The Volokh Conspiracy

In Marbury v. Madison, John Marshall wrote:

The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.

Once the Court moves beyond the original meaning of the text to allow Congress to reach activity that is neither “interstate” nor “commerce” (using the Necessary & Proper Clause as its warrant), there still remains the need to establish some limit on these “implied” nontextual powers, lest the national government becomes a government of general powers.  The “express prohibitions” provided by the Bill of Rights don’t count since they equally constrain state governments.  Were these the only constraints on federal power, then the scope of the power of Congress would be exactly the same as the power of states.  And this proposition has always been rejected by the Supreme Court.  As Chief Justice Rehnquist affirmed in Lopez:

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, §8. As James Madison wrote, “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45. This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft (1991). “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”…

So the challenge is to limit, somehow, the scope of the power that lies beyond Congress’s plenary power to “commercce . . . among the several states.”

One possible constraint is political.  But , as John Marshall stated above in Marbury, a “political” constraint which allows the legislative branch to define the limits of its own power is not sufficient.  What is needed is a judicial constraint.  Much more can be said about why political constraints are insufficient, but time and space are limited.  Suffice it to say that, whether or not Marshall (and Rehnquist) are wrong about the need for a judicially-enforced constraint, even the New Deal Court in Wickard declined to adopt “political constaints” as the only constraint on the enumerated powers of Congress.  See Barry Cushman, Rethinking the New Deal Court.

But there are only two types of judicially-enforceable limits.  The first is fact-based.  Examine the “rationality” of a particular measure to see if it is really serving the enumerated power.  This was the method commonly employed by the Supreme Court before the New Deal in both Due Process and Commerce Clause cases, but which the Supreme Court has generally rejected in favor of hypothetical rational basis scrutiny.  The government contends that the power to impose economic mandates on the people is limited by the fact that “health care is different” from other sorts of economic mandates, e.g. a mandate to buy GM cars.  We disagree.  Were this to be a genuine limit, we would be entitled to a hearing to decide this factual question. On remand, the courts would also have to adopt some standard of review to decide whether we or the government were correct in our respective assessments of the facts.  This standard cannot be modern hypothetical rational basis scrutiny, because that would be no scrutiny at all and would fail to provide a judicially-enforceable constraint.  The Justices know this.  While heightened factual scrutiny of the choice of congressional means would not bother me, it runs contrary to the Court’s approach since the New Deal and would surely bother the Justices.

This leaves the approach employed by the Court in Lopez:  identify a judicially-administrable categorical limitation on the implied powers of Congress.   This is my reading of what Justice Rehnquist was attempting to achieve in Lopez: identify a categorical limitation on the implied power of Congress to go beyond the regulation of interstate commerce itself and reach intrastate activity that was not itself “commerce” which would be consistent with prior post-New Deal decisions (“this far”).  So he adopted the nontextual and nonoriginalist distinction between the regulation of intrastate activity that is “economic” (“this far”) but not “noneconomic” (“no farther”) regardless of whether the noneconomic activity could rationally be said, in the aggregate, to substantially affect interstate commerce.

In Raich we asserted that, because Angel Raich’s and Dianne Monson’s activities were noneconomic — no money was being exchanged for marijuana — their conduct fell outside the line the Court had drawn in Lopez and Morrison.  The government contended that Angel’s and Dianne’s activity was “economic” because it substituted for the economic activity of buying marijuana on the market.  Had the Court accepted the position of the government, Raich would have replaced Wickard as the outermost reach of Congressional power and led to an unlimited Commerce Clause/Necessary & Proper Clause power.  As I said during oral argument, every activity, even marital sexual relations, could be construed as “substitute” for something available on the market.

Perhaps sensing this, happily, the Court implicitly rejected the government’s expansive theory, and therefore greatly limited the scope of its holding in Raich, when it held that the production and consumption of a “commodity” was quintessential economic activity, relying on the definition found in a 1966 Webster’s dictionary.  Indeed, by limiting its holding to the particular dictionary definition of “economic” from Webster’s, Raich actually narrowed the scope of Lopez, assuming this was to be the exclusive definition of “economic” that would be employed by the Court in the future.  For example, buying insurance, while broadly “economic” is not the purchase or consumption of a “commodity.”   In this sense, the holding of Raich was limited to a power that had clearly been exercised in the past (“this far”): the power to prohibit the intrastate production and consumption of a commodity.

Justice Scalia’s concurrence in Raich extending the power to reach noneconomic activity when doing so was essential to a broader regulation of interstate commerce, seems more ambitious, which is why the government has relied so heavily upon it throughout this litigation.   Yet I think Justice Scalia was responding to another feature of Raich that was downplayed during the litigation and never explicitly examined.  We were bringing an “as applied” Commerce Clause challenge in which we did not contest the power of Congress to regulate the interstate drug trade.  Neither did we contest the power of Congress to reach the intrastate drug trade in states that had not legalized such trade.  We were attempting to carve out a sub-class of activities from that which Congress was trying to regulate: wholly intrastate cultivation and use of marijuana for medical use as authorized by state law.  Much of oral argument was devoted to defending the cogency of this sub-class.

Although such as applied challenges had been brought before, none had ever succeeded.  I believe that Justice Scalia’s Necessary & Proper Clause focused opinion was his attempt to handle this aspect of the case by explaining why, if Congress could regulate genuinely interstate commerce in intoxicating substances (as we conceded), as part of its broader regulatory scheme, it could also reach this subset of activities that could not feasibly be distinguished from the commerce over which it had control.  For Justice Scalia, the fact that these activities may be noneconomic (not for money) did not make it any less necessary to reach them, or at least so Congress could decide in its discretion.

It remains to be seen whether Justice Scalia will be willing to extend this rationale to a facial challenge to a power to mandate the purchase of insurance by individuals because it is “essential” to the power of Congress to regulate the terms by which insurance companies do business.  This is the government’s contention, but it is a considerable step beyond the problem Justice Scalia was wrestling with in Raich. Recall that, in the facial challenge in Comstock, Justice Scalia joined Justice Thomas’s dissenting opinion in which Justice Thomas reasserted Justice Scalia’s holding in Printz that the means chosen by Congress (commandeering the states) was “improper.”  So Justice Scalia still holds the view that some means of executing the commerce power, while necessary under a rational basis approach, are nevertheless improper.  The question for him is whether his analysis of “necessity” in Raich is similarly qualified by the “impropriety” of the chosen means.

To date, the government has been unable to articulate a “categorical” limitation on the power to mandate that individuals enter into contracts with private parties, yet it has not been bold enough to assert that the only constraint is “political.”  And I do not believe that their “factual” limitation (“health care is different”) will fly.  If the Court does accept this approach, then assuming it also adopts a modern hypothetical rational basis approach, it would effectively be adopting the “political constraints only” position.  Maybe, as in Raich, the Court will simply say that because the “decision” not to buy health insurance is “economic,” as the government urges, it can be reached under Lopez.  But the power to reach economic “decisions” is as capacious as the government’s “substitution” theory in Lopez Raich.  It is a mere fig-leaf to cover the “political constraints only” position that will fool no one if it adopted.  This would not even amount to the “symbolic” federalism reading of Lopez; it would be no federalism at all.  Which, again, is why this case is such a big deal.

Much of the difference of opinion over the constitutionality of the individual insurance mandate turns on a difference of opinion about the appropriate baseline for evaluating Congressional power. For 60 years, law professors taught that Congress had unlimited discretion with respect to using its commerce power to regulate the national economy. They held this view notwithstanding that the Supreme Court had never ennunciated such a position and that we now know that some Justices on the New Deal Court considered doing so in Wickard but declined to pull that trigger. Virtually all “progressive” academics — and many, if not most, “conservatives” whose constitutional views were formed before 1995 — accepted and continue to accept this proposition as the baseline against which Congressional legislation was to be assessed.

Regardless of whether this was ever the baseline accepted by the Supreme Court, in 1995, the Supreme Court arguably (more on this in a moment) rejected it in favor of another: Congress has discretion with respect to all the powers that have been upheld up to that point, but any claim of implied Congressional power beyond that point was constitutionally suspect. Because Congress had never before attempted to regulate wholly intrastate noneconomic activity, a majority of the Court in Lopez and again in Morrison (over the empassioned dissent of those Justices who hewed to the other baseline) said it would not recognize this new extension of power.  Raich can be understood as an effort to restrain Congress from exercising a power it had long used: the power to regulate the intrastate cultivation, possession and distribution of an intoxicating substance.  It can also be understood as an effort to sustain an “as applied” challenge to a facially constitutional exercise of the commerce power, and no such challenge had ever before succeeded.

Since Lopez and Morrison have now become fixed poles of constitutional decision, there are two competing readings of these cases depending on which baseline one holds.  Those who continue to hold the baseline of unlimited Congressional discretion – whose politics can be progressive or conservative – construe Lopez and Morrison as identifying a relatively narrow exception to this power. Since the individual insurance mandate does not clearly fall within this exception, it is therefore deemed by them to be clearly constitutional. This is why, I believe, so many constitutional law professors thought this case was so easy.

In contrast, those who interpret Chief Justice Rehnquist’s opinions in Lopez and Morrison as rejecting that baseline in favor of the position that Congress may go as far as it has gone in the past, but no farther view the mandate quite differently.  Because the power to require all citizens to enter into contracts with private companies is a new or “unprecedented” claim of power, it is at minimum constitutionally suspect and at maximum unconstitutional.  Given the baseline, the burden is on the government to justify this expansion of federal power as both necessary and proper.  As important, there must be some identifiable and judicially administable limit on its exercise.

Ultimately, it will be up to the individual Justices to decide which baseline they wish to employ.  Do Lopez and Morrison represent merely symbolic “sport” cases as so many academics now believe?   Or did these cases (along with cases such as New York, Printz and Alden) establish a post-New Deal baseline (“this far and no farther”) beyond which Congress may not go without meeting a serious burden of justification?  Because this case will tell us which baseline the Roberts Court wishes to affirm for the future, it is both a very big deal and not all that easy to predict simply on the basis of prior cases and doctrines.  If the Roberts Court adopts the first baseline, however, it will not only be repudiating what I believe to be the best reading of the Rehnquist Court’s landmark decisions establishing the so-called New Federalism, it will finally be doing what even the New Deal Court could not bring itself to do.  Regardless of how they eventually rule, one can well understand why the Court would feel the need for 3 days of oral argument to consider this decision.

Trevor Burris responds to my exchange with Orin on applying the state noncommandeering doctrine to mandates that “the people” enter into contractual relations with private companies in Commandeering the People to Avoid Taxation: A Reply to Barnett and Kerr.  Here is an excerpt:

I believe Professor Barnett has the right of it, but I do acknowledge Professor Kerr’s concerns. I would like to add something to Professor Barnett’s argument: The individual mandate was passed to avoid the political liability that a taxation-driven scheme would have brought (if you doubt this, read Michael Cannon’s post here). This is constitutionally significant to the anti-commandeering argument.

[snip]

If the federal government is properly understood as resting on dual representative pillars—the people and the states—then either can be commandeered. Although our case law only discusses the impropriety of commandeering state governments, it is fully within a proper understanding of the Constitution that people are equally susceptible to unconstitutional commandeering. It is of no matter that they are commandeered at other times—e.g., jury duty, the draft, etc.—because states are likewise commandeered by the Constitution—e.g., rules on choosing senators, members of Congress, and electors, as well as the prohibitions in Article 1, Section 10. But since, at some fundamental level, commandeering is so repugnant to a limited government empowered by a free people, there has to be some way to determine unconstitutional commandeering.

In order to determine this, I propose that, because we are talking about the people and not the states, we must look to the ways in which commandeering is constitutionally allowed and see if those protections have been avoided in passing the individual mandate. Taxation is a dangerous power, but the Constitution requires that it be above the board so citizens are aware when forced wealth transfers are occurring. For similar reasons, Article 1, Section 9 requires that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” As Michael Cannon’s post linked above shows, this type of accounting was intentionally avoided by Congress in passing PPACA.

So, I offer to Professor Kerr this principle of decision in the case: THIS IS NOT OKAY. Specifically, when looking to whether or not the people have been commandeered, we look to whether the protections in the Constitution that prevent commandeering have been avoided. One instance in which this would nearly always be the case: the forced purchase of a product from a private entity.

You can read the whole thing here.

A few clarifications of my position.

• In my view, “commandeering” has a much narrower and more specific meaning in the existing doctrine than “commanding.”  It means taking over a power properly exercised by another sovereign.  In New York, the power is that of a State legislature to enact legislation (and the correlative power to decline to exercise this power).  With the mandate it the power of “the people” to consent to enter into contractual relations with a private party (and the correlative power to decline to exercise this power).   Just as state legislatures have their own reserved power to enact statutes, so too do individuals have the reserved power to alter their legal relations with others via contract.  Indeed, as Lon Fuller observed, these powers are very similar.  ”Commandeering” is the coercing of states (or by extension individuals) to exercise their distinct powers in ways desired by Congress.
• For this reason, making you live with a soldier in your home, convicting yourself by your own words, or performing personal services for another, best exemplify the noncommandeering concept.  The power to “take” property for public use, an example I also used in my earlier post, is closer to the power to tax.
• Now, Congress has expressly delegated powers to coerce individuals that it lacks against the States, most importantly the power to tax.  But the (dangerous) power to confiscate property in the form of taxes or by eminent domain is not the same as the power to make someone alter their legal relations with another person, which is what contracts do.
• Congress also has many powers at its disposal to create incentives for states and individuals to exercise their reserved powers in ways that Congress desires, and providing such incentives is not “commandeering” (unless, as per Dole, they cross the line into “coercion”).
• Likewise, as the term appears to be used by the Court, States (and by extension private persons) are not “commandeered” when they are forcibly prevented from exercising their powers, or when they are regulated in the manner of their exercise.   Prohibitions on race and sex discrimination by individuals regulate the manner by which certain activities like operating a restaurant or hotel are to be conducted; these measures do not command that persons enter into the restaurant or hotel business.  The very same line has implicitly been drawn by the Court in applying the noncommandeering doctrine to States, while upholding the power of Congress to regulate the manner by which States engage in economic activity.
• This is all a question of delegated power, not the side constraints of rights.  Congress is claiming an implied power to force people to enter into contracts with private companies.  Is its claim of implied power warranted or not?   The fact that, as Justice Kennedy explained in Bond, the enumeration of delegated Congressional power is a means of protecting liberty does not render it the same type of endeavor as the doctrinal protection of certain “fundamental” rights under the Due Process Clause.   Indeed, the Federalists originally contended that the protection of express rights would be unnecessary at the federal level because of the limited and enumerated delegation of powers in the Constitution.

I think the “commandeering” concept best explains why so many people instinctively find the individual insurance mandate peculiarly offensive, just as it explains why some justices found the State mandates in New York and Printz to be objectionable.  Conversely, those who take a fundamentally different view of the relationship of the individual to the government — or of the States to the federal government — simply do not understand what the fuss is all about.  In this regard, if no other, the debate over the mandate is revealing.

You can read a fuller treatment of the approach in my 2010 law review article, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional.  But since I published that piece, I have had considerable time to give the matter fuller thought, so I might not explain the position precisely the same way today.

In his thoughtful post, Orin says he would support striking down the individual insurane mandate on federalism grounds if the Supreme Court provided a “genuinely principled or workable doctrine to justify” its decision. “[I]f we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed. . . .” Of course, he admits that his cross-cutting considerations are “competing” and therefore difficult to satisfy. Indeed, he characterizing satisfying them all as a “pipe dream.”

But I think there is an existing constitutional doctrine already limiting the commerce power of Congress that does satisfy most of Orin’s competing considerations: the doctrine established by the Court in New York v. United States (1992) in an opinion by Justice O’Connor that bars Congress from commandeering state legislatures by mandating that they enact laws.  New York has been widely accepted and applied without raising the sort insuperable line-drawing problems that concern Orin, and the underlying noncommandeering principle has been extended to bar commandeering of state executive branch officials (in Printz v. United States (1997) in an opinion by Justice Scalia) and the state judiciary (in Alden v. Maine (1999) in an opinion by Justice Kennedy). This line of cases is now 20 years old and considered well settled. Congress has been able to legislate quite extensively without running afoul of the prohibition on state mandates (though the Medicaid requirements of the Affordable Care Act are now testing the boundaries of this structural constraint). So the noncommandeering principle as applied to states seems to satisfy Orin’s Burkean concerns.

Notice that, in each of these cases, the Congress was purporting to exercise its power to regulate interstate commerce under the Commerce Clause, and the Court did not question that this was indeed the legitimate end or purpose of the challenged legislation. What was at issue was the means that Congress used to effectuate this end. In Printz, the government justified its choice of means under the Necessary and Proper Clause. Writing for the Court, Justice Scalia did not question the measure’s necessity, but concluded that the means employed was “improper.” In this respect, Justice Scalia’s decision in Printz is quite different than his concurring opinion in Raich that solely concerned the necessity of the prohibition of home-grown marijuana in states that authorized its possession and use. In Raich, no one questioned the propriety of the means that Congress had used to effectuate its commerce power. Furthermore, in none of these noncommandeering cases was this restriction on the propriety of the means chosen to effectuate the commerce power based on the protection of “liberty” in Due Process Clause of the Fifth Amendment. Instead, it was based on the “structural” principle of limited state sovereignty that the Court concluded was presupposed by the Tenth and Eleventh Amendments. While states may be regulated in how they conduct their affairs by, for example, barring them from engaging in racial or sex discrimination, and they may be barred from certain activities altogether, they may not be “mandated” to enact legislation, or enforce federal law.

Of course the obvious objection to applying the noncommandeering doctrine in the ACA challenge is not Burkean, but legal:  it is individuals and not the states who are being commandeered by the Affordable Care Act, so the existing noncommandeering doctrine does not apply. Yet the principal textual basis for the decisions in New York and Printz was the Tenth Amendment that reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Tenth Amendment, therefore, protects popular as well as state sovereignty. Indeed, it protects them equally. (The Virginia legislature initially refused to ratify the Tenth Amendment precisely for this reason.)  Requiring citizens to “consent” to contracts is very much the same as requiring states to enact legislation. As the famed contracts scholar Lon Fuller wrote, the “power of the individual to effect changes in his legal relations with others [by entering contracts] is comparable to the power of a legislature. It is, in fact, only a kind of political prejudice which causes us to use the word ‘law’ in one case and not in the other. . . .”

The principle that the people may not be commandeered is reflected in several other constitutional provisions. The Third Amendment bars the commandeering of the people’s houses to quarter the military during peacetime. (“No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”) The Fifth Amendment bars the commandeering of private property. (“nor shall private property be taken for public use, without just compensation.”) The Fifth Amendment also stipulates that no person “shall be compelled in any criminal case to be a witness against himself.” And the Thirteenth Amendment bars the commandeering of a person’s labor by private parties or by the government itself (“Neither slavery nor involuntary servitude . . . shall exist within the United States”).

Of course like every legal principle, there are exceptions to the noncommandeering principle. Soldiers may be quartered in private homes in wartime if authorized by law. Private property may be taken “for public use” provided “just compensation” is made.  Involuntary servitude may be imposed “as a punishment for crime whereof the party shall have been duly convicted.” In addition, the people may be “commandeered” by the federal government to serve in the military, to file federal tax returns, to serve on juries in federal court, and to serve on a posse comitatus.  The first of these exceptions, however, was expressly grounded on what the Supreme Court characterized as “the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation. . . .” Likewise, the other duties can be considered duties of citizens owed to the government itself.  Moreover, none of these duties of citizenship have ever been associated with the commerce power.

While the existence of exceptions does make line drawing more difficult, this is pervasive in all of law. And the historical exceptions to the principle against commandeering the people are all specifically or narrowly defined and deeply rooted in the nation’s traditions, which is exactly the “conservative” criteria by which the Supreme Court defines exceptions to legislative powers on behalf of individual liberty under the Due Process Clause. So the relevant question is whether a duty of citizenship to buy private insurance is deeply rooted in the nation’s tradition? Or more broadly, is there “a supreme and noble duty” of American citizenship to do anything that Congress in its discretion deems it necessary to its regulation of interstate commerce?  Analyzing a claimed “duty” of citizenship the way the Supreme Court now analyzes claims of liberty would yield a ready answer.

Of course, although the noncommandeering principle is based on both the text of the Constitution (as just described), its application in this case would be “novel.” But this is due entirely to the novelty of the individual insurance mandate. Simply because the mandate is literally unprecedented, so too would be any doctrine directly addressing it, however fundamental the principle being effectuated. Printz too considered a “novel” claim of power to control state executives, requiring the identification of a new rule of law. Yet, as Justice Scalia wrote, “if . . .earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist.”

Barring the government from commandeering the people by imposing economic mandates upon them would not affect any other law ever enacted by Congress because such mandates are unknown in our history. Such a ruling would not bar Congress from using its tax powers when it has the political will to do so (subject, of course, to whatever doctrines now limit that power).  Such a ruling would not bar states from exercising such a power if it was authorized by a state’s constitution (subject, of course, to other constitutional limitations on state powers). Such a ruling would only require the conclusion that, just as the Constitution did not delegate to Congress the power to commandeer state legislatures as a means of exercising its commerce power, neither did it delegate the power to commander the people as a whole to enter into contractual relations with private companies.  In short, if a majority of justices have the will to invalidate the individual insurance mandate, they surely have the way.

I, for one, think Orin’s post below on Golan v. Holder is pretty funny. The Pacific Legal Foundation’s Tim Sandefur, however, is not amused and offers a substantive response here.

With 4 distinct questions being separately briefed and argued — and amici appointed to argue two of the questions apart from the petitioner or respondent — it is a real challenge to keep all the relevant dates in the proceedings straight. For those who are following the case, here is the timetable between now and the end of oral argument on March 28th, with the dates concerning the individual mandate highlighted in bold (NFIB = National Federation of Independent Business, the party I represent with Jones Day):

January 6:

• NFIB & States separate briefs on severability (mandate not severable from entire ACA) ;
• Government brief on mandate
• Amicus briefs supporting NFIB/States on Severability
• Court-appointed Amicus Robert Long’s brief on Anti-Injunction Act (i.e. AIA applies)

January 10:

• States brief on Medicaid (spending power)

January 13:

• Amicus briefs supporting Government on mandate
• Amicus briefs supporting Court-appointed amicus on Anti-Injunction Act (i.e. AIA applies)

January 17:

• Amicus briefs supporting States on Medicaid

January 27:

• Government’s brief on severability (i.e. mandate not severable from insurance company mandates, but rest of ACA stands)

February 3:

• Amicus briefs supporting Government on Severability

February 6:

• NFIB & States separate briefs replying to Government/Amicis on mandate

February 10:

• Government’s brief responding to States on Medicaid

February 13:

• Amicus briefs supporting NFIB/States on mandate

February 17:

• Court-appointed amicus H. Bartow Farr, III’s brief on Severability (i.e., only mandate falls)
• Amicus briefs supporting Government on Medicaid

February 24:

• Amicus briefs supporting Court-appointed amicus on severability (i.e., only mandate falls)

February 27:

• NFIB’s reply brief on Anti-Injunction Act

March 7:

• Government’s reply brief on mandate

March 12:

• Court-appointed amicus reply brief arguing for Anti-Injunction Act
• States reply brief on Medicaid

March 13:

• NFIB, States & Government separate reply briefs on severability

March 26:

• 10:00-11:00 a.m. Oral argument on whether Anti-Injunction Act applies (divided between NFIB, States, Government & Court-appointed Amicus Robert Long)

March 27:

• 10:00 a.m.-noon Oral argument on individual mandate (divided between NFIB, States & Government)

March 28:

• 10-11:30 a.m. Oral argument on severability (divided between NFIB, States, Government & Court-appointed Amicus H. Bartow Farr, III)
• 1:00-2:00 p.m. Oral argument on Medicaid (divided between States & Government)

Mark your calendars.

Stanford contracts professor Richard Craswell conceived, wrote and performed these amazing songs about six of the most famous and memorable cases in contract law. I laughed out loud at the first one, but they all are simply brilliant. If, that is, you took first year Contracts.

UPDATE: By the time I had listened to all these songs and cut and pasted all the links into a blog post, I see that Eugene already blogged about these. But having the videos embedded might be more convenient for some, so I will leave it up.

I recently finished reading Pauline Maier’s marvelous book, Ratification: The People Debate the Constitution, 1787-1788. Maier, a historian at MIT, has written the first comprehensive narrative of the ratification of the U.S Constitution, from the Philadelphia convention, through each of the states (in order of deliberation) and the drafting and adoption of the first 10 amendments. It was made possible by the still incomplete Documentary History of the Ratification of the Constitution that now runs to 24 volumes, on which Maier based much of her research.  The records of the ratification debates are notoriously incomplete but Maier is able to fill in many of the gaps with other sources.

Having read much of the surviving records of the ratification convention debates, I probably know more about these conventions than most people. Yet there was far more in Maeir’s book that I did not know than I did.  Studying the conventions in chronological order makes far clearer the evolution of the arguments against and for the Constitution as well as the shifting tactics of both sides. You also learn about the differing political and economic situations of each state, as well as the biographical backgrounds of the major players, and many of the minor players as well. It is a riveting story, engagingly told. And the new paperback is just $12.91 on Amazon.com!

The story is also told in an extraordinarily fair and balanced way. Having previously read Maier’s views on the Second Amendment expressed in a New York Times op-ed, I was on my guard for the sorts of biases one typically finds in historical treatments of subjects with potential contemporary relevance. In addition to leaning one way or the other on the meaning of the text, there are always those scholars who perennially love or hate Hamiltonian, Jeffersonian, or Madison, etc. or those who root for or against the Federalists or the Antifederalists.   So far as I could tell, Maier’s treatment is as “neutral” or “objective” as is possible for a scholar to be, unfashionable as those terms may be among academics.   It just seems like she is telling the story as it unfolded, letting each character speak for him or herself, while dispassionately presenting the various strengths and weaknesses of each. I got little or no sense of whose side she may or may not be on, or who she liked or disliked.

In any historical work of this breadth, you are forced to judge the accuracy of the information with which you were previously unaware with the accuracy of the information you already knew. Through all this 480 page  book, I found nothing at odds with what I thought I knew, giving me confidence in the rest.  One reason for this, perhaps, is that Maier offers little information that is comprehensive enough to draw conclusions on original meaning — and she only rarely even suggests any interpretive claims. So in contrast to her op-ed on the Second Amendment, there is little or nothing with which to disagree on originalist grounds.

Which is not to say there is nothing of substance to learn from this story.  Perhaps the most pervasive theme of the book is how widespread the pressure for amendments was by opponents, and even most supporters conceded that some amendments were necessary.   Although I already knew this in general terms, it was most powerful to read accounts of the role that amendments played at each convention after the earliest ones.  Reading this account makes it very clear why it was that the Constitution was so quickly amended — although (as I have written) Madison had to overcome much resistance among a Federalist dominate Congress to get it to take up the matter — and why the amendments proposed by Congress were so disappointing to so many of the Antifederalists. Indeed, the debate over possible amendments and whether their adoption should precede the adoption of the Constitution or come afterwards is probably the dominant theme of the book.

Given my views on originalism, some may wonder what implications Maier’s book has for original meaning interpretation.  I can think of one: this work undercuts claims by some originalists that, where the general public meaning of the text is vague, the ratification debates clarify that meaning by rendering it more specific. For example, some cite the Virginia ratification debates in which the Federalist defenders of the Constitution denied that states could be sued by citizens of another state in federal court as Article III appears clearly to authorize. The claim is that vague original meaning was “fixed” by the views that supporters of the Constitution offered to clarify meaning.  For example,the claim is made that that debates in Virginia support the conclusion that Chisholm v. Georgia, which rejected Georgia’s claim of sovereign immunity from citizen suits, was wrongly decided and that the Eleventh Amendment reversing that holding restored the original meaning. The alternative view is that the Constitution’s text did authorize such suits (though this may or may not have been an oversight), and once the Supreme Court correctly so held, Congress and the states revised the Constitution’s text to eliminate this federal jurisdiction over states.  (I have written about Chisholm here.)

Maier’s narrative makes it abundantly clear that few outside the walls of any convention would have been aware of any statements by the Constitution’s supporters, and convention delegates in one state knew very little about what transpired in the others. Although convention statements both for and against the Constitution are evidence of original public meaning, public statements by Federalist supporters cannot provide a definitive gloss on that meaning.  To the contrary, the very fact that the Antifederalists read the provisions in Article III this way, which then required an extra-textual admission of sovereign immunity by the Constitution’s supporters, is some evidence that the Supreme Court in Chisholm was right about the public meaning of the text.  (Of course, one can see why a historian like Maeir who, in her NYT op-ed, makes claims about “original intent” might think otherwise, but she makes no such “originalist” claims in this book.)

No one should read Pauline Maier’s wonderful book looking for insights about interpretive methodology or the original meaning of various clauses. One should read this book if you are at all interested in how the Constitution came to be, and what American political discourse was like during this crucially important and formative period of American history. And one should also read this book if one simply wants an engaging and entertaining story that you may have thought you already knew, but didn’t really.

UPDATE:  The Amazon sales ranking for Maeir’s book from Amazon moved up from over 19,000 yesterday when I posted to 2,391 today (though a link this morning from Glenn Reynolds no doubt helped a little).

Gigi Garner, the daughter of James Garner, sent me this nice email reply to my post Remembering Maverick: The Garner Files: A Memoir about her dad’s new book, (which I post here with her permission):

Hey Randy,

Wow! What a nice unexpected surprise!
I am so used to promoting everybody else, it is a shock that you and John Nolte from “Big Hollywood” were both kind enough to do it for us,
for a change!
I will read your kind words to him when I see him tomorrow ;)
Thank you so much!

Happy Holidays ;)

Gigi

You can watch father and daughter here:

And buy the book here:

I have made no secret that I was a “child of TV.” And one of my earliest and fondest memories was staying up to watch Maverick with my dad. When I was a bit older, my brother and I would play Maverick. We would wear our white jeans and the jackets from our black suits. I assume that I played Bret and my brother played Bart, but he thinks we probably switched off. That was because everyone liked the Bret character best. When I was in law school I tried not to miss an episode of The Rockford Files, which required a certain commitment since you had to watch live in those pre-VCR, pre-DVR days. Although TV watching was not considered cool and I should have been studying, I watched a good deal of TV in law school. But the only two shows I remember watching were The Rockford Files and Kojak. Years later, I watch Maverick reruns with my kids when they were young, and I taught then to sing the theme song, which we would all sing together in the car. I can still type the lyrics from memory without looking it up:

Who is the tall dark stranger there,
Maverick is the name.
Rides the trail to who knows where,
Luck is his companion,
Gamblin’ is his game.

Smooth as handle on a gun,
Maverick is the name,
Wild as a wind in Oregon,
Blowin’ up a canyon, :
Easier to tame.

Riverboat ring your bell,
Fair thee well Annebelle,
Luck is the lady that he loves the best.
Natchez to New Orleans,
Livin’ off Jacks and Queens,
Maverick is a legend of the West.

Which is why I so enjoyed The Garner Files: A Memoir by James Garner. It is a rich story, pretty obviously told in his own words (although he has a co-author), that stems from his colorful childhood though his long career. I learned a lot about Maverick and The Rockford Files. I didn’t know, for example, that the Bart character was added after the show premiered with Garner alone because they could not keep up the shooting schedule and needed to shoot two episodes at a time.

But I learned even more about the man behind the screen persona.  As Garner writes, when you are on TV, people think they know you. I didn’t really think this before, but I do now. Mostly it is his thoughts about himself and others, but also his experiences. I had forgotten about his clashes with studios. And as a self-proclaimed “bleeding heart” liberal, he is justly proud about being in the second row of celebrities to hear Martin Luther King’s “I Have a Dream Speech” at the March on Washington. But perhaps the most poignant passage for me was in the appendix of contributions from his family, friends, and coworkers. This statement by his daughter Gigi made my eyes moisten:

I’ll never forget the morning of the Sylmar earthquake [in 1971]. My dad happened to be in the shower when the house started shaking so violently that he was literally thrown out of it. Since I was going to work with him that day, I was already awake and was paralyzed with fear, watching the books fly off the shelves. But, as soon as I heard him running down the hallway to my room, I knew everything would be alright. My Dad was there to rescue me, as he went on to do many times throughout my life.

(Maybe it is because I have a daughter. Gigi has set up a website in tribute to her dad here, which you should check out. Hat tip to John Nolte at Big Hollywood.)

Besides recommending the book to anyone who shares my interests in Maverick, Rockford, or Garner, however, I want to comment on an observation with which he concludes his memoir:

I’ve been asked again and again, “How do you want to be remembered?” I usually say I don’t care, but that’s not true. I want to have accomplished something, to have made a contribution to the world. It would be wonderful if just one person looked at my life and said, “If he could overcome that, maybe I can too.”

Beyond that, I think an actor can contribute by making people forget their troubles for an hour or two. Call it relief, escape, diversion . . . I think one of the greatest gifts is being able to make people happy. I like to make people happy.”

So, if anyone asks, “How do you want to be remembered?” I tell them: “With a smile.”

Fair enough, but I think this seriously sells short what a TV actor can contribute. Having been involved in shooting a film with professionals, I saw how difficult acting can be and how hard actors work if they are any good.  But I think the toughest thing about the acting profession is the long stretches in which actors are not working, which even for successful actors is a lot, the life style they are expected to live when they have too much time on their hands, their loss of privacy that we all take for granted, and their justified insecurity about maintaining their careers. This is enough to reveal the weaknesses in anyone’s character as it so often does to these people who are flawed as we all are, but perhaps a little more so which explains why they took up acting in the first place.  While I shed no tears for them, neither would I trade my career for theirs.

But this is not my main point, which concerns the payoff of all this work. It goes beyond making people happy. By knowingly employing his distinctive skills and gifts, including the gift of his good looks, Garner created not one but two characters that contributed to popular culture in important ways. It comes through the book that men have told Garner his whole career that they watched Maverick as kid with their dads, like I did.

Garner’s two most famous characters set an example of manliness at two stages of life. Smart, tough, funny, a little cynical and knowing but with a pinch of optimism and even naivete, respectful towards women, willing to stand up for himself or others when pushed, but only after first looking for a way out of conflict, a sense of justice.   Developing such a character that people think they “know” is something only an talented actor (along with talented writers) in a long-running TV show can accomplish. Two hours on the screen in a movie is not enough to make that connection, to provide that example, unless the actor plays the same character over and over, like John Wayne or Garner’s friends Steve McQueen or Clint Eastwood. But even their screen personas are not as particular as the Bret Maverick or Jim Rockford characters, who we get to observe in one situation after another. These characters are Garner’s most important “contribution” to others.

Very few actors, however talented or successful, ever get to make this contribution. James Garner is one of them. It is too bad he does not fully appreciate just how successful he has been.

UPDATE: One further thought. Another difference between developing a character in a TV series, or developing a screen persona like Wayne’s, Eastwood’s or McQueen’s is that theirs purport to be about the actor not the particular character and, as such, are invariably false. John Wayne was not John Wayne. But because, a character like Bret Maverick is fiction, it cannot be false. Like Sherlock Holmes, the character is who he is and is therefore true. For this reason any disjuncture between Garner and his characters does not detract in the slightest from them, as it might as one learns more about the true character of one’s favorite star.

From the Weekly Standard Blog:

A ballot measure that StateImpact Ohio (a creation of local public media and NPR) describes as “a referendum on a constitutional amendment…aimed at keeping the national health care reform law from taking [e]ffect” won in all 88 counties in Ohio. In 81 of the counties, it won by a margin of at least 20 percentage points. Statewide, it won by 32 points (66 to 34 percent).

The measure took particular aim at Obamacare’s individual mandate, stating, “In Ohio, no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.”

Voters in Ohio can’t opt out of Obamacare any more than the residents of the other 49 states can, so the measure will have no practical effect.  But the message, sent in one of the three largest swing states, could hardly be clearer.

The Cleveland Plain Dealer, which calls the referendum “a strike at President Barack Obama’s health care plan,” reports, “The measure was ahead by a wide margin even in Cuyahoga County — a traditional Democratic stronghold.”  With 100 percent of the precincts counted in that county — where Cleveland is located — the referendum won by 16 percentage points (58 to 42 percent).

This in the same election that unions spent millions in a successful bid to repeal the Republican restrictions on the collective bargaining rights of public sector unions.

Well, we now have the last Circuit Court of Appeals decision to digest before hearing later this week or next whether the Supreme Court will take up the challenge and what question will be presented to the Court.  Assuming it does, there will then be merits briefs and oral argument.   But first, some brief and and very preliminary reactions to today’s decision.

(1) It is another divided decision, which is now the pattern.  Whether upholding or striking down the individual mandate, the Court of Appeals judges are all over the map.  This is not indicative of a case dictated by previous decisions that has a predetermined outcome.

(2)  The decision tracked oral argument as I described it here.  Judge Kavanaugh clearly telegraphed his enchantment with the Antitax Injunction Act.  Judge Edwards clearly telegraphed his view that little needed to be said to find that the ACA is constitutional (as he said very little art argument or in his concurrence).  And, although I hoped against hope that Judge Silberman was not telegraphing his position when he strongly asserted that the “logic” of Wickard v. Filburn authorized economic mandates, sure enough he stuck to that position.  (I have already blogged here about why I think Judge Silberman is misreading the actual opinion in Wickard.)

(3) With respect, I beg to differ with my co-blogger Stuart’s post below.  Should the Affordable Care be upheld, Judge Silberman’s opinion in no way will provide a template for a majority opinion by any justice, but especially not one by Justice Scalia.  Like Judge Sutton’s concurrence in the Sixth Circuit, this opinion has all the hallmarks of a decision its author knows full well is  not the last word in the case.  Like Judge Sutton, Judge Silberman is punting to the Supreme Court.  I am not claiming that he does not believe in the correctness of his decision.  I believe that he believes.  I am merely claiming that he would never be content with this being the final word on the subject of the scope of Congress’s power.  And he knows it won’t be.

There are at least two key passages that Justice Scalia would never write:

We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right.

This is a remarkably blithe acceptance of a claim of a practically unlimited congressional power that belies Chief Justice Marshall’s injunction in Marbury v. Madison that “[t]he powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.”   Recall it was Justice Scalia who asked Solicitor General Drew Days during oral argument in Lopez to identify the limit on the government’s claim of power under its reading of the Commerce Clause.  Like the government’s attorney here, Days was unable to provide any limit.  That was not a winning answer.   Therefore, I am confident that, before upholding this power Justice Scalia would need to satisfy his “discomfort” with so “troubling” a “difficulty.”  Whatever limiting principle he would craft, it would not be this one:

It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.

It most certainly does not “suffice” to identify a factually “unique” circumstance without identifying an administrable constitutional principle that can be applied in future cases.  As Judges Dubina and Hull wrote in their jointly-authored Eleventh Circuit opinion:

We are at a loss as to how such fact-based criteria can serve as the sort of “judicially enforceable” limitations on the commerce power that the Supreme Court has repeatedly emphasized as necessary to that enumerated power….  Were we to adopt the “limiting principles” proffered by the government, courts would sit in judgment over every economic mandate issued by Congress, determining whether the level of participation in the underlying market, the amount of cost-shifting, the unpredictability of need, or the strength of the moral imperative were enough to justify the mandate….  Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none.

Justice Scalia knows that, because the Court defers to Congress on such factual predicates, this is really no limiting principle at all.

Then there is the second key passage that I simply cannot imagine being written by Justice Scalia, should he decide to uphold what Judge Silberman concedes (his discussion of Wickard notwithstanding) is an unprecedented claim of power:

The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.

Although no one has asserted any such “right,”  the proposition that there is a liberty left over or “reserved” after the delegation of powers to the federal government is simply the implication of the enumerated powers scheme, an implication made express by the Tenth Amendment, which secures the reserved powers of both the states and the people.   Taken literally, this sentence by Judge Silberman implies that the Tenth Amendment “yields” to the unenumerated “imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.”  Indeed, it is this  ”imperative” that underlies the logic of Judge Silberman’s entire opinion, which is just the “logic” he finds in Wickard.

However Judge Scalia votes in this case, I would be shocked if he endorses this proposition.  (Indeed, Justice Scalia apparently thought that Justice Stevens’s majority opinion in Raich was too broad, so he concurred only with the result.  And, while Justice Kennedy did sign onto that opinion, he later affirmed in both Comstock and Bond his view that the Commerce Clause does have justiciable limits.)

In short, Judge Silberman’s opinion decision ultimately rests on his claim that Congress has an unlimited power “to forge national solutions” to whatever it deems to be a “national problem,” which is why the stakes of this legal challenge are so high.  Fortunately, his will not be the last word on these constitutional challenges.

Lyle Denniston reporting on ScotusBlog:

The Supreme Court will take its first look at the challenges to the new federal health care law at its Conference on Thursday, November 10.  Five of the six pending petitions (the sixth is not ready yet) were distributed to the Justices’ chambers on Wednesday, for consideration at that private session.  Although a grant of review is not assured, that is highly likely, since all sides agree that the Court should take on the controversy, and the constitutionality of a keyprovision of the new law has been decided differently by federal appeals courts.

It will be up to the Justices themselves to decide (a) which petitions, if not all of the five, should be reviewed, (b) which issues it is ready to decide, (c) how to line up the lawyers on each side of those issues, and (d) how much time to allow for oral argument.   Because the five are now ready for the Court’s consideration, a grant of review soon would assure that they could be heard and decided during the current Term of the Court, which is due to run until near the end of June.

The first decision the Court will face in this historic dispute is whether to grant any of the petitions  or any of the issues.   The Justices have the discretion to grant all, some, or none, since none reached the Court as a mandatory appeal.

Four of the petitions were filed by challengers, and together they raise all of the key issues the Justices may want to consider as they examine the massive Affordable Care Act passed by Congress at the urging of President Obama.  The fifth petition is the federal government’s. defending the constitutionality of the insurance-purchase mandate that is crucial to the overall law’s functioning.  The government also is urging the Court to keep its review to only a few vital questions.

The sixth pending petition involves an attempt by the state of Virginia to get back into the constitutional fray; the Fourth Circuit Court ruled that Virginia did not have a legal right to bring its court challenge, since it could not show that the state would suffer any harm from the new insurance mandate.   That case will be ready only when the federal government files a response, which currently is due on Nov. 3.  The government has not hurried its filing of a response in this case, as it had done in most of the others.

Read the rest of the post describing each lawsuit here.

Lately, I have been remiss about announcing where I am speaking, so here are three upcoming talks or debates on the constitutionality of the Affordable Care Act:

Monday, October 24th (tomorrow) at 11:50am:  Temple Law School (Federalist Society)

Wednesday, November 16th at 4:00pm:  Drexel School of Law (American Constitution Society & Federalist Society)

Wednesday, November 20th at 12:00pm:  Penn Law (Federalist Society)

Over the summer I criticized a House Republican medical malpractice reform as “fair-weather federalism” in this op-ed in the Washington Examiner: Tort reform and the GOP’s fair-weather federalism.  Now Senate Republicans are emulating their colleagues in the House by including medical malpractice reform as part of their new “jobs” bill.   On today’s NRO, attorney Carrie Severino, who has authored several excellent amicus briefs on behalf of Senate and House leadership in the challenges to the Affordable Care Act, has a column criticizing this proposal: Senate GOP Jobs Bill Contains a Landmine for Federalism.

The law’s own justification for its constitutional authority should be chilling to anyone committed to limited federal power. The bill’s findings state that health care and health insurance are industries that “affect interstate commerce,” and conclude that Congress therefore has Commerce Clause power to regulate them — even when it involves an in-state transaction between a doctor and patient, governed by in-state medical malpractice laws. Is there any industry that couldn’t be found to have an effect on interstate commerce?

But that is not even the worst part of the constitutional justification included in the bill.   Consider this statement of Congressional power:

EFFECT ON INTERSTATE COMMERCE- Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers.

Yes, you read that right.  Senate Republicans are claiming that Congress has power over the judiciary of the states because state courts are an activity that “affect[s] commerce.”

As Carrie concludes:

There are serious problems with our current legal climate, and medical malpractice is an area of specific need. Like the proponents of this bill, I am no fan of frivolous lawsuits or the trial lawyers who use our civil justice system as a means of diverting wealth (usually into their own bank accounts). But if we sacrifice our commitment to the rule of law here, what standing do we have when the next iteration of Obamacare presents itself?

I hope Senate Republicans will consider replacing or removing S.197 from their jobs bill.

True that.  With friends like these, constitutional federalism does not need enemies.  Can we coin a new pejorative FINO:  ”Federalists in Name Only”?   Oh well, I guess not.   But the best thing that can be said about this proposal is that it won’t become law.

Lyle Denniston has an interesting post on SCOTUSBlog about the timing of the various lawsuits.  It is too complex to excerpt here without copying the whole post.  So, if you are interested, click here.

A few weeks ago, I blogged about oral argument in the DC Circuit Court of Appeals in the Seven-Sky v. Holder case. In my post I expressed some concern about a colloquy between Judge Silberman and Ed White, counsel for the American Center for Law & Justice, about the scope of Congressional power upheld in Wickard v. Filburn. In particular, Judge Silberman asked counsel for both sides to comment on what he presented as the “logic” of Wickard. Here is the exchange with passages of particular interest highlighted in bold and italics I have added:

MR. WHITE: Because I think as the Middle District of Pennsylvania noted just last week, the judge was bound by Stare Decisis, is it’s not just the outer reaches where you’re looking at Wickard and Raich, which are basically the same case even though it’s a different substance, but you look at Lopez and Morrison –

JUDGE SILBERMAN: That’s not true. They’re not really the same case. I think Wickard goes, forgive me for stopping you, but I think Wickard goes further. Wickard, if you read it carefully, applied in the following situation. You have a small farmer who wishes to grow wheat for the purpose of baking bread for his own family and only for his own family and nevertheless, he can be barred from doing so. Now, in a sense, that is a greater exercise of Governmental power than this case because as Justice Jackson pointed out, the purpose of the statute was to force that farmer to buy wheat in the interstate market. He couldn’t grow it himself, even to feed his own family.

MR. WHITE: I will address that after I address this first point, okay? Where when you look at Lopez, when I say hey’re basically the same case, I think the Supreme Court in Raich said they’re very similar, similar circumstances, okay, and I understand there are nuances to everything, is that when you look at Lopez and Morrison, the Court said, you know, the line is drawn between economic and non-economic activity. Here, we have really the absence of commerce activity. And said you also have to consider the limits of federalism because that’s very hard because we, we are a country with a free market economy. We’re not, you know the Soviet Union with a centralized, controlled command economy where the Federal Government tells us everything, what to do. And especially when we go back to when you talk about Massachusetts, the states, and that’s where people (indiscernible) liberty to, the states are supposed to be laboratories of experimentation and if the situation in Massachusetts really seems to work over the course of time, other states can adopt that and can move on. Now, going to Wickard, Wickard is more of a limitation. When we talked about Congress says, you were talking earlier about Congress can regulate and prohibit as they did, Wickard is a limitation in the sense that Filburn was still able to grow a percentage of his acreage of wheat.

JUDGE SILBERMAN: That’s only because there was an exemption for small farmers. But the logic of Jackson’s opinion, it seems to me, made it quite clear he could have been barred from growing any wheat whatsoever.

MR. WHITE: Well, if –

JUDGE SILBERMAN: And even to feed his own family.

MR. WHITE: Well –

JUDGE SILBERMAN: >Force him to buy in the interstate, in the open market.

MR. WHITE: Well, I do not think –

JUDGE SILBERMAN: Which is sort of a mandate, isn’t it?

MR. WHITE: Well, not really. If anything, it’s a limitation or a prohibition. If Congress said we’re, in effect, going to outlaw wheat growing –

JUDGE SILBERMAN: Sort of reminds me of let them eat cake.

MR. WHITE: And unfortunately, that might be where we’re going if this, you know, if Congress has this unlimited power. They are letting eat cake.

In my experience, the seminal New Deal opinions, broad as they were, were not nearly as broad as constitutional law professors later made them out to be. Because of the gloss on these decisions that has been applied over the decades, one needs to examine what they actually said. To evaluate the interpretation of Wickard articulated by Judge Silberman, it is useful to read the relevant portion of Justice Jackson’s opinion ( 317 U.S. at 127-29) in its entirety to preserve context, once again with the most relevant passages indicated in bold, and with some comments in brackets:

The effect of consumption of home-grown wheat on interstate commerce is due to the fact that it [i.e. the consumption of home-grown wheat] constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 percent of average production. The total amount of wheat consumed as food varies but relatively little, and use as seed is relatively constant. [ME: When Justice Jackson is discussing "home-grown wheat" and "consumption on the farm where grown" which he characterizes as "the most variable factor," he distinguished this from "wheat consumed as food," which he said "varies but relatively little."  So Justice Jackson's references to "home-grown wheat" and "consumption on the farm where grown" do not include either "wheat consumed as food" or wheat "use[d] as feed seed.” So, contrary to the way it is often taught, Wickard does not equate “home consumed wheat” or wheat “consumption on the farm where grown” with with wheat consumed “as food” on the farm. This is simply a misreading of the terminology of Jackson’s opinion.]

The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent, as well, to which one may forestall resort to the market by producing to meet his own needs. [ME: Given the previous paragraph these "needs" are a reference to using wheat on the farm to feed livestock, rather than buying wheat from other farmers. It is not a reference to wheat consumed as food.] That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial. Labor Board v. Fairblatt, 306 U. S. 601, 306 U. S. 606 et seq.; United States v. Darby supra at 312 U. S. 123.

It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. [Footnote 28] One of the primary purposes of the Act in question was to increase the market price of wheat, and, to that end, to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat [ME: i.e. not "wheat consumed as food," the volume of which "varies but relatively little" (see above)] would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market, and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. [ME: Again, purchases in the market for livestock feed, not bread for the family table.] Home-grown wheat [ME:  i.e. wheat grown on the farm to feed to livestock] in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. [ME: "stimulation" does not here refer to a mandate; but the incentive created from the prohibition.] This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm [ME: this is economic activity] where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. [Footnote 29] Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do.

The first thing to note is that it is entirely proper to construe the holding of Wickard in light of the relevant facts of the case, in particular the nature of the statute that was under consideration. The facts are these: (1) the Court never addressed the power of Congress to regulate the activity of growing wheat to feed one’s family; what it might or might not have said about this claim of power is a matter of speculation–remember that the Court was so bothered by restricting this intrastate activity of farmers that held the case over another term for reargument. (2) the Agricultural Adjustment Act (AAA) did not apply even to all commercial farms, much less all individuals in the United States; it applied to farms over a certain acreage. (3) perhaps most importantly, the AAA did not involve a federal mandate that those farmers to which it did apply, much less all individuals in the United States, purchase wheat or wheat products from the interstate market; instead, it prohibited the covered farmers from growing more than a set quota of wheat. (4) Under the AAA upheld by the Court, farmers were only indirectly “forced” to enter the market for interstate wheat by the exercise of Congress to prohibit them from growing more than a certain amount of wheat, not from directly mandating they do so; and remember, when Justice Jackson uses the word “forcing,” he is paraphrasing an objection to the scheme.

So the proposition that Wickard extends beyond these facts depends entirely on how one defines its “logic.” But I do not believe that the logic of Justice Jackson’s opinion is accurately reflected in Judge Silberman’s summary.

The logic of Wickard is that people’s economic activity — such as the activity of wheat farmers — may be “restrict[ed]” even if such a restriction has the effect of “forcing” them into the interstate market over which Congress has control. The Court in Wickard scarcely could imagine, much less endorse, a direct command by Congress to farmers that they must buy interstate wheat. The power to “stimulate” commerce by resorting to regulations, prohibitions, as well as taxation and subsidies that are within the power of Congress to impose is simply not the same as the power to mandate commerce.

In short, there are many things that Congress can try to accomplish indirectly with its enumerated powers even though it has no enumerated power to do them directly. So rather than mandate that all home owners in flood plains buy flood insurance, Congress can deny home owner’s federally guaranteed mortgages unless they obtain flood insurance. Instead of mandating people buy American cars, it can pay “cash for clunkers.” Conversely, just because Congress can “force” farmers into the interstate wheat market by using its power to cap their production of wheat, does not entail that Congress also has the power to command or mandate that farmers buy interstate wheat, and imprison any farmer who disobeys.

Remember, as Judge Kavanaugh observed in oral argument, unlike tax subsidies or other incentives, once the power to mandate economic activity is recognized under the Commerce Clause, there is absolutely nothing preventing Congress from criminalizing failures to engage in the mandated activity. The price of forgoing a subsidy, or even giving up a regulated activity altogether to avoid a regulatory scheme–for example, by selling one’s farm or quitting the practice of medicine–is entirely different than the consequences of refusing to obey a government mandate to engage in activity, which can be punishable by fine or imprisonment. The fact that the sanction for violating this mandate is limited to a fine, is beside the point, since the “logic” of finding it to be a Commerce Clause regulation will allow Congress to impose any of its usual regulatory punishments for failing to comply with Commerce Clause regulations or prohibitions.

Furthermore, unlike the power to prohibit, the power to mandate commerce is not incidental to the power to regulate commerce but is an awesome, dangerous, and independent power in its own right that the Constitution did not delegate to the Congress. If such a power to mandate economic activity exists, it would need to be authorized by the Constitution, as it may well be authorized by a state constitution to the extent that it, unlike the U.S. Constitution, grants a broader police power to its legislature. Of course, the police power of states is subject to other federal constitutional constraints (e.g. the 14th Amendment). In addition, state police powers are subject to an important structural constraint: companies and individuals can flee a state for another with less objectionable laws. By contrast. the federal government is subject both to Bill of Rights constraints and the textual constraint imposed by the list of limited enumerated powers. But that structural textual constraint only operates if federal judges hold the line on these textually-defined powers.

There is probably more to say — pro and con — on Wickard than I have said here, but this post has already grown far longer than I intended. So let me conclude with the following observation. If the logic of Wickard is read as broadly as the questions posed by Judge Silberman, then the command of another canonical Supreme Court decision would have to be discarded:

The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.

Wickard need not, and ought not, be interpreted as transgressing against Marbury v. Madison.

UPDATE:  I had an additional thought:   It is quite clear after Raich that Congress now does have the power to prevent a person from growing wheat to feed his own family.   Whereas we claimed that growing something in your own backyard was noneconomic activity, the majority in Raich reached its result by characterizing the manufacture or consumption of a commodity as an “economic activity.”  This is the sense in which Raich is conventionally and correctly interpreted as a step beyond Wickard.   If Angel obeys that prohibition, she could then be “forced” into the illicit marketplace for her marijuana.  But this does not entail that Angel Raich or Dianne Monson can be compelled to grow marijuana, or that Roscoe Filburn can be compelled to grow wheat.  Nor does it entail that any of them can be directly compelled to buy marijuana or wheat in the marketplace.    I did not want to leave the impression that, because Wickard may be limited to the restriction of commercial farming, which in the aggregate has a substantial affect on interstate commerce, that this limit was not expanded by Raich, now allowing Congress to reach just this activity.

Moreover, even if the “logic” of Wickard or Raich, extending beyond their facts, might be used to justify a mandate of economic activity, there are other cases with their own logic that cut the other way.  For example, Lopez and Morison’s logic that Congress lacks a general police power, that its powers are limited and enumerated, and these limits justifies some judicial enforcement.  Or the logic of Printz that even a necessary mandate on state governments is an improper means of regulating commerce, in that case because it commandeers the legislatures of the states in violation of the principles underlying the Tenth Amendment.  The Tenth Amendment, after all, protects the reserved powers of the people equally with the powers of the states.  Or the Bond case from last term that affirms that the scheme of federalism based on enumerated powers was intended to protect individual liberty (and for this reason can be asserted by individuals objecting to a federal statute).  The logic of all these cases bear on the ACA case, not just Wickard, even if Wickard‘s logic is broader than its holding.

[Some typos and glitches corrected.]

Like David, I too was invited to contribute to the new Scotusblog Community on the question of what the Supreme Court should do with the Affordable Care Act. Rather then simply repeat my constitutional arguments, I took a different tack:

The Supreme Court should remand the Affordable Care Act to Congress for its further consideration.

The Affordable Care Act (ACA) was a constitutional mistake and a historical accident. In the fall of 2009, 60 Senate Democrats were struggling to pass some type of health care reform, any type of health care reform. There were not 60 votes for “single payer” (i.e. Medicare for Everyone); there were not even 60 votes for a “public option” (i.e. voluntary Medicare for pre-retirement Americans); and there were certainly not 60 votes to do anything that would raise taxes on those making less than $200,000 per year.

So Democrats went into a closed room — the same room that produced the Cornhusker Kickback and the Louisiana Purchase — and adopted the individual insurance mandate under its Commerce Clause power. It was not as though they weren’t warned. The Congressional Research Service correctly informed them that a mandate that all Americans enter into a contractual relationship with a private company for the rest of their lives was literally unprecedented and of dubious constitutionality. Senate Republicans made a constitutional objection to the individual mandate, which the Democrats defeated on a straight party-line vote the day before passing the Act on Christmas Eve.

But this bill was likely never intended to become law. It was intended to get the issue out of the Senate with 60 votes in favor of health care reform. The real bill would then be written in conference with the House and voted on later. But then something unexpected happened: Scott Brown was elected Senator from Massachusetts (!) on this issue. Now Democrats had a choice. Approve the constitutionally-suspect Affordable Care Act in the House (over the strenuous objection of many Democratic members), or go back to the drawing board. But with Republicans and millions of Americans now vocally protesting the constitutionality of the bill, for the first time in American history, a sweeping new social welfare scheme was enacted with the votes of only one party over bipartisan opposition.

Heeding the advice of legal academics, the Democrats wagered that the courts would never strike down so ambitious a social welfare scheme. Then, when this elaborate mechanism eventually failed to deliver on its promises of “bending the cost curve” and “universal coverage” — after private insurance companies had been turned into regulated public utilities — they could then push for their real desire: Single Payer.

Although Congress is a co-equal branch of government, the Supreme Court need not “defer” to what happened here. Instead, it should refuse to extend to Congress the entirely novel and dangerous power to compel all Americans to do business with whatever private company that Congress happens to have the power and votes to regulate. The Court should send this bill back to Congress so Congress can use its ample powers under existing doctrine to tax and spend, as well as to regulate interstate commerce. Such a ruling would affect no other law that has ever been enacted.

I predict that the result of such a decision would be major health care legislation that would not only be far better public policy, it would receive the same type of bipartisan support that has previously been enjoyed by every major piece of social-welfare legislation in our history.

You can comment on this post here at Scotusblog.

Minutes ago, the Solicitor General filed its petition for cert in the Florida v. HHS case from the Eleventh Circuit. Earlier this morning, the state Attorneys General filed their cert petition with some very interesting claims, including a request that the Court reconsider its 1985 decision in Garcia v. San Antonio Metropolitan Transit Authority. Just when you thought this case could not get any bigger, it does!

[Links to briefs on ACALitigation Blog added.]

With the government joining the challengers in asking the Court to review the Eleventh Circuit Case, a prompt grant of cert now seems likely, with oral argument in January or February, and a final decision on the last day of the term in mid-June 2012. This has been a momentous day. Here is the DOJ’s Press Office statement:

The Department has consistently and successfully defended this law in several court of appeals, and only the 11th Circuit Court of Appeals has ruled it unconstitutional. We believe the question is appropriate for review by the Supreme Court.

Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.

Each of those laws enjoyed bipartisan support when enacted; none were passed on a straight-line party vote. In fact, enacting so massive a social-welfare measure that affects every man, woman, and child in the United States in so partisan a manner was … wait for it … unprecedented.

This morning, the National Federation of Independent Business filed with the Supreme Court a petition for a writ of certiorari to reverse the Eleventh Circuit’s ruling that the individual insurance mandate it held to be unconstitutional could be severed from the rest of the Affordable Care Act. With regard to severability, the legal issue is whether Congress would have passed the Affordable Care Act without the individual mandate. Even the government concedes that the individual insurance mandate is essential to the costly restrictions being imposed on insurance companies and therefore is not severable. It is inconceivable that Congress would have enacted the ACA without the insurance regulations that comprise the very heart of the scheme.

In its petition, the NFIB also addresses the issue of the Anti-Injunction Act (AIA) that was ignored as judge after judge rejected this theory–and the government too–until the Fourth Circuit sua sponte (on its own) concluded (2-1) that the AIA barred it from reaching the merits of the constitutional challenge. Because the AIA is the legal theory du jour, I thought it would be useful to reproduce this portion of the petition (with many citations omitted so readers can more easily get the the flow of the argument):

1. The Anti-Injunction Act provides, with a few exceptions, that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” 26 U.S.C. § 7421. . . . . [The Act] is clearly inapposite here, due to the critical distinction between the mandate and its penalty. The mandate itself is simply a free-standing legal “[r]equirement” that every “applicable individual shall … ensure that [he or she] … is covered under minimum essential coverage.” 26 U.S.C. § 5000A(a), (d). By contrast, the “penalty” is simply a means of enforcing compliance with that legal command, which is imposed on all “taxpayer[s]” who unlawfully “fail[] to meet th[at] requirement,” unless they are separately “except[ed]” from the “penalty.” Id. § 5000A(b), (e). [This was the position Judge Silberman appeared to take in the Seven-Sky oral argument last week---RB] Given this relationship between the mandate and the penalty, there are three fundamental reasons why Petitioners’ challenge to the mandate cannot possibly be foreclosed by the Anti-Injunction Act, which bars “suit[s] for the purpose of restraining the assessment or collection of any tax.” 26 U.S.C. § 7421(a) (emphases added).

First, the monetary sanction for non-compliance with the mandate is not even “a[] tax” under § 7421(a). The sanction is not “an enforced contribution to provide for the support of government,” but simply “an exaction imposed by statute as punishment for an unlawful act,” which is the quintessential definition of a non-tax “penalty.” [citations omitted]

Second, even if the monetary sanction for noncompliance with the mandate were a “tax” as a statutory matter, under §7421(a), the “purpose” behind Petitioners’ “suit” is not to “restrain[]” that so-called “tax.” Rather, Petitioners’ “purpose” is to “restrain” the mandate’s free-standing legal requirement that they must buy costly insurance, which itself is not a “tax” in any way, shape, or form. Petitioners’ “purpose” here obviously has nothing to do with “restraining” the sanction for non-compliance with the mandate: as law-abiding citizens, they are completely indifferent to a so-called “tax” that they will never incur. [citations omitted]

Third, Petitioners would have no lawful means of challenging Congress’ command that they purchase insurance if the Anti-Injunction Act truly required them to violate the mandate simply to incur the socalled “tax” that authorizes suit. Indeed, the dilemma would be even worse for the millions of lawabiding individuals who are subject to the mandate but exempt from the penalty, because they could never incur the so-called “tax” that is the supposed predicate to bringing a challenge. Not only would the complete absence of judicial review for all law-abiding individuals subject to the mandate underscore why the Anti-Injunction Act should not be interpreted to bar suits brought for the “purpose” of eliminating a substantive legal requirement, but the absence of such redress also reveals that there would be grave Due Process concerns with the contrary interpretation. [citations omitted]

Last Friday, I attended the oral argument in the Seven-Sky v. Holder case in the Court of Appeals for the DC Circuit. There has been very little press attention paid to this hearing, most likely because the press was anticipating important developments in the Eleventh Circuit case involving the 26 state Attorney’s General and the National Federation of Independence Business (in which I am involved). But the hearing was very interesting if for no other reason than the intellectual fire power of the panel: Judges Harry Edwards, Laurence Silberman (who previously wrote opinions holding that the independent counsel law and the DC gun ban were unconstitutional), and Bret Kavanaugh. The lawyers for each side had their ups and downs. The low point for the government was when Judges Kavanaugh and Silberman pressed counsel for about 10 minutes for a single example of any economic mandate that would be unconstitutional under the government’s theory of constitutionality. To their evident frustration, she refused to provide any such example. The low point for the challengers was attempting to wrestle with Judge Kavanaugh’s reading of the text of the Anti-Injunction Act, and with Judge Silberman’s capacious interpretation of Wickard v. Filburn.

Near the end of the government’s time, however, Judge Kavanaugh laid out an explicit four-point analysis that summarized several lines of questions and that might well provide the structure for a majority opinion in the case. So far as I know, this has gone unreported. (Note: I have not seen a transcript of the argument so this is reconstructed from my notes and, except where I use quotation marks, does not purport to be a verbatim account. Comments in brackets were not necessarily stated by him, but are my reactions and interpretations.)

1. First, although judges should approach all acts of Congress with a presumption of constitutionality, given that in 220 years, the Congress has never claimed the attractive power to mandate that private citizens send their money directly to private companies, judges should at least be “hesitant” before endorsing such a power. [Elsewhere in the argument Judge Kavanaugh noted that this principle was identified in Printz when Justice Scalia was evaluating the constitutionality of the power to commandeer state governments as a Necessary and Proper means of executing the Commerce power: "[I]f, as petitioners contend, earlier Congresses avoided use of this highly attractive power,” wrote Justice Scalia, “we would have reason to believe that the power was thought not to exist.” Ultimately, Justice Scalia characterized a state commandeering power as “improper.”]

2. Second, this claim of power is “uncabined.” [As evidenced by the governments adamant refusal in oral argument to identify any economic mandate that would be outside the power of Congress to enact. A fact-based evaluation that "health care is different" does not provide a judicially administrable limit. This was a major concern expressed by Judges Dubina and Hull in their jointly-authored Eleventh Circuit opinion.]

3. Third, Congress could have accomplished all or most of what it wanted to accomplish simply by exercising its tax power but it chose not to. [Although earlier in the argument Judge Kavanaugh pressed counsel for Seven-Sky on the tax power theory, this comment seemed to signal that he was not persuaded by the government’s tax power theory, which remains the darling of the law professoriate. I could be wrong about this signal, but Judge Kavanaugh did seemed to say that Congress chose not to use its tax power.]

4. Therefore, why then open a new chapter of Congressional power by extending the commerce power in so dangerous a way? Here Judge Kavanaugh made what was, for me at least, a new argument against sustaining this power: Unlike the tax power that is limited to monetary exactions (except for penalties imposed for failure to make payments), sustaining economic mandates under the commerce power would empower Congress to impose any penalty up to and including prison terms for violating its economic mandates. Judge Kavanaugh seem sincerely troubled by the dangerous nature of this new (i.e. unprecedented) expansion of federal power from what has previously existed until now. [True, the ACA contains only tepid penalties, but if the Commerce Clause rationale is successful, the sky is the limit.]

While some press accounts have focused on Judge Kavanaugh’s forceful questioning about the AIA—and it was indeed forceful—I thought the government’s counsel was effective in countering his textual analysis to the point where he volunteered that it was a “close” issue. In the end, I feel confident that the AIA issue will not prevail, especially given that both the government and the challengers agree it does not apply for good reasons, and all but 2 federal judges so far have concurred in this assessment.

Of greater concern is Judge Silberman’s interpretation of Wickard, but that issue merits a separate post.

UPDATE: When I expressed the opinion that, “In the end, I feel confident that the AIA issue will not prevail,” I was speaking of the legal challenges to the ACA as a whole, not to the outcome of the DC case in particular. Judge Kavanaugh’s concerns were serious and genuine, and I am hopeful but not “confident” that the government’s textual arguments, and a nice metaphor offered by the counsel for Seven-Sky, were enough to satisfy him.

On this tenth anniversary of 9/11, I am in New York, staying at a hotel in Time Square. On the train to the City, dogs swept the train in Philly, and another K-9 team boarded in Newark to ride to Penn Station. Penn Station has a detachment of national guard with automatic weapons. Security here in Time Square is intense. All cars approaching the square are given a police lookover at check points. Trucks are given especially close attention. My guess is that, if there were any bad guys heading towards these targets, they turned tail. They are fearless only when attacking unarmed and defenseless people. But the police and military who are guarding us here tonight, for which I am grateful, cannot be everywhere at all times.

With this in mind, I thought it would be appropriate to mark this day with one of my earliest op-eds on National Review Online — before I joined the Conspiracy — that I published on 9/18/2001:

Saved by the Militia: Arming an Army Against Terrorism.

By Randy E. Barnett
September 18, 2001 11:30 a.m.

A well-regulated militia being essential to the security of a free state. . . .” The next time someone tells you that the militia referred to in the Second Amendment has been “superceded” by the National Guard, ask them who it was that prevented United Airlines Flight 93 from reaching its target. The National Guard? The regular Army? The D.C. Police Department? None of these had a presence on Flight 93 because, in a free society, professional law-enforcement and military personnel cannot be everywhere. Terrorists and criminals are well aware of this — indeed, they count on it. Who is everywhere? The people the Founders referred to as the “general militia.” Cell-phone calls from the plane have now revealed that it was members of the general militia, not organized law enforcement, who successfully prevented Flight 93 from reaching its intended target at the cost of their own lives.

The characterization of these heroes as members of the militia is not just the opinion of one law professor. It is clearly stated in Federal statutes. Perhaps you will not believe me unless I quote Section 311 of US Code Title 10, entitled, “Militia: composition and classes” in its entirety (with emphases added):

“(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are —

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.”

This is not to score political points at a moment of great tragedy, though had the murderers on these four airplanes been armed with guns rather than knives, reminders of this fact would never end. Rather, that it was militia members who saved whatever was the terrorists’ target — whether the White House or the Capitol — at the cost of their lives points in the direction of practical steps — in some cases the only practical steps — to reduce the damage cause by any future attacks.

An excellent beginning was provided by Dave Kopel and David Petteys in their NRO column “Making the Air Safe for Terror.” Whether or not their specific recommendations are correct, they are too important to be ignored and they are not the only persons to reach similar conclusions about the need for effective self-defense. Refusing to discuss what measures really worked, what really failed, and what is likely to really work in future attacks — on airplanes and in other public spaces — for reasons of political correctness would be unconscionable. And we need to place this discussion in its larger constitutional context.

Asking all of us if we packed our own bags did not stop this attack. X-rays of all carry-on baggage did not stop this attack (though it may well have confined the attackers to using knives). And preventing us from using e-tickets or checking our bags at the street (for how long?) would neither have stopped this nor any future attack. All these new “security” proposals will merely inconvenience millions of citizens driving them away from air travel and seriously harming our economy and our freedom. As others have noted, it would be a victory for these murderers rather than an effective way to stop them in the future. A way around them will always be open to determined mass murderers. More importantly, none bear any relation to the attack that actually occurred on September 11th.

Ask yourself every time you hear a proposal for increased “security”: Would have in any way have averted the disaster that actually happened? Will it avert a future suicide attack on the public by other new and different means? Any realistic response to what happened and is likely to happen in the future must acknowledge that, when the next moment of truth arrives in whatever form, calling 911 will not work. Training our youth to be helpless in the face of an attack, avoiding violence at all costs will not work. There will always be foreign and domestic wolves to prey on the sheep we raise. And the next attack is unlikely to take the same form as the ones we just experienced. We must adopt measures that promise some relief in circumstances we cannot now imagine.

Here is the cold hard fact of the matter that will be evaded and denied but which must never be forgotten in these discussions: Often — whether on an airplane, subway, cruise ship, or in a high school — only self defense by the “unorganized militia” will be available when domestic or foreign terrorists chose their next moment of murder. And here is the public-policy implication of this fact: It would be better if the militia were more prepared to act when it is needed.

If the general militia is now “unorganized” and neutered — if it is not well-regulated — whose fault is it? Article I of the Constitution gives Congress full power “to provide for organizing, arming, and disciplining the Militia.” The Second Amendment was included in the Bill of Rights in large part because many feared that Congress would neglect the militia (as it has) and, because Congress could not be forced by any constitutional provision to preserve the militia, the only practical means of ensuring its continued existed was to protect the right of individual militia members to keep and bear their own private arms. Nevertheless, it remains the responsibility of Congress to see to it that the general militia is “well-regulated.”

A well-regulated militia does not require a draft or any compulsory training. Nor, as Alexander Hamilton recognized, need training be universal. “To attempt such a thing which would abridge the mass of labor and industry to so considerable extent, would be unwise,” he wrote in Federalist 29, “and the experiment, if made, could not succeed, because it would not long be endured.” But Congress has the constitutional power to create training programs in effective self-defense including training in small arms — marksmanship, tactics, and gun safety — for any American citizen who volunteers. Any guess how many millions would take weapons training at government expense or even for a modest fee if generally offered?

Rather than provide for training and encouraging persons to be able to defend themselves — and to exercise their training responsibly — powerful lobbying groups have and will continue to advocate passivity and disarmament. The vociferous anti-self-defense, anti-gun crusaders of the past decades will not give up now. Instead they will shift our focus to restrictions on American liberties that will be ineffective against future attacks. Friday on Fox, Democratic Minority Leader Dick Gephart was asked whether additional means we have previously eschewed should be employed to capture and combat foreign terrorists. His reply was appalling. Now was the time, he replied, to consider adopting a national identity card and that we would have to consider how much information such “smart” cards would contain.

Rather than make war on the American people and their liberties, however, Congress should be looking for ways to empower them to protect themselves when warranted. The Founders knew — and put in the form of a written guarantee — the proposition that the individual right to keep and bear arms was the principal means of preserving a militia that was “essential,” in a free state, to provide personal and collective self-defense against criminals of all stripes, both domestic and foreign.

A renewed commitment to a well-regulated militia would not be a panacea for crime and terrorism, but neither will any other course of action now being recommended or adopted. We have long been told that, in a modern world, the militia is obsolete. Put aside the fact that the importance of the militia to a “the security of a free state” is hardwired into the text of the Constitution. The events of this week have shown that the militia is far from obsolete in a world where war is waged by cells as well as states. It is long past time we heeded the words of the Founders and end the systematic effort to disarm Americans. Now is also the time to consider what it would take in practical terms to well-regulate the now-unorganized militia, so no criminal will feel completely secure when confronting one or more of its members.

I have been working on a new edition of my constitutional law casebook and traveling this summer, so have not had time for much blogging. Now I am getting organized for my Contracts course at Penn. Still, I thought I would break radio silence by passing along links to two unrelated blog posts I found interesting.

The first is by Brian Leiter in the nature of ad hominem arguments: What an “Ad Hominem” Argument Is and Isn’t. Here is how it begins:

We take a break from our regularly scheduled programming for a brief detour into a subject that is occasionally addressed in the philosophy blogosphere, and is standard fare in “informal logic” or “critical reasoning” classes: namely, the ad hominem argument, what it is, and why it is fallacious with repect to the truth of what someone says, but not necessarily with respect to whether they are reliable or whether one is justified in believing them. There was not a single fallacious ad hominem in my post last week, and while the fact that the random know-nothings that populate cyberspace didn’t understand that, it was slightly more surprising that one or two law professors made the same mistake. So perhaps this can be an educational moment. (Those who already know what an actual ad hominem fallacy is can move on!)

Just as its title promises, Brian clearly explains what an ad hominem arguement is, and is not–something very useful to know in these days of plentiful personal attacks. Read the whole thing.

The second is Constitutional Structure Matters: A Response to Larry Tribe by Ilya Shapiro and Chaim Gordon responding to an argument by Larry Tribe criticizing the Eleventh Circuit’s decision finding the individual mandate unconstitutional. Here is how it ends:

Under modern jurisprudence, essentially the only check on Congress’s taxing and spending powers under the General Welfare Clause (as opposed to its regulatory power under the Commerce Clause) is political. So yes, Professor Tribe, there is a constitutional reason for depriving Congress of the power to do in one step what it could surely do in two other steps: to maintain that remaining constitutional qua political check. Indeed, the very reason why Congress adopted the individual mandate was because it lacked the political will — it feared political accountability too much — to impose single-payer universal coverage, where the government would first impose a tax on everyone and then provide health care (at this point it’s no longer “insurance”) to everyone.

To accomplish the same result without having to impose significant new taxes — as President Obama famously promised there would not be – Congress tried to evade political accountability through the individual-mandate mechanism. That’s why the Eleventh Circuit wisely declined to grant Congress the power to move a significant part of its spending “off budget” and “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”

The rest of the post is also worth reading.

I enjoy reading the political campaign commentary of Jim Geraghty of National Review, as well as his daily Morning Jolt email newsletter (available for free email subscription). Today, the first part of the Morning Jolt concerned right blogospheric reaction to Republican presidential candidate Herman Cain’s comments about Muslims and religious freedom on Fox News Sunday yesterday. I heard the interview live as Chris Wallace pressed him hard on this point and I have admit I taken aback at Cain’s understanding of the First Amendment. (Although he can be annoying, I find Wallace to be a very tough interviewer.) First, you should watch the exchange in its entirety so you can see that his remarks are not being taken out of context. Wallace gave him every opportunity to explain himself fully.

I don’t think Jim will mind if I reproduced his entry here, as an inducement for those who may wish to subscribe.

Nine and a Half Amendments in Some Copies of the Bill of Rights?

Herman Cain says voters across the country should have the right to prevent Muslims from building mosques in their communities.

In an exchange on “Fox News Sunday,” the Republican presidential contender said that he sided with some in a town near Nashville who were trying to prevent Muslims from worshiping in their community.

“Our Constitution guarantees the separation of church and state,” he said. “Islam combines church and state. They’re using the church part of our First Amendment to infuse their morals in that community, and the people of that community do not like it. They disagree with it.”

Asked by host Chris Wallace if any community could ban a mosque if it wanted to, Cain said: “They have a right to do that.” Cain, an African-American who grew up during the civil rights era, claimed he was not discriminating against Muslims. He said it was “totally different” than the fight for racial equality because there were laws prohibiting blacks from advancing.

At Weasel Zippers, the first reaction is, “The inevitable CAIR meltdown in 3 . . . 2 . . . 1.”

But it’s not only CAIR who cares. At Ace of Spades, contributor Drew M. is no longer a fan of Cain in any way, shape, or form:

This guy is not longer a joke, he’s simply despicable. Chris Wallace asked Herman Cain about a mosque being built in Murfreesboro, Tennessee. After arguing that Islam doesn’t qualify as a religion or something under the 1st Amendment, they got to the heart of the matter . . . . Cain has a rather convoluted understanding of the US Constitution, at least when it comes to it’s applicability to Muslims in this country .

I didn’t like John McCain’s attempts to rewrite the 1st Amendment through campaign finance reform laws and I don’t like candidates for President like Cain who think some people may only build houses of worship at the sufferance of their fellow citizens.

Yes, mosques must follow the same laws and regulations as any other religion nor should they be granted any special consideration because in some areas Islam is ‘the de facto state religion‘. But the wholesale banning of them because people don’t like Muslims or what they believe in? I’ll stand with the Constitution.

Guys like Cain profess to revere the US Constitution yet they are strangely willing to ignore it when it either suits their personal beliefs or political needs. Personally, I’d prefer to live the selective and creative interpretations of the plain meaning of those indecipherable old words to liberals.

At Outside the Beltway, Cain’s comments prompt Doug Mataconis to dismiss him from serious consideration:

We have freedom of religion, Cain is saying, but people should have the right to ban your religious practices if they don’t like you. The Herman Cain boomlet is dying, because its becoming clear that everything that comes out of his mouth is utter nonsense.

The answer is messy, as is the issue. Cain’s point that Islam, in general, has never made its peace with the concept of the separation of church and state. (Turkey would be a notable exception, but there Ataturk had a long Turkish cultural identity — perhaps even cultural chauvinism — separate from Islam to root his concept of a democratic republic.)

In the comments over at Ace of Spades, a commenter disagrees with Drew and posits, “Islam is not a religion in the sense of religions protected by the Constitution, but is a geopolitical movement.” If that is true — and there will be quite a few Muslims baffled to hear that their beliefs are not a religion — treating Islam as a non-religion will require the government to take a much more restrictive view of what constitutes a “religion” and enjoys the constitutional rights associated with that. To take one example, the Department of Veterans Affairs will permit headstones to feature, besides the better-known religious symbols, the Buddhist Wheel of Righteousness, the Mormon Angel, a teepee representing the Native American Church of North America, the nine-pointed star of the Bahai, the atom of the Atheist (no, really), the symbols for Eckankar, Humanist, Izumo-taishakyo, Soka-Gakkai, and finally, the pentacle of Wicca. (Star Trek fans could choose the symbol of the Kohen hands, which is where Leonard Nemoy got the idea for the Vulcan greeting.)

Our common definition of religious freedom in this country can let all of those diverse ideas, beliefs, and faiths flourish, but not Islam? And do we really want to make the mood and values of the locals the litmus test as to whether a religion can be practiced there? How would that rule apply to deeply conservative or traditional houses of worship in places such as Manhattan or San Francisco or Cambridge or Berkeley? “I’m sorry, you can’t practice that faith here; your prayer for the unborn offends your pro-choice neighbors.”

Some may recall, that during his first interview with Chris Wallace, Cain had no idea what the Palestinian “right of return” was.

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In my paper, Jack Balkin’s Interaction Theory of “Commerce,” I reply to his originalist analysis of the Commerce Clause that he offered in his Michigan Law Review article, which is based on a chapter of his forthcoming book, Living Originalism. Since my paper was presented at a symposium on his book, Jack has revised his manuscript to respond to my critique. Consequently, I have revised my paper to reflect his changes, which have still not persuaded me that the original meaning of “commerce” is best understood as “interaction.” I have uploaded the new version of my paper to SSRN here. If you read the previous version, it has probably not changed enough to justify downloading again. But if you have not yet read it, and are interested in the original meaning of the Commerce Clause, here is the abstract:

In his book, Living Originalism, Jack Balkin proposes what he calls the “interaction theory” of the original semantic meaning of the word “commerce” in the Commerce Clause. He claims that “commerce” meant “social interaction.” In this article I show why this theory is wrong due to errors of commission and omission. Balkin is wrong to reduce “commerce” to “intercourse,” “intercourse” to “interaction,” and “interaction” to “affecting.” This triple reduction distorts rather than illuminates the original meaning of “commerce.” And Balkin omits from his discussion the massive amounts of evidence of contemporary usage — along with dictionary definitions of “intercourse” — establishing that “commerce” referred to the trade or transportation of things or persons, and did not include such productive economic activity as manufacturing or agriculture, much less all social interaction. In this article, I also reply to Balkin’s criticisms of my book, Restoring the Lost Constitution. I show how his heavy reliance on Gunning Bedford’s resolution in the secret Philadelphia convention is misplaced in a discussion of the original meaning of the Commerce Clause.

For another first-rate critique of Balkin’s Michigan Law Review article, see Commerce in the Commerce Clause: A Response to Jack Balkin by Robert G. Natelson & our own David Kopel

However misguided I think his interpretation of “commerce,” I believe Jack’s new book to be a masterpiece. It is the most important work of constitutional theory since Ronald Dworkin’s Law’s Empire. Living Originalism won’t be out until the fall, but you can pre-order it here.