My earlier post on Judge Vinson’s opinion seems to have caused a lot of confusion, so I thought I would try again to express my concerns with Judge Vinson’s opinion a bit more clearly.
The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important. In the critical passage on the Necessary and Proper clause, on page 62-63, Judge Vinson relies primarily on original meaning, specifically Federalist No. 33.
Thus, for example, on page 60, Judge Vinson rejects one of the arguments of amici on the ground that the result of the amici’s argument “would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I. Surely this is not what the Founders anticipated, nor how that Clause should operate.” And critically, on Page 62-63, Judge Vinson writes that the mandate cannot be constitutional because “[i]f Congress is allowed to define the scope of its power merely by arguing that a provision is ‘necessary’ to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the ‘perfectly harmless’ part of the Constitution that Hamilton assured us it was [in Federalist No. 33], and moves that much closer to becoming the ‘hideous monster [with] devouring jaws’ that he assured us it was not.”
If you are an originalist, as many VC readers seem to be, this is a very appealing argument. If you’re a libertarian, as many VC readers seem to be, this is also a very appealing argument. But there’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent. See, e.g, Winslow v. F.E.R.C., 587 F.3d 1133. 1135 (D.C. Cir. 2009) (Kavanaugh, J.) (“Vertical stare decisis — both in letter and in spirit — is a critical aspect of our hierarchical Judiciary headed by ‘one supreme Court.’”) (citing U.S. Const. art. III, § 1). And when Supreme Court precedent conflicts with original meaning, Judge Vinson is bound to follow the former. Of course, that doesn’t mean a District Court can’t discuss the original meaning of a constitutional provision in his opinion. But where the original meaning and case precedents conflict, the judge is stuck: Because he is bound by Supreme Court doctrine, the judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning.
If you’re going to take that view, I think you have to confront the doctrinal test that the U.S. Supreme Court offered in a majority opinion just a few months ago in United States v. Comstock:
[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.
It seems to me that when the Supreme Court says that this is what “we look to see” when determining if a power falls within the Constitution, then that is a doctrinal test to which a trial judge is bound under the principle of stare decisis. That’s especially true when a Justice wrote a concurring opinion treating it as a doctrinal test, and no one corrected him. At the very least, this is language worth mentioning to explain why it’s not a test you’re think you’re bound to as a trial judge. But Judge Vinson doesn’t even mention this language. Instead, he focuses on Alexander Hamilton and Federalist No. 33. Given the gap between the original meaning of the scope of federal power and the case precedents, I don’t think this approach is persuasive for a District Court judge to take.
Steve says:
Comstock discusses “five considerations, taken together,” that justified the exercise of legislative power at issue in that case. In his decision, Judge Vinson discussed Comstock and pondered the issue of whether this language should be taken to create a “five-factor test.” He concluded that if it were treated as a five-factor test, the health care law would fail at least the second and fifth factors, but that he would nonetheless treat the considerations merely as “considerations” and conduct a more searching analysis.
It sounds like you are saying that only the first of the five considerations outlined in Comstock – whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power – is the appropriate doctrinal test. The other four “considerations” would merely constitute additional reasons supporting the Court’s decision.
I agree that Justice Kennedy’s concurrence specifically identifies the first factor as the correct test under the Necessary and Proper Clause. But then, why did the Court go on to identify four additional factors without identifying them as optional or less important than the first factor?
February 1, 2011, 5:49 pmThomas Highway says:
then that is a doctrinal test to which a trial judge is bound under the principle of stare decisis.
So this was not a matter of first impression for the Court? And if not, which case (or cases) was squarely on point?
February 1, 2011, 5:54 pmJustin says:
I should point out – and this may solve Steve’s paradox – that there is no five-factor Comstock test. The court gave five reasons in Comstock why the law was valid, but did not purport to list the relevant factors as a general manner, exclude other factors, or create any “five-factor” test. This what I mean by “there is no Comstock test.”
Justice Kennedy states that the Court in Comstock adopted a “Sabri test” of sorts:
The Court concludes that, when determining whether Congress has the authority to enact a specific law under the Necessary and Proper Clause, we look “to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” Ante , at 6 (suggesting that Sabri v. United States , 541 U. S. 600, 605 (2004) , adopts a “means-ends rationality” test).
If there is, in fact, a Comstock test, then that is the test. The five considerations in Comstock are:
together. They in-clude: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in lightof the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.
Breyer would not be so stupid as to create a “the breadth of the Necessary and Proper Clause” balancing factor, because, well, it’s static. And to the extent Breyer was creating a “test” on the other 4 factors, it would create an unprecedented reach of judicial power into determining the wisdom of Congressional action. If Breyer was really saying something so unbelievably unprecedented, he would have stated it more clearly.
February 1, 2011, 5:59 pmHm. says:
The problem I see with relying on the Federalist Papers, especially those written by Hamilton, is that the application of the Constitution in the immediate post-ratification period and the description of the Constitution in the Federalist Papers are not always the same.
So, how do you determine that the Federalist Papers accurately reflect the original meaning of the Constitution, when the main author of the Federalist Papers then authored contradictory reports in his first year of government?
Or, how can the Federalist Papers be a legitimate source of the single, original meaning if the papers themselves are contradictory? I have not read all of them, but I am fairly certain that Hamilton argued that N&P allowed activities that were ‘reasonably related’ to Congressional powers, rather than just activities that were absolutely necessary. Whereas, as Vinson points out, Fed. No. 33 says the opposite. Which is the ‘original meaning’: what Hamilton wrote before the Constitution was ratified or what Hamilton did and argued once the government actually existed?
On a side note, here’s what Madison wrote in Federalist 44:
IANAL or a legal scholar, so I wouldn’t be surprised if I’m misunderstanding something.
February 1, 2011, 6:01 pmMike says:
I know precedent and the original meaning differ. But aren’t we all playing this game where we pretend that the Supreme Court doesn’t amend the constitution by interpretation (you know, instead of by the “official” method in Article V)?
Has the Supreme Court ever said that “we know the original meaning of X is Y, but we now say that X means Z — thus by stare decisis, you must interpret X to mean Z and not what we say the original meaning was”?
February 1, 2011, 6:10 pmAnderson says:
Whereas, as Vinson points out, Fed. No. 33 says the opposite.
He is looking at a different Fed. # 33 than my copy, then, because in mine, Hamilton does not say that.
February 1, 2011, 6:11 pmAlaska Jack says:
Hmm. Well, federal judges do swear an oath to “bear true faith and allegiance to … the constitution.”
http://en.wikipedia.org/wiki/Oath_of_office#Federal_judicial_oaths
Do they swear an oath to do the same to supreme court decisions?
– aj
February 1, 2011, 6:16 pmHm. says:
I’m using Orin’s quote of Vinson, who quotes Hamilton in a way that, to me, insinuates a much stricter interpretation of the N&P Clause than how I understand Hamilton to have argued it during his tenure as the first Treasury Secretary.
February 1, 2011, 6:16 pmSk says:
1) you claim that Vinson bounces back and forth between interpreting the original meaning of the Constitution, and interpreting case law (which has expanded the power of the Necessary and Proper Clause). Note you don’t support this argument-you only quote the case in which Vinson interprets original meaning.
Furthermore, you don’t establish what is wrong with this approach (you argue later that trial judges shouldn’t do it because trial judges should follow Supreme Court caselaw. But you dont’ establish specifically why blending the two approaches, as implied earlier in the post, is unacceptable). In other words, suppose there is the Constitution, and case A, B, and C. Your unspoken belief seems to be that a judge can appeal to the Constitution, or appeal to A,B, and C, but not any other combination. Why? Why not appeal to the Constitution as well as A, but ignore B and C, or Constitution and B and C, but not A, and so on? In essence, once the originalist horse is out of the barn (“Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution”) it seems arbitrary to attempt to reestablish rhetorical rules (Constitution or A/B/C, but no other combination is allowed!).
2) Under your view, trial judges do not do the Constitution. They only do case law (perhaps it is that trial judges don’t do the Constitution unless there is not case law). I’m not a lawyer, so can’t argue for or against this viewpoint, but is it really standard? My assumption is that at every level of court, there is case law and Supreme Court precedent-thus, it would seem to an outsider that if this is truly the expectation of judicial behavior, then no ‘Constitutional’ appeals should be allowed below the Supreme Court level.
And if this is the case, then aren’t appeals to the Constitution effectively impossible? In essence, at levels below the Supreme Court, arguments for and against, as well as findings by the Court, will be done within the intellectual space created by caselaw (which themselves should be simple historical arguments-read the old cases, construct an argument based on your reading, and hope either case law supports your side or that your opponent hasn’t done his homework).
Yet somehow, with an appeal to the Supreme Court level, a whole new ‘intellectual space’ is now legitimate, and the arguments appealing to the Constitution can be made. How does this shift occur?
Take a frivolous hypothetical: can police search a flower bed without a warrant? Presumably, below the ‘magic level’ where Constitutional arguments are legitimate (which I am assuming to be the Supreme Court), both sides simply research case law and argue ‘yes’ or ‘no’ based on historical precedent. Then, the appeal to the ‘magic level’ , arguents are now made based on Constitutional interpretation? In fact, to appeal to that ‘magic level,’ one would have to construct a whole new argument to even stand a chance at appeal? My layman’s perception is that Constitutional questions in cases such as this (‘how close to an abortion clinic can you protest?’ ‘Can you ban handguns in libraries? can you burn flags in malls? whatever) are omnipresent.
Sk
February 1, 2011, 6:19 pmJon Shields says:
Steve, judge Vinson admitted that the mandate was necessary for the pre-existing condition regulations to work. He conceded the point. The five factors are irrelevant.
If we were looking at the law in Comstock (much less necessary than the individual mandate), the five factors may become relevant. But with a law whose necessity is obvious (according to Vinson himself), the five factors are irrelevant.
February 1, 2011, 6:21 pmSteve says:
Judge Vinson isn’t exactly engaging in a close reading of Federalist #33. His argument is as follows: (1) Hamilton assured us the Necessary and Proper Clause would not be a hideous monster with devouring jaws; (2) upholding the individual mandate would make the Necessary and Proper Clause into a hideous monster with devouring jaws; and therefore (3) if Hamilton had any inkling that 21st century politicians would attempt to justify an individual mandate by reference to the Necessary and Proper Clause, he would have become one of the staunchest opponents of ratifying the Constitution.
I’m not even exaggerating here. That’s what he wrote. Yes, it’s a tightly-reasoned and persuasive opinion, if you’re the type of person who thought the “gather your armies” ad was a documentary.
February 1, 2011, 6:22 pmLC says:
The Supreme Court said in Lopez and Morrison (when it was ever more liberal because it had O’conner, BTW) that the commerce clause and its N&P extension must be finite. Hence, any interpretation that would leave “no limits” is ipso facto invalid.
All this judge then had to do, was show that the reasoning arguing that this law is constitutional would make ANY law constitutional. Presto, law gone.
February 1, 2011, 6:24 pmJon Shields says:
Sk, district court judges can of course appeal to the Constitution through originalist arguments — if the result is not foreclosed by precedent. But when precedent and originalism conflicts, the court must follow precedent.
In this case, precedent and what Vinson considered originalism conflicted.
Vinson said:
“[i]f Congress is allowed to define the scope of its power merely by arguing that a provision is ‘necessary’ to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the ‘perfectly harmless’ part of the Constitution that Hamilton assured us it was [in Federalist No. 33], and moves that much closer to becoming the ‘hideous monster [with] devouring jaws’ that he assured us it was not.””
But Comstock and a line of cases before Comstock rules out that originalist interpretation. That interpretation is the exact opposite of the holding in Comstock. He is essentially saying “I don’t like Comstock, since Hamilton assured us …” But that is foreclosed by precedent.
February 1, 2011, 6:25 pmAnderson says:
Ewwwww, I just looked at Vinson’s op where he quotes no. 33. What a bad judge. Good luck passing a law-school exam with crap like that.
Given the presumption of a statute’s constitutionality, I think a district judge should have to have clear precedent in favor of unconstitutionality before striking a statute. Otherwise, punt it upstairs, regretfully or not.
February 1, 2011, 6:27 pmJon Shields says:
LC, that is nonsense. If the mandate were upheld, the guns free school zone still could not be enacted, nor could the violence against women act.
February 1, 2011, 6:27 pmSteve says:
That sounds like a very difficult thing to establish. As a matter of logic, how would one go about proving that? Pose the rhetorical question “if this law is permissible, then what law isn’t permissible?” and watch your question echo out into the void?
February 1, 2011, 6:28 pmPragmaticist says:
If a judge believes that the proper way to interpret the Constitution is to judge how much weight to give to the original meaning of the Constitution and how much weight to give to Supreme Court precedents, then the judge might judge that Winslow v. F.E.R.C., being itself a Supreme Court precedent, shouldn’t trump the overriding obligation to give proper weight to the original meaning of the Constitution.
February 1, 2011, 6:29 pmSteve says:
What he didn’t concede, though, is that you can pass a law so long as you show that it’s necessary and proper in order to make some other law function properly, even if the other law indisputably relies upon an enumerated power.
February 1, 2011, 6:33 pmarbitrary aardvark says:
Coming out of law school, I had a view of what district judges would do similar to orin’s: I expected that they would look to supreme court precedents and follow them. Turns out, they have little incentive to do so. Ok, they get reversed 1% of the time. So what?
February 1, 2011, 6:34 pmThey get paid the same. And in that 99% of the time, they get to do what they want. And in the 1% when they get reversed, it’s often years later. This is a rare case where Vinson is well aware the case will go further, that cert is likely,and he might be overturned. He still gets to have some input into the eventual resolution of the case, by shaping the way it gets presented to the high court. Also the case could end up getting mooted depending on political developments – political developments affected by his decision. Even if he gets reversed, he gets paid the same. There’s very little incentive for federal judges not to rule however they please,and no practical enforcement mechanism for the rule of stare decisis.
Anderson says:
Dibs however on my forthcoming bestselling title from Regnery, The Hideous Monster with Devouring Jaws!
… Pragmaticist, assuming for the moment you are not a troll, the Constitution does not read itself. It must be interpreted. And the definitive authority for its interpretation is the SCOTUS. We do not choose between “Constitution” and “Supreme Court.”
Roman Catholics are bound by what the Magisterium says the Bible means, and they do not have much use for Protestants who say “aw, but here’s what *I* think it says!” The rule of law is catholic.
February 1, 2011, 6:34 pmDilan Esper says:
District Court judges are not required to merely check to see if there’s a case on precisely these facts. They are required to faithfully apply the legal rules set out by the Supreme Court. This includes when the district judge thinks they might lead to an improperly expansive congressional power without limits.
Vinson’s discussion of necessary and proper (and particularly the holding that despite 200 years of caselaw that never announced a separate rule for what is “proper”, he gets to decide that even a regulation that fits within the Supreme Court’s broad conception of the N&P clause is proper) is based on first principles and his conception that any other rule would be too broad, not based on what the Supreme Court has actually said (which is that, indeed, Congressional power is really broad).
February 1, 2011, 6:36 pmJon Shields says:
Except what you just said is exactly the holding of Comstock. The federal government doesn’t need to hold people in prison. It chooses to. It therefore creates the problem that the statute in Comstock was meant to fix. What you just said Vinson “didn’t concede” was literally the entire point of Comstock.
February 1, 2011, 6:36 pmJoe (not that one) says:
All this judge then had to do, was show that the reasoning arguing that this law is constitutional would make ANY law constitutional. Presto, law gone.
Please explain further. Mandate opponents have been saying this over and over and over again, but there is a missing logical step between “requiring someone to purchase a product that is unquestionably part of an interstate commercial market is constitutional” and “any Congressional action is authorized by the Commerce Clause and N&P Clause.” I just don’t get why the former leads to the latter, yet this seems to be the crux of the anti-mandate argument. It’s really frustrating.
February 1, 2011, 6:37 pmDilan Esper says:
One aspect of that Constitution is Article III, which designates that lower federal courts created by Congress are inferior tribunals to the Supreme Court.
February 1, 2011, 6:38 pmLiberal Chris says:
I continue to be baffled by Judge Vinson’s contention, without much analysis, that “if Congress can regulate inactivity under the commerce clause, it can regulate everything.” Why?
Let’s just use the example of Lopez and Morrison. If Congress can regulate “inactivity,” does that contradict Lopez and Morrison somehow? Could the Violence Against Women Act and the Gun Free School Zones Act be constitutional as regulation of some form of economic inactivity? No, those acts (according to the Supreme Court) don’t address economic activity at all so they are unconstitutional. How would the inactivity/activity distinction change anything?
It is a distinction that proves nothing. And saying over and over again that if congress can regulate economic inactivity it can regulate anything doesn’t make it so.
February 1, 2011, 6:42 pmSteve says:
That’s a very good point, and if you look at Part II of Justice Kennedy’s Comstock concurrence, he appears to be on board with exactly that argument. He does leave some room, however, for an additional requirement that the law in question must also be “discrete and narrow,” an important point if you believe the ultimate fate of the health care law is entirely up to Kennedy.
Let us agree that the mandate has the legitimate purpose of ensuring that the other provisions of the health care law do not drive the entire system into bankruptcy. Will Justice Kennedy agree that the mandate is a “discrete and narrow” method of solving that problem?
February 1, 2011, 6:45 pmAnderson says:
Sorry to be dull, but the “if X, then anything!” argument *cannot* be the law.
It was the argument vs. the Bank of the U.S. It’s been the argument that lost every time the ratchet turned on the Commerce Clause.
February 1, 2011, 6:47 pmSenX says:
Assuming OK is right and even that the supreme court says the mandate is ok, when does this abuse of power ever get a limit? Congress eventually tries something so absurd (eat broccoli) that the supreme court sets limits on the power they have already given?
February 1, 2011, 6:48 pmJoe (not that one) says:
+1
And I’m willing to consider arguments on this score. I really am. But the only thing I’ve heard so far is “well, if almost any regulation of commerce is authorized by the Commerce Clause, Congress can just say that [insert absurd hypothetical here] is the regulation of commerce.” Which, of course, is the whole point of Lopez and Morrison, but whatever.
February 1, 2011, 6:50 pmSarcastro says:
Thanks, SenX! It wouldn’t be a thread if somoene didn’t say “but where are the limits?! No one has ever ever answered me about what limits would be!”
Because this has not been answered many times. Though, to be fair, I’d been googling ‘broccoli health care mandate’ every morning for years before my efforts bore fruit.
February 1, 2011, 6:54 pmMarkO says:
Because I believe Obamacare to be illegal, I can only hope that the government argues Kerr’s position.
February 1, 2011, 6:56 pmcaptcrisis says:
The Federalist Papers are not a good guide to what the framers intended.
They were written by one man (Hamilton) who wanted a monarchical President and an aristocratic for-life Senate, and was so opposed to the direction of the debates that he left midway through the Convention; by another man (Jay) who was not at the Convention at all and whose Anglophilia would have predisposed him to a viewpoint like Hamilton’s; and by a third (Madison) who had an unrestricted view of federal power that had been rejected by the other delegates.
When Hamilton wrote that the necessary and proper clause was “perfectly harmless”, he did not mean it. He (like the other two) was trying to soft-pedal the scope of federal power so as to make the proposed constitution palatable.
February 1, 2011, 6:56 pmMario says:
This one pretty smart guy once said that a courageous judicial decision was “[a] judicial decision that stretches the law but nicely matches the observer’s policy preferences.” I think that was a pretty apt insight and I think that explains some of the hubbub here–especially if we amend “law” to “binding law.”
February 1, 2011, 6:56 pmStephen Lathrop says:
I’ll say it again. Judges who purport to tell you what the founders thought aren’t doing legal analysis, they are making up evidence. The question of what the founders thought, as complex as it may be, is a factual question. If it is to come into a legal argument, then a respectable court ought to get the testimony of historical experts.
And then there is the question of what the founders would have thought—as in would have thought about the matter before the court. Any time you are talking about history and anything like “would have” emerges, you are just making it up. Vinson did that in this decision.
February 1, 2011, 6:59 pmJoe (not that one) says:
before my efforts bore fruit
No, you’re misunderstanding. The horrible nightmare that we should all fear is that Congress will start mandating that we purchase BROCCOLI, which is a VEGETABLE. Fruit is OK.
(What was that statutory interpretation case where the Court said that a law assessing tariffs on vegetables — but not fruit — applied to tomatoes and squash because they were “savory,” notwithstanding the technical fruity nature of those types of produce?)
February 1, 2011, 7:00 pmSteve says:
You are thinking of Nix v. Hedden. “Yes, tomatoes are fruit, but Congress was probably thinking of them as vegetables, so we’ll call them vegetables!”
February 1, 2011, 7:03 pmJRL says:
Unquestionably indeed. Don’t forget obviously, clearly, it is well settled, it goes without saying, etc.
February 1, 2011, 7:06 pmcatchy says:
Sorry to be dull, but the “if X, then anything!” argument *cannot* be the law.
I have yet to read anything from Somin or Adler that wouldn’t have also ruled out the 1st Bank of the US, the 2nd Militia Act, etc.
They owe us an explanation for why their slippery slope worries apply to HCR but not there.
February 1, 2011, 7:08 pm1040 says:
Bore fruit? I thought the debate was about whether broccoli is a flower or a vegetable!
February 1, 2011, 7:09 pmJRL says:
February 1, 2011, 7:10 pmI’m sure I am just being emotional, but what case precedents expressly disavow relation to the original meaning of the constitution?
Chris says:
I don’t think the Comstock description of Sabri is meant to be a freestanding test, and I don’t think Kennedy contends that the Court treats it as one. The parenthetical after Sabri notes that rationality is the measure of the fit between means and ends. That’s also what I take the term “implementation” to express. But the individual mandate is not being used as a means to reach the end of regulating insurers by banning pre-existing-coverage discrimination; the individual mandate is being used to remedy a side-effect of that regulation, which is very different. It’s true that Comstock also dealt with the remedy to a side effect, but that’s why I don’t think its implementation language–which appears only in 2 of the five “considerations”–is any sort of test. Having prisons implements various powers, but that’s only the first step; the extent of federal power to counteract side-effects of federal prisons is necessarily far more constrained than the McCulloch/Sabri rules on discretion in choice of means.
The key task at this point for defenders of the I/8/18-Comstock defense of the individual mandate is to articulate limits on the anti-side-effect power even if we keep the individual mandate. Comstock says that a “modest” and “narrow” remedy to side effects is OK, but that’s a far cry from Orin’s remedying-any-side-effects-if-there’s-a-rational-basis rule.
February 1, 2011, 7:12 pmJoe (not that one) says:
Unquestionably indeed. Don’t forget obviously, clearly, it is well settled, it goes without saying, etc.
Fair point. But is there any argument that health insurance policies are sold through an interstate commercial market?
February 1, 2011, 7:12 pmHm. says:
This is why I think the Federalist Papers are total bunk when somebody tries to use them to establish “what the Founders thoughts.” What were the Federalist Papers in the first place? They were essays written by people trying to convince other people to ratify the Constitution. They were not constitutional scholarship. They were not primarily legal theory. They were political documents.
The fact that, as it has been pointed out to me on this very blog, Hamilton said one thing in the Papers and then did the opposite in the first year of government alone proves the above point. Either Hamilton was a liar or he was a politician. Either way, people tend to forget that the primary purpose of the Federalist Papers — the purpose we are all taught about in elementary and high school — was, at the danger of being repetitive, to convince people to ratify the Constitution.
February 1, 2011, 7:17 pmGov98 says:
Either Hamilton was a liar or he was a politician.
The use of the disjunctive here has totally thrown me for a loop.
February 1, 2011, 7:23 pmNo Theory of Jurisprudence says:
bla bla bla bla obligatory congressional finding that not-purchasing health care is an economic activity should be given the deference afforded similarly situated congressional findings etc.
February 1, 2011, 7:24 pmNot Anonymus says:
Yes, but the Constitution is a “living, breathing document.” Why can’t Judge Vinson play that game as well as Breyer or Ginsburg or Obama or “are you serious?” Pelosi?
February 1, 2011, 7:24 pmIAdmitIAmCrazy says:
Vow, what a brilliant quote! I truly love it.
I’d second the proposition, as if an agnostic could help: You should become the Pope’s Camerlengo, hallelujah ;-)
February 1, 2011, 7:26 pm1040 says:
Prof. Kerr, I was taught at school (by which I mean, the blogosphere) that that last word is spelt a-c-t-i-v-i-s-m. Or is that, er, activity only performed by arugula eaters on the left coast?
February 1, 2011, 7:28 pmSteve says:
What Judge Vinson is applying is a form of intergenerational estoppel. The theory is that all these promises were made to the body politic at the time of ratification, they form part of the original understanding of the ratifiers, and therefore the promises can’t be taken back. The funny thing is that John Marshall felt so incredibly unconstrained by any of these promises even though his decisions were much closer in time to the period when they were made.
February 1, 2011, 7:31 pmHm. says:
I knew it wouldn’t fail. ;)
February 1, 2011, 7:33 pmNot Anonymus says:
Consumers cannot purchase health insurance across state lines, as I understand it. In any case, a person who is not buying anything cannot logically be accused of engaging in commerce at all. That’s the crux of the problem with the mandate.
February 1, 2011, 7:35 pmcaptcrisis says:
P.S. My comment above is indebted (to put it kindly) to Charles Mee, “The Genius of the People”, a simply written but (as far as it goes) factual account of the Convention and the ratification.
February 1, 2011, 7:36 pmDilan Esper says:
You want the cynical answer or the real one?
The cynical answer: because he’ll get reversed, whereas Breyer and Ginsburg, if they convince 3 colleagues, are final.
The real answer: because our legal system actually depends on lower courts following appellate and Supreme Court holdings. The Supreme Court can only take a handful of cases out of the number that arise out of the courts, so the system will only work (in the sense of Supreme Court decisions binding the lower courts) if lower courts conscientiously apply precedent.
I’m not going to defend Supreme Court decisions that go off the reservation in various ways (though Scalia and Thomas are just as guilty of this as the people you mention), but at least if the Supreme Court goes off the reservation, the lower courts can adjust accordingly. If lower courts systematically do it, scarce judicial resources have to be committed to correcting it.
February 1, 2011, 7:38 pmSteve says:
Consumers cannot purchase health insurance across state lines, as I understand it.
Consumers purchase insurance across state lines all the time. However, an insurance company cannot sell you insurance unless they comply with the rules put in place by the state where you live. Congress could, if it chose to, eliminate this system by passing a federal regulatory scheme that would preempt the field.
February 1, 2011, 7:41 pmSteve says:
It’s not exactly “factual” to say that Hamilton “was so opposed to the direction of the debates that he left midway through the Convention.” It was the other two delegates from New York (staunch anti-federalists appointed by George Clinton) who abandoned the convention at the halfway point. Hamilton continued to participate in the convention, where he vigorously participated in debates and served on committees. It would be odd, to say the least, if someone who was so disappointed in the Constitution that he abandoned the drafting convention suddenly turned around and became the document’s staunchest defender, to the point of publishing 50+ essays in support of ratification.
February 1, 2011, 7:49 pmVern says:
Mr. Kerr, I think you’re giving short shrift to Vinson’s use of Lopez and Morrison in his case as the guiding precedents. While he does also drop in originalist phrases like “surely not what the founding fathers wanted” the bulk of the reasoning is well tied to critical findings in Lopez and Morrison, such as “this is the sort of piling ‘inference upon inference’ rejected in Lopez, supra, 514 U.S. at 567, and subsequently described in Morrison as ‘unworkable if we are to maintain the Constitution’s enumeration of powers.’ Supra, 529 U.S. at 615.21.” on pg 50.
He was also very careful to enunciate many alternative ways that the Congress could have constructed the law so as not to raise these types of issues – very much consistent with the findings in Lopez, and reminiscent of the language in Heller.
In other words, the finding is not even that the goals of this Health Care Reform Act are unconstitutional, but rather than this particular method of implementing those goals go beyond the options available under the Constitution.
February 1, 2011, 7:51 pmloki13 says:
I’m posting briefly on the practicalities of this (I agree with everything in the OP by OK):
Judge Vinson is on senior status. While I think he is an honorable man and a judge, I never had any doubt in my mind as to which way this case would fall after assignment. In addition, given his current status, he isn’t looking for a promotion to the 11th Cir. Ct. of Appeals. Which may explain things.
This was certainly a big, high-profile case. And, most likely, his last. However, I think it was a mistake to write the opinion with an eye toward public reception (as appears to be the case). The 11th is a fairly conservative circuit, despite the presence of some like Barkett, and might be inclined to have a favorable reception to legal arguments against the health care mandate. I think the prudent course would have been either to affirm (with a long section about how bad it was yada yada constrained by precedent), or, in the alternative, given a lengthy, close reading of precedent that shows how his opinion is squarely following SCOTUS (even if it is a little disingenuous).
No offense to Barnett, and certainly no offense to Hamilton, but this type of opinion that is relying on fairly extreme legal bloggers/academics to carry weight as well first principles immediately puts this it the category of “mess to be cleaned up” – which might make a difference at the margins for votes on the 11th.
Just my two cents.
February 1, 2011, 7:52 pmNot Anonymus says:
I don’t think that’s true. I think hey have to incorporate a subsidiary in the purchaser’s state.
February 1, 2011, 7:57 pmManuel Lopez says:
None, and you’re right that this is the critical point. You have to call their bluff: are the judges merely cynical in their allegiance to the Constitution in its basic premise, that our federal government is one of enumerated and delegated powers only. If not, they have to be pressed to say how any limits still remain, if Congress may lawfully compel an individual to purchase a product on the theory that his failure to purchase it would be an act of interstate commerce. Don’t let the judges cloak themselves in the aura of the Constitution as they are dismantling it–they may prevail, but it should be forced into the light for what it is.
February 1, 2011, 7:57 pmBrett Bellmore says:
Never. Congress decides who can be a Supreme court Justice. You can’t become one if you’re suspected of being willing to draw a line anywhere Congress might even in it’s wildest dreams be thinking of going.
The mandate is probably going to be upheld, and if it isn’t right now, by a margin of 5-4, it will be once one of the 5 gets replaced. The last limits on federal power will fall. Then Congress, in an excess of exuberance, will drop the pretense that it cares AT ALL about the Constitution, and we’ll have a revolution. And the cycle will begin again.
February 1, 2011, 8:05 pmAlaska Jack says:
“Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood. … For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of poverty and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?
“After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting.
“Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”
February 1, 2011, 8:19 pmJoe (not that one) says:
I don’t think that’s true. I think hey have to incorporate a subsidiary in the purchaser’s state.
This is incorrect with one exception (NY, which imposes admitted asset requirements that are so onerous that most insurers usually have a separate sub doing business there). Most companies do busniess in multiple non-NY states.
(I was an insurance regulatory lawyer in a previous life.)
February 1, 2011, 8:26 pmOrenWithAnE says:
I’ve often thought that lower judges should be able to simply “upwards certify” such questions, perhaps even compelling the SCOTUS to take a case (as opposed to the normal voluntary cert). Oftentimes the Court is not the beacon of clarity we might expect.
Actually, the GFSZA was reenacted, nearly identically, except this time with a “firearm that has traveled in interstate commerce” element. 8 Circuits have heard challenges to the new formulation, all 8 have upheld GFSZA v1.01.
February 1, 2011, 8:26 pmG.R. Mead says:
And you put your finger on a structural constraint of progressive judicial activism. What if a substantial minority of district judges — who have original jurisdiction — just decide that we are a nation of laws and not merely of 545 men and women? (435+100+1+9 — if you are doing the math — 290 = 218+67+ 5, if you want to be minimalist.)
We are reaching an era of structural testing of our system and the judiciary is not likely to be immune to structural testing. I see the immediate strains of this testing in the judicial system nearly every day.
The Supreme Court is not enabled to discipline naughty district judges who read the founding law in plain terms without the dross of 150 years of progressive judicial espalier pruning and shaping of the resistant Constitution trying to live out the shape of its own organic growth along with with the activity of the people — instead of the abstract shape dictated by progressive thought.
Assume a significant minority of District Judges took such a posture. Assume that a Congress is not politically able to meet progressive calls to impeach them.
What would happen ? Is this a REALLY break down in law — or merely a breakdown of order? — And where does the responsibility of that breakdown in order lie? — Does it lie with those who resort to the founding law, or those who torture language, procedure and incremental precedential growth that overtops plain limitations to prevent “standing” against the citizens they allegedly serve to prevent valid legal arguments against abuses of the constitutional system that their taxes pay for?
Who is responsible for such a break down in the judicial order? Who will restore it? To WHAT more critivcally will it be “restored.” once that order breaks down? What rationale limits restoration of order to merely latest arguable “restore point” when others earlier, and less compromised by weight of precedential decadence are equally valid in such a state of disorder — especially since the latest system state is itself responsible for the breakdown at issue?
No one who relies on intellectually decadent precedent will have the wherewithal to restore the breakdown when it erupts into a structural test of the existing precedential order. Those who think with and like the Founders will be able to to work through it. Progressives are not the only ones who can think structurally and in a legal realist fashion — but instead of the normal order — the top down– bottom up structural strategies can work judicially as well as politically.
February 1, 2011, 8:29 pmG.R. Mead says:
And you put your finger on a structural constraint of progressive judicial activism. What if a substantial minority of district judges — who have original jurisdiction — just decide that we are a nation of laws and not merely of 545 men and women? (435+100+1+9 — if you are doing the math.)
We are reaching an era of structural testing of our system and the judiciary is not likely to be immune to structural testing. I see the immediate strains of this testing in the judicial system nearly every day.
The Supreme Court is not enabled to discipline naughty district judges who read the founding law in plain terms without the dross of 150 years of progressive judicial espalier pruning and shaping of the resistant Constitution trying to live out the shape of its own organic growth along with with the activity of the people — instead of the abstract shape dictated by progressive thought.
Assume a significant minority of District Judges took such a posture. Assume that a Congress is not politically able to meet progressive calls to impeach them.
What would happen ? Is this a REALLY break down in law — or merely a breakdown of order? — And where does the responsibility of that breakdown in order lie? — Does it lie with those who resort to the founding law, or those who torture language, procedure and incremental precedential growth that overtops plain limitations to prevent “standing” against the citizens they allegedly serve to prevent valid legal arguments against abuses of the constitutional system that their taxes pay for?
Who is responsible for such a break down in the judicial order? Who will restore it? To WHAT more critivcally will it be “restored.” once that order breaks down? What rationale limits restoration of order to merely latest arguable “restore point” when others earlier, and less compromised by weight of precedential decadence are equally valid in such a state of disorder — especially since the latest system state is itself responsible for the breakdown at issue?
No one who relies on intellectually decadent precedent will have the wherewithal to restore the breakdown when it erupts into a structural test of the existing precedential order. Those who think with and like the Founders will be able to to work through it. Progressives are not the only ones who can think structurally and in a legal realist fashion — but instead of the normal order — the top down– bottom up structural strategies can work judicially as well as politically.
February 1, 2011, 8:29 pmOrenWithAnE says:
Small correction to 8:26 post, the GFSZA of 1995 has been upheld by 9 Circuits.
February 1, 2011, 8:32 pmOrenWithAnE says:
Of course it is. From where in Art III do you deduce this limit?
And moreover, can such “structural reform” be carried out in other contexts besides originalism? What about a substantial minority of District Court Judges want to impose SSM and will continually rule in favor of plaintiffs demanding SSM? Will the higher courts “discipline” them?
What about other branches of government and “structural reform” by inferior bodies? If a sufficient number of town governments decide they no longer want to tolerate private arms, will you appeal to the Courts to “discipline naughty towns”?
February 1, 2011, 8:49 pmjrose says:
Vinson deos not mention Lopez or Morrison in his analysis of the Necessary and Proper Clause. (page 56-63).
February 1, 2011, 8:54 pmJack says:
How is a district court judge’s role any different in interpreting the constitution than that of the court of appeals judge? It seemed a bit silly to me to dismiss Judge Vinson’s attempt to answer the genuinely difficult question presented to him with a leave-this-to-the-big-boys attitude.
It also seems to me that the disagreements about whether the answer here is “controlled by precedent” turn mainly on the level of generality one choses. I think Orin and many posters are right that any judge not on the U.S. Supreme Court–state or federal, district court or court of appeals–should not just start from scratch whenever the specific issue has not been resolved. But Orin and many posters seem to go too far in the opposite direction, taking the precedential scope of Raich, for example, to be very broad–basically, anything goes–while conveniently ignoring cases like Morrison or Lopez (or limiting them to their facts). It seems to me that there is some happy medium. These cases are guideposts. There is some uncertainy–and seeming contradiction–among them, and of course any judge will need to look beyond them to some extent for an answer.
I was a little disappointed, however, that Orin, who ordinarily provides thoughtful analysis and a much-needed balance of viewpoint to the site, mostly just provided the latter in this instance. Under the theory of stare decisis posited in the original post, we should be seeing a lot of this: “The plaintiff asks us to make up a constitutional right to X out of whole cloth. The defendant argues that if there is a right to X, then there are no rational limits on what is protected under the rubric of ‘substantive due process.’ Defendants position, however, is foreclosed by precedent, see Roe, and therefore we hold that there is a right to X.” The fact that the Court has rejected certain limits before or even that it has rejected slippery slope arguments before does not mean that our analysis should start and end at the bottom of the slope.
February 1, 2011, 8:56 pmPersonFromPorlock says:
Wouldn’t “arrogates” be more accurate?
February 1, 2011, 8:59 pmAndy O says:
Follow the “principle” of stare decisis…or follow the Constitution to which you swore an oath…hmmm tough choice.
As far as I know the US Constitution is higher up the food chain than SCOTUS.
February 1, 2011, 9:02 pmpublic_defender says:
Watching a judge thumb his nose at US Supreme Court precedent is a lot more fun when you disagree with that precedent.
Judge Reinhardt must be getting a good chuckle over the conservative and libertarian attaboy’s that Judge Vinson is getting.
February 1, 2011, 9:07 pmSteve says:
The fact that several commentors are staunchly defending the District Court’s right to ignore Supreme Court precedent where it conflicts with their favored interpretation of the Constitution serves to confirm Orin’s original point, I think.
February 1, 2011, 9:11 pmNot Anonymus says:
Where’s your evidence?
February 1, 2011, 9:20 pmOrin Kerr says:
Jack writes:
I haven’t talked much about Lopez and Morrison because they are Commerce Clause cases, and in my view the easiest and most straightforward analysis of the legal issue is resolved under the Necessary and Proper clause. That’s why I keep talking about Comstock rather than Lopez and Morrison. I suspect that’s part of the confusion: The Commerce Clause cases have received tons of attention by the opponents of the mandate, but it’s the Necessary and Proper cases that are the most important cases for determining the constitutionality of the mandate in my view. DOJ seems to have missed this at first, as they didn’t push the N&P cases in their early briefs for some reason that is a mystery to everyone.
February 1, 2011, 9:22 pmDan Hamilton says:
Let us be clear. The Commerce Clause has been streached beyond recognition. It was ment to allow Congress, not the States, to regulate commerce. The buying and selling of products from the manufacturer to the end user, To stop the States from imposing taxes and such that would have made commerce difficult if not impossible.
Congress and the Courts have ignored it because they wanted “TO DO THINGS” that any normal reading would have made impossible. Everyone KNOWS this, is what they did and are still doing. Normal people can’t do a *&%& thing about it. Elect people to change the SC. Yea sure! You have to elect people who will select the RIGHT people for the SC for the next 30 years and you still wouldn’t be sure that the change would be made.
As was said above if the mandate passes all will continue as before with the Congress making just about any law they want until they make something so STUPID that people will say NO and fight back. It almost started with Heller. This isn’t the Law that will do it but it WILL help by reenforcing Congresses idea that they can do anything.
Many are saying the the Mandate is too far. This is true but if it is upheald it will just be one more step down the road. Many do not see the road, they just see what they want and will do or say whatever they need to. The ends of Health Care justify any means.
The Supreme Court is NOT the final say on the Constitution, THE PEOPLE ARE. With the idiots in Congress and the Courts someday the People will have to prove it.
February 1, 2011, 9:34 pmAndrew says:
Orin, Orin, Orin. :-)
The Comstock quote is as follows:
Notice the phrase “we look to see”. Not “we only look to see”. Not “we look exclusively to see”. This quoted test only pertains to the first of FIVE considerations described in Comstock.
More importantly, has Congress ever heavily regulated a business to the point where it cannot make any money, and then compensated for that extensive regulation by requiring the public to shop there? It seems highly unprecedented to me, and Judge Vinson is hardly to blame for deeming it a case of first impression.
Even if there were a clear controlling precedent (which there isn’t), I would think that vertical state decisis must be a little less important in a case that everyone knows is going to SCOTUS.
February 1, 2011, 9:36 pmJack says:
Orin,
That’s fair. The point I was trying to make was really just that cases like Raich, in my view, cannot be read (for the purposes of stare decisis) simply to say that anything goes, end of story. To take an example from the other side politically: This is like saying that Ricci v. DeStefano stands for the proposition that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” and therefore that no district court could, in good conscience, uphold a college’s affirmative action plan against an equal protection challenge. The issues–in each instance–are just more nuanced than that.
February 1, 2011, 9:39 pmOrin Kerr says:
Jack,
Yes, sure. But who has argued that there are zero commerce clause limits — “anything goes, end of story”? That would certainly be a short argument, and not one that needs to even consider the N&P clause.
February 1, 2011, 9:45 pmBruce Hayden says:
I think that it is a bit more complicated here than many seem to be proposing. There seems to be an attitude that if you have what you view as precedent on your side, then the Supreme Court is going to follow it.
This though is an exceedingly political question, and the politics seem to be running against the overturning of these decisions voiding part or all of the act. And, to add to this, we have a majority of states suing to overturn the act, and the new House already having passed repeal. While theoretically, this shouldn’t affect the reasoning of the Supreme Court, I will suggest that it will.
I would also suggest that Judge Vinson has made it hard to overturn his decision by asking, if the activity/inactivity dichotomy isn’t a limit on the Commerce Clause, then what is? Yes, the Supreme Court could just punt, and say that there are limits, but they aren’t going to address them here. And, I would think from the comments here, that is what a lot of the posters here are expecting. I am suspecting though that, given the unpopularity of the law, that this may be the place where they do, indeed, set some limits – but not limits that are going to overall limit the Commerce Clause all that much.
Keep in mind, that contrary to the repeated claim that everyone participates in this market at some point or another, Judge Vinson has effectively made a finding of fact to the contrary – and, yes, Congress essentially made the opposite finding of facts. But, I would suggest that this Court’s findings may carry more weight because they are particularized, while Congress’ are generalized, and controverted by the particular. This may be enough to hang their hats on.
The other thing that must be remembered is that the Judge went out of his way to show that while the individual mandate may be essential for this arrangement of provisions in the law, that arrangement is not required to solve the problem being addressed. For example, Congress could have used its taxing power to implement a tax that had a similar effect to the penalty that they did pass. The logical way, I think, would have been a surtax on incomes above a certain point for those who didn’t carry qualifying insurance.
It is rather enjoyable for all of us to pontificate about what will or won’t happen when these cases wend their way to the top, but I think that the reality is that we are all reading tea leaves.
We shall see.
February 1, 2011, 9:46 pmAdam S says:
To answer your question, yes, if the regulation of commercial inactivity was accepted, the GFSZA act would have been constitutional. Every instance of a possession of a gun in a school zone is logically equivalent to the inaction of not deciding (whether consciously forbearing or not considering at all) to sell the gun in interstate commerce? Why was that inactivity not considered “economic” by the Court? Was it because the govt did not make that argument? Was it because the verbiage used in the statute was “possession” and also not “failure to sell”(even though that is implied by possession)? Do you believe that either adjustment (either in argument or in statutory text) could have won the case for the government?
My feeling is that even if the text had said “failure to sell in interstate commerce”, the court still would have reached the same result(i.e. unconstitutional). But if regulation of economic inactivity was to be countenanced, that result could not be reached.
February 1, 2011, 9:51 pmSenX says:
Thanks for nothing (as usual) Sarcastro. As a lefty uber-troll you probably have a hard time imagining a non-lefty/ non-lawyer trying to understand how all this stuff works and you can’t help but respond to everything with your usual ego inspired acid.
I am just trying to get an understanding of how bad Supreme Court decisions(ones I think are bad or ones X number of people think are bad) get rolled back. You have what apparently is the original context of laws, changed by the supreme court over time to mean something different and I am wondering how things ever get changed back. People quote different cases for precedent and while I think I get some of the tension between original meaning and the precedent of decided cases I wonder how/if cases by the supreme court ever get rolled back somehow. Such as a decision that changes precedent. Is it always the last one that trumps on a subject? Or do they never contradict prior precedent? Also is this what we are seeing now with all these lower courts where they work out these arguments and it pushes up to the supreme court and the hope by some is that prior precedents will be nullified/changed?
I suppose there are law classes for this but I am not starting my career over. And you could say if you don’t know the complete subject then STFU but well nobody else does. It’s just comments on a blog so if I think I can fish for info that might educate me on something I don’t know about then I will.
February 1, 2011, 9:51 pmjrose says:
I don’t believe Orin relies on Raich for his argument. In particular, Vinson agreed with Orin the mandate was “necessary”, but found it not “proper” without relying on precedent.
February 1, 2011, 9:52 pmOrin Kerr says:
SenX,
If you’d like to comment here, please keep it civil. Thanks.
February 1, 2011, 9:53 pmhonest inquirer says:
Can someone explain how Medicare passes constitutional muster under Judge Vinson’s theory?
February 1, 2011, 9:56 pmJon Shields says:
I don’t think Justice Kennedy meant to read in a “discrete and narrow” rule for an application of the necessary and proper clause. The main point of his concurring opinion is that the link between means and ends has to actually exist — in other words, not just conceivably exist (the “Lee Optical” rational basis test). But in this case, the link is clear, strong, and obvious. Even Vinson conceded that. So I don’t think the Kennedy concurrence distinction has much to do with the mandate.
February 1, 2011, 9:58 pmKazinski says:
Orin,
It seems to me that the flaw in your argument is that you are assuming that inactivity can be regulated by the commerce clause. If it can, then you are probably right that the necessary and proper clause would allow the mandate.
But I don’t buy the argument that inactivity is really activity, or that regulating inactivity is a “constitutionally enumerated power”. And if inactivity is not considered commerce, then how is the necessary and proper clause invoked to regulate something beyond the scope of the congress’s power to regulate?
Judge Steeh’s opinion upholding the health care reform act depended on characterizing inactivity as an act of “economic decision”:
Your whole argument depends on the idea that Congress is regulating the entire heath care market. So it is necessary and proper for Congress to regulate anything that can affect that market. Including failure to voluntarily participate in that market, either by not buying insurance, refusing medical treatment, or not eating broccoli.
Judge Steeh rejected that line of reasoning by claiming inactivity is really an act. Judge Vinson and Judge Steeh went down very similar paths, they parted ways when Vinson found that not buying insurance was not an activity. Both seemed to agree that Congress can only regulate activity.
February 1, 2011, 10:01 pmJon Shields says:
Chris, I don’t think the distinction you are proposing is well defined. Any law is conceivably a remedy to “side effects” of what would happen if such a law weren’t enacted.
February 1, 2011, 10:03 pmMichael Ejercito says:
Except it is not all that clear that Vinson thumbed his nose at binding precedent.
Simply put, there is no case where the Supreme Court or the Eleventh Circuit dealt with the issue of whether a federal law, which generally requires persons to purchase a particular good or service, exceeds Congress’s authority to regulate interstate commerce. While Raich has a broad view of that power, Lopez and Morrison demonstrate there are limits to that power. But while Vinson was bound to give those cases appropriate precedential weight, they are not dispositive on this question.
Vinson may have misapplied the holdings in Raich, Lopez, and Morrison (an issue on which I have yet to form an opinion), but he certainly did not ignore binding precedent.
February 1, 2011, 10:04 pmJon Shields says:
I don’t think that’s Orin’s argument. Orin’s argument is that the mandate is necessary for the specific pre-existing condition regulation to work — not just to regulate the market in general. Eating broccoli is not necessary for the pre-existing condition regulation to work.
February 1, 2011, 10:05 pmJon Shields says:
That is exactly what they did pass. The only difference is that they didn’t use the magic word “tax.” But what they passed was a tax, regardless of how it was summarized in the law.
If the Surpeme Court wants to create a magic word test for taxes (so it can void the healthcare law), it is free to do so. Heck, it is free to overrule any of its prior necessary and proper precedents going back to McCulloch vs. Maryland (all of which support the law’s constitutionality).
But if it does so, it will be clearly saying that you could have passed the exact same law with the exact same effects and the exact same dollars changing hands to the exact same parties — you just should have added the magic word “tax” to page xxx (to concisely summarize what was obviously the law even without the word). So too bad, your law is void, and now you can’t re-enact it (with the knowledge of the new magic words test) since we waited until the Congress changed before letting you know about the test. Suckers!
It can do this (or just about anything). But I think whether it will do so depends on whether they want to start a war with the political branches, and how the law is working at the time.
February 1, 2011, 10:13 pmGov98 says:
But if it does so, it will be clearly saying that you could have passed the exact same law with the exact same effects and the exact same dollars changing hands to the exact same parties — you just should have added the magic word “tax” to page xxx (to concisely summarize what was obviously the law even without the word). So too bad, your law is void, and now you can’t re-enact it (with the knowledge of the new magic words test) since we waited until the Congress changed before letting you know about the test. Suckers!
But this not true, it’s pretty widely accepted that the Congress did not go the tax route because it didn’t not want to politically enact a tax increase. It hardly seems legitimate for the Congress to pass a Not Tax Increase, but then justify under the taxing power.
February 1, 2011, 10:23 pmAJ says:
Four somewhat quick points:
a. What economic activities/inactivities are beyond Congress AND reachable by states or localities? My impression is that “substantially effects” and “aggregation” coupled now with “mandates” leaves little else economic in the 10A purview of the state. Doesn’t this make the notion of interstate commerce a nullity? All reachable commerce is now federal if they wish, no? It simply needs to be tethered to a larger regulatory scheme and engineered to be necessary! Voila!
b. The concept of economic/non-economic is somewhat hazy given that decisions to NOT act economically are presumed to fall in the former because of their economic consequences or because of mysterious future economic decisions. Those that argue that this is the Rosetta Stone of limited government miss that much of what we possess and use is an inevitable product of interstate commerce – how does one draw the line? Further by the fact that the gun-free-zone legislation was repassed and survived some level of judicial scrutiny does not provide a lot of confidence that tenuous economic hooks cannot find their way into largely non-economic behavior.
c. What economic liberties are left to the individual via 5A/14A considerations when we choose to adopt expansive readings of CC and N&P? If congress has broad latitude to divide the country and herd us to its bidding, prodding us with fines that seem to have less constitutional limits than even taxes, how precisely does a privacy right, unconnected to my groin or religion, arise to say woah?
d. I believe the other elements of the Comstock 5-parter come into play because congress paid little heed to what was a “narrow” solution to the problem they created and provided little “deference to states” offering competing solutions. If one could look at these two elements and not blush, it would be easier to accept that a rational necessity would end it.
February 1, 2011, 10:26 pmSteve says:
Well, that’s basically what Vinson said in his prior opinion in this case, right? The President went on 60 Minutes and denied that anyone’s taxes were going up, so now it wouldn’t be fair to let his lawyers make a legal argument that it’s a tax, now would it?
There’s a certain justice to his position, of course, but it was still pretty disconcerting to watch a federal judge dish out political consequences so nakedly. Of course now he’s outdone himself by declaring that it’s high time we held Alexander Hamilton accountable for overpromising in Federalist #33.
February 1, 2011, 10:26 pmSenX says:
Orin Kerr says:
SenX,
If you’d like to comment here, please keep it civil. Thanks.
Oh alright, I guess I did let fly a bit there. Sorry!
February 1, 2011, 10:33 pmJon Shields says:
You are correct that this is what Vinson said. But that is entirely bogus. For the resolution of political arguments over what bills are, we have something called the first amendment. People are free to point out that Obama is wrong. What passed was a tax regardless of what Obama said. The law is not invalidated based on what one actor in the political system says on TV — it is validated or invalidated based on what the law says.
I’m pretty sure the Supreme Court would rule unanimously on that point. If Congress passed a law establishing a mint, but said that “this is not a law that establishes a mint,” it doesn’t matter what they say. It is the law that matters — not what anyone says outside of their votes in Congress. If Obama or anyone else says “up is down,” that doesn’t make up down.
February 1, 2011, 10:34 pmStrict says:
SenX: “I am just trying to get an understanding of how bad Supreme Court decisions get rolled back.”
1. The Supreme Court later overrules the bad decision (or distinguishes it into obscurity). An example of this is Brown V. Board (1950s), a Supreme Court case which overruled its own prior bad decision, Plessy v. Ferguson (1890s).
2. The Congress passes a law effectively overruling the bad decision. (e.g. a law that makes the bad decision ineffective or irrelevant; the bad decision is not technically overruled, but it effectively is).
3. The States (3/4 of them) ratify a Constitutional Amendment overruling the bad decision. An example of this is the 11th Amendment.
Bad Supreme Court decisions don’t get rolled back by District Court judges (they are the lowest level of federal court system and they are obligated to follow Supreme Court decisions, even bad ones).
February 1, 2011, 10:34 pmAJ says:
The only problem with this is what kind of constitutional tax is it? It does not appear to be a uniform excise tax, it is not a tax on derived income, and it is not a properly apportioned direct tax. It would have been better to engineer it as a valid tax from the get go and been done with it. Now there’s a lot of awkward rear view mirror driving! “Well, it looks like a tax!”
February 1, 2011, 10:40 pmJon Shields says:
How is it not an income tax? It only applies to people who make $14k/year or more (133% of the poverty line). Everyone else gets free Medicaid. It doesn’t apply to anyone who makes less taxable income than the penalty itself.
February 1, 2011, 10:44 pmPassing By says:
Professor Kerr –The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution
Would you say that the Court has also “strayed” with respect to the Fourth Amendment? More likely you’d say that the justices made a good-faith effort to adapt the Fourth Amendment text of 1791 to radically-changed circumstances (advancing technology, etc.) In fact, you said more-or-less that, just last week.
Why not give the Court credit for a similar good-faith effort to apply the commerce and N&P clauses to radically-changed circumstances?
Here’s an example of how that worked. Suppose the early Court interpreted Congress’ commerce-power as extending over all economic activities except subsistence farming. Back in 1787, perhaps 85% of the US population were subsistence farmers; so Congress would only have had power over 15% of the economy. Today, almost nobody is a subsistence farmer; so exactly the same jurisprudence would extend Congress’ powers to 99+% of economic activity.
Of course, that’s over-simplified. But it’s much closer to the “core” reality than saying that the Court has somehow “strayed”.
February 1, 2011, 10:46 pmKazinski says:
It’s the same thing, Congress has the right to regulate pre-existing condition clauses in insurance contracts. But they do not have the right to compel people to perform an activity such as buying insurance. That is the argument. It doesn’t really matter if congress is regulating a whole market, or a specific facet of the market, what is at issue whether congress can then reach out and regulate something it has no power to regulate in because it will affect the thing it can regulate.
I like Randy Barnett’s hypothetical, which states that congress has the right to regulate commercial sex. But just because the activity or inactivity of marital sex affects that market, doesn’t mean that congress has the right to regulate marital sex.
And while there are issues of the right of privacy and control of ones own body which would be implicated in any attempt to regulate marital sex, I hope nobody is saying that those same rights don’t come into play with the healthcare market.
February 1, 2011, 10:47 pmJon Shields says:
Why not? The necessary and proper clause allows laws to be passed if they are necessary for a law passed according to an enumerated power to work.
The pre-existing condition clause is validly passed per the commerce clause. The mandate is necessary to make the clause workable (otherwise, people would wait to get insurance until they needed it, and the private health insurance market would enter a death spiral of increasing premiums and more healthy people leaving).
That’s the end of the analysis. It doesn’t matter if the mandate regulates inactivity. The fact that it might regulate “inactivity” is only relevant to whether it is justifiable under the commerce clause. There is no activity/inactivity distinction in the necessary and proper clause. There is only a necessary/non-necessary distinction. The necessary and proper clause does not say that Congress can pass laws necessary and proper, unless they regulate “inactivity.”
February 1, 2011, 10:47 pmMark Field says:
Late as I am to this thread, I don’t believe anyone has mentioned this argument by Judge Vinson.
As a matter of structure and history, what he says here is demonstrably, factually, wrong. In fact, the whole point of the N&P clause was to enable Congress to exercise what Hamilton called “implied powers” above and beyond those granted.* Hamilton’s fundamental argument for the Bank rests on this ground. Congress enacted the Bank based on this argument in 1791, Washington signed the bill on the basis of this argument, and the Court upheld it on this basis in McCulloch.
Early Congresses passes lots of other laws on this basis as well, notably criminal statutes which aren’t otherwise authorized.
*In fact, both Hamilton and Madison argued that Congress would be able to exercise such “implied powers” even if the N&P clause hadn’t been included.
February 1, 2011, 10:50 pmChris says:
February 1, 2011, 10:51 pmJoeTacoma says:
Maybe someone can help clarify how Comstock’s simple rule of rationality controls in this case when Judge Vinson found that no legitimate constitutional power exists permitting Congress to compel individuals to engage in commerce. Comstock expressly assumed that the underlying statute was not otherwise unconstitutional, and therefore, “the statute’s validity under provisions of the Constitution other than the Necessary and Proper Clause” was not an issue before the Court in Comstock. The Comstock decision suggests, when discussing the rationality rule, that if other constitutional problems were before it related to the particular statute it was analyzing, more than a rational connection between means and an end would be needed to find the statute valid.
February 1, 2011, 11:17 pmKazinski says:
Well that is one argument. The other argument is what gives Congress the power to treat law abiding American citizens as felonious child molesters and sex offenders? If you stop and think about it that is what the “Comstock” necessary and proper argument is.
I wonder if that is the point Orin is making. When he says:
It makes you wonder if he really thinks Comstock removed virtually all limits on Congressional power. Especially when you go back and read his thoughts on the oral argument for Comstock:
Then pause and consider that the Supreme Court went along with this assertion of power on a very specific case of allowing continued detention and supervision of federal felons that have served their sentence but are deemed still to dangerous to be let loose out in to society.
I’m not really convinced that he believes that this grant of power to the government to detain perverts that are also convicted felons extends to an all encompassing power over the lives of ordinary law abiding citizens.
But my doubts are probably misplaced.
I just hope the Supreme Court unintentionally used overbroad language to sustain the government in maintaining control of the worst dregs of society, without any intent to exposing the rest of us to the mercies of a Congress without limit.
February 1, 2011, 11:25 pmJon Shields says:
Having community rating doesn’t even make sense in and of itself without a mandate. Community rating says insurance companies must charge the same amount to all comers. But if everyone isn’t required to buy insurance when they are healthy, and the cost of insurance therefore must be the cost of your medical bills, the product isn’t even insurance anymore.
So is the mandate absolutely necessary for the writing of the regulation in the federal register? No (just like the national bank wasn’t absolutely necessary to tax or spend, and a federal prison system is not necessary to pass a regulation). But the community rating regulation regulates insurance policies, and these insurance policies wouldn’t even be insurance policies unless everyone is in the system. I don’t think it’s easy (if possible) to distinguish between “means” and “side effects” here when the very character of what you are regulating doesn’t even exist anymore with the regulation alone.
February 1, 2011, 11:25 pmOrenWithAnE says:
Selling insurance is commerce. Congress wishes to regulate the selling of insurance. Mandating individual coverage is a reasonable means to this end and therefore succeeds under N&P.
February 1, 2011, 11:44 pmGilbert says:
I profoundly disagree with originalism, and although I sympathize with libertarianism, I am avowedly a liberal.
Still, the kind of statist “vertical stare decisis” you describe I think is less legitimate than a free-wheeling federal district judge. Unless we are talking about a case with facts ABSOLUTELY ON ALL FOURS with a prior SCOTUS case, so long as a judge does his/her best to apply the law as (s)he understands it, that is all that can be asked.
February 1, 2011, 11:48 pmKazinski says:
Sure let them regulate the selling of insurance, I get that part. But that does not include mandating the consumer buy. Then it is no longer selling.
February 1, 2011, 11:50 pmA.W. says:
Orin
Except the problem with your analysis is this. the Supremes have NEVER taken the commerce power this far.
the precedents don’t demand a different result. at most maybe you can dig up some dicta.
February 1, 2011, 11:51 pmnick056 says:
What if they regulate it by banning denial of insurance based on pre-existing conditions, and then determine that for this regulation to succeed, they must also create a general requirement to by insurance?
I understand this creates the possible line of argument that the actual regulation is pretextual and the mandate is the goal. A court wouldn’t want to allow Congress to do something it otherwise couldn’t do by tagging it as “necessary and proper” to a regulation it is clearly empowered to impose.
But I think the problem with this is that, if the underlying regulation is something Congress is in fact clearly empowered to impose, then they have to be able to attach to it any other regulations necessary and proper to carry it into execution. If not, they can’t actually enact the underlying law after all. And as you just said: “sure let them regulate the selling of insurance.”
If you strike down their mandate, their regulation is no longer effective — it can’t be carried into execution. (Remove the mandate and your pre-existing condition regulation fails because of adverse selection and free-riding.)
The check here is that the necessary and proper adjunct to the Commerce Clause regulation must be rationally related to the regulation. It is. Whether it’s more or less necessary is a question judges don’t address.
February 2, 2011, 12:20 amChris says:
Jon Shields–I agree that the regulation makes no sense without the mandate. But that doesn’t make the mandate a means toward getting the regulation. A means is something used in order to get something else. The fact that two things are complementary doesn’t mean that one is a way to get the other. Peanut butter might be no good without jelly, but getting peanut butter isn’t a means toward getting jelly.
February 2, 2011, 12:28 amORID says:
Scalia concurred in Raich, but dissented in Comstock. Alito and Kennedy wrote separately in Comstock. I speculate that CJ Roberts joined the Breyer Comstock opinion for expediency (why add another opinion or why rankle folks by joining a concurrence?), but I’d have to question if he agrees with its alleged breadth.
Aren’t the opinions limited to the facts of the previous cases? It was n&p for Congress to act because CA was frustrating the regulation of interstate pot regulation; it was n&p that Congress provide for public safety in the narrow question of Comstock.
It’s not like the Court drew many bright lines with their concurrences, and the fact that these cases are decided pretty narrow (yes, I know the concurrences don’t control).
I thought it was amusing the judge cited CRS’ lawyers as saying the powers were “unprecedented”… so the lawyers in Congress don’t top the CRS lawyer?
February 2, 2011, 12:33 amNewbius says:
Funny how one of Obamacare’s core arguments in favor was the reduction in health care costs to the Federal Government borne by Medicare and Medicaid. It is a solution to a problem that was created by a solution to a problem that in the first place should never have been addressed by the Federal government at all.
Accepting Medicare as Constitutional doesn’t mean it comports with the Constitution. Just ask Dred Scott.
February 2, 2011, 12:35 amNo Theory of Jurisprudence says:
Would you feel the same way if the “vertical stare decisis” was Lawrence v. Texas but the “free-wheeling federal district judge” was throwing sodomites in prison?
Millions of reasonable people disagree as to the “true” meaning of the Constitution, which is claimed by all parties on all issues. This includes judges.
I kind of agree with you that this isn’t that case. However, given that this is the purported will of the people, maybe the default should be that where the facts are not ABSOLUTELY ON ALL FOURS, district judges should leave the matter to Congress, or the Supreme Court. At 2-2, I think it pretty safe to say that the Health Care Mandate’s constitutional validity is unsettled, and maybe district judges should exercise a bit of restraint given that state of affairs.
February 2, 2011, 12:39 amJon Shields says:
In that case, why did Roberts assign the opinion to Breyer in the first place? It seems that if Roberts wanted a narrow opinion, he would have assigned the case to himself, and would have written such an opinion.
February 2, 2011, 12:47 amNo Theory of Jurisprudence says:
I don’t understand what tree you are barking up? Dred Scott was the most disgraceful act of Judicial Activism, overturning portions of a Congressional Act (the Missouri Compromise) on the tortured basis that the Act violated the 5th Amendment — because blacks were property. It was the second time in American history that SCOTUS had overturned a Congressional Act, and a lot of people died as a result.
“Accepting [a Congressional Act] as Constitutional” is what the dissent did in Dred Scott.
In other words, you’re mixed up if you think there is any connection whatsoever with “Accepting Medicare as Constitutional” and the Dred Scott decision. The Dred Scott decision wasn’t “unconstitutional”; it was just wrong, but should remind us of the dangers of permitting SCOTUS to decide political questions.
February 2, 2011, 12:52 amGrover Gardner says:
And while there are issues of the right of privacy and control of ones own body which would be implicated in any attempt to regulate marital sex, I hope nobody is saying that those same rights don’t come into play with the healthcare market.
Is anybody saying that?
February 2, 2011, 1:02 amKazinski says:
Yes, That is exactly what they are saying.
February 2, 2011, 1:18 amduffy pratt says:
That’s not quite how it works. An appeals court can reverse a district court’s judgment. The Supreme Court might then have a shot at the appeals court ruling. If either of the higher courts reverses and renders, the District court will no longer have anything to do with the case. If there is a reversal and a remand, the District court may be instructed to do certain things consistent with the ruling of the higher court. In an extreme case, an appeals court might actually pull the case from the District court’s jurisdiction, and either take it over or cause it to be re-assigned. None of these actions actually obligate the District court to do anything. It happens that the Court system works, and District courts regularly follow the instructions of appellate courts.
The judge’s oath is to uphold the Constitution. Nothing says how the judge shall interpret the constitution. That, I believe, is a matter for the judge’s conscience. The Constitution says that there is one Supreme court, and that other Article 3 courts are “inferior.” It doesn’t say how the Supreme court is supreme, or how the others are inferior. One might argue that the Supreme court is Supreme because it has appellate jurisdiction over the inferior courts, and can reverse them. Or maybe its because the Supreme Court gets to make law through its decisions that bind the other courts. That’s a matter for interpretation. So, what is a lower court judge to do when convinced that a Supreme Court opinion is unconstitutional? I don’t think the answer is as clear cut as others seem to think. And I think judge’s, in good conscience, can differ about what they ought to do. One perfectly reasonable alternative is to refuse to follow the Supreme Court case, make the best argument possible for the refusal, and then let the appellate court reverse if the argument is not persuasive.
February 2, 2011, 1:57 amORID says:
Jon Shields,
February 2, 2011, 2:00 amI don’t know. Wouldn’t the majority opinion have been Breyer, Sotomayor, Ginsburg anyway? Isn’t part of being CJ trying to get narrow rulings… messy enough as it was, do I mention the term “political capital”?
Orin Kerr says:
Duffy Pratt,
Okay, let’s say the district court is free to ignore the Supreme Court and face reversal. Now the case is in the circuit court. Aren’t the circuit court judges free to ignore the Supreme Court, as well? Indeed, let’s assume that every circuit judge sees his or her job that way: No lower court judges ever feesl bound by the Supreme Court, and they all follow what they think the law should be and just wait for the Supreme Court to reverse them. Indeed, if the Supreme Court hears a case and reverses, they send the case back to the Court of Appeals for more proceedings. In your view, I assume the Court of Appeals judges are still free to ignore the Supreme Court’s instructions even if the Supreme Court reversed the circuit court in that very case: After all, if the Supreme Court wants to, it can hear the case and reverse again. If that’s what you think the roles should be, it sounds like a recipe for chaos: No judge ever has to follow any other judge.
February 2, 2011, 2:13 amJoe (not that one) says:
Where’s your evidence? Not Anonymus
Look at AM Best’s entries on writing companies (available on Lexis, which I don’t have access to), or the NAIC Accident & Health company reports (I forget if it is the yellowbook or bluebook — it’s been a while). They will list multiple licensure jurisdictions for each company.
Anyone who tells you that companies cannot sell insurance products across state lines is either stupid or lying. Companies have to be licensed in the state they are selling, but licensure does not equal domicile. Almost all fo them sell in multiple states.
February 2, 2011, 2:18 amJon Shields says:
In this case, there was a 7-2 majority for upholding the law. Roberts was senior justice in the majority, so it was his job to assign the opinion. He could have easily assigned it to Kennedy, Alito, or himself if he wanted a narrow ruling. There was no reason to assign it to Lopez-dissenter Breyer.
Instead, he specifically assigned it to Breyer. He basically went out of his way to assign it to someone with expansive views of federal power, and then signed onto his opinion in full. It was certainly surprising to me when I first saw it.
February 2, 2011, 2:35 amSenX says:
Don’t most of the major arguments against the mandate hinge on it escaping prior precedent? If you already believed instead that it was captured by prior Supreme Court precedent then by default you would view this judge as mistaken. Isn’t it though that he didn’t believe the mandate is fully captured by precedent and therefore talked about original meaning?
It seems true that many don’t like some of these precedents but does it follow that it’s the reason behind not attaching these precedents to the mandate? It seems like an inference that the arguments are dishonest or in bad faith.
I think Orin maybe just doesn’t believe these arguments will convince the Supreme Court and they will say the mandate already fits inside existing precedent. Then is working backward to this District Court decision where the judge will have been wrong to talk about original meaning. But is that the right way to view this?
In the end he may very well be correct on the final result but not because of bad faith arguments or intellectual deficiencies. Maybe more because even if the mandate isn’t captured by prior precedent it will end up being close enough to avoid bucking a trend.
February 2, 2011, 3:00 amdisintelligentsia says:
Therein lies one very important reason why the 17th Amendment should be repealed. If Senators were chosen by their state legislature, they would be more likely to reflect the sovereign interests of the state instead of supposed “popular will.” Presumably, each states would want some restraint on the power of the federal government and Senators would be motivated to inquire of judicial candidates regarding their views on federalism and vote against those who have a view that would give the federal government unbridled power as against the State they represent.
February 2, 2011, 3:22 amdisintelligentsia says:
Sounds a lot like the 9th Circuit.
February 2, 2011, 4:05 amDave M. says:
I have to chuckle at Orin’s argument here. After having interned with a judge, and observing this behavior in several judges, I question his premise about exactly how biding precedent is in this case.
Sure, SCOTUS has interpreted the clauses implemented by this case before the specific facts of the case became an issue. And we would tend to think that matters.
But here’s where judges differ in that view: precedent is only good for legal arguments, or for cases where the facts are indistinguishable from the prior case law (i.e., the case law is “on-point” or “spot on”)–that is, the primary facts of the case match so closely, and any incidental factual differences are so de minimis that the case at hand and the case law are not distinguishable.
Only in those instances do judges really see themselves as bound. The rest of the time, judges look at the case law as something which informs their legal opinion-making and fact-finding, something the attorneys on either side argue should or should not apply. It also informs them of the likelihood their superior appellate court will overturn whatever they do decide, which factors into choices they make about expediency and judicial economy. It provides structure, but not necessarily conclusions.
Where the facts were distinguishable, the case at hand then become a case of first impression, and precedent is relegated to the status of a handbook, a road map of sorts, a Bob Vila builder’s guide. The judges then decide what case law they think applies in aiding their decision, and downplay or ignore any precedent they feel doesn’t help. But even as guide, those precedents still aren’t necessarily limiting.
This is why Randy’s argument about the facts of this case being quite literally “unprecedented” is entirely so relevant. These are the cases where new case law is crafted. Orin shouldn’t be ignoring that.
February 2, 2011, 4:12 amDave M. says:
Distinction without a difference.
I think the whole point of originalists lay in what Madison said on the House floor in 1795 (I think). The constitution was nothing more than a proposal when it went to the states and thus had no meaning. It was the discussion over ratification that imparted meaning to the document.
The argument then, is that Federalists made clarifications and promises within these state conventions and within the press to achieve public support and ratification.
Should those promises and clarifications of the text of the proposal be binding? Yep. It’s that which makes documents like the Federalist Papers relevant.
February 2, 2011, 5:16 amDave M. says:
You assume Marshall had Madison’s convention notes, Elliot’s Debates, and an aggregated collection of the records of the state ratification debates, like we have now.
It’s understandable to make a decision when you don’t have all the resources, but that doesn’t mean you necessarily are unable to revise that decision when better resources or information comes along.
To argue otherwise is to just admit one is being stubborn and arguably irrational. Marshall’s decision doesn’t square firmly with the new information, which means he needs to be evaluated much more carefully than you would have.
February 2, 2011, 5:46 amDave M. says:
Ah, the good ole “Herpes” Doctrine of Interstate Commerce.
February 2, 2011, 6:06 amScott says:
Just a non-lawyer observer here, but when discussing the N&P clause I only see discussion of whether or not the act was “Necessary”. But there is more to that clause, isn’t there? How is it decided what’s “Proper”?
With nearly everything impacting interstate commerce in some way, can’t Congress just come up with some frivolous act where a another act clearly outside its innumerated powers is “necessary” for the law work? But it may not be “Proper”. I’d love to hear more about that.
February 2, 2011, 6:17 amDave M. says:
Vinson’s theory about Interstate Commerce and the NPC are irrelevant to Medicare.
Why? Medicare stems from a tax (FICA) on income below a certain income threshold. Once government has collected its tax, it then chooses to spend those tax dollars on providing a medical program like Medicare.
Thus the Interstate Commerce Clause is not implicated. However, there are legitimate constitutional criticisms of the use of the Taxing power in this way…
February 2, 2011, 6:34 amG.R. Mead says:
February 2, 2011, 6:43 amDave M. says:
Ok. But the law says it’s a penalty where the law also calls other things within the same act a tax.
And as Judge Vinson said back in October, he must afford Congress the benefit of the doubt and call that portion of the act as Congress itself called it. And since there’s a litany of squarely on-point case law distinguishing a tax from a penalty, and Congress called it a penalty, then it’s not a tax per the case law. What Obama called it on TV does not dispose the question, you are correct. But, it’s cited only as further evidence of what the Vinson had already sufficiently and correctly concluded.
February 2, 2011, 6:49 amDave M. says:
You sure about that? Check on Browder v. Gayle (1956), and then get back to me…
February 2, 2011, 6:56 amDave M. says:
The tax is predicated upon one’s failure to acquire approved health insurance. The amount of the tax owed is determined by income, but the tax itself is not predicted upon the fact that you earned and derived income (which means it’s not a tax on income).
Had Congress just raised income tax rates and then given a tax credit reimbursement to those who had acquired approved health insurance, it’d be an entirely different story. But then, that would have had Congress making Obama into a liar, since he promised not to increase taxes on the middle class.
February 2, 2011, 7:06 amG.R. Mead says:
Hmmmm…
Context, and consequence.
February 2, 2011, 7:10 amSteve says:
I will take stubborn and irrational over arrogant and delusional, which are the terms I would apply to someone who thinks modern judges have a better grasp of the original understanding than John Marshall.
February 2, 2011, 7:17 amBrett Bellmore says:
I’m a libertarian and an originalist, and I more or less agree: While lower court judges are obligated to not contradict higher court rulings, they have sworn an oath to uphold the Constitution itself. This means that, if confronted with a Supreme court ruling in contradiction to the Constitution, they must distinguish the present case from the ruling to the maximum extent possible, to fulfill their oaths of office. Not extrapolate it to the different facts at hand, no matter how likely it is that the Supreme court would elaborate and extend it’s contradiction of the Constitution they, too, are sworn to uphold, were the case before them.
Maybe they can’t directly contradict the Court, but their oaths demand a fighting retreat, not throwing up their hands in defeat.
February 2, 2011, 7:40 amDave M. says:
1. Was the precedent in your hypothetical squarely on-point?
2.a. Let’s assume it was. Here, then, the trial and intermediate courts are bound.
2.b. Let’s assume it was not. Here then is a case of first impression. While there may be case law on similar but non-identical cases that inform the court of how it should rule, if but for the sake of judicial consistency, the trial court can–but is not bound to–follow that precedent.
3. So the trial judge doesn’t follow distinguishable precedents. What if the appellate or supreme court reverses, etc. as you asked? Well, then you have an appellate court that’s created new precedent that is squarely on-point with the new proceedings…
So, then, back up to Item 1. to repeat the flow chart, and surprisingly enough, order and the rule of law are restored…
Exactly how you managed to swing at and yet completely miss that slow pitch softball in your own hypothetical is beyond me.
February 2, 2011, 7:47 amJon Shields says:
What authority do you have for the idea that a penalty can never be simultaneously be a tax for enumerated powers purposes? Is it a Lochner-era precedent?
The only decision I have seen in either Hudson or Vinson’s opinion that purports to answer that question was a Lochner-era precedent in 1931 (La Franca) that had absolutely nothing to do with enumerated powers. Rather, it had only to do with statutory construction, and in any case clearly is not valid today, since the statute in question actually called it a “tax” and they STILL said it was not a tax.
We are not talking about a penalty that has some added feature or characteristic that a tax cannot have. We are not talking about a penalty that somehow operates in a different way than if it were called a tax. It operates exactly the same way in every case with respect to every person and every dollar and every legal consequence, regardless of what is called. Congressional intent only matters if one is trying to distinguish between A and B — not if one is trying to distinguish between A and A.
February 2, 2011, 7:51 amJon Shields says:
Or, the tax is actually predicated on income and merely only applies to people without insurance. Limiting the scope of an income tax to a non-income factor (in addition to an income factor) does not make it not an income tax. The distinction you make is not even well defined — you are conveniently picking a limiting factor (no health insurance vs. income) to declare the tax “predicated on,” even though the tax is clearly predicated on both.
Do you have any SCOTUS authority to cite that says an income tax cannot be limited by any factor other than income? That an income tax can’t so-to-speak “discriminate” based on any factor other than income (in addition to income)? The 16th amendment certainly does not contain such a limit.
February 2, 2011, 7:59 amDave M. says:
While Marshall is a damned good source, there are other that are just as good, if not better. Marshall was just one man, and not a juristic god. Further, as I said above, he didn’t possess the dearth of information we now possess about the body of the debate surrounding the Constitution.
Also, there’s been great strides in both logic and critical thinking since Marshall’s time (go read Randy’s “Restoring the Lost Constitution” to see where Marshall made some pretty significant critical thinking errors), and that logic ought to be applied to the myriad evidence we now possess to distill what average American people (in particular, those at the ratification conventions) at the time of the ratification understood the Constitution to mean.
February 2, 2011, 8:07 amMillard says:
“In contradiction to the Constitution” according to whom? Brett Bellmore?
February 2, 2011, 8:09 amGrover Gardner says:
Yes, That is exactly what they are saying.
How so?
February 2, 2011, 8:16 amMillard says:
I hope not, because I really need that mortgage deduction this year.
February 2, 2011, 8:19 amGrover Gardner says:
Kazinski, do you consider a requirement to carry auto insurance an invasion of your privacy, on par with an attempt to regulate your marital sex life?
February 2, 2011, 8:21 amDave M. says:
http://healthcarelawsuits.org/pdf/FloridavDHHSRuling.pdf
Discussion starts on pg. 7.
I personally sure don’t. But the article linked in this older post here at the Conspiracy sure does…
http://volokh.com/2010/07/20/of-constitutional-decapitation-and-healthcare/
Also, such discrimination by Congress is what makes it a tax credit and not a tax.
February 2, 2011, 8:25 amAnderson says:
Marshall was just one man
One might recall that Marshall wrote for a unanimous Court in McCulloch.
Thanks for making me laugh, though; I love the idea that I should read Randy Barnett to find out what the Constitution means, as opposed to John Marshall.
… And I think “dearth” means the opposite of what you think it means.
February 2, 2011, 8:26 amArkady says:
I read that case, and would this be a fair summary?
The majority argued that the principle underlying Plessy had be substantially undermined,if not fully repudiated, in a host of cases, and thus Plessy was no longer binding. The dissent argued, or seemed to me to have argued, that since there was no SCOTUS case directly overturning Plessy, Plessy was still binding.
Do I have that right?
February 2, 2011, 8:31 amDave M. says:
More or less. Brown had significantly undermined Plessy, but IIRC it did not expressly overrule Plessy. As such, it could arguably be claimed to still be valid case law…
Browder v. Gayle did what Brown did not (again, IIRC), and did expressly overrule Plessy. So did the Circuit Court on appeal. SCOTUS denied cert. afterward. (But as we’re all repeatedly told, a denial of cert. is not a ruling on the merits.)
February 2, 2011, 8:40 amJon Shields says:
Dave M, I was asking if you had a case. I read the entirety of both Vinson’s opinion (motion to dismiss) and Hudson’s opinion. The only case remotely related in Hudson’s opinion was La Franca (discussed in the above post), and there basically was no relevant case in Vinson’s opinion.
Vinson used the 1903 decision “Helwig” (which he admitted was “factually dissimilar,” which covered the converse situation, which nothing do with enumerated powers, and which wasn’t even a constitutional case) to create his own new doctrine. The rest of his tax analysis is irrelevant, since it takes place under the flawed assumption (developed above) that they are actually different.
February 2, 2011, 8:43 amDave M. says:
You got me there, man. I meant “plethora”. I’m human. Just like John Marshall was. Just like every person who’s sat on the SCOTUS bench is and has been.
I plead humanity.
Thanks for making my point for me. :)
February 2, 2011, 8:44 amDave M. says:
I don’t see you reading that Tax Notes article I linked you to…
Also, see the INS case on pg 14 of the Vinson ruling.
February 2, 2011, 8:47 amJon Shields says:
The income-tax-analysis in article you quote is laughable. They try as hard as they can to say that flat rate taxes can’t be income taxes, even though a flat rate tax is nothing more than a regressive percentage tax, where the percentage varies based on income. Clearly an income tax does not cease to be an income tax based on the numerical value of the income-to-percentage function.
Then, it claims that the income it taxes isn’t “realized.” But this is factually false — the tax does not apply to anyone who hasn’t earned FAR more than the penalty. Anyone making less than 14 thousand per year does not have to pay the tax at all — they get Medicaid for free. So for those that the tax applies to, they have at least 14 thousand of realized income for which 695 is taxed (or a percentage).
A case supporting your position would be much more persuasive than factually false and logically incoherent original advocacy from an article.
February 2, 2011, 8:57 amJon Shields says:
The INS case you refer to has nothing to do with taxes. It merely talks about how legislative history is interpreted when the language changes over the course of drafting. But the entire point is that it doesn’t matter that the language changed from “tax” to “penalty,” because in this case they are the exact same thing. It would be like congress changing the number 1 to the letters “o” “n” “e.”
February 2, 2011, 9:02 amDave M. says:
Well, John, if you’re having trouble comprehending it all at this juncture, then I don’t think I can adequately explain it to you or help you understand it all.
February 2, 2011, 9:10 amjrose says:
Vinson didn’t mention the inactivity/activity distinction in his Necessary and Proper clause analysis.
February 2, 2011, 9:11 amCalderon says:
Orin Kerr said:
Suppose a person filed a civil suit in court under 42 U.S.C. § 13981 (the statute struck down in Morrison). The defendant files a motion to dismiss based on Morrison, and the plaintiff says “Morrison does not control this case. Morrison only considered the Commerce Clause, while my argument is that 42 U.S.C. § 13981 is valid under the Necessary and Proper clause.” Do you believe that a district court could properly deny the motion to dismiss and accept the plaintiff’s argument that 42 U.S.C. § 13981 is constitutional under the Necessary and Proper clause?
February 2, 2011, 9:12 amJon Shields says:
What is there that I’m “not comprehending?”
February 2, 2011, 9:13 amnick056 says:
Okay, I usually try to avoid bringing but Orwell, but this seems like a good time:
“What the founders thought they thought, differs from what we now know they thought. We have new information.
“We can’t be bound by their writings. There have been advances in logic since their time.
We must always honor their Constitution, as they wrote it, above all.”
That is picture perfect Orwellianism. I strenuously encourage youu to examine your rationale here, because it’s loaded with doublethink.
February 2, 2011, 9:24 amnick056 says:
Okay, I usually try to avoid bringing out Orwell — since I know nothing of his work — but this seems like a good time:
“What the founders thought they thought, differs from what we now know they thought. We have new information.
“We can’t be bound by their writings. There have been advances in logic since their time.
We must always honor the Constitution they wrote, as they wrote it, above all, to guide us in making the law.”
That is picture perfect Orwellianism. I strenuously encourage you to examine your rationale here, because it’s loaded with doublethink.
February 2, 2011, 9:24 amSarcastro says:
Because political sophistry is exactly like judicial sophistry! Bloviating on the floor of the Senate has the same effect as bloviating in a judcial opinion, if you don’t think about it too hard. That’s why we hold Supreme Court elections all the time.
February 2, 2011, 9:34 amOrenWithAnE says:
No, but the mandate is necessary for the regulation of insurance to work. Without the mandate, Congress could not require insurers to take on those with pre-existing conditions.
That’s the point of N&P — that it authorizes additional means towards enumerated ends. The mandate is not an end, it is a means to make the regulation of insurance work. If the N&P only allowed things that were themselves already authorized (i.e. if the mandate could only be N&P if it was itself regulation of commerce or exercise of some other enumerated power) then it would be a nullity.
Is there any argument that any flavor of the Constitution 1865 did not protect the property rights of slaveowners?
What about structural restraints on conservative models that can work in a system at the point where forward progress is halted.
Actually most of the success at gun control has come at the State and Federal level, not localities. Oftentimes it’s local gun laws that are more strict are subject to State preemption, not the other way around.
[ And FWIW, I'm pro-gun. ]
But what about this tool is restricted to conservative/libertarians and a progressive order, as opposed to progressives tweaking a conservative/libertarian order? That is, the tool itself makes no reference to political ideology. A progressive judge can just as well ignore precedent and rule how he feels (Reinhardt, anyone?) as a conservative judge.
And what will happen during the next political football when their opponents decide that sauce for the goose is sauce for the gander.
February 2, 2011, 9:39 amjrose says:
Your quote refers to whether the statute is unconstitutional under a provision such as Free Speech or Due Process. It does not cover when the statute, taken by itself, is not within an enumerated power. Vinson’s conclusion about compelling the purchase of insurance was only that there is no enumerated power to do so.
February 2, 2011, 9:40 amAJ says:
Jon, how would you view a tax on everyone that owns property, where the amount of the tax was an algebraic function of income (the rich pay more for instance)? Is it an income tax or a property tax? Clearly it is a tax on property. It would be considered a direct tax and would be required to be apportioned properly to the states. Here, you are taxing someone who does not own something, health insurance. You are directly taxing the status of the individual. Let’s try another example: could you apply an “income tax” to everyone over the age of 50 to help pay for their increased health costs (again, the tax is made to be some function of the person’s income)? The answer is no, you are not taxing income, you are taxing status. This is a direct tax and must be apportioned. You are better off arguing that this is a regulatory fine in my opinion.
February 2, 2011, 9:47 amDaniel says:
Sounds a bit like the punitive damages cases where the Supreme Court kept reversing before finally giving up and “dig’ing” cert.
February 2, 2011, 9:58 amBrandon Berg says:
That’s kind of the point, isn’t it? The private thoughts of the authors of the Constitution aren’t important. What matters is how those who were responsible for ratifying the Constitution understood it&emdash;how it was marketed, so to speak.
And that’s what the Federalist Papers were: They were the pitch made by the authors of the Constitution to the public and the members of the state governments whom they hoped to convince to ratify it. As such, they should be regarded presumptively as characterizing the original intent of the ratifiers. Of course, if there’s more direct evidence to the contrary, e.g., from records of the actual deliberations by state governments, that would take precedence.
February 2, 2011, 10:02 amWonkish Attorney says:
I agree with the posters who assert that Kerr’s premise is flawed. There is no indication in Comstock that the single sentence upon which Kerr focuses is, in fact, meant to establish a doctrinal test for the N&P clause. It appears to be little more than a slight of hand by Breyer to bend the law as he would like to see it. The cases cited in the paragraph do not support the interpretation given in Comstock without considerable interpretive bending.
Vinson’s citation to first principles may be a stretch, but it is a beautiful stretch. It will force the court to confront directly whether the doctrinal exceptions built into the jurisprudence of the commerce clause and the N&P clause have swallowed the rule that Congress operates on limited, enumerated powers.
As an aside, I would advocate scrapping the broccoli hypothetical, which is immediately discounted as being silly, with the GM hypothetical. If the individual mandate of Obamacare is withing Congressional power then Congress can clearly require each American to purchase a GM product. GM is engaged in interstate commerce and the US government bailed out GM pursuant to commerce clause authority. A congressional mandate requiring each American to purchase a GM product is clearly rationally related to the goals of the bailout, i.e., to keep GM afloat.
February 2, 2011, 10:14 amjosh says:
Is anyone remotely following what GR Mead is saying? Rhetorical “flourish” aside (seriously, I think I wrote like that when I was an English major in college 25 years ago), what is “structural testing of our systems” or “structural solutions of their own”?
February 2, 2011, 10:22 amDan the Man says:
What all of us call the “income tax” doesn’t even pretend to be based only on income factors. The tax table rates are dependent on whether or not you’re married or single, head of household or not, etc. Married people get one tax rate, single people another, etc. Married, single, head of household, etc. are clearly non-income factors. See the entire “marriage penalty” debate. And I’m not even mentioning what is considered as your income is determined by who you choose as your dependents.
If Congress were to make a law which says married people paid 0% tax rate while others paid their normal rates, no one previously (before Obamacare appeared) argued such a law would be unconstitutional – although it might be a dumb law. In this case, under the new law, people who have the required insurance pay the 0% income rate, while others pay another rate (2.5% of the income for most who pay it).
February 2, 2011, 10:25 amAnderson says:
As such, they should be regarded presumptively as characterizing the original intent of the ratifiers.
As a onetime grad student in English, I suggest giving up early on the notion of cementing the meaning of the Constitution in what nine or a dozen state conventions thought it meant.
The Federalist Papers’ authority arises from (1) Hamilton’s and Madison’s participation at the Convention, (2) their subsequent participation in the new government, and (3) the cogency of their reasoning. They are, if you will, the greatest law-journal article ever.
February 2, 2011, 10:25 amAnderson says:
Is anyone remotely following what GR Mead is saying?
I used to try, but not any more.
February 2, 2011, 10:28 amJon Shields says:
You say “clearly,” but I don’t think it is clear at all. The 16th amendment allowed taxes on incomes. If the income->percentage function is between 0 and 100 (satisfying the realization requirement), it is clearly a valid income tax. Limiting the income tax to a certain subset of people doesn’t make it any less of an income tax.
If the 16th amendment said “a tax shall not be considered an income tax unless it applies to all,” you might have a point. But the amendment doesn’t say that, and the court’s cases don’t hold it. As Dan the Man points out above, income taxes are frequently applied differently to different classes of people based on non-income factors.
February 2, 2011, 10:30 amStrict says:
Strict:
“Bad Supreme Court decisions don’t get rolled back by District Court judges (they are the lowest level of federal court system and they are obligated to follow Supreme Court decisions, even bad ones).”
Dave M: “You sure about that? Check on Browder v. Gayle (1956), and then get back to me…”
Yeah, I’m sure.
First, the Browder court said that it was not obligated to follow Plessy (the bad Supreme Court decision) because Plessy had already been “impliedly overruled.” District Courts are not obligated to follow overruled decisions.
Second, I made a general statement. Proof of a single counterexample (or even several) does not disprove my general statement. Someone asked about precedent, admitting he didn’t really know anything about it. I gave a succinct, general explanation. It’s well accepted that District Courts are obligated to follow Supreme Court precedent. There are, of course, examples of District Courts failing in this obligation, but that does not disprove the existence of the obligation.
February 2, 2011, 10:38 amMark Field says:
Assuming this is true in theory, anyone wanting to rely on specific words from the Federalist would still have to show (a) that there weren’t other claims being made by other federalists; and (b) that a particular state convention actually read and relied on the particular essay.
In this case, Judge Vinson made no such showing, nor could he. He misread what Hamilton said, and his reading is inconsistent with Federalist 44 as well as lots of other evidence regarding the intent of the Founders.
In addition, at least 4 states ratified before Federalist 33 was even written, while CT ratified so soon thereafter that it’s doubtful it influenced anyone. Since the Federalist essays appeared in NY newspapers and weren’t available in book form until much later, it’s unclear that they had any influence at all in some of the Southern states. Any such claim would be unprovable because there’s no evidence regarding their conventions except for VA and NC.
This seems inconsistent with your previous claim that everyone should be bound by what appears in the Federalist, particularly since nobody at the time relied on Madison’s Convention notes. Marshall certainly did have access to the Federalist. He also had all of Washington’s papers, including Hamilton’s Memo on the Bank (from which Marshall drew much of his language). In addition, Marshall was an actual ratifier — he was a delegate to the VA convention and knew what transpired there. And, of course, he could use his memory regarding what arguments were made in public prior to ratification.
For the reasons explained above, what you propose can’t be done (even if were correct in theory, which it isn’t).
February 2, 2011, 10:41 amNewbius says:
@No theory of Jurisprudence: My point is this, just because Congress passes an act, and that act is widely utilised, does not make the act itself one in which the enumerated powers authorize. The reference to Dred Scott was in regards to the base ‘wrong-ness’ of the decision with regard to fundamental principles (like Brown was).
A lot of people died as a result of the conflict of visions wherein a person was declared property to be bought, sold, and divided at will. In the main, forcing a party to associate through commerce with people that they may not choose to do business with is as repugnant to me as slavery is, and for the same reasons.
At what point does a person no longer have the right to claim sovereignty over themselves, and over the fruits of their labor (and, yes, I accept taxation as a requirement of citizenship)? Whether the individual mandate is blessed by SCOTUS or not, the fact remains that it is repugnant to the intent of the Constitution, and the scope of the enumerated powers therein.
February 2, 2011, 10:44 amLiberal Chris says:
Adam S, this is not persuasive. I don’t think there is anyone who thinks that “possessing” a gun is the “logical equivalent” of not selling a gun. Your idea would be that congress says, “when we regulated gun possession, we were really regulating people’s economic inactivity, i.e. their decision not to sell their guns.” That’s just not true, the Gun Free School Zones Act simply isn’t a regulation of an economic decision to sell or not sell anything.
How about this, Congress passes a law that everyone has to be kind to their neighbors and say hi to them every day. Is that a regulation of economic inactivity? Of course not. There is just no support for the leap that “if you can regulate economic activity you can regulate everything.”
Perhaps more to the point, the reason Congress can regulate almost anything under the commerce clause is the existing precedent on the Commerce Clause. Home-grown marijuana for personal use? Possession of a firearm by a felon? I mean the logic that allows these regulations under the commerce clause is contorted but it is binding precedent. To my mind, regulation of the health care market (even with a mandate) is so much more in the wheelhouse of the commerce clause than lots of things the courts permit. So it just seems like a political and policy decision to strike this one down.
February 2, 2011, 10:52 amAnderson says:
FYI, Balkinization has a short post on why Vinson’s opinion isn’t just wrong but really bad, and a link to Tim Jost, a healthcare-law expert, who summarizes the logic of the Vinson opinion and demonstrates its flaws.
February 2, 2011, 10:53 amAnderson says:
In the main, forcing a party to associate through commerce with people that they may not choose to do business with is as repugnant to me as slavery is, and for the same reasons.
So you oppose the ban on racial discrimination in accommodations, as upheld in Heart of Atlanta Motel? And your basis is the same as your basis for finding slavery repugnant?
Ooooooooookay.
February 2, 2011, 10:57 amAJ says:
What you are missing, in my opinion, is that the modified tax table represents tax credits that enable two people when they get married to not be penalized when they add their incomes together. If you notice how you modify your taxable income for dependents, the same applies. You are essentially receiving a credit for doing something – similar to when you get a credit for buying a hybrid car or installing solar panels. In terms of government power, tax credits are more in line with the spending power. We are in essence rewarding certain behavior in line with the modern general welfare clause. You will notice on your income tax form, no where are there penalties for not doing something that the government wants because these are rightly seen as direct taxes and require apportionment.
Finally the words “income tax” have a legal definition. On your income tax form, could the government increase your tax obligation because you bought a car during the calendar year. Obviously no, because that transaction is an excise and does not represent derived income. With all due respect, you and Jon have an odd understanding of what “income tax” means.
February 2, 2011, 11:05 amDan the Man says:
In that case, the Obamacare tax penalty is just as much as a tax plus tax credit as the tax tables are. Yes, the word “tax credits” do not appear in the health care law when talking about the Obamacare tax penalty, but then the word “tax credits” are not used in the tax law when describing the difference between the tax rates for married/single people either.
By the way, it is simply incorrect to say that the marriage tax tables “enable two people when they get married to not be penalized when they add their incomes together“. The tax tables do sometimes penalize married people. This is what people mean when they talk about the marriage penalty. Prior to Obamacare, no one has ever claimed the marriage penalty was unconstitutional.
February 2, 2011, 11:16 amSenX says:
Strict, I appreciated your response, thanks.
February 2, 2011, 11:36 amAJ says:
And this has been tested in the legal system
Please see the following
http://taxprof.typepad.com/taxprof_blog/2008/05/is-the-marriage.html
“In 1982, Judge Friendly reevaluated the question of the marriage penalty in Drucker v. Commissioner, 697 F.2d 46 (2d Cir. 1982). Friendly correctly noted that, as a matter of algebra, “it is simply impossible to design a progressive tax regime in which all married couples of equal aggregate income are taxed equally and in which an individual’s tax liability is unaffected by changes in marital status.” Id. at 50. “Whether policy considerations warrant a further narrowing of the gap between the schedules applied to married and unmarried persons is for Congress to determine in light of all the relevant legislative considerations.” Id. at 51.”
The design of the system is predicated on minimizing the negative tax impact of getting married.
February 2, 2011, 11:39 amJon Shields says:
AJ, that was not a tax power case. That wasn’t even an enumerated powers case. That was an equal protection case. And the judge still ruled for the government.
The Constitution simply on its face does not ban non-income-factor differential tax treatment, no case has been posted here that stands for the contrary proposition, and non-income factors have been used for decades.
And on top of that, think of the following absurd result of your conclusion. You are arguing for a bright line rule against non-income-factor differential tax treatment for an income tax. That would make any “marriage penalty” unconstitutional, regardless if it was necessary for a progressive income tax or not. The only solution would be to have a flat tax. So under your theory, a progressive tax would be unconstitutional, since (according to the equal protection decision you cite) any progressive tax would have a marriage penalty that would violate your rule.
February 2, 2011, 11:50 amADF Alliance Alert » If the US Supreme Court isn’t bound by the Constitution, should lower courts be bound by the Supreme Court? says:
[...] Writing at the Volokh Conspiracy, Orin Kerr raises the question of whether a district judge can rule in according with original meanging in situations where U.S. Supreme Court precedents have departed from it. He writes: The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. [...]
February 2, 2011, 11:53 amBrett Bellmore says:
Whereas the anti-Federalist papers’ authority arises from them having had the better grasp of how things would really work out, based on subsequent history.
According to the words. And if you’re going to assert that a words don’t actually have meanings outside of what the person reading them choses to attribute them, so what? I’m going to interpret your comment as a recipe for quiche loraine. You must think I’m entitled to, after all…
February 2, 2011, 12:23 pmNewbius says:
Emphatically, no. When voluntarily providing a place of public accommodation, one must accept all lawful patrons. There is no force involved when one opens an establishment, and the expectation is that the public patronage will be diverse.
However, requiring an individual to patronize a particular establishment, or type of establishment, is more akin to requiring a devout Muslim (or fundamentalist Christian) to drink whiskey in a gay bar (please excuse the stereotypes). The bar owner and the patron have different levels of responsibility, and choice, in the matter of whether to engage in this commerce. The bar owner, in choosing to provide the service, may not then choose who can legally utilize the public accommodation. The patron can still choose not to drink there (or at all).
The individual mandate would erase this, if applied to bars. How is this different when applied to health care?
February 2, 2011, 12:25 pmAdam says:
But it is the logical equivalent. Congress could have inserted the language “and not decided to sell the gun in interstate commerce” after the “possession” clause and it would cover the exact same factual situations, no more or less. Do you refuse to answer whether that would be constitutional if regulation of economic inactivity was accepted?
This is why I didn’t quibble with your contention that Morrison’s (unlike Lopez) limitation would remain. I cannot think of an economic inactivity that has a close nexus to the action of gender motivated violence. Nonetheless I suppose Congress could always an “and” clause to the law that conjoins it with any random economic inactivity. What would prohibit them from doing this? some newly contrived sort of Congressional intent /good faith test?
February 2, 2011, 12:35 pmNewbius says:
Follow up point: Can the government require a person to open a hotel in the first place? If not, is it only then a matter of scale which requires a person to use the services of a hotel? If so, then where is the line drawn as to the scale of government-mandated commerce?
February 2, 2011, 12:37 pmAnderson says:
Whereas the anti-Federalist papers’ authority arises from them having had the better grasp of how things would really work out, based on subsequent history.
Brett, I’m sorry this country has turned out so badly for you.
February 2, 2011, 12:39 pmDantheman says:
“Brett, I’m sorry this country has turned out so badly for you.”
I’m not.
February 2, 2011, 12:43 pmRandomEngineer says:
Okay, thinking outside the box here, and recognizing in advance that the breadth of precedent is not equivalent to that of commerce clause case law: using similar logic as the defense of the health insurance mandate, what would prevent Congress from requiring all militia-eligible men to own a suitable firearm (as defined by regulations promulgated by the Secretary of Defense) or pay a tax/penalty? I believe Congress has concurrent regulatory authority over militias, and the U.S. Code defines the unorganized militia as able-bodied men between 17-45 years of age. Would not the Necessary & Proper clause cover this as it relates to an enumerated power of Congress?
February 2, 2011, 12:47 pmDodd says:
I must respectfully dissent, Prof. Kerr. While he doesn’t quote that precise passage from Comstock, that decision is heavily relied upon in his analysis. And the same point — that the NN&PC exists to allow Congress to implement constitutionally enumerated powers — is repeatedly made. See, eg., Opinion, p. 61, citing Chief Justice Marshall’s substantially similar reasoning in McCulloch.
February 2, 2011, 12:49 pmnick056 says:
Is this question begging? The hotel owners are already providing a public accomodation, but not to all the people. The government can force this to change — making somebody do business with people he wouldn’t want to do business with — but it can’t mandate the purchase of insurance.
The idea that the government can tell you how to sell your services, but not how to purchase your services, is bizarre. (And not currently law.) And it bears repeating: nearly everyone purchases healthcare services, and not everyone is actually subject to the mandate based on simply breathing. The inactivity/activity distinction is still something I doubt will get even four votes on the Court, because it’s ridiculous.
February 2, 2011, 1:06 pmAJ says:
List one non-income factor (other than marriage status) that INCREASED someone’s tax liability. There must be many examples if it has gone on for decades. One will suffice.
February 2, 2011, 1:07 pmsashal says:
I have a solution to all problems with the new ACA.
Let the republicans , every one who is against it, sign a waiver that they promise not to participate in the commerce of health care , never get sick , never go to a doctor or hospital.
February 2, 2011, 1:08 pmIn case they will though, let them pay out of pocket cash right away on the spot with the document they sign declaring that they did participate in the commerce which Congress has right to regulate
Michael Ejercito says:
Nothing.
February 2, 2011, 1:14 pmLiberal Chris says:
I don’t agree that Congress can save the law by inserting language that claims they are regulating “the inactivity of not selling the guns.” Just like Congress couldn’t save the Violence Against Women Act by including all sorts of economic data on how the violence affects commerce.
It just seems on its face that a law saying, “you can’t possess a gun near a school” is not the same as one saying “you can’t decline to sell your gun near a school.” The latter would (I guess) be a regulation of economic inactivity but the analogy is inapt.
In any case, the current jurisprudence on the commerce clause is incoherent. How is the gun free school zone act unconstitutional, but the federal law against felony possession of a firearm constitutional? If the concern is that “allowing the federal government to regulate X would allow regulating almost anything,” that is already the state of the law, and the inactivity/activity distinction isn’t the reason.
February 2, 2011, 1:19 pmMichael Ejercito says:
Congress has the power to regulate interstate commerce.
Hospitals are not interstate commerce. When was the last time you saw an ambulance cross state lines?
February 2, 2011, 1:21 pmMichael Ejercito says:
More to the point, how is the Lautenberg Amendment constitutional?
February 2, 2011, 1:24 pmsashal says:
O’K we will add up a clause that you promise not to buy drugs out of state and do not use out of your state Hospitals or transplants shipped across the the borders.
February 2, 2011, 1:25 pmWill you sing up then?
Newbius says:
@sashal: If I choose to refrain from engaging in commerce until such time as I choose otherwise, and at that point I am willing to pay the cost of the service, will you actually allow me to pay (in cash) for actual services rendered? Are you sure that this is wise? Doing so would introduce a measure of uncertainty into the cost accounting basis, which the ACA is attempting to rigidly control. Under the ACA, this is not allowed.
If your aim is, instead, to require me to support everybody else, and redistribute my wealth under the ruse of health care, then just say that (while sending the men with guns to my door to confiscate my money). At least then your approach will be honest.
February 2, 2011, 1:31 pmJoe (not that one) says:
When was the last time you saw an ambulance cross state lines?
Happens all the time with air ambulances.
February 2, 2011, 1:32 pmAndrew says:
I’m late to this comment, but it was my understanding that this is how the court system in France operates. Depending on the amount of disagreement, opinions/decisions sometimes travel up and down the appeals system several times before things get settled. It’s certainly strange from the viewpoint of someone accustomed to the American system, but it’s not chaos.
February 2, 2011, 1:33 pmMichael Ejercito says:
First of all, you do not get to change the terms of your argument.
I never been to an out of state hospital.
From where I live, the nearest city outside of my state is Tijuana, B.C. I never saw an ambulance ferry someone all the way there, or ferry someone all the way here from Tijuana.
February 2, 2011, 1:37 pmsashal says:
great, so you going to sign up to my proposal. Pay in cash for all your medical procedures and refuse all out of state help-being that drugs , better Hospitals, transplants etc…..
February 2, 2011, 1:38 pmsashal says:
This agreement is still developing , not final , and certainly open to improvement
February 2, 2011, 1:41 pmMichael Ejercito says:
Here is a better idea. Why don’t supporters of this law all move to Massachusetts or other states where an identical state law exists.
There are no Article I limitations on states to enact this sort of policy. If such a policy was so great, surely everyone would be lining up to live in states that enacted these policies.
February 2, 2011, 1:55 pmOrenWithAnE says:
You mean a decision that postdated Brown v. Board by 2 years?
Renting a house versus owning.
When was the last time you visited a hospital in which all the supplies were sourced in-State? I venture one doesn’t even exist.
February 2, 2011, 1:58 pmKazinski says:
It’s apples and mangoes:
But you can have marital sex in a car, so I suppose that is subject to at least some state regulation. Nor is there a reasonable expectation of privacy.
February 2, 2011, 2:00 pmAdam S says:
Perhaps “failure to sell” isn’t a perfect fit b/c the “possession” allows the possibility of leaving the gun outside the school zone but otherwise possessing of X is simply the same as not deciding to divest oneself of X.
This is in parallel to the individual mandate:
Not possessing health insurance= failure to buy (economic inactivity)
possessing a gun= failure to sell (economic inactivity)
Also the logically equivalent translation is not “failing to sell your gun near a school” bc the sale doesn’t have to occur near the school, only ongoing failure to sell/leave behind.
What if the law stated “when you enter a school zone you must either sell your gun or leave it behind”.
This would cause some effect on the gun market (see those whose houses are within school zones and wouldn’t have the option of leaving the gun at home(putting aside any 2A issues). In Morrison Congress had to adduce data bc the economic action/inaction wasn’t apparent from its text. Here it is apparent on its face, so I don’t think you are right that the law fails in the same way.
February 2, 2011, 2:07 pmNewbius says:
@Sashal: Try reading my response first. I replied with questions, not an agreement to your proposal.
As long as we are putting up straw men, does sunshine travel interstate? If so, can the government regulate your tan? They seem to think that they can regulate your desire to obtain one artificially, from a salon, so why not extend that to one obtained naturally?
February 2, 2011, 2:11 pmOrenWithAnE says:
FIFY. This (like Mead’s “structural-reform”) is an argument that could work for any political/legal hot-button issue.
February 2, 2011, 2:13 pmOrenWithAnE says:
Sitting outside and tanning is not commerce. Congress could not directly legislate in matters concerning sitting outside and tanning.
They could regulate something that is undoubtedly commerce and then attempt to show that regulation of tanning is a necessary means to achieve that ends (as in the Madison quote from Fed44). That would be a mean feat though.
February 2, 2011, 2:25 pmsashal says:
First of all, sunshine does not travel the interstate but comes directly from the sun to each individual state( you did not know that? )
February 2, 2011, 2:25 pmSo no federal government regulation here is called for….
Calderon says:
OrenWithAnE said:
Under Wickard, why not? There are tanning salons that operate in commerce as understood in modern jurisprudence. By using the sun to tan, one would be affecting the market for tanning salon services. “Congress may properly have considered that [tanning] consumed [outside in the sun], if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.” Thus, the government should be able to prohibit or limit free tanning using the sun.
February 2, 2011, 2:35 pmmillard says:
The Constitution doesn’t include the words “Congress shall not require any person to purchase medical insurance.” It does have a provision that authorizes Congress to “regulate Commerce with foreign Nations, and among the several States,” and another that authorizes it to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Somebody has to interpret what those phrases mean and how they must be applied. In our system, that somebody is ultimately the U.S. Supreme Court, not Brett Bellmore
I’m not sure why you’re excluding marriage status, but here are a couple more: the decision not to buy and finance a home (ie., a penalty for not purchasing a product); and the failure to have dependent children.
February 2, 2011, 2:40 pmGrover Gardner says:
It’s apples and mangoes:
Automobile insurance requirements are implemented using general state police power.
There is no constitutional right to drive.
Driving is done on state, county and city property.
Driving is an action not an inaction.
You didn’t answer my question, though. Do you consider the requirement to buy auto insurance an invasion of privacy? And if not, why would you consider a requirement to purchase health insurance an invasion of privacy?
February 2, 2011, 2:43 pmGrover Gardner says:
…akin to government regulation of your marital sex life, that is, as you first stated?
February 2, 2011, 2:47 pmAJ says:
You are confusing the carrot with the stick. Mortgage interest is a deduction that decreases your tax liability. A renter does not see his/her liability go up because they do not have a mortgage — they simply do not qualify for the deduction. Deductions/credits are government forgiving tax liability and thus more resemble government spending power.
February 2, 2011, 2:48 pmAJ says:
Again the health insurance law is not set up to award a tax credit for having health insurance. This is unquestionably constitutional, so would be spending money to subsidize people purchasing health insurance. What’s unconstitutional is leveling a direct tax on the status of not owning insurance (without considering apportionment). This is why most everyone is arguing this as a CC + N&P case and consider the penalty as a fine. There appear to be fewer rules governing how the feds apply fines.
February 2, 2011, 3:03 pmSebastian the Ibis says:
I thought Vinson addressed this in two ways: 1. By finding that inactivity is not commerce, or any other “constitutionally enumerated power” and 2. By finding that the government can’t create a clusterf** and use the necessary and proper clause to resolve it.
As to point 1, The the inactivity question is unprecedented, as Vinson repeatedly said. Raich did not address inactivity, and neither do Lopez and Morrison although they might hint at it. With no precedent to look to, what else is Vinson to look at besides original intent? His only other alternative is to disingenuously stretch either Raich or Morrison/Lopez.
Point 2 is less well founded, but I’ve never known a judge to worry to much about precedent when making a logic argument.
February 2, 2011, 3:03 pmrpt says:
Ambulances do not stop at state lines. This is common.
February 2, 2011, 3:09 pmStephen Lathrop says:
Seems like Mark Field has made two of the most on-point contributions to this thread, and nobody is touching them. Wonder why not?
February 2, 2011, 3:26 pmOrenWithAnE says:
But there is no Federal scheme to regulate commerce in tanning salon services.
This is semantic. A mortgage deduction is a renter’s penalty.
February 2, 2011, 3:41 pmNewbius says:
Only at high noon. At low approach angles, sunlight does indeed travel through the airspace of adjoining states to arrive at my location. The Government regulates the use of the airspace through which it travels (via the FCC and FAA), so where would the limit be? “Oren with an E” got my point, in that the Federal government imposed a tanning tax for people who use the services of a local salon, and the use of sunlight does indeed affect the market for those services. (See: http://money.cnn.com/2010/03/24/news/economy/tanning_tax/)
If I choose to tan out-of-doors, should I pay a penalty for not using a tanning salon (affecting the market), just as my use of a tanning salon ‘has been found to increase the overall rates of skin cancer among people of Northern European descent’ (affecting the cost of health care)?
February 2, 2011, 3:44 pmMark Field says:
Indeed, the Court has already held that the business of hospitals both is in and affects interstate commerce. Hospital Building Co. v. Rex Hospital Trustees.
February 2, 2011, 3:47 pmDon says:
The Constitution permits Congress to regulate commerce between the states. Where does it say Congress can impose commerce upon a state: or a state’s citizens for that matter?
February 2, 2011, 3:48 pmSKI says:
Speaking of distinctions without a difference. There is no functional or economic difference.
February 2, 2011, 4:18 pmduffy pratt says:
That’s not quite how it works. An appeals court can reverse a district court’s judgment. The Supreme Court might then have a shot at the appeals court ruling. If either of the higher courts reverses and renders, the District court will no longer have anything to do with the case. If there is a reversal and a remand, the District court may be instructed to do certain things consistent with the ruling of the higher court. In an extreme case, an appeals court might actually pull the case from the District court’s jurisdiction, and either take it over or cause it to be re-assigned. None of these actions actually obligate the District court to do anything. It happens that the Court system works, and District courts regularly follow the instructions of appellate courts.
The judge’s oath is to uphold the Constitution. Nothing says how the judge shall interpret the constitution. That, I believe, is a matter for the judge’s conscience. The Constitution says that there is one Supreme court, and that other Article 3 courts are “inferior.” It doesn’t say how the Supreme court is supreme, or how the others are inferior. One might argue that the Supreme court is Supreme because it has appellate jurisdiction over the inferior courts, and can reverse them. Or maybe its because the Supreme Court gets to make law through its decisions that bind the other courts. That’s a matter for interpretation. So, what is a lower court judge to do when convinced that a Supreme Court opinion is unconstitutional? I don’t think the answer is as clear cut as others seem to think. And I think judge’s, in good conscience, can differ about what they ought to do. One perfectly reasonable alternative is to refuse to follow the Supreme Court case, make the best argument possible for the refusal, and then let the appellate court reverse if the argument is not persuasive.
February 2, 2011, 4:21 pmOrenWithAnE says:
No, but as I understand it, if regulation of tanning is necessary for some other regulation within Congress’ ambit, then the power to do so is included in N&P.
[ Not that this is a good idea. Neither is a 95% income tax, but the 16A allows for such a thing irrespective of how bad it is as an idea. ]
February 2, 2011, 4:30 pmOrenWithAnE says:
It does not. And therefore a free-standing mandate would not be within Congress’ power.
February 2, 2011, 4:31 pmAJ says:
The difference is huge: any dog quickly learns the difference between a treat and a spanking. No one is mandated to buy a house and assume a mortgage. You earn a reward if you do in exchange for more responsibilities that go along with home ownership, including paying property taxes (that the renter does not pay) and home insurance. The renter assumes no penalty, he/she is not comparably situated so there is no due process violation as government has many rational reasons for promoting home ownership.
The “stick” would be if on your 1040 form you had to pay extra taxes if you rent. The extra tax would be a direct tax on renting and would need to be apportioned. However, it could be plausibly recast as an excise (or use) tax that would be applied when you signed your rental agreement and would then be allowable. with health insurance, it would seem permissible to impose an excise on certain health care services if you use them without insurance.
February 2, 2011, 4:33 pmjoe says:
Mike – that is almost exactly Stevens dissent in CU. About a third of the way through the dissent he quotes the 1st amendment – then proceeds to explain why precedent allows the court to overrule the 1st.
February 2, 2011, 4:33 pmJon Shields says:
I would agree, though even if you think there is somehow a constitutional difference between two differential tax treatment schemes that mean the same thing, an income tax on those without insurance is STILL constitutional.
There is nothing in the Constitution that changes an income tax to a direct tax just because it is applied to a subset of the population, no court case has ever held such, AJ can’t point any court case that has held such, AJ discounts the marriage example because it is quite inconvenient for his argument, and AJ doesn’t deal with the fact that if his theory is applied to the marriage example then no progressive income tax would be constitutional. The idea that certain income taxes have to be apportioned if they apply to subsets is complete nonsense.
February 2, 2011, 4:34 pmduffy pratt says:
The opposite position, taken to its extreme, can sound just as bad. The Supreme Court can say whatever they want about what the law is, and once they do, the decree is binding. At its extreme, this sounds like a recipe for tyranny. I think both extreme positions are wrong, and a bit silly.
Judges are bound by their oaths, and by their consciences, to follow the Constitution and the laws of the United States. The question then, is whether the principle that inferior courts follow the Supreme Court is part of the “Constitution and the laws”, and if so, how does it stand in relation to other laws. The Constitution doesn’t say. There’s a good argument that the status of Supreme and Inferior courts embodies the principle in the Constitution. But it’s something on which judges could disagree in good conscience. It’s also possible that the principle is a matter of Federal Common law, or that it’s simply a necessary rule within the judiciary for its day to day functioning. How a judge comes down on this question will depend on the judge’s own views.
But what should happen when the Supreme Court orders a lower court to do something which the lower court, in good conscience, believes to be unconstitutional? Again, I think the answer will vary from judge to judge. But, ultimately, I would like the judges to remain true to their oaths, since that is what the Constitution requires.
We expect, and sometimes demand, that the lowest private in the army disobey a clearly unlawful order. That hasn’t led to chaos. Why should we expect less from Article 3 judges?
Furthermore, in what sense does anyone think that an Article 3 judge is bound? There’s very little direct power that any judge has over a court. Ultimately, the power that the higher courts have is to remove a case or question from the lower court. Beyond that, they can’t punish or force an Article 3 judge to do anything. Congress could impeach a judge, but if they started impeaching judges for the content of their opinions there would be an uproar among the judges about encroachments on the judicial power. So, they are not obliged to follow in the same way that other laws oblige people, because there is no practical recourse that can be taken against them. For the most part, they follow because they choose to follow and because that comports with their understanding of the constitutional framework.
But I also think its possible that the higher courts might go too far on some issue, and if they did, I would hope that the lower courts would not blindly follow. It’s a tribute to the stability of our country that the closest we have ever come to such a situation is with the fugitive slave laws.
(By the way, much of what I believe here derives from Lincoln’s thoughts about the status of the Dred Scott decision. Much as he talks about its effect on the executive, I believe the same arguments can apply to any officer who takes the oath of office, at least to the extent that there is no contrary law which requires the officer to do an unlawful act. If there is such a contrary law, the officer required to do the unlawful act should resign if he wants to adhere to his oath.)
One more thing. I really hate this general form of argument. My favorite answer to it is from Woody Allen: “If everyone in New York went to the same deli at the same time and ordered bliintzes, there would be chaos. But they don’t.”
February 2, 2011, 4:48 pm1040 says:
But that can’t be. If they can apply taxes to subsets, they can tax me for eating broccoli! Or something like that! Will nobody, but nobody, think of the broccoli?
February 2, 2011, 4:49 pmAJ says:
Let me try one more time: Suppose you and I have the same income and we are both subject to the same income tax liability of $1000.
Ex1: There is a $200 tax credit for purchasing an electric car. You purchase the car and reduce your tax liability to $800. I choose not to purchase the car and pay my $1000 liability.
Ex2: There is a mandate to purchase electric cars. If you do not purchase an electric car, your tax liability increases by $200. You buy the car and I don’t. Your tax liability remains at $1000 and mine goes up to $1200 despite having no additional income.
How exactly are these two cases identical? One obviously raises more tax money than the other, no? One is a carrot and one is a stick.
February 2, 2011, 4:51 pmDilan Esper says:
How about Rehnquist in Dickerson? He doesn’t think Miranda was correct as an original manner but he nonetheless upholds it as a controlling precedent.
February 2, 2011, 4:51 pmKazinski says:
No it isn’t. It is a subsidy for renters. When a landlord takes a mortgage deduction, it subsidizes his costs for providing rental housing. In that way it serves to both increase the supply of rental housing driving down rental prices, and lower the cost for the landlord, giving him a lower break even point of the rent.
Even if the Landlord keeps all the subsidy, it still encourages him to increase the supply of rental housing which benefits renters.
February 2, 2011, 4:52 pmJon Shields says:
Where do you get the idea that you need additional income for a tax to be constitutional? The only requirement is that the income being taxed is realized (the realization requirement). Well, the income that the $200 is taxing is still realized income, despite the higher tax bill. The $200 tax does not tax a “different pot” of income that needs to be independently realized somehow — it taxes the same, fully realized pot of income.
The only way it would be an unconstitutional direct tax is if the tax bill were higher than their income. That would be an unconstitutional direct tax on wealth if it weren’t apportioned. But that is not the case with the mandate, or in your example. There is no case to back up your assertion, and your additional proposed limits on income taxes appear nowhere in the Constitution (which is probably why there isn’t a case judicially inventing them).
February 2, 2011, 5:08 pmOrenWithAnE says:
And anyone smarter than a dog knows that the difference only matters if the owner is not free to set the base-level of treats. 2 treats per week with a 1 treat penalty for barking is substantively the same as 1 treat per week with a 1 treat bonus for not barking.
What alternate universe do you live in in which renters don’t pay property taxes through their rent?
Congress can of course remove the Justices. Presidents can appoint different-minded Justices. The Senate can withhold consent on prospective Justices that they suspect would support such a ruling.
Their decree is binding only in the short-term. If there is either a major political will, or alternatively a moderate but temporally-persistent political will), to undo what they have done, it will not stand.
February 2, 2011, 5:09 pmOrenWithAnE says:
This is the mistake right here – your income tax liability is not fixed, it’s whatever Congress says it is. You are right within that assumption, but it does not hold. That is, consider examples 3/4:
Compare these with your ex1/ex2.
February 2, 2011, 5:14 pmG.R. Mead says:
Why am I not surprised? Shall I make short sentences for you, and leave aside the secondary dependent clauses ?
I have practiced fourteen years as a litigator. The judicial system is steadily ceasing to function. Foreclosures abound but final rulings are not had. Condo associations are starving to death; bailed-out banks foreclose but stop formal title transfers to avoid maintenance charges on units. Personal property is taken by admitted forgery but a replevin order already decided at hearing sits waiting a more than a year for entry, whilst the property disappears. A summary judgment ruling sits for two years after a verbal grant without a rendered order that can make it final or appealable. A judge rules on half the analysis required by the controlling law after the case sits inexplicably almost a year waiting on scheduling order to even allow discovery. A court requires proof of facts to avoid summary judgment — which are admitted in the pleadings. Drug offenses shove aside civil trial calendars as far as the eye can see. I could go on. It is not their fault, by and large. The structure of the system is not built for this, as I may have mentioned.
Get out of the ivory tower, people. The game on the ground is a bit different. Those at the top are making it demonstrably worse. They pass this kind of nonsense on stilts that they cannot even trouble to READ before voting on. The system does not exist to posit grand principles – and there is no principle much less anything grand about the issue at hand. The system exists to resolve real conflicts before they become outright personal and even public violence. Or do you not pay attention to the news lately?
These conflicts aren’t being resolved — and thus the conflicts are only growing. They are growing to a point that the system itself is becoming demonstrably at risk. The system is steadily losing the support of the people’s trust in its fairness, predictability and trustworthiness.
But by all means please criticize my rhetoric a bit more. That should help alot.
February 2, 2011, 5:43 pmtomemos says:
Oh, so now we’re trusting to common sense to prevent absurd results? After two hundred comments arguing about whether Congress might make us eat broccoli?
February 2, 2011, 5:44 pmloki13 says:
Well, it’s real simple. If you don’t believe in vertical stare decisis, you don’t believe in either the rule of law or in any sort of predictability in the legal system.
Let’s say you have two similarly situated litigants. They bring identical cases to a federal district court. There is binding SCOTUS precedent on the issue.
Litigant A gets assigned to a judge who believes he knows exactly what the Constitution commands- through his own lens. We’ll call him Vinson.
Litigant B gets assigned to a judge who believes he knows exactly what the Constitution commands- through his own lens. We’ll call him Reinhardt.
Neither feels bound to pay any attention to the precedent. A and B get the exact opposite rulings. And this can happen in all cases, with no predictability (and can continue through the CoA) since all judges can do what they think is best- a minimalist Constitution, an “empathetic” Constitution, a textualist approach, an Original Expect Application approach, a seance with Hamilton approach and so on.
There’s already a certain amount of uncertainty in litigation. What you’re asking is increase it (and costs!) exponentially. Heck, could you even get a motion to dismiss granted given that a judge could just say, “Meh, I know SCOTUS ruled on this exact issue, but I just really want to get to discovery and exhume Madison.”
February 2, 2011, 5:57 pmCalderon says:
This thread probably passed the usefulness point quite a while ago, but I did want to point out something regarding the penalty / benefit distinction. Even if you think there’s no economic distinction between the two (what, don’t you believe in behavioral economics?), as a matter of descriptive doctrine the federal courts apply a legal distinction between the two.
Courts have held that sometimes the government can give you a benefit in exchange for waiving a constitutional right, even if it could not require you to waive the right under threat of a penalty. These cases arise under the category of “unconstitutional conditions.” While normally when people talk of unconstitutional conditions they’re arguing that a statute providing a benefit in exchange for waiving a constitutional right is unconstitutional, that argument does not always succeed. To give some examples:
1. Congress likely could not pass a law forbidding family planning services from encouraging or promoting abortions, enforced by the threat of heavy fines (a penalty). But the government can deny subsidies (a benefit) to family planning services that encourage or promote abortion under Rust v. Sullivan.
2. The government cannot impose higher sentences (a penalty) on persons who exercise their rights to a jury trial and then are found guilty. But it can offer a benefit of reduced sentence for those who plead guilty and forego their right to a jury trial.
3. The government cannot forbid people from participating in political campaigns, on penalty of losing their private jobs or hefty fines. But the government can offer government employment (a benefit) with the condition that the person surrender their right to participate in such campaigns, U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers.
4. A city could not prevent its current residents from moving their residence outside of the city, enforced by fines or a requirement that the resident quit their current job (a penalty) under Saenz v. Roe. But a city can offer someone a city job (a benefit) and if they accept it, require them to live within the city limits. (Or at least Chicago does)
5. The 21st Amendment gives states the power to regulate alcohol, and the federal government could not pass legislation requiring that every state pass a law prohibiting anyone from selling alcohol to a person under 21 years of age or pay large annual fines (a penalty). But the federal government can provide the states with federal highway subsidies (a benefit), and withdraw those subsidies from states that do not pass a law making the drinking age 21, South Dakota v. Dole.
For more examples on the unconstitutional conditions doctrine (and the circumstances where the court has rejected the doctrine, creating a difference in how benefits and penalties are treated), see generally http://www.law.fsu.edu/journals/lawreview/downloads/333/Farber.pdf
February 2, 2011, 6:11 pmFred says:
Health insurance companies must create entities in each state in order to sell health insurance there. The only way that people in one state buy individual insurance in another is to lie about their residence. The rules are different for large employers because they are providing a health benefits plan to their employers under ERISA.
This is why different states have different health insurance mandates and why one conservative proposal would allow nationally chartered health insurance companies in addition to state ones–businesses would get to pick as is the case in banking.
February 2, 2011, 6:20 pmDuffy Pratt says:
What mechanism enforces vertical stare decisis? My position is that the Constitution binds judges via the requirement of the oath. Beyond that, the binding comes from the consent of the judges to be bound. That may be in part from their understanding of the judicial role. But there is nothing anywhere that can force an Article 3 judge to take an official action that he refuses to take. If there is an obligation on the judges, it is one that has no teeth.
What you are suggesting can happen. From time to time it does happen, and there is little or no recourse against it. It also hasn’t crippled the system, overrun it with additional costs (not compared with other flaws in the system), or destroyed the rule of law. Personally, I think the opposite view, taken to its extreme, is more dangerous to the rule of law.
February 2, 2011, 6:40 pmDuffy Pratt says:
Yes, I’m so glad that we live in the United States, where we have constitutional protection from having to change our underwear every half hour, and from having to wear it on the outside so the government can check.
February 2, 2011, 6:47 pmAnderson says:
Charles Fried’s prepared Senate testimony provides a rare example of what a conservative who understands constitutional law thinks about the individual mandate.
Via a TNR post with this priceless line:
After [Randy] Barnett’s testimony, Fried, his face deadpan, wanted to clarify one small matter: “I taught Professor Barnett torts, not constitutional law.”
February 2, 2011, 7:11 pmloki13 says:
I don’t think you’re really thinking this through. But that’s okay. I still remember when conservatives didn’t like judicial activism. Heck, they even got me on board!
February 2, 2011, 7:12 pmDuffy Pratt says:
Please answer two questions:
1) What is the source of law for vertical stare decisis?
2) What are the practical consequences for a judge who does not follow it?
February 2, 2011, 7:17 pmjrose says:
I’m having trouble seeing how Vinson used McCulloch or Comstock to support his claim that it is not proper for Congress “to define the scope of its power merely by arguing that a provision is ‘necessary’ to avoid the negative consequences that will potentially flow from its own statutory enactments.”
February 2, 2011, 7:21 pmloki13 says:
I’ll make a deal. I’ll go into a long history of vertical and horizontal stare decisis. I’ll make it clear. But first, answer two questions-
1. What is your legal background? Lawyer? Paralegal? Been involved in court cases?
2. Will it matter what I say?
No offense, but I’ve been involved in this before. And I’d rather not take my time out from preparing a motion to write something meaningful if it ends up going to the “gold fringe” brigade, or will just be ignored because, dude, THE CONSTITUTION!
February 2, 2011, 7:24 pmOrenWithAnE says:
I believe in behavioral economics, but I don’t believe that such distinctions are relevant in a legal context.
In none of those examples was the Federal government empowered to arbitrarily set the baseline as they are in the case of taxation of income.
Article III, creating a Supreme Court and inferior ones. When a tribunal is inferior that tautologically requires that it apply the decisions of the higher courts. Otherwise it would not be inferior but rather independent.
February 2, 2011, 7:50 pmCalderon says:
OrenWithAnE said:
In each of the examples I gave, the government has the power to arbitrarily set the baseline amount of the benefit, same as for income taxation. The government can’t set penalties in my examples, but of course that’s the point.
February 2, 2011, 7:57 pmAJ says:
I guess what you are getting at is that congress could raise everyone’s taxes by $750, then award a tax credit of $750 if you can demonstrate some minimum level of health insurance coverage. Since this is equivalent to simply fining everyone without insurance $750, then you argue that both must be constitutionally allowed. I’ll argue this three ways:
First, consider the impact of this regulation. If it meets its stated goal of getting people to insure themselves and fill up the insurance pool to cover those with pre-existing conditions, then it would raise no (or very little) “tax” revenue. Granted excise taxes on cigarettes and booze in part are an effort to disuade use, but they are also structured to raise revenue. Here, you have a tax that if things work out as planned, doesn’t raise revenue. Does that sound like a tax or a fine? Name a tax that is designed to not raise revenue.
Second, the intent of the legislation is very important. I would argue that the tax/credit approach is transparently an effort to directly tax the uninsured rather than reward the insured. Why? Because the insured have no net tax advantage and the uninsured have a net tax liability. This would contrast with most other credits, for example solar panels or electric cars, where the clear goal is to provide a tax benefit for the action. So again, the masqueraded goal here is to apply a direct tax on an individual and avoid the apportionment requirement. The intent of the scheme should be relevant.
Third, I would argue that this is an end-run around CC and N&P regulatory limitations. Since economic inactivity distinguishes this case from Wickard/Raich and the broadness of the regulation distinguishes it from Comstock, we are in fresh territory and I suspect that the scope of “mandates” makes the Roberts/Scalia/Kennedy crew a bit nervous with respect to what precisely remains of state commerce powers. So it would seem quite curious if an unconstitutional exercise of CC/N&P power could be avoided by simply recasting it as an unprecedented income tax “un-credit”. You can’t use the CC to mandate people to buy a GM car? Fine, if you don’t have a GM car, then you face an “income tax” penalty. Don’t like that, then spin it as a uniform tax increase of the penalty on everyone and a tax credit to those owning a GM car (this then leads back to my second point — what is the intent of the legislation).
So, no your new examples are deffective as well.
February 2, 2011, 8:54 pmCommentor says:
The following of precedent is the only true form of judicial conservatism. Originalism or other -isms of interpreting the Constitution is deciding cases based on a judge’s opinion of what the Constitution should be. I suggest that we should neither be “Originalists” nor anything else.
I’m dumbfounded at the level of complexity of the arguments that have been posted by both sides. Is our healthcare industry interstate commerce? Of course. Is our insurance industry interstate commerce? Of course. Then Congress has the power to regulate it through the necessary and proper clause. This is exactly what the earliest precedents of the Court held.
Deciding what is actually necessary and proper is a legislative function. Think of public necessity in the realm of eminent domain. I cannot imagine a more audacious statement of judicial activism than the idea that the court could decide what legislation is “necessary and proper” to carry out the powers expressly granted to Congress.
February 2, 2011, 9:17 pmJon Shields says:
Maybe you are arguing from an originalist perspective. But if you are arguing from a case law perspective, that is manifestly false. Intent does not matter at all.
US vs. Sanchez:
“First. It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. Sonzinsky v. United States, 300 U. S. 506, 300 U. S. 513-514 (1937). The principle applies even though the revenue obtained is obviously negligible, Sonzinsky v. United States, supra, or the revenue purpose of the tax may be secondary, Hampton & Co. v. United States, 276 U. S. 394 (1928). Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate. As was pointed out in Magnano Co. v. Hamilton, 292 U. S. 40, 292 U. S. 47 (1934):
Page 340 U. S. 45
“From the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishment.“”
February 2, 2011, 9:40 pmduffy pratt says:
1) I’m a lawyer. I went to a good school, clerked at the District Court in Minnesota, practiced with a litigation boutique for a few years, then started my own firm, and then co-founded a company that made legal expert systems.
2) Your answers might matter to me, if I found them persuasive. I think you may be lumping me in with a group of people with whom I definitely don’t belong. For example, on this issue I think that Congress basically has plenary power under the Commerce Clause and the Necessary and Proper clause. I pretty much think that McCullogh combined with the growth of commerce has made that inevitable. So, in my opinion, this judge is wrong, and he’s fighting a battle that was lost long ago.
But, if he thinks he is following the Constitution, and bucking court precedent, what are the consequences? Maybe a rebuke in a court opinion. There is very little that anyone can do to force a Federal Judge to keep in line. Mostly, they are guided by their own consciences, and hopefully by their oath, and not by any fear of reprisals, and I think that’s a good thing. If it means that sometimes the system gets a little disorderly, I’m fine with that.
Thus I ask what the source of the law is. The best argument I know is that it’s from the Constitution and that’s what the superior/inferior relationship means. Maybe so, but it may also be that the Supreme Court is supreme in the sense that no court will have appellate jurisdiction over it. With the exceptions clause, Congress could have structured the courts very differently than they did. And it’s not necessarily the case that an inferior Article 3 court sit underneath the Supreme Court at all. So, on this point, I think there is some room for disagreement.
So, answer or don’t as you please. But please don’t try to lump me in with a bunch of knee jerk originalists who think the Constitution and its interpretation is as plain as day, but that it has somehow been hijacked by a bunch of pinko activist judges.
February 2, 2011, 10:16 pmMartha says:
Plus there’s the Emergency Medical Treament and Active Labor Act.
But even if that didn’t exist, it would still be bad for everyone if uninsured people could opt out of hospital care. I don’t want the emergency room staff waiting to learn whether I’ve signed sashal’s agreement while I’m unconscious & bleeding to death.
February 2, 2011, 10:19 pmduffy pratt says:
That’s one interpretation of Supreme. As I said above, another possibility is that the supreme court is supreme in the sense that no other court shall have appellate jurisdiction over it. It’s also possible that by supreme, the constitution means that its judges will be paid the most.
Congress could set up an inferior court with a limited subject matter jurisdiction. It could also set it up so that no other court had jurisdiction over that subject matter, and that there was no appeal from that court’s judgments. Would this court be bound to follow the Supreme Court? If so, how?
February 2, 2011, 10:22 pmMichael Ejercito says:
Where I live, ambulances do not go all the way to Tijuana.
Brown only dealt with segregation in public schools, holding that separate can not be equal in the field of public education. There were other cases where the Supreme Court struck down segregation in higher education by finding that the schools in question failed the “separate but equal” standard.
More to the point, sunlight comes from outside the United States.
The Supreme Court can remove a case from a lower court.
February 2, 2011, 10:31 pmOrenWithAnE says:
So let’s suppose that the stated goal of cigarette excise was to end smoking in the US. If it succeeds, there is no revenue raised but then it’s no longer a tax and therefore by your argument impermissible? This is just bizarre. In order to assess the constitutionality of the excise, Congress would need to divine whether or not it would cause most smokers to quit.
But if it doesn’t work out as planned and ends up raising large amounts of revenue, it’s OK? Or does this turn on the subjective intent of Congress (however one figures out what that is)?
The latter seems to me bad but constitutional policy under the 16A.
February 2, 2011, 10:32 pmOrenWithAnE says:
For that matter, it could also mean that the Supreme Court comes with sour cream and guacamole.
From the practice of the early Republic, however, such an interpretation is just not sound. The Founders did even know what guacamole was!
No, Congress may not create any inferior Court that is not inferior to the Supreme Court.
Look to Article III Section II:
The choices for SCOTUS jurisdiction are either original or appellate. If it’s not one, it’s the other. Congress can make exceptions and grant the Court original jurisdiction in some category of cases not mandated by Art III and it can create regulations regarding that jursidiction, but in any case the Supreme Court always has some form of jurisdiction over every exercise of the judicial power.
February 2, 2011, 10:47 pmStrict says:
“I’m dumbfounded at the level of complexity of the arguments that have been posted by both sides.”
It’s complex because the task for the Supreme Court in this case will be not simply to decide who wins (uphold or scrap the legislation), but to lay down a rule for the future – a rule for lower court judges and Congress to follow in the future.
February 2, 2011, 11:28 pmDuffy Pratt says:
For much of its history, the court had no jurisdiction over criminal appeals from state courts, even if the cases lay within the judicial power of the United States. Thus, its pretty clear that the exceptions clause gives Congress options other than simply either/or.
February 2, 2011, 11:28 pmnick056 says:
That is excellent testimony. It doesn’t neglect the N+P issue; it clearly describes the Commerce power without relying specifically on Raich or Comstock but Ogden and McColluch; it discusses Jacobson; it asserts the beautifully simple truth that no one can claim to be outside the healthcare market; and it recognizes that Randy’s argument is all about substantive due process, not a limitation of the Commerce power.
Everybody should read it.
February 2, 2011, 11:31 pmMichael Ejercito says:
How so?
How would the Supreme Court not have jurisdiction if federal questions were raised?
February 2, 2011, 11:46 pmMichael Ejercito says:
So who gets to interpret the necessary and proper clause, if not the courts?
Should Congress also get to define speech, arms, or due process?
February 2, 2011, 11:48 pmloki13 says:
Duffy,
As I wrote, I didn’t mean to offend. It’s the hazards of commenting anonymously- in other words, I have neither the time nor the inclination to make obvious points to those not inclined to listen. Since you appear to be, here goes:
Your question falls along the lines of something as obvious as, “Where in the Constitution does it say that Courts are allows to have holdings?” The framers lived and breathed the common law system of England, and implicit within the common law was the idea of precedent, and precedential value, and that the holdings of superior courts would be followed.
This was well known- see Blackstone’s commentaries (“it is an established rule to abide by former precedents” so as not to substitute a judge’s opinions for the laws of the land). The Constitution, in setting up a Superior court and inferior courts, clearly had this system in mind.
But what of the oath to the Constitution? The Constitution is, well, law… super law, super duper law, you might even call it supreme law. But still law. And when a law has been applied by a court in a particular factual scenario, that holding is binding on lower courts.
That doesn’t mean there’s room for some disagreement. Brown v. Board didn’t happen overnight. The NAACP chipped away at Plessy on the edges for years, setting up for its eventual overturn. District Courts and CofAs can distinguish the a holding in various ways, and over time, as circumstances change, the law evolves. That’s the common law way.
What we seek to avoid is a situation where, as Blackstone puts it, a judge ignores the law of the land based on their whim. This can seem promising to those who believe there is only one correct way (always, of course, theirs) to interpret the Constitution.
Imagine a scenario where judges felt no constraints placed by vertical stare decisis. You’d have judges allowing the complete banning of abortions in one state, because they felt like it. Judges in another state allowing the banning of guns, because they felt like it. Judges in another state striking down the income tax, because wealth is a protected class under the EPC. Judges in another state allowing 6 year olds to drive, because age is a suspect class under the EPC. Judge J. Aldridge unincorporating the Bill of Rights. And so on.
Anyway, there is both a strong reason for vertical stare decisis under original expected application, living constitutionalism, ordered liberty, and pretty much any interpretative frameowrk you can think of, as well as policy grounds (reliance interests). As for your concerns about an enforcement mechanism- there are some, but for the most part, we don’t have worry about it because most judges, in most cases, are pretty good about it. And when they’re not, we have an appellate system. :)
February 2, 2011, 11:51 pmOrenWithAnE says:
That would be the judicial power of the several States, which are separate sovereigns.
Their judicial power is distinct from the US one, as recently discussed here regarding the relationship between Federal district courts and the State courts. They both answer the SCOTUS, but are independent of one another (excepting the bizarre way we do substantive habeas).
This argument gets made over and over. At the very minimum, it requires taking the word ‘exception’ and then hopping it over the directly preceding verb clause ‘shall have appellate jurisdiction’ that one would imagine it modifies. It’s hard to take such a tortuous construction seriously.
February 2, 2011, 11:59 pmloki13 says:
I will say this- under your proposed system, the amount of research I do to advise clients would be much less. Now, when they come to me for advice, I have to check the relevant law of my circuit and/or SCOTUS, and tell them (for example) how much process is due.
Under your system, I could just say, “Meh, hope for a good judge draw.”
Anything I lose in billing for advice will be returned a thousand-fold in litigation. :)
February 3, 2011, 12:03 amDuffy Pratt says:
Yes. Even though the judicial power of the United States extended to those cases, the Supreme Court did not have jurisdiction. Ever wonder why there are so few criminal procedure cases from our early history?
February 3, 2011, 12:23 amnick056 says:
Thank you for the refreshing theory that tax policies specifically beneficial to property owners are simultaneously beneficial to renters, because renters rely on successful property owners to supply housing.
Of course, without the mortgage deduction, the overall tax burden would be shifted somewhat from renters to owners, but if the owners pass on the tax savings in rental fees — and even if they don’t pass on this subsidy — the situation’s really a plus for renters due to increased availability.
Meanwhile, property owners need plenty of renters with high net income to rent space, so if you were to ease the relative tax burden on renters, they would have more money to spend on rent, allowing landlords to charge more per month. So policies specifically beneficial to renters also benefit landlords because of their mutually beneficial relationship. You just can’t lose.
February 3, 2011, 12:33 amOrenWithAnE says:
There are tons here in MA, from both before an after the revolution. Perhaps you are referring to Federal criminal procedure, which was absent because there weren’t a lot of Federal crimes …
February 3, 2011, 12:42 amloki13 says:
Duffy,
My Federal Jurisdiction class was a while ago, but could you provide a cite for this (the law Congress passed stripping the jurisdiction)?
My vague recollection was that the dearth of crimpro cases from the early years was because the BoR wasn’t incorporated. There weren’t many state prisoners bringing commerce clause cases.
February 3, 2011, 12:43 amDuffy Pratt says:
Except for some small things, we basically agree. I don’t think the meaning of Supreme/inferior is necessarily as clear as you seem to. I agree that the nature of common law weighs pretty heavily in your favor, although there have been stretches in England where the hierarchy was not so clear (most notably in habeas cases where the Queen’s court would release a prisoner and then the King’s bench would order the person arrested again, and so on…).
Mostly, I agree that judges pretty much do a good job of weighing precedent, and so there has been no need that I’m aware of to take steps against a judge, except in the rare case where a higher court exercises its power to take a case away from a court. I also agree that there are very strong reasons for vertical stare decisis. So there are lots of reasons why judges will tow the line.
But, in the end, the way things are currently structured, there is little recourse to be had against a federal judge who refuses to follow precedent, and I don’t think that is such a bad thing. There was a case out of Alabama maybe 20-25 years ago, where the District Court basically gave a long, scholarly opinion deciding that the Establishment Clause was not incorporated. Of course, he was reversed and ridiculed. But I can’t disapprove of what he did, if he honestly felt it was that important. These judges, for the most part, know what they are doing, and when they take an extreme stance like that, it’s probably worth paying some attention to them.
And finally, if we ever get into a situation where the Supreme Court really does something outrageously unlawful, I like the idea that the rest of the judiciary, at least in theory, could speak out against them, and ultimately ignore them. Thankfully, we’ve never come even close to such a situation. But I’d like to think that there is this additional check on outrageous abuses of power, should they occur. (What would constitute such an abuse? I don’t know beforehand. As I said before, the fugitive slave laws are probably the closest we have come. Have you read Justice Accused by Robert Cover?)
February 3, 2011, 12:47 amDuffy Pratt says:
I learned this in my Federal Jurisdiction class, over twenty ears It was taught by Akhil Amar, who was really big on the whole idea of jurisdiction stripping. In this case, I don’t think the jurisdiction was ever stripped, just that the original Judiciary act failed to grant this type of jurisdiction. It’s also possible that he was blowing smoke (or even that I got it wrong, though I don’t think so).
Anyway, I tried to do a quick internet search and came up with nothing about early Court jurisdiction. So I looked at my old Federal Courts book, and didn’t find it there either. If I get some time, I will try to dig deeper, unless there’s someone else who can either confirm or disprove this. (Disproof would be easy. One case in the mid eighteen hundreds in the S.Ct. on a writ of error or cert. from a State Supreme court would do the trick.)
February 3, 2011, 12:54 amloki13 says:
I disagree. That’s the coward’s way out. What’s harder is to have something you passionately believe in and still rule in the way you that is correct application of the law.
For a (lower court) conservative catholic jurist to strike down a restriction on abortion is difficult, but correct.
For a (lower court) liberal hippy amish jurist to uphold the death penalty is difficult, but correct.
And so on. Otherwise, we are but a nation of men, and not laws. Or, to put it another way, through the partisan lens, a nation of Reinhardts and Vinsons. :)
But look at it from the litigant’s perspective. What was so bold about that particular judge? He got to give his long-winded, scholarly (blowhard?) opinion. One that flew in the face of *every single decision* for years. One that was completely unexpected by the litigants (I am sure the party that won would have been happier with a much more narrow decision).
Are appeals free? Did the judge, out of his own pocket, pay for the attorney’s fees for the litigants so that he could exercise his desire to be heard so we could pay attention to him? Was it worth it to the parties? I don’t think so.
I’m guessing they had to pay for the appeal, and the appeal was a remand to, um, get his act together, which means they had to pay for yet more proceedings. So no, I have absolutely zero respect for that judge. Reminds me of a judge who refused to grant a motion to dismiss on a case where the SOL had run (and allowed discovery to proceed) just because she thought the case needed to be heard. Grrrrrr. Litigation costs money.
(PS- I disagree with your last paragraph as well. Doesn’t comport with our system. If SCOTUS ever did anything “outrageously awful,” there would be many checks before the rest of the judiciary.)
February 3, 2011, 1:08 amloki13 says:
Judiciary Act of 1789- no authority was granted to the Supreme Court to review criminal convictions.
:)
Amar sometimes knows what he’s talking about.
February 3, 2011, 1:14 amloki13 says:
Duffy,
Final thought, since you’re an attorney. Imagine you’re representing a client in a First Amendment case. You’ve just had a long trial in front of a district court judge. The opinion is released, and the judge’s holding is that he’s read the Constitution, and he has an oath, and the Constitution says that *Congress* shall make no law… and this is an agency, which is the executive branch, and the First Amendment doesn’t apply.
Now, it doesn’t matter which side you represent. I think you’re going to be pretty mad that you’re going to have to have to explain to your clients that they’re going to pay for appeal and (most likely) a remand. And then maybe another appeal.
Does the first word that comes to your mind at that point to describe the judge… is it “courageous?”
G’night!
February 3, 2011, 1:27 amNo Theory of Jurisprudence says:
I hope you are not talking about fundamental [constitutional] principles, because Dred Scott was decided on constitutional grounds. Constitutional deference caused Dred Scott.
I can agree with the “same reasons” part but not the “as repugnant” portion. If you really thought that every infringement of your personal liberty was treated equally, you’d have taken up arms against the government years ago.
The HC Mandate may be repugnant to the Constitution, but it won’t be so because it threatens individual sovereignty. The founders weren’t especially concerned with individual liberties, and the Constitution reflected that fact. Individual liberties weren’t of constitutional interest until the 19th century.
February 3, 2011, 1:54 amduffy pratt says:
Compared to the judge who lies about what he’s doing, and making false distinctions to do an end run to achieve the result he wants? One’s a shithead, and the other is a courageous shithead.
Your point about following the law despite having contrary beliefs is sound, but it doesn’t really have any bearing. I was talking about situations where an inferior is convinced that the action of a superior is unlawful, not where he has personal convictions that oppose it.
And thanks for finding it in Amar. I was going to go nuts trying to find it.
February 3, 2011, 2:11 amAJ says:
I want to explore this contention a bit more because, at the root, this is our difference. You believe that non-income items can be used to increase one’s tax liability. Here is why I believe this is wrong. Let’s say that you and I both earn $200k; you own a beach house and I don’t. Let’s further assume that our tax liability is the same, $40k. You are implying that congress can place in the income tax code a provision that all beach house owners must pay a higher rate such that your income tax could be increased to $50k (and in your argument you actually said it was permissible to raise your tax liability all the way to $200k before triggering a problem). The problem with this is that congress is clearly taxing your beach house in the amount of $10k. Now they could slap an excise on it when you purchased it, formulate a direct tax upon considering the apportionment (how much do they want to raise and then divide it properly between the states which then will allocate it to their beach house owners), or possibly tax it upon inheritance, but otherwise they can’t reach it. So what you are proposing is that the income tax provides an end-run around the hurdles of these valid tax approaches and makes their constitutional limitations null. I think this is unprecedented and wrong.
Again with respect to credits, imagine that after totaling all of your derived income, you can calculate your tax liability from the rate tables. Credits are in essence the government going back and implementing a spending program to reward certain behaviors (installing solar panels, buying hybrid cars) and certain situations (having dependents, being blind), except for convenience they are inserted on the tax form. The credits and deductions are always acting to lower your tax liability. What you are proposing, an “un-credit”, increases your tax liability, so you must be taxing something new. In the case above, you are clearly taxing the beach house – which is not derived income but personal property. When you howl about court cases not addressing this, it is simply because no congress has ever proposed your “un-credit” so it could never be challenged.
The goal of “marital status” in the income code is NOT to discriminate against certain people getting married. Instead the resultant “marriage penalty” is simply an artifact of working with a rate structure that does not readily facilitate lumping income together with an equal result. If you would like to prove that marital status intends to punish or reward certain marriages in a manner similar to punishing or rewarding health insurance status, I eagerly await that analysis!
February 3, 2011, 9:47 amRexx says:
It seems to me that a tax would fail Constitutional muster in that Congress is atuherised to tax in Article One, Section 9:
“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.”
And by The Sixteenth Amendment which allows the Congress to levy an income tax without apportioning it among the states or basing it on Census results.
The tax in this bill, i.e. the penalty for not buying insurance is neither an income nor is it apportioned among the states or basing it on Census results.
February 3, 2011, 10:13 amloki13 says:
Without repeating your distinction, I think you are setting up a false equivalence. I think we can all agree that judge that simply decides on a result, darn the law, is a bad judge, regardless of their transparent attempts to justify the result.
I just think that doesn’t happen very often.
First, of course, I will stipulate that it does happen. Just very rarely. I think what most people perceive as this is the result of two factors:
1. Whatever the adopted mode of jurisprudence is will result in decisions that largely favor the judges outcome over a broad spectrum of cases. Conservative judges adopt a mode of jurisprudence that largely (but not always) results in what we would call conservative decisions, and vice versa for liberal judges. I don’t find that objectionable so long as its the jurisprudential method that leads to the result, and they continue to follow it in cases when the result runs contrary to their belief. For example, Scalia used originalist jurisprudence and ended up re-invigorating the confrontation clause. This had a net benefit to criminal defendants. But overall, his jurisprudence matches nicely with his beliefs.
2. As Sandy Levinson pointed out recently in a blog post, pure constitutional cases present the fewest guidelines and the most opportunities for judges to have to apply non-standard concerns. You could have them citing Madison, or Hamilton, or being textualists, or citing early Marshall cases, or recent SCOTUS cases, or, well, “reasoning.” Unfortunately, these pure constitutional cases are also the most publicized, and tend to be where most people get their impression of the judiciary, and everyone “knows” what the correct answer is. You don’t see many people arguing about the intricacies of the mailbox rule, or Title VII, or shareholder derivative suits, or suits against insurance companies who settled a claim to avoid a bad-faith verdict and the rights of companies for indemnification given express contractual provisions, or the rights of an employer to unilaterally impose a term and condition of employment in the context of a collective bargaining agreement.
So it goes. :)
Anyway, been good. No worries on the Judiciary Act- glad you pointed it out, and I was happy to find the cite.
February 3, 2011, 10:19 amRexx says:
I tried to edit my misspelling of ‘authorized’ but the edit function resets the post to the top with each tick of the down count of the clock, making in imposable to stay on the desired correction long enough to correct it.
February 3, 2011, 10:56 amI tried to edit my misspelling of ‘authorized’ but the edit function resets the post to the top with each tick of the down count of the clock, making in imposable to stay on the desired correction long enough to correct it.
Rexx says:
If it is true that Health Insurance can be sold across states lines legally then why are all these people against the idea of making it legal?
http://newsblogs.chicagotribune.com/triage/2008/10/purchasing-insu.html
http://www.newamerica.net/pressroom/2008/across_state_lines_explained_why_selling_health_insurance_across_state_lines_not_answer
http://voices.washingtonpost.com/ezra-klein/2010/02/selling_insurance_across_state.html
http://www.dailykos.com/storyonly/2010/2/22/839565/-Why-Buying-Health-Insurance-Across-State-Lines-is-a-Bad-Idea
I could have added another hundred pages easy.
February 3, 2011, 11:01 amloki13 says:
Rexx,
Compare credit cards. The idea with these proposals is that the Health Care Insurance wouldn’t have to be licensed in a state, so they could all go to North (or is it South) Dakota. That’s different from what Joe (nto) was pointing out. Try and read what he wrote again.
February 3, 2011, 11:18 amJaimeInTexas says:
I have read most of the comments. Many raised issues/questions I would have raised. Here is a question for the lawyers that espouse the principle of staris decisis for the lower courts:
Has there, ever, a case where one, and only one prior SCOTUS decision, applied? Has there been a case that its questions and facts are are identical to prior case?
For what I have seen, when a case is decided, prior decisions are referenced for this principle and another prior decision for another principle, etc. The permutations are infinite.
Is it not just a lot simpler, and true, to decide a case based only on the text of the Constitution?
February 3, 2011, 11:51 amloki13 says:
Yes. All the time. See motions to dismiss. See also summary judgment. (Of note- the facts clearly can’t be absolutely identical, since the cases can’t be at the same time, with the same litigants. But the issue can be identical. This happens fairly regularly.)
Sometimes. Most cases involve multiple issues and multiple causes of action. In addition, the cases you *read* are the ones that are not simple, because they are the ones that get published and appealed.
Absolutely not. Please tell me what process is due when a public university is firing an employee. From the text of the Constitution. Please tell me what free speech right and associational rights of non-union members are implicated in paying dues to a closed shop? Please tell me the thousands of factual situations involving warrants, based on the Constitution. Please tell me about prior restraint, or unconstitutional conditions, or what a state actor is, based on the Constitution. And so on. The Constitution has been applied to actual facts, and that is the basis of our law. What you are asking for is that we re-invent the wheel based on nebulous concerns each and every time a new case comes up. Can the police search your garbage? Can the police compel you to have your stomach pumped? Is it okay to have a per se rule denying 8 year olds a pilot license? Can New Jersey charge in-state resident lower tuition for state schools? Etc. Please point out the text of the Constitution that is dispositive.
February 3, 2011, 12:01 pmJaimeInTexas says:
A State’s government forcing drivers to buy driver’s liability insurance is being used as an example in favor of “Obamacare.” The issue is the Federal government’s authority or lack thereof.
The Federal government has no authority to issue driver licenses, nor to mandate driver liability insurance.
And, the Federal government has no authority to mandate the purchase of health care insurance. Unless the FedGov is going to also fully compensate me for such an expense … pay me with my own money, I suppose.
February 3, 2011, 12:08 pmJaimeInTexas says:
loki13: thanks for the response.
Obviously, I was refering to Constitutional issues and not contracts and such.
But, in general I disagree with you response. Where is the FedGov’s authority to (fill-in the blank)? If the issue is not a delegated authority to the FedGov, the FedGov has no business in it.
For example, the Constitution explicitly lists what are the SCOTUS’ original jurisdiction issues. And, yet, somehow, original jurisdiction seems not to mean what it says. When States sue the FedGov, instead of the SCOTUS scheduling the case, the SCOTUS cowardly (and lazily) passes the buck and by-passes the text of the Constitution. When the 1st amendment states the “Congress shall make no law …” the SCOTUS invents some cockamamie “legal principle” that for practical purposes nullify 1st amendment. Not that the lack of the 1st amendment miraculously grant the FedGov powers over the areas spelled out in the 1st amendment.
February 3, 2011, 12:27 pmduffy pratt says:
All of this is absolutely right. There are two other problems with simply basing decisions on the simple text. First off, even the clearest sections are probably less clear than one might imagine. For example, the seventh amendment protects the right to a civil jury trial where more than twenty dollars is in controversy. But what is a dollar? An originalist might argue that a dollar is the value of 1/35th of an ounce of gold. A living constitutionalist might argue that inflation needs to be taken into account, and a dollar is the buying power of 20 dollars in the 1780s, adjusted for inflation. In other contexts, these sorts of arguments make real sense, even though here they might sound a bit silly.
Furthermore, there are portions of the text whose literal meaning has almost always been ignored, and I don’t know of anyone who wants to revive the literal text. The double jeopardy clause prevents people from being tried twice for the same criminal offense. What it says, however, is that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” A literal meaning of this would be that it only applies to cases where either capital or corporal punishment was at issue. If the state just wanted to put you in jail for the rest of your life, it could try you as many times as it liked.
February 3, 2011, 12:54 pmloki13 says:
Jaime,
Every example I listed was a constitutional issue. Maybe not the ones you care about, but still. So I guess your argument is-
Why don’t courts ignore precedent in cases I care about, and rule based on what I believe the Constitution to mean? In other words, why am I not the judge of the Constitution and cases, in the subset of cases that matter to me, and not all those lame constitutional cases that sound boring. :)
As for original jurisdiction question, it has been answered (I believe to you) in many previous threads. If you don’t remember, please google. The explanation hasn’t changed. See 28 USC Sec. 1251, and note that concurrent jurisdiction is allowed.
February 3, 2011, 12:55 pmduffy pratt says:
Let’s take the “Congress shall make no law…”. I suppose the plain reading of this would mean that the President, let’s say acting under his war powers authority, could issue an executive order shutting down the internet to quell all political opposition. The first amendment only applies to laws made by Congress, right? Not to executive orders?
February 3, 2011, 1:00 pmMichael Ejercito says:
A legal challenge would argue that (a) the executive orders exceeded the statutory authority of the President, and (b) to the extent the statute authorized this act, it violates the First Amendment.
February 3, 2011, 2:12 pmwumhenry says:
What if a lower-court judge, having studied the judicial precedent relevant to a Constitutional question before him, concludes that the precedent is wrong? For instance, suppose that Congress enacts another flag-burning ban and a case arising under it comes before a Federal judge who concludes that the SCOTUS opinion in Texas v. Johnson was incorrect — i.e., that the First Amendment stricture barring Congress from “abridging the freedom of speech or of the press” does not bar it from prohibiting a type of nonverbal conduct. Having sworn to uphold the Constitution and laws of the U.S., and believing that the enactment of the law in question was constitutionally valid, isn’t the judge morally obliged to enforce it?
February 3, 2011, 4:10 pmloki13 says:
No. Any other questions?
(Try putting this another way. Imagine your favorite Supreme Court precedent- probably a conservative one. Should Liberal Activist District Court judge feel free to ignore the completely on-point precedent and rule in the way he believes the Constitution commands him to? So if every judge just does what they want, why bother with having… um, law? And this gets back to my original point of settled expectations- why do corporations incorporate in Delaware? Does it have the most favorable corporate law in the country? No. But it has the most, and most predictable, corporate law. Three cheers for the Court of Chancery! Corporations would prefer to know that if they do X, then Y will result. Same with people. Would you like to know, ahead of time, what the probable result of your actions will be under the law? Or would you prefer to have every case be decided upon the whim of whatever judge is hearing it? Do you want real legal advice concerning your actions, or would you prefer to hear, “Do whatever- you’ll get sued, and it all depends on what judge we draw, and the appellate panel etc.”)
February 3, 2011, 4:27 pmduffy pratt says:
This may surprise Loki, but let me give an explanation.
The constitution is more than just a collection of words and phrases. It establishes a system of government. It creates three branches of government, including the judicial branch. It assumes reliance on the common law, and it envisions that congress will establish inferior courts to the supreme court.
When judges swear to uphold the constitution, one of the things that they are swearing to uphold is the regular functioning of the judicial branch. That means that lower courts will observe and adhere to precedent from higher courts. It also means that a circuit court will adhere to precedent that has been decided within its own circuit. This structure forms an integral part of the constitution, and judges must respect it.
If you knew or know any judges, you would probably have a keener idea of how important the functioning of this structure is to them. So, if there is a clear precedent, and a judge disagrees with it, most judges will simply conclude that it is not their place to mess with it. And this conclusion results from their understanding of the constitution itself.
February 3, 2011, 5:13 pmloki13 says:
Color me surprised! I like your answer better. :)
February 3, 2011, 5:32 pmjeffry house says:
“But there’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent.”
Yes, that’s the problem, but it’s not technical, it is the basic idea that courts articulate the law within the context given by earlier rulings by the higher courts. That’s what makes Vinson’s judgment intellectually indefensible.
February 3, 2011, 6:06 pmAJ says:
Do you believe that the health mandate is as narrow of a regulatory action as that considered in Comstock? Do you believe that states could have implemented an insurance mandate in various ways and did the federal government’s plan provide any such flexibility? Do you believe there is a specific precedent that addressed pulling someone of disputable economic position (inactivity) into activity?
February 3, 2011, 6:57 pmwumhenry says:
The fact remains that they swear to uphold the Constitution, which says that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land and the Judges in every State shall be bound thereby” and that “all … judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” What you’re saying, in effect, is that any given provision of the Constitution means whatever a SCOTUS majority says it means in its latest opinion on point — unless and until another SCOTUS majority overrules that interpretation. (A theory precisely analogous to the doctrine of papal infallibility.) That theory is contrary to the ordinary understanding that the Constitution has inherent meaning that judges are bound to uphold and can only be altered by amendment pursuant to Article V. That understanding is manifest in Marshall’s opinion for the Court in Marbury v. Madison, our paradigm for judicial review. Your theory is also contrary to the traditional understanding of the proper role of the judiciary: that it is for judges to decide how the law applies to the cases that come before them, not to make or amend laws — that is, not to issue decrees with mandatory prospective effect in future instances. The development of common law does not prove otherwise; Hobbes maintained that common law was never predicated on a “hard” concept of stare decisis.
February 3, 2011, 6:58 pmduffy pratt says:
Please, go back and look at my other comments on this thread. Maybe you will see why I said Loki might be surprised. And maybe you will also see that I don’t espouse the “theory” you seem to think I do.
February 3, 2011, 7:10 pmMichael Ejercito says:
How so?
What controlling precedent is dispositive?
February 3, 2011, 9:20 pmjrose says:
When it comes to the Necessary and Proper clause, McCulloch.
February 3, 2011, 10:00 pmJon Roland says:
All this controversy stems from one bad precedent: McCulloch, and what was essentially dictum on the Necessary and Proper Clause. See Unnecessary and Improper.
What is missing from this discussion is close examination of the key phrase in the N&P Clause, “carrying into Execution” the delegated powers. Too many people today take that to mean to get the result that the execution seeks, but a closer reading shows that is not the correct interpretation of the original meaning. The “end” of a delegated power, as discussed by Madison above, is not the intended outcome of Congress in invoking the power. “Carrying into execution” is only making an effort, not getting a result.
Delegated powers are to make certain kinds of efforts. If those efforts are not efficacious to getting a desired result, then the meaning of the N&P Clause is not that additional efforts may be made until the result is achieved. It means only doing things that enable the making of the basic effort authorized by the express delegation. No more.
Moreover, “necessary” and “proper” are two constraints. It is not enough that an enabling effort be necessary. It must also be consistent with the legitimate public purposes of such powers. Delegations are not plenary. All delegations are implicitly constrained to be proper, to be rational and just ways of seeking the purposes expressed in the Preamble.
February 4, 2011, 12:51 amJon Roland says:
There is a fundamental flaw in the Comstock opinion. While Congress arguably has authority to conduct competency hearings and detain those found dangerous, on territory over which it has exclusive legislative jurisdiction, there is a jurisdictional problem with acquiring jurisdiction over the prisoner by conducting such a hearing while the subject is still in prison custody for a federal crime, the constitutionality of which is itself in doubt. If the prisoner was taken from state territory into federal custody, he should be returned to state custody before any competency hearing is held, and the determination made by a state court. Only if the prisoner was originally taken from exclusive federal territory would the federal courts have jurisdiction.
But it appears these arguments were not made in this case. GIGO.
February 4, 2011, 1:04 amAJ says:
Well stated
Here too
Jon Roland’s narrow reading of McCulloch would lead one to ask: what is necessary to put the pre-existing condition ban into action (laws, enforcement, penalties), not what policies are necessary for it to make the overall regulation scheme work.
Even if you do not buy that read (which Comstock clearly extends), there is another problem: This assumes that mandating someone not engaged in commerce to engage in commercial activity is a power that congress has. You can credibly argue from Wickard that government can place some indirect mandates on producers who are engaged in a subsidy program with the government, but it does not easily follow that government can mandate the average citizen to buy wheat. It is the difference between regulating commerce and regulating my property (income) without using the taxing power.
Certainly one can imagine a proper tax (probably an excise) followed by a proper spending program (probably a subsidy or tax credit) to achieve the same result, but also one can imagine an improper tax being used to achieve the same end (a direct tax on the uninsured). Both approaches are masked by enabling a general mandate power. In my opinion, to allow taxing limitations to be operational and for congress to respect such limitations, schemes designed to end-run these distinctions cannot be allowed. The mandate cannot be viewed as being proper.
February 4, 2011, 8:28 amjrose says:
You might want to go back and check the title of Orin’s post.
February 4, 2011, 9:07 amAJ says:
I’m not limiting my discussion to McCulloch…you may want to reconsider my argument on “properness”.
February 4, 2011, 9:49 amjrose says:
Vinson did not rely on the inactivity/activity distinction when he determined the mandate was not proper. He instead argued, “Congress is [not] allowed to define the scope of its power merely by arguing that a provision is ‘necessary’ to avoid the negative consequences that will potentially flow from its own statutory enactments.”
Sounds like District Court Originalism to me.
February 4, 2011, 10:25 amAJ says:
I think you and Orin are right. He should have analyzed “necessary” in terms of Comstock and “proper” interms of activity/inactivity. This will still be a challenging sell to SCOTUS where you start with 4 probable votes for the mandate being constitutional….how many years does that give us to continue making the same arguments?
February 4, 2011, 11:03 amloki13 says:
Dudes- at the pace you’re going, I’m amazed you haven’t burnt out already. I’ve long since given up. :)
February 4, 2011, 11:31 amJaimeInTexas says:
loki: Yes, I have asked the question before. I guess I am not satisfied with the answers yet. 8O
OK. I read 28 USC Sec. 1251.
So, when I (not a lawyer but in my own judgment a competent enough reader) read “original jurisdiction,” see how it has been implemented and see that the SCOTUS lets a district have first crack at a case then I have to scratch my head and ask, “what does original mean?”
Why is it that it seems to be district courts have original jurisdiction?
What is so darn difficult or undesirable for the SCOTUS to actually be the group to have the first crack at the case?
Was the matter of “original jurisdiction” ever debated/addressed in the convention, Federalist Papers, or even in the Anti_Federalists?
If “original jurisdiction” meant “first and only hearing” of a case at the time of its writing, the FedGov has no authority to change it through law.
February 4, 2011, 12:03 pmJaimeInTexas says:
To expand the one of my questions:
In the case when a State is a party, why is it that it seems to be that district courts have original jurisdiction and the SCOTUS appellate (contra Art 3 sec 2)?
February 4, 2011, 12:15 pmJon Roland says:
Yes, the Exceptions Clause is a source of continuing confusion, and is one of the clauses I have proposed an amendment to clarify. Originally, the only exceptions were to make appellate jurisdiction original, not the reverse, and certainly not to remove jurisdiction on a subject from all courts.
Since the Judiciary Act of 1925 and the Supreme Court Case Selections Act of 1988, most cases cannot be appealed to the U.S. Supreme Court as a matter of right. Supreme Court docket load makes original jurisdiction impractical for most such cases.
February 4, 2011, 12:22 pmjrose says:
Maybe he felt such an analysis would be even further from precedent than the one he offered?
February 4, 2011, 1:09 pmloki13 says:
JiT,
Since you know what arguments are, I won’t repeat them. It has long (LONG) been recognized that original jurisdiction does not preclude concurrent appellate jurisdiction. This occurs not just with SCOTUS, but here in my state court system. So- no big surprise.
Furthermore, I don’t understand your objection from a purely practical standpoint. What advantage would there be if Congress decided to remove concurrent jurisdiction and re-instate only original jurisdiction? Do you think SCOTUS would function better as a trial court in those instances? How would this affect the docket? Are you comfortable with the (ahem) appellate review of the decision?
In short, I am struggling to understand your point. You have had this explained, as a matter of law, why it is allowed (and you free to disregard that). Furthermore, you haven’t articulated why it is preferable.
February 4, 2011, 1:23 pmduffy pratt says:
As a practical matter, if Congress eliminated concurrent jurisdiction, the Supreme Court would probably assign special masters to try cases on its original jurisdiction docket, and then review them. Right now, there isn’t a single judge on the Court who has any experience as a trial judge. So why would anyone want them taking cases for trial?
February 4, 2011, 1:38 pmloki13 says:
We’re in agreement there. But since JiT has had the legal explanation given to him several times and has chosen not to believe it, I was wondering what his practical desire for this was. I’ve heard explanations for repealing the 17th Amendment, but I haven’t had anyone explain *why* they think concurrent jurisdiction is a bad idea.
February 4, 2011, 1:43 pmMichael Ejercito says:
And the judge determines whether or not the asserted power is necessary and proper.
February 4, 2011, 2:46 pmJon Roland says:
Perhaps that impracticality should not trump the clear words of the Constitution, and that if it’s words turn out to be impractical, the Constitution should be amended, as I propose.
Amendment of original jurisdiction
February 4, 2011, 3:01 pmArticle III Section 2 Clause 2 is amended to allow lower courts to have original jurisdiction for cases in which a state is a party.
loki13 says:
Jon Roland,
That’s all well and good. For example, I think it’s entirely valid that you argue that we can’t have an independent Air Force based on the constitutional text (I disagree, but you can still make the argument).
However, JiT keeps making the same point. And the basis in law has been explained to him countless times. So I’m just curious- does he simply think the law is wrong, and he is right, and he’s making a formalist argument so that the Constitution is amended (like the Air Force argument)? Or there some substance to his argument? Does he actually want SCOTUS to have original jurisdiction, and if so, why?
In short, is he making a formalist argument for the sake of making a formalist argument (in which case he should stop making requests for the basis of our current law, since it has been given, and he disagrees… which is fine!). Or does he have a substantive point to make- that SCOTUS should be the trial court (aka hand off to a special master) for these cases?
February 4, 2011, 3:14 pmJon Roland says:
But we can define it as part of the Navy (which makes more sense than as part of the Army), just as the Marine Corps is part of the Navy, and we should do that. Formally, it would only be on paper, but some of us think formality should be maintained.
I won’t speak for his desires, but for me formal compliance is important, regardless of practicality. The SC should exercise original jurisdiction because that is the way to demonstrate the need for an amendment.
February 4, 2011, 3:40 pmjrose says:
Presumably based on the criteria set out in McCulloch: “[l]et the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.”
Vinson said, “the previous analysis of the defendants’ Commerce Clause argument reveals, the
February 4, 2011, 5:55 pmindividual mandate is neither within the letter nor the spirit of the Constitution,” which strikes me as stark error. Because a law fails to be within an enumerated power cannot mean it automatically fails the Necessary and Proper clause too.
leo marvin says:
Sotomayor
February 4, 2011, 8:36 pmDuffy Pratt says:
Doh!
February 4, 2011, 8:41 pmMichael Ejercito says:
But surely there are limits to that power, as the Supreme Court ruled in Lopez and Morrison.
February 4, 2011, 8:58 pmJon Roland says:
Depends on what you mean by “within”. Are the powers to hire and pay staff, lease office space, design and print forms and instruction booklets, publish notices, and other ways to enable the “carrying into execution” of an express power, “within” that power? In some sense yes, and in another, no. What is not within a power to regulate is a power to prohibit all modalities of something (only some of them), or to impose criminal penalties. Some things may be taxed, and other things may be regulated, and some things may be both taxed and regulated, and for those things a tax may be used for a regulatory purpose, but not for things not subject to regulation, such as extraction, manufacturing, local sales, possession, use, or disposal, information, services, or the activities of those engaged in trade, beyond requiring them to pass through inspection points.
The N&P Clause has to be understood in the context of the entire Constitution, and the common law rules of interpretation lead us to the point that powers that are separately enumerated may not be within what is “necessary and proper” for one another. The enumeration defines boundaries between categories of powers that include the base powers and their incidental implementing powers, although incidental powers may overlap.
February 4, 2011, 9:10 pmjrose says:
Vinson didn’t rely on either Lopez or Morrison in his analysis of the Necessary and Proper clause. I’m still not seeing where Vinson faithfully applied precedent to conclude the insurance mandate goes beyond the limits of the N&P clause.
February 5, 2011, 7:45 amjrose says:
Did Vinson rely on this argument? If so, did he quote the precedent that supports it?
February 5, 2011, 7:54 amJon Roland says:
No. Not all points of law have been taken up in previous cases or produced precedents. This is an analysis proposed for those who might continue the arguments on appeal.
February 5, 2011, 11:22 amjrose says:
Can you outline how your argument applies to the insurance mandate?
February 5, 2011, 11:38 am