The final event at the annual meeting of the Southeastern Association of Law Schools was a Federalist Society panel on the constitutionality of the centralized health control law. Participants were Randy Barnett (Georgetown, VC), Jack Balkin (Yale), Gillian Metzger (Columbia), and me (Denver, VC). The moderator was Bradley A. Smith (Capital). Available here. The recording is 93 minutes, although the event itself ran a little longer. While the focus was on the two state suits (Virgina, and the 20-state coalition), we also discussed some of the additional issues raised by the five other suits, such as due process rights to medical privacy and decision-making.
Brian says:
What, I wonder, are the “5 other suits”?
I know there’s one filed by the Thomas More Law Center, and one filed by a hospital in Texas which challenges the restriction on doctor-owned hospitals.
The other 3?
August 7, 2010, 7:30 pmGuy says:
For the people who say “if the Congress can do this, It can do anything”, no it can’t. It can’t pass a general law prohibiting murder, for example. This seems much more within the scope of the Commerce Clause than the laws at issue in Lopez and Morrison. Randy is right when he says that the real heart of the argument is that regulation is “improper”, not that it’s not a regulation of interstate commerce. But being “proper” simply requires the law to be consistent with the structure, spirit, and letter of the Constitution, as far as infringing personal liberty goes, that’s covered by the Due Process Clause.
So the whole argument boils down to whether compelling a purchase of something violates the Due Process Clause. And that argument probably fails given that the only penalty for noncompliance is the imposition of a tax.
August 7, 2010, 7:40 pmepluribus says:
Wow, the “centralized health control law.” Is that the official name of the statute, or just one thought up by Glen Beck/Rush Limbaugh (take your pick)?
August 7, 2010, 7:41 pmJohnF says:
Guy–
The feds already have a variety of statutes punishing murders in many contexts.
August 7, 2010, 7:47 pmBrian says:
epluribus,
The law actually bans private health insurance contracts whose terms are not approved by HHS. That means that for the non-very wealthy – who rely upon insurance for major medical costs – healthcare is literally controlled by the federal government.
And that’s what you wanted. So rejoice!
August 7, 2010, 7:47 pmGuy says:
With jurisdictional hooks, that’s why I said “general” law. Murder is not ordinarily a federal offense.
August 7, 2010, 7:49 pmepluribus says:
I guess they didn’t think that “Obamacare” was scary enough. Glen and Rush are very creative.
August 7, 2010, 8:03 pmBrian says:
epluribus,
I actually ignored your obsession with radio and TV, and replied to your statement on the substance. That’s called the principle of interpretive charity. Because I really, really want to like you, epluribus.
And you responded…with yet more talk about Beck and Limbaugh.
But you have all night to respond on the substance. I’ll come back in a few hours, and I assume I’ll find a substance-rich argument, citing the provisions of the law, and explaining why it is inaccurate to call it a “centralized health control law.”
I have every confidence that you can do it.
August 7, 2010, 8:13 pmepluribus says:
I
Actually, Brian, I can. But in your case, I won’t. Look for somebody else to vent your sarcasm and anger on.
August 7, 2010, 8:21 pmPersonFromPorlock says:
But there’s no reason for it not to be: consider the impact on interstate commerce of an unnatural death in terms of things bought (coffins) and not bought (chili dogs). Surely the fact that the deceased won’t be there to partake of Roscoe Filburn’s wheat harvest is constitutional authority enough?
August 7, 2010, 8:56 pmChris Travers says:
Can it pass a law prohibiting anyone who engages in interstate commerce from engaging in murder, and imposing a tax to cover this, making failure to report that a felony?
August 7, 2010, 8:59 pmRobert Klein says:
Of course, you could extend this logic to say that any law that places any limits on the content of private contracts a “***-control” law. Which is why few people take such manufactured names seriously.
August 7, 2010, 9:08 pmChris Travers says:
I think Jack Balkin’s discussion interesting. A lot of the discussion seems to be about “is this a good idea? Should we be happy with it?” while his discussion of necessary and proper strikes me as almost an attempt to torpedo it saying it was “necessary” to get the votes.
August 7, 2010, 9:11 pmRobert Klein says:
I didn’t see it that way. Even Randy Barnett basically concedes that the mandate is necessary for the pre-existing condition regulation to work (which he also concedes is constitutional under current doctrine). Randy’s main argument is that the mandate violates the “proper” prong of the necessary and proper clause (not the “necessary” prong). Balkin didn’t spend a lot of time on the “necessary” prong because it is obvious why it is necessary.
August 7, 2010, 9:16 pmChris Travers says:
When did this event take place?
August 7, 2010, 9:41 pmpolly nomial says:
Is “NObamacare about unconstitutional coercion but the electorate does centralized health control law” better?
August 7, 2010, 9:57 pmll says:
One thing I have been wondering about is the provision that prohibits any court review of regulations or anything else Sibelius and Berwick decide to implement.
How can that be constitutional?
August 7, 2010, 10:00 pmGuy says:
Probably, if they’re engaged in interstate commerce when they commit it (driving on a freeway, for example)
I’m sure the four liberals would buy that line of argument (assuming Kagan doesn’t shock everyone), but I don’t, and it’s not consistent with Lopez, Morrison, and Raich. Besides, there comes a point when it’s obvious the interstate commerce connection is so attenuated as to be a facade, murder’s impact on interstate commerce is no more significant or direct than just about any other type of conduct one can imagine. Regulating the health care industry, on the other hand, is pretty definitely a regulation of interstate commerce, and buying or not buying health insurance is closely and directly connected to interstate commerce. Plus, as others have pointed out the mandate is necessary to make the prohibition on excluding people for preexisting conditions workable, and I haven’t heard anyone argue that that provision is unconstitutional.
August 7, 2010, 10:09 pmGuy says:
I’m not familiar with the relevant language, but the Court has a strong interpretive canon that often causes it to find some means for judicial review of administrative action even when statutes don’t easily admit that interpretation, completely unreviewable agency action presents serious due process concerns that the Court likes to avoid.
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August 8, 2010, 1:14 amChris Travers says:
One thing I didn’t here Gillian address is whether a flat-rate $700 tax can be an income tax. If not, whether low-income people might be penalized only a much smaller amount of they choose not to enrol in Medicaid.
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August 8, 2010, 1:57 amChris Travers says:
Balkin’s discussion of the Constitutional Dialog is interesting, but I think this is actually part of something much larger. I think we are still struggling with the legacy of World War II in terms of how it’s forced many of us to rethink the human condition.
The New Deal came about just before, during, and after WWII, a time that might be called “the height of modernism.” We generally believed that social progress was equivalent to technological progress, and if we put our mind to it, we could solve anything. But WWII was also a war of unparalleled brutality. In this war we saw the holocaust, perpetrated by a party whose leader (Hitler) professed to derive his sense of mystery from science in his letters to Himmler. We saw the development of weapons of unparalleled destructive force which our nation used. And we saw attacks of pure inhumanity, such as the firebombing of civilian centers until the bomber crews could smell the burning human flesh.
WWII gave great life to the budding movements of post-modernism in art, architecture, and philosophy. The influence of post-modernism as a general approach, however, has been quite a bit further than that movement itself. To a large extent I think what’s happening right now is a sort of Neopomo era where the world-view of modernism is collapsing (and with it the older post-modernism that sought to oppose it), and other things are taking its place. With the death of modernism, however, is also the death of the ideal of social progress. The death of this ideal is important because it puts the question of the role of federal government into a different framework. Instead of strong federal government being necessary to build the great society, we see federal government and social progress being increasingly seen as inherently suspect classifications.
Some people look back towards religious authorities they grew up with or those who are not far away. Fundamentalist Christianity falls into this category.
Others leave their religion to find ones where they can break new ground.
Others dig into doctrines of empiricism and asking for data.
Others look to their cultural traditions.
And of course there are still a few modernists/progressives running around.
Of course those are not water-tight categories. I fall into the traditionalist, empiricist, and breaking new ground categories.
But this is also why progressivism is dying or at least a dirty word, and why most politicians in both parties are at least functionally conservative. If the political parties weren’t hypocritical, geared mostly towards furthering their own power and willing to tell any lie to further that interest, we’d have a truly conservative government by now but it wouldn’t be the conservatism of the right. Health care reform is the last gasp of a dying vision.
The “conservative vision” is winning in both parties, but in the end it is also changing. With luck and popular effort, we will see a shift towards more discussion on what that means and where we as a country want to go.
August 8, 2010, 3:07 amPersonFromPorlock says:
Well, yes. But facades are where it’s at. The only question in a particular case is whether five Justices are looking for one. A facade with the Court’s blessing is ‘a facade’ no longer.
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August 8, 2010, 4:00 pmChris Travers says:
I still want to know if they can tax murder and require reporting to the IRS.
August 8, 2010, 5:16 pmGuy says:
My point is that finding this to be within the scope of the commerce clause is not actually an expansion of that scope’s current understanding at all, and there certainly would still be limiting principles left on the commerce clause, and the arguments against this bill are ill-suited for a commerce clause argument, and much better suited for an SDP argument (or would be if Lochner were still the law).
August 8, 2010, 6:53 pmGuy says:
Are you asking about the tax power independent of the commerce power? They probably could, the tax power is pretty broad and mostly only subject to political constraints. Of course, if a person did choose to report the murder, then the criminal punishment for the murder would be determined by the state, not the feds.
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