Commenter Brandon, a frequent critic of my posts on the individual mandate, offers the following question tonight in a comment thread:
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
I wasn’t planning to blog on this. But because Brandon asks so nicely, I thought I would respond.
Now that the mandate case has reached the Supreme Court, the case triggers conflicting instincts for me. On one hand, as I’ve said before, I’m a federalism guy. I think limits on federal power play a critical role in our federal system, and I think Supreme Court doctrine has erroneously permitted the federal government to become too big and play too intrusive a role in American society. The Commerce Clause was never intended to give the federal government a general police power. It was meant to just allow the federal government to regulate interstate commerce. That part of me would cheer if the Supreme Court struck down the mandate.
On the other hand, I’m also a Burkean conservative stare decisis guy, and I’m acutely aware of the Supreme Court’s long struggle to identify principled and workable limits on the scope of the Commerce Clause. History has shown that it’s surprisingly hard to do that, and that unprincipled or unstable lines don’t last and just destabilize the law for a short window before being rejected. My comfort with the Court striking down the mandate therefore varies considerably based on how the Court could do it. Let’s imagine, hypothetically, that the Supreme Court strikes down the mandate but does not identify any genuinely principled or workable doctrine to justify it. The Court’s decision merely reopens the hornet’s nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning. In that case, the Burkean conservative part of me would be dismayed by the Court’s decision. Sure, the federalism guy side of me would be happy, but it would be outweighed by my Burkean objections. But if we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed and my reaction would be different.
That explains why I have posted a lot of “law professor hypotheticals” about the implications of the mandate challenge. The more I see the theory driving the challenge as workable and principled, the more I favor it. I can’t gauge how much the challenge triggers my Burkean objections without understanding exactly what it is and how it might work.
Now add another consideration. I also value the Supreme Court deciding cases independently of politics as much and often as possible. This is a sort of Wechslerian neutral principles idea that the Justices shouldn’t be political actors in robes. Horribly out of fashion in the faculty lounge, to be sure. But the neutral principles part of me is pretty dubious about the mandate challenge because the challenge seems so transparently political. The Affordable Care Act is President Obama’s signature legislative achievement. Everyone who opposes the constitutionality of the mandate just so happens to also oppose the mandate politically. And the most commonly-asserted constitutional argument against the mandate wasn’t even thought up until around just before the mandate was passed, only to be readily embraced by the same folks that tried to stop the legislation in Congress but failed.
The obvious political valence of the mandate challenge gives me a lot of pause, and it adds a significant complication in my view of what the Court should do. On one hand, it’s obvious that any decision striking down the President’s signature legislation would have enormous political ripple effects. Given that the theory behind the challenge was largely made up to stop the mandate, and it’s hard to imagine more than 5 votes to strike down the mandate, that would make the Supreme Court a political player in ways that dwarf recent examples. The narrative of the decision as deeply political would resonate with a lot of people. But my concerns go beyond that. Because I don’t like it when the Court’s decisions have an obvious political valence, I start to care about the vote count and the political resonance of the opinions. All other things being equal, I’d greatly prefer a vote line-up that didn’t break along the obvious 5-4 political lines, and that is written in ways that echo partisan concerns. A 5-4 conservative/liberal split written in ways that echo the political framing of the challenge (and for some might be) the Justices reflecting their politics. I would prefer a line-up with cross-party voting, and opinions with more lasting and long-term legal gravitas; something that tells us that there is more than just politics afoot here.
Where do these and other sometimes-competing concerns lead? In my case, they lead me to conclude that I can’t know what I would prefer the Supreme Court to do unless I know what the options are. I’m less concerned with whether the Court strikes down or upholds the mandate than how it does so. If I can dream about a perfect world, I would like to see a 9-0 decision that identifies a widely-shared neutral principle deeply rooted in precedent that also limits the scope of the federal government in a significant way, But that’s a pipe dream. To borrow from Donald Rumsfeld, you go into Court with the Justices and the precedents you have, not the Justices and the precedents you might want.
The realistic options therefore are much more confined. When I imagine the realistic options, I can imagine both a hypothetical majority opinion striking down the mandate that I would prefer to a hypothetical dissent upholding it and a hypothetical majority opinion upholding it that I would prefer to a hypothetical dissent striking it down. It depends on how the opinions are written, what they would say, and whether they would identify clear lasting principles outside of the short-term political environment of the present. For example, is a hypothetical decision upholding the mandate a 5-4 Breyer opinion that dismisses federalism, or is it a 8-1 Roberts opinion that recognizes the great value of federalism but concludes reluctantly in a Sutton-esque way that the lack of a principle and the weight of stare decisis dooms the challenge? Is a hypothetical decision striking down the mandate one that is easily circumvented by a future Congress and is easily construed as a one-time-only way to stop legislation most Republicans oppose, or is a deeper principle adopted?
Anyway, sorry for the long post, which I’m sure will leave a lot of readers unsatisfied and which still leaves a lot out. That’s part of the reason I wasn’t planning on posting about this. Hopefully at least some readers will find it interesting.
Jon Shields says:
Another “hint” about the political nature of the case is the argument on the tax side. Most mandate opponents freely admit that with a few word changes that have absolutely no substantive effect, the provision would be unambiguously Constitutional and the commerce clause question wouldn’t even need to be reached.
After all, making the reasonable interpretation that the mandate is merely the predicate to an otherwise Constitutional tax (whether it is called a “tax” or a “penalty” or a “license“) would resolve the case without setting any federalism precedent. The decision would not “expand government power.” This is the outcome that those worried about federalism implications should want.
Yet instead, they argue for a (previously unknown and contrary to precedent) “magic words” test for the taxing power. Such a “magic words” argument is of necessity a “one-time” argument, that would only have effect because such a decision would come too late for that Congress to invoke the magic words.
The truth is that most mandate opponents want this legislation gone by any means necessary. To them, having a 5-4 court strike down (with a “magic words” test, no less) the chief legislative accomplishment of an opposing-party government, and the chief plank of the opposing-party’s political platform for generations, is a feature — not a bug. The implications of such an action to the concept of democratic government do not bother them in the least.
January 20, 2012, 4:04 amJ. Aldridge says:
I’m not sure how Orin can claim to be a “federalism guy” when he appears to always be a big supporter of the courts theory of “incorporation” which by its judicial application destroys federalism.
January 20, 2012, 4:34 amworthless opinion says:
we’ve had a lot of opinions recently that haven’t told us anything beyond the immediate case (Lopez, Bush v. Gore, Grutter, Van Orden v Perry, and Mcdonald v. Chicago immediately come to mind), we all hope with you that we don’t get another decision like that
thanks for the post
January 20, 2012, 4:37 amMark N. says:
This is a thoughtful analysis; thanks for posting it.
January 20, 2012, 5:09 amDavid M. Nieporent says:
So was that a yes or a no?
January 20, 2012, 5:35 am5thofNov says:
But because Brandon asks so nicely…lol….I must remember those pleasant words, should I ever ask a question.
January 20, 2012, 5:58 amStephen Lathrop says:
Best post in quite a while. Thanks for that.
You helped me identify my own confusions about principles we apparently share. For quite a while I have known that I would be delighted to see the mandate struck down, together with the whole creaking apparatus of the healthcare law.
But I have also been loathe to imagine the political overreach that the Roberts Court seems likely to use. Big as the healthcare issues are, ongoing politicization of the Court seems more important to me.
January 20, 2012, 6:24 amBrett Bellmore says:
No, “this is the correct decision, and the Court should issue it simply because it’s correct”? Well, I didn’t expect that anyway…
January 20, 2012, 6:42 amragebot says:
And a lot of Obamacare opponents also point out that with those few word changes Obamacare would not have passed. The problem with your position is that politically it would have been possible to pass a new tax. So Obamacare supporters were compelled to not include a tax in the bill.
Then there is the silly way Obamacare was passed in the dead of night at a time Congress would normally be on Christmas vacation using a bloated bill over 4k pages long that would be even more bloated if the actual words instead of references to other legislation was used; not to mention the fact that the Congressional phone system failed due to an overload of calls from voters.
Even today after over a year of supporters trying to sell Obamacare polls consistently show a majority of respondents oppose it. The plain fact of the matter is Obamacare has never been really popular and would never have passed with out the perfect storm of a lot of folks voting against Bush instead of for the members of Congress who passed it; something that was quickly changed in the 2010 election.
It is all well and good for guys like OK to claim the SC should not be swayed by politics; but there is the problem of courts in general being viewed unfavorably by the public at large. At some point this issue has to be reversed unless the courts are willing to risk changes in the structure of the government.
Governments can and do fall when the population stops viewing the government as non functioning. This is usually not a quick violent revolution or even something like the slower breakup of the former USSR. It often is more like what is happening in Greece over many years of a non functioning government.
January 20, 2012, 6:47 amMuffinEater says:
I suppose that the political implications would be much lessened if the Court rules that the mandate is severable from the rest of the Affordable Care Act. After all, the mandate, by itself, is basically just a gift to the health-insurance industry.
I don’t think the distinction between it being a tax and penalty is without substance. If it were a tax, it would be a highly regressive tax, extracting the same absolute amount from both the poor and the mega-rich. Anyhow, the actual wording of the Act requires that individual purchase the specified insurance. The monetary penalty is merely an enforcement mechanism. Congress could have specified imprisonment instead of a monetary penalty, mooting about discussion about whether it is actually a tax or not.
January 20, 2012, 6:55 amJon Shields says:
The original House bill had a straight up income tax. It used the word tax (not penalty), and no one blinked an eye. They could have changed that word in 5 seconds, and if it would have actually changed a single vote, you bet they would have. (The fate of the original House bill, after a months-long whipping operation, was unknown until hours before the vote. It passed by 2 votes.)
The actual truth of the matter is that either words could have passed (and both words actually did pass at one point or another). To the extent that different words might affect public perception, the mandate would be more politically damaging (as the state referenda indicate).
The Supreme Court has specifically held that Congress does not have to identify the power it is using for a law to be valid, and that it can use words other than “tax” (like “license”) to refer to a tax. Just because a bunch of people don’t like the mandate, and therefore develop a made-up “magic words” test to justify throwing it out (after it is too late to say the magic words), does not mean the Court should do so.
January 20, 2012, 7:25 amMark S. Devenow says:
The problem I have with this is that where this kind of analysis is to be taken seriously we have arrived at a point whence clear doctrinal lines in constitutional framework trumps the urge to brake, or mitigate, policies by which the country’s economic suicide would/will be carried out. In fact, it is this kind of precious reasoning which subverts all capacity for democratic self-governance ceding, as it does, way too much power to philosopher kings who once sat on the Supreme Court fashioning doctrine which could not have anticipated, let alone been cognizant of, the staggering sweep of federal power blown in with the tornado which is Obamacare.
January 20, 2012, 7:29 amjrose says:
I can imagine both a hypothetical majority opinion striking down the mandate that I would prefer to a hypothetical dissent upholding it and a hypothetical majority opinion upholding it that I would prefer to a hypothetical dissent striking it down.
You described an opinion upholding the mandate that you don’t like (Breyer 5-4, dismisses federalism), an opinion upholding the mandate that you like (Roberts 8-1, Sutton-esque), and an opinion striking down the mandate that you don’t like (5-4, echoes the political framing of the challenge).
But, you were only able to outline an opinion striking the mandate that you like (genuinely principled or workable doctrine that is long lasting). Do you think such a principle exists? Has anyone put forth one so far? Would rolling back the post New Deal precedents set such a principle that you could live with? Are you praying that Roberts is smart enough to discover a principle?
It appears to me that unless you are able to articulate such a principle, you are weighing in for a Sutton-esque opinion.
January 20, 2012, 7:31 amMichael P says:
Isn’t the stare decisis argument to uphold the mandate basically “The Court has always treated Congress’s magic words as a correct invocation of the power to regulate interstate commerce, and we better not change that now”? Is absolute deference to Congress really a defensible and principled judiciary approach?
January 20, 2012, 7:37 amArthur Kirkland says:
Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice
My law professors’ hypotheticals have helped me — and my clients — throughout years of practice as a lawyer. Perhaps there are practices in which that might not be the case; if so, I hope to continue to avoid them.
January 20, 2012, 7:42 amJon Shields says:
For reference, from the License Tax Cases:
I’m not sure it could be more clear. Congress used the word “license” to impose a monetary exaction on businesses. The defendants argued that such a law imposed a free-standing obligation on intrastate commerce that was impermissible under the Commerce Clause. (This is analogous to the argument that the mandate creates an impermissible free-standing obligation to purchase health insurance outside of the tax consequences of not doing so.) The Court laughed that argument out of the room, and said the only obligation it placed was a tax (however worded). Their only criteria was that it did not impose a penalty other than a monetary payment, which is exactly analogous to the mandate. The law was clearly Constitutional under Congress’ power to tax.
The Court would have to go out of its way to ignore this precedent, and create a “magic words” test where there previously was none. This is a court that is supposed to avoid Constitutional questions when possible; not throw out previous on-point precedents just so it can look at other Constitutional objections to strike down the law.
January 20, 2012, 7:44 amAJ says:
OK: I start to care about the vote count and the political resonance of the opinions
AJ: I think this is the reality of the matter and my biggest fear of what would disrupt a 5-4 opinion. Of course, the alternative seems to be a somewhat limp defense that there are still practicable limits to where the commerce clause can reach and what can be “regulated”. The argument that Raich has metastasized to a more general bullying of the individual will be disappointing. Do bans justify/validate mandates? This logical jump has always seemed at best creaky.
January 20, 2012, 7:44 amMike Hansberry says:
Why not both?
Striking down the Mandate as exceeding CC or CC + N&P powers would uphold the principles of the COnstitution even if it were easily circumvented by repackaging the minimum coverage os an income tax with rebate or deduction.
To fail to uphold the principles of the Constitution(CC does not include power to compel commerce) on the basis that Congress could easily redraft the lae to make it constitutional is yet another assault on the principles of the Constitution(in this instance due process)and an elevation of the wholly unprincipled view that the ends justify the means.
January 20, 2012, 7:49 amsenor says:
I think this is a pretty thoughtful post. While I want the individual mandate struck down, it is going to matter a lot whether it is done on some technicality or whether the court goes back and reexamines the whole logic of Wickard, which basically gave Congress a carte blanche to define commerce any way it wanted. The Supreme Court is most controversial when it loses the forest for the trees and either does not address–or does not understand–the larger implications of its decisions. As I said yesterday, it still amazes me that it took the court 7 years to realize that in upholding McCain/Feingold, they were upholding the right of the government to suppress books. That said, again, I have very little hope the court will meet either Professor Kerr’s or my standards, however they rule.
January 20, 2012, 7:53 amcaptcrisis says:
Thanks for this post. Hit the nail on the head.
January 20, 2012, 7:57 amJan Koenig says:
Perhaps a better way for Brandon’s request to have been framed would be: If you were sitting on the court as the sole justice, what decision would you reach and what would your opinion say?
January 20, 2012, 8:03 amjlowery says:
Thanks for the great post. I’m coming at this from the other side, but I agree the elephant in the room is the political ramifications of the decision, both for the election and for the Court. Combined with the fact that the arguments against the mandate have largely been made up specifically to strike down the law from people who disagree with it politically, it makes for an ugly picture.
A 5-4 decision here striking it down would probably go up there with Bush v. Gore in terms of modern politically-driven decisions, with likely a larger impact on the Court. A sitting President’s signature legislative achievement overturned in his first term by relatively new legal theories that, at best, stretch precedent? I’m not sure how it would shake out in affecting politics and the election, benefiting one party or the other, but I know the standing and the perceived non-political nature of the Court (to the extent it still exists) would take another giant hit.
January 20, 2012, 8:05 amAJ says:
The distinction between Drexel and Sanchez is quite clear. Sanchez was a tax on the distribution of marijuana, which had both revenue raising and regulatory goals. The Court said, in essence, that it did not matter the breakdown of intent as long as it was a valid excise tax, which it was (Kahriger is the same formulation with gambling profits). In contrast in Drexel, the question was whether a corporate profits tax could be conditioned on a matter that was neither a tax or (at the time) a matter within the reach of its commerce power (employing children). Drexel then in effect said that you cannot condition taxation on matters that cannot otherwise be taxed or regulated. That is the principle that you continue to miss.
Otherwise, it becomes a trivial matter for Congress to reach any non-economic strictly-local activity by tethering it to an otherwise valid income or excise tax. As you said on a previous thread, Congress could differentiate people who do or do not mow their lawns. If that does not spell the demise of federalism and having some matters being purely local, I don’t know what is. PPACA will need to be justified on commerce and N&P clause grounds. If it’s a valid regulation, your “tax” becomes valid as well…I don’t think the other way works and it’s why most judges have jumped quickly to the regulation question.
January 20, 2012, 8:13 amA Non-E Mous says:
Wonderful post Orin. Very insightful and it articulates well how many conservatives/libertarians can still revolt at the thought of striking down health care in a 5-4 decision. (A party split seems to be something some conservatives relish.) Indeed, given the Federalist Society’s emphasis that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be,” I find it odd that so many conservatives are willing to disregard the overwhelming weight and trajectory of prior law in favor of static moments in time where the law has said what they want it to say.
One part I will comment on:
David Rivkin proves to be the exception to your rule. He had an op-ed in the WSJ during the HillaryCare debates that condemned an individual mandate when it was the conservative darling. He articulated its unprecedented nature and that its passage would mark the end of federalism. While one can disagree with him on those statements, he’s been remarkably consistent on his argument, levying it against the Republicans in the early 90s and against the Democrats recently. Given that his and Casey’s op-ed in the Washington Post ignited a lot of the serious talks about ObamaCare’s constitutionality, I think it is fair to say that some look at this as not political, but as a matter of judicial first principles.
(For reference, his op-ed was on Sept. 29, 1993.)
January 20, 2012, 8:22 amJon Shields says:
It IS trivial for Congress to reach, if the only penalty for noncompliance is an otherwise Constitutional tax. It doesn’t matter how much this may unsettle you; that is the law. Just take a look at the license case I just quoted. Congress required that all of a certain type of intra-state business be licensed. The Supreme Court specifically said that this would be unconstitutional (outside the commerce clause power) were it not for the fact that the only penalty was monetary. The “license requirement” was functionally just a way to avoid paying a Constitutional tax, just like having health insurance is now just a way to avoid paying a Constitutional income tax. The law was upheld in that case precisely for that reason.
You are wrong about Drexel; Congress specifically called it a tax, and they said it looked too much like a regulation. Most mandate opponents realize that Drexel is no longer good law, which is why they strain so hard to claim that the mandate is not a tax.
You are also wrong about Sanchez, since they specifically said in the opinion that a tax does not cease to be a tax just because the revenue raised is negligible or it discourages or “definitively deters” whatever is taxed. You claim a distinction when Sanchez explicitly disavows your supposed distinction.
You are actually a reason I said “most” mandate opponents. I understand you have a (very wrong) view of what the precedents say on this matter. Since I (along with Judge Kavanaugh) think the issue is about as clear as it could be, and you clearly disagree, and since we have debated this at length on maybe 5 different threads already, how about this. Let’s assume in this thread (for the sake of argument) that the people ratified the 28th amendment to the Constitution, which says that Congress shall have the authority to impose an income tax specifically on the group of people that do not have health insurance.
January 20, 2012, 8:31 amAJ says:
If this is such a clear slam dunk, why did the government lawyers all but abandon the tax argument? Are they simply not as smart as you? Why do most judges come to a different conclusion about this being a tax? Since the thread is not about PPACA being a tax, I’ll leave it there but maybe Orin can opine on this as well in the future.
January 20, 2012, 8:46 amAlast says:
Given that the Court, has reversed itself 270+ times (according to GAO) stare decisis is not a gold standard.
January 20, 2012, 8:47 amAtomic says:
I can appreciate your point about “how” the decision is made. Then again, leadership is not being the first lemming off the cliff, nor the one on the rock next to the cliff shouting “onward!” Justice Thomas commented along the lines of the Court is handed an issue regarding the caboose of a train, and they’re obligated to follow the reasoning all the way back to the engine to see if everything connects.
This Hoover Institution Article very helpfully lays out the history of Commerce Clause decisions related to the Individual Mandate. From my IANAL view, things go sour at point where “Commerce” was changed to “Affecting Commerce” (especially Wickard). This is the distinction between measurable activity and presumption of effect. If law becomes rooted in speculation, then there are no boundaries because any conjecture could be supported in some way.
If the Commerce clause translates into unrestrained Federal authority over everything, then the bulk of the Constitution become irrelevant.
PS – Your comment preview window chokes after the embedded link.
January 20, 2012, 8:51 amJon Shields says:
They didn’t. A good portion of their Supreme Court brief (and every single brief in every single case) is devoted to the tax argument. They now argue that Congress intended with the language to make the anti-injunction act inapplicable, but they do not argue at all that the mandate is not fully justified under the power to tax.
The only disagreement among the judges is over statutory interpretation — not one judge took seriously the notion that if it were a tax, that it would be unconstitutional (and Kavanaugh found it beyond serious question).
January 20, 2012, 9:09 amAnon. says:
Wonderful post. Someone upthread elaborated on what I think was implicit in your argument about how precedent should factor into the court’s decision here: there is really no way to strike down the mandate without re-evaluating in a very serious way (or striking down) Wickard and other New Deal-era Commerce clause cases.
You can certainly make that argument (as I think Justice Thomas has in a number of dissents), but you can’t argue you’re anything but a radical in making such an evaluation.
January 20, 2012, 9:10 amMasturbatin' Pete says:
A Non-E Mous wrote:
I give conservatives a partial pass on their prior embrace of the individual mandate. This was 1993, which was pre-Lopez, a time when there were no established limits on the Commerce Clause power.
January 20, 2012, 9:11 amBlue Neponset says:
How can you argue what a group of a few hundred men from a pre-industrial society never intended to do over two hundred years ago when they, as a committee, wrote a six page document?
January 20, 2012, 9:11 amEB Hansen says:
I also think this is one of the better posts I’ve read recently on this site.
Do you think posing all the hypotheticals helped you in developing and articulating your views? I use hypotheticals and take neutral positions on issues to work out my own thoughts until I can articulate a reasoned opinion one way or the other, and I often get frustrated responses from others similar to Brandon’s.
I’ve found generally there is a preference from others that they want a clear is it C or Z, and dislike answers that say, well if A and B then C, if X or Y then Z.
January 20, 2012, 9:17 amJon Shields says:
I don’t think that is necessarily radical; it is in fact the government’s argument. The government argues that the mandate is easily constitutional in the post-Wickard/Raich/McCulloch/Comstock world.
It would be radical to argue that those cases should be overturned. But it is not radical at all to say that there is no defensible way of striking down the mandate without doing so. I believe most mandate proponents make that argument.
January 20, 2012, 9:17 amSonic Charmer says:
Good post. What’s interesting about this opinion was how little it seems to trace to any attempted objective determination as to whether the mandate is, in fact, unconstitutional. In other words, no logical chain of reasoning going like ‘the Constitution says X, the mandate does Y, therefore the mandate [is/is not] unconstitutional’ appears to figure – at all – in your considerations as to whether you think and will say it ought to be struck down. I see concerns primarily about stare decisis and whether the decision is ‘political’. (Which judicial opinions have properly occurred in a hermetically-sealed, Platonically non-’political’ context, Kerr does not say.)
I find that depressing because I suspect this mode of thinking is dominant in the legal profession. I would have thought, contrarily and perhaps naively, that factor #1 in whether something ought to be struck down as unconstitutional should be whether it, in fact, violates the Constitution. Oh well.
As to the particular objection that the opposition to the mandate is ‘political’, this is a very odd sort of purism. Prominent among the objections is the fact that the argument opposing the mandate (supposedly) ‘wasn’t thought up’ until right around the legislation was passed. How were opponents supposed to know they were supposed to think up and air objections to a law that hadn’t been proposed yet and (when it was) was completely rushed through and passed by people who hadn’t read it, in order to satisfy this curious, invented lack-of-politics purity test? What this test suggests is that anyone wishing to pass a constitutionally-suspect law should keep its details close to their chest, and pass it as soon as possible with little/no opportunity for public debate (which of course, is precisely what happened). Anyone who then sees issues with the law on constitutional grounds and raises it to the judicial system is just being ‘political’ and therefore the concerns can be dismissed per Kerr’s razor.
The implications for this sort of constitutional metric seem no less problematic than whatever ‘political’ issues Kerr seems to worry about. But hey, IANAL.
January 20, 2012, 9:24 amBob from Ohio says:
Both.
The post reminds me of Truman’s definition of a perfect economist, one with only one hand.
January 20, 2012, 9:39 amJoeJP says:
Breyer opinion that dismisses federalism
Rather, a kind of federalism. See, e.g., his dissent in Printz:
At least some other countries, facing the same basic problem, have found that local control is better maintained through application of a principle that is the direct opposite of the principle the majority derives from the silence of our Constitution.
I don’t think the law here is an example of a “general police power.” The law regulates a certain field (unlike, e.g., marriage or education) that Congress specifically was tasked with regulating: interstate commerce. It does so in a way to provides states some discretion. If Republicans wanted to, they could have gave states more by working with the Democrats, who after all, took one of their ideas (at least one) as a central aspect of the regulation. Federalism is far from dead.
The striking down “the mandate” is a lousy way to deal with the limit of federal power. The provision is a compromise and applied here like the draft was during the Civil War — lots of exemptions and cushioning of the blow. The opinion, hopefully by Roberts or Kennedy, should uphold the law but can provide some guidance on limits to commerce, tax and spending power.
A ruling like Lopez is where federal power is reasonably limited by striking down the law. David Bernstein challenged me once on this blog to ask a progressive professor some limit to the CC and he readily agreed to that ruling. Bernstein admitted error. Many here who would uphold this law agree with Lopez. “Anything” doesn’t go.
The post is appreciated.
January 20, 2012, 9:51 amloki13 says:
Sonic Charmer,
While this is distressing to you, it is refreshing to me. The Constitution does not “say” anything. The Constitution is four wonderful handwritten pages, written a very long time ago. While there are fundamentalists that can always tell us what the Constitution means*, for every possible scenario, many people view it with more humility.
I don’t know exactly what the Constitution “says” about this issue. And I don’t know what the framers (and the people who ratified the Constitution) would think if they were brought forth from the dead, given all of our current information, and asked what their opinions would be. I would guess that Zombie Hamilton and Zombie Jefferson would have different opinions. But until we get the powers to bring ‘em all back, we’ll have to muddle through as best we can.
None of this is to say that we ignore the Constitution. But given such a short, vague, open-ended, and amended document, with no guidelines as to how to interpret it written into it (did they expressly want us to apply common law, originalism, natural law, contractual theories, etc.), we’ll have to do the best we can using the text as our anchor.
*Amazingly, these people always manage to understand that the Constitution was written to enact their desired policy preferences.
January 20, 2012, 9:52 amA. Cooper says:
That’s an entirely political argument, unless you think the courts should step in when underhanded political tricks are used? I doubt anyone could argue with a straight face that the methods by which Obamacare was passed are unconstitutional. The Constitution gives each House of Congress the right to make its own rules. Christmas break does not appear in Article I.
Your statements about the mechanics of the passage of the bill are utterly disconnected from the discussion at hand, which is the constitutionality of the law. You’re exactly the kind of person Orin is complaining about.
January 20, 2012, 9:52 amSteve says:
Conservatives in the 1990s did not merely contend that the individual mandate was constitutional; they thought it was good policy for the country. In 1996 the GOP nominated a presidential candidate who co-sponsored an individual mandate bill (and in a sign of how things change, they are about to do the same thing again).
The fact that one conservative (Rivkin), or even a handful, has been against the individual mandate all along is interesting, but doesn’t really alter the dramatic flip-flop that everyone else has done.
January 20, 2012, 9:57 amOrin Kerr says:
Jon Shields, Ragebot, Aj, etc:
If you don’t mind, could you save your view of the merits of the tax argument, and what the Drexel case may have held or not held, for another thread? It’s only marginally relevant to the post, and I’d rather it not crowd out the rest of the discussion. Thanks.
January 20, 2012, 9:58 amBasil Legg says:
This was a licensing fees paid to the government. It was not a mandate that every person buy a product from a private company. If the government wanted to levy a tax and then offer me health care in government run hospitals in exchange for that tax, then there is not a Commerce Clause issue or a federalism issue. This is the VA model. However, this is clearly not the same thing as compelling me to buy something from Blue Cross/Blue Shield or pay the government. How do you not see this distinction?
January 20, 2012, 10:01 amBrandon says:
Orin -
You are seriously awesome! Thnx so much for your thoughtful response! Your thoughts on this are much appreciated.
Apologies for my rants in the other thread about my comment apparently being deleted – a few glasses of wine tend to make me react irrationally ;) Anyway, must have been some kind of software glitch.
Thnx again!
- Brandon
[OK Comments: Thanks, Brandon, glad you liked that one. Yeah, it was the software glitch that is making a mess of comment threads this week.]
January 20, 2012, 10:01 amJason Schwalm says:
“Is the individual mandate constitutional, yes or no?” What can Prof. Kerr really say to this question?
On the one hand, the individual mandate can be squared with the Court’s existing Commerce Clause jurisprudence. It has the kind of aggregated economic impact that Wickard permits, while still being economic in nature, as Morrison demands. On the other hand, if you accept the activity/inactivity distinction, the individual mandate can be distinguished from this line of cases. But, as Prof. Kerr notes, this distinction was a) made up by Prof. Barnett two years ago to solve a political problem and b) has never been the deciding principle in any Commerce Clause case.
Moreover, you could argue that the Court has departed from some correct or original understanding of the Commerce Clause, and should overrule whatever cases necessary to arrive at your preferred interpretation of the Constitution. Any of these conclusions would be reasonable.
With all due respect to Prof. Kerr, I’m not particularly interested in his opinion about what the Court should do with the individual mandate. It’s just so obviously an answer that will come as much from personal political sentiments as it will legal analysis, that I don’t see why I should care about his opinion.
I am, however, interested in his opinion about what the Court might do, or the kinds of arguments that will be made and the likely responses to those arguments, because he’s an expert and has studied these questions more extensively than I have. But everything else – “Unprecedented infringement on individual liberties! Rarrr!” – I can find on one of Breitbart’s blogs.
January 20, 2012, 10:34 amOrenWithAnE says:
You’ve identified a fundamental problem aggregating concerns — they cannot be made commensurable (see: Arrow’s Impossibility Theorem) in a rational way.
January 20, 2012, 10:39 amJason says:
This is, as Orin surely realized, a terrible copout.
Orin says that he detests decisions which are attributed to political motivations, yet his reasoning places greater emphasis on political circumstances and vote counts than on constitutional reasoning.
Orin, If you could dictate a unanimous supreme court decision on the ACA to which nobody would attribute political motives, what would it say?
January 20, 2012, 10:44 amLinus says:
Thank you Orin,
I really appreciated this post as someone who, while not libertarian, does respect and see much value in limited government. Personally, I find the power of States to be much more worrisome on an everyday basis than the Feds, which is why I can understand the outcry over Kelo.
That said, i politically support the healthcare act (i find it irritating when people call it “Obamacare”; it makes me discount the speaker’s argument before i even read it), and i would be devastated on a political side if it was struck down.
I greatly appreciate your willingness to talk about this issue as if it wasn’t in a vacuum of Constitutional First Principles, especially on such a charged political topic. And to mirror your concerns, i wish the law was upheld, but in the narrowest possible way.
Thank you kindly.
Linus
January 20, 2012, 10:55 amSonic Charmer says:
The Constitution does not “say” anything.
Sigh. Does anything say anything? Why talk about the Constitution at all, then? Let’s junk the whole concept as a dead letter. End of thread.
I don’t know exactly what the Constitution “says” about this issue.
Neither do I. But I think I do. Now perhaps I am wrong, and need a legal expert to tell me; I might, for example, turn to a blogging lawyer’s Expert opinion to tell me where I err/don’t err in my (admittedly layman’s) interpretation of the Constitution, vs. how it’s supposed to be interpreted if I weren’t so ignorant. If this post is any indication, they aren’t actually interested in trying to do that in the first place, however. Whether you prefer to speak of what the Constitution either ‘says’ or ‘means’, neither is among the things Kerr appears to care about here. And that’s what I find depressing.
But until we get the powers to bring ‘em all back, we’ll have to muddle through [figuring out what the framers meant] as best we can. [...] with no guidelines as to how to interpret it written into it [...] we’ll have to do the best we can using the text as our anchor.
I would be delighted if there were any evidence here of an attempt to (however incorrectly/inadequately) muddle through in figuring out what the framers meant and/or what the Constitution means. There isn’t. ‘Muddle through’ is what *I’m* doing, not Kerr. All the focus is on stare decisis, whether decisions would be (perceived as) ‘political’, and various similar considerations that have no actual logical connection to actual interpretation. That’s my point.
I don’t think I actually know from this post whether Kerr thinks ‘the mandate is unconstitutional’ is a true statement. He doesn’t appear to consider it important.
Look, the issue in my mind as a private citizen is whether the Constitution, supposedly the social compact I have tacitly agreed to, places practical limits on the power of the government over me. I think (I could be wrong!) that the government has overstepped its powers here. But if I take Kerr’s post to heart, basically I am being told that any such objections should not fly, and the power be allowed to stand, because they would be ‘political’. (Why is it not ‘political’ to let the decision stand, given that virtually all the *proponents* of the law are also in an identifiable political faction?) In any event I am left wondering, does the Constitution place any limits on power, and by what mechanism. I see none present in Kerr’s post or in the attitude, I’m guessing widespread, that informs it. So be it then; if that’s the case I don’t see the purpose of discussing ‘constitutionality’ of anything.
January 20, 2012, 10:57 amyankee says:
This is a very thoughtful post, but I find it unsatisfying. There’s a lot about Burkeanism and federalism, but very little about the relevant precedents. Your co-blogger Randy contends that the mandate is an unprecedented power-grab by the federal government that goes far beyond the scope of any existing precedent. Mandate defenders argue that the mandate is solidly within the scope of Wickard and striking it down would amount to resurrecting Lochner. You appear to be taking it for granted that the government is correct that stare decisis counsels in favor of upholding the mandate, but don’t say why.
I also have to disagree with the apparent assumption that the politics of the mandate or the size of the majority are relevant to the merits of the litigation. “I think the plaintiffs have the better case, and I think the Court should rule for them, but there are only 4 other votes for the plaintiffs, so I’m going to switch sides and vote for the defense” doesn’t make a lot of sense as the basis for a ruling.
[OK Comments: I have blogged in detail on why I think stare decisis counsels in favor of the upholding the mandate in about a dozen or more posts, in addition to a 90 minute debate with Randy you can find on Youtube.]
January 20, 2012, 10:58 amClark says:
For somebody who refuses to be sure that Obama was born in the US 50 years ago since you weren’t personally present in the ER to witness it, you seem awfully sure of exactly what the framers were thinking when they wrote the constitution 224+ years ago. But I’m sure that it is principle, and not hackery, that drives your logic.
[OK Comments: Clark, be civil or you will be banned from commenting. Thanks.]
January 20, 2012, 11:02 ambyomtov says:
Orin,
Thanks for an interesting post on how you see the matter.
Sonic Charmer,
Similar plans, including mandates, had been widely discussed for some time before the legislation was proposed. The MA law was passed in 2006, for example, and soem of the recently minted opponents of PPACA liked it just fine. The only reason most opponents didn’t raise objections then was that a mandate had not yet been adopted as a policy by Democrats. As long as Heritage and Romney and Gingrich supported it, it was just fine.
January 20, 2012, 11:03 amloki13 says:
Sonic Charmer,
I don’t know how familiar you are with this blog. If you are, you should know that this conversation has been beaten to death.
No offense, but I think you already have your opinion as to what the Constitution “really” means and I don’t think that’s going to change. If you are truly curious about relevant history and cases, please see the approximately 500,000 past posts and comments about this topic. :)
FYI, Prof. Kerr has expounded at length that he prefers to give a descriptive view of the law (what the law is, not what the law ought to be). In past posts, he has consistently said that as a policy matter, he dislikes the PPACA, but that he felt that past precedent (court cases) rendered it constitutional (a point I happen to agree with). Of course, SCOTUS is not bound by past precedent.
I am sure that Prof. Kerr has an opinion as to what the “true meaning” of the Constitution is, just like you have, and I have, and everyone who has read it and thought about it has. And I am sure that he also has an opinion about how a “true justice” should rule, and what factors a “true justice” would take into account (weighing precedent, text, original expected application, and other factors). This isn’t that post.
January 20, 2012, 11:08 amClark says:
Although I am for the mandate, and with Orin on the fact that the principal legal doctrine of activity/inactivty here is largely sophistically woven, I have a question on the other side: When Dubya proposed to privatize social security, was there huge Democratic opposition to it driven purely on the principle that the Constitution does not permit the federal government to mandate purchase from a private entity? Or did the arguments on this never reach a level of ripeness that the argument remained largely political and did not get into legal issues?
On the Republican side, I know Cato, Club for Growth etc. have always been for privatizing social security. Was there any Republican opposition to Bush’s idea based on the principle that the fed cannot mandate purchase of a private product?
January 20, 2012, 11:28 amMike Hansberry says:
Yes, and it must be noted that we are at this point because of the actions of Congress, not because of the actions of the political opponents of the Mandate. Whether Congress was motivated simply by a desire to avoid the politically unpopular income tax/deduction route, or whether they made a knowing decision to “not let a good crisis go to waste” and used the ecomomic crisis as a means of boxing in SCOTUS in order to enlarge their powers(gain the power to compel commerce), should not be an important consideration; the Mandate is either Constitutional or it is not. That the President’s keystone legislation might go down in flames is a purely political issue and ought not have any bearing whatever on the justices’ decision.
January 20, 2012, 11:29 amClark says:
I just saw this comment. Personally, I think my comment went to the heart of the politics driving a significant chunk of the opposition, with this particular commenter casting it in especially stark light. I don’t see the incivility in it, but it’s your blog and your rules.
January 20, 2012, 11:30 amcaptcrisis says:
Some commenters just can’t imagine a person being undecided. As Orin is. And as ALL of you are, on the occasional issue.
January 20, 2012, 11:31 amJesse-Az says:
So they had no other works in which to gain inference? They had no other works analysis why the various Continental Congresses? They had no works outlaying the issues of tariffs among the states that lead to the destruction of interstate commerce prior to the drafting of the Constitution? There is a cornucopia of works by the founders in all manners of discussion on these points.
January 20, 2012, 11:31 amloki13 says:
By the way, I commend you on your attempt. Most people discount what the “framers meant” when they’re trying to do current scholarship on the Constitution. It’s a variant of the intentionalist fallacy; what the framers “meant” is informative, but what matters for the purposes of originalism is what the people who ratified the Constitution thought it meant (original expected application). What “the framers meant” is a convenient way to sell originalism to the public, and it started that way (see early Bork) but actual originalists don’t do that any more.
So if you’re trying to puzzle it out, I recommend reading the text. Reading contemporary historical accounts (there’s a lot of them). A good introductory book is Akhil Amar’s “The Constitution: A Biography.” Don’t forget The Federalist. There’s a lot of books about jurisprudence (both for originalism and critiques of originalism as “law office history”). Understanding the differences between originalism and texualism helps as well. Read some early court cases (for this dispute, Gibbons v. Ogden and McCulloch v. Maryland are interesting).
And, of course, read the many prior threads on the issue. Good luck!
January 20, 2012, 11:34 amBasil Legg says:
However, the tax argument does not apply or respond to teh Commerce Clause limits argument. It is a classic red herring. The taxing power is subject to a defferent set of Constitutional limits than the Commerce Clause power. This is not a tax because a tax cannot force a person to buy something from a private vendor. It can force someone to pay money to the Treasury to fund government activites that are otherwise lawful. One of these government activites that would be lawful is the provision of health care. Hence the VA system. However, the government activity that is not authorized by the tax power is to make me buy a policy from Blue Closs/Blue Shield or fine me for not doing so.
January 20, 2012, 11:43 amWhat is so hard to see in this distinction?
matt c says:
orin,
you must think you will be nominated to an appellate court some day
January 20, 2012, 11:45 amUrso says:
I agree with this concern. There has been a steady erosion of the public’s trust in the Supreme Court specifically and the court system in general, to the point where allegedly serious presidential candidates can talk about issuing subpoenas to make federal judges explain themselves. A markedly political 5-4 decision would (perhaps rightfully) further erode the public’s faith in the Court as a neutral arbiter of law. I really feel like this decision is setting up for a lose-lose situation.
January 20, 2012, 11:49 amGordo says:
First, an aside – after reading several books about Bush v. Gore, I don’t think any future decision by the Court in this case will hold a candle to the blatant political factuals of that case.
Second, I’m beginning to think that the best way the ACA could have come out would have been for the law to set minimum threshold standards for medical care in the 50 states, and then told the states “now you figure out how to get there, and here’s a pot of money to help you get there.”
January 20, 2012, 11:52 amUrso says:
I was under the impression that, for anyone who didn’t want to participate in the privitazation plan, SSI would remain as it always was. The self-directed version of SSI would be wholly voluntary, so there was no true “mandate” to buy a private product. And frankly many Americans would have been much better off just leaving their SSI money in the hands of the gov’t. Requiring all Americans to purchase private investment vehicles, even if they clearly lacked the education to be able to do so competently, would have been an unmitigated disaster.
January 20, 2012, 12:00 pmcaptcrisis says:
“it must be noted that we are at this point because of the actions of Congress, not because of the actions of the political opponents of the Mandate”
No.
The opponents became opponents only when Obama decided to adopt what had been their position.
January 20, 2012, 12:35 pmyankee says:
Fair enough! Sorry for not remembering–there’s so much commentary on this issue that it all tends to blur together.
January 20, 2012, 12:55 pmFriday round-up | says:
[...] the Volokh Conspiracy, Orin Kerr discusses his ideal outcome in the challenge to health care [...]
January 20, 2012, 12:57 pmragebot says:
OK, again my poorly worded posts have gotten me in over my head. The point I was trying to make about the “tax argument” was not so much about the merits; rather about the political ramifications of how the wording of the bill in relation to the tax argument (or non tax as some like better) came to be. Almost everyone does seem to agree the bill could have been written so a “tax argument” would not exist.
In fact there is something of an agreement that the bill could have benefited from more time rewording several areas; but political considerations prevented this.
As another post has pointed out it is not easy to come up with an important case that did not have a political component; even if in an ideal world the courts would be immune from political considerations.
All of this goes to your statement above: “The obvious political valence of the mandate challenge gives me a lot of pause, and it adds a significant complication in my view of what the Court should do.”
It is hard for me to envision politics not raising its ugly head in this decision; and almost equally hard to envision the failure of a clear wording in the bill vis a vis taxes not solving a lot of political problems.
Sorry if you think I am wasting too many electrons with this posts.
January 20, 2012, 1:00 pmcfi says:
Clark,
Good point about Republicans’ silence potential constitutional issues of SS privatization. Certainly, J Silberman thought this was a parallel.
I think the proposed rule of not permitting Congress to command purchase of a privately-sold product is a good one. I also think some forms of privatization of SS are a good idea. So I have pondered this and I think the answer is one that Republicans have already proposed: voluntary opt out.
From a policy standpoint, the best mandatory pension system is probably the Chilean one. But to impose that would be unconstitutional, because of the above. (It requires people to contribute to private accounts whose investment decisions are controlled by a mix of private and public actors.)
But if such a system were an opt out from the current SS, I don’t see why it would suffer from the same constitutional disability.
January 20, 2012, 1:28 pmcfi says:
Clark,
I think you’re making a fair point about Republicans’ silence during the privatization debate. J Silberman seemed to think the parallel was enough to add weight to his view that the Mandate is constitutional.
But Republicans proposed a voluntary act, an opt out of the existing system. Not a mandatory purchase of anything.
January 20, 2012, 1:35 pmSonic Charmer says:
byomtov: Similar plans, including mandates, had been widely discussed for some time before the legislation was proposed. [..] As long as Heritage and Romney and Gingrich supported it, it was just fine.
Would not have been fine with me (obviously, I wasn’t consulted). In any event a constitutional test that relies on what ‘Heritage and Romney and Gingrich’ say or think at some unspecified time seems suspect to me. Anyway the point is that for almost all laws, serious debate only really occurs at the time the law is proposed and up for a vote; I find it hard to understand how/why judicial rulings on said laws are supposed to later consult the nature/quantity of debate about a law that did/didn’t occur N years before the law was proposed. Far as I can tell, if we use Kerr’s razor consistently, this makes later constitutional-based opposition virtually all laws ‘political’, and thus, not open to judicial challenge. I find that result challenging. Maybe I misinterpret or there is a nuance I miss.
loki13: I don’t know how familiar you are with this blog. If you are, you should know that this conversation [the constitutionality conversation? i think] has been beaten to death.
Well not in this post, as I am pointing out. The post is titled ‘how should the SC rule’ (which I would think explicitly is about ‘what the law ought to be’; if Kerr prefers not to answer that sort of question, why did he write the post..) but does not appear to rely explicitly on any attempt at actual constitutional reading, interpretation, or the like (unless, as you seem to be implying, Kerr’s theory of constitutionality relies *entirely* on precedent?). I think this is a shame, and I should not need to have studied the VC archives in order to point this out. Although your point is duly noted that there are other posts on VC which say other things.
It’s a variant of the intentionalist fallacy; what the framers “meant” is informative, but what matters for the purposes of originalism is [...]
Listen, whether you prefer to speak about what the Constitution ‘says’, what it means, what the ‘framers’ meant (you are the one who brought up the framers BTW), what the ratifiers thought it meant – is a matter of indifference to me. I am content to play by your ground rules, whatever you prefer. My only point is that Kerr, in the above post, relied on none of the above, correct or incorrect, approaches to interpreting constitutionality – in a post purportedly about how the SC ‘should rule’. This, I think is highly regrettable. But I speak only as a private citizen, not a legal expert. I understand and respect that there are many who disagree with me, including (perhaps disproportionately) those who know far more about the law and have actual legal influence. Of course, if so, I find that regrettable as well. Best,
January 20, 2012, 1:54 pmDilan Esper says:
Holmes said the law is not a brooding omnipresence in the sky. A lot of the people who get these sorts of questions completely wrong need to take a good jurisprudence course and explore what Holmes meant by that.
January 20, 2012, 1:56 pmSteve says:
Bush’s proposal was akin to the ACA with a public option, since you wouldn’t have to set up a private retirement account unless you chose to. You could just keep paying 100% of your payroll taxes into Social Security.
This brings up the question of how many of the people who believe the mandate is unconstitutional would change their minds if the ACA had a public option, such that you wouldn’t be required to buy anything from a private company. Of course, after a public option has failed to pass (and currently looks unlikely to pass any time soon) it’s kind of easy to say that a public option would have mooted your objection.
January 20, 2012, 1:56 pmJohn Herbison says:
I suppose “recent examples” allows some wiggle room, but do you regard Bush v. Gore–this century’s Korematsu–as recent?
January 20, 2012, 1:58 pmD.O. says:
Prof. Kerr’s view is in tention with another co-conspirator, Prof. Bernstein. Prof. Kerr wants the majority of SCOTUS to strike down the individual mandate on well articulated federalism grounds, while Prof. Bernstein thinks that the onus is on the side of the mandate proponents to formulate a workable federalism rule that will allow the mandate to stand. Sure, Prof. Kerr formulated his wish (that is something that is most probably not there) and Prof. Bernstein described his view on the Supreme Couurt politics as it is, but still.
January 20, 2012, 1:59 pmPLR says:
I’ve been required to buy health care coverage my entire working life, although I’ve been buying it for others. It seems to me these issues were fully vetted in the 1960s.
January 20, 2012, 2:01 pmloki13 says:
I think you’re misreading the purpose of the OP. You’re reading it like you would answer the question- how, for example, you *would rule* based on what you know about the Constitution.
That’s not the question he’s answering. He’s written before that he thinks that *under precedent* it is constitutional. He also wrote the following:
“and I think Supreme Court doctrine has erroneously permitted the federal government to become too big and play too intrusive a role in American society”
Which is the closest you’re going to get to the answer you’re looking for which is (I suppose) “If Orin Kerr were the final arbiter of what the Constitution means, and could dictate to everyone else what the Constitution means, how would he rule as a Supreme Court justice.”
Other large parts of the post refer to reasons why, even given this, he might not think that is the best course of action (these other concerns). For example, what he refers to as line-drawing (which you keep referring to as “politics”) refers to prior Supreme Court attempts to define boundaries on the commerce clause that ended up poorly (in the opinion of most people that look back at those attempts). Which is why he is concerned that there isn’t a good principle on which to base an opinion striking this down.
To use an analogy-
Think of the war power of Congress. There is no limit in the Constitution as to who, or why, Congress can declare war. So if later today, Congress declares war on Canada just for the heck of it, it might strike you as wrong, unfair, and horrible. But it shouldn’t be unconstitutional. If the Court were to rule on the constitutionality of such an action, it would have to base its decision on some articulable principle it could apply in future cases. So we say that the correct check on this power is political (Congress won’t do it because people won’t vote for a stupid Congress that declares war for no reason).
It’s the same here. The main argument in favor of the PPACA is that this is indisputably the type of large-scale “commerce” that Congress regulates. The criticism is around the mandate, and the “compelled activity.” Many people, including me, have difficulty seeing an articulable principle that can be policed from the text of the Constitution.
Better now?
January 20, 2012, 2:21 pmBlue Neponset says:
So what? Regardless of what they believed they decided to write “The Congress shall have power…To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;” If they wanted to be more specific about what constitutes interstate commerce they would have been. Instead, they left it up to future generations to interpret how to apply that very broad power.
January 20, 2012, 2:21 pmSam says:
FTW! Not because of the substance of the comment, but the imagery had me laughing for quite a while.
January 20, 2012, 2:23 pmDying America says:
I really am amazed at how complicated lawyers try to make a relatively simple document. The Supreme Court is the branch of government that has systematically bulldozed our individual freedoms over the years, and is essentially the rubber stamp arm of the Feds. Why anyone expects individuals that are given cushy jobs paid by the Federal Government would actually defend individual liberty and hold the government in check is beyond me. The illustrious court will find the mandate “constitutional” despite clear language of limitation of power to force an individual to do something they don’t want. We will then be subject to an array of new laws forcing us to buy other things. And then the mental gymnastics will begin again among the lawyers as to how the next power enlargement of the Feds is constitutional as well. Perhaps once the US collapses under the ever increasing debt we can build an even clearer document that actually protects liberty. Or perhaps we will actually appoint honest and good people to serve on the bench. We will have to wait to see after the smoke clears in the streets. It is coming.
January 20, 2012, 2:31 pmjosh says:
Is it me, or am I just misremembering that OK indeed has outlined what he thinks the decision “should” be from a positive law standpoint, and that he has voiced concern about how that decision contradicts would he thinks the decision “should be” from a normative standpoint? I think the post literally may have had “normative” and “positive” in the title.
January 20, 2012, 2:39 pmrarango says:
Professor Kerr–appreciated your examination of your personal attitudes and scholarship toward the issue–Clearly a complex topic that can go either way–Of course, SCOTUS gets the big bucks and has to make a decision one way or the other. I look forward to your analysis of the SCOTUS decision ex post facto.
January 20, 2012, 2:41 pmD.E. says:
Well, for whatever it’s worth, you’ve got at least one reader who supports the mandate for policy reasons, but shares your dream of a perfect world in which it is struck down in a unanimous, politically neutral, long-lasting, federalist way.
January 20, 2012, 3:01 pmuh_clem says:
Well done Prof Kerr. The VC at its best!
January 20, 2012, 3:05 pmSarcastro says:
[OK, enough analysis of this post - we need to get back to the arguing.
To that end, my personal Tafsir of Kerr's secret thoughts on the mandate revealed!
What the Policy Should Be - No mandate - yay markets!
January 20, 2012, 3:52 pmWhat The Constitution Says - Unknowable.
What the Court Should Do - Follow Stare, keep the mandate
What the Court Will Do - keep the mandate.]
Josh says:
Posts like this are why even a big-government progressive like me loves this blog and takes the arguments presented seriously.
January 20, 2012, 4:15 pmSparkles by Megan says:
Pardon me for being so rude, but can any of you claim to have ever had a discussion of any of these points with any black person? I mean, you know, since the legislation is primarly intended to benefit blacks? Isn’t it a kind of adjunct to the Civil Rights Act or the Voting Rights Act? On the other hand, I can see why you’d consider it futile.
January 20, 2012, 4:18 pmAnonymous says:
Prof. Kerr-
Thanks for this, actually. I know Brandon was… impolite, but he expresses a frustration that many feel when discussing politically loaded issues- we’re never quite sure how an person’s agenda affects their arguments. If they appear to be open and are genuinely engaging with others (one can never know for sure, of course), it makes thinking about these issues so much easier. It’s easier to find where the common ground is, where the disagreements are, and to engage the arguments more on their own merits. This sort of thing helps, even if merely linked/referenced as background to more detailed legal arguments.
Posts like this (and EV’s recent one on Citizens United) are why I read VC. So, again, thanks! :)
January 20, 2012, 4:23 pmAnthony J. Lawrence says:
Very thoughtful and revealing post, Professor Kerr, thank you. I personally might weigh the Wechslerian neutral principles higher than the stare decisis vis-a-vis you. I also tend to see this “mandating” as it were as non-burkeanly problematic* and in fact a workable WNP-type of rule that simultaneously re-inforces federalism. Win, win, win. The politically significant reality is that the populace is neither ready nor willing to revert to the pre-new deal economic arrangement regarding entitlements.
*I’m well aware of the history too, and I basically see it as an easy bright-line without the unworkability problems; perhaps that’s short-sighted, but I’d be willing to be persuaded. What doesn’t work with R/L “no mandates to buy products services from 3rd party companies”?
* * *
Straight snitching here: Clark has made that exact same swipe at Brett Bellmore countless times and in response to anything BB posts, wholly irrespective of BB’s chosen topic or comment. I don’t have the JBG tenacity or capability to find and link them all up. Having said that, I hope this recent focus on comment moderation does NOT result in a significant increase in bannings, etc., as I believe the most hands-off approach is preferrable – to the extent that that is possible.
January 20, 2012, 4:58 pmWhat’s the Conservative Case for Upholding ObamaCare? - Hit & Run : Reason Magazine says:
[...] W. Root | January 20, 2012 At the Volokh Conspiracy, George Washington law professor Orin Kerr has a very interesting post explaining why at least some conservatives would want the Supreme Court to uphold the Patient [...]
January 20, 2012, 5:41 pmClark says:
I was not planning to take the discussion further, but since you posted:
Yes, I do so, whenever Brett Bellmore professes absolute certainty on these questions (and magically, that absolute certainty hews to party lines). I think it is entirely appropriate that being a birther (with a justification that Brett Bellmore can absolutely never be sure since he wasn’t present in the ER) should reflect on their credibility. If somebody were an anti-semite or a racist or Orly Taitz, I think it is perfectly reasonable to point out the fullness of their views and their philosophy so that their current comments can be taken in the appropriate context. Personally, I think that is a significant part of the value of handles and (the admittedly small) disincentives to rampant handle switching, otherwise every post could be anonymous12345, and I see nothing wrong about it. But Orin sees it as incivility for reasons best known to him, so I will refrain from mentioning in future that Brett Bellmore is a birther who defends his birtherism on the specious grounds that he cannot maintain metaphysical certitude on any event that he has not directly witnessed, but magically has certainty about the founders’ intent on a wide variety of topics.
January 20, 2012, 6:03 pmHudson Hornet says:
Here is another realistic option: the Court could agree with the 4th circuit and Judge Kavanaugh and dismiss the case 9-0 on Anti-Injunction Act grounds. (Or better yet, 7-0 with Thomas and Kagan both sitting out, so we can stop arguing over recusal standards.)
The practical effect of that would be to let the 2012 presidential election decide whether the individual mandate (and the ACA generally) lives or dies. Obama could make his case for the law and the GOP nominee could make his case against it. If Obama wins reelection, he can use the result as a political mandate for Congress to tweak the law to avoid the commerce clause issue, and if the GOP nominee wins, he can use the result as a political mandate for Congress to repeal the ACA altogether, also avoiding the issue.
Since the individual mandate is apparently unprecedented and has generated an enormous amount of protest, it’s fair to assume that if we avoid the issue this time around Congress will not try this again anytime soon and the Supreme Court won’t have to decide the question at all.
January 20, 2012, 6:42 pmMike Hansberry says:
Hudson,
Why do you assume the President and Congress want to avoid the CC issue?
If SCOTUS puts a decision aside for another day, why wouldn’t the President and Congressional Dems just get busy setting the PPACA in motion so as to double-dare the court to strike it down?
January 20, 2012, 7:18 pmPersonFromPorlock says:
How about Congress simply passes a law forbidding spending federal money on implementing Wickard?
January 20, 2012, 7:25 pmC says:
Concur with SonicCharmer.
These items in the post seem particularly distressing:
“Everyone who opposes the constitutionality of the mandate just so happens to also oppose the mandate politically.”
Just so happens to oppose both? Opposing both is not an accident. The mandate was a political act so opposing it is de facto a political judgment.
” And the most commonly-asserted constitutional argument against the mandate wasn’t even thought up until around just before the mandate was passed,…”
So I guess noone in the professor’s coffee lougne asserted the reasons to not pass it, but plenty of us thought up those reasons well before the mandate was passed. I for one was so shocked they actually passed such as obviously unconstituational action didn’t feel the need to “commonly assert” its stupidity, nor do I have a forum to do so that the lawyers would notice.
For what it’s worth,I posted on redstate.com way back in 2008 that Romneycar seemed unconstitutional, and hoped the Romney would be stoped in the GPO primary soon rather than risking a national version of Romenycare. It is not constituional to penalize a citizen just for the act of continuing to breath and be alive. You cannot pernalize a person for a ‘pre-crime, for that they MIGHT in the future have a health care item that is nnot paid. The only requirement to associate with an entity that exists is the Selective Service System for 18-yearold males. A requirment that I must creat a contract relationship to associate with a health insurance company is a bright-line unconstitutional overreach. (I even think it is unconstituional that the federal govtcan prohibit me from associatating with Military Reserve Tricare only because I am also associated with Civlian Govt general service employmenty. The freedom to associate or to not associate should be mine.)
January 20, 2012, 8:37 pmTwo Words In Reply To Stare Decisis On Progressivism, The Second Of Which Is ‘You’ : The Other McCain says:
[...] (typeof(addthis_share) == "undefined"){ addthis_share = [];}by SmittyCan we get a spine implant for Orin Kerr (emphasis original)?I’m also a Burkean conservative stare decisis guy, and I’m acutely aware of [...]
January 20, 2012, 8:45 pmSonic Charmer says:
loki13: I think you’re misreading the purpose of the OP. You’re reading it like you would answer the question– how, for example, you *would rule* based on what you know about the Constitution.
I disagree. Although I (unlike you?) can’t speak to the ‘purpose’ of the OP, which calls for mind-reading, I’m reacting to the fact that it was a post titled, verbatim, “How Should the Supreme Court Rule on the Individual Mandate?” (That is the only reason I clicked on it in the first place.)
In my view, how the Supreme Court “should” rule on the constitutionality of something ought to at least have some logical connection to whether that thing is, in fact, constitutional (whatever one takes that to mean). In other words, a priori I would have expected that any discussion of what the SC “should” do here would have at least gone through the motions of attempting to link one’s answer to a theory/view/interpretation of what the Constitution means, says, implies, connotes, penumbras, original-intents, or whatever. Take your pick, but at least pick one.
Although Orin has written a very well-expressed post, that I am glad for having read, I couldn’t help but find it striking that nowhere in it was a single nod toward such a thing. Do you see what I mean?
You may think that’s a fine, or right and proper and great even, basis for discussing what the SC “should” or should not do here. Meanwhile, I do not. I think the center/starting point of the discussion ought to still be the actual Constitution – not stare decisis, not ‘politics’, not anything else – and am dismayed to see that for many intelligent people it is not.
Ok?
best,
January 20, 2012, 9:00 pmOrin Kerr says:
Sonic Charmer,
I appreciate your concern, but in my experience, no two people agree on what “the actual Constitution” means — and pretty much everyone who claims to know what the “actual Constitution” means just so happens to believe that the Constitution very closely matches their personal policy preferences. That reality is profoundly important , as it means that multimember courts won’t consistently follow particular theoretical visions of what is “correct” even if individual members of that court have such visions For more, see this video starting at the 13 minute mark.
January 21, 2012, 12:49 amFred Beloit says:
That 2+2=4 has conventional judicial implications has not often been recognized. While some may argue that this is a conservative position, the 2+2=5 has many adherents as well, so that the politics of the matter may very well cause an unpleasant and ultimately divisive split at the court and perhaps at large.
Notice the 4 conclusion is basically triangular and Euclidean but trite, whereas the 5 conclusion with its circular base has more of an advanced, modern and, one could fairly claim, progressive aspect.
The decision taken, as far as I am concerned, must be made on the basis of popularity rather than which school of mathematics (geometry vs arithmetic) should be viewed as correct. If arithmetic is the base of the decision for 4, then I would like to see it with that rationale. But if arithmetic should turn out to be the winner because of mere unwillingness to accept change, then who could blame the public for inferring that politics were involved.
January 21, 2012, 10:46 ammartha says:
Chiming in late, but thanks to OK for this very informative post.
Also, loki13, I sure hope you are a law professor because you have a gift for patient–and entertaining–explanation. Zombie Hamilton and Jefferson, lol. :)
January 21, 2012, 1:09 pmSonic Charmer says:
Orin,
Understood, and no argument. However, apparently you were asked & chose to answer (your opinion of) ‘how they should rule’ – not how they would rule. I guess I see a difference and still would have expected the former to rely at least somewhat on what you thought the Constitution actually said.
Why, indeed, wouldn’t it?
January 21, 2012, 2:04 pmSonic Charmer says:
Orin,
Understood, and no argument. However, apparently you were asked & chose to answer (your opinion of) ‘how they should rule’ – not how they would rule. I guess I see a difference and still would have expected the former to rely at least somewhat on what you thought the Constitution actually said.
Thanks
January 21, 2012, 2:06 pmShane says:
Prof Kerr,
If you want to link to a specific moment in a youtube video, you can append ‘#t=XmYs’ to the URL, where X is the number of minutes and Y is the number of seconds into the video. For example, this URL would directly link to where you start talking.
You can learn this and other useful life lessons if you hire me as a research assistant this summer, which is a much cheaper option than enrolling in Carl Weathers’ stage fighting workshop.
January 21, 2012, 3:43 pmAdmiral says:
I think for all of the reasons set forth by Professor Kerr and others (not to mention the Roberts Court own tendencies anyway insofar as it has them) that Hudson Hornet is right and the Court will use the Anti-Injunction Act to sit this one out. If you read the Government’s argument that the individual mandate is justifiable as a tax, it is awfully hard to square that with the argument that it is not a tax for Anti-Injunction Act purposes.
The interesting conundrum is that the Anti-Injunction Act does get at the individual mandate argument but not, I think, at the Medicare as coercion argument. And, what would be interesting to me is whether a workable standard could be crafted there or not. Given that the Supreme Court voted for cert on that question, and lower courts have complained that they cannot determine when coercion is present, the resolution of that issue could have huge implications. And, it would not trigger the same kind of concerns that Professor Kerr highlighted as to the individual mandate (and others such as Justice Kennedy and Scalia have highlighted in different ways with respect to a more general rollback of the Commerce Clause) though, of course, it would carry a whole new set of concerns.
January 21, 2012, 4:25 pmleo marvin says:
He’s no professor, just a Red Sox fan, so patient, entertaining explaining is all he has to live for.
January 21, 2012, 4:37 pmmartha says:
Bah dump bump! Very funny! :)
January 21, 2012, 4:56 pmBrett Bellmore says:
Whenever I profess absolute certainty concerning something other than a mathematical or logical truth, feel free to attack me. My position is quite simple: Empirical facts, being contingent, can only approach 100% certainty asymptotically.
As for the matter of the location of Obama’s birth, I never had a lot of doubt concerning it, and am presently, now that he’s actually deigned to produce evidence, about as satisfied concerning it as I am with regards to any other event I was not witness too. The extent of my “birtherism” was always limited to saying that Obama should be required to prove the matter, and likely could. As it happens, as soon as a judge scheduled an actual hearing, instead of dismissing on standing, he made the trivial effort, and the birth certificate (Which we were all assured could not legally be produced!) was displayed.
I realize that it is a doctrine of faith in your church, but as I’m not a member, please spare me the indignation that I will not make the ritual profession of your faith. I will retain a sane degree of doubt concerning this, and all other empirical facts.
The only issue I had with Orin on this case, was simply that, when he opines on how the Court should rule, I’d like a bit more focus on the issue of what ruling would be correct, rather than politically prudent, in keeping with precedent, and so forth. But I’m not sure Orin actually thinks legal judgments CAN be correct or incorrect apart from such considerations.
Well, fine, I’m not a member of his church, either.
January 21, 2012, 5:18 pmCommandeering the People to Avoid Taxation: A Reply to Barnett and Kerr | Cato @ Liberty says:
[...] back-and-forth over Obamacare and the individual mandate. Responding to a comment, Professor Kerr opines that he is concerned that an opinion striking down the individual mandate would be too partisan and [...]
January 22, 2012, 2:24 amMike Hansberry says:
Jason,
To put a finer point on it…
Yes, and it must be noted that we are at this point because of the actions of Congress, not because of the actions of the political opponents of the Mandate. Whether Congress was motivated simply by a desire to avoid the politically unpopular income tax/deduction route, or whether they made a knowing decision to “not let a good crisis go to waste” and used the ecomomic crisis as a means of boxing in SCOTUS in order to enlarge their CC powers(gain the power to compel commerce), should not be an important consideration; the Mandate is either Constitutional under the CC or it is not. That the President’s keystone legislation might go down in flames is a purely political issue and ought not have any bearing whatever on the justices’ decision.
January 22, 2012, 2:29 pmCurt Levey says:
Orin, I agree that nobody can claim to know precisely what “the actual Constitution” means. But that doesn’t mean that original intent and strict construction should play no role in constitutional interpretation. Therefore, should your analysis be informed by whether a not-completely-principled line moves the law closer to a plausible reading of the relevant text’s original intent or plain meaning (take your pick)? For example, the post-Wickard, pre-Lopez understanding of the Commerce Power – that there are no real limits – is clearer and more easily enforceable than the lines drawn in Lopez and Morrison. But nobody would claim that the former is or attempts to be closer to the intent or text of the Commerce Clause.
I also share your dislike of unprincipled or unenforceable lines. But should your analysis be informed by whether the need for clumsy line drawing is the RESULT of the Court stretching a constitutional provision well beyond a plausible interpretation of its text or intent, which I believe is the case with the Commerce Clause? After all, even the clearest provision becomes murky once its relatively plain words are no longer allowed to serve as a principled basis for line drawing. For example, we’d be arguing now about Congress’ Article I power “to establish post offices” if precedent had expanded that to include the authority to regulate anything substantially affecting post offices.
January 23, 2012, 4:03 pmReaderY says:
If it waddles like a tax, and it quacks like a tax, and it originated in the House like a tax, then…it is a tax!
And it’s a tax that’s clearly constitutional under the Taxing and Spending Clause. Congress can tax people who don’t purchase insurance if it wishes. What congress chose to call it so its members wouldn’t have to tell their constituents that they passed a tax is completely irrelevant, and the political reasons behind Congress’ tendency to go way out of its way to avoid applying the t-word to what’s obviously a tax is simply none of the Judiciary’s business.
The whole Commerce Clause debate is simply irrelevant. Complete red herring. Total tempest in a teapot. Waste of time.
January 23, 2012, 8:59 pmFred Beloit says:
If it waddles like a fine, and it quacks like a fine, and it originated in the House like a fine, then…it is a fine!
It is a fine for not purchasing what the government wants you to purchase. Nothing could be more clear-cut.
January 24, 2012, 10:51 am