The Volokh Conspiracy

The Fourth Circuit’s noteworthy decision in U.S. v. Dire is probably the first court of appeals decision in a piracy prosecution in nearly 200 years. The Fourth Circuit decision is important not only for some novel pending piracy cases, but for the Alien Tort Statute and broader questions about the interplay of U.S. and international law.

Two groups of defendants were tried by different federal district judges for attempted piracy – they had been caught before boarding the targeted vessel (which was unfortunately for the defendants, a U.S. warship). They were charged under 18 U.S.C § 1651 with “piracy as defined by the law of nations.” Both cases turned on whether that “definition” extends to attempts. One district court said yes, in the Dire case. Another district judge, in Said, said no. He looked the important 1820 piracy case of U.S. v. Smith, where the Supreme Court discussed the definition of piracy, and said everyone agreed it was “robbery on the high seas.” Since there was no robbery here – no piracy.

The Fourth Circuit yesterday reversed the dismissal. It held that the statute refers to “the law of nations” and that is understood to change over time, and the definition of piracy with it. We are not stuck with the 1820 definition of Smith; we look to the definition today. I don’t think the Court had to get into to this evolving-international law inquiry; Said was simply wrong to read Smith’s definition as excluding attempts. Some other noteworthy features:

The Define and Punish Clause. The Fourth Circuit endorsed my position, which had been very generously expounded by the district court, that the Constitution’s Define and Punish Clause only allows for universal jurisdiction over crimes that clearly have that status in international law. Slip Op. at 15-16. The court also suggested that Congress could not define international “conduct beyond the scope of the [international legal] definition” of offenses, as I argued in this forthcoming paper.

The standard for determining law of nations violations. Because Congress did not define attempts as part of the piracy prohibition, the Court looked to international law. The Law of the Sea Treaty – just as the Senate began to debate it again this week – was an important starting point, because it provides an easy-to-refer-to definition of piracy. By its terms, the Law of the Sea definition seems to include attempts. But the Fourth Circuit did not stop there, but continued to examine how courts in prior cases in other countries had ruled, including a famous Privy Council decision from the 1930s, and rulings of the Kenyan courts that have taken a leading role in prosecuting Somali pirates today, and an U.S. case.

Thus there has been actual state judicial practice establishing “attempts” as part of piracy; the Court didn’t just read this off a treaty that had never been applied in any case. Indeed, the decision could have gone the other way if the court was asked to be the first to “apply” such a theoretical norm: the opinion noted the “necessity of looking to… case law from other countries” to find that a putative norm exists. Slip op. at 19.

This has immediate relevance for the ATS, and Kiobel. (Indeed, the court borrowed freely from ATS decisions.) The existence of relevant judicial precedents is of course what is missing in several kinds of ATS claims, and especially for corporate liability.

Perhaps later I’ll say some more about how I think the decision may have been a bit too broad, or cavalier about Congress’s failure to “define.”

That’s the title of a new article by Gary Lawson and me, in Boston University’s American Journal of Law and Medicine, in a symposium issue on the PPACA. Except that unlike Alice, the PPACA neither becomes a Queen, nor wakes up to return to reality. Written before the oral argument, the article provides an overview of some of the main constitutional and linguistic topics at play in the PPACA cases.

Co-blogger Eugene Volokh has an excellent post on how the proposed People’s Rights Amendment threatens freedom of speech. But it’s important to recognize that the proposal goes far beyond denying free speech rights to entities organized as corporations. It would deny them all other constitutional rights as well. Section 1 of the proposed amendment states that the “the rights protected by this Constitution” are limited to “the rights of natural persons.” Notice that this is not limited to free speech rights or even to First Amendment rights generally. Section 2 emphasizes that “People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state.” Notice that this is not limited to for-profit corporations lobbying for their narrow self-interest. It applies to all corporations of any kind, including nonprofits, media corporations, churches, and others.

Thus, the PRA would deny all constitutional rights to all entities organized as corporations. If the Amendment passes, government would be free to search corporate-owned premises at will, restrict freedom of religion at houses of worship owned by corporate entities (which includes most churches), condemn corporate-owned property for private uses and without paying compensation, and so on. This result is consistent with the logic of those who criticize the Citizens United decision on the grounds that corporations don’t have First Amendment rights because they aren’t “real” people. If this reasoning is correct with respect to the First Amendment, it surely applies to other constitutional rights too. But even dedicated supporters of campaign finance regulations might wonder whether those laws are so wonderful that their protection justifies the sweeping restrictions on all other constitutional rights embodied in the People’s Rights Amendment.

Unfortunately, this dangerous result is not precluded by Section 3 of the PRA, which states that “Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people.” Section protects the rights of “the people.” The preceding Section 2 stated that “People, person, or persons as used in this Constitution does not include corporations.” Presumably, that rule applies to the use of “people” Section 3, which there also does “not include corporations.” If, on the other hand, the reference to “people” in Section 3 does apply to corporations, then the entire PRA would have no effect at all, since Section 3 would preserve from limitation any constitutional rights to which corporations were entitled before the PRA.

Another possible way to mitigate the effects of the PRA would be for courts to rule that the rights of corporations are really just the rights of the natural persons who own them. If so, people organized as corporations qualify as “natural” persons too. I think that is the correct interpretation of the status of “corporate” rights under our present Constitution. But adopting this idea as an interpretation of the PRA would completely undermine the whole point of the Amendment, which is precisely to deny constitutional rights to organizations utilizing the corporate form.

UPDATE: Before writing this post, I had not noticed that Eugene had made some of the same points in this April 20 post. I apologize for any excessive duplication.

Held at Denver University, Sturm College of Law, on April 11. Debaters were University of Colorado Prof. Scott Moss and me. Moderator is DU Prof. Ann Scales. WMV, via ftp.

Over at Balkinization, University of Texas law professor Mitch Berman has an elegant post explaining why he thinks the Medicaid provisions of the Affordable Care Act are unconstitutional. Put as briefly as possible, he argues that the states are not being compelled to accept and spend the money, but they are being coerced, and this coercion is unconstitutional because the states otherwise have a right not to be commandeered by the federal government. But a one-sentence summation doesn’t do justice to the argument so if you are interested you should read the whole thing. You can find responses to, and a followup by, Berman at Balkinization’s main page.

Despite my pre-oral argument warning that Lochner v. New York really has nothing to do with the constitutionality of the individual mandate, Lochner has consistently arisen. Most prominently, of course, the President mentioned Lochner (and in a dubious context), but only after the Solicitor General raised it at oral argument, CJ Roberts parried, and Justice Sotomayer raised it again, not especially coherently.

Surveying some of the post-oral argument Lochner-related commentary, I hereby present The Lochner Awards in various categories noted below:

Weirdest and most conspiratorial use of Lochner
Breitbart.com “In continuing his attack on the Supreme Court on Tuesday, President Barack Obama made a mistaken reference to the Lochner decision–an error that suggests just how deeply Derrick Bell affected his thinking about the Court and the Constitution.”

Spookiest Lochner reference
Jamin Raskin, Huffington Post “The ghost of Lochner is alive and well on the Roberts Court” (someone call Bill Murray!)

Smelliest use of Lochner
Daily Kos: “the stench of Lochner and Dagenhart will cause SCOTUS to uphold the law”

Most “challenging” reference to Lochner
Attorney Bryan Caskey: “So if you come across anyone who tries to tell you that holding the ACA to be unconstitutional will be a revival of Lochner, ask them if they can explain the holding.”

Most Honest use of Lochner
Jonathan Cohn, New Republic: “But I’m pretty sure both Obama and his administration’s lawyer were saying something different, and broader, when they invoked Lochner: By invalidating the Affordable Care Act, the Supreme Court would be resurrecting a vision of constitutionally limited government that, quite rightly, went out of fashion a long time ago.” (Constitutionally limited government! The very idea is preposterous!)

Most Puzzled reference to Lochner
DailyGreg blog: “Lochner? Who the hell is Lochner?”

Disco Lochner
Allergictobull.com: “Now one thing that comes up several times is what I refer to as the Lochner ‘boogie man.’”

Most judicious comment about Lochner
Damon Root, Reason: “the legal challenge to the individual mandate has nothing whatsoever to do with overturning any New Deal era precedents”

Cohn in TNR:

I’ve tried to make the case previously for why a decision striking down even part of the Affordable Care Act would be so brazen and unjustified… It’d be a five-to-four vote, along party lines, overturning a sweeping legislative initiative on what would be, at best, shaky constitutional arguments. That hasn’t happened since those early New Deal cases, just as Obama suggested.

Actually, the most important of the New Deal laws invalidated by the Court, the National Industrial Recovery Act, a law far broader than the ACA, went down 9-0. The other two New Deal decisions on “Black Monday” in 1935 were also 9-0. The second most important piece of New Deal Legislation to be invalidated by the Court, the Agricultural Adjustment Act, went down 7-2. The Guffey Coal Act went down 6-3. Offhand, I can think of several major pieces of New Deal legislation that were upheld 5-4, but I’m drawing a blank on ones invalidated by that vote.

And the Court was NOT split along party lines. Justice James McReynolds, who typically voted with the conservatives, was a Democrat, as was Justice Brandeis, who led the Progressive wing of the Court. All of the other seven Justices were Republican appointees, and most of them were loyal Republicans (as opposed to, e.g., Justice Cardozo, who Hoover appointed because he was the most prominent judge of his era, and not for standard “political” reasons).

So in a sense, from Cohn’s perspective, this would make a decision invalidating the ACA even worse. But one can rejoin that never has such an important piece of federal legislation been rammed through on a narrow, partisan vote. And given the Schechter case invalidating the NIRA, it’s also true that the Court has even in times of great economic crisis saw fit to unanimously invalidate the signature piece of legislation of an overreaching president. One difference, today, of course, is that the liberal wing of the Court, led by Justice Breyer, sees NO justiciable limits on the scope of federal power, so there’s no hope of a unanimous, or even bipartisan, vote today.

Finally, as Barry Cushman points out, the biggest reason early New Deal legislation had trouble getting past the Supreme Court is that the Roosevelt Administration didn’t take care to draft the legislation to avoid constitutional objections. Sound familiar?
[post expanded a bit from the original]

UPDATE: Getting the history correct is important not because it necessarily points one way or the other on the ACA challenge. Rather, a mythology has grown up around the New Deal cases suggesting that the constitutional barriers FDR’s legislation faced were due to the efforts of five reactionary, partisan, recalcitrant justices who manipulated doctrine in an effort to defeat the New Deal. FDR, through his appointments, restored the broad interpretation of federal power that had prevailed throughout the nation’s history before the New Deal. When it turns out that major pieces of New Deal legislation were invalidated 9-0, 7-2, etc., it undermines this mythology, and means that the major changes to constitutional doctrine that the Court undertook starting in the late 1930s must be justified on their own terms, not as a restoration of previous doctrine.

Supreme Court reporter Robert Barnes has a piece today about the role of Lochner v. New York in the ACA litigation. The Solicitor General told the Court at oral argument that invalidating the ACA would bring back Lochner, and last week President Obama said, “A law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner.”

Of course, this is lots of fun for me, as my formerly obscure (to my relatives and friends) interest in Lochner now has some popular currency. (It shouldn’t hurt book sales, either).

But I wonder if raising Lochner is really helpful to the ACA’s proponents. First, liberals and conservatives mean two different things when they criticize “Lochner“. Barnes quotes me as follows:

“Liberals see the court as unduly interfering with progressive legislation meant to help people who needed it,” Bernstein said. “Conservatives draw a different lesson: They see it as a symbol of judicial activism,” creating a right beyond those enumerated in the Constitution.

The SG and president used Lochner in the former sense, but that doesn’t seem likely to sway the Court’s conservatives. Indeed, CJ Roberts jumped all over the SG when he suggested that the ACA challenge resembled Lochner: “It seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits on the federal power, as opposed to limits on the states, which was the issue in Lochner.” In other words, this is an enumerated powers case, not an unenumerated rights case, and therefore Lochner is irrelevant.

Moreover, to the extent that Justice Kennedy is likely to be the swing vote, he seems perhaps the least likely Justice to be swayed by accusations of “Lochnering.” Kennedy is, I think, the only Justice who has had dissenters from both left and right accuse him of repeating Lochner’s mistakes. Just last term, in Sorrell v. Vermont, Justice Breyer twice raised Lochner in his dissent to Justice Kennedy’s majority opinion. Back in 2003, Justice Scalia, dissenting from Kennedy’s opinion in Lawrence v. Texas, suggested that the Fourteenth Amendment no more protects the right to engage in homosexual sodomy than it does the right to “work[] more than 60 hours per week in a bakery” (alluding to the facts of Lochner).

Kennedy is also the least shy “conservative” Justice about relying on the Fourteenth Amendment to protect economic rights, the underlying “sin” of Lochner for both left and right. Unlike Thomas and Scalia, he happily joins opinions invalidating state punitive awards as violating the due process clause. And then there’s his lone opinion in Eastern Enterprises v. Apfel, in which he wrote, “Although we have been hesitant to subject economic legislation to due process scrutiny as a general matter, the Court has given careful consideration to due process challenges to legislation with retroactive effects.” He then proceeded to argue that the legislation in question fails a due process analysis.

So I’m not sure what the strategy of raising Lochner is supposed to accomplish, but it doesn’t seem well designed to get the government five votes in the ACA litigation.

In discussions of Kiobel v. Royal Dutch Shell and the Alien Tort Statute, many commentators suggested if the Supreme Court limits corporate liability or extraterritoriality under the ATS, it would eviscerate the statute, and be bad for human rights. More generally, limiting the ATS is thought to serve broadly conservative interests.

These points are only weakly true for the ATS, as I’ll explain below. But more broadly, a limited understanding of the role of universal jurisdiction (UJ) and the Constitution’s Offenses power would have a variety of cross-cutting political valences when applied to other statutes. I have been describing the sources and scope of the constitutional limits on UJ in prior posts. So if reigning in foreign-cubed suits under the ATS can be “scored” as a liberal loss, the logic for doing so would give conservatives a loss under the material support for terrorism law, and both a conservative and liberals loss under the Maritime Drug Law Enforcement Act (but a libertarian win!).

To put it differently, UJ – the exercise of judicial power in foreign-cubed suits – has no inherent political valence; this depends on the norms being universalized. The ATS is one of a few instances of such jurisdiction, and a restriction on it could have several ripples and ramifications in other important contexts.

Moreover, it should be remembered that the ATS itself has other uses besides foreign-cubed suits against companies. Restricting such actions does not make the ATS meaningless, it only stops one particular genre of claims. ATS suits can and have been brought against individual American nationals, even as the new briefs in Kiobel are being written. Also, it should be noted that the ATS suits are not limited to liberal causes, and limiting it could obstruct some more conservative initiatives. Consider two pending ATS suits with rather opposite political valences, none of which involve corporate liability or foreign-cubed situations:

• Japanese whalers are suing Sea Shepherd Conservation Society in federal court for acts of piracy, violations of the SUA Treaty other navigational safety charters. The case raises interesting issues about the availability of injunctions under the ATS, as well as the meaning of “private ends” in the definition of piracy. (H/T: Other Eugene.)

• In recent weeks the Center for Constitutional Rights, which pioneered ATS litigation in Filartiga and many subsequent cases, filed suit against a U.S. preacher for encouraging the Ugandan government to criminalize homosexuality.

An interesting question this case raises is whether the Noerr-Pennington doctrine applies to the ATS generally, and whether it applies extraterritorially. One would think that those who argue corporate liability in ATS cases should be governed by federal common law would find Noerr-Pennington, based as it is on First Amendment considerations, fully applicable in this context. Noerr-Pennington has been extended to a variety of torts and to RICO actions, why not ATS?

One answer could be that antitrust violations are simply not violations when done by governments: indeed, much of what progressive economic policies entail is cartelizing workers and industries. Human rights violations, however, specifically are human rights violations when done by governments. But this just brings us back to the crossroads: do U.S. common law or international norms govern secondary legal issues in ATS cases?

Passover approaches, and with it the end of my rotation here. It has been a pleasure, and thanks to Eugene for having me here.

In my previous post, I argued that the broad interpretation of the Commerce Clause advocated by the government would have the absurd result, when applied to the parallel foreign commerce clause, of allowing Congress to impose mandates on foreigners with no prior contacts with the U.S.

Many commentators fought the hypothetical, saying such a law was stupid, unenforceable, and unlikely, so not a good proof of anything. Two responses. First, one man’s idiotic and unenforceable is another man’s Patient Protection and Affordable Care Act, which aside from its merits is itself unlikely (once in a few centuries), and hard to enforce (waivers). Second, arguments from absurd consequences are valid even if the hypothetical law would be ill-advised; indeed, since presumably no one wants absurd consequences, such arguments inherently assume the possibility of legislative error.

A student of mine emailed me to raise a variant hypothetical much closer to home: Can Congress mandate Indians to purchase insurance? They “inevitably” leave their territory at some point in their lives (at least as “inevitably” as the healthy uninsured getting sick), so the arguments would be exactly the same as for the mandate under the Interstate Clause. So why have an Indian Commerce Clause at all? Factual query: does the ACA apply to Indians living on tribal land? (I invite the student to self-identify in the comments.)

Some suggested that Interstate Commerce is regulated “among” the states, whereas foreign and Indian commerce is only “with” other countries or tribes. This could suggest the interstate power is broader: commerce just “among” other nations seems explicitly excluded. But if “among” the states means not actually among but affecting things that are “among,” wouldn’t the same be true of “with”? Again, I think the best reading of the commerce clause is that the interstate power is broader. But the ACA makes this distinction hard to sustain, and that is a criticism of the mandate not the commerce clause text.

All the talk from the left about how absurd it would be for the Supreme Court to invalidate the ACA on commerce clause grounds has made me think about ridiculous Supreme Court reasoning. And when I say ridiculous reasoning, I mean just that; not that I necessarily even object to the outcome of the case, just that I have a hard time keeping a straight face if I have to explain the reasoning to my students.

The penumbras and emanations line from Justice Willioam O. Douglas in Griswold is a perennial favorite, but I think Douglas outdid himself two years earlier in Gray v. Sanders. This was an extremely important case, because it announced the “one person one vote” rule, which soon led the Court to order virtually every state in the union to redistrict its legislature. Moreover, this was hardly an “apolitical” decision, because it forced states to reduce representation for (conservative) rural areas in favor of (liberal) urban areas, consistent with the political interests of the Court’s majority.

So how did Douglas justify the one-person, one-vote principle, even though no (or maybe almost no) states complied with it previously, and even though the U.S. Senate is obviously not apportioned on that basis? “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing – one person, one vote.” I kid you not.

Readers favorite examples of similar addled reasoning are welcome in the comments.

UPDATE: I can’t pick out one or two lines, but I have to admit not being able to follow the “reasoning” of Justice Holmes in Federal Baseball Club v. National League, 259 U.S. 200 (1922), in which he acknowledges that baseball teams cross state lines to play exhibitions for the purposes of making money, but that this nevertheless does not constitute “interstate commerce” for the purposes of federal antitrust law.

Further UPDATE: Judging from the comments, quite a few VC readers don’t understand the distinction between criticizing a ruling’s reasoning, and criticizing a ruling’s outcome. For example, I think Douglas’s Griswold opinion was quite poorly reasoned, but I don’t have any problem with Goldberg or Harlan’s concurrences, which reached the same result.

Guess who wrote the book described in this advertising blurb:

America’s Prophets: How Judicial Activism Makes America Great fills a major void in the popular literature by providing a thorough definition and historical account of judicial activism and by arguing that it is a method of prophetic adjudication which is essential to preserving American values. ___ confounds the allegation of the Christian right that judicial activism is legally and morally unsound by tracing the roots of American judicial activism to the methods of legal and moral interpretation developed by the prophets of the Hebrew Bible. He claims that Isaiah, Amos, and Jesus are archetypal activist judges and, conversely, that modern activist judges are America’s prophets. ___ argues that judicial restraint is a priestly method of adjudication and that it, not judicial activism, is the legally and morally unsound method.

Race and gender discrimination, separation of church and state, privacy rights, and same-sex marriage are all issues that have divided our nation and required judicial intervention. Every time the courts address a hot-button issue and strike down entrenched bias or bigotry, critics accuse the justices of being judicial activists, whose decisions promote their personal biases and flout constitutional principles. This term, despite its widespread currency as a pejorative, has never been rigorously defined. Critics of judicial activism properly point out that when judges overturn laws that enforce popular norms they thwart the will of the majority. But ___ argues that so-called activist judges uphold two other American legal values that are as deeply embedded in American legal culture as majoritarianism: liberty and equality. He challenges the notion that judicial activism is unprincipled, and he provides a vocabulary and historical context for defending progressive decisions.

Answer: University of Houston law professor David Dow, who wants to impeach the Justices if they invalidate the ACA because that would prove them to be judicial activists, whose decisions promote their personal biases and flout constitutional principles.

H/T Instapundit

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

My friend and sometimes intellectual sparring partner, Andrew Koppelman, writes:

The obsessive worry about an overbearing federal government suggests another historical parallel. In 1916, Congress banned the interstate shipment of the products of child labor. The rhetoric was as hysterical then as it is now: The Court declared that if Congress could do this, “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” The Supreme Court’s invalidation of the law astounded even those who had most strenuously opposed enactment and provoked a wave of national revulsion and the rapid enactment of a second law — a tax on products of child labor — which the Court also struck down, in 1922. The decision was overruled in 1941. The Court did not save America; what it actually accomplished was to thwart democracy – the law passed by 337-46 in the House and 52-12 in the Senate – and consign large numbers of children to the textile mills for two decades.

First, by preserving limitations on the Commerce power, the Court did in a sense save America. In 1935, the Supreme Court unanimously invalidated the National Industrial Recovery Act, surely (along with the first Agricultural Adjustment Act, also invalidated by the Court), the single worst piece of national legislation in the the twentieth century, if not all of American history. (The Act cartelized, with government enforcement, every significant American industry). The Court invalidated the Act both for an overbroad delegation of legislative authority to the present, and because, as in the child labor cases, Congress was purporting to regulate local activity under the authority of its power to regulate interstate commerce. Historians will tell you that the NIRA was already quite unpopular by then. But it’s not at all clear that the law was on its way to repeal any time soon, the NIRA being the centerpiece of the New Deal.

Second, as I’ve noted before, the Supreme Court’s invalidation of federal child labor legislation didn’t mean there were no child labor laws. By the end of the so-called Lochner era in the late 1930s, every one of the forty-eight states had laws banning and regulating child labor. Unlike the national Fair Labor Standards Act passed in 1938, most of these laws restricted children under fourteen, as opposed to sixteen, though a sixteen-year rule was gradually gaining traction. As one would expect, wealthier states, where parents were less likely to be dependent parents on the labor of their children to avoid starvation, passed earlier and stricter legislation, exactly as it should be in a federal system. (And even federal legislation left child labor on farms to parental discretion, in deference to the fact that family farms often couldn’t survive without the children pitching in.)

So I take different lessons from the child labor cases than Koppelman does. First, yes limiting federal power can and has prevented tyranny, as with the NIRA. (Not surprisingly, liberal commentators love to talk about the child labor cases, but not about Schechter Poultry, which invalidated the NIRA, a law I doubt anyone would support today.) And second, the invalidation of federal legislation dealing with what’s perceived as a “national” problem will simply put the ball in the states’ court, and I’m not at all convinced that “race to the bottom” factors outweigh the benefits of interstate competition, the ability of states to tailor laws to local conditions, and the inability of states, unlike the federal government, to bankrupt the entire country through ill-conceived entitlements.

For over the two years, the very intelligent and clever professors at Balkinization have been doing a great job up trying to come up with legal arguments in support of the health control law. Even people who were not persuaded by the arguments can see how they have contributed to the debate. The first item I wrote on the health control law was back on March 22, 2010, responding to an article by Jack Balkin in the New England Journal of Medicine regarding the tax power. (Incidentally, this may make me the second VC writer–very distantly second after Randy himself–to state in writing that the health control law is unconstitutional under modern law, not just under original meaning. )

My Independence Institute colleague Rob Natelson (U. Montana law school) first wrote on the constitutionality of the health control law on Jan. 23, 2010, responding to a Los Angeles Times essay by Akhil Amar, who also writes for Balkinization. (Making Natelson the 1st full-time law professor to write something on Barnett’s side of the issue.)

I think that the VC and Balkinization have jointly helped to elevate the constitutional analysis by the courts and by the public, especially when VC and Bk have engaged and addressed each other’s arguments. Both VC and Bk kept right on going last week, with plenty of arguments for the Court made during the period between the end of oral argument on Wednesday and the Court’s conference on Friday.

In the health control law debate, VC and Balkinization have each had one outlier. At VC, our outlier was Orin Kerr, who remains unconvinced by the arguments developed by Randy et al. Orin’s public questions and challenges have helped spur the health control skeptics to refine their arguments, and to state them more precisely and clearly.

Balkinization has a different kind of outlier. Andy Koppelman has spent two years penning variations of his thesis: “Everyone who doesn’t agree with me is stupid.”

As noted below by Randy, Koppleman’s latest essay explores the implications of his certitude that “the silliness of the constitutional arguments against the mandate is apparent to any competent lawyer who assesses them in good faith.” Because every competent lawyer knows that Koppelman is right, how could anyone, including Supreme Court Justices, purport to disagree?

There could be only two possible explanations for such a frivolous opinion: (1) a naked assertion of raw power by politicized right-wing justices contemptuous of democratic processes, or (2) a sort of mass hallucination induced by the inane rantings produced by the echo chamber of the right-wing blogosphere.

Thus, says Koppelman, everyone, including lower federal courts, should “nullify” a Supreme Court decision holding the health control law unconstitutional.

I’ll leave it up to the readers to decide whether the Supreme Court saying that Congress can’t force people to buy overpriced products from the Big Insurance oligopoly merits the same sort of response that Kentucky offered to a congressional statute which (as actually enforced) outlawed criticism of the President, or which Wisconsin offered to a federal statute purporting to conscript Wisconsin citizens into enforcement of the federal Fugitive Slave Act of 1850.

But I will say this, from an organizational behavior perspective. An organization whose task involves persuasive communications can sometimes be strengthened if there is one person in the organization who can thoughtfully say “Here’s why I think the rest of you may be wrong, and here are what I see to be the weaknesses in your argument.” In contrast, an organization will not improve its persuasive effectiveness if the organization pays any attention to a fanatical member who insists, “No, the people on the other side aren’t just wrong. They MAD I tell you! MAD! They live in an echo chamber, and can’t even consider contrary ideas. Isn’t that obviously CRAZY!!?”

For my own exchanges with Professor Koppelman, see Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011), and Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), both of which were co-authored BU’s Gary Lawson. A shorter version of the Lawson/Kopel thesis on the Necessary and Proper clause is available at The Incidental Unconstitutionality of the Individual Mandate, Legal Workshop. Feb. 6, 2012.

[Epilogue: April Fool's. On me. Larry Solum of Legal Theory occasionally posts abstracts of "articles" by famous professors which  are actually Solum-written parodies that take the professor's approach and push it just one more, somewhat plausible, step into absurdity. In real life, Koppelman does accuse critics of the health control law of acting "in the spirit of a saboteur in wartime,” and he did characterize the Lawson/Kopel argument for obeying the original meaning of the Necessary and Proper clause, as expounded in McCulloch, as "insane." But he never called for nullifying a Supreme Court decision; and while he has always said that there are no non-"silly" arguments against the health control law, he has never posited mass insanity as an alternative explanation to his theory that the only way for the health control law to be ruled unconstitutional would be political bias by the judges. And congratulations to Larry Solum, who is never insane, always brilliant, and sometimes silly.]

The discussion of why liberal and even some conservative (see this hissy fit by Charles Fried) academics were unable to see the plausibility of the constitutional challenge to the individual mandate reminds me of an anecdote from my law school days.

I was at a Federalist Society student conference chatting with a prominent professor.  We got into a discussion of the Takings Clause, and he told me about the various theories of Takings he goes through when he teaches the clause.  Conspicuously absent was any mention of Richard Epstein’s theories, even though Epstein was one of the most cited law professors in the country, and had published just a few years earlier a widely-discussed book on the subject.

So I asked this professor whether he covered Epstein’s theories at all.  He said, “no, I don’t even mention them.”  I asked why.  He said, “I don’t think anyone takes Epstein’s book seriously.”  This, mind you, from a professor who was something of a libertarian fellow traveler himself.

Flash forward a year, to my clerkship interviews.  I applied to both Democratic and Republican appointees, but only Republicans gave me interviews.  With one exception, every one of the judges seven or eight judges I interviewed with, including some of the most prominent judges in the country, asked me what I thought of Epstein’s book.

Now I’m sure that they asked me this in part because it was pretty obvious that I was libertarian-minded, and this was the most prominent libertarian law book of the day. Still, it was clear from the questions that this book that “no one” was taking seriously in liberal-dominated academia was being taken very seriously among elite conservative jurists.

(As an aside, ironically the one judge who didn’t ask me about Epstein’s book was Clarence Thomas, who wound up having the book waved at him by Joe Biden at the beginning of his confirmation hearing).

Following up on Jonathan’s post below, I’m not terribly worried about warnings from the left that a ruling against the ACA will undermine the Court’s legitimacy.

Who, after all, is going to lead the charge against the Court?  Liberal journalists like Linda Greenhouse and Dahlia Lithwick, whose human capital is invested in covering the Court?  The fraternity of elite liberal  lawyers who served as Supreme Court clerks, for whom undermining the Court’s legitimacy means undermining the value of their own prized credential?  Liberal constitutional law professors, who are as invested as anyone in the Court’s significance?  (It’s hard enough to get people to read one’s latest article on “A Kantian/Weberian Approach to the Fourth Amendment” when the Court is as important as it is now!)  Liberal activist groups and think-tankers, who still treasure the Court’s rulings on abortion, due process rights for terrorism suspects, term limits, and more, and who hope that a future Court will recognize a right to gay marriage?  Liberal Congressmen, when Congress’ popularity rating is well below the Court’s, and who have hardly shown themselves to be constitutional scholars? (Not to mention that journalists like Lithwick are on record suggesting that it’s “weird” for members of Congress to be considering the constitutionality of legislation.  “Isn’t it a court’s job to determine whether or not something is, in fact, constitutional?” wrote Lithwick.)

At most, a ruling against the ACA will have the same effect as Bush v. Gore or Citizens United, or Roe v. Wade and Boumediene for that matter; a fair amount of caterwauling, with the Court as an institution remaining unscathed.

UPDATE: I probably should add that I’m not at all sure the Court should have the level of legitimacy it currently has.  I think the other branches of government were meant to, and probably should, play a significantly larger role in constitutional decisionmaking than they currently do.  But as a positive matter, I don’t see the ACA litigation as a threat to that legitimacy.

FURTHER UPDATE: Oh, and of course, why undermine the Court’s legitimacy when your side is one appointment away from taking it over?

Now that Eugene has given me the electronic keys to this Conspiracy, I could not resist getting involved in the now-legendary discussion of the ACA…

There is a serious inconsistency between the government’s arguments for the mandate and for the Medicaid expansion. In a nutshell, these arguments make opposite assumptions about the effect of financial duress on states’ ability to execute their policy preferences. Defending the mandate, the government says states are individually incompetent to regulate insurance, because the first state to adopt generous rules would be inundated with the sick, and forced to abandon its policy. This is a basic race to the bottom story and has been around in Commerce Clause cases since the New Deal.

Crucially, the argument takes financial realities as dispositive: states cannot realistically choose to experiment with medical insurance individually because it would be ruinous. The economic effects mean that states do not really have the power to choose individual regulatory regimes.

Yet turning to the Spending power, the government ask us to believe that states can realistically turn down federal medicaid funds, though it would be at least as ruinous if not more. Either the prospect of massive losses makes a states ability to pursue a certain course illusory or it does not. 

Incidentally, these two cases are not equal in that in that in the former, the ruinous consequences are a result of the market, in the latter a result of calculated federal efforts to make the offer unrefusable.

With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles. They are:

1. The Necessary and Proper Clause. “Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate.” This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).

So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on  a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.

2. The Commerce Clause. “The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets.” This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related violence). However, it’s pretty clear under long-established doctrine that the Commerce power can be used to address “social problems that do not involve markets.” E.g., Caminetti v. United States, 242 U.S. 470 (1917) (Congress can use the interstate commerce power to criminalize interstate travel by people intending to engage in non-commercial extra-marital sex); Champion v. Ames, 188 U.S. 321 (1903) (“What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals?”). Personally, I thought that Chief Justice Fuller’s dissent in Champion had the better argument, but Champion and its progeny are well-established precedents, so proposed limiting principle number two does not work, unless we overrule a century of precedent.

Besides that, #2 does not work for the same reason that #1 does not work. If Congress forced food producers to sell products to some consumers at far below cost, then Congress could (for economic, not social/moral motives) force other consumers to buy overpriced food, so that the producers do not go bankrupt. Imagine that instead of the Food Stamp program (general tax revenue given to 1/6 of the U.S. population to help them buy food), Congress forced grocery stores to sell food to poor people at far below cost. And instead of raising taxes in order to give money to the grocery stores to make up for their losses on the coerced sales, Congress instead forced other consumers to spend thousands of dollars on food from those same stores, which would be sold to those consumers at far above its free market price.

If there’s a limiting principle, the only one seems to be that in order to mandate the purchase of a product, Congress must also inflict some other harm on the producers of the product, which the coerced purchases will ameliorate.

3. “Collective action failures and interstate externalities impede the ability of the states to guarantee access to health insurance, prevent adverse selection, and prevent cost shifting by acting on their own. Insurers operate in multiple states and have fled from states that guarantee access to states that do not.” This is really a policy argument for Obamacare. Hypothesizing that it’s a good policy argument, it’s not a limiting principle. That the advocates of Obamacare think that the policy arguments for their mandate is better than the policy arguments for other mandates does not provide courts with a limiting principle of law.

Moreover, the policy argument is wrong. It’s true that some insurance companies stop operating in states where the law forces them to sell insurance to legislatively-favored purchasers at far below the actuarial cost of the insurance, with the  legislature failing to compensate the companies for the enormous resulting losses. If you make it difficult for companies to operate profitably in your state, then they will eventually stop operating in your state. It’s not a collective action problem; it’s just a problem of several states enacting laws that prevent companies from covering their costs. Any state with guaranteed issue and other price controls can solve the problem immediately by simply using tax revenues pay compensation for the subsidy which the state law forces the insurance companies to provide to certain consumers.

Obamacare is a particularly weak case in which to argue that the federal government is riding the rescue of the states to solve a collective action problem. For the first time in American history, a majority of the States are suing to ask that a federal law be declared unconstitutional. These states are taking collective action to stop the federal government from imposing a problem on them.

4. The Tax Power. “[T]he minimum coverage provision respects the limits on the tax power. The difference between a tax and a penalty is the difference between the minimum coverage provision and a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured. Unlike the minimum coverage provision, such an exaction would be so coercive that it would raise little or no revenue. It would thus be beyond the scope of the tax power.”

Let’s put aside the fact that, however ingenious the progressive professoriate’s  tax arguments have been, the chances that the individual mandate is going to be upheld under the tax power appear to be at most 1% greater than the chance the Buddy Roemer will be the next President of the United States.

Presuming that Siegel’s tax justification for the individual mandate is valid, it is an anti-limiting principle. Congress can indeed mandate eating hamburgers, smoking, not smoking, not eating hamburgers, or anything else Congress wants to mandate, as long as Congress sets the “tax” at level that will raise a moderate amount of revenue, does not include a scienter requirement, and does not make the “tax” increase each month that the individual refuses to do what Congress mandates.

5. Liberty. “The minimum coverage provision does not violate any individual rights, including bodily integrity and substantive due process more generally. These rights would be violated by a mandate to eat broccoli or exercise a certain amount.” Pointing to the existence of the Bill of Rights is not an example of a limiting principle for an enumerated federal power. The Constitution does not say that Congress may do whatever it wishes as long as the Bill of Rights protections of Liberty are not violated. Ordering New York State to take title to low-level radioactive waste generated within the state (New York v. United States) did not violate any person’s substantive due process rights, but the order was nonetheless unconstitutional because it exceeded Congress’s powers. The federal Gun-Free School Zones Act did not, as applied, violate the Second Amendment rights of Alfonso Lopez, who was carrying the gun to deliver it to a criminal gang. Yet the Act still exceeded Congress’s commerce power. A limiting principle must limit the exercise of the power itself, not merely point out that the Bill of Rights protects some islands of Liberty which the infinitely vast sea of federal power might not cover.

Finally, I certainly agree with Professor Siegel that the Fifth Amendment’s liberty guarantee (and its 14th Amendment analogue for the states) should be interpreted to say that no American government can order people to consume a certain amount of healthy food, or to exercise. But there is no major case that is on point for this. The argument for a new unenumerated right “not to eat the minimum quantity of nutritious food which government scientists have  determined is essential for good health” is something that would have to be built almost entirely by extrapolation from cases that have nothing to do with food. I hope that courts would accept the argument; but if the political culture ever moved far enough so that a nutrition mandate could pass a legislature, I’m not as certain as Prof. Siegel that courts would overturn the mandate. The odds of winning a case against a nutrition mandate will be better if the judges who decide that case have not grown up in a nation where a federal health control mandate is the law of the land.

In his closing remarks at today’s oral argument over the Medicaid expansion, SG Verrilli  urged the Court, nothwithstanding concerns about limiting the federal government, to uphold not just the Medicaid provision but the entire ACA.  His rationale was in part that the people’s democratically elected representatives, after much thought, decided that the ACA was the best way to deal with America’s health care problems.  But he also referred, twice, to the fact that the Medicaid provision and the ACA more generally are important to “secure the blessings of liberty” for those individuals who would otherwise face health care crises.

I find this an odd strategic choice for Verrilli to have made in his very last remarks to the Court.  It’s not uncommon for liberals to refer to the Constitution’s preamble–We the People, in order to form a more perfect Union, establish Justice, ensure domestic tranquility, provide for the common defense, promote the General Welfare and secure the Blessings of Liberty–as a counterweight to the notion that the federal government’s powers are significantly limited by their enumeration.  But I’ve never heard of a conservative buying into the idea that the goals set forth in the preamble have any particular weight in constitutional interpretation, at least not when set in opposition to specific constitutional provisions.  Indeed, if anything, I think a typical reaction of Federalist Society types is that reliance on the preamble of the last refuge of those who don’t have a serious constitutional argument to make; “you mean you’re not an originalist or a textualist and you want us to engage in ‘living constitutionalism’ with regard to all sorts of very specific and substantive constitutional provisions, but then you want us to take the preamble seriously?”

This strikes me as part of a pattern I detect throughout this litigation and especially in the SG’s oral argument: the government’s lawyers seem to have no idea how conservative jurists typically think about  the Constitution.  Instead, they make arguments that would get almost unanimous nods of approval in the Harvard (or Columbia, the SG’s alma mater) Law School faculty lounge, but are not remotely persuasive to the other side.

Verrilli, after all, had months to come up with a succinct, plausible, limiting principle in defense of the individual mandate.  He should have been able to repeat this backwards, forwards, upside down and in his sleep. Yet he could barely explain himself yesterday, when given the opportunity by three different Justices.  Given his reputation as one of the country’s top appellate lawyers, a tempting explanation is that he couldn’t believe that anyone except perhaps Thomas was really concerned about that issue.

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”

Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn  replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest [...] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

Something to keep in mind when someone argues that the Supreme Court should defer to the constitutional wisdom of its coequal branches.

UPDATE: Links to sources for each quotation added.  Also, the point is not that leading Democratic politicians are especially ignorant or dismissive of the constitutional bases for what they do.  I doubt Republicans would do better.  The point is, as suggested above, that this ignorance/dismissiveness undermines the argument that the Supreme Court should defer to Congress as a co-equal branch making independent constitutional determinations.  For such deference to make sense, members of Congress have to actually be making such determinations.

Sorry to keep reiterating this point, but I’ve contended since December 2010 that if the pro-ACA side is unable to articulate a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.

Unfortunately for the law’s defenders, the SG today lapsed into incoherence when Justices Alito, Kennedy, and Scalia asked him to identify a limiting principle (check out various liberal blogs for apoplectic reactions to SG Verrilli’s performance).  Justice Breyer later tried to step in and articulate three such principles:

First, the Solicitor General came up with a couple joined, very narrow ones. You’ve seen in Lopez this Court say that we cannot, Congress cannot get into purely local affairs, particularly where they are noncommercial. And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law.

So (1) even Breyer was unable to articulate exactly (or even approximately) what limiting principle the SG had come up with; (2) everyone knows that defeating Lopez’s limitations on the commerce power has largely become a statutory drafting game to find a federal jurisdictional hook, however remote, and an unsuccessful ACA challenge would make it that much more difficult to find any examples regarding which such a hook couldn’t be found.  Moreover, reliance on Lopez is a bit rich coming from Breyer, who dissented in Lopez and would undoubtedly vote to overturn it tomorrow if he could;  and (3) this is not a limit, it’s judicial abdication, though it’s what Breyer really believes. Even though he knew–and said!–that his colleagues aren’t going to be persuaded by this, he apparently couldn’t resist throwing it in anyway, as the “greatest limiting principle.” Ego over effectiveness, I suspect.

So far, we seem to be left with the “health care is special” argument, which is not a limiting principle, but could persuade a conservative justice or two to join a limited holding. Yet Justice Kennedy suggested today that if the ACA is upheld, the government will soon be back arguing that some other sector of the economy is “special.”  Not a good day for limiting principles.

As I’ve consistently maintained, the Supreme Court will not uphold the individual mandate if the majority is unconvinced that there is a limiting principle.  While we await the transcript of today’s oral argument, we can consider Justice Scalia’s question, as reported by the Washington Post: “Government is supposed to be a government of limited powers,” he said. “What is left if the government can do this? What can it not do?” I wonder what the SG said in response.

Lets take a break from the ACA to think about the federal government’s power to to deal with matters that have no connection to the U.S., an issue the Court will take up when it hears the expanded arguments in Kiobel, the ATS case.

Yesterday I talked about how the ATS extraterritoriality at issue in Kiobel is really something rarer and more extreme: universality. Thus the analysis starts with the classic universal crime and obscure constitutional provision – Piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy is not just any international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 NORTHWESTERN UNIVERSITY LAW REVIEW 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime.

Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.”

Congress’s failure to Define
Courts in ATS cases have usually skipped the UJ question entirely. As I show in my forthcoming paper, Discretion, Delegation and Defining in the Constitution’s Offenses Clause, 106 NORTHWESTERN UNIVERSITY LAW REVIEW __ (2012), when Congress exercises its power to “Define” an offence, it gets some degree of deference about the content of the offense, as well as its UJ status. Congress did not “Define” in the ATS, but rather broadly delegated to the courts. Courts do not enjoy any special discretion to “Define.” In the absence of congressional definition, courts must stick closely to well-established international precedent on universal cognizability, an effort they have not even attempted. This is not just because Sosa’s requirements; rather, the Offenses Clause requires it. Indeed, the plurality in Hamdan case rejected conspiracy to commit war crimes because there were no precisely on-point international precedents, a demanding standard equally applicable to the universal cognizability of ATS offenses. Ironically, conservatives favored a loose approach to finding international norms in Hamdan and liberals a highly restrained one; the roles here are gain reversed.

Furthermore, a statute’s mere reference to international law in the ATS does not automatically trigger UJ. Indeed, in U.S. v. Palmer, Chief Justice Marshall read a statute criminalizing “piracy” by “any person” as requiring a U.S. nexus, even though it was clear that Congress could constitutionally apply it universally. The fact that Congress quickly acted to override this construction does not disprove the existence of the presumption as applied to international law offenses: one point of presumptions is to put the burden of clarity on Congress, and this is even more so in foreign relations issues.

[Cross-posted on OpinioJuris]

The Times has a nice front-page profile of Randy Barnett, discussing his role in crafting the challenge to the ACA.  I think the reporter did miss one very important thing, though: Randy’s representation of Angel Raich in Gonazlez v. Raich.  The standard view in the legal academy for many years has been that Congress’s Commerce power is virtually unlimited, with perhaps minor largely symbolic exceptions, as in Lopez and Morrison. But in representing Raich, Randy read all of the relevant cases closely, and discovered that they don’t quite say what people think and assume they say.  Sure, the precedents give Congress vast powers.  But they don’t control the outcome in the ACA litigation, or at least one can make a very powerful argument that they don’t.

I’m pretty confident that the challengers will get at least at least three votes, and I won’t be at all shocked if they get five.  The Times quotes professors Charles Fried and Doug Laycock as being very dismissive of the challenges, but if any of our readers happen to run into Fried or Laycock, I’d be curious to know the answer to this question: How many votes did you think Lopez would get, and how many votes did you think Raich would get?  If they are like the vast majority of their fellow constitutional law professors, the answers are (a) I didn’t take the Lopez case seriously enough to even spend time thinking about it (Lopez got five votes); and (b) either one or zero (Raich got three votes).