The Volokh Conspiracy

I am currently in the process of putting together a talk for aspiring law professors, as part of an Institute for Humane Studies program. One of the questions that I expect to get asked is how to decide what subjects to write on. I think the best answer is given in Chuck Yeager’s autobiography, which I recently read:

If you love the hell out of what you’re doing, you’re usually pretty good at it, and you end up making your own breaks….

I wasn’t a deep, sophisticated person, but I lived by a basic principle: I only did what I enjoyed.

Some professors will tell younger scholars that if you want to get ahead, you should write on “hot” subjects or those that are ideologically congenial to other academics and hiring committees. But, as Yeager recognized, most people do their best work when they focus on issues that actually interest them. Yeager became the greatest test pilot of his time in part because he loved flying jet fighters more than anything else in the world. If you want to be a top scholar, it helps to write about things you “love the hell out of.”

You don’t have to love your work as much Yeager did to be successful. But it’s generally better for your career to do good work on issues that you really care about than weaker work on issues that are more trendy or ideologically safer. And if you don’t get ahead as much as you would like, at least you will have spent your time doing something interesting, so it won’t be a total waste.

UPDATE: I suppose I should emphasize that I am not suggesting that how much you love the subjects you write about is the only determinant of how successful you are, or even always the main one. Obviously, other factors – talent, experience, luck – matter too. The point, however, is that choosing subjects you love often greatly increases your chances of becoming a successful academic, even though it certainly doesn’t guarantee success. I would also add that if you love two or three different subjects about equally, it makes sense from a career standpoint to choose the one that is most likely to be well-received by other academics.

I think Yeager was making a similar point about his own career. Obviously, his love of flying wasn’t the only cause of his extraordinary success. But it was an important factor.

On Sunday, LA Lakers forward Metta World Peace (formerly known as Ron Artest) viciously elbowed James Harden of the Oklahoma City Thunder. Because of his previous history of on-court violence, many commentators are urging the NBA to give Peace a chance to experience a severe punishment greater than would normally be imposed for such an offense. ESPN columnist Jemele Hill writes:

It would be much easier to forget Metta World Peace’s turbulent past, if he didn’t so often provide present-day reminders.

With a vicious elbow to James Harden’s head during Sunday’s Lakers-Thunder game, it became 2004 all over again — when Metta World Peace (then known as Ron Artest) engaged in a brawl that spilled over into the stands and remains the most embarrassing incident in NBA history…

Was his elbow as violent as the one Karl Malone gave Isiah Thomas in 1991, which resulted in 40 stitches for Thomas? Was it as deliberate and dirty as Andrew Bynum clotheslining J.J. Barea in last year’s playoffs?

No, but World Peace must be held to a higher and different standard. He needs to be suspended at least 10 games, and league officials would be justified if they decided on an indefinite suspension.

If you think that’s too harsh, keep in mind World Peace has been suspended 13 times in his NBA career for a total of 111 games — 86 of which were related to the brawl.

Should World Peace’s previous offenses lead to harsher punishment this time? It depends on your theory of punishment. If the goal is deterrence, than extra severity probably is warranted. World Peace’s previous record proves that he is an unusually difficult guy to deter, which suggests that greater severity is needed for him to get the message. Moreover, he is notorious around the league and the sports community generally. So punishing him is likely to have a strong example effect, because the punishment will be so widely publicized. It would thereby achieve general deterrence, as well as specific deterrence.

On the other hand, if the goal of punishment is retribution, then Peace’s past offenses are irrelevant. Yes, he was at fault for the 2004 brawl at Auburn Hills and other incidents. But he has already been punished for them, and should not be penalized for them again. For a retributivist, what matters now is the appropriate punishment for offense currently at issue. And the latter should be determined solely by the seriousness of the rule violation, not by what we think of the offender’s past record.

Whatever theory of punishment the NBA prefers, perhaps they should reduce World Peace’s suspension by a few games if he agrees to change his annoying and clearly inappropriate new name. Many have suggested “Metta World War.” But perhaps “The Artest Formerly Known as World Peace” would be even better.

CONFLICT OF INTEREST WATCH: As a Boston Celtics fan, I don’t much like either World Peace or the Lakers. However, I would never let that influence my judgment on important questions of legal theory!

UPDATE: The NBA just announced that World Peace will be suspended for a total of only 7 games. That punishment seems too light under any plausible normative theory. No justice, no World Peace!

Temple law professor Peter Spiro has an interesting New York Times column arguing that supporters of immigration should not fear a Supreme Court decision upholding Arizona’s draconian anti-illegal immigrant law, because interjurisdictional competition is likely to take care of the problem. By contrast, he fears that if the Court strikes down the law, the result could be the enactment of much more dangerous federal legislation:

Arizona is one of several states, including Alabama, Georgia, South Carolina and Indiana, that, frustrated by Congress’s idling on immigration reform, have challenged federal authority by taking it upon themselves to devise draconian policies for undocumented immigrants….

Such laws are misguided at best, mean-spirited and racially tainted at worst. The conventional wisdom among immigration advocates is that immigrant interests will be best served if the Supreme Court makes an example of Arizona’s law by striking it down.

But in the long run, immigrant interests will be better helped if the Supreme Court upholds S.B. 1070….

Undocumented immigrants may themselves be politically powerless, but they have powerful allies. In Alabama and Georgia, dismayed farmers have watched crops rot in the fields for want of immigrant labor. Arizona is estimated to have lost more than $140 million from convention cancellations made in protest.

Even more important is the prospect of lost foreign investment. Caught in the net of Alabama’s law in November was a German Mercedes-Benz executive, who left his passport at home while out for a drive and as a result found himself in a county jail. Mercedes has a plant in Tuscaloosa that employs thousands of Alabamians and adds many hundreds of millions of dollars to the state economy. That embarrassment will make the next foreign company think twice as it scouts out a location for a manufacturing facility in the United States….

In those states that have enacted laws, there are moves to roll them back. The Alabama House of Representatives has approved a Republican-sponsored bill to soften its current law….

Even if some of these state immigration laws survive political, corporate and consumer opposition on the ground, it’s better to have the scattered imposition of state laws than the blanket coverage of a federal measure. Other states and localities are welcoming immigrants, legal or not. That fact gets lost in the common indictment of state and local immigration measures as a “patchwork.” One of federalism’s core virtues is the possibility of competition among states. Competition in this context is likely to vindicate pro-immigrant policies.

I am much less certain than Spiro that a decision striking down the Arizona law is likely to be followed by punitive federal legislation. Congress is deeply divided on the subject, and the Obama administration is likely to oppose any such law. Even if Mitt Romney becomes president and has a narrow Republican congressional majority, passage of draconian federal legislation is far from certain, especially given the large number of competing political priorities that a new GOP administration would face.

That said, Spiro is right to suggest that interjurisdictional competition is likely to constrain the spread of Arizona-style illegal immigration laws, and possibly lead to the repeal or reform of some of the laws already enacted in various states. Even if a few states do retain these sorts of laws, businesses and individuals can effectively “vote with their feet” against them by moving to other states. As Spiro points out, this makes ill-advised state laws in this field much less dangerous than comparable federal ones.

UPDATE: I have revised some parts of this post for clarity.

UPDATE #2: I should note that there is one way in which the Arizona immigration law may be worse than a comparable federal law would be. I explained in detail in this 2010 post.

The Supreme Court today decided not to hear Harmon v. Kimmel, an important case addressing the question of whether rent control can ever amount to a taking requiring compensation under the Fifth Amendment. I previously blogged about the case in this post, where I urged the Court to consider the issue, and rule that rent control can be a taking, at least in a case like this one where the property owner is required to continue renting the property indefinitely, even if he or she would prefer to devote the land to a different use. I also pointed out that there are other ways of providing affordable housing for the poor that are much more effective than rent control, and create fewer harmful side effects.

The case had been relisted by the Court, which suggests that at least some of the justices were taking an interest in it. Hopefully, the Court will revisit this issue in the future.

The Hebrew Immigrant Aid Society has just published a book of thirty immigration memoirs by Soviet Jewish immigrants, which is available for sale here. My father, Yefim Somin, and I are among the contributors. There are also several well-known contributors such as novelist Gary Shteyngart and artist Marc Klionsky.

I blogged about my contribution here.

This Sunday from 3 to 5 PM, I will be at an event sponsored by the Hebrew Immigrant Aid Society in New York City, for the launch of a book of memoirs of immigration by Jewish immigrants from the former Soviet Union.

The book includes contributions by thirty different immigrants, including a short version of my own immigration memoir. Among the speakers at the event are several authors of chapters in the book, and Gal Beckerman, author of an important recent work on Jewish emigration from the USSR that I commented on here. The location is the Center for Jewish History, 15 West 16 Street (between Fifth and Sixth Avenues) New York, NY 10011. You can get tickets at the door or here.

When the Israeli government exchanged over 1000 captured terrorists for captured Israeli soldier Gilad Shalit last fall, I pointed out that the deal was likely to cost a lot more innocent lives than it saved, because many of the freed terrorists are likely to go back to their old ways. Sure enough at least two of them have already done just that . And they are apparently not the first Shalit exchangees to have done so. Given that there are 1000 more where these two came from, this is likely to be just the tip of the iceberg.

As I explained in my original post on this subject, the likelihood that freed terrorists will commit further atrocities is just one of several grave flaws with these types of deals. They also incentivize future terrorism and hostage taking by showing the terrorists that such tactics work. In addition, endangering innocent civilians in order to save a captured soldier who volunteered for combat duty is a wrongheaded inversion of moral priorities. Still, the high likelihood of recidivism by released terrorists is a sufficiently grave risk that it by itself outweighs any possible benefits of such deals, especially if the ratio of released terrorists to freed prisoners is so absurdly lopsided that it becomes nearly certain that the exchange will cause more harm to innocent people than it prevents.

This conclusion is inescapable on utilitarian consequentialist grounds. But it is also compelling in terms of theories of natural rights. After all, every time the freed terrorists kill or injure innocent civilians, they violate their victims’ rights to life, liberty, or bodily integrity. And the release is likely to cause far more such rights violations than it prevents.

UPDATE: I advanced some additional criticisms of the Shalit deal in this post, which also includes a response to a critique of my position by economist Tyler Cowen.

This Thursday at noon, I will be speaking on the War on Drugs at Washington University in St. Louis. Washington University Professor Katherine Goldwasser will comment. The speech is sponsored by the Washington University Federalist Society.

This is a timely topi because support for the War on Drugs has gradually eroded in recent years. Public support for marijuana legalization recently broke 50% for the first time, and a variety of groups such as the NAACP, the Global Commission on Drug Policy, and a prominent British panel have called for an end to the War on Drugs this year. Although the Obama administration has so far failed to take advantage of it, there is now much broader political support for at least scaling back the War on Drugs than ever before.

I don’t agree with everything that CNN columnist John Avlon writes in his denunciation of Republican Rep. Allen West for claiming that some 80 Democratic House members are “communists.” But this part is right on target:

The ghost of Joe McCarthy’s ulcerous accusations hung over a disturbingly casual comment this past week by U.S. Rep. Allen West, R-Florida.

When asked by a constituent at a town hall, “What percentage of the American legislature do you think are card-carrying Marxists?”

“That’s a fair question,” West replied. “I believe there’s about 78 to 81 members of the Democratic Party that are members of the Communist Party….”

The number West picked out was apparently based on the number of congressmen affiliated with the Congressional Progressive Caucus. This is an organization of the most liberal members of Congress, but to call them communists is a slander splashed with blood.

Communists, of course, murdered more than 100 million people in the past century, if you add up the rough total of butchery by Vladimir Lenin (Soviet Union), Joseph Stalin (Soviet Union), Mao Zedong (China) and Pol Pot (Cambodia)….

A military man of West’s rank understands the magnitude of his misstatement. So I’m assuming that he was sincere in the accusation.

To equate liberals in Congress with communists is like equating conservatives in Congress with fascists…

To this day, many in the West have a tendency to ignore or downplay the true magnitude of communist crimes. I discussed the harm that neglect causes in this post. However, accusing garden-variety liberals of being communists doesn’t help matters. It merely serves to trivialize communist atrocities by using them as a tool of cheap political rhetoric. Unfortunately, West’s comment is far from the only example of such trivialization of communism in recent conservative political rhetoric.

I don’t agree with Avlon’s suggestion that such rhetorical excesses are “asymmetric[ally]” present mainly on the right. The left has for years similarly trivialized racism and sexism by accusing conservatives and libertarians of these offenses even in many cases where the charge was ridiculous. Democratic claims that the GOP is waging a “war against women” are a notable recent example.

But the left’s rhetorical trivialization of racism and sexism does not justify the right’s tendency to do the same with communism. People who genuinely understand that communism is one of history’s greatest evils should take accusations of being a communist seriously, not use them as cheap political talking points.

UPDATE: It’s actually not entirely clear to me whether Avlon really means to say that exaggerated rhetoric of this type is present mainly on the right, or whether he means to condemn both sides of the political spectrum equally. Some parts of his piece lend themselves to the former interpretation (e.g. – when he implies that prominent left-wingers don’t make accusations comparable to West’s and would be greeted with greater outrage if they did) and others to the latter (e.g. – the very end of the article, where he calls on both sides to police their rhetorical excesses). Readers will have to decide for themselves what they think Avlon meant to say. In any event, this ambiguity in his article doesn’t affect the main point of my post.

In this recent Atlantic article, Professor Larry Lessig argues that, if the Supreme Court strikes down the individual mandate, it could only be the result of politics, given its previous decisions rejecting “liberal” challenges to congressional legislation:

The Court has been asked to limit the scope of Congress’s authority in a wide range of cases. Some of these have been for liberal causes, some for conservative. I was lead counsel in a case that asked the Court to apply its newly announced will to enforce the limits on enumerated powers in the context of the copyright clause — viewed by many as a “liberal cause.” The Court said no, twice. The same with federal regulation of medical marijuana, which, the (said to be liberal) 9th Circuit had ruled, violated the limits on Congress’s power. The Supreme Court — including Scalia — said it didn’t.

So with these liberal cases, limits were not enforced. But when the cause is conservative, the willingness to limit Congress’ power comes alive. The Court has struck laws regulating guns — twice. It has struck a law that regulated violence against women. And if Obamacare falls, it will have struck down the most important social legislation advanced by the Democratic Party in a generation.

With that score sheet, I fear the cynics win.

I don’t doubt that the Supreme Court is often influenced by political factors, including in its federalism cases. But Lessig’s argument is greatly overstated. He ignores the fact that many of the votes upholding federal laws against “liberal” challenges in the medical marijuana and copyright cases actually came from the Court’s liberal justices. In Gonzales v. Raich, a decision I have been very critical of, four of the six votes in the majority came from the liberal justices. The five conservatives actually voted 3-2 to strike down the law which allowed the federal government to ban the possession of medical marijuana that had never crossed state lines or been sold in any market. If it were up to the Court’s conservatives, the “liberal” challenge to the medical marijuana ban would have succeeded.

The underlying dynamic here is that the Court’s liberal wing has consistently opposed virtually any limits on Congress’ powers under the Commerce Clause, the Necessary and Proper Clause, and the Tenth Amendment over the last twenty years. As a result, such limits are only enforced on the rare occasions when all five conservative justices are willing to do so. We can and should criticize the conservatives for enforcing those limits unevenly and for developing a federalism jurisprudence that is far from a model of clarity. But the liberal justices also deserve considerable blame for essentially treating the Commerce Clause as a blank check for unconstrained Congressional power.

In Eldred v. Ashcroft, the first of the copyright cases Lessig complains about, the majority opinion was written by liberal Justice Ruth Bader Ginsburg, though two of the other three liberal justices did dissent. In Golan v. Holder, a recent extension of Eldred, there were only two dissenters – one of them the conservative justice Samuel Alito.

I actually doubt that the copyright cases are fairly characterized as a liberal vs. conservative issue. Many liberal Democratic members of Congress voted for the broad extensions of copyright that these lawsuits challenged (as also did many Republicans). Among their critics were many libertarians and pro-free market conservatives. This is an issue that splits both liberals and conservatives internally. Libertarians are internally divided on intellectual property issues as well, though my impression is that more of them oppose broad extensions of copyright than support it.

Finally, Lessig’s argument that Justice Scalia cannot vote to uphold the individual mandate without contradicting his concurring opinion in Raich ignores the fact that that opinion addresses only the issue of what qualifies as “necessary” under the Necessary and Proper Clause, while the main argument against the mandate turns on the meaning of “proper.” This is the point of the amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars, which explains why the mandate is improper even if it is “necessary.” As the brief explains (pp. 13-14, 28-29), Scalia has written several opinions emphasizing that necessity and propriety are separate and distinct requirements, both of which must be met in order for federal legislation to be authorized by the Necessary and Proper Clause. He made that point in the Raich concurrence itself. In the oral argument on the individual mandate case, Scalia emphasized the same issue in his questioning of Solicitor General Donald Verrilli. For some fifteen years now, Scalia has focused on the issue of propriety more than any other member of the Court.

I am no fan of Scalia’s Raich concurrence. But he could easily write an opinion striking down the mandate without contradicting anything he said in that earlier case.

NOTE: The arguments of this post overlap slightly with co-blogger Randy Barnett’s earlier critique of Lessig’s article. I have chosen to leave the overlap in place rather than cut out important logical links in my own argument.

In this recent Wall Street Journal op ed, historian David Beito and economist Daniel Smith explain how respect for property rights enabled the city of Joplin, MO to recover from a devastating tornado much faster than similarly stricken Tuscaloosa, Alabama, which severely restricted property rights in order to pursue a “top-down” redevelopment plan:

Last April 27, one of the worst tornadoes in American history tore through Tuscaloosa, Ala., killing 52 people and damaging or destroying 2,000 buildings. In six minutes, it put nearly one-tenth of the city’s population into the unemployment line. A month later, Joplin, Mo., suffered an even more devastating blow. In a city with half the population of Tuscaloosa, a tornado killed 161 and damaged or destroyed more than 6,000 buildings….

n Joplin, eight of 10 affected businesses have reopened, according to the city’s Chamber of Commerce, while less than half in Tuscaloosa have even applied for building permits, according to city data we reviewed. Walgreens revived its Joplin store in what it calls a “record-setting” three months. In Tuscaloosa, a destroyed CVS still festers, undemolished. Large swaths of Tuscaloosa’s main commercial thoroughfares remain vacant lots, and several destroyed businesses have decided to reopen elsewhere, in neighboring Northport.

The reason for Joplin’s successes and Tuscaloosa’s shortcomings? In Tuscaloosa, officials sought to remake the urban landscape top-down, imposing a redevelopment plan on businesses. Joplin took a bottom-up approach, allowing businesses to take the lead in recovery….

The Alabama city’s recovery plan, “Tuscaloosa Forward,” is indeed state-of-the-art urban planning—and that’s the crux of the problem. It sets out to “courageously create a showpiece” of “unique neighborhoods that are healthy, safe, accessible, connected, and sustainable,” all anchored by “village centers” for shopping (in a local economy that struggles to sustain current shopping centers). Another goal is to “preserve neighborhood character” from a “disproportionate ratio of renters to owners.” The plan never mentions protecting property rights.

In Joplin, the official plan not only makes property rights a priority but clocks in at only 21 pages, compared with Tuscaloosa’s 128. Joplin’s plan also relied heavily on input from businesses (including through a Citizen’s Advisory Recovery Team) instead of Tuscaloosa’s reliance on outside consulting firms. “We need to say to our businesses, community, and to our citizens, ‘If you guys want to rebuild your houses, we’ll do everything we can to make it happen,’” said Joplin City Council member William Scearce in an interview.

Instead of encouraging businesses to rebuild as quickly as possible, Tuscaloosa enforced restrictive zoning rules and building codes that raised costs—prohibitively, in some cases. John Carney, owner of Express Oil Change, which was annihilated by the storm, estimates that the city’s delays and regulation will cost him nearly $100,000. And trying to follow the rules often yielded mountains of red tape, as the city rejected businesses’ proposals one after another….

Joplin took a dramatically different approach. According to interviews with local business owners, right after disaster struck the city council formally and informally rolled back existing regulations, liberally waving licensing and zoning mandates….

The owner of one Joplin construction company told us that when it came to regulations, the “city just sort of backed out. . . . We had projects that we completed before we got building permits.” Said another Joplin resident: “When you have the magnitude of that disaster, really the old ways of doing things are suspended for a while until you create whatever normal is. . . . The government was realistic to know that there is a period of time when common sense, codes and laws that are in place to protect people are suspended for the sake of the greater good.”

UPDATE: In the original version of this post, I accidentally omitted the name of one of the co-authors of the WSJ op ed: economist Daniel Smith. I have now corrected the mistake.

If you are a law student interested in pursuing a career as a legal academic, you may be interested in the Institute for Humane Studies’ upcoming online program for aspiring legal scholars: a series of online lectures on various topics related to getting into legal academia that will be followed by question and answer sessions. There will be a total of five one hour sessions held on weekday nights in May. The lecturers include VC bloggers David Bernstein, Todd Zywicki, and myself, as well as Chapman law professor Tom Bell and Lee Otis, director of the Federalist Society’s Faculty Division. My own talk, scheduled for May 9, is on the subject of “How to Make the Most of Your Time in Law School.” Since IHS is a libertarian organization, some of the advice we offer is specific to libertarians seeking careers in legal academia. But most of it is likely to apply more broadly.

You can sign up for one or more of the sessions here. Participation is free for anyone who is a law student interested in pursuing a career in legal academia. But you must sign up by Friday April 27.

This Friday at 4 PM, I will be on a panel on reform of the licensing system for lawyers at the University of Washington School of Law, in Seattle. I will be joined by Paula Littlewood, Executive Director of the Washington State Bar Association, and University of Washington law professor Thomas Andrews. The panel is sponsored by the University of Washington Federalist Society and – I believe – the Washington State Bar Association.

I will argue, as I have previously at the VC, that the public interest would be best served by deregulating the licensing system, including abolition of the bar exam and elimination of the requirement that lawyers must attend three years of law school. At the very least, I will explain, we should allow people to enter the bar after “reading law” or apprenticing with a current practitioner, as was common in the 19th and early twentieth century (this is how Abraham Lincoln became a lawyer, among many others). Such reforms can drive down the cost of legal services for consumers and also make it possible for people to enter the legal profession without a vast expenditure of time and money. It will, of course, be important for consumers to have information available to them about the quality of legal practitioners. But that can be done in many different ways, without perpetuating today’s guild-like licensing system.

This Thursday at 4 PM, I will be speaking on “Property Rights Since Kelo” at Tulane Law School. Thanks to the Tulane Federalist Society for inviting me.

Much has happened on both the legislative and judicial fronts in the last few years. Considerable progress has been made in protecting property rights against abusive takings, but much work remains to be done in many states. I intend to give the audience a bird’s-eye survey of the good, the bad, and the ugly alike!

Avik Roy of Forbes has an interesting post outlining how numerous liberal politicians and activists vociferously opposed the individual health insurance mandate until it was incorporated into the Obama administration’s health care plan. As Roy notes, Obama himself strongly opposed the mandate when Hillary Clinton proposed it during the 2008 presidential campaign. He was far from alone. A few liberal politicians and activists continue to oppose the mandate today, most notably Howard Dean. Most others have fallen in line with the administration.

In an earlier post, Roy covered the “tortuous” history of conservative and libertarian attitudes to the mandate. Many conservatives did indeed support the idea during the 1990s and early 2000s, including Newt Gingrich, and Mitt Romney, who made it the centerpiece of his Massachusetts health care plan. The conservative Heritage Foundation first developed the mandate plan back in 1989, though their proposal was in some respects different from Obama’s and Romney’s. On the other hand, as Roy notes, many other conservatives – and the vast majority of libertarians – opposed the idea all along. I was a college student intern at Heritage back in 1994, not long after the political battle over Bill Clinton’s health care plan. Although I didn’t work on health care policy myself, I well remember the ongoing war of words between Heritage and the libertarian Cato Institute over the Heritage individual mandate plan, which Cato opposed. So too did leading free market health care and entitlement experts such as John Goodman and Peter Ferrara.

In sum, there are plenty of politicians in both parties who have switched sides over the mandate for what may well be opportunistic reasons: Gingrich, Romney, and Obama are all good examples. On the other hand, it is not true that all or even most opposition to the mandate on the right is purely opportunistic. Many conservatives and libertarians have opposed the idea for almost twenty years now, including back when it was advocated by Republicans. On the left, it is fair to point out that some of those who endorsed Obama’s plan have done so because they see it as a lesser evil compared to the previous status quo.

UPDATE: Co-blogger Jonathan Adler covered some of the relevant history in this post.

Defenders of the individual mandate often argue that the concerns about individual liberty raised by the mandate’s opponent’s are overblown, because most of the latter concede that the Constitution allows state governments to impose similar mandates. A health insurance mandate imposed by a state such as Massachusetts seems no less oppressive than one adopted by the federal government. University of San Diego lawprof Michael Ramsey recently posted a good response to such claims:

[Joey] Fishkin has it wrong to say that denying federal power while recognizing state power is “pure federalism, drained of all libertarian talk of personal freedom.” To the contrary, it is worse for personal freedom for the federal government to impose the mandate (or make you eat your broccoli) than for states to do it. As Kennedy put it for the Court in United States v. Bond, “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power….”

[F]ederalism creates a market for government, in which dissatisfied “customers” can “vote with their feet…..” That in turn preserves individual liberty, not just because people actually do move to avoid oppressive regulation (though they do), but more fundamentally because states and local governments understand that people can move. States are less oppressive, not necessarily because they are closer to the people, but because people have options and states know it. As Kennedy also wrote in Bond, quoting Justice O’Connor in the earlier case Gregory v. Ashcroft, federalism “makes government ‘more responsive by putting the States in competition for a mobile citizenry.’”

Of course, to an extent there are alternatives to the U.S. national government as well. But these are harder for individuals and businesses to adopt. The United States’ internal federalism is especially protective of liberty because people and businesses can move so readily (both legally and culturally) from state to state. That’s not true internationally, so competition at the nation-to-nation level provides lesser protection for liberty……

Obviously, though, internal federalism protects liberty in this way only if the states can offer different options. The more power held by the national government, the less effective the federalism protections of liberty will be. Thus there is an immediate relationship between individual liberty and limited government at the national level….

Returning to broccoli, I think Fishkin is wrong to assume that Texas could not constitutionally (try to) force him to eat it. To say the least, no provision of the text seems plausibly directed to that end. But in any event, our liberties don’t depend on conjuring such a limit from the Constitution. If that regulation were to be passed, and if it were thought unduly oppressive, non-broccoli eaters could leave the state (or, if out-of-state, decline to move there). And it would not likely pass in the first place, because the state lawmakers would know it would have that effect. As a practical matter, Texas can’t make Fishkin eat broccoli, not because something in the Constitution says so directly, but because federalism will give Fishkin broccoli-free alternatives. In contrast, the national government lacks this structural constraint on its potential for oppression. Quite unlike the states, the national government knows it has, to some significant extent, a captive population, and may be expected to act accordingly.

For the reasons outlined by Ramsey, there is no inconsistency in believing that individual freedom is protected by constitutional rules forbidding Congress from enacting laws that can still be adopted at the state level. Obviously, states can and do sometimes enact oppressive policies. But the right of exit makes them, on average, a lesser threat to freedom than similar policies adopted at the federal level.

I previously discussed Bond and the relationship between federalism and freedom here.

Both Dave Hoffman and Orin Kerr have recently suggested that some of the liberal legal commentators who claimed that the individual mandate was a slam dunk case for the government were doing so for the purposes of “shaping the narrative” about the case, and may not have actually believed what they said. Paul Horwitz of Prawfsblawg suggests that such advocacy blogging (at least by legal academics) is unethical.

In one sense, all blogging that expresses a position on a controversial issue is “shaping the narrative.” Whenever I write a post on a disputed issue, whether it be the individual mandate or the politics of The Hunger Games, part of my purpose is to persuade readers that I’m right and competing views wrong. I don’t think there is anything unethical about engaging in such efforts at persuasion. Indeed, they are part of what makes blogging – including blogging by academic experts – a useful enterprise.

At the same time, Horwitz is right to suggest that it is wrong for an academic to publicly “assert… with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence” for the purpose of influencing public opinion. Doing so attaches the veneer of academic respectability to an opinion that isn’t actually backed by the scholar’s expert judgment.

As I said in my previous post on this subject, I don’t think this is what most of the liberal commentators who claimed that the mandate was an easy case actually did. I believe that they meant what they said and said what they meant.

And, for what it is worth, I myself have never said anything in a VC post that I didn’t actually believe at the time I said it. Can I definitively prove that? Obviously not. I’m the only one who knows what I really think, and even I don’t remember my exact state of mind at the time I wrote every one of the hundreds of blog posts and dozens of op eds I’ve written over the six years I have blogged for the VC.

However, I will note that I have often said things that weren’t helpful to the position I was defending at the time. For example, I would not have initially expressed the view that the individual mandate was covered by Gonzales v. Raich, or later called attention to my change of mind on this point. The former post was written before the mandate litigation began, but at a time when it was becoming clear that lawsuits against the mandate were likely to be filed should it pass. Similarly, I would not have repeatedly predicted that the Supreme Court was more likely to uphold the mandate then strike it down (e.g. – here), or pointed out flaws in some of the lower court decisions striking down the mandate (e.g. – in my analysis of the very first such decision).

The issue on which I have probably had the most involvement in public debate was the controversy over Kelo v. City of New London and its aftermath. In my writings on that subject (most recently here), I pointed out that Kelo was consistent with previous Supreme Court precedent which already allowed the government to condemn property for almost any reason (though I also noted that Kelo could have been decided the other way without completely overruling those earlier precedents). From a “shaping the narrative” point of view, it would have been more effective to portray Kelo as a radical new departure. In my view, however, the case was actually an opportunity for the Court to correct – or at least cut back on – some egregious errors from previous decisions.

I have also foregone making plausible claims that might help my cause, but which I did not believe to be true. For example, some mandate opponents have argued that the federal government’s shift away from its Commerce Clause argument to put greater emphasis on the Necessary and Proper Clause and the Tax Clause was a sign of desperation, or at least declining confidence in the commerce argument. I did not believe there was any proof of this (making every plausible argument for your side is just good lawyering), so I didn’t say it, even though it might have helped “shape the narrative” in our favor.

CNN has recently posted two articles about fans who are angry that black actors have been cast in three important roles in The Hunger Games movie: Cinna, Rue, and Thresh (see here and here). On the merits of this dispute, I think it’s clear that the objecting fans are in the wrong. As CNN points out, Rue and Thresh are described as having “dark” skin in the original book by Suzanne Collins, on which movie is based. A person with “dark” skin isn’t necessarily black, but being black is certainly compatible with that description. Cinna’s race was never mentioned in the books at all. So the filmmakers were well within their rights to cast an actor of any race in the role (even assuming that they had some moral obligation not to contradict the book). FWIW, I thought that Lenny Kravitz did a very good job in the role. The actress playing Rue was less effective, but that may have been because the movie cut many of the character’s lines from the book.

At the same time, I can’t help but think that these articles are making a mountain out of a molehill. The Hunger Games book series has millions of fans. In such a large group, it is inevitable that there will be some people who have foolish views about the movie, including some with misguided racial objections to the casting.

Despite the fact that at least two of these three black actors were clearly evident in the movie’s trailer and their selection was otherwise publicized in advance, the Hunger Games movie had the highest first-weekend box office receipts of any non-sequel in history. And the film is still No. 1 at the box office. So I strongly suspect that those fans who objected to the casting on racial grounds were a small minority.

For my review of the movie, see here.

Co-blogger Jonathan Adler rounds up some of the commentary discussing how many liberal pundits underestimated the chances of the anti-mandate lawsuits. After last week’s oral arguments, it now seems clear that many liberal commentators did grossly miscalculate on this issue.

At the same time, it is fair to point out that some conservative and libertarian pundits also underestimated the lawsuits’ chances of success. Andrew Sullivan notes that I myself said the federal government was more likely to prevail than the plaintiffs, in a Reason TV video a few weeks before the oral argument. Avik Roy at Forbes notes that respondents in an American Action Forum poll of 43 Supreme Court practitioners and former Supreme Court clerks predicted, on average, a 35% chance that the mandate would be struck down.

However, there is a big difference between predicting that the mandate would be upheld and claiming that the anti-mandate lawsuits were silly and frivolous – which is what many liberal commentators were saying, as late as the eve of the oral argument. A suit with a 35% chance of winning may deserve to lose. But it’s not frivolous.

Even if such a viewpoint was defensible when the lawsuits began two years ago, it clearly was not after four lower court decisions had struck down the mandate and the overwhelming majority of conservative and libertarian constitutional law scholars came out against it. If nothing else, liberal commentators could have learned from the lower court decisions upholding the mandate. Without exception, these rulings included long and detailed discussions of the relevant precedent. And most admitted that the case presented novel issues that had not been squarely addressed in previous Supreme Court decisions. These were not the kinds of opinions you typically see in cases that are easily resolved through straightforward application of established precedent.

Some liberals understandably derived a false sense of security from the opinions upholding the mandate by conservative judges Laurence Silberman and Jeffrey Sutton. However, Silberman’s opinion upheld the mandate despite his recognition that the government’s arguments in its favor left no room for limits on federal power. It was never likely that the Supreme Court majority would go for this idea, especially after they had forcefully emphasized that limits on federal power are needed to protect individual liberty. Sutton’s opinion, meanwhile, rested on a dubious distinction between as-applied and facial challenges that would have required the Supreme Court to overrule United States v. Lopez and, possibly, many other decisions. I doubt that even the liberal justices would have endorsed this approach, since it would also block many constitutional lawsuits that liberals favor. And Sutton’s reasoning, like Silberman’s, amounted to a rationale for virtually unconstrained federal power.

Finally, it’s worth noting that many liberal commentators – particularly some of my fellow academics – did not just fail to predict the reactions of conservative judges. When it comes to the federal government’s argument that the mandate is a tax, many also failed to predict the reactions of liberal jurists. All but one of the numerous lower court judges to have considered this argument rejected it. And the Supreme Court oral argument revealed that at least three of the four liberal Supreme Court justices are also highly skeptical.

In sum, it was not unreasonable to believe that the Supreme Court would uphold the mandate. As I noted in the Reason video linked by Sullivan, the law started out with the four liberal justices’ votes clearly in its favor. On the conservative wing of the Court, as I also noted in the video, there had been a considerable amount of fractiousness on federalism issues in recent years. And the pro-mandate side needed to peel off only one conservative in order to win.

On the other hand, it did become increasingly untenable to claim that this was a clear case that can easily be resolved through simple application of existing precedent. Jonathan Adler’s post enumerates some of the reasons why many liberal commentators, especially academics, may have fallen into this error. An additional point to consider is that, for many years, the overwhelming majority of liberal legal scholars have believed either that federalism issues should be left completely up to the political process (a view articulated by Justice Stephen Breyer, himself a prominent former academic, at the oral argument) or that judicial review of federalism issues should be conducted in an ultradeferential manner that leaves room for striking down only a few insignificant marginal laws. Any other view is seen as threatening a return to the supposedly benighted bad old days of the pre-New Deal Supreme Court. As Jonathan pointed out previously, the dominance of these types of views helps explain why liberal academics were overwhelmingly hostile to the Court’s decision in Lopez (which most also failed to predict).

UPDATE: Dave Hoffman responds to this and other recent VC posts here:

At the V.C., Ilya Somin, Jonathan Adler, David Bernstein, David Kopel and Randy Barnett are engaging in victory lap devoted to the proposition “We were right and you were wrong, and the fact that you didn’t predict our being right demonstrates that you are particularly close-minded.”

Hoffman misses the point. The issue is not that we happened to be right and various liberal commentators were wrong, but that many of the latter couldn’t even concede the possibility that their opponents had a serious case. As I said above, the big mistake here was not merely thinking that the mandate would be upheld. Or if that was a big mistake, I was guilty too. The far more serious error was claiming that this was an easy slam dunk case for the federal government.

Later in his post, Hoffman suggests that the case is difficult to predict and that the details of arguments are unlikely to matter because it really all comes down to Justice Kennedy’s inscrutable vote. Maybe so. But if the anti-mandate lawsuit really were an easy slam dunk case for the Obama administration, it would never have come down to Kennedy’s potentially tie-breaking swing vote in the first place.

UPDATE #2: Hoffman responds further in an update to his post:

[T]here are at least two exculpatory possibilities that Ilya might want to address: (1) like Barnett pre-Raich, such commentators were trying to shape the narrative by displaying more confidence than they felt; and (2) constitutional scholars generally would prefer to avoid overly cynical public blog posts like this one, which make it seem like the Supreme Court is a political institution with no real commitment to precedent in most cases.

On the first point, there is no evidence that the liberal commentators who said the case was a slam dunk did not mean what they said, even if they also recognized some possible tactical benefit in saying it. And there certainly was no such benefit once several lower court decisions had struck down the mandate and most of the conservative and libertarian legal establishment also came out against it. At that point, showing contempt for the opposition’s arguments was more likely to alienate than attract any wavering conservative conservative Supreme Court justices. As for making “cynical” statements about the courts, constitutional law scholars do that all the time. And in any event, one did not have to be cynical to acknowledge what most of the lower court judges who upheld the mandate stated in their opinions: that this cases some novel issues and is therefore not a slam dunk for either side.

UPDATE #3: I should perhaps repeat what I have already said several times in various public statements since the oral arguments: It is not my belief that the Court will definitely or even probably strike down the mandate. I still think the case could easily go either way. Therefore I am not taking a “victory lap” in the sense of celebrating a favorable outcome in the Supreme Court. On the other hand, I think it is clear that the Court, like most lower court judges before it, is taking the issue seriously and does not regard it as a slam dunk.

I recently published an analysis of the individual mandate oral argument for the University of Pennsylvania Regblog site. It goes through all nine justices and assesses their probable views on the mandate based on both their oral argument performance and their previous records on federalism issues:

This week’s oral arguments before the Supreme Court shed some new light on how the justices are likely to vote on the constitutionality of the individual health insurance mandate contained in the Affordable Care Act (ACA). Overall, the arguments went well for the anti-mandate plaintiffs. But the ultimate result is still difficult to predict. Four justices seem likely to vote to strike down the mandate, while four others are likely to vote to uphold it. As the Court’s key swing voter, Justice Anthony Kennedy could potentially go either way.

The conservative justices zeroed in on the biggest hole in the pro-mandate argument: the likelihood that the federal government’s various rationales for the health insurance mandate would also authorize virtually any other mandate. This extension of congressional authority would undermine the basic constitutional principle that federal power is limited. As Justice Antonin Scalia put it, the key question is this: “What is left? If the government can do this, what else can it not do?”

Readers might also be interested in this podcast co-blogger Orin Kerr and I did for the Federalist Society. As the podcast shows, Orin and I continue to disagree about the merits of the case, but there does seem to be a lot of common ground between us on the implications of the oral argument.

National Review has posted a symposium on this week’s ACA oral arguments, with contributions by various conservative and libertarian pundits, policy experts, and legal scholars. The symposium includes short assessments of the argument by co-blogger Jonathan Adler and myself. Here’s an excerpt from my piece:

This week’s Supreme Court oral argument did not go well for the individual mandate. The conservative justices zeroed in on the biggest weakness in the pro-mandate case: the fact that the federal government’s rationales for the law would also justify virtually any other federal mandate, including laws forcing people to purchase broccoli, cars, or just about any other product. This undercuts the principle that the Constitution sets limits to the scope of federal power….

It is still far from certain that the plaintiffs will prevail. The federal government has numerous arguments intended to prove that this mandate is unique. If it can persuade just one of the conservative justices to accept just one of these theories, it can still win, since it is certain to get the votes of the four liberals. Nonetheless, the mandate is looking a lot shakier than many expected.

In all the hoopla over the individual mandate, most people (myself emphatically included) have not devoted enough attention to the other big Obamacare case before the Court: the 26 states’ challenge to to the part of the act requiring the states to massively expand Medicaid coverage (covering every non-elderly with an income up to 138% of the poverty line) or face the loss of all their federal Medicaid funds. Medicaid is a huge program that represents some 40% of all federal grants to state governments, according to the states’ brief. In cases such as South Dakota v. Dole, the Supreme Court has ruled that Congress has very broad discretion in imposing conditions on spending grants offered to states, but also warned that such conditions are unconstitutional if they are so onerous as to be “coercive.” What qualifies as “coercion” in this context? The Court has never favored us with an explanation, and the whole concept is murky at best.

In this case, the states’ strongest argument is that, if anything is “coercive,” it’s the threat of withdrawing such a massive proportion of all their federal funds, especially after the states have become dependent on Medicaid grants over a period of many years. If this isn’t coercion through funding conditions, it’ hard to see what is. On the other hand, as the federal government points out, it’s hard to draw a clear line here. And, if the states wanted to avoid dependency, they could simply have refused to participate Medicaid in the first place.

My interpretation of yesterday’s Medicaid oral argument is that there probably aren’t five votes to overturn this part of the law. The liberal justices strongly support the federal government’s position, while several of the conservatives are at the very least on the fence. I conjecture that the real purpose of the Court’s surprising decision to hear this case was to try to develop a clearer definition of what counts as “coercion” rather than a desire to invalidate this part of Obamacare. However, Lyle Denniston of SCOTUSblog – who is much more sympathetic to the federal government’s position than I am – thinks there is a good chance that the law will be struck down.

What should the Court do? I honestly don’t have a very clear answer. My own view is that the coercion test is both unclear and doesn’t have much basis in the text and original meaning of the Constitution. On that I tend to agree with the Court’s liberal justices. On the other hand, the Spending Clause only gives Congress the power to spend money for the purposes of providing for the common defense, paying the federal debt, and advancing the “general Welfare.” I think that the Court is wrong to interpret “general welfare” to include essentially anything that Congress thinks might potentially be beneficial. If that were correct, the power to spend for the common defense and the debts of the United States would be essentially superfluous. I developed this argument in more detail in one of my first academic articles back in 2002. The original meaning of General Welfare is much narrower, as is well explained in this article by John Eastman.

However, fully endorsing my approach or Eastman’s theory would require the Court to reverse important precedents and undercut major existing government programs on which both state governments and large numbers of people have become heavily dependent. It’s both unrealistic and undesirable for the Court to try to do something like that in one fell swoop.

I would therefore prefer for the Court to move incrementally in the direction of tightening up its definition of “General Welfare,” without massively disrupting long-established major existing programs. How best to do that is a very difficult question to which I don’t have any particularly good answer. Eastman, however, presents some interesting arguments about how the coercion theory can be used to bring us closer to the original meaning of “general Welfare” in his amicus brief in the Medicaid case. I tentatively think his approach is probably superior to the available alternatives. But I readily admit that I’m not really sure about how best to deal with this difficult conundrum.

Regardless, it will be interesting to see whether a majority of the justices can agree on a clearer definition of “coercion” and if so what it is.

Adam Teicholz of the Atlantic claims that the Volokh Conspiracy deserves much of the credit or blame for the possible upcoming defeat of the individual mandate in the Supreme Court.:

Blogs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges. At Volokh, Barnett and other libertarian academics have been debating and refining their arguments against the mandate since before the ACA was signed. At the beginning, law professor Jonathan Adler fleshed out the approach that came to typify the elite conservative response for the first months of the public debate: the Founders never intended for the Constitution to permit such broad federal power, but given New Deal-era precedent, the mandate, if it became law, would pass muster. Things changed on Volokh around the time that it became clear that an insurance mandate would be part of whichever health care reform package passed into law.

One congressional floor speech seemed to mark a tonal turning point for Volokh, the moment its writers realized their power to shape debate. On December 22, 2009, Democratic Senator Max Baucus quoted the post by Jonathan Adler mentioned above. Adler clearly resented that Baucus had taken his lawyerly evaluation of the case, stripped out the interesting part (that a pure reading of the Constitution weighs against the mandate, even if precedent weighs in its favor), and used it in a political context — and he responded on Volokh directly to the senator. If the world was going to use Volokh as a political tool, then he could, too. There followed months of posts by various Volokh bloggers, alongside increasingly sophisticated legal arguments, about just how reasonable, how comfortably within bounds the legal arguments against the mandate were. By the following year, a district court judge had cited Barnett in his opinion striking down health care reform, and Barnett himself had left behind his March 2010 conclusion that the Supreme Court would need to risk its credibility in a politically charged case, Bush v. Gore-style, to overturn the mandate.

I am flattered by this estimate of our influence. But there are a number of flaws in Teicholz’ account. First and foremost, it is simply not true that we all thought that the individual mandate would pass muster under current precedent until the exchange between Jonathan Adler and Senator Baucus led us to “realize [our] power to shape debate.”

We knew we had that “power” long before the Adler-Baucus debate. Several of us had influenced public debate through blogging previously. Eugene Volokh has had a lot of influence on public debate over free speech, gun rights, and other issues. Todd Zywicki’s excellent blogging about bankruptcy issues has been extremely influential for years. My own blogging about post-Kelo eminent domain reform and property rights has impacted debate over those issues, and led to invitations to testify before the U.S. Senate Judiciary Committee and other government bodies.

Randy Barnett believed that the individual mandate could not be justified under current precedent all along, which I think was also true of David Kopel. As for me, I always believed that the mandate was unconstitutional, but initially thought that it could be justified under the Supreme Court’s decision in Gonzales v. Raich (which I have long argued was wrongly decided). What changed my mind was a close re-reading of Raich with the individual mandate case specifically in mind. I obviously can’t speak for Jonathan Adler. But I suspect that the evolution of his views was similar.

Randy and I also initially believed that striking down the mandate would be more politically difficult for the Supreme Court than is likely actually to be the case. That’s because we (or at least I) failed to foresee that the mandate and the health care bill as a whole would remain so unpopular for so long. I’d like to think that some of that unpopularity was the result of our efforts. But the lion’s share was surely caused by other factors. If we really had the power to swing public opinion massively, I would long since have persuaded the public to oppose the War on Drugs and support legalization of organ sales.

Where we did have some influence is in debunking the myth that the constitutionality of the mandate was a no-brainer backed by an overwhelming consensus of expert opinion. But we could not have done that were we not 1) recognized academic experts on these issues ourselves, and 2) able to point to other well-known experts who also believed the mandate to be unconstitutional, many of them not VC-ers. The latter include such prominent constitutional law scholars as Richard Epstein, Steve Calabresi, Steve Presser, and Gary Lawson.

Randy, of course, played an especially vital role by developing crucial legal arguments that had a huge influence. But those arguments would have been of little avail if they could not persuade judges and other experts, as well as lay public opinion. The world is full of laws that are widely disliked, but have no chance of getting invalidated by a court because the arguments against them have no credibility with legal professionals.

Teichholz also errs in thinking that our arguments against the mandate fell by the wayside when the case reached the Supreme Court and the anti-mandate lawyers started using “better-trodden” arguments – implying that our points were mainly for the purpose of influencing the lay public. In reality, Tuesday’s oral argument overwhelmingly focused on the point that I and others here have been pushing for a long time: that the government’s rationales for the mandate lacks any logical limitations, and could therefore justify virtually any mandate of any kind. Several of the justices also suggested that the mandate is constitutionally dubious because it does not regulate any preexisting economic activity – the main argument that Randy has been emphasizing since 2009. Some of Justice Scalia’s questions on the Necessary and Proper Clause almost exactly mirrored the central point of an amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars (though I reiterate that I have no way of knowing whether he got the idea from my brief).

Finally, Teicholz writes as if it is somehow unusual for lawyers to be “waging this battle not only in the courtroom but in the court of public opinion,” suggesting that Randy’s dual role as lawyer and public advocate is particularly “unusual for an appellate lawyer.” In reality, two-track strategies in important constitutional cases are far from new. The abolitionist movement arguably pioneered this kind of approach in the 1840s and 1850s when they challenged the Fugitive Slave Act and other pro-slavery laws. The NAACP pursued a similar strategy since the early 1900s, as have feminists, environmentalists, the gay rights movement, gun rights advocates, property rights supporters and many others. Randy’s role is also far from “unusual” among lawyers involved in high-profile constitutional cases of this kind. As far back as the 1940s, Thurgood Marshall was both the lead appellate litigator for the cause of black civil rights and a major public spokesman for that cause. These historical precedents (many of them by left-wing movements) are what led me to suggest back in March 2010 that a similar strategy could work in this case.

What happened here is just one of many examples of conservatives and libertarians adapting strategies that were mostly pioneered by the political left. Such borrowing from the left is at the heart of much of what conservative and libertarian activists for legal change have achieved over the last thirty years. Ironically, some on the left don’t recognize the influence of their own tactics when they are adopted by adversaries. Perhaps they should recall that imitation is the sincerest form of flattery.

Yesterday, I pointed out that even many of the liberal Supreme Court justices were skeptical of arguments that the individual mandate qualifies as a tax under the Anti-Injunction Act, and suggested that this was not a good sign for the federal government’s claim that the mandate is a tax authorized by the Tax Clause of the Constitution.

Today’s oral argument directly considered the constitutional tax issue, and at least three of the four liberal justices – Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor – remain skeptical. Sotomayor suggested that the government’s Tax Clause argument is flawed because it has no “limiting principle.” Ginsburg again contended that the mandate is not a tax because it isn’t a “revenue-raising” measure. And Kagan pressed the Solicitor General on why it should be considered “irrelevant” that “Congress determinedly said, this is not a tax.” Needless to say, the conservative justices were no more supportive of the federal government’s Tax Clause claim than the liberals.

I don’t know who is going to win on the Commerce Clause and Necessary and Proper Clause questions. The plaintiffs’ position is looking pretty good. Still, I would not be surprised if the federal government managed to pull it out. But I am now quite confident that the feds are not going to prevail on the Tax Clause.

If Kagan and Sotomayor do end up concluding that the mandate is not a tax, that will be consistent with the views of the president who appointed them.

Today’s oral argument was a good day for the anti-mandate plaintiffs and a troubling one for the law’s defenders. I have long argued that the weakest point in the federal government’s case is the failure to provide a coherent explanation of why the rationale for the health insurance mandate doesn’t also justify virtually any other mandate Congress might impose (e.g. here and here). All of the conservative justices raised this exact issue during the course of today’s oral argument, with the exception of the usually silent Clarence Thomas, whom few doubt will vote to strike down. And none of them seemed satisfied with Solicitor General Donald Verrilli’s answers. This does not bode well for the mandate.

I was also very happy to see this exchange between Verrilli and Justice Scalia regarding the Necessary and Proper Clause:

JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.

The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all
this questioning has been about. What — what is left? If the government can do this, what — what else can it
not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this is a regulation -­

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that exists.

GENERAL VERRILLI: But it -­

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.

Scalia makes the key points that 1) a federal law must be both “necessary” and “proper” to be authorized by the Necessary and Proper Clause, and (2) a statute cannot be proper if the legal rationale for it would justify nearly unlimited federal power. These are exactly the arguments that we advanced in the amicus brief on this very issue that I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars.

I’m not saying that Scalia necessarily got the argument from us, or even that he read the brief. But whatever led him to take up this point, I’m very happy that he raised it. It is the key weakness in the federal government’s Necessary and Proper Clause argument, which is otherwise fairly strong – a weakness that the federal government almost completely ignored in their Petitioner’s brief for the Supreme Court. The federal government has tried to turn the Necessary and Proper Clause into a mere “necessary clause.” But, if Scalia’s views are any indication, the Supreme Court majority doesn’t seem to be buying.

As I explain in the amicus brief (pp. 28-29), this point also enables Scalia to distinguish his concurring opinion in Gonzales v. Raich, which many defenders of the mandate have been relying on. Raich did not address the issue of propriety. And in his concurring opinion in that case, Scalia emphasized (as he had in previous opinions) that “proper” is an independent limit on congressional power under the Clause, separate from necessity.

Before the oral argument, I thought that the plaintiffs had about a 30-40% chance of winning. I believed it was likely that the federal government would manage to persuade at least one conservative justice to buy one of their many “health care is special” rationales for the mandate. Now, I think the chances of the mandate being invalidated is at least 50%. The conservative justices just don’t seem to be biting on the “health care is special” hook.

On the other hand, it is still too early for mandate opponents to celebrate. The federal government has a whole raft of different “health care is special” arguments (I go through them and their weaknesses in Part I of this article). If the feds can persuade just one of the conservative justices to accept just one of these theories, they can still win. We certainly cannot rule out such a scenario. It could still easily happen. But unlike in high school debate, quantity of arguments in a major Supreme Court case is rarely a good substitute for quality. And the quality of the government’s “health care is special arguments” is at the very least highly suspect.

UPDATE: I have changed the original reference to “all five of the conservative justices” to exclude Clarence Thomas, who – as usual – did not ask any questions.