On behalf of the Independence Institute, Rob Natelson and I wrote an amicus brief on the Medicaid mandate currently before the Supreme Court. (The ACA requirement that states must drastically expand Medicaid eligibility, or lose all their federal matching funds for Medicaid.) Here’s the Summary of Argument:
By imposing the Medicaid mandates in the Affordable Care Act (“ACA”), Congress exceeded the scope of its enumerated powers. If allowed to stand, those mandates could be the death-knell for the Constitution’s finely calibrated system of federalism. The states truly would be little more than agencies for Congress to “commandeer” at will.
The Founders created and the People ratified a Constitution protecting the States’ role as limited “sovereigns.” As this Court has ruled repeatedly, the states’ sovereign “independence” entitles them to make decisions within their sphere based on their own policy judgments, free of federal coercion. As explained below, this rule and the closely-related principle of federal non-coercion is of particular constitutional importance in financing health and social services.
In sustaining the Medicaid mandates, the United States Court of Appeals for the Eleventh Circuit overlooked both Founding-Era constitutional principle and modern Supreme Court doctrine. It also overlooked aspects of the Medicaid mandates that particularly aggravate their coercive qualities. Insofar as the ACA authorizes withdrawal of all Medicaid funds from States that choose not to submit to the Medicaid mandates, that statute slashes at the heart of American federalism. It is unconstitutional and void.
Intelligent comments are welcome, although experience suggests that there will also be plenty of comments from twits who have not read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning. Rob’s summary of brief is available on his blog.
JoeJP says:
I don’t want to be a “twit” so I will cite another interesting discussion on this matter (if not, sorry if I’m being a twit, not necessarily this brief specifically) & I do welcome VC to address this aspect of the case along with the Anti-Tax Injunction provision. The other aspect has been of the “beat a dead horse” variety.
http://www.concurringopinions.com/archives/2012/01/getting-the-facts-right.html
January 19, 2012, 2:43 pmjonah gelbach says:
David, I don’t have time to read your brief, so I certainly won’t judge your argument. But I do wonder what you would think of the following two pieces of legislation:
The Everyone-Agrees-It’s-Constitutional-ACA-Substitute Act-Part-I (EAICASA-I): All federal statutes relating to federal spending under the Medicaid program are hereby repealed.
The Everyone-Agrees-It’s-Constitutional-ACA-Substitute Act-Part-II (EAICASA-II): The combination of federal statutes previously in place before enactment of the ACA are re-established, together with the Medicaid-related provisions of the ACA.
Anything unconstitutional about these two Acts, enacted in that order?
[DK: Interesting idea, but I'd consider a triumph of form over substance. The whole current state Medicaid systems would still be in place, even if federal Medicaid nominally disappeared for a few minutes before reappearing.]
January 19, 2012, 3:00 pmuh_clem says:
“…there will also be plenty of comments from twits…”
Well, I’m glad to know that the Conspirators are taking OK’s posts about civility to heart.
January 19, 2012, 3:15 pmgovols says:
Curious–what sort of test will future courts use on other issues to decide whether the threat to withdraw federal funding is so coercive as to destroy federalism? Cause that sounds like a disaster waiting to happen.
January 19, 2012, 3:16 pmyankee says:
The brief is very heavy on Founding-era sources and very light on precedent. South Dakota v. Dole is the elephant in the room, and the discussion of that case is perfunctory. The Court did offer dicta to the effect that financial pressure could turn into coercion, but the brief doesn’t offer any test to implement this dicta. The brief (accurately) observes that withdrawing Medicaid funding would wreck “budgetary havoc,” but this proves too much. Has Medicaid really been constitutionalized, so that Congress can never change the requirements associated with the program?
January 19, 2012, 3:20 pmJesse-Az says:
One quick question before I respond, why link to a posting of 2 other links, just link to the original.
Sara Rosenbaum and Katherine Hayes, from your sublink, both make quite astute assumptions that have not proven to be true, where they state the estimates of “minimum coverage” costs. First, they use a CBO report from early 2010. Just analyzing the years 2010 and 2011, the costs for healthcare is increasing at nearly 2x the rate the CBO was estimating in 2010. Likewise, Sebelius has been expanding what needs to be covered under minimum coverage. Their whole analysis relies on the cost estimates from the 2010 report, which simply aren’t on pace to be what the CBO initially estimated. When the crux of their argument is wrong, maybe it’s time to look in a different direction.
January 19, 2012, 3:21 pmAlast says:
I haven’t looked hard yet, bit IIRC, Justice O’Connor had a strong opinion that such spending power coercion as very dangerous. Losing 5% would be OK, but losing 100% would not.
January 19, 2012, 3:24 pmDilan Esper says:
That’s always been the rub with Spending Clause issues.
Unlike on the individual mandate (I think that’s odious policy, but also think it’s absolutely clear that mandates are part of the Commerce power AND that even if they weren’t, a mandate that is tied to a preexisting condition regulation is clearly “necessary and proper”), I’m actually quite sympathetic to the arguments of libertarians and conservatives on the Spending Clause. It’s quite troublesome that Congress can get around just about any limitation on federal power by establishing a regime where the federal government taxes and spends a shitload of money, and then turns around and enacts a bunch of conditions on that spending as a form of sub silentio regulation that the federal government would not be able to do in a freestanding fashion.
The problem is exactly as you said. There’s just no test you can create that stops this. Clearly the federal government must have some power to condition its spending. The Constitution does not require that everything be done through block grants, and the option of requiring that taxpayers not spend money on things they might disapprove of is certainly something that I would say both liberals and conservatives are sympathetic to the government having. (It’s what allows the government to refuse funding for abortion clinics AND racially discriminatory schools, for instance.) So what’s the principled line that can be drawn as to when the government can or cannot condition its spending power?
Yes, that means, in the end, there is no limit on the spending power. But I just don’t see a way out of this.
January 19, 2012, 3:24 pmMike Hansberry says:
Intersting article. It is all well and good for Rosenbaum/Hayes to remind us that the involvement of the states in Medicaid is voluntary, but the question remains: at what level of coercion does something cease to be voluntary?
The Kopel/Natelson brief makes the point that: “Loss of all Medicaid funding would not end Medicaid-related tax liability imposed on that state’s taxpayers.”
I will keep an eye out for Rosenbaum/Hayes’s response to the brief.
January 19, 2012, 3:24 pmjonah gelbach says:
David, thanks for your response to my question above. But I confess I don’t understand why you think it matters that “the current state Medicaid systems would still be in place.”
What I’m asking is whether there’s anything unconstitutional about enacting EAICASA-I or EAICASA-II. And rather than being an adequate reply, your “I’d consider [it] a triumph of form over substance” is backward, because the substance of the ACA as to Medicaid is precisely EAICASA-I plus EAICASA-II.
If neither of these hypothetical Acts would be unconstitutional, how can their simultaneous enactment as a single piece of legislation be, unless through some sort of form-over-substance argument of *yours*?
Jonah
[DK. Maybe I wasn't clear. In my view, your 2d law is not constitutional. Even if it were creating Medicaid ab initio (and it's not), it violates SD v Dole, for reasons we detailed in the brief.]
January 19, 2012, 3:28 pmBorealis says:
At first blush during the Obamacare debate, I didn’t find the personal mandate to be a very tough challenge.
But as the debate has progressed I have found most troubling the problem of if you don’t draw the line limiting federal power here, then when would or could you draw a line? I think that is the challenge to upholding the individual mandate.
January 19, 2012, 3:34 pmzuch says:
No coercion. You don’t like it, don’t take the money. Like highway funds and speed limits. Free will and all that….
Cheers,
January 19, 2012, 3:39 pmyankee says:
Also worth noting is that while Dole required states to change a distinct (albeit related) state policy, the Medicaid eligibility changes regulate the program itself. It’s as though the federal government had imposed new a new requirement that federal highway funds could only be used for the salaries of highway patrol officers if they had at least 5 years of experience, and South Dakota responded that it had a federal constitutional right to spend the money on rookies.
January 19, 2012, 3:41 pmT. W. "Twit" Twitty says:
Congress has imposed mandates on states, backed up with threats of loss of federal funding, for the states to pass certain laws regarding (IIRC) speed limits, seat belts use, DWI limits and enforcement, child support systems, etc, etc.
How is this different?
January 19, 2012, 3:42 pmzuch says:
Why, it’s unconscionable that disbursement of medicaid funds should be linked to Medicaid “mandates”. What were they thinking? Everyone should get free money no strings attached.
Cheers,
January 19, 2012, 3:44 pmyankee says:
You will note that Justice O’Connor (a) was writing in dissent and (b) is no longer on the Court.
January 19, 2012, 3:47 pmAdam says:
“Yes, that means, in the end, there is no limit on the spending power. But I just don’t see a way out of this.”
This isn’t a constitutional argument, but what is the rationale for permitting Congress to grant any money to the states or their subdivision, whether as a block grant basis or conditions-based? These are entities that have their own taxing powers. If any state wanted a Medicaid-like program, it could easily enact taxes to fund it and create a bureaucracy to administer it. If Congress wants a national program, then it can do the same. I think we’d be well-served by a rule that the federal government can give no money to the states.
January 19, 2012, 3:48 pmHouston Lawyer says:
At what point has the federal government’s taxation of a state’s citizens to pay for mandated activities become so onerous that the mandate has exceeded congress’s authority? I don’t know the answer to that empirically, but I believe we passed it with the laws requiring the drinking age to be raised to 21 and DWI charges to be mandatory at .08 alcohol levels.
January 19, 2012, 3:57 pmDavid Schwartz says:
You are the one making the form-over-substance argument by saying, “ignore the substance (the net effect), there exists a form (two laws) in which this is allowed.”
January 19, 2012, 4:13 pmSteve says:
That’s not really a legal argument, though. In fact, if the ACA is upheld, I confidently predict we will not see an end to line-drawing arguments. No one will say “oh well, Congressional power is unlimited, so we’re not even going to bother challenging this latest statute.” Instead, there will be lengthy briefs arguing that even if the ACA is constitutional, this latest statute is still beyond the power of Congress.
If we really need to draw the line somewhere on the Commerce Clause, though, let’s draw it at things having to do with commerce. Violence against women, regrettable though it may be, has no substantial relationship to commerce and cannot be regulated under the commerce power. Possession of guns near schools has no substantial relationship to commerce and cannot be regulated under the commerce power. The interstate health insurance market, though, has a lot to do with commerce.
January 19, 2012, 4:19 pmuh_clem says:
If only there were some mechanism other than the courts to end the nationally mandated 55 MPH speed limit…
January 19, 2012, 4:31 pmAnonymous Jim says:
Which is why I would tend to agree with Yankee that the treatment of Dole in the brief would not carry the day. That said, it is an amicus brief so the authors are (a)grinding their own axe and may be highlighting an area that the petitioners did not have adequate space to address.
January 19, 2012, 4:32 pmJ says:
” don’t know the answer to that empirically, but I believe we passed it with the laws requiring the drinking age to be raised to 21 and DWI charges to be mandatory at .08 alcohol levels”
I think those are actually requirements tied, at least in part, to eligibility for federal highway funds. Not technically a legal mandate, but effectively the same thing and very similar to the issue in the post.
I haven’t read the brief, but I’m quite certain the legal reasoning therein has fatal errors, possibly even a general protection fault.
January 19, 2012, 4:33 pmJoeJP says:
One quick question before I respond, why link to a posting of 2 other links, just link to the original.
the original did not provide as much material
Sara Rosenbaum and Katherine Hayes, from your sublink, both make quite astute assumptions that have not proven to be true
half cheer — they are “quite astute” but … also, various arguments are made by them; you point to one aspect
January 19, 2012, 4:46 pmFederal Dog says:
“Well, I’m glad to know that the Conspirators are taking OK’s posts about civility to heart.”
Maybe they can be expected to do so when Orin Kerr does. The obsessive personal attacks he allowed in his “civility” thread were sickening.
January 19, 2012, 4:51 pmJoeJP says:
at what level of coercion does something cease to be voluntary
or, what “coercion” really means … my overall thought is that if even the 11th Cir. didn’t think things reached that point here, you have an uphill battle and the “death-knell” doesn’t seem among us; the discussions linked provide a reasonable argument why. This not being free speech, a compelling argument w/o dispute need not be provided.
Dilan has a point but there remains limits. There remain “limitation on federal power” that the Spending Clause can’t remove. There are various express limitations (e.g., the BOR; Art. I, sec. 9) that spending rules can’t simply make disappear. And, quite often the state is under no real obligation to take the money. The Dole case is telling — states wouldn’t go broke w/o the highway funds there.
And, yes, tax and spending provides a means for the feds to do something in a specific way, such as some income tax exemption that promotes a social end, that it could not otherwise can do. Similarly, once someone steps on federal land, the feds have much more power over them or when they enter the military.
The clause also speaks of the “general welfare.” Basic things such as Social Security, Medicaid and Medicare do meet that test in modern society. Various federal spending regulations are not as reasonable and I do think as he says that the determination will largely be political. But, republican government is a major protection of our liberty. And, since there are SOME limits on spending (e.g., no religious establishments), I think the “calibrated system of federalism” will survive.
January 19, 2012, 5:01 pmSarcastro says:
Yeah, Kerr really should moderate everything full time.
January 19, 2012, 5:26 pmAsher says:
A great example of a “twit” comment.
All governmental action is predicated on the threat of coercion, which just means that anyone who advocates government action, of any kind, is fine with coercion. The only real question are the circumstances in which coercion is justified. Let’s say the government taxes citizens to the point where about the only thing they can do is to not starve. Now let’s say that the government tells me they have programs set up with the tax money that citizens can have access to if they do what the government wants.
Are you saying there’s no coercion involved? At all? Really? I’m pretty sure that the legal reasonings behind case that allows federal mandates does not claim that government action lacks coercion, it’s pretty much implied that it does.
It reminds me of this guy who claimed that laws governing murder did not require coercion because murder was a choice.
Just more intellectual dishonesty from youl
Also, the “cheers” thing makes you come across as an insufferable, self-satisfied, smug, little prig. As bad as Anonimus was you’re far more annoying.
January 19, 2012, 5:30 pmSteve says:
But that’s pretty much what we mean when we talk about a mandate. The Medicaid mandate doesn’t actually bind states to doing anything, it just says that they have to do it if they want federal Medicaid funds. Similarly, the ACA individual mandate doesn’t say you have to buy insurance; it just says you have to pay a penalty if you do. But we still call all these things mandates.
Even a criminal statute doesn’t really prevent you from doing anything, as long as you’re willing to accept the punishment for doing it. I’m not sure what kind of law would qualify as a mandate if you want to interpret the term literally.
January 19, 2012, 5:41 pmHugh says:
Surely the question is whether it is constitutional or unconstitutional? I can’t imagine that there’s a single instance of a federal power that isn’t potentially subject to a “slippery slope” objection. Federal taxation power, for example, has no bright “line” or upper bound–and yet no one would disagree that, say, a 98% flat tax on all income would be “oppressive.”
It is not the court’s job to decide if federal policy is wise or unwise, it is it’s job to decide if it is within the bounds of the constitutional powers or not. The “limits” to unwise constitutional actions by the government are provided by the voters, who can install a government that pledges to undo a policy the populace find too onerous. The courts would be badly overstepping their bounds if they were to say “well, sure, this act is constitutional, but some future government might do something really stupid along these same lines, so let’s just pretend it’s actually unconstitutional to prevent that hypothetical future government from making that bad choice.”
January 19, 2012, 6:07 pmDilan Esper says:
There’s nothing in the text of the Constitution that limits the spending power in that manner.
January 19, 2012, 7:05 pmProfNickD says:
Founders blah blah, enumerated powers blah blah, federalism blah blah, coercive power blah blah — c’mon Mr. Kopel, progressives are long past caring* about that moldy, yellowing, 18th century, written-by-rich-white-guys document.
* Except for detained terrorists.
January 19, 2012, 7:54 pmIspep Teid says:
Are you suggesting that when legislative action is a possibility, other mechanisms are illegitimate?
January 19, 2012, 8:18 pmSarcastro says:
Yeah, progressives hate the Constitution, probably cause of their hatred of white males.
You can tell because their interpretations don’t agree with yours!
January 19, 2012, 8:39 pm~aardvark says:
Kopel referring to people who disagree with him as “twits” is really doing wonders for this blog’s decorum. How can VC bloggers censor obnoxious comments with a straight face after this?
January 20, 2012, 12:31 am~aardvark says:
As that famous Progressive, George W Bush, said, “It’s just a God-damned piece of paper!” Like Kopel and his “twits”, ProfNickD seems to be in a serious education concerning his opponents–preferably behind the woodshed.
January 20, 2012, 12:34 amzuch says:
Yet you got what I was saying and responded at length (and even at length if we leave out the gratuitous “incivility”). Imagine that.
Your problem here is that such coercion by gummints in general is not prohibited by the Constitution. In other words, not particularly relevant here, regardless of what you personally think of gummint coercion.
Cheers,
January 20, 2012, 12:52 amMJW says:
FactCheck.org says:
It also adds an update:
January 20, 2012, 2:12 amAnthony J. Lawrence says:
I wonder, was this a problem before the 17th Amendment? If not, then one solution could be its repeal and replacement by the prior method of Senatorial election, or some other mechanism enhancing state control.
Or, more directly, perhaps this idea of Adam’s could be constitutionalized via amendment:
January 20, 2012, 2:13 amAnthony J. Lawrence says:
I took his statement to mean that he anticipated comments by “twits” which would not simply be any comments by “people who disagree with him” – as you say – but rather comments by “people who have not yet read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning.
Here’s what he wrote: “Intelligent comments are welcome, although experience suggests that there will also be plenty of comments from twits who have not read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning.”
I could be wrong, though, je ne sais pas.
January 20, 2012, 2:27 amAsher says:
Yet you got what I was saying and responded at length (and even at length if we leave out the gratuitous “incivility”).Imagine that.
Your problem here is that such coercion by gummints in general is not prohibited by the Constitution.In other words, not particularly relevant here, regardless of what you personally think of gummint coercion.Cheers,
Who? Whom? As long as I get to force you to do my bidding then I’m aces. If you are forcing me to do you bidding then I’m not so keen on it. How difficult is that to understand.
If you think coercion is just fine then why do you feel the need to claim that Medicaid programs don’t involve coercion? I don’t have some universalist, ahistorical objection to coercion. I’ll leave that to the libertarians.
Yes, I understood what you were doing. You understand that people hate being tyrannized. So, what you were doing was engaging in a rhetorical sleight-of-hand by claiming that since Medicaid programs were “voluntary” they didn’t involve coercion.
I understand, perfectly, what you were doing. You were engaged in intellectual fraud, and I called you on it. The Medicaid program involves coercion. I know it. You know it. You are using dishonest reasoning to insist that it really isn’t coercion based on sophistry. Government is the gun, pure and simple. I just want my finger on that trigger.
Frankly, I have yet to see a comment by you that does not reek of intellectual dishonesty.
January 20, 2012, 2:54 amFederal Dog says:
“Yeah, Kerr really should moderate everything full time.”
He opened up a special thread just so people could attack one poster. The attackers replicate exactly the kind of abuse he claimed to be defending against when he opened that thread.
If “anonimous” is unacceptable, so are the obsessive commenters who launched dozens of attack posts against him in that one single thread.
That is the opposite of civil. Had he wanted to defend civility on this site, he would have banned the offender. Period. Instead, he actively invited the very misconduct to which he claims to object.
January 20, 2012, 8:25 amAlast says:
I never said otherwise. Dissents, despite being a minority opinion, often contain excellent arguments particularly to extension of the rationale of majority opinion in a future case to the extent anticipated by the dissent.
January 20, 2012, 8:40 amAdam says:
Dilan,
“There’s nothing in the text of the Constitution that limits the spending power in that manner.’
Yes, I realize that. That’s why I started out my post saying “This isn’t a constitutional argument…” Please try reading next time.
January 20, 2012, 9:10 amrob bob says:
….Yet you must keep funding it with your tax dollars. Coercion.
January 20, 2012, 9:34 amSteve says:
I fund lots of things with my tax dollars that I disapprove of. This argument reduces the term “coercion” to utter meaninglessness.
January 20, 2012, 10:03 amRicardo says:
It’s a very strange argument to insist that the states are “sovereign” and “independent” but then to claim that the federal government’s withdrawing of Medicaid subsidies to a state would be some unconscionable form of punishment.
This isn’t even like threatening a state’s highway funds if it lowers the drinking age (which is apparently constitutional anyway). Medicaid funds are specifically intended for the states to provide adequate medical care to the poor. Who gets to decide who is “poor” and what is “adequate”? Why not Congress?
If a state is not fulfilling its mandate to provide adequate medical care for its poor, pulling the plug on funding seems entirely rational. The fact that this may wreak havoc with the budgets of certain states is entirely a product of the “sovereign” and “independent” states having made the entirely voluntary decision to join the program when given the choice. According to Wikipedia, Arizona hadn’t joined until 1982 so it was entirely possible in the real world for a state to opt out if it wanted to.
Kopel’s argument takes the sovereign and independent states and turns them into whiny teenagers.
January 20, 2012, 10:16 amGordo says:
I find the argument in the brief distinguishing this situation from South Dakota v. Dole to be unpersuasive. As I read it, because “social service spending” is typically a state concern, the federal government’s threat to withhold all medicaid funding is unconstitutional.
By this argument, what’s unconstitutional is the federal government providing the aid in the first place. Which is a ridiculous argument, because nothing requires states to accept this money. A law that states the federal government will withhold moneys to states used to pay for a function typically reserved to states as unconstitutional seems very strange.
January 20, 2012, 12:01 pmSarcastro says:
Yes, that is both his motivation and entirely what occurred on that thread!
January 20, 2012, 12:28 pmzuch says:
Ahhhh. A new form of ‘argument’. The “precognitive straw man”. Forming your response in advance of considering the evidence is a horrible practice, I’m sure we can all agree.
Cheers,
January 20, 2012, 12:35 pmMark Regan says:
In his Steward Machine dissent, Justice Sutherland specifically said that the Social Security Act’s old age assistance program was not coercive:
An illustration of what I regard as permissible cooperation is to be found in Title I of the act now under consideration. By that title, federal appropriations for old-age assistance are authorized to be made to any state which shall have adopted a plan for old-age assistance conforming to designated requirements. But the state is not obliged, as a condition of having the federal bounty, to deposit in the federal treasury funds raised by the state. The state keeps its own funds and administers its own law in respect of them, without let or hindrance of any kind on the part of the federal government; so that we have simply the familiar case of federal aid upon conditions which the state, without surrendering any of its powers, may accept or not as it chooses. Massachusetts v. Mellon, 262 U. S. 447, 262 U. S. 480, 262 U. S. 482-483.
Steward Machine Co. v. Davis, 301 U.S. 548, 612 (1937) (Sutherland, J., dissenting).
Is the argument in the amicus brief that Justice Sutherland, one of the Four Horsemen, was wrong … too?
January 20, 2012, 12:38 pmzuch says:
We “must keep funding” a lot of stuff that we might individually disagree with (particularly taken in isolation and by those with tight pocketbooks).
You want to run a gummint without taxes, be my guest. Somewhere else. I hear they’ve already collected enough money to buy a motor launch or two to get you to the non-existent Elysium.
Cheers,
January 20, 2012, 12:45 pmDilan Esper says:
Well, it’s hard to see either of those things passing.
Bear in mind, some sort of broad-based tax, whether of income or something else, was inevitable as a result of this country’s expansion, industrialization, and accumulation of power. It would be impossible to run anything like the modern US government on 19th Century-style taxes.
January 20, 2012, 2:09 pmAsher says:
Uh, nice intellectual sleigh-of-hand, there. I refer you to your initial statement …
Which was followed by …
Which is not a claim I’ve ever heard anyone make. Hell, anarchists claim that the Constitution is an illegitimate document, precisely, because it clearly authorizes state coercion. The originalist/conservative/rightist position on the Constitution is that the Constitution sets boundaries around a relatively small area of human action that is appropriate for state coercion. Many such originalists would claim that Medicaid lies outside that scope, therefore, the state coercion used to collect taxes for that program are illegitimate/unconstitutional.
We can argue about whether or not a particular program is legitimate, but, at least, it’s a theory on what is or is not constitutional.
Left-liberals, on the other hand, don’t seem to have a coherent legal theory of constitutionalism. When I challenge them to provide one I get two types of responses:
A) You just don’t care if old people starve to death, i.e. I am an evil person for even questioning a program, emotionally-loaded shaming language.
B) How many people have been killed by IRS agents during the process of collecting taxes, i.e. you’re operating under false-consciousness and tax collection doesn’t really involve coercion.
Seriously, that’s the quality of the responses I get.
There is one third response, though, as offered by Erwin Chemerinsky, who is one of the most esteemed left-liberal professors of Constitutional law and who has argued dozens(?) of cases before the Supreme Court. And his response is that all legal rulings are “judicial activism”, i.e. judges are just another mechanism to exercise political power. So, there is no principle governing the legitimate boundaries of government coercion, the boundaries just happen to be wherever nine people in black robes think they should be at any one time.
What you are doing is something like the following line of reasoning:
A) I like some governmental program A
B) I understand that people have an aversion to being coerced
C) But I REALLY like the consequences of program A
D) Therefore, state coercion is not involved in program A
All you’re saying is that the results of coercion produce a state of affairs you really, really, like, therefore, coercion is not really coercion. This is, basically, Rousseau’s justification for state coercion, and it is, fundamentally, intellectually, dishonest.
I realize that you probably aren’t aware that this is your reasoning, because it is such ubiquitous in left-liberal circles that it just “is”. It’s sort of like the metaphor of fish not being aware of water. State coercion not really being coercion, because of its “rational” results it he left-liberal version of the Christian’s faith that Jesus died on the cross for their sins. It’s a religious experience.
January 20, 2012, 4:13 pmAsher says:
oops,
“is the left-liberal version” instead of “it he left-liberal version”. Serves me right for playing chess while I comment.
January 20, 2012, 4:20 pmAsher says:
In Romans it tells us that a leader must have only one wife, and, no, it makes no distinction between divorced or current wives. The sociological reason is that women are attracted to men in power, and this creates inequalities between men in terms of sexual access.
Inequality in sexual access is easily as socially destabilizing as inequality in material possessions.
January 20, 2012, 5:40 pmjonah gelbach says:
@David Schwartz, who writes:
No, you’ve got that wrong, because you’ve imputed to me an incorrect premise (as David Kopel seems to have done in responding to my initial comment, which is what prompted my second).
To make my point as clear as possible, let A be the statement that the ACA as written as constitutional, and let B be the statement that my two-law version is constitutional.
I believe A is true. I also believe B is true. Since the laws underlying both statements are the same in substance, and since I think both the A-laws and the B-laws are constitutional, my position boils down to believing that two forms of the same substance have the same Constitutional status. That is obviously not a form-over-substance position.
For the record, given that David Kopel believes both that A is false and B is false–a point he made clearly in response to my second comment–he also is not taking a form-over-substance position.
That said, I certainly disagree with David Kopel’s substantive position. While I won’t critique his argument itself without reading his brief, SD v. Dole–a case in which the Supreme Court affirmed conditional federal spending–seems a rather odd basis for arguing against the validity of another such transfer.
Anyway, I’ll shut up unless and until I get around to reading the brief.
January 21, 2012, 2:22 pmFederal Dog says:
“It would be impossible to run anything like the modern US government on 19th Century-style taxes.”
Yet another excellent reason to roll tax rates way back.
January 21, 2012, 4:08 pmMike Hansberry says:
Do schools have an effect on interstate commerce?
Can a person be Mandated to enroll(or at least pay tuition) in a school/training program under the commerce clause?
An awful lot of things have an effect on interstate commerce. Is there any principle which limits the supposed power to mandate commerce?
January 21, 2012, 10:44 pmzuch says:
Good. Sounds like you have yourself a ‘dialogue’. Go ‘argue’ with them….
Cheers,
January 22, 2012, 12:58 amIndependence Institute’s amicus brief on Fed’s mandate to expand Medicaid eligibility | Patient Power Now says:
[...] the The Volokh Conspiracy, the Independence Institute‘s Research Director Dave Kopel writes: On behalf of the [...]
January 23, 2012, 7:52 am