The Volokh Conspiracy

If the Supreme Court strikes down the individual mandate, would that be an example of judicial activism? It depends what you mean by judicial activism, I think. In my experience, there are several different things people might mean when they label a judicial decision as “activist.” Two of the meanings aren’t very helpful, but I think three of them are, and I think it’s worth keeping in mind the different meanings of the term when discussing whether a decision striking down the mandate might (or might not) be activist.

Here are the different things a person might mean when they accuse a Supreme Court decision of being activist. The meanings can overlap, to be clear, but it is helpful to keep them analytically separate:

(1) The decision was motivated by the Justices’ personal policy preferences or was result-oriented. In some instances, a decision is labeled “activist” when we think that the decision was based on the Justices’ own personal policy preferences or preferred outcomes. Of course, it’s hard for us to know what subjective motivated the Justices. But we have an idea that judges should follow law, not just strike down laws and practices that they don’t personally like. So when we think that a judge struck down a law in large part because he didn’t like the law as a matter of policy, or because he wanted one side to win and the other side to win for reasons not concerning the legal merits of the case, we might call the decision “activist.” This version of judicial activism stands in opposition to the rule of law; it expresses the fear that judges are just doing what they personally like. (A sample statement from the right: “Roe v. Wade is an activist decision because the Justices in the majority just tried to enact their pro-choice views.” A sample statement from the left: “The activist Justices in the Bush v. Gore majority voted as they did because they wanted Bush to be President.“)

(2) The decision expands the power of courts to determine the rules of our society. A second reason to label a decision activist is if it expands the power of the courts to define rules. If an area of law used to be a matter of legislative or executive discretion, but then the courts step in and define the rules themselves, we might call the decisions doing so “activist” in the sense that the judges actively took over an area relative to some prior standard of judicial deference. This kind of activism can be good or bad depending on whether you think the judges properly stepped in, so this version of activism isn’t necessarily a bad thing. But it is a second way of describing whether a decision is activist. (A sample statement from the right: “The Warren Court’s activist criminal procedure decisions largely eliminated the role of Congress in defining criminal procedure rules.” A sample statement from the left: “In Citizens United, the activist Supreme Court narrowed the legislative options Congress has in enacting campaign finance reform.“)

(3) The decision was not consistent with precedents. In other instances, a decision can be labeled “activist” when it is not consistent with precedent or overrules precedent. If everyone had one understanding of the law, and then the Supreme Court comes along and announces a new understanding, then the decision might be seen as activist in the sense that the Court is setting a new direction for the law. Once again, this can be a good thing or a bad thing, depending on what one thinks of stare decisis or whether one agrees with the prior precedents. But this is a third way of describing whether a decision is activist that is often seen in the public debates over the Courts. (A sample statement from the right: “In Roper v. Simmons, the judicial activists on the left were not bothered by the contrary precedent in Stanford v. Kentucky; faced with an adverse precedent, they just overruled it.” A sample statement from the left: “Conservative activists on the Court want to overturn Grutter and end affirmative action.)”

(4) The decision struck down a law or practice. This fourth interpretation of judicial activism simply looks at whether the court upheld the law or practice as constitutional or struck it down as unconstitutional. By this account, a decision is activist if it strikes down a law or practice (for whatever reason) and not activist if it upholds the law or practice. (Example from the right: “During the Bush Administration, an activist majority of the Court repeatedly invalidated the Administration’s policies in the war on terror; they should have showed some restraint instead.” An example from the left: “During the Rehnquist Court, the conservative Justices were the true judicial activists because they voted to strike down federal legislation more often than liberal Justices.”)

(5) The decision was wrong. A final interpretation of judicial activism is that the phrase just indicates agreement or disagreement with the court’s decision. An activist decision is a decision the speaker thinks is wrong, by whatever standard the speaker adopts; a decision is not activist if the speaker thinks the decision is correct. From this perspective, activism is just a statement of agreement or disagreement with the Court’s reasoning. (An example from the right: “Kelo v. New London is an activist decision; how can the Justices interpret the Takings clause that way?” An example from the left: “The Supreme Court’s recent strip search case is written by activist judges who just don’t get the Fourth Amendment.”)

These different understandings can overlap, of course, and I think the overlapping meanings explain a lot about debates over judicial activism. First and most obviously, people tend to use the phrase “judicial activism” most easily when most or all of the different meanings apply. But on the other hand, because there is no one meaning of the term, debates over judicial activism tend to run in circles because people just use different meanings of judicial activism in respond to critiques. For example, imagine a liberal analyst looks at Citizens United and proclaims it activist based on meanings #2 through #4, and perhaps #1, as well; A conservative wishing to defend Citizens United would likely counter with meaning #5. But as the politics of the case shift, so do allegiances to the different meanings. For example, if the same conservative and liberal switch from discussing Citizens United to Boumediene v. Bush, the arguments switch too: Now the conservative will raise meanings #1-#4 and the liberal will counter with meaning #5.

One response to these changing usages is just to give up and say that the term “judicial activism” is useless. But I don’t think that’s justified. We need language to evaluate what the Supreme Court does, and some of these meanings capture genuinely important dynamics about the role of the courts. In my view, meanings #1-#3 are useful ways of labeling conduct as activist or not: Especially if we specifically explain which meaning we have in mind, the terms allow us to have a useful debate about the proper role of the courts. On the other hand, I personally find meanings #4 and #5 pretty unhelpful. In my view, #4 isn’t helpful because everyone agrees with the basic notion of judicial review (yes, even President Obama). Meaning #5 isn’t helpful because no two people seem to agree on when a decision is “right” or “wrong.”

So would a hypothetical decision striking down the mandate be activist under meanings #1 through #3? Evaluating #1 is always tricky because it’s a subjective question. We can’t know with any certainty what the Justices subjectively wanted. But if the case ends up 5-4, with the Justices appointed from the party that supported the law on one side and the Justices appointed from the party that opposed the law, a lot of folks will assume that the decision is activist in the sense of meaning #1. That argument will be a lot weaker if the vote isn’t 5-4 (cf. debates over Bush v. Gore, where a common response of those who defend the case from accusations of activism is that parts of the case were 7-2). But if the votes line up in the predictable political way, then claims of activism based on argument #1 will be common.

As for meaning #2, I think accusations that a decision striking down the mandate would be activist in the #2 sense would be pretty weak, at least assuming the decision tracked the arguments made by the challengers. The main reason is that the argument made by the challengers would be very easily circumvented in a future case. The challengers agree that a future Congress could reenact the same law simply by clearly labeling it a tax, or by structuring the law as an entitlement. As a result, the challenge to the mandate isn’t making it impossible to enact health care reform: It’s merely trying to invalidate the one way that Congress happened to have enacted health care reform, without blocking others. Further, a decision striking down the mandate wouldn’t in any way limit state governments. As a result, I don’t think a decision striking down the mandate would be particularly activist in the #2 sense.

On the other hand, I think a decision striking down the mandate would be justifiably criticized as activist in the #3 precedential sense. As I have explained many times before, I think existing commerce clause precedents combined with the presumption of constitutionality point pretty clearly in the direction of upholding the mandate: There’s a reason why it never occurred to any one that a mandate might be constitutionally problematic until this very controversial legislation was written, went through the legislative process, and was about to pass. It wasn’t until that late stage that many critics of the legislation came to the conclusion that the precedents actually pointed the other way (a judgment timed in such a way to suggest motivated reasoning is at work). So given that I read the precedents that way, I think a decision pushing the law in the opposite direction (however justified or unjustified) would be fairly labeled activist in the #3 sense.

So what’s the bottom line? In my view, it’s this: Depending on how the decision might be written, a decision striking down the mandate could fairly be called activist in some ways but not in other ways. It depends on which meanings of “activism” you find useful, and different people will disagree on which meanings of activism are useful.

In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I explain that there are lots of ways in which courts might avoid applying the exclusionary rule if they conclude that the mosaic theory of the Fourth Amendment from the concurring opinions in United States v. Jones offers a viable theory of Fourth Amendment protection. The recent case of United States v. Leon, 2012 WL 1081962 (D.Hawaii, March 28, 2012) offers a creative example that stretches the rationale of the Supreme Court’s recent good-faith decision in Davis v. United States.

In 2009, investigators installed a GPS device on Leon’s car because they suspected he was trafficking in meth. The GPS device monitored the location of Leon’s car for more than three months. In this case, Leon has moved to suppress the fruits of the GPS monitoring of his car. He argues that the installation of the GPS device was a search under the majority opinion in United States v. Jones and that the long-term use of the GPS device was a search under the concurring opinions in that case. The district court first rules that under Davis, the good faith exception applies to the installation of the device because the officers had relied on prior 9th Circuit precedent holding that it was neither a search nor seizure to install a GPS device. So far, so good — that’s what Davis requires. But the district court then rules that the good-faith exception applies to the long-term use of the device — which the court seems to assume is a viable theory of Fourth Amendment protection — even though there was no prior precedent approving that:

Unlike the placement of a GPS tracking device on the exterior of a vehicle in an area where a defendant has no legitimate expectation of privacy, neither Supreme Court nor Ninth Circuit binding precedent in 2009 authorized the agents to continuously monitor the location of the vehicle in public places for a prolonged period of time. Davis therefore is not directly controlling on this issue. Instead, the court must determine whether the agents exhibited “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” or whether they acted “with an objectively reasonable good-faith belief that their conduct [was] lawful.” Davis, 131 S.Ct. at 2427. And after examining precedent as of 2009, the court finds that the agents’ conduct in the use of the GPS tracking device was objectively reasonable.

United States v. Knotts, 460 U.S. 276, 281 (1983), applying the reasonable expectation of privacy test and citing a generally diminished expectation of privacy in automobiles, held that using a beeper to track a vehicle in public places does not violate the Fourth Amendment:

A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [codefendant] Petschen travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.

Prior to 2009, only one circuit court addressed the constitutionality of GPS monitoring. United States v. Garcia, 474 F.3d 994 (7th Cir.2007), largely relying on Knotts, held that the use of the GPS device did not implicate the Fourth Amendment. Id. at 997 (“But GPS tracking is on the same side of the divide with the surveillance cameras and the satellite imaging, and if what they do is not searching in Fourth Amendment terms, neither is GPS tracking.”). In contrast, as of 2009, no circuit court had held that the prolonged use of a GPS device to be unconstitutional.

Given the state of the law in 2009, the evidence clearly establishes that the DEA agents did not “exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights .” Instead, they acted with an objectively reasonable good-faith belief that their conduct was fully compliant with then-existing Fourth Amendment jurisprudence. Knotts, when considering older beeper technology, specifically found that a person, “travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U.S. at 281. Although the technology changed, the agents were certainly justified in relying on Knotts’ rationale in determining that no warrant was required.FN5 And the sole circuit court to consider the use of a GPS device prior to 2009 found no Fourth Amendment violation, even considering the change in technology.

And although not directly relevant to the agents’ objectively reasonable good-faith belief as of 2009, three judges of the Ninth Circuit found the prolonged use of a GPS tracking device constitutional in 2010. United States v. Pineda–Moreno, 591 F.3d 1212 (9th Cir.2010). And in doing so, the court relied almost exclusively on Knotts. This after-the-fact ruling provides further support that the agents acted with an objectively reasonable good-faith belief—a court would be hard-pressed to place culpability on the agents for their actions in 2009 when, one year later, three judges of the Ninth Circuit relied on Knotts to conclude that the prolonged use of a GPS tracking device did not violate the Fourth Amendment. . . .

The dissent in Davis, criticizing the majority’s focus on law enforcement culpability, foresaw the result in this case. Justice Breyer opined that under the majority view “an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable that an officer who follows erroneous ‘binding precedent.’ Nor is an officer more culpable where circuit precedent is simply suggestive rather than ‘binding.’ “ Davis, 131 S.Ct. at 2439. Given the state of the law in 2009, the court simply finds no sufficiently culpable conduct by the agents. As Justice Breyer wrote, “if the Court means what it now says,” id., suppression of the evidence in this case would yield no “appreciable deterrence” and is thus unwarranted.

It seems a bit strange to extend the rationale of Davis (something Justice Sotomayor warned against in her Davis concurrence) without first raising the fundamental question of whether the mosaic theory is a viable theory of Fourth Amendment protection. But the possibility of this kind of extension of Davis was always lurking in the background of the Davis case. The Davis court offered a broad rationale to support a narrow holding, and then justified its holding against critiques by emphasizing its narrowness: It was inevitable that at least some courts would follow the broad rationale of Davis rather than stick to the limits of its narrow holding.

This morning I appeared on the NPR radio program “On Point with Tom Ashbrook” to discuss the Supreme Court’s recent 5-4 Fourth Amendment case on strip searches, Florence v. Board of Chosen Freeholders of County of Burlington. I was joined by law prof Erik Luna and attorney Susan Chana Lask.

Florence raises a class line-drawing problem. On one hand, there is no obvious way to separate the dangerous from nondangerous individuals to know which to search without reasonable suspicion, and also no obvious way to distinguish degrees of visual inspection ranging from merely watching a person as they shower to inspecting them at “arm’s length” or “closely.” On the other hand, given that there are 13 million jail intakes every year nationwide, a blanket rule allowing strip searches will allow some people to be searched who should not have been subject to that indiginity. At some level, the case boils down to where you place the presumption. Do you presume that the jail administrators are best equipped to set policy, and overturn that judgment only if they are clearly wrong? Or do you assume that people should not be searched, and only allow them to be searched if the case for it is clearly established?

Given the egregious facts of the petitioner’s case, the Court’s failure to draw a line to give relief to the petitioner strikes a lot of people as outrageous (including Tom Ashbrook, the host of the show). My own view is that both the majority and dissent offer plausible ways to deal with the difficult problem the Court faced. It strikes me as plausible to say that so long as there is no touching involved and the individual is being admitted to the general population, that a per se rule allowing the visual inspection is reasonable. But it also strikes me as plausible to draw some lines, even if a bit arbitrary and uncertain, to try to carve out some cases that require individualized suspicion. The problem is particularly difficult because the harm at the search stage is largely the result of earlier Fourth Amendment decisions like Atwater that allow arrests based on probable cause for any offense; it’s not clear to me that the Court should impose limits at the jail-entry stage to correct perceived difficulties with the Court’s precedents on arrests. So I end up a bit on the fence on this one.

You can listen to the audio here; I start at the 14 minute mark. For my thoughts after attending the oral argument, see here.

The letter is here, and it is signed by the Attorney General personally. The contents strike me as unexceptional, as it’s just what the DOJ lawyer said at oral argument and DOJ has been saying in its briefing. As ordered, the letter consists of three pages and is single spaced.

I assume this will satisfy the Fifth Circuit judges, although at this point nothing would surprise me. (I’m sure someone will say that Holder should be arrested because the three page letter has only two pages of actual analysis, but the court’s written order said that the letter should consist of three pages, which this letter does.) Thanks to Tim Sandefur for the link.

Today Rush Limbaugh had a segment cheering on Judge Jerry Smith of the Fifth Circuit for joining the “team” that is trying to make President Obama “a one-termer this November at the ballot box”:

Now, yesterday afternoon a federal judge by the name of Jerry Smith at the Fifth Circuit Court of Appeals in Houston had had enough, and he demanded that the Justice Department give him a three-page memo on whether or not this administration understands the concept of judicial review. Now, I saw this and I started cheering. I started laughing. Because it’s about time people started fighting back on this. The American people love the concept of a team. You have to have the right people on the team, but we are a team here. There is a team that’s opposing this president, and attempting to make him a one-termer this November at the ballot box. It’s great to have this response.

After playing the audio recording of Judge Smith’s statements at oral argument yesterday, Rush adds:

By the way, I love the fact that [Judge Smith] called it “Obamacare” from the bench. And he tells this lawyer: You go back to your boss and I want three pages on this. This is like a college professor punishing a student who doesn’t quite understand what’s going on. You go back, and you get me three pages, no less, single-spaced. I can’t believe it. Single-spaced! He gets that specific. And it needs to be specific, because he wants these people on record. Obama’s out saying, “There is no such thing; that’s never happened.” Judge Smith wants Obama’s Justice Department to have it on paper from their office that essentially the president either doesn’t know what he’s talking about or is lying. That’s what’s going on here. These judges, folks, they serve for life. Their egos aren’t chump change, either. They have just the same kind of self-importance Obama does, and they’re gonna sit around here and be belittled like this?

I think the court’s order was highly inappropriate, and Rush’s comments are an excellent example of why. Whatever the judges were thinking, their order was inevitably going to be interpreted as the product of three conservative judges trying to enter the political fray and take on a Democratic President. As Rush and many others saw it, the judges were joining the GOP “team,” trying to “punish” Obama and make him a “one-termer.” Rush Limbaugh celebrates that political role for the Fifth Circuit. Others condemn it. But given that the President’s statement at the press conference was not at issue in the case, and the court’s order was based on a very strained reading of a single sentence in the press conference, it was inevitable that the order would be interpreted in that way on the national political stage.

No, it’s not The Onion — apparently this actually happened. Jan Crawford reports:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. . . .

The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

I believe the written order is here (thanks to reader Jason Walta for the image). The assignment was given orally, so it is not written into the written order. The oral argument hasn’t been posted yet, but when it becomes available, it will be here.

If this story turns out to be accurate, it strikes me as extraordinarily embarrassing to the federal judiciary. But I want to hear the oral argument audio first, or at least get some more confirmation as to what happened, before reaching a firm conclusion.

UPDATE: Perhaps the Fifth Circuit might consider withdrawing its order in light of this statement from the President today:

MR. SINGLETON: Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the Court has done during its entire existence. If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?

THE PRESIDENT: Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.

Given that this seems to answer the panel’s questions, I would think it provides a change of circumstances justifying withdrawal of the order, however justified or unjustified it may be.

ANOTHER UPDATE: Having heard the audio, the tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.

In a post published last week on the oral arguments in the health care case, I wrote:

If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President’s strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush. The President’s opponents heralded the Court’s new decisions as the restoration of the rule of law and the application of profound constitutional principle. Meanwhile, the President’s allies condemned the decisions as the products of unbridled judicial activism from a political court. If the mandate gets struck down, we’ll get a replay with the politics reversed. Just substitute Obama for Bush, health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard for Eisentrager.

I think there’s a lot in the comparison, in part because the debate over both policies boils down to judicial deference versus constitutional norms seen as embedded in the text. In the case of Gitmo, the text was the habeas clause, and the norm was that the Great Writ must guarantee judicial review of detention. In the case of the health care litigation, the text is the commerce clause, and the norm is that the federal government must be a government of limited powers. In both cases, the opposing side acknowledges the basic principle but concludes that it does not require invalidating the law or practice at issue, especially in light of the need to defer to the elected branches. It’s not exactly the same question, of course. But I think there are some very interesting similarities.

In Tuesday’s Washington Post, Charles Lane also picks up the theme and runs with it. A taste:

As policies, Obamacare and George W. Bush’s war on terror have almost nothing in common. They do not address the same subject matter.

Yet from the Supreme Court’s perspective, they pose practically the same question: How much more authority over individuals can the federal government assume, consistent with the Founders’ notion of limited and enumerated powers?

During the 20th century, the court stretched that concept to accommodate the rise of both a large domestic regulatory and welfare apparatus and of a permanent military and intelligence establishment. That seemed necessary and proper in view of the social problems of a modern urban society and the external threats of Nazism and communism.

In fact, the welfare state and the national security state grew up together. The New Deal’s twin was World War II; the Great Society accompanied the Cold War. The federal government’s expansion has protected us from old age, poverty and external threats — while burdening us with taxes, bureaucracy and a certain amount of official snooping.

The Bush administration took Sept. 11, 2001, as an opportunity to win additional national security powers for the federal government. The Obama administration saw the Great Recession as an opportunity for a New Deal-like expansion of health care and other domestic programs.

Consequently, the court has had to decide whether to allow further growth of the national security state and the welfare state — or to push back, lest these twin leviathans smother individual freedom.

In a press conference today with the President of Mexico and the Prime Minister of Canada, President Obama was asked the following question by a reporter:

After last week’s arguments at the Supreme Court, many experts believe that there could be a majority, a five-member majority, to strike down the individual mandate. And if that were to happen, if it were to be ruled unconstitutional, how would you still guarantee health care to the uninsured and those Americans who’ve become insured as a result of the law?

President Obama responded, in relevant part:

With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.
. . .
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

Taken in context, President Obama’s statement strikes me as pretty much what you’d expect a politician to say in such circumstances. He’s confident that his side will win because he has the precedents on his side. He’s confident his side will win because it would be an example of judicial activism to strike it down, which conservatives are supposed to oppose. One can of course question the President’s characterizations. One obvious mischaracterization is Obama’s statement that “two very conservative appellate court justices . . . said this wasn’t even a close case.” Assuming that refers to Judges Sutton and Silberman, I don’t think that’s a fair characterization of their opinions (especially Sutton’s, which struggled openly with the question). And other statements strike me as debatable, too. At the same time, these strike me as the kind of minor mischaracterizations that are so common in political life as to not merit much attention.

Is it strange that a President would discuss a pending Supreme Court case during a press conference? I haven’t checked the archives for past examples, but it does seem rather unusual. At the same time, it’s also unusual for the Supreme Court to hold six hours of oral argument to consider striking down the signature legislative achievement of a sitting president who is a former professor of constitutional law. As David Bernstein once noted, Obama has “thought a lot about constitutional history.” Presumably he has strong views about the mandate litigation. I don’t know if it was politically wise to make those comments, but I suppose I can understand why a former con law professor would find it hard to pass up the opportunity.

In his post below, my co-blogger David Kopel excerpts one sentence of the speech — the one in which Obama said “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress” — and he interprets it as advocating a new and novel theory of judicial review. According to David, Obama was advocating a remarkable new theory that judicial review does not exist for federal statutes passed with a “strong majority” of members of Congress.

But this strikes me as a rather obvious misinterpretation of what Obama said. If you’re not convinced, watch the video of this part of Obama’s statement:

Obama was pausing repeatedly and looking for the right word, and the delay in time it took for that sentence to come out makes clear that Obama is making two distinct points in that sentence. The first point is that he’s confident that the Supreme Court will not take the unprecedented and extraordinary step of striking down the ACA; and the second point was that the ACA was passed by a strong majority of a democratically elected Congress. Again, one can disagree with these characterizations — the “strong majority” line seems particularly puzzling. And it’s a terribly inarticulate sentence, which Obama seems to realize as he’s speaking (note the pauses and rather pained facial expressions as he tries to get the sentence out). But I don’t think it’s remotely plausible to read that passing statement as advocating a new theory of judicial review.

Kyle Graham offers his thoughts over at NonCuratLex.com.

Over at Prawfs, Paul Horwitz has a provocative post criticizing lawprofs who have commented on the health care cases as advocates without saying so — and specifically, lawprofs who have been formally writing as scholars but really writing as advocates with a goal of “shaping the narrative” of opinion on the constitutional challenge to the mandate:

[T]here is . . . something wrong about yoking one’s reputation as a scholar and expert to the non-scholarly end of “shaping the narrative.” I’m not accusing anyone of doing this last week, although frankly it seems pretty evident to me that it happened and has happened before. And, clearly, not everyone believes there is something wrong with doing so. But I think there are good reasons to be disturbed by such conduct.

Does that mean no scholar is permitted to try to “shape the narrative” through blogging and other commentary, or that there’s something wrong with having a normative legal or political view about such cases and sharing them? Of course not. But it does say something about how one ought to do so consistently with one’s obligations as a scholar. The basic principle, it seems to me, is that your message, and the purpose of your message, should be clear. Someone who writes that current law clearly means X should mean what he or she says; “shaping the narrative” is no defense to asserting with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence. But one can always make clear, implicitly or explicitly, “This is my view of what the law should be, not what it clearly is under current law,” that one is urging a particular result rather than offering an impartial analysis of the issues, and so on.

I can think of a number of posts about the ACA from legal scholars last week that were clearly and openly offered as advocacy and did a fine job of it. And I can think of others that were clearly not offered as advocacy at all, and said useful and interesting things about the oral arguments. (I would put Mark Tushnet’s posts in this category.) But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons. I see those reasons as more inculpatory than exculpatory. I don’t see the minimal requirements for scholarly integrity that I offered as changing because of the medium, or because of the importance and currency of the case.

Again, that doesn’t mean legal scholars can’t act as advocates. But if they can’t do so openly–if they think it would somehow undermine the effectiveness of what they’re writing if they preface their claim with, “Of course I’m writing this as an advocate and not a scholar; if I were writing this with my expertise or authority as a scholar one the line, I would say something different”–then I would suggest that they are, in fact, doing something wrong.

I have similar concerns, for the same reason I agree with Paul with the Dick Fallon view of law professor amicus briefs. Taking on different roles is fine, but clear labeling to demarcate those roles is important. Of course, it doesn’t change the strength of the argument that individuals are making: Arguments stand or fall on their own. And I realize that the instinct among many legal academics to blend scholarly roles and advocacy roles is often strong one, both on the left and the right, that may be impossible to dislodge. But that blending of roles does create tensions, I think.

One counterargument is that perhaps Paul and I are naive, and it is understood that of course law professors publicly commenting on a high profile case are engaging in spin for their side. That’s certainly possible. That might explain why some have described my views as “pro-mandate” when I oppose the mandate: Perhaps my earlier effort to describe how I see the precedents fall are necessarily construed as secret advocacy in favor of the mandate.

I have just posted a new draft article, The Mosaic Theory of the Fourth Amendment, which is forthcoming in the Michigan Law Review. Here’s the abstract:

In the Supreme Court’s recent decision on GPS monitoring, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and dilemmas that a mosaic theory would raise, and it analyzes the ways in which the mosaic theory departs from prior understandings of the Fourth Amendment. It makes three major points. First, the mosaic theory offers a dramatic departure from existing law. Second, implementing the theory requires courts to answer a long list of novel and challenging questions. Third, the benefits of the mosaic theory are likely to be modest, and its challenges are likely to be great. Courts should approach the mosaic theory with caution, and may be wise to reject it entirely.

I have a few weeks to work on the article before I submit a version to editors to begin the formal editing process, so comments are very welcome. (That’s especially true because this article was written in the brief window after Jones was handed down before the March submission season, so it is less set than most articles might be at this stage.) There is no need to catch typos or anything like that, as the editors will look for that, but thoughts on the substantive argument are very welcome.

Apparently this has begun to happen recently, and i was on C-Span’s Washington Journal program this morning to discuss it.

Washington Journal callers sometimes have pretty off-the-wall questions, and the first call at 3:55 managed to veer from Facebook login information to the military industrial complex. (Note pretend sipping of coffee at that point to avoid cracking a smile on camera.)

Several of my co-bloggers have suggested recently that liberal academics were surprised by the oral argument in the health care cases because they are out of touch with conservative thought. I don’t think that’s accurate, though, because the premise strikes me as wrong: I don’t think there has been a major gap between liberal academics and Supreme Court lawyers and conservative academics and Supreme Court lawyers on the odds of what the Supreme Court might do. My sense is that folks on both sides were surprised by how the argument went. One side quite pleasantly, the other side quite unpleasantly. But my sense is that both sides were surprised.

I think it’s worth stepping back and recognizing that at the beginning of the debate over the mandate, everyone saw the mandate challenge as a serious long shot. Randy Barnett has acknowledged that when the mandate debate began, he thought it “a long shot” just to make it to the Supreme Court (much less to win). In a 2010 essay in the Washington Post, Randy acknowledged that “the smart money” was against the mandate challenge and recognized that the prospect that the Court might strike down the mandate might seem “far-fetched,” but suggested that it just might happen if the stars aligned as they did in Bush v. Gore. More recently, when the Court granted cert and scheduled 6 hours of oral argument time, folks on both sides of the aisle began to realize that there was a serious chance that the Court would strike down the mandate: While there was a modest difference between conservative and liberal opinion among Supreme Court clerks and Supreme Court lawyers on the chances the law would be upheld going into the argument, it was actually relatively narrow, with both sides still thinking that odds favored upholding the mandate. Given this history, I have a hard time seeing a major gap between conservative and liberal “elites” on the purely predictive question of what the Court might do.

Of course, some liberal academics were quite harsh in dismissing arguments against the mandate. Some may have used dismissive language for tactical reasons: Defining the challenge as outside the realm of serious academic debate might (at the margins) make it less likely to be taken seriously by the courts. And these efforts were then countered by efforts of mandate opponents who argued in response that the issue should be considered mainstream and not frivolous and thus (at the margins) make the challenge more likely to be taken seriously by the courts. But viewing these sorts of squabbles in light of last week’s oral arguments doesn’t suggest that liberal academics fail to understand conservative thought. Rather, it just suggests that both sides were trying to define the mainstream with the hope that it might (somehow) influence how the Justices approached the case, and that five Justices seemed to accept the definition of one side and four Justices accepted the definition of the other side.

For readers who aren’t entirely exhausted with all the ACA discussion, PointofLaw.com has been hosting a discussion with several interesting participants (and me, too) on the case. Ilya and I also did a podcast for the Federalist Society reflecting on the oral arguments, and Randy Barnett gave a daily argument briefing that you can find here: Monday, Tuesday, Wednesday.

I have posted the short opinion (dated March 23) from Magistrate Judge Collings of the District of Massachusetts here. It largely adopts the reasoning of United States v. Graham from the District of Maryland, which I blogged about here. In my view, Judge Collings was correct to issue the order without probable cause for a second reason: The Fourth Amendment questions are not yet ripe for review, as I argue in this amicus brief I filed recently in the Fifth Circuit.

Over at The Atlantic, Adam Teicholz has an interesting essay on the role of blogs in the shaping of the debate over the individual mandate. It includes the following remarkable passage about this blog:

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. The answer had become clear to him under existing precedent; he now felt certain that the mandate was a goner.

Barnett says he blogs on Volokh as an “opportunity to refine legal arguments in response to pushback.” He agreed to attend a Washington University panel on “Bloggership,” the confluence of scholarship and blogging, but he played Pinky (“Blogging…can contribute constructively to one’s scholarship…but it would be a mistake to confuse” them) to Volokh-founder Eugene Volokh’s Brain (“Maybe, when I’m in the middle of writing a law review article, I should ask myself: Shouldn’t I be spending this time blogging instead?”). Yet Barnett also acknowledges in conversation that “justices, law clerks, lawyers, legal writers” are “a part of the legal culture and I’m part of the legal culture.” Trying to convince that set of people that your arguments are “on the wall,” he continued, is just “standard law practice.”

And two former Supreme Court clerks confirmed that online ideas and moods “definitely reach clerks, and can inform thinking of the bench memos,” the documents clerks write to prepare their justices for oral argument and opinion-writing. And blogs like Volokh certainly have increasing influence over the traditional media. Liptak of the Times said that he takes note of what legal blogs have to say about cases he’s covering.

I think this vastly overstates the influence of the blog. But it seemed worth posting.

I’ve now made it through the full transcript of this morning’s argument. Here are four thoughts:

1) This was a huge day for the challengers to the mandate. The challengers have an uphill battle because they need to sweep all four of the Republican nominees who are potentially in play — Roberts, Alito, Scalia, and Kennedy. Based on today’s argument, it looks like all four of those Justices accepted the basic framing of the case offered by the challengers to the mandate. In particular, they all seem to accept that a legal requirement of action is quite different from a legal requirement regulating action, and that therefore the expansive Commerce Clause precedents like Raich did not apply to this case. That was the key move Randy Barnett introduced, and the four key Justices the challengers needed seemed to accept it. Just as a matter of precedent, that doesn’t seem to me consistent with Wickard v. Filburn, which stated that “[t]he stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” But putting aside precedent, the four key Justices all appeared to accept Randy’s basic framing. That was an enormous accomplishment for the challengers.

2) Based on today’s argument, I think it’s a toss-up as to which side will win. My sense is that Scalia is very clearly against the mandate, and Alito seemed to lean that way. Roberts also seemed more on the anti-mandate side than the pro-mandate side. It’s a cliche, but the key vote seems to be Justice Kennedy. As my friend and fellow former Kennedy clerk Steve Engel told the Wall Street Journal today, “It’s entirely possible he doesn’t know yet which way he’s going to go.” And yet assuming the Justices feel bound to the usual practice of finishing up the Term’s opinions by late June, there isn’t much time. These opinions are hugely important and yet will have to be written very quickly, which doesn’t bode well for their likely quality.

3) If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President’s strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush. The President’s opponents heralded the Court’s new decisions as the restoration of the rule of law and the application of profound constitutional principle. Meanwhile, the President’s allies condemned the decisions as the products of unbridled judicial activism from a political court. If the mandate gets struck down, we’ll get a replay with the politics reversed. Just substitute Obama for Bush, health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard for Eisentrager.

4) Purely from the perspective of a legal nerd, what fun to live in such interesting times. Those of us who follow the Supreme Court and teach or write in areas of public law are always dependent on what the Court does. If the Court does boring and expected things, then following the Court can be a bit routine. But this Term the Court has been pretty darn exciting to watch. Whatever you think of the umpire, the game sure is entertaining.

Reading the tea leaves of Justice Kennedy’s questions in the transcript of this morning’s argument, Kennedy seems to be of the view that requiring a mandate under the Commerce Clause requires a “heavy burden of justification,” and that his major question is whether the uniqueness of the health care market satisfies that heavy burden. Here are Kennedy’s comments, with the first block of questions to SG Verilli arguing in defense of the mandate, and the second to Michael Carvin challenging the mandate:

1) Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

2) But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

And then later, to Michael Carvin, arguing on behalf of the challengers:

[T]he government tells us that[] . . . the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.

Reading the tea leaves, it sounds like Justice Kennedy accepts the basic framework of the challengers that mandates are different and especially troubling. Instead of saying that mandates are therefore banned, however, Justice Kennedy would require the government to show some special circumstances justifying the mandate in each case. The unanswered question in this case is whether the special economics of the health care market justifies the mandate here.

From the Times: “The conventional view is that the administration will need one of those four [conservative] votes to win, and it was not clear that it had captured one.”

The audio and transcript will be posted here shortly.

UPDATE: Lyle Denniston reports:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

The opinion is here. From the introduction:

In Canada, prostitution itself is legal. There is no law that prohibits a person from selling sex, and no law that prohibits another from buying it. Parliament has, however, enacted laws that indirectly restrict the practice of prostitution by criminalizing various related activities. At issue in this case is the constitutionality of three provisions of the Criminal Code, R.S.C. 1985, c. C-46, which form the core of Parliament‟s response to prostitution:

1. Section 210, which prohibits the operation of common bawdyhouses. This prevents prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes;

2. Section 212(1)(j), which prohibits living on the avails of prostitution. This prevents anyone, including but not limited to pimps, from profiting from another‟s prostitution; and

3. Section 213(1)(c), which prohibits communicating for the purpose of prostitution in public. This prevents prostitutes from offering their services in public, and particularly on the streets.

In the court below, the application judge held that these provisions are unconstitutional and must be struck down because they do not accord with the principles of fundamental justice enshrined in s. 7 of the Canadian Charter of Rights and Freedoms. She reasoned that the challenged laws exacerbate the harm that prostitutes already face by preventing them from taking steps that could enhance their safety. Those steps include: working indoors, alone or with other prostitutes (prohibited by s. 210); paying security staff (prohibited by s. 212(1)(j)); and screening customers encountered on the street to assess the risk of violence (prohibited by s. 213(1)(c)).

As we will explain, we agree with the application judge that the prohibition on common bawdy-houses for the purpose of prostitution is unconstitutional and must be struck down. However, we suspend the declaration of invalidity for 12 months to give Parliament an opportunity to redraft a Charter-compliant provision.

We also hold that the prohibition on living on the avails of prostitution infringes s. 7 of the Charter to the extent that it criminalizes non-exploitative commercial relationships between prostitutes and other people. However, we do not strike down that prohibition, but rather read in words of limitation so that the prohibition applies only to those who live on the avails of prostitution in circumstances of exploitation. This cures the constitutional defect and aligns the text of the provision with the vital legislative objective that animates it.

We do not agree with the application judge‟s conclusion that the ban on communicating in public for the purpose of prostitution is unconstitutional, and we allow the appeal on that issue.

In today’s argument, Chief Justice Roberts had an interesting series of questions on a matter that we debated a bit here at the blog: If the penalties for violating the individual mandate are really weak, is the regulation really a “mandate”? The exchange arose when Greg Katsas (a lawyer challenging the mandate) argued that the Tax Anti-Injunction Act does not apply because the real purpose of the lawsuit is to challenge the individual mandate, not the collection of taxes, and that the mandate and the penalty for violating the mandate should be construed as two very different things. That led to this exchange:

CHIEF JUSTICE ROBERTS: The whole point -the whole point of the suit is to prevent the collection of penalties.
MR. KATSAS: Of taxes, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS: Well prevent of the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense.
MR. KATSAS: It’s entirely separate, and let me explain to you why.
CHIEF JUSTICE ROBERTS: It’s a command. A mandate is a command. If there is nothing behind the command. It’s sort of well what happens if you don’t
file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime.
MR. KATSAS: I’m not sure the answer is nothing, but even assuming it were nothing, it seems to me there is a difference between what the law requires and what enforcement consequences happen to you. This statute was very deliberately written to separate mandate from penalty in several different ways.
They are put in separate sections. The mandate is described as a “legal requirement” no fewer than 20 times, three times in the operative text and 17 times in the findings. It’s imposed through use of a mandatory verb “shall.” The requirement is very well defined in the statute, so it can’t be sloughed off as a general exhortation, and it’s backed up by a penalty. . . .
CHIEF JUSTICE ROBERTS: Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.
MR. KATSAS: Because Congress reasonably could think that at least some people will follow the law precisely because it is the law.

It’s hard to make any firm conclusions from the exchange, of course. But the challenge to the minimum coverage provision is premised on the idea that the mandate is really a genuine mandate, not just some sort of generalized incentive, and that argument rests in significant part on seeing the mandate as separate from the penalty. We’ll have to wait and see tomorrow how many Justices accept that framing of the statute.

UPDATE: A commenter suggests that the audio leaves a different impression than the transcript; you can listen yourself at the 1:15 mark. Also, it’s obviously not the case that framing the minimum coverage provision together with the penalty provision as a single entity necessarily means that one doesn’t see it as a mandate. But my sense is that it does change the optics of the issue.

ANOTHER UPDATE: Talking Points Memo has a story on this exchange here.

The audio is available here, and the transcript has been posted here.

Over at SCOTUSblog, there’s lots of great early coverage on the Tax Anti-Injunction Act arguments at the Court today (aka Round 1 in the ACA fight). The SCOTUSbloggers seem to agree that there are five votes to bypass the Anti-Injunction Act and address the merits of whether the Constitution permitted Congress to enact the individual mandate. This isn’t too surprising. Even if the Anti-Injunction Act arguments are strong as a textual matter, tax law is boring and arcane and the Commerce Clause is cool and high-profile. It’s hard for the former to get in the way of the Court addressing the latter.

My co-blogger Randy Barnett offered an interesting response to my post below on taking a vow of consistency in arguments about the mandate. In my post, I suggested that those who have argued that upholding the mandate would necessarily mean that the federal government has no limits should have to stick with that assessment if the mandate is upheld. If a majority upholds the mandate, those who have argued that upholding the mandate necessarily means there are no limits on federal power should not be able to switch positions ex post. In the comments, Randy responded:

Orin, realistically, does this not depend on the contours of the opinion upholding the mandate? For example, the majority opinion in Raich was based on the fact that the cultivation of marijuana was “economic” according to a 1966 Webster’s dictionary defining “economic” as “the production, distribution and consumption of commodities.” (I am paraphrasing, I did not look it up.) This was in sharp contrast with the government’s sweeping rationale that anything that substitutes for a market good is “economic.” No one, well at least not me, anticipated the Webster’s dictionary definition, which greatly limited the scope of the Raich decision. Think about the 5 limiting “considerations” in Comstock. Are not future litigators entitled to utilize these factors in the future? (Notice, however, that the government and most mandate defenders do not take them very seriously when they claim that Chief Justice Roberts MUST uphold the mandate because he joined the opinion in Comstock.) What if the hypothetical opinion says that, because health care is genuinely unique — one of kind — mandates are *only* usable with health insurance? I am not saying they will write such an ad hoc opinion. Indeed, I fear they would not. And the government does not actually assert this limited a rationale. But supposing the opinion was written that way. Would a defender of enumerated powers need to ignore these limitations? Don’t we have to wait and see?

I think Randy is clearly right in this paragraph. On one hand, a hypothetical opinion upholding the mandate could be written very broadly to eliminate future Commerce Clause challenges. On the other hand, such an opinion could be written very narrowly to permit and even encourage lots of future Commerce Clause challenges. So far we seem to agree. The problem, though, is that Randy’s position above seems inconsistent with the argument mandate opponents have been making that if the mandate is upheld, it will mean the end of limits on federal power. As Randy shows in the paragraph quoted above, that’s not the case: There certainly are ways to limit federal power and yet uphold the mandate.

I don’t mean to dismiss the basic rhetorical moves of cause lawyering. We all know how it works: To make your case, argue that adverse precedents are very narrow while claiming that the sky will fall if the next case goes that same way. If you lose the next case, shift positions and claim the sky didn’t fall, and that actually the decision in that case is not only very narrow but actually helps your position. (And if you win the next case, call it a pathbreaking case that redefines the entire field.) I think we all understand those moves, and the reasons for them. My point was just to suggest that if we insist on consistency between ex post and ex ante assessments of the significance of different decisions, we’re likely to get a more accurate set of claims ex ante.

On a mostly-unrelated note, Randy asks at the end of his comment if the fact that the Supreme Court has agreed to hear the case and scheduled 6 hours of argument has changed my understanding of what “constitutionality” is (quotes in the original). I’m not sure I understand the question. But the Court had to take the case when there was a circuit split; it’s a no-brainer grant. I think the 6 hours of argument shows that the Justices are intensely interested in the case and see it as very important. I give Randy a ton of credit for that surprising turn of events. His ideas really caught on in the political arena, which gave them legs in the judicial arena, and that changed the terms of the debate in a way that very likely led to the circuit split and therefore Supreme Court review. So kudos to Randy for that; it’s a truly remarkable achievement. At the same time, I’m not sure what that elevated level of interest at the Supreme Court is supposed to suggest about the meaning of “constitutionality.”

Many opponents of the individual mandate have argued that if the individual mandate is upheld, there will be no limits whatsoever on federal power. Many proponents of the individual mandate have responded that there are several significant limits on federal power even if the mandate is upheld.

I propose that those who have voiced either position must now take a pledge of consistency. Here’s how it will work. If you have argued that upholding the mandate would means that there would be no limits on federal power, you should pledge now that if the mandate is upheld, you will not argue that there are any limits on federal power under the decision upholding the mandate. On the other hand, if you have argued that there are several significant limits on federal power that are entirely consistent with upholding the mandate, you should pledge now that if the mandate is upheld, you will never question or argue against any of those limits on federal power.

Deal?

UPDATE: I have fiddled with the post a bit to make clear that the pledge for mandate opponents is about interpreting a decision upholding the mandate, not about whether that decision is right or wrong.