McDonald and The Mandate: A Response to Randy

It is always a pleasure when Randy responds to one of my posts that touches on his areas of expertise. Here are a few thoughts in reply to Randy:

1) I fear there is a misunderstanding as to what comparison I made in my post to which Randy responds. In my post, I compared the blog debate here at the Volokh Conspiracy on the P or I arguments in McDonald with the blog debate on the individual mandate. That is, I was comparing VC posts then and the reactions of VC commenters then to VC posts now and the reactions of VC commenters now. Randy responds by arguing that the legal issues presented by the two cases are quite different. That’s true, but I don’t think I argued to the contrary. On the other hand, Randy’s post today does reaffirm my sense of deja vu on the blog debate: It seems to me that his post responding to me today has a passing similarity in tone and argument to this post responding to me on the road to McDonald. And come to think of it, the post you’re reading right now is kind of like this one replying to Randy. (Am I the only one who is thinking of this scene from Spaceballs right now?)

2) Randy contends that one major difference between the challenge in McDonald and the challenge here is that the challenge in McDonald raised slippery slope problems but that it is the defenders of the mandate who have slippery slope problems. I think Randy has it backwards, however. Supreme Court Justices think in terms of line-drawing, not slippery slopes. A slippery slope may be a reason to draw or not draw a line in a particular place, but it’s the actual line-drawing — the decisionmaking — that they care about as judges. If they have to draw a line, they want it to be a coherent and clear line. And if they can’t draw a coherent and clear line, often they would rather not draw a line at all.

This was a big problem for the petitioners in McDonald because privileges or immunities argument raised an enormous line-drawing problem as to what rights were included or excluded. The petitioners refused to even say what rights were included or excluded. That made the P or I argument in McDonald very unlikely to be adopted, as was clear to many court-followers as soon as the brief was filed (and was clear to others after the oral argument).

In the case of the individual mandate, it is once again the challengers to the law who have the line-drawing problem. To see why, you have to recall the long struggle in Supreme Court decisions with trying to draw lines in the scope of federal power in the area of economic affairs and commercial matters. Over time, the Supreme Court gave up on trying to distinguish between interstate and intrastate in this area — it was just too hard to distinguish the two persuasively, the Justices thought. Justice Kennedy highlighted this long history in his Lopez concurrence that I excerpted on Friday, and included his own view that stare decisis requires adhering to that approach.

[Stare decisis] forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system. Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy.

The challenge to the constitutionality of the individual mandate tries to engage in just the kind of line-drawing that the Justices have concluded they can’t do. It tries to carve out a zone of economic regulation that Congress is forbidden to enact. But exactly what is the zone? Where exactly is the line? I asked that question in a blog post back in April, Drawing Lines in the Commerce Clause Debate on Health Care Reform, and I was interested that no one offered any answers. Perhaps Randy has an answer to that post, and if so, I would be interested to see where he would draw the line between constitutional and unconstitutional. But I think it’s the challengers to the mandate, not the defenders, that have the line-drawing problem.

3) Randy suggests that he is confused by what kind of claim I am making when I discuss the constitutionality of the mandate. As Randy has articulated elsewhere:

When discussing the “constitutionality” of a governmental action, one must distinguish between three senses of ‘constitutionality’: (1) What the Constitution says and means; (2) what the Supreme Court has said and meant, and (3) whether there are five votes on the Supreme Court to uphold or invalidate the action.

To make sure we’re on the same page, I have blogged about (2) and (3). I blogged about (2), what the Supreme Court has said and meant, starting with my post “Some Tentative Thoughts on the Constitutionality of the Individual Mandate Under Current Supreme Court Doctrine.” I blogged about (3) in various places, both directly and indirectly, starting with my post “What Are the Chances that the Courts Will Strike Down the Individual Mandate?”. As for (1), I haven’t blogged on it at all because I am not a constitutional theorist and I’m quite skeptical of grand constitutional theory. So it’s not the kind of question that falls within my area of particular interest or expertise. I very much enjoy reading Randy’s fascinating work in this area, and I realize this is Randy’s approach. But it just happens that it’s not mine, so I haven’t blogged about that.

UPDATE: As a slight amendment to that last point, I should point out that I alluded to (1) briefly in this post, in which I wrote:

I don’t like modern commerce clause doctrine, . . if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, [and] I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause.

I don’t know if that really counts as blogging about (1), but it might, so I wanted to make sure my post wasn’t misleading.