The Differences Between McDonald and the Challenge to Economic Mandates

In an earlier post, Orin compares the current challenges to the constitutionality of the individual insurance mandate to debates on this blog over the case of McDonald v. Chicago. But there are some marked differences between the two challenges, and I don’t believe he recollects accurately the nature of the debate we had over McDonald.

First, and most importantly, in McDonald, in addition to challenging the Chicago gun ban, which most observers (Orin included) believed would succeed, the challengers were also seeking the outright reversal of longstanding Supreme Court precedents on originalist grounds — in particular, the Slaughter-House Cases, Cruikshank, and Presser. In contrast, in the challenges to the mandate, the challengers are resting their case on their interpretation of existing Supreme Court precedents. In particular, they rely on the long line of cases that analyze the “class of (intrastate) activity” being regulated to see if it is either “economic” or “essential to a broader regulation of interstate commerce.” In no previous case, has the Court ever sanctioned the mandating of economic activity as a Necessary and Proper exercise of the commerce power. The difference between challenging century-old precedents and offering an interpretation of existing precedents can hardly be exaggerated. This difference is already being manifested in the rulings of lower court judges.

Second, and of almost equal importance, in McDonald, the challengers’ theory of the Privilege or Immunities Clause faced several uncertainties including serious “slippery scope” issues. These included identifying what rights are included among the privileges or immunities of citizens of the United States, how such rights are to be identified, what differential treatment, if any, is warranted between citizens and persons, and what laws might be unconstitutional under a revived Privileges or Immunities Clause. Although these difficulties were known and debated in advance, they really came to the fore during a very contentious oral argument when they were raised by both the liberal and conservative sides of the Court. Because of these difficulties, no one who witnessed that argument was optimistic that the Court would revive the Privileges or Immunities Clause. In the challenges to the mandate, however, a judicial refusal to allow Congress to impose “economic mandates” on individuals to effectuate its commerce power would affect one and only one law: the Patients Protection and Affordable Care Act of 2010. This is because it is the only law in American history that ever sought to impose such economic mandates (or so the Court could easily reason, as did Judge Vinson). For example, these challenges would not reach such taxing and spending programs as Social Security or Medicare; nor would they reach a single-payer Medicare-for-everyone scheme, should Congress enact one. By contrast, the government’s “economic decisions” theory (such as it is) faces enormous slippery slope objections all coming to this: what principled limit is there to allowing Congress to mandate that person engage in economic activity–especially on the theory that the Government (and Orin) advance for why this mandate is necessary and proper? Any serious defender of the constitutionality of economic mandates needs to come to grips with these slippery slope concerns, unless one is prepared to argue that there are no judicially-enforced limits to the Commerce and Necessary & Proper Clause–a proposition that has always been rejected by the Supreme Court. When contemplating oral argument in this case, I know which side i would prefer to be arguing.

Third, and less importantly, if the PPACA remains as politically unpopular when the Court considers the challenge as it is today, and one or both houses of Congress have changed parties, and a repeal initiative in Congress is blocked by a counter-majoritarian Senate filibuster or Presidential veto, the Justices will feel more comfortable accepting valid constitutional objections to this law than they would if the law was perceived by them to be popular. All they need to do to strike down the mandate is stick with their previous decisions limiting the scope of “necessity,” all of which involved the regulation of “activity.” Alternatively or secondarily, they could find economic mandates to be an “improper” means for effectuating the commerce power. In contrast, in McDonald, they could strike down the Chicago Gun Ban by merely extending its existing Due Process Clause jurisprudence to the Second Amendment without opening “Pandora’s box.” Add to this the fact that the mandate does not go into effect until 2014, so they will not have the burden of striking down a system that is already up and running (as was the gun ban in Chicago).

Finally, I think Orin misremembers the nature of the debate he and I had about McDonald. My claim then was that “the Constitution” protected the right to keep and bear arms against state infringement as a privilege or immunity of citizenship–as ultimately contended by Justice Thomas in his McDonald dissent, and never denied by Justice Alito in his majority opinion in McDonald. Orin countered by characterizing my position as “the Constitution as it ought to be,” as opposed “the Constitution as it is.” I found this distinction baffling and we debated several rounds on what it means to claim that a statute is “unconstitutional.” To the extent I understood his position–and I never felt confident that I did–Orin seemed to be basing his view of “constitutionality” solely on his prediction of what the Court would do, rather than any substantive analysis of the Constitution or even of existing doctrine. My view of “constitutionality” did not rest on such predictions, so I did not need to offer any. Indeed, I did not see how you could argue Orin’s conception of constitutionality to a court: “Justices, may it please the Court. The Constitution protects the right to keep and bear arms as an aspect of the Due Process Clause because I predict this is what you will hold. I reserve the balance of my time for rebuttal.” In response, Orin said as an advocate he would employ the full range of constitutional analysis and argument, but I simply did not see how this connected up with his view of “constitutionality” which declined any reliance upon or even any mention of these modes of analysis. As I recall, THIS was what we were debating.

Of course, because the challengers of the mandate are basing their challenge on their reading of existing doctrine, rather than any claim about the original meaning of the text, Orin can’t offer the same critique. Instead, he now seems to be basing his view of “constitutionality” on some combination of his predictive prowess (hence his fond recollection of McDonald) and an exceedingly confident interpretation of Supreme Court doctrine apparently based on his view of its underlying rationale. I must confess that I am again uncertain about the nature of his interpretive claims about how to read precedent, though I strongly suspect that his reading of doctrine is, once again, actually a product of his prediction of how the Court will rule. In essence, he seems to be predicting how the Justices will write the opinion upholding the mandate, but I could be wrong about this. Once again, neither Ilya, nor Jonathon, nor I are basing our claims about existing doctrine on our prediction of how the Supreme Court will actually rule. If the challenge was decided today, I think the best case scenario for upholding the law would be 6-3, and best case scenario for striking it down would be 5-4. But notice that, like Orin’s predictions, these are completely nonfalsifiable until the decision is handed down. Unlike McDonald, however, this time Orin IS also offering his own reading of existing doctrine, so the nature of this disagreement is different than before. And unlike McDonald, in which the Seventh Circuit denied the Privileges or Immunities Clause (and even the Due Process Clause) claim on the basis of precedent, this time, Orin is in the position of challenging an opinion of a sitting federal district court judge, rather than merely his cobloggers. Hence his complaint about the “missing argument.” So, at this point, he cannot resort to mere prediction of how the district court will rule and must move on to discuss his reading of the cases versus those of Judge Vinson.

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