses to meet certain zoning codes, absent religious objections, etc. Really the only part of the requirement which was not readily manufactured by individuals of ordinary skill was the black powder, but that could be purchased when circumstances required. Such a requirement simply translated today would be far more onerous than a similar requirement in 1789.
Another important difference is that even if we accept that a firearms purchase mandate would be Constitutional today, such would not arise from the commerce clause, but rather from powers regarding regulating the militia. I don’t think Congress can mandate “in order to combat climate change, everyone must purchase a bicycle and keep it in good working order” any more than they can mandate “every American must purchase Obama’s books.”
December 24, 2009, 2:48 pmMark Field says:
Surely neither you nor David would contend that the 13th A overrode the various militia clauses. The Supreme Court certainly doesn’t think so given its ruling on the draft.
In any case, the original comment suggested that the government can’t force people to buy things. My response was to that claim, so if you assume the draft is constitutional, then do you agree that, as was true of the militia in 1790, you could be required to supply your own weapon? That latter question is unaffected by the 13th A.
December 24, 2009, 3:05 pmDoodle says:
I just wandered over here from Instapundit.
I’m certainly no lawyer.
It is frightening to read so many arguments about how many angels can dance on the head of a pin simply to justify coercion and theft.
December 24, 2009, 3:18 pmM. Report says:
Amazing echo in here :)
“Government is Force.” Geo. W.
Q: How will the Federal Govt.
December 24, 2009, 3:34 pm_en_force_ HCR, C&T, etc, against
the non-violent, plausibly legal,
refusal of the states to comply ?
FredP says:
If regulating interstate commerce gives Congress the right to regulate non-interstate non-commerce (not buying insurance) then what else can they mandate? Do they have the authority to mandate each of us to buy a GM car each year? Their theory might be that it would be good for the economy, i.e. for the general welfare. If they could mandate purchase of a car, then are there any limits at all as to what they can mandate? If they cannot mandate the purchase of a car then what gives them the authority to mandate purchase of insurance?
December 24, 2009, 4:25 pmRon says:
Although I’m “right of center” politically, I sense that the health care bill is constitutional. My argument: the federal government can tax and spend in so far as it does not conflict with the constitution. So for example, if tax dollars were used to fund a government created Church of the Golden Calf, that would probably be unconstitutional, as violating the establishment clause.
In this case, there is nothing in the constitution that says “there shall be no national health care program.”
Another argument: there is aleady a long standing compulsory social program: compulsory schooling for minors. Parents can choose to either public or private or home schooling , but they will suffer sanctions if they disobey the mandate for schooling for minors.
December 24, 2009, 4:25 pmDrew Kelley says:
I’m sure that a great many, if not virtually all, of the con-law scholars who defend the constitutionality of the individual mandate also defend the “collective right” interpretation of the 2nd Amendment, and we have seen how that has gone for them.
December 24, 2009, 5:12 pmwooga says:
Yeah, that the 16th Amendment was necessary. Direct taxes were unconstitutional, and I’m not seeing how the health care penalty (and yes, it is explicitly a penalty) fits within the authority of the 16th or any pre-existing authority.
Sort of like how the Constitution did not actually grant women the right to vote until the 19th Amendment. Everyone seems to assume that the Constitution inherently grants women the right to vote and outlaws slavery… but history is to the contrary. But I know I’m fighting a losing battle, as law schools have successfully brainwashed enough lawyers into believeing the federal government is an unfettered leviathan (rather than an entity of limited, enumerated powers), such that some day soon SCOTUS will probably rule that the federal government has the right to mandate I masturbate twice daily, so as to reduce my desire to procreate, and thereby affect interstate commerce.
December 24, 2009, 5:28 pmMark Field says:
Take it up with Kenneth Arrow.
December 24, 2009, 5:42 pmAdam Sullivan says:
The “reform” in this package will collapse under its own weight.
I have run the numbers for my case and, even though I have paid for my own insurance for most of my life (self employed) it makes sense to simply cancel, pay the annual fine (max $2500 for a household) and then buy insurance once sick (can’t be denied).
That is the optimal path for most working professionals and their employers (who will be happy to pay 750 per head rather than offer insurance). The risk pools will then be occupied almost exclusively by sick people, causing rates to skyrocket.
With insurers obligated to pay overhead / salaries / bonuses out of 20% of the premium, they will actually see a larger chunk of cash to play with as rates skyrocket.
An unsustainable set of outcomes.
December 24, 2009, 5:56 pmNagarajan Sivakumar says:
@Adam Sullivan,
This is what Democrats are hoping for – rig the already rigged rules to completely drive private insurance companies to the ground.You are right on about the cost escalations.
Remember,how this all started out to “help” the millions of uninsured – turns out that “reform” is actually aimed at those who are insured and have no problems with the concept of private insurance. Ultimately, the goal is to make the cost of private insurance unbearably high so that more people come crying for a single payer system.
There are several ways to get to single payer – the public “option” was only one way. But the current health insurance mandate may be more effective than even the public option.
It is almost like private insurance companies also realize this and want to earn as much dough as possible before winding down for good. The only ones who are more happy than liberals about mandated health care are the insurance companies. No wonder health care stocks are now soaring.
December 24, 2009, 7:25 pmRobert Hawks says:
Attached here is a Heritage Foundation annotated article as to why this Bill would fail under the Commerce Clause. ARTICLE I, Sect. 8, Clause 3 [the Commerce Clause]. They came to the same conclusion as I, only they attached legal authority. They also suggest, but do not raise the issue of tax under ARTICLE I, Sect. 8. Clause 1: Congress’ power to tax for “general welfare.”
Like me most of you are not attorneys. I respectfully request you read the attached so at least you can bitch from a reasonable understanding of how our Constitution is “supposed” to work.,
THIS BILL IS A TAX
Regardless of what happens, you should realize [no matter what they call it] this HealthCare Bill is a TAX. “A rose by any other name is still a rose.” The HealthCare Bill will be placed within Social Security, [(Pub. Law 74-271, August 14, 1935, 49 Stat. 620; as amended) is codified at 42 U.S.C. §§301 et seg.]
The original Social Security Tax Act, was held as an “Income Tax.” It was and “excise tax” based on income; Steward Machine Co. v Davis (1936) 301 U.S. 548-618, 81 L.Ed. 1279. Holding, Social Security Tax is an Excise Tax; Heverling v. Davis (1936) 301 U.S. 619-646, 81 L.Ed. 1307, Social Security Tax is an excise.
“The proceeds of both [the employee and the employer] taxes are paid into the treasury like any other internal revenue tax, and are NOT earmarked in any way.”
Also see; Carmichael v. Southern Coal &. Coke Corp. [1936] 301 U.S. 495-531, 81 L.Ed. 1245. Alabama Employment Tax constitutional.
The interesting factor was that in 1939 only the “EMPLOYER” appeared. Thus the Court (clearly states) that it (the Court) was only ruling on the law as it pertained to employers and not employees (workers). As they [employees (workers)] were not a party. Thus the holding (i.e. that Social Security was unconstitutional) of both Davis v. Boston &. M.R. Co., (1937) supra., and Davis v. Edison Elec. Co., (1937) supra., as it applies to individuals/ employees/ workers is still valid. Others Cases: Flemming v. Nestor, (1960) 363 U.S. 603, 4 L.Ed.2d. 1435, 80 S.Ct. 1367.
The HealthCare Bill raises revenue, and is alleged earmarked for HealthCare reform. Perhaps rereading the basics of Steward Machine Co. v Davis and Heverling v. Davis.
Moreover, when any tax bill (regardless of what you call it) exempts States, individuals and Corporations it lacks the capacity to be uniform and is un-Constitutional on its face.
December 25, 2009, 5:01 pmMark Hall says:
The key point that Randy Barnett fails to confront is this: Currently, individuals cannot buy insurance that covers pre-existing conditions and has no “medical underwriting.” It’s not feasible for insurers to offer such a product (due to “adverse selection”). An insurance mandate is needed in order to create market conditions that allow this different kind of insurance product to be sold. That’s why a mandate is more than just a requirement to buy someone’s product. Instead, it’s an essential part of insurance regulation and comprehensive market reform — unlike the various examples Prof. Barnett offers as extreme analogues.
January 4, 2010, 10:01 amDavid Nieporent says:
Another way to put it is that Congress wants the market to sell flying unicorns. For obvious reasons, the market won’t do so. So somehow Congress has the right — because it has the power to regulate the flying unicorn market — to force everyone in the country to undergo genetic experiments designed to create flying unicorns as an “essential” part of regulating the flying unicorn market.
January 4, 2010, 11:09 amFM newswire for 26 December, hot articles for your morning reading « Fabius Maximus says:
[...] “The Myth of an Expert Consensus on the Constitutionality of an Individual Health Insurance Mandate“, Volokh Conspiracy, 23 December 2009 [...]
May 30, 2010, 3:19 pm