The Volokh Conspiracy

The CNN website has just posted a column I wrote on the individual mandate case. Here’s an excerpt:

This week, the U.S. Supreme Court considers the case challenging the Obama administration health care plan’s requirement that most Americans purchase a government-approved health insurance plan by 2014. The court should rule that this individual mandate is unconstitutional. To do otherwise would give Congress almost unlimited power….

If Congress could use [the commerce] clause to regulate mere failure to buy a product on the grounds that such inaction has an economic effect, there would be no structural limits to its power. Any decision to do anything is necessarily a decision not to do something else that might have an economic effect. If I spend an hour sleeping, I thereby choose not to spend it working or shopping. As the lower court decision in this case explained, the government’s position “amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life.”

The New York Times Room for Debate Forum has recently posted a set of short op eds by experts on both sides of the upcoming health care cases. My own contribution to the Forum is here. Here’s an excerpt:

The individual health insurance mandate case raises momentous issues about the limits of federal power. As James Madison put it, the Constitution does not give the federal government “an indefinite supremacy over all persons and things.” If the court upholds the mandate, that principle will be undermined.

The commerce clause gives Congress authority to regulate interstate commerce. Failure to purchase health insurance is not commerce, interstate or otherwise. Since the 1930s, Supreme Court decisions have interpreted the clause broadly. But every previous case expanding the commerce power involved some sort of “economic activity,” such as operating a business or consuming.

If Congress could use the clause to regulate failure to purchase insurance merely because that choice has economic effects, there would be no structural limits to its power.

To my mind, the most interesting piece in the Forum is Vanderbilt lawprof James Blumstein’s commentary on the unduly neglected Medicaid conditional funding case. This important issue deserves more attention than it has gotten so far.

The biggest weakness in the case for the constitutionality of the individual health insurance mandate is that it collapses into a rationale for virtually unlimited federal power. To deal with this problem, defenders of the mandate have put forward a variety of arguments claiming that health care is a special case.

The most popular one, recently restated by Walter Dellinger and Linda Greenhouse, is that health care is a special case because everyone or almost everyone uses it at some point in their lives. However, there is a serious flaw in this argument that mandate defenders have yet to find a way around. I have pointed it out several times over the last two years, including here:

The fact that most people eventually use health care does not differentiate health insurance from almost any other market of any significance. If you define the relevant “market” broadly enough, you can characterize any decision not to purchase a good or service exactly the same way. Notice that the government does not argue that everyone will inevitably use health insurance. Instead, they define the market as “health care.” The same bait and switch tactic works for virtually any other mandate Congress might care to impose.

Consider the famous example of the broccoli mandate raised by Judge Roger Vinson in the Florida case. Not everyone eats broccoli. But everyone inevitably participates in the market for “food.” Therefore, a mandate requiring everyone to purchase and eat broccoli would be permissible under the federal government’s argument. The same goes for a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. There are many people who don’t participate in the market for cars. But just about everyone participates in the market for “transportation.” We all need to get from place to place somehow. How about a mandate requiring all Americans to see the new Harry Potter movie? After all, just about everyone participates in some way in the market for “entertainment.”

Interestingly, Greenhouse unintentionally illustrates this point herself. As she puts it:

The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

Brussels sprouts and buses are indeed alternatives to broccoli and cars. But Brussels sprouts are still part of the food market, and buses part of the market for transportation, in the same way as health insurance and other forms of health care provision are both part of the health care market. Thus, people “who don’t want to buy broccoli or a new car” are still “in commerce” just like people who don’t want to buy health insurance.

You can use similar reasoning to justify virtually any other mandate. Every good that we might be required to purchase or use is part of some broader market that all or most of us will not avoid. How about a mandate requiring people to read and study Volokh Conspiracy blog posts? After all, everyone at least to some degree uses the market for “information.” And if you don’t get information from the VC, you are still likely to get it from other (surely inferior) sources.

As Jonathan Adler points out, it is not in fact true that everyone uses the health care market. A few people do manage to avoid it. By contrast, the market for food really is literally impossible to avoid for anyone who wants to remain alive for more than a short time. Even if you grow all your own food without using any tools purchased from others, you would still be engaging “economic activity” as the Supreme Court defines that term. Far from distinguishing this case from the broccoli mandate, the “everyone uses health care” argument actually provides stronger support for food purchase mandates than for the health insurance mandate.

Mandate defenders have also advanced several other rationales for why this is a special case. I give a detailed critique of them in this article, and in the amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars (pp. 22-28). These rationales all suffer from much the same weaknesses as the “everyone uses health care” argument: their reasoning can justify virtually any other mandate, including the broccoli mandate, the car purchase mandate, and others.

So far, all the king’s horses and all the president’s men have yet to figure out a way to make this mandate special again. Indeed, it’s noteworthy that the seriously flawed “everyone uses health care” argument remains the most popular of the different rationales for why the mandate is a special case. If the many outstanding lawyers and legal scholars on the pro-mandate side have not come up with anything better after two years of effort, that may indicate that no better argument is possible.

None of this will matter if the Court is willing to follow the lead of the D.C. Circuit, which upheld the mandate despite acknowledging that there are no limits to the federal government’s logic. But, like David Bernstein, I highly doubt that a majority of the Justices are going to endorse the notion that congressional power is essentially unlimited.

UPDATE: For some reason, this post was initially time-stamped a day earlier than it should have been. I have now fixed this problem.

For readers who may be interested, I will be on C-SPAN’s Washington Journal from 8 to 8:30 AM tomorrow to talk about the upcoming Supreme Court oral argument on the Anti-Injunction Act, and whether or not it precludes the individual mandate lawsuit. The AIA issue is somewhat technical. But it does tie in to one of the key constitutional questions at stake in overall individual mandate litigation: whether the mandate is constitutional because it is actually a tax. Although the Fourth Circuit ruled otherwise, most lower courts have concluded that the AIA does not apply to the anti-mandate lawsuits because the mandate is not a tax as that term is defined in the Constitution.

I might have instead appeared on Washington Journal on Tuesday to talk about the main individual mandate oral argument. But unfortunately I will be at an international academic conference in Montreal that day – ironically a conference focused on the question of whether judicial review in federal systems promotes nationalization or decentralization.

My wife and I saw the Hunger Games last night. I described the core plot of the Suzanne Collins book series on which the movie is based here:

In the far future, what’s left of a post-apocalyptic United States is ruled by a tyrannical central government (the “Capitol”) that oppresses and exploits twelve subordinate districts. Every year, each of the districts must send two teenagers (a boy and a girl) to participate in the Hunger Games, a nationally televised game show where they fight each other to the death until only one survives. The government uses the Games to entertain the public and divert their attention away from its oppressive nature, while also reminding the districts that any attempt at rebellion is doomed to failure. Main character Katniss Everdeen ends up in the Games after she volunteers to take the place of her younger sister, who was chosen in the selection lottery.

Overall, I thought the movie was extremely impressive. The first half – which covers the time before the contestants enter the Games arena – was almost letter-perfect. It effectively developed the characters, the tyranny of the Capitol, and Collins’ critique of “reality TV,” of which The Hunger Games is an effective parody.

There were, I thought, a few problems in the second half, which portrays the actual combat in the arena. The filmmakers cut key conversations between characters without which certain plot developments don’t make as much sense as they do in the book. But these flaws are relatively minor in scale.

They certainly don’t outweigh the film’s many strengths. Perhaps the most significant is the way the filmmakers managed to translate the story onto the screen without being able to rely on Katniss’ internal monologues, which convey many of the most important elements of the story in the book. Also, Jennifer Lawrence is very good in the lead role of Katniss, and I thought the other actors were effective, as well.

As for the much-debated political message of the series, it is just as ambiguous in the movie as in the books. However, this movie only covers the first of the three volumes, and the later ones get into political issues more.

This movie did benefit from the fact that The Hunger Games is easily the strongest of the three novels in the series. The producers face a more difficult challenge when it comes time to make the two sequels, where the series’ shortcomings are more evident. Still, this is an excellent beginning.

I don’t have time right now to say anything in-depth about the latest developments ongoing Cato Institute vs. Koch conflict. And, in any event, my view of the situation has not changed: I still think that all concerned would be better off if the Kochs were willing to drop their suit. But for those who may be be interested, I largely agree with co-blogger Jonathan Adler’s take on both the Kochs’ most recent statement and the dispute as a whole.

In a comment on my recent post on public opinion and the individual mandate case, University of Richmond law professor Kevin Walsh suggests that the anti-mandate forces might need sympathetic plaintiffs in order to prevail in the court of public opinion:

Some say that the challengers to the individual mandate can win even if they lose on the merits. That is, they can win the broader battle for public opinion even if they lose in the Supreme Court. I think that’s right. This kind of win is a common goal of public impact litigation. But the strategy thus far pursued by the mandate challengers differs from the strategy one often sees in such litigation. A typical strategy focuses on real people and the effect of the challenged rule on them. Not so the individual mandate challenges.

In a recent post at The Volokh Conspiracy (“Public Opinion, the Individual Mandate, and the Supreme Court”), Ilya Somin compares the potential backlash that could be generated by a Supreme Court decision upholding the constitutionality of the mandate with the backlash generated by the Kelo case. The Supreme Court held in Kelo that government can use its power of eminent domain to take the property of an individual for use in a private party’s redevelopment efforts. The idea was that this would serve a “public use” by generating more tax revenue. One of the strategies of the challengers in Kelo was to highlight the plight of a particular individual, Susette Kelo, showing how the government was going to affect her life by taking her house away.

Contrast this strategy with that pursued by the individual mandate challengers. They have focused on the deprivation of liberty inherent in being ordered by the federal government to enter into, and stay in, an economic relationship with another private party. But this focus has not involved real people. Perhaps understandably, the mandate challengers have thus far chosen not to focus on the plight of particular individuals….

It’s certainly true that sympathetic plaintiffs are always helpful for public relations. But they are not essential. The anti-mandate forces are winning the public relations battle even without them, as we can see from polls showing that the vast majority of the public wants the Court to strike down the mandate. Sometimes, focusing on general principles is as much or more effective than focusing on tearjerking individual stories.

This is not the first major constitutional case in which the plaintiffs’ lawyers managed to win in the court of public opinion while downplaying the individual stories of their clients. As co-blogger Dale Carpenter shows in his excellent recent book on Lawrence v. Texas, the lawyers in that case deliberately shielded their clients from public scrutiny in large part because they were likely to seem unsympathetic to the public (both men had criminal records for minor offenses, they were not in a longterm relationship with each other, and they quite likely did not actually have sex the night they were arrested).

By focusing on the general principle that it is wrong for the government to prosecute people for consensual gay sex, the pro-gay rights side in Lawrence managed to win over the majority of the public, as well as the Supreme Court justices. The anti-mandate forces are trying to pull off a similar victory by focusing on the general idea that it is dangerous to give Congress a blank check to enact whatever mandates it wants. This strategy has been very successful with the general public, though it remains to be seen whether it will work with the justices.

Walsh also argues that the diverse circumstances of individual plaintiffs justify 6th Circuit Judge Jeffrey Sutton’s approach of barring facial challenges to the mandate and instead forcing plaintiffs to make individual as-applied challenges. I criticized Sutton’s theory in detail in this post.

UPDATE: Timothy Sandefur of the Pacific Legal Foundation points out that at least some of the anti-mandate cases do have sympathetic plaintiffs:

Prof. Kevin Walsh thinks opponents of the Individual Mandate should have found a sympathetic client. How about PLF client Matt Sissel?

A decorated Iraq War veteran (a Medic, incidentally) as well as an entrepreneur and a talented artist, Matt started a business to sell portraits and other artwork. He doesn’t buy health insurance because it doesn’t make financial sense for him to do so, given his other financial commitments, his health, and so forth. But thanks to the Mandate, he’s forced to buy insurance he doesn’t need with money that would be better spent growing his business, in order to subsidize insurance companies, who are, in turn, forced to provide insurance to people who are already sick.

Sissel tells his own story here. He certainly seems like a sympathetic plaintiff to me.

Sissel’s case, of course, is not the one before the Supreme Court right now. But one of the plaintiffs that is before the Court is the National Federation of Independent Business, the nation’s largest small business organization, which likely has members who are small businesspeople that find themselves in a situation similar to Sissel’s.

Today is the premier of the Hunger Games movie, and debate continues over the political message of the book series by Suzanne Collins on which the movie is based. Last week, I commented on conservative blogger James Delingpole’s claim that the the series promotes a pro-Tea Party, antigovernment ideology. In my view, there are multiple plausible interpretations of the series’ politics, including left-wing ones. I think Delingpole may have been reading his own views into the book, just as more left-wing readers could plausibly do the same with theirs.

However, it’s worth noting that Delingpole is not the only one who thinks that The Hunger Games promotes a Tea Party-like ideology. Liberal Slate commentators Emily Bazelon and David Plotz advanced the same interpretation back in 2010. So does Bernie Quigley at The Hill. This Tea Party-aligned site describes both left-wing and conservative interpretations of the series.

For now, I’m sticking to the view I outlined in my last post on the subject:

Collins does indeed convey a very skeptical view of government. Not only the Capitol but even the government promoted by its opponents turns out to be tyrannical, which suggests that the flaws of government are institutional and not merely the result of the wrong leaders being in power. However, it is far from clear that Collins promotes libertarianism or Tea Party-like conservatism as the solution to this problem.

Moreover, a left-wing interpretation of the series’ politics is at least as plausible as Delingpole’s is. The “sybarite class” of the Capitol and their oppression of the twelve districts can be seen as a classic leftist parable of the oppression of the poor by the rich. The game show-like nature of the Hunger Games can be interpreted as an indictment of commercialism. And perhaps the true way forward for Panem is a government that cracks down on commercialism, redistributes wealth to the poor, and gives everyone free food and health care.

The series is subject to such widely disparate interpretations in part because Collins’ world-building is relatively weak. We don’t learn very much about the political and economic system of Panem, and some of what we do learn is internally inconsistent. We don’t even know whether Panem’s economy is primarily capitalist or socialist.

However, it’s interesting that commentators on different sides of the political spectrum have all discerned an anti-government and anti-centralization message in The Hunger Games. As a libertarian decentralizer myself, part of me hopes that the series’ millions of young fans came away with the same impression, even if it is not the most accurate possible interpretation of the text.

Obviously, politics is not the only or even the most important interesting element of The Hunger Games. In my view, the series’ real strength is in its drama and characterization. But it’s still interesting to consider the political themes of such a popular series, one that may have at least some effect on the worldviews of millions of readers.

All of the above analyses of the politics of The Hunger Games are based on the books. Perhaps the movie has a different – or at least clearer – political message. If time permits, I hope to write a review sometime in the next few days, after I see it.

UPDATE: I am well aware, as some readers have pointed out, that Suzanne Collins has made various public statements about what inspired her to write the series. The most thorough is probably this April 2011 interview with the New York Times. But Collins is very vague about the book’s political message, and in any event a work of literature often has a meaning that goes beyond the specific intentions of the author. Even if you endorse the original intent approach to constitutional interpretation, you don’t necessarily have to apply the same theory to literary interpretation. The two enterprises have very different purposes.

Earlier today, UC Davis lawprof Vikram Amar and I were on a KQED NPR radio program discussing the individual mandate litigation. Amar believes that the Court should uphold the mandate whereas I, of course, do not. The audio is available here:

One thing I notice about these radio exchanges is that there is a tremendous advantage to whoever gets to respond to a question last. Both Amar and I were more effective when we got to respond after the other, in large part because that position allows you to rebut whatever the other person said, as well as make your own points. That said, I think we at least did a fairly good job of laying out some of the major arguments on both sides.

Linda Greenhouse and Dahlia Lithwick have attempted to resuscitate the claim that the individual mandate is so obviously constitutional that only ignorance or political bias can lead anyone to believe otherwise.

Such claims were perhaps understandable back when this litigation began. But even then, there was no expert consensus on the constitutionality of the mandate. They are even more dubious now, after several lower court decisions have ruled against the mandate. Even the decisions upholding it all acknowledge that the case raises novel issues. And all of them spend many pages explaining their reasoning, which is not what you would normally see in an easy open and shut case.

It’s also worth noting that many leading constitutional federalism scholars believe that the law is unconstitutional, including Gary Lawson (one of the top experts on the Necessary and Proper Clause), Steve Calabresi (who is one of the legal scholars who signed on to the amicus brief I wrote for the Washington Legal Foundation), Richard Epstein, and, of course, co-blogger Randy Barnett. If the case were an easy one, we would not have such a deep division among legal experts and jurists.

You can say that the experts who think the mandate is unconstitutional are just politically biased. But of course the same charge can be levied at Greenhouse, Lithwick and the overwhelming majority of commentators on the other side. Greenhouse makes much of the fact that two conservative judges have voted to uphold the mandate. But a Democratic-appointed judge – Frank Hull of the 11th Circuit – has voted to strike it down. These exceptions do not change the fact that the overwhelming majority of conservative and libertarian experts believe that the law is unconstitutional, while the overwhelming majority of liberal ones believe the opposite. Such ideological polarization among experts is actually yet another sign that the issue is not an easy one. If it were, we would be more likely to see an expert consensus developing.

Greenhouse and Lithwick’s argument is not helped by the various factual and analytical errors they make in their pieces. Ed Whelan catalogues them here and here. Perhaps the most important is Greenhouse’s fallacious assertion (seemingly endorsed by Lithwick) that the plaintiffs’ argument is “Basically just one word…: “unprecedented.” In reality, the plaintiffs have never argued that the unprecedented nature of the mandate by itself proves that it is unconstitutional. Rather, their brief repeatedly emphasizes that the main reason to strike down the mandate is that there is no logical way to uphold it without giving Congress virtually unlimited authority to impose other mandates. So far, the federal government has failed to come up with any limiting principle that proves otherwise, as I explain in some detail in this article. If the federal government loses this case, it will be because of that failure, not because only ignorant or politically biased people can believe that law is unconstitutional. As David Bernstein puts it, the Court majority is not going to buy the notion of a “Congress-can-do-whatever-it-wants power.”

Greenhouse also claims that Gonzales v. Raich and United States v. Comstock clearly dictate the outcome of the mandate case. She does not even consider ways in which these cases differ from the mandate issue, which I described here and here. As I explained in the WLF amicus brief, some elements of Comstock actually help the anti-mandate plaintiffs. Ironically, Greenhouse previously cited my article explaining why Comstock does not dictate the outcome of the mandate case as evidence that even “critics of the newly enacted health care law” believe that Comstock requires the mandate to be upheld.

I do not mean to suggest that there isn’t a substantial case in favor of the constitutionality of the mandate. Some of the law’s defenders have made serious and insightful arguments on its behalf (e.g. Brian Galle, Neil Siegel, and my former colleague Max Stearns). The Supreme Court’s precedent on the relevant issues is complex and unclear enough that both sides can make a good case for their position. In my view, the anti-mandate side does have an overwhelming advantage under the text and original meaning of the Constitution. But textualism and originalism are not, and probably cannot be, the only interpretive methodologies used by the courts.

Be that as it may, public debate over this important issue is not improved by claims that the case for the mandate is so obviously right that no informed person can reasonably disagree with it.

UPDATE: I have changed my original description of 11th Circuit Judge Frank Hull as “liberal” to “Democratic-appointed,” because I recognize that there is disagreement over the nature of her judicial philosophy. I don’t think that this significantly affects my underlying point in that part of the post, which is that this case has split expert opinion largely along ideological lines.

The Supreme Court today issued a unanimous decision in favor of the property owners in the important case of Sackett v. EPA [HT: GMU law student Matthew Roberts]. The opinions in the case (an opinion for the court and two concurring opinions by Justices Ginsburg and Alito) are available here. Justice Alito’s concurring opinion includes a particularly clear description of what was at stake:

The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees.

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

The Court bases its decision on statutory grounds, ruling that the property owners are entitled to judicial review of their case under the Administrative Procedure Act. It therefore did not reach the issue of whether such review is also required by the Due Process Clause of the Fifth Amendment, which states that the government may not deprive individuals of life, liberty, or property without due process of law. The scope of the decision is therefore limited. And, as Justice Alito goes on to explain, “the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.” He urges Congress to clarify the scope of the CWA so that property owners will at least have a clearer indication of the scope of EPA authority over their land. Despite these limitations, the decision is a significant victory for property rights, and a rare case of unanimity on an important property rights issue.

I leave it to others to debate whether it is appropriate for a Supreme Court justice to urge Congress to clarify the law in one of his opinions. But it’s worth noting that this is not the first time such a thing has happened. Justice Ruth Bader Ginsburg famously urged Congress to reverse the Court’s interpretation of Title VII of the Civil Rights Act in her dissent in the Lily Ledbetter case.

UPDATE: As co-blogger Orin Kerr pointed out in this 2007 post, Justice Ginsburg later stated that one purpose of her dissent in Ledbetter was “”to attract immediate public attention and to propel legislative change.”

Like me, conservative National Review columnist Jonah Goldberg has a generally favorable take on Yale Law Professor Heather Gerken’s progressive case for federalism:

A one-size-fits-all policy imposed at the national level has the potential to make very large numbers of citizens unhappy, even if it was arrived at democratically…..

Pushing government decisions down to the lowest democratic level possible — while protecting basic civil rights — guarantees that more people will have a say in how they live their lives. Not only does that mean more people will be happy, but the moral legitimacy of political decisions will be greater.

The problem for conservative and libertarian federalists is that whenever we talk about federalism, the Left hears “states’ rights” — which is then immediately, and unfairly, translated into, “Bring back Bull Connor.”

But that may be changing. In an essay for the spring issue of Democracy: A Journal of Ideas, Yale law professor Heather K. Gerken offers the case for “A New Progressive Federalism.”

Gerken’s chief concern is how to empower “minorities and dissenters.” Not surprisingly, she defines such people in almost purely left-wing terms of race and sexual orientation. Still, she makes the very compelling point that the current understanding of diversity — having minority members as tokens of inclusion — pretty much guarantees that racial minorities will always be political minorities as well…

Allowing local majorities to have their way, Gerken continues, “turns the tables. It allows the usual winners to lose and the usual losers to win. It gives racial minorities the chance to shed the role of influencer or gadfly and stand in the shoes of the majority.”

She’s right, and not just about her favored groups. For instance, Mormons (not a group Gerken highlights) are a national minority. But they are a Utah majority. Hence, Utah takes on Mormon characteristics. It’s no theocracy, but it is more representative and distinctive. In areas where Latinos or blacks are the majority, what’s so terrible about having institutions that reflect their values?

Whereas I think Gerken sometimes doesn’t give federalism enough credit, Goldberg sometimes gives it too much. For example, he ignores the problem that federalism is often ineffective in protecting the rights of immobile people and rights to immobile assets, such as property rights in land.

Be that as it may, Gerken’s progressive defense of federalism continues to get favorable notice in conservative and libertarian quarters (see also this comment by libertarian Damon Root). It will be interesting to see whether it will be equally well received by the intended left of center audience. There is already this moderately favorable piece in the Nation.

In a recent post, co-blogger Orin Kerr suggests that polls showing the unpopularity of the individual health insurance mandate prove that slippery slope concerns about upholding the mandate case may be unfounded, because “mandates are just political losers.”

Some mandates are indeed political losers. But as I explain in the forthcoming article that Orin kindly linked to, the federal government’s rationales for the health insurance mandate open the door to almost every other conceivable mandate. In that vast universe of possibilities, there are going to be some political winners, including some that are likely to cause serious harm. There are numerous industries that would love to lobby for laws requiring people to buy their products. And at least some of them will achieve political success if the Court gives Congress a blank check to impose whatever mandates it wants. Even if only a small percentage of these possible mandates are ever enacted, the absolute number of political winners might turn out to be substantial.

Some mandates may go through because their supporters can effectively portray them as public health measures, efforts to stimulate the economy, or otherwise beneficial to the public. Others might succeed because much of the public is simply unaware of thema due to political ignorance. People may well not be aware of a mandate imposed on them, either because they happen to already be in compliance or because it is only selectively enforced. The minority who do get penalized for violating such a mandate will eventually become aware of it, of course. But they may not have enough political clout to get it abolished.

Orin says that mandates are likely to be unpopular because “[n]o one likes to be told what to do.” This is true to some extent. However, many people do like to tell others what to do, especially if they believe that those others are making poor decisions. That’s why many paternalistic policies are political winners.

The health insurance mandate is an unusual case for a variety of reasons. It was part of a major new law that dominated the headlines for many months. Most other mandates are unlikely to attract so much public scrutiny. In addition, precisely because it was part of such a massive bill addressing an important issue, the health insurance mandate quickly became a major focus of partisan conflict. Most legislation is far less controversial, and leads to far less political countermobilization, if any. Finally, the “adverse selection” policy rationale for the mandate is complex and difficult to explain to voters with little knowledge of economics and public policy. For these reasons, and perhaps others, the unpopularity of the health insurance mandate is likely to be a poor predictor of the politics of future mandates.

Lastly, I would emphasize that the unpopularity of the individual mandate was not enough to keep it from getting enacted in the first place. It was not enough to keep President Obama from supporting it, despite the fact that he had earlier denounced the idea as comparable to trying “to solve homelessness by mandating everybody to buy a house.” And if the Court upholds the mandate, it’s far from clear that it will ever be repealed. Sometimes, even an unpopular mandate can be a political winner.

John Samples of the Cato Institute has an interesting recent piece on the conflict between Cato and the Kochs [via Gene Healy]:

The politically engaged have offered much commentary on the conflict over the future of the Cato Institute. Some prominent people on the left have spoken of their respect for the current Cato. In today’s polarized political world, an endorsement from the left often serves as a negative signal to conservatives. That reaction would be a mistake. Conservatives have something at stake in the continuation of Cato.

What is the issue here? Each reader will reach his or her own conclusions based on the evidence we have about the Kochs’ intentions in this takeover attempt. I would suggest that we look at the big picture about the recent development of think tanks. A few years ago a number of wealthy liberals including George Soros decided to contribute considerable sums to a new think tank. They deemed the old liberal think tanks (e.g. Brookings) ineffective and too removed from politics. They sought instead a think tank engaged with daily partisanship, grassroots mobilization, and electoral politics….

[T]he conservative will immediately recognize that the Kochs are proposing a “new model” think tank to replace the “old school” Cato. Of course, the conservative will not oppose all innovations though he will always insist on repair rather than reconstruction. But the conservative will ask, “What exactly needs repair here? What reasons counsel innovation at Cato?” Under Ed Crane, the Cato Institute has built a strong reputation for principled engagement in public policy….

[A] more partisan Cato wouldn’t necessarily further conservative ends of principled limits to government power. I am particularly concerned about an issue area I have worked in for over a decade: campaign finance regulation. It is true that the Republican party has supported the First Amendment by and large in these matters. However, partisanship sometimes requires divergence from principle. After all, the GOP is a party that seeks to win elections, a goal that might be served by restrictions on campaign finance. Indeed, the Republicans have supported a ban on political action committees and more recently, congressional Republicans tried to prohibit 527 committees when it served their electoral purposes….

The Koch brothers have done much to advance the cause of individual liberty and limited government. The “new model” they propose for Cato, however, is an innovation whose utility conservatives should doubt. The “old school” Cato has done much to raise doubt about Progressivism among Americans with an independent outlook. It has also contributed (and will contribute) to the valiant effort to preserve the core values of the American tradition. The conservative will wonder why such an institution should be cast aside in the pursuit of the latest political fad, an innovation fostered by none other than George Soros. On this matter at least, the conservative will judge the Kochs to be all too progressive.

I have myself commented on this issue several times, including here and here. I noted my various ties to the two sides in the dispute here.

Senior Conspirator Eugene Volokh will be speaking at George Mason University School of Law at 4 PM this Wednesday in Room 121, in a talk organized by the GMU Federalist Society. The topic will be slippery slopes, the subject of my personal favorite among Eugene’s many excellent articles. The issue is a very timely one, given that the individual mandate case is scheduled to be argued before the Supreme Court next week. Both sides in the case have advanced various slippery slope arguments, which I assessed in this article.

I will be commenting on Eugene’s presentation, so this will be a rare coming together of the East and West Coast branches of the Conspiracy. Welcome to GMU, Eugene!

This Thursday at noon, I will be speaking at the University of North Carolina Law School on “Property Rights Since Kelo.” 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. University of North Carolina law professor Carol Brown – a leading expert on the impact of eminent domain on low-income and minority communities – will comment on my talk, which is sponsored by the UNC Federalist Society.

This may be one of the few events at UNC Law School over the next few days that does not involve either the NCAA tournament or the individual mandate litigation!

Co-blogger David Bernstein links to a New York Times column by Thomas Chatterton Williams which argues that “[m]ixed-race blacks have an ethical obligation to identify as black — and interracial couples share a similar moral imperative to inculcate certain ideas of black heritage and racial identity in their mixed-race children, regardless of how they look.” He justifies this by the moral imperative of overcoming the legacy of anti-black racial oppression, claiming that “the black community can and does benefit directly from the contributions and continued allegiance of its mixed-race members, and it benefits in ways that far outweigh the private joys of freer self-expression.”

Such claims are not unusual. We often hear arguments that blacks, Jews, and members of other racial and ethnic groups have special obligations to their fellow group members. But there is no good justification for such claims. No one has a special moral obligation to another person merely because they happen to share the same race or ethnicity. Do I have a special moral duty to other whites or other Russian Jews that does not extend to nonwhites or gentiles? For reasons well articulated by Randall Kennedy, I reject any such notion.

Williams’ argument in regards to blacks has superficial plausibility because blacks have been victims of major historic injustices in this country. But it is not clear why other blacks – or mixed-race individuals – have a special obligation to combat those injustices that is greater than that of other people. If anything, the duty to combat an injustice falls most heavily on those who inflicted it – who, in this case, were mostly white.

Even if we accept Williams’ notion that interracial parents should consider the benefits to the “black community” from the contributions of “mixed-race parents,” how does he know that those benefits really do “outweigh the private joys of freer self-expression?” For many people, living their lives unburdened by a sense of tribal loyalty is a very important good.

Furthermore, it is not clear why mixed-race people should necessarily choose to “contribute” to one racial “community” rather than another. It is true that the black community has a history of great injustice. But other communities can make similar claims. Asian-Americans, for example, also have a history of victimization in this country. Under Williams’ criteria, it is far from clear that the children of a black-Asian couple have a duty to identify as black rather than Asian.

Or consider my own situation. I am a Russian Jew married to a gentile. When it comes to comparative victimology, Russian Jews are formidable contenders. There is the history of severe discrimination and pogroms under the czars, official anti-Semitism under the Soviets, and of course the Holocaust. Do I therefore have an obligation to raise my future children to identify as Russian Jews? Maybe. But on the other hand, my wife is half-Ukrainian (her grandfather fled Ukraine in 1919). Ukrainians have their own history of oppression, including a massive terror famine inflicted by the Soviet government in the 1930s, and years of repression under both the czars and the communists. Does the Ukrainian claim to my children’s “contributions” outweigh that of the Jews? What criteria should my wife and I apply in judging the question?

Finally, we should recall that many of the historic injustices noted above occurred precisely because people thought they had special moral obligations to their racial and ethnic compatriots and therefore felt justified in oppressing other groups for the supposed benefit of their own. This is what makes nationalism so pernicious, and racial and ethnic loyalty often creates similar dangers. Perhaps we can all make a greater contribution to society if we teach the next generation not to define their moral obligations in terms of race or ethnicity.

That is not to say that we have to ignore racial and ethnic injustices. But addressing them does not require us to define our own moral duties in racial and ethnic terms. As Randall Kennedy puts it:

[I]f one looks at the most admirable efforts by activists to overcome racial oppression in the United States, one finds people who yearn for justice, not merely for the advancement of a particular racial group. One finds people who do not replicate the racial alienations of the larger society but instead welcome interracial intimacy of the most profound sorts. One finds people who are not content to accept the categories of communal affiliation they have inherited but instead insist upon bringing into being new and better forms of communal affiliation, ones in which love and loyalty are unbounded by race.

A recent Washington Post/ABC poll shows that 68% of the public want the Supreme Court to strike down the individual health insurance mandate. That includes 42% who want the Court to invalidate the entire Affordable Care Act and 26% who want it to strike down the mandate alone. If forced to choose, 52% of those who want the Court to strike down only the mandate would prefer for the Court to get rid of the entire law, if that is the only way to rule the mandate unconstitutional. That means that some 55% would rather have the Court invalidate the entire law than leave the mandate in place. By a 52-41 margin, respondents in the WP/ABC poll also say that they disapprove of the health care law overall.

Support for invalidating the mandate cuts across ideological lines, with even a slight 48-44 plurality of Democrats saying they want the court to strike it down. These results are similar to those reached in other recent polls on the constitutionality of the mandate.

These poll results do not prove either that the law is unconstitutional or that the justices are necessarily going to rule the way the public wants. The public’s knowledge of constitutional law is weak, and the justices don’t always rule in accordance with public opinion.

However, the overwhelming public support for striking down the mandate does suggest that if a majority of the Court wants to invalidate this law, they probably won’t be prevented from doing so by fear of a political backlash. Usually, the Court hesitates to strike down major legislation strongly supported by the president and his party because doing so could result in a political confrontation that the Court is likey to lose, as happened during the New Deal period. In this case, however, strong public opposition to the mandate – along with extensive opposition in Congress – insulate the Court from any such backlash. The situation is in sharp contrast to what happened in the 1930s, when many of the laws struck down by the Court had broad bipartisan support.

The situation is also different from what happened after the Citizens United decision in 2010, the most recent Supreme Court ruling that generated extensive public opposition. In that case, The Court endorsed a result contrary to majority opinion, though I believe it was a correct one.

In fact, the Court could well generate greater public anger if it upholds the mandate than if it strikes it down. Many more people want the law struck down than want the Court to uphold it. As the case of Kelo v. New London dramatically demonstrates, public outrage can be stimulated by a decision upholding an unpopular law just as readily as by striking down a popular one.

The Hunger Games, a hugely popular series of science fiction novels by Suzanne Collins, is coming out as a major movie next week. At Ricochet, James Delingpole argues that the series has a strong Tea Party-esque antigovernment message.

I summarized the plot here:

In the far future, what’s left of a post-apocalyptic United States is ruled by a tyrannical central government (the “Capitol”) that oppresses and exploits twelve subordinate districts. Every year, each of the districts must send two teenagers (a boy and a girl) to participate in the Hunger Games, a nationally televised game show where they fight each other to the death until only one survives. The government uses the Games to entertain the public and divert their attention away from its oppressive nature, while also reminding the districts that any attempt at rebellion is doomed to failure. Main character Katniss Everdeen ends up in the Games after she volunteers to take the place of her younger sister, who was chosen in the selection lottery.

Here is Delingpole’s interpretation of the series’ message:

America, the near future. So vast and controlling and all-powerful has grown the DC political machine that the country at large is now just a collection of vassal states whose cowed, servile populations exist solely to provide goods and services to the grotesque sybarite class in the Capitol. In this future, the free market has been all but abolished – which is why, of course, starvation is rife and shortages are endemic. Only on the black market does free trade still survive. It’s illegal but it’s the only place where you can haggle for sufficient food – mostly game poached at great personal risk – to keep your family alive….

The Hunger Games is probably the best education any child can get into the horrors of Big Government and the tyranny and injustice of statism. It’s impossible to read this book and not come away thinking like a Tea Partier.

Actually, the series seems to be set much later than the near future, probably at least a century or two from now (the books are not very clear on this, but all the clues we get point to a large amount of time passing, to the point where the old America has been almost completely forgotten).

More importantly, I am not sure that Delingpole’s interpretation of the series’ politics is correct. Collins does indeed convey a very skeptical view of government. Not only the Capitol but even the government promoted by its opponents turns out to be tyrannical, which suggests that the flaws of government are institutional and not merely the result of the wrong leaders being in power. However, it is far from clear that Collins promotes libertarianism or Tea Party-like conservatism as the solution to this problem.

Moreover, a left-wing interpretation of the series’ politics is at least as plausible as Delingpole’s is. The “sybarite class” of the Capitol and their oppression of the twelve districts can be seen as a classic leftist parable of the oppression of the poor by the rich. The game show-like nature of the Hunger Games can be interpreted as an indictment of commercialism. And perhaps the true way forward for Panem is a government that cracks down on commercialism, redistributes wealth to the poor, and gives everyone free food and health care.

The series is subject to such widely disparate interpretations in part because Collins’ world-building is relatively weak. We don’t learn very much about the political and economic system of Panem, and some of what we do learn is internally inconsistent. We don’t even know whether Panem’s economy is primarily capitalist or socialist. Are the coal mines mines where most of District 12′s population works owned by the government or by private firms? We are never told.

Contra Delingpole, District 12 does seem to have some private small businesses that operate legally (e.g. – Peeta Mellark’s father owns a bakery), as does the Capitol (we see a few of them in the third book). Therefore, private enterprise has not been completely relegated to the black market. But there certainly is a substantial black market sector, and it is not clear whether there are any large privately owned enterprises, either in the districts or in the Capitol.

Equally striking, we don’t see any evidence of an official ideology propagated by the government, other than the idea that resistance to the rule of the Capitol is futile. Virtually all real world dictatorships do in fact rely on ideology to stay in power as well as the threat of force. Indoctrination doesn’t persuade everyone, but it is often at least partially effective in helping an oppressive regime stay in power. In addition to being unrealistic, the absence of an official ideology makes it difficult for readers to figure out what kind of political and economic system the Capitol has established. The Capitol’s opponents also lack a clear ideology (though Collins gives us a few more hints here than on the side of the Capitol).

The Hunger Games would have been better if it had greater depth and realism in its political setting. On the other hand, the series does have some great characters and psychological development, and is mesmerizing despite its flaws. And, as Delingpole’s interpretation demonstrates, the thinness of Collins’ world-building allows both right and left-wing readers to read their own ideas into the story. This may contribute to its popularity.

UPDATE: I have restructured this post somewhat to make it more clear.

Tommorrow from noon to 1 PM Pacific time (3-4 Eastern), I will be appearing on Bob Zadek’s talk radio show in San Francisco to talk about the gay marriage litigation and other related issues. Zadek is a libertarian political commentator and lawyer who hosts a weekly talk show devoted to various political and legal issues. Details on how to listen and call in are available here, including a way to listen through the internet if you are in the San Francisco area.

For my argument that bans on gay marriage are constitutionally suspect because they discriminate on the basis of sex, see here and here. In this series of posts from 2008-09, I explained why gay marriage lawsuits (at least at the state level) have been a net plus for the cause of gay rights, despite the political backlash that they generated.

We will likely discuss both questions during the show, as well as others, such as whether or not government should be involved in the business of defining marriage at all.

The Hill has a story claiming that the federal government has changed its defense of the individual mandate to emphasize the Necessary and Proper Clause more:

The Obama administration has shifted its legal arguments as it prepares to defend the president’s healthcare law before the Supreme Court.

Written briefs in the landmark case increasingly have focused on a part of the Constitution that didn’t get much attention in lower courts….

The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers.

The federal government has in fact relied on the Necessary and Proper Clause throughout the litigation in the lower courts. So at most this is a shift of emphasis rather than substance. The actual logic of the argument is essentially the same as in the lower courts. And every lower court decision striking down the mandate has in fact considered and rejected the government’s Necessary and Proper Clause reasoning; the lower court decisions upholding the mandate largely ignored the issue because they concluded that the mandate could be justified under the Commerce Clause alone.

If the Obama Administration has decided to emphasize the Necessary and Proper Clause argument more, it is remarkable that their brief for the Supreme Court case almost completely ignores the biggest weakness in that argument: the possibility that the mandate is not “proper” even if it is “necessary.” Both Supreme Court precedent and the text and original meaning of the Constitution make clear that these are two separate requirements, both of which must be met. Yet the government’s approach to the case essentially transforms the Necessary and Proper Clause into the “Necessary Clause.” The amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars focuses on this very issue. It explains in detail why the mandate is not “proper” and therefore cannot be justified under the Necessary and Proper Clause even if it is “necessary.”

UPDATE: The Hill article speculates that the government’s emphasis on the Necessary and Proper Clause may be an effort to attract Justice Scalia’s vote. If so, it is worth noting that Scalia has repeatedly emphasized in previous opinions that propriety is a requirement distinct from necessity which imposes constraints on congressional power even in cases where the challenged federal law may be “necessary.” I discuss Scalia’s opinions in this field in the Washington Legal Foundation brief (pp. 13-14).

For readers who may be interested, C-SPAN has posted the video of my recent debate on the individual mandate litigation with Andrew Pincus of Mayer Brown, a well-known appellate litigator who has argued many Supreme Court cases. The event took place at the Washington Legal Foundation, on whose behalf I wrote an amicus brief in the case. Tom Goldstein of SCOTUSblog served as the moderator.

Andrew Cochran of the 7th Amendment Advocate (who is also a representative of the organized trial bar), reports that the House is likely to vote on a Republican bill restricting state medical malpractice lawsuits next week. He cites several conservative and libertarian legal commentators who oppose federal tort reform on constitutional grounds, including myself and co-blogger Randy Barnett. It is indeed true that I have argued that federally mandated tort reform is both constitutionally suspect and largely unnecessary, because interjurisdictional competition gives states strong incentives to reign in their tort lawsuits on their own, as many have already done. House Republicans’ support for federal tort reform calls into question the genuineness of the GOP’s commitment to respecting constitutional limits on federal power.

I do have some minor quibbles with Cochran’s post. The title of his post is “Even Anti-Trial Lawyer Legal Experts Oppose H.R. 5,” and he seems to include me among the “anti-trial lawyer legal experts.” However, I don’t think of myself as particularly “anti-trial lawyer.” The organized trial bar lobbies for various policies that I think are wrong. But much of their agenda involves issues that I don’t have any strong views on. Overall, I think trial lawyers serve a useful function in the legal system.

Cochran also describes me as “a noted Tea Party-side and anti-Obamacare scholar.” I am flattered to be considered a “noted” scholar. But, while I agree with the Tea Partiers on many federalism issues, my only connection to the movement (if it can be called that) is that I published an academic article about it last year.

That said, Cochran and I do agree about the federalism issues raised by H.R. 5. Skeptics will say that the trial bar is insincere in their devotion to federalism here, and are primarily driven by their economic self-interest. Neither the trial lawyers nor their GOP opponents are models of intellectual consistency on these issues, and political expediency is probably an important factor influencing both sides. But the validity of a position does not depend on people’s motives for adopting it.

Damon Root has an interesting article discussing a potentially important takings case that the Supreme Court is now deciding whether to hear:

The handsome five-story brownstone located at 32 West 76th Street in Manhattan doesn’t look like it belongs at the center of a contentious legal struggle. But that impression changes when you learn about the recent activities of its owner, 68-year-old James D. Harmon Jr.

Harmon … has filed a powerful legal challenge asking the U.S. Supreme Court to strike down New York City’s four-decades-old rent stabilization law. At first, New York officials thought so little of Harmon’s challenge that they waived their right to file an opposing brief with the Supreme Court. But those officials got a rude awakening when the Supreme Court asked them to respond to Harmon’s petition anyway, signaling that somebody at the Court took the legal challenge seriously…..

[T]he Supreme Court has also said that government regulations may sometimes count as a taking [under the Fifth Amendment], which means that they too require the payment of just compensation. As Justice Oliver Wendell Holmes remarked in the 1922 case of Pennsylvania Coal Company v. Mahon, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” How far is too far? In the 2010 case of Stop the Beach Renourishment, Inc. v. Florida, the Supreme Court declared that at a minimum, “it is a taking when a state regulation forces a property owner to submit to a permanent physical occupation.”

New York City’s rent stabilization law (RSL) meets that test. In Harmon’s case, three of the six rental units in his building—which has been in the possession of his family since 1949, when his immigrant grandparents first bought it—feature rent-stabilized tenants whose occupancy can only be described as both physical and permanent.

Not only do these rent regulated tenants pay government-set rates that are 59 percent below-market, they have the option of remaining in their apartments for life. Harmon essentially has no choice but to keep renewing their respective leases every few years. The tenants even have the right to name their own successors to the apartments.

When I first heard about this case, my reaction was that it was probably precluded by the Supreme Court’s 1992 decision in Yee v. Escondido, which ruled that a California statute imposing rent control on mobile home parks was not a taking, even though state law allowed tenants to renew the rent-controlled leases indefinitely even against the will of the owners. I am no fan of the Yee decision, but the Court is unlikely to overrule it in the near future.

However, there is a crucial difference between Harmon’s case and Yee. In the latter, the Court emphasized that there was no permanent physical occupation of the owners’ property because “the Mobilehome Residency Law provides that a park owner who wishes to change the use of his land may evict his tenants” so long as he then uses the property for something other than a mobile home park. By contrast, as Root describes, the New York City rent control law does not allow Harmon and other landlords to evict their tenants even if they do wish to use the property for something other than rental housing. Effectively, therefore, this is a government-imposed permanent physical occupation of property.

In its belated response to the cert petition, New York argues that the law allows the Harmons to not renew the leases if they choose to live in the rent-controlled apartment themselves or if they demolish the building in question. However, as the Harmon cert petition points out, the former option requires the Harmons to find other, comparable housing for the tenants at the same rent, while the latter is precluded by the fact that the building in question is a legally designated landmark that by law cannot be destroyed. Regardless of these points, reducing the owners’ options to demolition and personal occupation is far more severe imposition on property rights than that in Yee, where any use of the land other than mobile home park was enough to allow the owner to decline renewal of a lease.

One of the best-established principles of takings law is that such a government-mandated permanent physical occupation automatically qualifies as a taking even if the intrusion imposed by the state is fairly minimal. In the classic case of Loretto v. Teleprompter, the Supreme Court found a taking even though the owner was only required to place a television cable and two boxes on the roof of her apartment building. This makes good sense. Whatever else might be considered a taking, there pretty obviously is one when the government compels a physical occupation of your property, thereby preventing you from using it yourself.

The physical invasion inflicted on Harmon and other New York landlords is obviously much more severe than that in Loretto, since they are forced to accept unwanted tenants essentially forever. Even if the tenant dies or moves out, he has the right to pass the rent-controlled lease onto a successor of his choosing if he has lived there for more than a minimal period of time.

As Root points out, many of the beneficiaries of New York’s rent control law are far from poor. One of Harmon’s tenants, for example, is a wealthy executive. There are far better ways to increase the availability of low-income housing, such as dismantling some of the zoning regulations that artificially restrict the stock of housing in the city and help make it one of the most expensive in the country. Economists overwhelmingly agree that rent control exacerbates housing shortages and usually fails to redistribute wealth to the poor. But if the City prefers to conscript unwilling landlords’ apartments in perpetuity, it should have to pay “just compensation” for the privilege, as required by the Fifth Amendment.

UPDATE: Richard Epstein commented on the case here, and George Will in this column.

Yale Law Professor Heather Gerken, a prominent federalism scholar, has an interesting article in Democracy urging her fellow liberals to take a more favorable view of federalism:

Progressives are deeply skeptical of federalism, and with good reason. States’ rights have been invoked to defend some of the most despicable institutions in American history, most notably slavery and Jim Crow. Many think “federalism” is just a code word for letting racists be racist. Progressives also associate federalism—and its less prominent companion, localism, which simply means decentralization within a state—with parochialism and the suppression of dissent. They thus look to national power, particularly the First and Fourteenth Amendments, to protect racial minorities and dissenters from threats posed at the local level.

But it is a mistake to equate federalism’s past with its future. State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.

Much of Gerken’s argument is based on the simple but important point that groups that are relatively weak minorities at the national level often wield greater influence in state and local governments where they are a much higher proportion of the population. In these situations, political decentralization benefits minorities by shifting power to the level of government where they have more political clout.

This will not come as news to students of federalism in countries outside the US. Many federal systems were established in the first place precisely because some ethnic groups that are minorities at the national level are majorities in a province or state. Federalism therefore protects them against domination by the national majority. Canada, Switzerland, Spain, India, and many other federal systems are examples of this pattern.

In the United States, of course, this aspect of federalism has largely been ignored because we have had very few cases of states where a national minority was a majority within a single state. The Mormons in Utah are an important exception, but one that few federalism scholars have paid attention to. However, as Gerken points out, racial and other minorities have increasingly become majorities in some state and local governments. In others, they at least form a much larger proportion of the population than they do at the national level and therefore have greater power. This helps explain why such causes as gay rights have made much more progress at the state level than in Washington in recent years.

Gerken rightly emphasizes that political empowerment through federalism enables minorities to be active agents protecting their own interests, as opposed to comparatively passive recipients of federal largesse, where their fate is in the hands of the national majority or the federal courts. Unfortunately, she ignores a different way in which federalism empowers minorities: By enabling a diversity of policies to arise in different jurisdictions, minorities are able to “vote with their feet” for the jurisdiction that serves them best. For reasons I describe in this article, foot voting is often of even greater benefit to unpopular minority groups than others. A century ago, millions of African-Americans improved their lot by migrating from the South to northern jurisdictions that had less racist policies. Today, ironically, many northern blacks are moving to the South in part because southern states have fewer regulations that artificially impede employment and inflate housing prices.

Gerken’s argument would be stronger if she were more willing to question the conventional wisdom about the history of American federalism, which holds that decentralization has almost always been an enemy of minorities, while the federal government is usually their friend. There is no doubt that state governments have engaged in severe oppression of minorities throughout much of American history. But the same can be said of the federal government, which was guilty of such sins as the Fugitive Slave Act; federally imposed segregation in the armed forces, the federal civil service, and the District of Columbia; the expulsion of Native Americans from much of their land; and the brutal internment of over 100,000 Japanese-Americans during World War II.

In an era when racial minorities were widely hated and wielded little political power, extensive discrimination against them was probably inevitable, regardless of whether the political system was unitary or federal. At many points in American history, however, centralization would likely have made minorities worse off than federalism did. For example, a unitary policy on slavery in 1787 would probably have led to a nationwide law in its favor, since nearly all states were still slave states at that time. A unitary national policy on racial segregation circa 1900 would likely have led to nationwide Jim Crow (though probably a less severe version than existed in the deep South) and nationwide denial of the right to vote for African-Americans. The point is not that federalism was always good for minorities (it clearly was not), but that our history is far more complicated than a morality play in which evil states oppress minorities until the latter are rescued by a benevolent federal government. I discussed these historical points about federalism and minority rights in greater detail here.

Finally, it’s worth noting that Gerken’s progressive defense of federalism coexists uneasily with her apparent rejection of judicial enforcement of structural constitutional limits on federal power. If federalism today is good for minority groups because they often have greater influence at the state and local level than in Washington, it logically follows that minorities could benefit from stricter enforcement of constitutional limits on federal authority. Otherwise, a hostile national majority can use its control of the federal government to override the locally powerful minority’s gains.

Much more can be said about Gerken’s article. For now, I would add only that it’s a valuable contribution to the ongoing reconsideration of federalism on the political left, as well as the broader debate on the subject.