In light of David K.and Ilya’s posts on the constitutionality of the health care mandate, let me propose a better question to ask. It’s a little more complicated, but I think it will be more illuminating. Here’s the idea. Instead of asking experts “Is the health care mandate constitutional?,” we should ask experts this question:
In your view, which of the following federal programs or agencies are constitutional?(a) Social Security
(b) The Federal Trade Commission
(c) Medicare/Medicaid
(d) The Securities and Exchange Commission
(e) The new Health Care mandate
I think this would be a helpful question because it would it would distinguish those scholars who think most of the federal government is constitutionally okay but the health care mandate is different from those scholars who think most of the federal government is unconstitutional, and the health care mandate is just one more unconstitutional part along with the rest. (And while I can’t fairly put Ilya and David K. on the spot, I admit I would be kind of interested in their answers to the question above.)
Chris Travers says:
Another question:
To those that say it is Unconstitutional, do the problems go away if the public option is provided?
April 2, 2010, 12:20 amIlya Somin says:
Another question:
To those that say it is Unconstitutional, do the problems go away if the public option is provided?
Not in my view, no.
April 2, 2010, 12:21 amOrin Kerr says:
Ilya,
Thanks for weighing in. I’m curious, in your view, how many of the five programs listed are constitutional?
April 2, 2010, 12:25 amIlya Somin says:
In your view, which of the following federal programs or agencies are constitutional?
Happy to oblige. However, it is important to recognize that the argument for the constitutionality of each of the others is much tougher to question because it is supported by longstanding precedent, whereas the Court has never specifically ruled on the issue of whether the government can force individuals to purchase a particular product. Second, the fact that a longstanding institution is unconstitutional doesn’t necessarily mean that courts should strike it down. There are political constraints and reliance interests that courts must take account in such situations.
Still, here goes:
(a) Social Security
Unconstitutional. However, there are strong reliance interests that counsel against immediate invalidation by courts, even if courts wanted to do it.
(b) The Federal Trade Commission.
Constitutional in so far as it applies to the sale of products across state lines. I don’t know how much the FTC regulates.
(c) Medicare/Medicaid
Mostly unconstitutional. but note reliance interests similar to those that apply to Social Security.
(d) The Securities and Exchange Commission
Constitutional in so far as it applies to commercial corporations operating in multiple states. But I don’t know enough about this agency to give anything close to a definitive opinion.
(e) The new Health Care mandate
I think you know my views.
April 2, 2010, 12:27 amSteve says:
To those that say it is Unconstitutional, do the problems go away if the public option is provided?
I hear this one from my comrades on the left a lot. To me, it’s a perfect example of defining unconstitutional to mean “anything I don’t like.” Nothing in the Constitution comes remotely close to saying “you can’t force me to do business with a private corporation, but as long as I have the option of being forced into a government program instead, it’s a-ok!” That might be good policy, and the public option might make the mandate a whole lot easier to swallow from a political standpoint, but how can you possibly parse that interpretation out of the Constitution?
April 2, 2010, 12:28 amOrin Kerr says:
Thanks very much, Ilya.
The FTC’s operating statute states that “unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.” This permits the FTC to regulate to the full extent of the Commerce Clause, which under cases like Raich give the FTC essentially plenary jurisdiction over commerce. I gather you would say that the FTC acts unconstitutionally except insofar as it regulates products that actually cross state lines?
April 2, 2010, 12:32 amMahan Atma says:
What about securities sold in interstate markets (which is probably most of them)?
April 2, 2010, 12:34 amIlya Somin says:
I gather you would say that the FTC acts unconstitutionally except insofar as it regulates products that actually cross state lines?
By and large yes. Though there might be some aspects of its regulatory authority that can be squeezed in under the other enumerated powers, such as the power to set weights and measures. One reason why I’m reluctant to give definitive opinions on the constitutionality of agencies such as the SEC and FTC is that I have only limited knowledge of what they do.
April 2, 2010, 12:36 amSoronel Haetir says:
I would say that what the SEC *does* is mostly constitutional, though I do have problems with the agency structure (being independent from the President). I don’t feel like looking up whether the FTC is also an independent executive agency but I suspect from the name that it likely is. Just because these agencies don’t answer directly enough to the President for my tastes does not however mean that I see their areas of activity as being beyond the purview of the federal government.
April 2, 2010, 12:51 amEluchil says:
A good question from Orin. I have a slight quibble though with listing Medicare and Medicaid together. Because of their different structures I would say that Medicare is probably unconstitutional as a direct federal insurance program but Medicaid which is mostly mandates and grants to the several states is much more likely to pass constitutional muster.
April 2, 2010, 12:56 amDunstan says:
“And while I can’t fairly put Ilya and David K. on the spot,”
Really? What’s unfair about it? (And credit to Ilya for answering the questions.)
April 2, 2010, 1:01 amChris Travers says:
Well, but this is what differentiates this mandate from Medicare. In essence there is a difference between the Federal government saying “we’re going to raise money for such-and-such of a program via taxes, and we will pay the bills” which is wat a public option would amount to and “we’re going to force everyone to enter into contracts with private parties to the following specifications” which is what they’ve done here. The second option (what we have here) relies mostly on the commerce clause powers. A public option could rely on general taxation and spending powers as well.
Personally I think a public option would be bad policy. However, my lay understanding of the Constitution also suggests it would be harder to invalidate.
April 2, 2010, 1:02 amChris Travers says:
Maybe not “most.” I would bet most entities which “sell” securities to other persons are actually operating intrastate. This means every small sub-S Corp, LLC, and the like…..
Indeed I thought that securities only sold intrastate were beyond the reach of the SEC. For example, if my friend and I start a business and I invest $20000 for 20000 shares and he invests $15000 for 15000 shares, and we live in the same state and are going into business together, my understanding was that state, and not federal, law governed whether that transaction was legal.
April 2, 2010, 1:12 amDavo says:
The FTC might satisfy the commerce clause, but it’s still unconstitutional. An independent agency? That’s like a vodka martini. The FTC doesn’t even need to go through the SG’s office to petition for cert. Yuck.
April 2, 2010, 1:13 amBrett Bellmore says:
Ok, I have big, big problems with that. You just tossed the rule of law out the window, and have said that it’s ok for the federal government to violate the Constitution, on an ongoing basis. You’ve reduced the “highest law of the land” to the status of a suggestion.
I admit we’ve got a bit of a problem here, in that the federal government is MASSIVELY violating the Constitution, with the ok of the courts it chooses the members of, and has been for decades. Perhaps we could work out some mechanism whereby, when a constitutional violation has been longstanding, the government is given a decent interval during which to discontinue it, with the option of sending an amendment out to the states to make the violation legal, if ratified.
But, ultimately, the Constitution has to prevail over practice, or what’s the point in having it?
Part of the problem here, as I see it, is that, when the Court decides precedent or longstanding practice is going to prevail over the text of the Constitution, they don’t rule that “Practice X is unconstitutional, but we’re going to allow it to continue anyway for the following reasons.” They rule that it’s constitutional, and all the courts below have to proceed as though the Constitution actually DID permit the practice in question.
It’s a system of doublethink which has severe costs.
April 2, 2010, 1:19 amThe River Temoc, In Winter says:
There is a wonderful scene from one of the early seasons of THE WEST WING where President Bartlett needs to disclose that he has MS and, knowing he has a crisis on his hands, seeks advice from the White House Counsel — who is far to preoccupied with such an urgent matter, because he and his staff want to debate some abstruse point of Fourth Amendment law.
When Ilya says that social security is unconstitutional, that is what I am reminded of.
No modern free market economy will survive without a basic social safety net. That is the price of broadbased public support for capitalism. A Dickensian world where destitute seniors are out on the street is the surest way to support for socialism (and I mean *real* socialism, not what the Tea Party types like to think Obama’s ideology is).
There is a point when constitutional law ceases to be about abstruse debating points and starts to be about the basic workings of competent government. Branding social security unconstitutional is most assuredly the former. Going there will lead us only to Thomas Jefferson’s suggestion that we adopt a new constitution every 20 years or so.
April 2, 2010, 1:19 amBrett Bellmore says:
And why is that such a bad place to go? It’s better than keeping the same constitution for 200 years, and just pretending that you’re following it. Because doing the latter requires a government run by the sort of people who are comfortable with such pretense.
A government with a constitution which prohibits a modern welfare state, but which is ‘interpreted’ as permitting it, is NOT the same as a government which genuinely permits one. It’s not the same, because of the sort of people it needs to be run by, and because of the tacit mechanisms which need to be in place to keep a consistent false interpretation of the founding document in place.
We ought to have a constitutional convention, assuming Congress would ever permit one to happen. It would doubtless produce a constitution much less to the liking of libertarians such as myself, but a much less libertarian constitution which is actually in force could end up being better than even an ideal constitution which is routinely violated.
April 2, 2010, 1:35 amAnonsters says:
Hey, I’m glad to see I’m not the only one who thinks it’s nuts to try to fit the exigencies of contemporary governance under an 18th century constitution. :)
April 2, 2010, 1:50 amMike McDougal says:
Where can I find the most fully formed justification for using reliance interests to not apply what would otherwise be a more correct interpretation?
April 2, 2010, 1:53 amBrett Bellmore says:
You misinterpret me: I think the exigencies of contemporary governance could indeed be fitted under an 18th century constitution, with just a few tweaks here and there. It would require a huge transfer of responsibilities down to the state level, where enumerated powers doctrine doesn’t prevail. But it would be feasible from a structural standpoint. Most of the unconstitutional activities the federal government is engaged in would be constitutional at the state level.
It’s just not feasible from a political standpoint. The people running the federal government would overthrow the Constitution before they’d agree to give up that much power to the states. They’d end the pretense that they’re following it, and rest their legitimacy on having a big military, and the willingness to use it, instead.
Giving them a legitimate claim to that power is just making the best of a bad situation, it doesn’t mean I think they really need that power. Maybe SOMEBODY needs it, but it doesn’t have to be the federal government.
April 2, 2010, 1:58 amChris Travers says:
Regarding social security, I think the fundamental questions are:
1) Whether the federal government has the power to tax to support it
2) Whether the federal government has the power to run it (via disbursements)
3) Whether the federal government has the power to regulate it.
Now, my thinking (contradicting Illya) s that that the answer to the first question is “yes” and that there are a number of reasons why one must necessarily reach that point.
I don’t know whether the Constitution should require the actual management and regulation to be done through the states, however. However assuming we answer the other questions as “no” it doesn’t prevent a safety net. It just changes the form of what must be done to have one in accordance with our rule of law.
April 2, 2010, 1:59 amDoc Merlin says:
The Federal Trade Commission and the SEC would be mostly legal so long as they only looked at things that were traded across state borders and such, imo.
April 2, 2010, 2:01 amAnonsters says:
Which doesn’t strike me as such a wonderful idea, given the complexity of the world we live in, and given the often parochial concerns of individual states, but I confess that that is more of an impressionistic take than a logically or conceptually rigorous one.
Yes, it was sort of a deliberate misinterpretation, which is why I put the smiley emoticon on it. :)
April 2, 2010, 2:09 amBruce Hayden says:
I just don’t see how it fits under one of the taxing powers of the federal government, unless, it is considered an income tax. And, to a pretty good extent, up to the maximum contribution limit, it probably is an income tax, if such is viewed as a tax on income. And, ditto for Medicare. I don’t see problems with disbursements or regulation of either – no one can expect the government to grab all this money and then not be able to do something with it.
But if we define an income tax as a tax on income, there are plenty of things in the IRS code that would seem not to be taxes on income. Indeed, all those credits for this and that are reductions in the tax on income, not anywhere proportional to the underlying income, which is why we can have somewhere around half the people here not paying any income tax.
And this is where I see the some of the provisions in the health care bill being problematic. For example, it is one thing to argue that maybe all those credits are really disbursements, and therefore are not really a part of the tax on income. But that wouldn’t seem to work for the penalties for not carrying health insurance. They aren’t disbursements because the tax payer is paying in, and not receiving. Maybe a fine, but then, why is it being collected on the tax payer’s 1040? And most of the other surcharges on tax returns have some connection to income. These don’t seem to.
As for the SEC and FTC, I think that both probably mostly fall within regulating interstate commerce. Maybe not completely. But I would suggest that most of what they regulate has some interstate component.
April 2, 2010, 2:20 amzuch says:
But wouldn’t Medicaid, being primarily a state-administered program, be the most objectionable, at least to the state AGs challenging the new health care law?
Cheers,
April 2, 2010, 3:24 amMike G in Corvallis says:
Orin, what are your answers to those questions, and why?
Also … Do you believe that Raich was properly decided?
April 2, 2010, 3:42 amTemba, his arms wide says:
Temarc. Sokath, his eyes opened.
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April 2, 2010, 6:38 amsmitty says:
How about a guiding principle:
April 2, 2010, 6:40 amThe Federal Government handles Federal tasks. Anything involving dealings with individual citizens, e.g. conception, taxation, education, housing, health care and retirement, has to go through a State government where the citizen resides.
Two glaring deficiencies of the Single United State of America approach which we have favored these past few decades are:
1) Domestic considerations distract from the inter-State and international functions upon which the Federal Government should be more focused.
2) The assertion that people scale, and that policy which works arguably well in Sweden will flourish here.
We have a chain of command, and the short-circuiting thereof is a major source of woe.
Perseus says:
The constitutional issue raised by “independent agencies” such as the FTC and SEC is more than the extent of the federal government’s power to regulate commerce. There is also the more obvious separation of powers issue that arises as a result of independent agencies exercising quasi-legislative, quasi-executive, and quasi-judicial powers without direct accountability to the president.
April 2, 2010, 7:16 amepluribus says:
The River Temoc, In Winter says:
Very well stated. Strongly seconded.
April 2, 2010, 7:45 amepluribus says:
There is nothing in the Constitution that says the whole thing can’t be scrapped and replaced with a functioning social welfare system. Article V would be sufficient to the task. Failing that, a new Declaration reaffirming the right of the people to “alter and abolish” might do the trick. What will prevent any of this from happening is a functioning federal system under the present Constitution. Declaring Social Security, Medicare, Medicaid, FTC, and similar institutions unconstitutional would make scrap and replace the order of the day.
April 2, 2010, 7:55 amepluribus says:
smitty says:
Do you really want to go back to segregated housing, back alley abortions, poor houses for the elderly, and George Wallace standing in the schoolhouse door?
April 2, 2010, 8:00 amepluribus says:
Brett Bellmore says:
What is better? A constitution so rigid that it breaks every twenty years and has to be replaced (and with what we can only imagine)? Or a constitution with enough flexibility to bend in response to the needs of the times? Flexibility is not incompatible with strength. Rigidity is. Marshall was right when he said that “ours is a Constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs” (McCulloch v. Maryland, 1819). A constitution that cannot adapt–or a theory of constitutional interpretation that forbids adaptation–is a constitution that is broken and will be replaced.
April 2, 2010, 8:18 amBrett Bellmore says:
It’s an interesting question, but what we’ve got isn’t a “flexible” constitution, it’s a constitution that’s been broken on the wheel. It actually has a mechanism for amendment, but the people who want the changes don’t use it, because the states can refuse to ratify amendments, while they have no input at all into the process of judicial ‘interpretation’.
April 2, 2010, 8:41 amepluribus says:
Yes, we have a mechanism for amendment. But it’s not the only flexibility built into our Constitution, which, as Marshall said, was meant “to endure for ages to come.” Constitutional interpretation has been going on since the day the document was adopted, and it is continuing all the time. McCulloch v. Maryland was a bitterly contested case, and the Bank of the United States was hotly opposed by many, yet Marshall and his colleagues found enough flexibility in the Constitution to sanction it. And Madison, who had initially thought the Bank unconstitutional, was flexible enough to change his opinion on the question. Some parts of the Constitution are clear and unarguable. Others are vague and elastic. Due process, equal protection, cruel and unusual punishment, and, yes, “commerce among the several states” are phrases (and concepts) flexibile enough to permit interpretations to evolve. Those interpretations are made, collectively, by the nation, acting through the judiciary, the legislature, and ultimately the people. The genius of our Constitution, in my opinion, is its combination of strength and flexibility, and its recognition that the nation as a whole has a role in its interpretation.
April 2, 2010, 9:10 amDesiderius says:
Brett,
“It actually has a mechanism for amendment, but the people who want the changes don’t use it, because the states can refuse to ratify amendments, while they have no input at all into the process of judicial ‘interpretation’.”
Can you point me to some good scholarship on the abandonment of the amendment process? That seems to be the crux of the matter here. I remember Obama during the campaign mentioning that overreliance on the courts to produce social change may have been a misstep, suggesting that there might be some potential here to get things right(er) going forward.
April 2, 2010, 9:11 ammattski says:
epluribus @ 9:10.
Well said.
April 2, 2010, 9:34 amMichael A. Koenecke says:
The Commerce Clause has been interpreted by the courts to mean, essentially, the sum total of commerce within the United States.
For those who think that interpretation is correct, and that therefore the current health bill is constitutional, I am curious: what examples, exactly, can you give of things that are outside the Federal government’s power to do, but could still be done by a State?
I really am curious, because it has always seemed to me that the prevailing view of the Commerce Clause has transformed the Federal government into one of unlimited power, limited solely by the specific restrictions contained in the Bill of Rights: which is exactly what those opposing enactment of the Bill of Rights feared would happen.
April 2, 2010, 9:47 amGo Vols says:
Brett,
The problem, as I see it (and I suspect you disagree), is that our amendment process sets far too high a bar for change. One-third of one house of Congress, or 13 of 50 states can prevent any change from occurring. I can’t prove it, but I suspect if we didn’t have the “flexibility” that epluribus espouses, the country would have broken apart during the New Deal era, and been replaced with something far worse.
April 2, 2010, 9:54 amJonathan H. Adler says:
Orin –
I don’t think Social Security or Medicare/Medicaid present serious constitutional problems. I think that both are legitimate exercises of the taxing and spending power, and that one need not embrace a robust Hamiltonian view of those powers to reach that conclusion. Congress could reasonably conclude that social safety net programs promote the “general welfare” by providing economic security, reducing class-based faction, etc., so even if one thinks the “general welfare” requirement is justiciable, I think these programs would survive even very searching judicial review, just as they would survive Justice O’Connor’s dissent in South Dakota v. Dole.
Insofar as there are constitutional problems with the FTC or SEC, I think they relate to their composition as independent agencies, and how such agencies fit within the separation of powers, not their regulatory power. I’m uncomfortable with independent agencies as an original matter on “unitary executive” grounds, but I’m not prepared to say I would rule them unconstitutional. As for their regulatory jurisdiction, so long as each is focused on regulating interstate commerce — and regulating intrastate commerce insofar as is necessary and proper to regulate interstate commerce — there is also no constitutional problem with their regulatory mandates. I also think that the authority of each is easily sustained by cases, such as NLRB v. Jones & Laughlin Steel, that can be distinguished from the individual mandate.
As a final note, let me say that I think that the individual mandate could be struck down without invalidating any of the New Deal enumerated powers cases (including those relating to taxing and spending), though this would require reading Wickard narrowly, as Chief Justice Rehnquist did in Lopez. I think it is far more difficult — difficult though not impossible — to strike down the individual mandate without severely restricting (if not overturning) Gonzales v. Raich.
JHA
April 2, 2010, 10:09 amzuch says:
We tried that concept. And then rejected it. In 1787.
Cheers,
April 2, 2010, 11:02 amzuch says:
… and not just dead hands from 200 years past. We are not out to gain the approbation of people long dead, no matter how famous and insightful they were. Such would be an impossible task as well as an unwise one. We are out to get a country running effectively.
Cheers,
April 2, 2010, 11:07 amzuch says:
Yet Social Security is — amongst other things — a tax (even hitting some harder than others depending on their behavioural choices, for instance, hitting those self-employed at twice the bite of others, thus “punishing” self-employment).
How do you distinguish the health insurance ‘mandate’?
Cheers,
April 2, 2010, 11:14 amgeokstr says:
However, it would seem to me that eliminating the individual mandate would make other key provisions in the bill economically impossible, e.g., the ban on denial of insurance for pre-existing conditions, arguably one of the most important provisions in the bill. Without the expansion of the risk pool to include lots of healthy people, and the prevention of people from waiting to buy insurance until they actually need it, the entire insurance business model would be rendered obsolete.
If the individual mandate was deemed unconstitutional by SCOTUS, and the R’s were now the majority in at least one chamber, would the implementation of the entire bill then be jeopardized, since the R’s would no doubt (hopefully) refuse to make whatever changes would be necessary to make the thing constitutionally sound?
Or could Obama just issue another Executive Order “deeming” that whatever new funding mechanisms he considered necessary were “implied” in the original bill passed when the D’s were still in charge in Congress and plow ahead anyway?
April 2, 2010, 11:30 amShelbyC says:
Nit-picky, but this isn’t really true, they simply hide half of the tax from those who aren’t self employed.
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April 2, 2010, 12:03 pmepluribus says:
geokstr says:
Well stated. If there is another option besides single payer, I’d like to know what it is. I have asked here and, to date, nobody has answered. Single payer would raise the present whimpers about “socialism” to a thunderous roar.
April 2, 2010, 12:11 pmtde says:
Perhaps an even better question:
Are there any constitutional scholars who think that Obamacare is an excellent policy but that it is unconstitutional.
It seems to me that most people who argue about the “constitutionality” of the provisions are just casting about for legal support for their previous positions and thus, not really credible.
April 2, 2010, 12:31 pmThe Curmudgeonly Ex-Clerk says:
Professor Kerr:
I think your post is an excellent way to frame the issue. By the same token, I think it might be as helpful to create a similar list comprised of other possible mandates accompanied by tax penalties and request an assessment of their constitutionality under the Commerce Clause from proponents of the healthcare mandate’s constitutionality. (I’d propose such a list myself, but I have not had time to think through this idea.)
This would be helpful, I think, because much of the unease with the healthcare mandate stems from a sense that it effectivelly entails an interpretation of the Commerce Clause that knows no limits other than those that the political process might impose. That is, opponents of the healthcare mandate essentially fear that, if Congress can force consumers to purchase insurance on pain of a tax penalty, then it can force consumers to purchase just about anything under similar terms.
My impression is that the average advocate of the healthcare mandate’s constitutionality does not in fact conceive of any practical limit on the Commerce Clause. But I could be mistaken, and it would be helpful to hear their thoughts on various hypothetical mandates, whether the Commerce Clause has any boundary, and if so where it is ends. Perhaps, commenters could brainstorm and come up with such a list?
April 2, 2010, 12:40 pmKevin[0] says:
So you’re defining “credible” scholars as those who believe the constitution should be changed to allow Obamacare?
April 2, 2010, 12:57 pmyankee says:
This is exactly right, I think. The 17 least populous states contain less than 8% of the total U.S. population, meaning an amendment can be blocked in the Senate by representatives of a small minority of the population. The situation is even more dramatic in the states, where the 13 least-populous states contain less than 5% of the population of the U.S., allowing 2.5% of the population to block any amendment.
The state-level bar is even higher since every state except Nevada has a bicameral legislature, meaning that an amendment must be approved by at least 75 separate state legislative bodies to become law. Blocking the amendment doesn’t even require a majority of the chamber to vote it down: all that’s required is for some powerful state legislators to bottle it up in committee. The result is that a proposed amendment must make it through at least 163 separate veto points: at least one committee in each house of Congress (probably more), plus supermajorities in each house of Congress, plus committees (probably multiple committees) in each of 75 state legislative chambers, plus the 75 state legislative chambers themselves.
It’s an enormous hurdle, which is why the normal amendment process has only been used 14 times. Of the 27 amendments, ten were practically part of the original constitution, and another three were imposed by force.
April 2, 2010, 1:22 pmRowerinVA says:
Orin, Ilya, Jonathan Adler, and Davo:
Actually, the FTC does need to go through the SG’s office to petition for cert. Every SG’s office, Dem and Rep, has passionately enforced this.
Asking whether the FTC “is” unconstitutional is the wrong question; the Constitution and the courts that interpret it are concerned with action and injury (see the standing doctrine), not metaphysical states of being. If the FTC actually acted independent from the executive branch, it probably would act unconstitutionally; however, it doesn’t actually do so. The President appoints the Chairman, who follows the President’s agenda, and in modern memory a President has never ordered the FTC to do something where the FTC has disobeyed. If the President decides to tolerate Congress calling one of his agencies “independent,” that’s the President political decision.
Presidents treat the FTC as independent when it suits them, and executive when it suits them — take credit for the FTC’s actions when they are popular, and say “not my fault” (while not taking any action to stop the FTC) when the FTC action isn’t popular. This is a convenient situation for Presidents. Ditto the situation with the SEC. Interestingly, the mainstream media tends to do the reverse. E.g., when the FTC didn’t block mergers under Bush 43, the “Bush Administration” failed to block a merger; but when the FTC opposed certain moves by the Justice Department under Bush 43, the “indepenent FTC” blocked moves by “the Bushe Administration officials” at DOJ. Ah, Washington ….
It would be interesting to see what the courts would do if the President ever specifically orders the FTC to do X and it were to say no, we’ll do Y. The agency hasn’t ever done that, to my knowledge. There have been some minor squabbles about Commissioner appointements and personnel matters, yes. But actual major enforcement, policy, and spending decisions? I’m not aware of refusing Presidential orders there.
April 2, 2010, 1:37 pmChris Travers says:
There’s some method to this madness though. The least populous states are also the states which have the federal government as the largest landowner and hence have more difficulty raising property tax revenues as a result. Consider that in Utah, the federal government owns 60% of the land.
It seems to my mind a great counterbalance that Utah gets a disproportionate say in the amendment process.
April 2, 2010, 1:46 pmJonathan H. Adler says:
I don’t believe the mandate is a tax for a variety of reasons. First and foremost, the legislation does not deem it to be a tax, but calls it a “penalty.” Second, it’s not a tax because it is not treated as a tax (so, for instance, the IRS cannot enforce lack of payment like a tax), and c) if it were a tax, it would potentially be an unconstitutional direct tax due to the lack of apportionment because among other things (and unlike the Social Security tax) it is not structured as a tax on income. I hope to post on this over the weekend.
JHA
April 2, 2010, 1:47 pmJonathan H. Adler says:
Given the small size of the penalties imposed to enforce the individual mandate — far below the cost of a qualifying health insurance plan — invalidating the mandate would not have that great a practical effect on the workability of the legislation. It will need fixes whether or not the mandate is struck down.
JHA
April 2, 2010, 2:01 pmtde says:
No.
I think a “scholar” who believes that Obamacare is unconstitutional, would have his or her credibility enhanced if s/he also believed that it was a great policy.
The reverse would be true as well, as “scholar” who believes that Obamacare is constitutional would have his or her credibility enhanced if s/he also believed it was lousy policy.
Much of the “scholarly” debate is a petty charade – with people just dressing up their personal policy views in legal garb.
April 2, 2010, 2:07 pmepluribus says:
Davo says:
You see, this is the problem with originalism (call it original intent, original understanding, or whatever you prefer). Originally, a martini wasn’t a martini unless it was made with gin. But over the years, tastes have changed, and many dedicated tipplers have found that martinis made with vodka are more pleasurable than those made with gin. I gave up on original gin years ago and can’t ever see why I would switch from vodka. I believe our Constitution is flexible enough to permit me to continue to drink vodka martinis and to spurn original gin.
April 2, 2010, 3:04 pmPerseus says:
I dissent from the view that Humphrey’s Executor v. U.S. was a minor squabble about appointments.
April 2, 2010, 3:40 pmKevin[0] says:
Granted, when one’s personal inclinations conflict with one’s professed interpretation of law, it gives a greater impression of credibility.
However, since the constitution subsumes other law, we would expect your former example to occur far less often than your latter example, so they are not reasonable metrics for relative credibility.
I think consistency of interpretation is more indicative of credibility. By that metric, I believe the VC is generally credible. Of course, credibility need not imply correctness.
April 2, 2010, 4:28 pmdan says:
Correction:
Kopel did not post about the “constitutionality of the health care mandate.” In his own words, he posted about the constitutionality of “Obamacare” — without ever defining that sloppy term. His follow-up post similarly complains about “Obamacare.”
If you really want to “put him on the spot” you should ask him why he uses this politically weighted, ill-defined term instead of a more precise term like “health insurance mandate.” For instance, is he referring to the August version of the House bill? That was what conservatives originally termed “obamacare.”
April 2, 2010, 6:15 pmBrett Bellmore says:
Indeed, I disagree. Support from two thirds of Congress does not translate into requiring that two thirds of the voters support an amendment. Each Congressman is, essentially, a statistical sample of public opinion, and the sample size is quite large. If support for an amendment is widely distributed across the nation, achieving a super-majority in Congress shouldn’t be difficult, even with public support only a little over 50%. The same reasoning goes for state legislatures.
The problem comes in when support for an amendment ISN’T widely distributed, but is instead local. But this problem isn’t a bug, it’s a feature: It’s supposed to be difficult to amend the Constitution in ways which don’t have widely distributed support. We don’t want the coastal states ratifying amendments giving themselves advantages over inland states, for instance. But an easier amendment process would certainly permit this.
The other problem, far more on topic, is that the members of Congress have proven to be really lousy at representing public opinion. This bill would never have passed, otherwise. They’ve become a distinct social class, apart from the public, with distinct opinions and preferences. Every step in improved gerrymandering, higher barriers to ballot access, and campaign ‘reforms’ which disadvantage challengers, has advanced this process.
They don’t submit the amendments they want to the states, because they know the states wouldn’t ratify. They submit them to the judiciary, whose composition they completely control, because they’ve arranged that it will ratify. The amendment process isn’t broken, it’s circumvented because it would WORK: It would prevent the ratification of amendment which are only popular with federal officeholders.
April 2, 2010, 10:44 pmRich Rostrom says:
yankee says: “The state-level bar is even higher since every state except Nevada has a bicameral legislature…”
ITYM Nebraska.
Desiderius says: “I remember Obama during the campaign mentioning that overreliance on the courts to produce social change may have been a misstep…”
Huh. So there’s something I agree with Obama about (though in my interpretation “may have been” is “was”).
JA says: “I think that [Social Security or Medicare/Medicaid]… are legitimate exercises of the taxing and spending power…”
Do you think there are any Constitutional restrictions on Federal spending?
JA also says: “if [the mandate] were a tax, it would potentially be an unconstitutional direct tax due to the lack of apportionment because … it is not structured as a tax on income.”
Would it be considered a “capitation”, i.e. a “head tax”? (And I’ve always been confused about that clause it says a capitation must be apportioned, but ISTM that a head tax is by its nature approportioned by population.)
April 3, 2010, 2:18 amOrenWithAnE says:
Nonsense, a mere 2.6% of the population can block an amendment, since the 95% of Americans live in the 36 most populous states.
Widely distributed support is not enough, it has to be nearly universal support.
April 3, 2010, 7:37 amOwen H. says:
Of course, it could also be that you are mistaken and these acts are in fact Constitutional.
April 3, 2010, 9:10 amDavid Sucher says:
Is there really much difference (to paraphrase Holmes) between compelling to purchase a product and prohibiting to purchase a product?
Seems like one of those distinctions without a difference.
Anyway, you do it every day — clothing. Just because the custom is also very much built-in to human behavior, so what? You (all of us) are compelled to buy and wear clothing. In this situation you don’t have to really use the health care insurance!
April 3, 2010, 12:58 pmDavid Sucher says:
Here is another example: if you want to issue shares of stock in your company, you are compelled in practice to hire an attorney to issue whatever documents that the SC requires.
•••
Look, there is plenty of room for reasonable people to disagree and think that Obamacare is bad policy or too expensive or whatever.
But to state that it is “unconstitutional?”….I am quite glad that Orin has answered this question.
April 3, 2010, 1:16 pmbyomtov says:
Chris Travers,
The least populous states are also the states which have the federal government as the largest landowner and hence have more difficulty raising property tax revenues as a result. Consider that in Utah, the federal government owns 60% of the land.
It seems to my mind a great counterbalance that Utah gets a disproportionate say in the amendment process.
This is not entirely true. The federal government also owns 45% of CA. It owns only about 3% of ND, 6% of SD, and 1.4% of Nebraska, all three of which have substantially smaller populations than Utah.
See here for more.
In any case, why should that affect a state’s power? Suppose a state has lots of useless, essentially uninhabitable, land that is not federally owned. They still couldn’t get much in the way of property taxes out of it.
The whole idea that acreage by itself is somehow entitled to political representation seems very strange to me.
April 3, 2010, 4:19 pmJaimeInTexas (Jam) says:
epluribus: You have heard that there is an amending process, right?
If the Constitution does not grant to the FedGov then the FedGov cannot do. Any other alternatives to amending — emanations or penumbras — are usurpations and tyranny.
April 3, 2010, 8:41 pm