Back in December, I wrote a post debunking “The Myth of an Expert Consensus on the Constitutionality of an Individual Health Insurance Mandate.” Despite claims by some Democratic politicians and activists, there are numerous prominent constitutional law scholars who believe that the mandate is unconstitutional. I noted several of them in my post, including Richard Epstein and co-bloggers Jonathan Adler and Randy Barnett. While not as prominent as these scholars, I too teach constitutional law, federalism and the Commerce Clause are among my areas of expertise, and I have repeatedly argued that the mandate is unconstitutional (e.g. here and here).
Unfortunately, as co-blogger David Kopel points out, it seems more such debunking is needed, as some are still trying to peddle the myth of an expert consensus on this issue. David helpfully lists a large number of prominent legal scholars who believe the mandate to be unconstitutional.
Let me reiterate what is already known to most experts, but may not be clear to some in the media and the general public: There is not and never has been an expert consensus on this issue. Rather, this is one of a number of disputed questions in constitutional law that tends to split experts along ideological lines. Nearly all left of center experts believe the mandate is constitutional, while the overwhelming majority of conservative and libertarian scholars believe the opposite. Thus, neither side can “win” the debate simply by citing supposedly monolithic expert authority. There is no shortcut around the necessity of carefully considering the arguments on both sides. If we are going to have an intellectually serious discussion of this issue, that is what we will have to do. Citing the consensus view of academics or other experts isn’t going to cut it, for the simple reason that no such consensus exists.
Anonsters says:
Do you think one’s answer to whether courts will strike down certain provisions (like the individual mandate) as unconstitutional depends on one’s ideological leaning, or just the answer to whether certain provisions are unconstitutional according to one’s particular favored interpretation of the Constitution?
April 2, 2010, 12:03 amIlya Somin says:
Do you think one’s answer to whether courts will strike down certain provisions (like the individual mandate) as unconstitutional depends on one’s ideological leaning, or just the answer to whether certain provisions are unconstitutional according to one’s particular favored interpretation of the Constitution?
If you read my post,and David Kopel’s, you might have noticed that both are devoted to question of whether there is an expert consensus about whether the mandate is unconstitutional, not to the separate issue of whether the courts are likely to uphold it or not. The courts make many mistakes. Personally, I think that a decision upholding the mandate is more likely than the opposite, but far from a sure thing. But, once again, that is a separate issue from the question of the constitutionality of the mandate.
April 2, 2010, 12:06 amJames N. Gibson says:
Strange, but I expected to read multiple references to Global Warming in this. Wasn’t that the most recent subject were there was nothing but consensus/ the debate is over/ statements. Of course when Michael Bellisiles book came out there was also consensus on what gun ownership was like in the time of the founding fathers.
In short, when people want things done their way they claim consensus to mute or discredit their opposition. For always the only reputable scholars, analysts and sages are on their side thus insuring consensus.
April 2, 2010, 12:08 amMassachusetts Insurance regulators | Wisconsin's 6th District Republican Party says:
[...] about Constitutional Law professors believe that ObamaCare is constitutional. But, not according to this and [...]
April 2, 2010, 12:11 amThe Volokh Conspiracy » Blog Archive » A Better Question says:
[...] Archives « The Myth of an Expert Consensus on the Constitutionality of the Health Care Mandate Revisited [...]
April 2, 2010, 12:17 amAnonsters says:
As it happens, I read your post and most of David Kopel’s. And I noticed that you don’t distinguish the question of the “constitutionality,” as academics or others happen to read the Constitution, from the constitutionality of HCR as the courts read and apply the Constitution. Yet, you crow about the “claims by some Democratic politicians and activists.” I’m not suggesting that you yourself conflated the two issues, but you certainly didn’t explicitly distinguish them, and my only point is that people are apt to do so. Particularly people who care more about the practical outcome than academic debate.
I can virtually guarantee that, while liberal constitutional scholars may care about the academic debate, Democratic politicians and activists don’t give a damn about the first question, and will indeed count it as “winning the debate” if the courts uphold the constitutionality of the HCR bill’s parts.
April 2, 2010, 12:17 amJB says:
When you say that the “overwhelming majority of conservative and libertarian scholars believe” that the mandate is unconstitutional, does that mean that they believe even under existing precedent it is unconstitutional? Or do most of them argue that the precedent is wrong, and that under the original meaning of the commerce clause it would be unconstitutional?
April 2, 2010, 12:18 ambs says:
Let’s see, you say that those of a certain political persuasion say its unconstitutional, those of another persuasion say its not but you want to have a serious intellectual discussion about it?
Doesn’t the first statement preclude an intellectual discussion? It’s like debating apple pie versus cherry pie.
April 2, 2010, 12:50 amAnonsters says:
Boston creme pie is the only good pie, as everyone who is not a wingnut knows. ;)
April 2, 2010, 12:54 amnot my leg says:
“…this is one of a number of disputed questions in constitutional law that tends to split experts along ideological lines. Nearly all left of center experts believe the mandate is constitutional, while the overwhelming majority of conservative and libertarian scholars believe the opposite.”
Assuming this is true, and I certainly don’t dispute it, what does it say about the state of legal theory. Part of me says it is a sad commentary on the state of legal theory. Rather than develop any principled legal theory, all we have done is dress political ideology up in legal clothing.
On the other hand, it could simple be a result of true indeterminacy/underdeterminacy in the law. There are certain legal questions that the law either provides no answer to, or provides multiple acceptable answers to. In deciding between them we must pick some principle other than the law (which provides no answer), and the natural place to turn is political views.
I realize that I’m not saying anything new here, and others have said it better than I. The indeterminacy was covered in depth by Dworkin and many others, and who hasn’t suggested that legal theory is nothing but cover for political views.
Also, the truth is that the people on my side are correct, and the people on the other side are simply unprincipled people dressing up their political views in legal clothing.
April 2, 2010, 1:13 amArthur Kirkland says:
This passage suggets that libertarianism is not only more closely aligned with conservatism than is liberalism, but that indeed no libertarians are “left of center.” This is a silly misconception promoted by conservatives (especially with respect to people who self-identify as libertarians but whose libertarianism travels precisely so far as libertarianism overlaps conservatism) that ignores the contributions of left-leaning libertarians (often over the objections of nanny-statist conservatives) to American progress.
Now, if conservatives would stop trying to ram religion down others’ throats, acknowledge a woman’s decision-making authority concerning her abortion, quit discriminating against gays, end the War on Drugs, lose their taste for government spying, disclaim endless and unexamined detention, abandon censorship, dismantle sovereign immunity, oppose unprovoked violence in the form of military action, stop trying to emasculate the Fourth Amendment, . . .
April 2, 2010, 1:21 amIlya Somin says:
This passage suggets that libertarianism is not only more closely aligned with conservatism than is liberalism, but that indeed no libertarians are “left of center.”
On the issue covered in the post, libertarians are indeed much more closely aligned with liberals than conservatives. On some other issues, that is not the case. Nothing I said in the post disputes this. Libertarians are of course “left of center” on some issues. But, almost by definition, they are not generally left of center in the way that liberals and leftists are.
especially with respect to people who self-identify as libertarians but whose libertarianism travels precisely so far as libertarianism overlaps conservatism
I doubt there are many such people. Certainly I’m not one of them, having written numerous posts and articles criticizing conservative positions on various issues.
April 2, 2010, 2:25 amD.O. says:
Well, how many of those professors who think that individual mandate is unconstitutional also think that 2nd Am. has to be incorporated via 14th. Am.’s P or A? You might be scorned by justice Scalia twice!
April 2, 2010, 3:28 amMQuinn says:
Prof Somin:
I have two points. First, this snippet confirms what, in my opinion, is the near-consensus view among scholars that the mandate is likely to be upheld, irrespective of each particular scholar’s opinion on how the Constitution should be interpreted in a perfect world. It seems that most (but admittedly not all) scholars who believe the mandate unconstitutional also advocate for an interpretation of the Constitution that strays significantly from current case law. In that sense, the “myth” of consensus isn’t quite as inaccurate as the OP would suggest.
Second, I don’t agree that the constitutionality of the mandate is wholly separate from the question of whether the mandate is likely to be upheld. After all, the latter is likely informed, at least in part, by the former. One might disagree with the substance of current case law, but, nonetheless, that case law is for all practical purposes “the Constitution,” until changed.
April 2, 2010, 8:58 amArthur Kirkland says:
Steeee——-rike two!
Has anyone seen my bunny? Last time I saw it, sitting on that book entitled “But Every Libertarian I Know Is Right Of Center” . . . right next to the professor’s hat.
April 2, 2010, 9:45 amGo Vols says:
“while the overwhelming majority of conservative and libertarian scholars believe the opposite.”
Frankly, I don’t believe this. At least, if the question asks ” is the bill constitutional under the Court’s current interpretation of the Constitution under active precedent?” rather than under “does the bill match my ideal interpretation of the Constitution?” I would be open to changing that view if provided with some sort of survey or empirical evidence, but I don’t see how Somin arrives at “overwhelming.” Kopel does not present a “large” list; he lists eight people, including himself. I suspect I could find eight law professors to support any number of far-fetched theories.
April 2, 2010, 9:47 amrunape says:
Ilya,
I’m aware of a number of conservatives (including Orin at this blog) who concede the bill is constitutional. I’m not aware of any liberals who believe the bill is unconstitutional. Is that your impression as well? If so, what do you think it says about the state of the academy?
April 2, 2010, 10:10 amJoe says:
I’m aware of a number of conservatives (including Orin at this blog) who concede the bill is constitutional. I’m not aware of any liberals who believe the bill is unconstitutional. Is that your impression as well? If so, what do you think it says about the state of the academy?
What he said. My impression of the state of things is that literally every single left-of-center (and centerist, as well, though I’m willing to be corrected on this point) academic thinks this is constitutional, mostly on multiple grounds. Right-of-center academics seem to be broken roughly in thirds, with (a) one group saying that it’s a shame, but under existing Commerce Clause precedent this is clearly constitutional (Kerr), (b) one group saying that it’s a shame and it’s questionable as a matter of law, but the Court will very likely not strike down the mandate (Adler), and (c) one group — by far the smallest — saying that the Court probably will strike it down (Barnett).
I’ll also note that the recent comments of the Washington law school dean echo this impression: http://seattletimes.nwsource.com/html/localnews/2011483297_healthdebate31m.html
(Money quote: “I will say that we tried very hard to get a professor who could come and who thinks this is flat-out unconstitutional,” he said. “But there are relatively few of them, and they are in great demand.”)
Personally, my view is that the Commerce Clause issue, at least, comes down to the question of whether Congress had a rational basis to conclude that the decision not to purchase health insurance is economic conduct which is essential to the regulatory goals implicated by the law. I think that answers itself, frankly.
April 2, 2010, 11:19 amAnonsters says:
He’ll trot out the desired repeal of drug laws as an example of being left of center, but not in the way that “leftists” are.
April 2, 2010, 11:35 amgeokstr says:
Which perfectly defines one of the most important distinctions between the left and the right. Conservatives are permitted to have, like, you know, differences of opinion from ideological orthodoxy. Leftlings, not so much.
On the left, diversity means different outward manifestations – melanin content, height, weight, looks, but heaven forbid – not differences in ideas.
April 2, 2010, 11:52 amSarcastro says:
Which explains the vote breakdowns in Congress lately. And also why there are no disagreements on leftist message boards. And why I can’t stop agreeing with orca.
April 2, 2010, 11:57 amAnonsters says:
Black is white! Up is down!
[Sarcastro: How'd I do?]
April 2, 2010, 12:03 pmSarcastro says:
But Black IS White to libs! Cause they love evil and darkness, and go all Orwell and pretend it is light!
As for up being down, I hear ChiCom scientists are working on that.
April 2, 2010, 12:56 pmHere Come the Lawyers, Part 3 says:
[...] academics that there is a consensus in academia finding Obamacare constitutional. Read more on that here, here, and [...]
April 2, 2010, 1:29 pmHan Solo says:
Then there are those of who believe the whole DAMN thing is unconstitutional and the federal government should not have anything to do with any of this stuff.
There are still a few people left who don’t think the general welfare and interstate commerce clauses were designed to create a federal government with no limits on its own powers.
And there also some of us left that don’t care what the supreme court says the federal governments power limits are because its insane to let the federal government decide itself what its own limits are and that is the reason why the Constitution is hardly worth its weight in paper today.
April 2, 2010, 2:22 pmSarcastro says:
Han Solo, to the rescue from 1920, which is a kind of long, long ago!
April 2, 2010, 2:51 pmSarcastro says:
[Long time ago... Oy, nerd fail.]
April 2, 2010, 3:09 pmohwilleke says:
“There is not and never has been an expert consensus on this issue.”
Absolute poppycock. This is strictly grandstanding fantasy constitution stuff. There is a lack of expert consensus on the constitutionality of the health care mandate only in the same sense that there is a lack of consensus on constitutional issues like incorporation via the Privileges and Immunities Clause. There are lots of politically motivated people and some professors spouting theories and writing papers, but the arguments are DOA in court.
April 2, 2010, 4:06 pmArthur Kirkland says:
Not on this blog, he won’t, unless it is to deflect an observation that the “libertarian” VC voices seem stuck on themes congruent with the conservative line.
Maybe things are different, however, when driving (during a Limbaugh break), or alone in the shower, or even talking with a discreet friend in the wee wee hours.
April 2, 2010, 5:40 pmDavid says:
Re: ohwilleke
“Fantasy constitution”? Oh dear, I’ve just finished my fantasy baseball drafts, and it sounds like you’re telling me I need to pre-rank my picks of Articles and Amendments, too!
April 3, 2010, 12:57 amCassandra says:
You legal scholars are now being hoisted by your own petard. Unlike physicists and chessmasters, among others, you seem to spend a hell of a lot of time away from scholarship immersing yourselves in publishing and reacting to polls and statistics, like those that rate lawyers and economists by frequency of citation.
The Miraculous Year of Einstein did not depend on frequency of citation of his publications in the Annalen der Physik.
April 4, 2010, 1:19 pmThe Golden Gate » Article » Obamacare | Constitutionality Round-up says:
[...] perspectives–they are having a very, very interesting and in-depth convo. To start it off here is a post that speaks to the lack of consensus on this matter with in general. Oh–and per the usual atmosphere at Volokh, the comment [...]
April 4, 2010, 2:15 pm