You’re no doubt familiar with this Term’s Supreme Court case involving a constitutional challenge to an “unprecedented” recent federal law. According to the challengers, the new statute exceeds Congress’s Article I power. Although Congress had long regulated the relevant kind of activity for economic reasons, for the first time it tried something new. Specifically, It tried to force people who were outside the zone of that activity to come back into it and face regulation (and potential penalties) under federal law.
According to the challengers, this unprecedented step simply goes to far and exceeds Congress’s limited powers. Once people are in the zone of freedom outside the scope of federal power, they argued, Congress cannot take the unprecedented step of forcing them back into being regulated by federal law.
Initially, this argument struck many as unlikely to succeed. But prompted in part by the advocacy of a prominent law professor, it became seen by some as serious and mainstream. To be sure, there were precedents that pointed the other way. Indeed, the law professor had himself argued a prior case that raised some similar issues a few years ago, and in that case the Supreme Court had rejected the challenge. But the challengers had a way of reading that earlier precedent (and others) in a way that they felt supported their claim and opened the door this time. When the Supreme Court agreed to hear the case, the challenge seemed to have a real chance.
That’s the case, anyway. I’m sure you’re all familiar with it. Now let me make a prediction. This coming summer, looking back on the current Supreme Court Term, analysts will report that the Supreme Court rejected the challenge and upheld the law as within Congress’s power. According to the Court’s decision, Article I “empowers Congress to determine the . . . regimes that, overall, in that body’s judgment, will serve the ends” of Article I’s grants of power. Nothing in the text of Article I suggests the distinction that the challengers attempted to draw, the Court will note. And the challenge therefore was doomed under the rational basis test: Congress could have rationally concluded that it was helpful to regulate the unprecedented space that was previously beyond Congressional regulation to avoid a market distortion that would otherwise result. The majority opinion will conclude:
[This statute] lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not.
Two Justices will dissent, one of which is Justice Alito.
How can I be so confident in my prediction? Because the Supreme Court handed down its decision on Wednesday, in Golan v. Holder.
anon says:
Wow, this sounds freakishly close to what might happen when they consider healthcare!
January 19, 2012, 2:00 amjew man says:
that was awesome!
January 19, 2012, 2:40 amAlan J says:
*Calls Randy to let him know of your prediction. It’s 0300hrs right now, but I’m sure he won’t mind. Also, I’ll tell him your setting up a betting pool on Volokh. Unfortunately, my bet is with you this time.*
January 19, 2012, 2:56 amleo marvin says:
If Congress can resurrect copyright claims, what’s to stop it from making us watch (Cubby) Broccoli movies?
January 19, 2012, 3:21 amD.O. says:
IANAL, but I don’t see that much analogy. First, intellectual property (unlike that other stuff, you know) is a whole creation of the federal government. Logically than, it can do with it whatever it wants. Second, the key argument (in my non-lawyerly view, sorry) is not unprecedented nature of the law, but a contention that it trumps other people’s 1st am. rights. There is nothing in the challenge of that other law, which says that some explicitly protected right is implicated.
January 19, 2012, 3:35 amwehted says:
lol, wonder what Prof. Barnett will have to say.
January 19, 2012, 4:52 amKevin Jon Heller says:
Brilliant.
January 19, 2012, 5:24 amwehted says:
so what is it about this case that leads you to this conclusion? albeit, on its face, it does seem to suck, because it seems like an offering to other countries to effect copyright laws protecting American works (and therefore be constructing a nice slipping slide of precedent for the court to validate the eventual whole of the tiny bits of SOPA/PIPA that will inevitably pass within more innocuous sounding bills after their demise) — but what good does it do? countries with authors that this might affect probably don’t have the same respect.
January 19, 2012, 6:00 amAnderson says:
B-b-but now Congress can force us to buy books about broccoli! Tyranny!
January 19, 2012, 6:38 amMoesch says:
… “ken” & “shoal” in the majority opinion {?}
Who is their intended audience for such Victorian parlance ?
Is there some rational purpose for such silly language in the year 2012… or just bad habit ?
January 19, 2012, 6:43 amAJ says:
Can we at least agree that this one is NOT a tax!?
January 19, 2012, 6:51 amMls says:
Justice Ginsberg’s unusually short opinion will read: “Fools! You thought there was a ‘zone of freedom’? Bwahaha.”
January 19, 2012, 7:03 amMls says:
Justice Ginsburg’s unusually short opinion will read: “Fools! You thought there was a ‘zone of freedom’? Bwahaha.”
January 19, 2012, 7:04 amsenor says:
I’ve always thought it highly unlikely the scotus would ever admit the fundamental error of wickard. That would take courage. It is easier to let Congress keep chipping away at freedoms. Remember senors first rule of government: whenever a governmental entity at any level asserts the authority to do something–like make you buy a product, or in the case of citizens United, suppress books–there is a 100% chance that at some point it will try to do it. Especially, I might add, when the courts refuse to stop it.
January 19, 2012, 7:42 amGerard N. Magliocca says:
One problem with this comparison is that nobody thinks that a states’-rights issue exists with respect to copyright policy. There is also no First Amendment argument on the individual mandate.
Still, do I think that the Court will defer to Congress on the Affordable Care Act? Yes I do.
January 19, 2012, 8:06 amsamiamthelaw says:
Orin Kerr: dedicated to trolling the VC.
January 19, 2012, 8:54 amWidmerpool says:
Here’s my prediction: It will be 5-4 with Kennedy writing the majority opinion striking down the federal law. That’s based on my reading of Golan v. Holder, keeping in mind something about consistency and hobgoblins.
January 19, 2012, 8:55 amIndiana Guy says:
Ok let me see if I can follow.
It looks to me like the court ruled that a law passed by congress, who were exercising a power specifically enumerated in the constitution, told people they could not have something for free, even if it was free before. Sounds reasonable to me.
Now how does this relate to healthcare?
January 19, 2012, 9:03 amloki13 says:
Heh. The OP was funny. Good to see most people got the humorous comparison.
OTOH,
…. nevermind.
January 19, 2012, 9:08 amsenor says:
In some instances, at least, the Supreme Court is really not very smart. It amazes me, for example, that it took them seven years to realize that in upholding McCain/Feingold, they were upholding the right of the government to censor books. Even then, it took a literal 2 x 4 from Kagan’s office to make them realize it. I think if O’Connor had still been on the bench, they would reiterated that that was fine. I don’t know about the Holder case. Haven’t read it. I do know this, though, that Randy Barnett (I think it’s Randy. Forgive me if I’m wrong) is right: if supporters of the healthcare law cannot enunciate a clear, easy to understand limiting principle (not some of the legalistick gobbledygook that has been presented on this and other sites) to the individual mandate, they are, at least going to get grilled. I don’t think it helps their case to have Charles Fried, Reagan’s solicitor general, telling anybody who will listen that there is no limiting principle, that Congress can indeed make you buy brocolli if it wants to, which is pretty much the position Silberman took for the DC court. That is more than an extreme proposition, it is a dangerous one, and if the court upholds, it is basic subjugation of freedom, privacy, and all the cases that have been based upon them. Given all of that, however, I have no optimism that a majority of the court will do the courageous and correct thing.
January 19, 2012, 9:23 amsenor says:
I’m sorry; I meant “figurative” 2 x 4 from Kagan’s office. I don’t think they allow people to carry lumber into the court chambers.
January 19, 2012, 9:24 amCalderon says:
The original post is amusing, and I agree that the chances of the mandate being stricken down are low (though a good bit higher than what I believed before the suit were filed, so Prof. Barnett, etc. have done very well compared to expectations).
That said, one could of course draft the mirror image to the OP and say there was a case where the petitioners were challenging a garden variety law of the type Congress passes all the time, they were relying on untested and unprecedented theories, the courts had rejected every similar challenge in the last sixty years, their claims harkened back to a bygone era decisively rejected by U.S. jurisprudence, the challenged law passed Congress with barely a dissenting vote, and the substantial majority of the public believed the law was just common sense and clearly valid. Yet I predict that the S Ct holds that the law is unconstitutional. See Lopez.
January 19, 2012, 9:27 amloki13 says:
Dude, I completely agree. Whenever SCOTUS hands down a decision I don’t agree with, I always realize how dumb they are.* More importantly, I have generalized this principle to all my affairs- whenever someone disagrees with me, they are only wrong because of their lack of intelligence.
*Sometimes, though, I realize that it’s not just because they’re dumb. It’s also because they’ve been misled and/or indoctrinated by law and stuff. Instead of using common sense and words.
January 19, 2012, 9:41 amThales says:
“senor”
Why is it incumbent on the ACA’s defenders to articulate a clear, limiting principle to the commerce power; maybe there isn’t a very justiciable one, and that’s precisely the reason the Framers gave Congress broad powers to regulate the national economy (see also the IP and bankruptcy powers, and Art I, sec. 10 limitations on state-level economic powers). And more–the commerce power of course involves not just intercourse “among the several States” , but also with foreign nations and Indians–are we to assume that there is an embedded, limiting principle on these powers, or that the limiting principle is democracy? Put another way, it’s unlikely that the people will tolerate or support a law making them buy broccoli, but they may well eat their peas and accept a tax/mandate to self-insure in order to regulate bad behavior by health insurers and subsidize the ability of the poor to insure.
January 19, 2012, 10:04 amMatt says:
I see what you did there.
January 19, 2012, 10:08 amSteveL says:
I think you have it right. The comparison isn’t even in the same ballpark. Both the copyright power and the treaty power are explicitly enumerated.
The Affordable Care Act will test whether there are any limits at all on commerce clause power itself, or in conjunction with the necessary and proper clause. Ginsburg will not be the author of that opinion. I suspect it will be 5-4, as usual, Kennedy will decide it.
January 19, 2012, 10:20 amThursday round-up | says:
[...] of JURIST, David Kravets of Wired’s Threat Level blog, and Bill Mears of CNN. Orin Kerr of the Volokh Conspiracy discusses the Commerce Clause implications of Golan, while Christina Gagnier writes on the open [...]
January 19, 2012, 10:25 amAnderson says:
maybe there isn’t a very justiciable one, and that’s precisely the reason the Framers gave Congress broad powers to regulate the national economy
That’s the part that always slays me: not all checks on Congressional power are judicial. There’s also that election thingie.
Barnett et al. do not seem to believe that democracy is an effective check on Congress.
If that’s the case, then instead of rearranging deck chairs on the Titanic, they need to be attending to the real problem: the failure of American democracy that they evidently believe has occurred.
(Hint: see “money = speech.”)
January 19, 2012, 10:44 amJesse-Az says:
I was unaware that the Healthcare law was being argued as an intellectual property law. I thought it was being argued under the commerce clause.
Did I miss the part where Copyrights were empowered to the government under the commerce clause? I thought it was authorized under a completely different power.
January 19, 2012, 10:56 amEvan says:
I deplore this decision. It puts all public-domain works in grave peril, since now every work whatsoever is subject to potential Congressional renewal of copyright. Perhaps they won’t do it, but the whole point of having a Constitution is to “let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution” (Th. Jefferson, 1798. Being an act of the Kentucky legislature, this particular work is safe from retroactive copyright renewal – or is it?)
However, the court has convinced me that it is correct under original intent; see their discussion of the Copyright Act of 1790 and Evans v. Jordan. The dissent’s distinction between private and public bills, and appealing to special wartime situations, seems entirely artificial to me. I now wish for a Constitutional amendment to fix this perilous situation.
January 19, 2012, 11:04 amAJ says:
Because it is dangerous principle to allow government to unobtrusively mandate what it can then regulate; just as it would be dangerous to allow government to compel activities that it can then tax. The result is that “we” become subjects and government tools rather than free economic actors. I have no citizen duty to make sure health insurance companies are profitable.
January 19, 2012, 11:05 amyankee says:
Well, the Supreme Court appears to have made it quite clear that there’s no limiting principle on the Copyright Clause, so it’s only fair that the Commerce Clause wouldn’t have one either.
January 19, 2012, 11:06 amJohn Thacker says:
Pretty terrible trolling, not a very convincing analogy.
Then again, this is coming from the professor who thinks that $5000 one-time is a larger number than $15,000 / year for many years.
January 19, 2012, 11:11 amPlastic says:
Another horrible SCOTUS decision, hopefully no more of these unprecedented assertions of congressional power are upheld this year.
January 19, 2012, 11:15 amSarcastro says:
Pretty terrible reply, not a very convincing argument.
Then again, this is coming from the commenter who thinks that dredging up a prior disagreement with the original post means he doesn’t need to make an argument in this one.
January 19, 2012, 11:29 amjosh says:
dammit when will comment threads be fixed. the post says 21 comments, but when i click to see them, there’s nada.
January 19, 2012, 11:37 amJardinero1 says:
The only problem with this analysis is that Golan vs. Holder dealt with a specific Article 1, Section 8 grant to Congressional Power. But where Congress is not specifically granted the authority to act but rather is given a more arguably vague grant, it does not necessarily follow that Congress “can force people who were outside the zone of that activity to come back into it and face penalties under federal law”. Additionally, Golan vs Holder doesn’t specifically proscribe any activity, merely affirms a previous economic participant, the rights holder, the ability to participate economically again.
January 19, 2012, 11:45 amOrin Kerr says:
John Thacker:
[Wooshing sound as reference and point flies over professor's head]
January 19, 2012, 11:47 amloki13 says:
Two points-
1. I did enjoy the humor of the post. It made a small point, but I assume it wasn’t supposed to be a compelling (or, um, mandated) legal argument.
2. D’ya think it’s possible for everyone to just *stop making all the same arguments about the PPACA* until at least the oral arguments before SCOTUS, if not the decision? I would love to hear a novel argument, but I haven’t heard one for at least four months, despite numerous comments. Yes, we get it- it’s either the fall of the Republic or the end of Democracy. But seeing as SCOTUS is going to, you know, decide the issue, can we agree to wait and then get all brag-y and/or criticize-y after the decision?
January 19, 2012, 11:56 amSteve says:
Tragically, the comments have failed to convince me that the power to regulate commerce is unenumerated.
January 19, 2012, 12:00 pmUrso says:
The result is no surprise, but what struck me about this opinion is that it was poorly written. I consider Ginsburg one of the better writers on the Court, but this opinion could have used a serious dose of the old saw “delete one word from every sentence and one sentence from every paragraph.” I did enjoy the “constitutional shoals” line, but she should’ve saved it for a Jones Act case.
January 19, 2012, 12:02 pmJustin Levine says:
Huh? Of course the Golan decision proscribes activity. Last week, I was free to perform ‘Peter and the Wolf’ and/or copy any number of creative works. Today I can’t – at least not without obtaining permission from a third party who can deny me that permission for any reason whatsoever (economic or otherwise).
Not only does the decision proscribe a large swath of activity – it proscribes the sort of fundamental activity that lies at the heart of human freedom. Imagine a world where you wake up tomorrow and find that you are not allowed to perform Shakespeare in the park because it is back under copyright. Are you really going to argue that this has nothing to do with proscribing activity and is only about letting an author’s heirs have the right to ‘participate economically’? Your statement is simply 100% wrong and hope that you will take the time to reconsider it.
Defenders of the current copyright regime have a seriously flawed and twisted view of what freedom is.
January 19, 2012, 12:05 pmMasturbatin' Pete says:
Barnett et al. do not seem to believe that democracy is an effective check on Congress.
They do, though. Barnett addresses this when addressing the argument that the mandate/penalty scheme is a “tax,” and thus is within the taxing power of Congress. The PPACA was carefully constructed to avoid using the T-word because it was politically unpopular. For reasons having to do with the political consequences of subjecting the bulk of the country to a new tax, Congress placed the law on precarious constitutional grounds. In fact, Barnett concedes that a straight taxation and spending scheme (i.e., “Medicare for All”) would be constitutional.
January 19, 2012, 12:11 pmCalderon says:
Anderson said:
Almost every liberal and progressive I’m aware of believes that democracy is not an effective check on Congress when it comes to abortion rights, free speech rights (certain kinds of them, anyway), rights to equal protection, the rights of criminal defendants, the rights of prisoners, rights to be free of unreasonable seizures and searches by the police, etc. There may be some true populists out there who believe that the US should be a pure democrary with courts not having the power to declare statutes unconstitutional, but they don’t seem to post a lot on the internet (and ironically, in recent history those who were closest to this position are Bork and some other conservative legal academics from the 70′s and early 80′s).
In other words, we basically all agree that there are judicial checks on Congress’s power. Given that, why wouldn’t Barnett et al. take the path of least resistance and present their claims as part of the existing structure? There’s no evidence I’ve seen that Barnett believes that there is a “failure of American democracy” on some general scale; instead, he wants to apply constitutional limits to the majority’s powers as we’ve been doing since the country’s inception.
January 19, 2012, 12:16 pmrequired says:
1) read the dissent which addresses the issue of states’ rights wrt copyright law.
2) how does freedom not to associate not create a First Amendment argument when the law forces people to enter into associations? association arguments are even more relevant when one includes the limits on speech and mandatory speech which the law forces upon insurance companies to qualify for the law. how does forcing a Christian Scientist to buy insurance their religion forbids them from using not raise a First Amendment argument?
while the First Amendment arguments can be dismissed through application of precedents, that doesn’t mean they do not exist.
January 19, 2012, 12:16 pmrumpelstiltskin says:
That’s because you haven’t actually read the Constitution.
January 19, 2012, 12:19 pmIspep Teid says:
I estimate that we little folks have an approximately 0.00% chance of getting such an amendment.
January 19, 2012, 12:24 pmSarcastro says:
Purchasing services as association. This argument also works for car insurance! And state taxes!
Just because there is no chance the Supreme Court will rule the way I want, doesn’t mean I can’t complain about it on the internet.
January 19, 2012, 12:25 pmMike Mahoney says:
IANAL. Why is there a difference of operation of the power to regulate commerce from the way it is applied to foreign nations, Indian tribes and “among” the States? Does one power contain different meanings under the same grant?
January 19, 2012, 12:28 pmsarah levine simon says:
As a professional musician I well know that there is the practice of music and the practical. This decision actually has the potential to do a disservice to those works that now enjoy wide popularity. Then there is a big enforcement challenge. If an orchestra is planning on Peter and the Wolf for next season, do they have to replan. And if I’ve invested in the scores and have to pay a copyright fee on top of that can I do it. I sort of feel like I had an easement over someone’s land because I bought the parcel behind and now it is being taken away. I don’t even want to think about what is going to happen when people see my latest “comicatura.” Do I get some kind of protection for creating a parody.
January 19, 2012, 12:33 pmhttp://www.youtube.com/watch?v=QEdhNgAJqNY&feature=g-upl&context=G218ff4dAUAAAAAAAAAA
MDT says:
Justin Levine,
Huh? Of course the Golan decision proscribes activity. Last week, I was free to perform ‘Peter and the Wolf’ and/or copy any number of creative works. Today I can’t — at least not without obtaining permission from a third party who can deny me that permission for any reason whatsoever (economic or otherwise).
Are you sure that’s right? I’m pretty sure that public performances of Peter and the Wolf — and all the other large-scale stuff we dwindling classical-music retail people used to describe as GATTed — have meant royalty payments since, well, GATT. That was when all those cool Dover and Kalmus and Musica Rara and Lucks and Masters [and so forth] editions of Prokofiev, Shostakovich, et al. became illegal overnight, and when you had to pay to perform, say, Shosty 5, even if you already owned the Kalmus parts that Kalmus was no longer legally able to sell.
The big issue with Golan, as I understand it, is that recordings made of Peter and the Wolf and, well, pretty much anything Soviet since 1923, are “derivative works,” so people who had made recordings of what they (and everyone else) at the time believed in good faith was public domain material now owe royalties.
This isn’t trivial; one complaint about one use of copyrighted material (the music — de Lalande — was PD beyond dispute, but the edition played from was not) nearly bankrupted Hyperion Records some years back.
January 19, 2012, 12:35 pmPLR says:
The Golan majority includes some justices who have previously shown their fondness for results-oriented constitutional “reasoning.” I have no reason to expect consistency or intellectual integrity in future cases decided by such people.
Good post, however, as it’s always worth shining a light on such things.
January 19, 2012, 12:40 pmAJ says:
It does seem like government is exercising a new legislative power in Golan: the power to pull a work from the public domain back into the copyright domain. No one would question that Congress could set new timelines for new works, and few would question that works currently under copyright could have their timelines extended, but reaching already-expired copyrights is definitely a stretch. What is this necessary and proper to put into effect? The Constitution says limited time in my version, not limited times!
January 19, 2012, 12:46 pmEvan says:
Well, yes, which is why I said “wish.”
I’d wish for a new Constitutional Convention while I’m at it, except that I’d also need to wish for completely unelectable people to be elected to it.
January 19, 2012, 12:54 pmSoup42 says:
As opposed to the dissenters, who have been paragons of consistency?
As much as I disagree with the Court, I don’t find its reasoning illegitimate.
January 19, 2012, 12:55 pmJardinero1 says:
Sorry, I meant prescribe. Which the ACA does but this case does not. By the way I don’t endorse the current copyright regime. In fact, I am a copyright anarchist. My point was to address the argument of Mr. Kerr not the current regime.
January 19, 2012, 12:58 pmJoeJP says:
SteveL says:
I think you have it right. The comparison isn’t even in the same ballpark. Both the copyright power and the treaty power are explicitly enumerated.
unlike the tax power or the power to regulate interstate commerce?
The Affordable Care Act will test whether there are any limits at all on commerce clause power itself
a law regulating a major aspect of the national economy (as compared to non-economic things like violence against women) in limited ways tied to economic activity (purchase of insurance as compared to mere ownership of guns) that provide exceptions for religious dissenters etc. might not be the best way to do that.
January 19, 2012, 1:01 pmJustin Levine says:
If that were in fact the case, then it was never in public domain since the very definition of public domain material precludes copyright-based royalties to anyone. If that were true, then I wonder why the Plaintiff, Defendant and Court ever bothered to spend the time and money to bring the case since it was partially based on a false premise. But if it makes things easier, substitute any public domain material in place of “Peter and the Wolf” in my argument and my point still stands.
January 19, 2012, 1:01 pmJoe says:
SteveL says:
I think you have it right. The comparison isn’t even in the same ballpark. Both the copyright power and the treaty power are explicitly enumerated.
unlike the tax power or the power to regulate interstate commerce?
The Affordable Care Act will test whether there are any limits at all on commerce clause power itself
a law regulating a major aspect of the national economy (as compared to non-economic things like violence against women) in limited ways tied to economic activity (purchase of insurance as compared to mere ownership of guns) that provide exceptions for religious dissenters etc. might not be the best way to do that.
January 19, 2012, 1:11 pmJoe says:
SteveL says:
I think you have it right. The comparison isn’t even in the same ballpark. Both the copyright power and the treaty power are explicitly enumerated.
unlike the tax power or the power to regulate interstate commerce?
The Affordable Care Act will test whether there are any limits at all on commerce clause power itself
a law regulating a major aspect of the national economy (as compared to non-economic things like violence against women) in limited ways tied to economic activity (purchase of insurance as compared to mere ownership of guns) that provide exceptions for religious dissenters etc. might not be the best way to do that.
January 19, 2012, 1:11 pmJoe says:
SteveL says:
I think you have it right. The comparison isn’t even in the same ballpark. Both the copyright power and the treaty power are explicitly enumerated.
unlike the tax power or the power to regulate interstate commerce?
The Affordable Care Act will test whether there are any limits at all on commerce clause power itself
a law regulating a major aspect of the national economy (as compared to non-economic things like violence against women) in limited ways tied to economic activity (purchase of insurance as compared to mere ownership of guns) that provide exceptions for religious dissenters etc. might not be the best way to do that.
January 19, 2012, 1:11 pmBrett Bellmore says:
Perhaps reading the commerce clause could convince you of that? In as much as it doesn’t enumerate a power to regulate “commerce”, but rather “commerce blah blah blah”, where the blah devoted to explaining what subset of commerce the power is actually extended to.
January 19, 2012, 1:12 pmsarah levine simon says:
This is a bit off point but of interest:
January 19, 2012, 1:13 pmAn article from the New York Times about the Savory Collection.
Savory was a sound engineer who recorded many jazz greats in the interest of the technology. The musicians willingly played and were recorded by Savory. The collection was recently unearthed by his descendants and bequeathed to Harlem Museum for the ARts.
Do the descendants of the musicians have rights to their work?
http://www.nytimes.com/2010/08/17/arts/music/17jazz.html?pagewanted=all
Brett Bellmore says:
Perhaps reading the commerce clause could convince you of that? In as much as it doesn’t enumerate a power to regulate “commerce”, but rather “commerce blah blah blah”, where the blah devoted to explaining what subset of commerce the power is actually extended to.
January 19, 2012, 1:14 pmTraffic Ticket Lawyer says:
The worst thing about passing SOPA is that it won’t stop the hackers, they will simply open new sites, so what’s the point? Meaning to say more damage than structure will come from SOPA.
January 19, 2012, 1:16 pmMDT says:
AJ,
No one would question that Congress could set new timelines for new works, and few would question that works currently under copyright could have their timelines extended, but reaching already-expired copyrights is definitely a stretch.
In the case of music from the former USSR, I think it wasn’t so much that copyright had lapsed; we just weren’t honoring Soviet copyright. I don’t know when that happened, but it was longer ago than I’ve been alive. It likely had something to do with the fact that the USSR didn’t honor our copyright (or that of most other nations) until the early 70s.
January 19, 2012, 1:19 pmsarah levine simon says:
A bit off point but interesting are the issues that surround the Savory Collection. http://www.nytimes.com/2010/08/17/arts/music/17jazz.html?pagewanted=all
January 19, 2012, 1:19 pmsarah levine simon says:
A bit off point but interesting are the issues that surround the Savory Collection. http://www.nytimes.com/2010/08/17/arts/music/17jazz.html?pagewanted=all
January 19, 2012, 1:19 pmrequired says:
1) the argument has been used for taxes as recently as 2006 (Jenkins despite having lost since at least 1634. merely because an argument loses every time it comes before a court does not keep it from coming before the courts or requiring the courts to once again consider it (albeit usually that consideration is brief).
2) One of the interesting things about the US Supreme Court is that sometimes they discover something they have overlooked before. Given the precedent of Betts there was no chance the the Supreme Court would rule the way it did in Gideon. First Amendment arguments, even arguments which have never before succeeded, exist wrt to the individual mandate. Saying they don’t exist doesn’t make them not exist, and even losing before the Supreme Court won’t make them cease to exist. Say, instead, that those arguments are poor and have always lost, or that you’d rather bet on the extended duration of a spheroid composed up of crystallized water aggregate in infernal regions.
January 19, 2012, 1:28 pmAaron says:
Does this mean Justice Breyer will be deciding to strike down the health care law? Because I don’t think anyone’s predicted that! Indiana Guy hit it on the head. Copyright laws are an actual enumerated power of Congress.
“Congress could have rationally concluded that it was helpful to regulate the unprecedented space that was previously beyond Congressional regulation to avoid a market distortion that would otherwise result”
Am I the only one who finds that statement hilarious? Congress rationally believes Congress can, with regulation, avoid market distortions. Congress will come to that conclusion quite often, but last I checked, they seem to have a better track record in creating those distortions.
It’ll be a 5-4 decision; I’m not even taking a stab at which will the Court will actually decide.
January 19, 2012, 2:08 pmAJ says:
Your point is well taken and it reminds me of why CATO argued this in terms why the treaty-making power of Congress cannot authorize new legislative powers.
January 19, 2012, 2:08 pmJoeJP says:
As to the author of the opinion, it probably won’t be Ginsburg, who is getting a lot of opinions lately, though Breyer did write a significant necessary and proper ruling not too long back that Roberts joined that some think will help lead to the ACA provisions to be upheld.
[sorry for duplicate posts]
January 19, 2012, 2:34 pmcaptcrisis says:
One difference between Golan and the ACA case will be the depth of scholarship on the side of the petitioners. In the case of Golan, it goes back 200 years, Copyright being in the minds of the founders (especially Jefferson and Franklin).
By contrast, the scholarship opposing the ACA suspiciously dates no further back than July 2009, when the mandate switched from being a Republican idea to a Democratic one.
January 19, 2012, 2:37 pmjosh says:
I think this might be right if the Act constituted majority tyranny over the minority. With your “liberal” examples above, you have actions by the majority against a specified minority – women, gays, etc. With the Act, you had a majority of congress at the time pass a law that affects … everyone (as we liberals argue it had the power to do). Indeed, while the polling has fluctuated since this argument began, the Act’s opponents argued that the majority of Americans opposed it. We’re all oppressed (come see the violence in inherent in the system!)
January 19, 2012, 2:46 pmSteveL says:
Is there anyone who seriously believes that “democracy” is a check on Congress? That’s laughable. “When the people find they can vote themselves money, that will herald the end of the republic.” – Benjamin Franklin. Pretty much describes what Congress does, dole out money to people in exchange for votes.
January 19, 2012, 3:09 pmMDT says:
Justin Levine,
If that were in fact the case, then it was never in public domain since the very definition of public domain material precludes copyright-based royalties to anyone. If that were true, then I wonder why the Plaintiff, Defendant and Court ever bothered to spend the time and money to bring the case since it was partially based on a false premise. But if it makes things easier, substitute any public domain material in place of “Peter and the Wolf” in my argument and my point still stands.
No, you’re missing my point. Peter and the Wolf was in the public domain in the US, so far as I know, from its composition in 1936 through to the Uruguay round of GATT in 1994, at which point it went back into copyright. Before 1994 you could buy parts and perform it without paying royalties; after, you could not.
But, before 1994, lots of people recorded Peter and the Wolf, and heaps of other Soviet music, under the then-completely-uncontroversial understanding that the music was in the public domain. These recordings, as “derivative works,” now officially have copyright/royalty issues.
January 19, 2012, 3:10 pmAJ says:
The majority of people do have insurance (~90%); the minority does not. The minority is being used so that the majority does not have to pay substantially higher premiums in order to keep insurance companies profitable while they discount those with pre-existing conditions. This will only work if we can find those despicable, cost-shifting, system-gaming minorities and make an example of them!
January 19, 2012, 3:12 pmloki13 says:
That’s not true! It has a long pedigree. For example, where you aware that broccoli evolved from cabbage, and was known 2,000 years ago? That’s, like, super-duper precedent… older than Blackstone.
January 19, 2012, 3:17 pmloki13 says:
Totally right. Our current, employer-centered market isn’t distorting in any way. Say, what’s the single biggest (revenue terms) tax break out there? Of course, we’ve all forgotten about homo economicus, so no one factors this in when deciding to switch jobs, or to start a new business… so that doesn’t distort the economy. Yeah- everything’s great, except for the uninsured.
January 19, 2012, 3:23 pmBob from Ohio says:
Seems like a lot of pre-game victory dancing going on here.
My recollection is that the same people thought the Obamacare challenges would get absolutely no where.
January 19, 2012, 3:25 pmSteve says:
Many of us would be quite content if the proponents of the “inactivity” argument would admit that they are essentially making a substantive due process argument. The problem is that they pretend they aren’t.
January 19, 2012, 3:34 pmAJ says:
That’s fine, in fact I agree, but I don’t recall that being discussed much during the run-up to PPACA. My recollection was single payer (ouch sounds like communism), public option (ooops sounds like socialism), and finally mandate the hell out of them (errr, kind of like a tax/wheat regulation….nothing to look at here folks…move along). Breaking insurance free of employment is a good first step.
So Congress can only make me do economic things (consuming in this case) that are helpful to the national economy. Is there any product or service purchase that by definition would be excluded from this “limited” teeeny, weeeny expansion of power?
January 19, 2012, 4:05 pmloki13 says:
I think anyone who seriously looks at the issue (as opposed to people who just like the health insurance that they happen to have via government subsidy, um tax break) thinks that’s the first step in an ideal world. Of course, depending on your ideology, the next step will be very different.
Unfortunately, we don’t live in an ideal world, and it is exceedingly unlikely that we can get rid of employer health insurance in one step.
January 19, 2012, 4:17 pmOrin Kerr says:
Some readers seem to think that the point of this post is to argue that under Golan, the individual mandate must be upheld. I scratch my head as to how someone could interpret the post that way, so let me be clear: That is not an argument I am making or that ever crossed my mind.
Rather, the point is that the basic structure of the argument behind the mandate challenge is something we see from time to time, not something remarkably new, and yet we generally don’t even bother to think it a major case when (as generally happens) the Supreme Court adopts an expansive reading of Article I power and rejects the challenge. I’m not saying any particular decision is right or wrong; I’m just pointing out that the structure isn’t as novel as some think.
UPDATE: I should also add that much of the point was also just that I thought the similarities were kind of amusing.
January 19, 2012, 4:20 pmSteve says:
Is there anyone who seriously believes that Benjamin Franklin said that? Oh dear…
January 19, 2012, 4:21 pmloki13 says:
Prof. Kerr,
You give people too little credit. In my opinion, this is the very first time any appellate court has been presented with a “parade of horribles” scenario. I am fairly sure that no litigator, and certainly no appellate advocate, has ever encountered a slippery slope argument- perhaps you could ask a co-blogger, like Prof. Volokh, to write about it?
January 19, 2012, 4:27 pmCalderon says:
As a libertarian, and a lawyer, that certainly was my belief. I still believe that the Obamacare challenges will fail in the Supreme Court, but Prof. Barnett and co. certainly outperformed my expectations in terms of getting the lower courts to rule in favor of their arguments. (Before the challenges were litigated, my prediction was that the challengers would lose every case at the district and appellate court levels, and the Supreme Court would not grant cert because there would be no need.)
January 19, 2012, 4:30 pmloki13 says:
*shrug* Poor Richard is probably pleased that must apocryphal saying get misattributed to him. He’s the American Shakespeare! A certain Tytler, on the other hand, might not be so pleased.
Play it again, Sam. :)
January 19, 2012, 4:33 pmloki13 says:
I thought the challengers had a shot in Pensacola and (maybe) the Eleventh CoA depending on the draw. The Vinson opinion didn’t shock me in the result as much as the (poor, IMO) reasoning.
January 19, 2012, 4:38 pmShag from Brookline says:
I’m waiting for a David Bernstein comment on the impact of Golan on the Heights!
January 19, 2012, 4:44 pmCalderon says:
My main point is that the same people who claim that the mandate challengers have some problem with democracy themselves do not believe that “democracy is an effective check on Congress” on various issues. The content of those issues may vary from person to person, but the bottom line is that people (including the posters) here would argue that Congress cannot validly pass certain laws.
Moreover, plenty of laws that would be invalid from a liberal/progressive perspective would “affect everyone.” A law that you cannot burn the US flag “affects everyone,” as does a law that your cannot insult religious beliefs, a law that you cannot make a movie showing an erect penis, or a law allowing the police can search you without articulating any reason, or one that lets police can enter your home without a warrant, etc. For that matter, a law against getting an abortion “affects everyone” because under state law men will have financial obligations if the fetus/embryo/child is born. Yet these are all unconstitutional, and I assume the liberal posters here would agree that all of them should be unconstitutional. Of course, if you move to the argument that “but, really, a law against burning the flag only affects the minority of the population who want to burn the flag,” then the mandate has the same problem as it only affects the minority who do not want to buy health insurance.
January 19, 2012, 4:45 pmUrso says:
I don’t know who Timothy Sandefur is, but you managed to get him to throw a damn near tantrum.
January 19, 2012, 4:47 pmCalderon says:
Given Lopez and Morrison, why would they need to claim anything other than that they are making a commerce clause argument? They may be right, they may be wrong (predictively, I’m heavily betting the latter), but the argument certainly has support under commerce clause jurisprudence. As I noted in my first comment, the anti-mandate argument today is a lot less novel than the challenge in Lopez.
January 19, 2012, 4:48 pmloki13 says:
Look at that list again. Look carefully. Consider it. Now-
cf.
January 19, 2012, 4:56 pmCalderon says:
loki13 said:
I guess you’re going to have to spell out your point more if you want me (and possibly others who are reading this far down) to grasp it. I refer to my prior comment that given Lopez and Morrison why wouldn’t they make a commerce clause argument?
January 19, 2012, 5:14 pmOrin Kerr says:
Urso:
It’s perhaps worth noting that Tim is a pretty passionate Objectivist.
January 19, 2012, 5:14 pmKirk Parker says:
Urso,
I may or may not agree with what Sandefur says in his response, but if you think that’s a “near tantrum” then all I can say is you’ve lead a marvelously sheltered life.
January 19, 2012, 5:21 pmloki13 says:
Look at your list. In order-
First Am., First Am., First Am., Fourth Am., Fourth Am., SDP. (Note that the BoR ones are like also SDP via incorporation)
Every example you came up with was an individual rights argument, not a commerce clause argument. Lopez & Morrison were about activities that were too attenuated from economic activities (commerce) – violence against women and gun free school zones (although this was saved by adding the requirement that the guns/ammo traveled in interstate commerce). No one is seriously arguing that the national health care and health insurance market is too attenuated from economic activities. They are arguing that *individuals* shouldn’t have to do it. Which is an SDP/individual rights argument- like the examples you provided. Not Commerce Clause.
January 19, 2012, 5:23 pmloki13 says:
I thought Prof. Barnett’s post (noting the humor) was spot on. Maybe it’s just me, but I have noticed anecdotally that there is an inverse correlation between passion for objectivism and sense of humor.
January 19, 2012, 5:25 pmJoeJP says:
Joe: a law regulating a major aspect of the national economy…in limited ways tied to economic activity
AJ: So Congress can only make me do economic things (consuming in this case) that are helpful to the national economy. Is there any product or service purchase that by definition would be excluded from this “limited” teeeny, weeeny expansion of power?
I noted the law “regulated” a field that is a “major aspect” of the national economy in a way tied to economic activity.
From this, you speak of “doing” economic things (here you don’t have to consume health insurance .. millions will not and not have to pay a dime) that are “helpful” to the national economy. No talk of “major aspect” there.
Also, I know, time restraints, you skipped over the religious exemption comment which reflects but one “limit” to the power in question. We just had a ruling, e.g., on the ministerial exemption, even when people were being paid. That is a ‘limit’ the power over interstate commerce.
Still, when interstate commerce is involved, generally speaking “product or service purchases” of all types can be regulated, though again, the Constitution sets forth various limits on the power. See, BOR, Art. I, sec. 9, etc.
Anyway, before you try to use the above to set forth my “doctrinal rules,” the point was this law was more specific and limited, so “unlimited” was a bit much.
January 19, 2012, 5:32 pmAJ says:
Wouldn’t an SDP argument also apply against state action? Do states have a broader police power than the federal government? If so, are there then certain mandates that the state can compel as part of that police power? Isn’t it easier to show that mandating commerce intrudes on this police power rather than show that a citizen should be free from ALL untethered economic mandates? I understand how this confuses individuals who believe that the 10th amendment is some strange vestigial pus-sac and federalism a code-word for segregation.
January 19, 2012, 5:32 pmAJ says:
Congress is going to regulate your voluntary purchase of a car and then subject you to all regulations governing the use and ownership of that car; Congress is going to mandate that you purchase a car and then subject you to all regulations governing the use and ownership of that car. No difference between the two?
January 19, 2012, 5:50 pmCalderon says:
loki13 said:
As shown by the statement in my comments, I picked examples of unconstitutional laws that modern-day liberals would agree with. For that reason, I did not include any commerce clause examples.
I don’t see the distinction between saying certain rights in the constition are individual but that commerce clause rights are … what? What does it mean to imply that commerce clause arguments are not based on individuial rights? If you’re arguing that the commerce clause is limited to some extent, you’re arguing that the federal government lacks the power to impose penalties on individuals. A right not to be subject to a federal law banning guns near schools, or a federal law imposing penalties for violence against others, is an individual right. The fact that something is an individual right does not make it incompatible with a commerce clause argument.
Finally, I don’t see how the activity/inactivity distinction is much more innovative that Lopez or the many other con law cases where the court comes up with a new test (abortion, establishment, obscenity, etc.). Each of those tests starts somewhere, and arguing that inactivity is not commerce is an argument about the boundaries of the commerce clause.
January 19, 2012, 6:15 pmJustin Levine says:
I guess I am missing your point (which I admittedly still don’t understand). If the only point you are trying to make is that derivative works of public domain materials receive their own separate copyright protection (both before and after GATT)- that is both obvious and undisputed. I’m not sure how that has any relevance whatsoever to my underlying point though that taking a public domain composition and placing it back into copyright proscribes free speech activity since you can no longer perform the composition without getting permission from a third party.
January 19, 2012, 6:32 pmloki13 says:
Commerce clause “rights” are… non-existent. You don’t understand the distinction.
For example-
Congress passes a law stating that no literature supporting democratic candidates can be sent through the mail system. There shouldn’t be any argument that this is within Congress’s enumerated powers, but it runs afoul of the First Amendment.
The difference here is this- by making a commerce clause argument, you are stating that Congress does not have the power (through Commerce and N&P, or, alternatively, through their taxing power) to regulate this market. Your argument is that Congress shouldn’t be allowed to compel people to purchase a product. That’s an individual rights arguments, not a commerce clause argument.
Also-
Conserviatves disagree with all of the examples you listed? *All* liberals agree with all of them? Who wrote a scathing dissent, and recently re-affirmed it in various public pronouncements, in Texas v. Johnson?
January 19, 2012, 6:33 pmrpt says:
He was the other guy in Christine O’Donnell’s class at the Claremont Institute. He has a low threshold and no sense of humor.
January 19, 2012, 7:08 pmErik says:
Prof. Kerr, the analogy is cute. For serious value, I suppose it shows that provisions of the constitution are treated differently. I don’t think there is a Congressional power more scrutinized than the Commerce Clause. Is that a bad thing? It is the most used clause and affects the most people. In that sense, it makes sense (although I do think the PPACA is constitutional).
January 19, 2012, 8:29 pmJoe says:
AJ: Congress is going to regulate your voluntary purchase of a car and then subject you to all regulations governing the use and ownership of that car; Congress is going to mandate that you purchase a car and then subject you to all regulations governing the use and ownership of that car. No difference between the two?
You constantly draw lines that have some sort of “difference,” just not the constitutional difference to the extent you wish shown. Congress can regulate commerce in various ways, sometimes by requiring the purchase of certain things (and then, regulating what is purchased) and if it wishes, by using the tax system to assist the process.
January 19, 2012, 8:54 pmCalderon says:
loki13 said:
I’d suggest that because there is no distinction, and commerce clause rights are as individual as any other rights. If my argument is that Congress has exceeded its power and invaded an area that it should not have any power over, that’s an individual right. The Federalist founders did not see any distinction between limits on Congress’s powers and rights in a bill of rights, and argued that those limits preserved individual rights (though obviously in the end after ratification the bill of rights was added).
I didn’t say that conservatives disagreed with them, just generally that liberals would agree with them. Circling back to the start, my point was that those who criticize the mandate challengers as being inconsistent with democracy (mostly liberals) also have areas where they would take decisions on the validity of laws from the hands of Congress, and so I was providing examples liberals generally would agree with.
January 19, 2012, 9:52 pmAJ says:
Unilateral economic mandates disrupt the critical voluntary nature of economic exchange and become a stealth means of accessing an individual’s wealth without having to fashion a proper tax or execute a valid takings. As such, it is an improper use of power by Congress, one that was not specifically enumerated or one that is plainly adapted. The power to regulate is the power to say “if you wish to do X, here is how you must do it”. It is not the power to say “go do X or face punishment”.
January 19, 2012, 10:49 pmBrandon says:
Orin –
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur’s piece quoted by Barnett). Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice (which I’ve been a part of now for more than 4 years).
So perhaps you’d like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically,
DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I??????
I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided.
Thnx.
- Brandon
January 19, 2012, 11:41 pmloki13 says:
Calderon,
Respectfully, you may suggest whatever you’d like- you may suggest, or example, that the moon is made of green cheese. Doesn’t make it so.
That some early Federalist argued that a Constitution of enumerated (but plenary) powers would retract Congress from legislating in such a way such that their legislation could not infringe on individual rights does not mean that that, inter alia, they were arguing that there was an “individual right component” to the commerce clause. And regardless, the concerns of the anti-federalists (and some federalists) was grave enough that the debate was effectively settled by the BoR.
So you may suggest all you like. But unless you have any authority, I’ll have to go with the entire jurisprudence and tradition of our country instead of your suggestion.
January 19, 2012, 11:58 pmBrandon says:
So my comment was deleted – I assume by Orin. I’ll post it again here . . ,
Orin –
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur’s piece quoted by Barnett). Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice (which I’ve been a part of now for more than 4 years).
So perhaps you’d like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically,
DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I??????
I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided.
Thnx.
- Brandon
January 20, 2012, 12:13 amBrandon says:
So my comment was deleted – I assume by Orin. I’ll post it again . . .
Orin –
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur’s piece quoted by Barnett). Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice (which I’ve been a part of now for more than 4 years).
So perhaps you’d like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically,
DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I??????
I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided.
Thnx.
- Brandon
January 20, 2012, 12:14 amBrandon says:
So my comment was deleted – I assume by Orin. I’ll post it again . . .
Orin –
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur’s piece quoted by Barnett). Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice (which I’ve been a part of now for more than 4 years).
So perhaps you’d like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically,
DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I??????
I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided.
Thnx.
- Brandon
January 20, 2012, 12:14 amBrandon says:
So my comment was deleted – I assume by Orin. I’ll post it again . . .
Orin –
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur’s piece quoted by Barnett). Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice (which I’ve been a part of now for more than 4 years).
So perhaps you’d like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically,
DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I??????
I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided.
Thnx.
- Brandon
January 20, 2012, 12:14 amBrandon says:
So my comment was deleted – I assume by Orin. I’ll post it again . . .
Orin –
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur’s piece quoted by Barnett). Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice (which I’ve been a part of now for more than 4 years).
So perhaps you’d like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically,
DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I??????
I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided.
Thnx.
- Brandon
January 20, 2012, 12:14 amBrandon says:
Quoting my original comment here b/c it was previously deleted – and I assume by Orin.
January 20, 2012, 12:15 amOrin Kerr says:
Brandon,
Your comment was not deleted, actually. See above.
Best,
January 20, 2012, 12:33 amOrin
Reaction Round-Up: Golan v. Holder | Confessions of a Mad Librarian says:
[...] Orin Kerr at The Volokh Conspiracy - Supreme Court Considers Case on “Unprecedented” Assertion of Congressional Power [...]
January 20, 2012, 12:45 amWayneLawStudent says:
“Two Justices will dissent, one of which is Justice Alito.”
I was rather astonished last year while taking Crim Pro I (called Criminal Procedure – ‘Investigations’ at my law school) of the voting breakdown in Arizona v. Gant (the now seminal ‘search incident to arrest’ case regarding automobile searches).
Alito authored the dissent joined by Roberts, Kennedy, and… most surprising to me at the time… Breyer (joining Alito’s dissent in large part).
The majority was overturning the rather well-settled precedent of New York v. Belton – and it was on this point that Alito and Breyer agreed most in dissent.
Bottom-line? When it comes to stare decisis, it is difficult to forecast how any given justice may vote… If Alito and Breyer give Raich its precedential ‘due,’ it will be difficult to see how either could justify voting against the government/Congress on Healthcare…
January 20, 2012, 1:02 amAdam S says:
Bond v United States : http://www.scotusblog.com/case-files/cases/bond-v-united-states/
“The limitations that federalism entails are not therefore a matter of rights belonging only to the States” [read: they also belong to individuals]
There’s the authority you seek
January 20, 2012, 2:07 amMJW says:
Expanding on Adam S’s excellent citation of Bond v. United States:
January 20, 2012, 4:21 amloki13 says:
I’m familiar with Bond. And I love standing. What does Bond have to do with this, again? ;)
January 20, 2012, 7:32 amloki13 says:
Building on my tongue-in-cheek post, was the problem at issue in Bond one that presents itself in the instant case?* What was the salient issue in Bond? Cf., for example, Lopez.
If Calderon is asserting that he meant no more that legislation enacted by Congress affect people, and that they have a right to challenge the legality of it under the commerce clause, then I have no quibble with it. Otherwise, I will go back to my original statement-
There is no “individual right” component to the commerce clause. Either legislation is proper under the Commerce clause (+N&P) or it isn’t.
*This is the danger of citing random cases for propositions.
January 20, 2012, 7:49 amCalderon says:
loki13 — I think we’re exhausting the usefulness of this exchange, but I’ll make one more post. First, you don’t cite any authority for what your perceive as “the entire jurisprudence and tradition of our country instead of your suggestion,” and one poster already has cited an S Ct case to the contrary. Do you have any authority for your position?
Second, for my side, let’s look at Lopez and Morrison. In both cases, an individual challenged a federal statute as exceeding Congress’s power under the commerce clause. We know this was a commerce clause challenge — and not an SDP challenge — because that is what the S Ct said, and that is the grounds on which the S Ct based its decision. Likewise, these challenges had the same form as the assertion of any other individual right, which is to argue that Congress has exceeded its powers granted under the constitution.
Now we have the mandate challenge, which likewise asserts that Congress has exceeded its powers under the commerce clause. This has the same form as the arguments under Lopez and Morrison, which we know are commerce clause challenges, and thus there is no basis to claims that the anti-mandate arguments are “really” SDP arguments. Likewise, there’s no difference between arguing that the Congress has exceeded its power under the commerce clause and legislated where it has no authority or arguing that Congress has legislated in an area protected by the 1st Am. where it has no authority.
January 20, 2012, 8:50 amloki13 says:
No.
Bond was about whether individuals had standing to assert that a law was invalid as applied to them because of the Tenth Amendment. From the beginning of the opinion:
“This case presents the question whether a person indicted for violating a federal statute has standing to challenge its validity on grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intruding upon the sovereignty and authority of the States.”
No one’s arguing that individuals don’t have the right to challenge laws under the commerce clause. At least, I don’t think they are. :)
This is where the dispute lies-
I am interpreting your words as saying that there is some *separate* individual rights component to the commerce clause. I am telling you that the commerce clause (+N&P) is about whether or not a law is validly enacted pursuant to Congress’s enumerated powers. There isn’t some secret “well, this is a commerce clause case, but we are challenging based on the individual rights secret portion of the commerce clause” part.
If you are making the sole point that having a Federal Government limited to enumerated powers (put plenary within those enumerated powers) is, overall, “good” for individual freedom, then I don’t have a dispute with you. I’m sure Lopez would agree.
January 20, 2012, 9:34 amIndiana Guy says:
Well, hum, I can walk down the street to the National Archive at lunch, but I am pretty sure the copy I have on my desk says the same thing and it is easier to read.
You may not like what clause 8 says, or may think the Supreme Court went too far in interpreting clause 8, but it is still there.
I still can’t find a clause on healthcare, I’ll keep looking :)
January 20, 2012, 10:43 amMDT says:
Justin Levine,
I guess I am missing your point (which I admittedly still don’t understand).
Probably my fault. I’ll try again.
If the only point you are trying to make is that derivative works of public domain materials receive their own separate copyright protection (both before and after GATT)- that is both obvious and undisputed.
No, that isn’t it. It’s that Golan means that derivative works made when the original work was uncontroversially in the public domain are now derivative of copyrighted material. So that people who (say) recorded Soviet music pre-1994 now owe some yet-to-be-determined compensation to copyright-holders who did not exist at the time the recording was made. How large that compensation turns out to be, we don’t know yet.
Basically all GATTed music has been treated by printed music publishers, orchestras, opera companies, and the like as back under copyright since 1994. Had Golan come out the other way, would they have demanded compensation for the fees, lost income, &c. they suffered for having had to treat public domain material as copyrighted? Very likely, though God only knows how you’d calculate that in the case of publishers.
If you can get Shostakovich string quartets only via Sikorski (well, now, of course, DSCH, but that didn’t exist in 1994), fewer people are going to buy scores or parts than when you could get them from Dover, Masters, Musica Rara, because, well, 3-4x price. So (in a scenario where Golan went the other way), the reprint publishers’ loss from the re-copyrighting might actually exceed the copyright-holder’s gain.
I’m not sure how that has any relevance whatsoever to my underlying point though that taking a public domain composition and placing it back into copyright proscribes free speech activity since you can no longer perform the composition without getting permission from a third party.
Oh, dear. IANAL, but if I were one, I don’t think I would argue it that way.
January 20, 2012, 12:19 pmAaron G says:
I think the best argument for the challengers is by using Raich’s logic.
Enforcement of CSA cannot be achieved without enforcement against purely intrastate activity which cannot be non-arbitrarily excised from the class of activities. In essence, the class of activities is “cultivation, possession, sale, or transport of marijuana.” If the subset “cultivation, possession, sale, or transport of marijuana of a purely local nature” were outside the federal reach, every attempt at enforcement would require an impossible inquiry or make enforcement impossible. You could impose proof of intent, or actual commerce, but that would make enforcement so costly as to defeat its purpose and most likely not effect congress’s intent to prevent a problem properly within its authority.
Several distinctions here. The class of activities here is the decision to purchase or not purchase health insurance (I say decision because that’s how the government presented the activity at the 11th Circuit, although I have serious qualms with this assumption). The problem is that the class of activities does not implicate interstate commerce. The non-arbitrary distinction here is the actual purchase of health insurance (which implicates interstate commerce) and the failure to do the same (which does not implicate interstate commerce, or even intrastate commerce).
Because the activities can non-arbitrarily be distinguished and excised as nontrivial instances of purely local activity (or non-activity, if you’re into that argument), it does not matter whether it’s necessary to the overall scheme because the only class of activities which is necessary to the overall scheme (the instances which are nontrivial and which can non-arbitrarily be distinguished as outside Congress’ commerce power) is a class which is of a purely local (individual) concern.
January 23, 2012, 12:35 pm