The Volokh Conspiracy

In today’s WSJ, Stanford law professor and former federal appellate judge Michael McConnell has an op-ed commenting on the tone and content of much liberal commentary on the individual mandate litigation. It begins:

In apparent panic at the tenor of the Supreme Court argument over the constitutionality of the Affordable Care Act (aka ObamaCare), liberal law professors have exploded with anticipatory denunciations of the court’s conservative justices—claiming that it would be “hypocritical” and “partisan” of them to invalidate legislation passed by Congress when they generally oppose “judicial activism.”

It appears the professors’ idea of sound jurisprudence is that their favored justices are free to invalidate statutes that offend their sensibilities whether or not the words of the Constitution have anything to say on the matter, as in the case of same-sex marriage or partial-birth abortion, and even if the Constitution seems to endorse it, as in capital punishment. But if conservative justices have the temerity to enforce actual limits on government power stated in Article I, Section 8—over liberal dissents—then they are acting as shameless partisans.

It seems unlikely this one-sided definition of “activism” will persuade anyone. Judicial review might be aggressive and it might be deferential, but there cannot be one set of rules for liberal justices and another set for conservatives.

His brief piece goes on to explain how the argument against the mandate is grounded in the bedrock constitutional principle that ours is a federal government of limited and enumerated powers — and that the enumeration of certain powers presupposes powers not enumerated. Opponents have argued that the mandate transgresses the limits of federal power (not, as critics have claimed, that the mandate violates any independent limitation on federal power, such as due process or any enumerated rights). Supporters of the mandate, on the other hand, have failed to offer any principled constitutional theory that would allow for the Court to uphold the mandate without giving Congress a blank check. This failing is what doomed the Gun Free School Zones Act in United States v. Lopez, and it’s what has placed the mandate in jeopardy as well. The Solicitor General and others have tried to explain why health care is “different” but none of these arguments are “grounded in any principle based in constitutional text, history or theory.”

Various defenders of the individual mandate have long argued that if the Court strikes down the law, it is likely to lead to the resuscitation of Lochner v. New York and the invalidation of a wide range of economic regulations. This meme has most recently been taken up by Jeffrey Rosen, who claims that striking down the mandate would be “resurrecting the pre–New Deal era of economic judicial activism with a vengeance.” Others have made similar claims, as I describe here.

I. Why there is no Doctrinal Connection Between Lochner and the Individual Mandate.

In reality, the individual mandate has no doctrinal connection to Lochner or any other economic liberties or property rights cases. I covered the reasons why in detail in this article (pp. 99-101). Co-blogger David Bernstein, a leading academic expert on Lochner, makes some additional relevant points here.

To briefly summarize, this case is different from Lochner for two reasons. First, Lochner restricted some types of economic regulations by the states as well as the federal government. If the Supreme Court invalidates the federal individual mandate because it is beyond the scope of congressional authority, states such as Massachusetts would remain free to adopt mandates of their own.

Second, even the federal government would still have extraordinarily broad authority to regulate actual economic transactions, including employment relationships, manufacturing, the purchase of goods and services, and so on. Congress would only be denied the power to impose mandates under the Commerce Clause in the absence of some preexisting “economic activity.” Even the Court’s most extreme previous Commerce Clause decisions – such as Gonzales v. Raich – would remain in force. I would be very happy to get rid of Raich, a dubious decision that concluded that Congress’ power to regulate interstate commerce allowed it to forbid the possession of medical marijuana that had never crossed state lines or been sold in any market. But doing so isn’t necessary to strike down the mandate.

Conversely, if the Court upholds the mandate, that will in no way prevent it from strengthening enforcement of constitutional protections for economic liberties and property rights in future cases. Even if there are no enumerated powers limits to congressional authority under the Commerce Clause, that authority is still limited by the individual rights provisions of other parts of the Constitution. Many libertarians, including myself, believe that the Constitution imposes both stringent structural limitations on federal power and substantial individual rights-based ones. But it is perfectly possible for one to exist in the absence of the other. A decision upholding the individual mandate would not dictate the proper interpretation of the Takings Clause of the Fifth Amendment. Thus, it would not make it any less feasible for the Court to alter the questionable second class status of property rights in current doctrine.

It also would not dictate the correct interpretation of the Due Process Clausesof the Fifth and Fourteenth Amendments, or the Privileges or Immunities Clause. Thus, the Court could uphold the individual mandate, yet still (in future cases) enforce these clauses’ protections for economic liberties, which as David Bernstein and others have shown, are deeply rooted in the text and original meaning of the Amendment. And even if the Court did begin to protect property rights or economic liberties more strongly, it would not necessarily go as far as the pre-1930s Court did, which itself was not nearly as far as many modern liberals imagine (the Lochner-era Court upheld far more economic regulations than it struck down).

Indeed, the case for increased enforcement of individual rights constraints on Congressional power would be stronger if the Court ruled that there are no structural limitations on its authority to impose whatever mandates it wants. And that is the likely effect of a decision upholding the mandate.

II. Lochner as Epithet and Guilt by Association.

Some of those who raise the spectre of Lochner to attack the case against the individual mandate may not have any specific legal doctrine in mind. They might simply be using Lochner as a synonym for any decision striking down “economic” laws that they think are constitutional. If that’s the case, however, then the Lochner analogy is just a political epithet rather than a serious argument – much like Republicans calling Obama a “socialist.” As David Bernstein puts it in his important recent book on Lochner, it’s yet another example of commentators using the case as a “vacuous, rhetorical shortcut” for denouncing “what [they] consider the ‘activist’ sins of their opponents” even in situations where the legal issues in question have little or no connection to either Lochner or the Fourteenth Amendment. Conservatives have often used Lochner as an epithet themselves. So it’s understandable that liberals would do the same thing. But such rhetorical ploys are not substantive arguments.

Finally, there is the notion that the case against the individual mandate is discredited by its association with “radical” libertarian arguments against various other parts of the post-New Deal legal order. Some invocations of the Lochner analogy may be intended to reinforce this meme.

David effectively dismantles such guilt by association claims here. I would add that the case against the mandate has attracted support far beyond libertarian circles, “radical” or otherwise. The anti-mandate plaintiffs include 28 state governments and many private organizations, including many who are far from libertarian. It also has the support of most of the GOP and the vast majority of the general public. As a libertarian myself, I wish it were true that all of these people had suddenly bought into a broad libertarian agenda. In reality, however, their support for the case against the mandate is mostly a result of the fact that it’s perfectly possible to conclude that this law is unconstitutional without being either libertarian or an opponent of the entire post-New Deal legal regime.

UPDATE: I have made a few slight revisions to this post in order to increase clarity and correct a typo.

Both sides in the individual mandate litigation have developed a wide range of legal arguments to support their position. Some defenders of the mandate have also emphasized several nonlegal reasons why they believe the Court should uphold the law. These arguments have gotten more emphasis since the Supreme Court oral argument seemed to go badly for the pro-mandate side. The most common are claims that a decision striking down the mandate would damage the Court’s “legitimacy,” that a 5-4 decision striking down the mandate would be impermissibly “partisan,” and that it would be inconsistent with judicial “conservatism.”

Even if correct, none of these arguments actually prove that the Court should uphold the mandate as a legal matter. A decision that is perceived as “illegitimate,” partisan, and unconservative can still be legally correct. Conversely, one that is widely accepted, enjoys bipartisan support, and is consistent with conservatism can still be wrong. Plessy v. Ferguson and Korematsu are well-known examples of terrible rulings that fit all three criteria at the time they were decided.

In addition, all three arguments are flawed even on their own terms.

I. A Decision Striking Down the Mandate is Likely to Enhance the Court’s Legitimacy More than it Undermines it.

Claims that a decision striking down the mandate will undermine the Court’s “legitimacy” founder on the simple reality that an overwhelmingly majority of the public wants the law to be invalidated. Even a slight 48-44 plurality of Democrats agree, according to a Washington Post/ABC poll. Decisions that damage the Court’s legitimacy tend to be ones that run contrary to majority opinion, such as some of the cases striking down New Deal laws in the 1930s. By contrast, a decision failing to strike down a law that large majorities believe to be unconstitutional can actually damage the Court’s reputation and create a political backlash, as the case of Kelo v. City of New London dramatically demonstrated.

Striking down the mandate will damage the Court’s reputation in the eyes of many liberals and some legal elites. But a decision upholding it will equally anger many conservatives and libertarians, including plenty of constitutional law experts. There is not and never has been an expert consensus on the constitutionality of the mandate. Any decision the Court reaches is likely to anger some people, both experts and members of the general public. But more are likely to be disappointed by a decision upholding the law.

Ultimately, the Court should not base its decision in this case on “legitimacy” considerations. If the justices believe that the mandate is constitutional, they should vote to uphold it despite the possible damage to their reputations. But it would be a terrible signal if key swing justices refused to strike down a law merely because their reputations would be damaged in the eyes of a small minority of the public and a vocal faction of the legal elite. It would certainly call into question their willingness to make unpopular decisions that are compelled by their duty to uphold the Constitution, including in cases where they must strike down unconstitutional laws that really do enjoy broad public support.

II. An Impermissibly “Partisan” Decision?

Any decision striking down the mandate is likely to pit the five conservative Republican justices against the four liberal Democrats. Some commentators, such as Larry Lessig and Jonathan Cohn, claim that such a result would be impermissibly “partisan,” creating a perception that the Court is only willing to strike down “liberal” laws.

This sort of argument urges judges to engage in genuinely political decision-making in order to avoid the mere appearance of it. If a Republican-appointed justice votes to uphold a law he believes to be unconstitutional in order to avoid the appearance of “partisanship,” he would be allowing political considerations to trump his oath to uphold the Constitution.

Even if there is a judicial duty to avoid the appearance of a partisan split, why doesn’t it fall on the liberal justices just as much as the conservatives? If one or more of the liberal justices were to join the five conservatives in striking down the mandate, that would diminish the appearance of partisanship just as much as a conservative “defection” to the liberal side would.

Finally, this line of criticism overlooks an important reason why decisions enforcing limits on congressional power often have an ideological division: the Court’s liberals have consistently voted against nearly all structural limits on congressional power under the Commerce Clause, the Necessary and Proper Clause, and the Tenth Amendment. Thus, the Court enforces such limits only in those cases where the five conservative justices can agree among themselves. The only way for the conservatives to avoid the appearance of partisanship in this area would be complete abdication of judicial enforcement of structural limits on congressional power.

III. Consistency with Judicial “Conservatism.”

Jeffrey Rosen and others have argued that a decision against the mandate would be inconsistent with “conservative” attacks on “judicial activism” and deference to legislative judgment. Judicial conservatism is not a single, unitary entity. All sorts of decisions can potentially be justified on “conservative” grounds.

However, one major strand of conservative legal thought over the last thirty years has been the need to enforce constitutional limits on federal government power. This idea would be completely undercut by a decision upholding the mandate, since all of the government’s arguments in favor of the mandate amount to a blank check for unconstrained congressional power. As I explain in detail in this amicus brief for the Washington Legal Foundation and a group of constitutional law scholars, the government’s various “health care is special” arguments collapse under close inspection.

Conservative support for judicially enforced limits on federal power is in some tension with loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of such rhetoric. However, for most on the right, “judicial activism” is not coextensive with any judicial overruling of statutes, but rather with departures from the text and original meaning of the Constitution. And the originalist case against the mandate is very strong.

Conservatives and others can disagree among themselves as to how much deference should be given to Congress in any given case. In considering this issue, they should weigh two points that Rosen advanced in his important 2006 book The Most Democratic Branch: How The Courts Serve America.

Although generally advocating judicial deference to Congress, Rosen notes two important exceptions to this principle. The first is that “When Congress’s own prerogatives are under constitutional assault (in cases involving legislative apportionment or free speech, for example), it may be less appropriate for judges to defer to Congress’s self-interested interpretations of the scope of its own power.” Obviously, there are few more “self-interested” interpretations of “the scope of its own power” than one that would give Congress virtually unlimited power to impose any mandate it wants.

Second, Rosen suggests that “[f]or the Court to defer to the constitutional views of Congress, Congress must debate issues in constitutional (rather than political) terms” (pg. 10). In order to deserve deference, Congress needs to take the relevant constitutional issues seriously. In the individual mandate case, congressional Democrats notoriously demonstrated utter contempt for the constitutional issues, and plenty of ignorance to boot.

In fairness, their performance was no worse than that of the GOP when they controlled Congress during the Bush years. Far from generating serious constitutional deliberation in the legislative branch, the judiciary’s tendency to defer to Congress on federalism issues has had the opposite effect. Both parties give short shrift to constitutional limits on federal power because judicial deference has created a political culture in which almost anything goes. More careful judicial scrutiny of Congress’ handiwork might lead Congress to start taking the Constitution seriously again. That result should be welcomed by conservatives, libertarians, and liberals alike.

A nondeferential posture by the Court wouldn’t necessarily lead to the invalidation of the mandate. It merely means that the justices should give little weight to Congress’ “self-interested” interpretations of its own power and instead come to their own independent judgment on the constitutional issues at stake.

Ultimately, the Court should not decide the individual mandate case based on these sorts of nonlegal considerations. It is more important that its decision be right than that it be perceived as legitimate, nonpartisan, or conservative. But even on its own terms, the nonlegal case for upholding the mandate is not as impressive as its advocates claim.

UPDATE: Ed Whelan makes some relevant points here.

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.

The Monkey Cage has an interesting guest post from Georgia State University’s Gregory Lewis examining why initiatives to prohibit same-sex marriage succeed at the polls when public opinion surveys suggest reasonably strong support for same-sex marriage. Among the key points is that support for same-sex marriage varies quite widely by state.

That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state authority to enforce immigration laws), and others.

The major part of the Article details some recently-enacted criminal law and sentencing reforms in Colorado, which mitigate the fiscal damage of the drug war. The second part of the Article summarizes the fiscal benefits of ending prohibition. Finally, the Article looks at some of the legal history of alcohol prohibition, and suggests that current federal drug prohibition policies are inconsistent with the spirit of the Tenth Amendment, including  state tax powers.

Yesterday the President told ABC News that he believes same-sex couples should be able to get married. So far so good. He further told ABC that he believes this is an issue that should be left to the states which are “arriving at different conclusions at different times.” I have nothing to complain about here, as this is my position as well. I believe in recognition of same-sex marriage, but also believe that this is the sort of question entrusted to state governments under our constitutional system, and that, as with many questions of social policy about which I have strong preferences, different states are and should be free to come to different conclusions on the matter. I also believe that as more states elect to recognize gay marriage (particularly insofar as this is done by legislatures and ballot initiatives, rather than by courts) many of those who are currently uneasy with the idea of gay marriage will learn they have nothing to fear and opposition to gay marriage will slowly melt away.

The problem with the President’s position is that it cannot be reconciled with the Administration’s stance on the constitutionality of the Defense of Marriage Act. According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended. In their view, because DOMA precludes federal recognition of same-sex marriages, it violates the constitutional guarantee of equal protection under the Fifth Amendment. Further, according to Holder’s statement, they concluded that no “reasonable” constitutional argument could be made in DOMA’s defense. Yet if DOMA is unconstitutional under equal protection, which applies to the state and federal governments equally, then how could any state law barring recognition of same-sex marriages survive constitutional scrutiny? In other words, while the President says he believes that states should be allowed to reach “different conclusions at different times” on the question of same-sex marriage, the administration’s legal position is that a state’s refusal to treat opposite-sex and same-sex couples alike is unconstitutional. So while the President may say he’d like to leave this question to the states, that’s an option his administration has already taken off the table.

[NOTE: Edited the post to make clear that equal protectioon is guaranteed as against the federal government through the Fifth Amendment and as against the states through the 14th Amendment, but the standard is the same.]

UPDATE: Here’s the full ABC transcript, in which the President suggests he was also influenced by a concern that DOMA federalizes a traditional state concern. Lyle Denniston comments here, suggesting the President’s legal position does not threaten state laws. Calvin Massey disagrees here. Massey is right.

The official statements from the Justice Department do not raise any federalism concerns and rest the conclusion that DOMA is unconstitutional (and that no reasonable arguments may be made in its defense) on the basis that distinctions based on sexual preference are subject to intermediate scrutiny, that there are no important government interests in maintaining a traditional definition of marriage, and that animus may have contributed to DOMA’s passage. While there are other arguments that could challenge DOMA without threatening state laws (such as those suggested by Will Baude), the Adminsitration’s arguments, were they to prevail against DOMA, would be the death knell for state laws as well. If a federal law supported by Senators Biden, Dodd, Reid and Wellstone — and signed into law by President Clinton — were impermissibly tainted by anti-gay animus, it’s hard to see how state laws barring same-sex marriage would not be as well.

In general, I am a big fan of the work of columnist Jonathan Rauch. Unfortunately, his recent column on the individual mandate case is not one of his better pieces. The problem is not that he comes down on what I think is the wrong side of the issue, but that some of his points are factually inaccurate, while others ignore major counterarguments. Rauch claims that “no one disputes that the so-called mandate would be constitutional if you relabeled it as a tax,” that the case against the mandate is inconsistent with “conservatives’” previous opposition to judicial “activism,” and that, if the Court strikes down the mandate it will lead to socialized medicine.

Rauch’s tax point is factually wrong. The opponents of the mandate have consistently argued that the mandate is a penalty, not a tax, for reasons that go beyond labeling. I summarize that argument here:

As recently as 1996, the Supreme Court reiterated the crucial distinction between a penalty and a tax. It ruled that “[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,” while a penalty is “an exaction imposed by statute as punishment for an unlawful act” or – as in the case of the individual mandate – an unlawful omission. The individual mandate is a clear example of a penalty, where Congress requires people to purchase health insurance, and then punishes them with a fine if they fail to comply.

In September 2009, President Obama himself noted that “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” He was right. If the mandate qualifies as a tax merely because it punishes violators with a fine, then Congress could require Americans to do almost anything on pain of having to pay a fine if they refuse. It could use this power to force citizens to buy virtually any product, including broccoli, General Motors cars, or anything else.

Even if the individual mandate does somehow qualify as a tax, it is not one of the types of taxes that Congress is authorized to impose….

[T]he mandate is not a tariff, impost, income tax, or excise tax [;] it is either [an unconstitutional] direct tax or no tax at all.

Paul Clement makes the same points in greater detail in his Supreme Court brief for the plaintiffs (pp. 51-64). These are also some of the reasons why, at the oral argument, even the liberal justices expressed great skepticism about the federal government’s argument that the mandate is a tax.

The issue of labeling, however, is not just a minor technical detail. If, as many defenders of the mandate claim, the only constraint on the tax power is political accountability, then accurate labeling is important to ensuring that political accountability is effectively imposed. Had the supporters of the mandate labeled it a tax from the start, it very likely would not have passed.

Rauch also claims that the case against the mandate is inconsistent with conservatives’ previous views on judicial review. Some conservatives have opportunistically switched sides on the mandate, as also have many liberals. However, many of the conservative and libertarian opponents of the mandate have been arguing for decades that we need strong judicial enforcement of limits on federal power. Since the constitutional arguments in favor of the mandate would give Congress virtually unlimited power, it would have been inconsistent with our previously expressed views on the importance of limits if we didn’t argue that the mandate is unconstitutional.

Longstanding conservative support for judicially enforced limits on federal power is in some tension with loose conservative rhetoric about “judicial activism,” which is one reason why I have been critical of such rhetoric. However, for most on the right, “judicial activism” is not coextensive with any judicial overruling of statutes, but rather with departures from the text and original meaning of the Constitution. And there is certainly a strong case against the mandate based on the latter.

Finally, Rauch argues that a decision striking down the mandate will galvanize liberals and pave the way for national health insurance. This claim ignores the existence of many other policy options that could address the problems the mandate is supposed to solve, including many that are more market-friendly than either the mandate or nationalization. That may be why very few liberal supporters of nationalization actually want the mandate to be repealed. It’s certainly possible that a decision against the mandate will anger liberals. But it’s doubtful they will be able to make much political hay out of a decision invalidating a law that the vast majority of the public opposes and actually wants the Court to strike down.

UPDATE: I have chosen to ignore Rauch’s rhetorical pretense that he is channeling the views that the late Senator Ted Kennedy would hold if he were still alive. I think this is just a clever device to express Rauch’s own views on the case. However, I would be happy to post a correction if it turns out that Rauch really doesn’t agree with the claims made in the piece.

UPDATE #2: Jonathan Rauch has asked me to post the following response, which I am happy to do:

My phrase about the difference between a tax and a mandate being merely a question of labeling may have been too quick and dirty (excuse: I had only 700 words), but in the next sentence I chose my words carefully: “Conservatives insist the mandate is unconstitutional under the Commerce Clause, but they acknowledge that an effectively identical policy fits comfortably within the scope of Congress’s taxing power.” I believe this is accurate, and my recollection is that plaintiffs acknowledged the point in a colloquy with Justice Sotomayor.

Ilya’s phrase “ensuring that political accountability is effectively imposed,” being rendered in the passive voice, elides the important question of _who_ should be in the business of ensuring political accountability. Do conservatives really want to put courts in the business of nannying politicians, and constitutionalizing the results? If so, the Supreme Court is going to be spending a lot of time drawing congressional districts. My own view is that enforcing political hygiene (which really means enforcing someone’s preferences regarding political hygiene) is not consistent with judicial modesty and is not a wise role for courts to play.

There is indeed a jurisprudential case against the mandate. But I’d distinguish between jurisprudential or constitutional doctrine and judicial style. If someone believes in judicial modesty (and I grant that not all conservatives do—though the vast majority have claimed to), then that implies a style of judging which puts a thumb on the scales against overturning properly enacted statutes. Yes, even a restrained court could and arguably should overturn a statute that finds no home in the constitution as originally conceived and subsequently interpreted. But this is a case where the parties generally agree that, programatically, what Congress is doing with the mandate fits quite comfortably within the taxing power. (See above.)

That’s why I don’t think striking down the mandate is consistent with a judicial style of restraint. If the plaintiffs win and conservatives cheer, I think they’ll have planted their flag on the libertarian/conservative-interventionist side of things, and, for better and worse, we’ll be in for a battle of the activist courts.

Regarding the political fallout…Ilya may be right. But three words (or is it two?) inform my view that conservatives are playing with fire here: _Roe v. Wade_. Based on public opinion in 1973, I doubt many people foresaw a two-generation backlash that redefined the political landscape. Stay tuned.

I appreciate Jonathan’s response, and I certainly understand that points sometimes get oversimplified in a short op ed. Nonetheless, the bottom line here is that it is simply not true that either the anti-mandate plaintiffs or “conservative” opponents of the mandate in general agree that “an effectively identical policy” could be enacted under the Tax Clause. This is made very clear in the plaintiffs’ brief linked above. It is also made clear in Paul Clement’s exchange with Justice Sotomayor at the oral argument (pp. 59-60), where he emphasized that any tax imposed on people who fail to purchase health insurance would be an unconstitutional “direct tax,” because “the one thing I think the Framers would have clearly identified as a direct tax is a tax on not having something.” That doesn’t sound like a man who admits that Congress could use the tax power to enact an “effectively identical policy.”

The Court’s conservative justices has previously ruled that maintaining clarity for the sake of political accountability one reason for judicial enforcement of limits on congressional power (e.g. – in New York v. United States). There would be nothing new in applying the same idea in the mandate case.

It is perhaps true that people who believe in a very strong presumption of constitutionality for legislation might find it difficult to advocate striking down the mandate. But few if any of the leading opponents of the mandate have ever advocated such a super-strong presumption. Certainly not those of us who have argued for many years that the courts should strongly enforce constitutional limits on federal power. Moreover, even those conservatives who do believe in a strong presumption could reasonably conclude that that presumption is overcome if all the arguments in favor of the mandate lead to virtually unlimited federal power.

Finally, Jonathan’s analogy with Roe v. Wade overlooks the reality that the mandate is much more unpopular than the pro-life cause (polls show that some 40-45% of Americans describe themselves as “pro-life” on abortion and some 50-60% believe that abortion should be either illegal or legal “only in a few circumstances”), and that few of its supporters feel as strongly about it as pro-lifers do about abortion. Regardless, it is pretty clear that most pro-choicers and most liberals generally remain satisfied with the results of Roe, despite the conservative backlash it has generated. Very few liberals want Roe to be overruled. Conservatives are likely to be at least equally happy with the overall effects of a decision striking down the mandate. I myself am pro-choice, and I think that Roe has been a net benefit for our side of the issue; though I am very skeptical of the decision’s legal reasoning.

UPDATE #3: Jonathan has asked me to post this additional response:

Thanks again to Ilya. Our arguments are on the table, so I’ll confine this reply to a point regarding the factual record and my interpretation thereof.

Justice Sotomayor: “Why couldn’t we get a tax credit for having health insurance and saving the government from caring for us?”

Mr. Clement: “Well, I think it would depend a little bit on how it was formulated, but my concern would be — the constitutional concern would be that it would just be a disguised impermissible direct tax.”

Prodded by Ilya, I guess I could read Clement as saying that all tax credits and tax incentives—and there are more of them than anyone could count—are constititutionally suspect. I get a tax credit if I buy a Chevy Volt. That’s functionally identical to paying higher taxes if I don’t buy a Chevy Volt. Impermissible direct tax?

It just never occurred to me that Clement and the plaintiffs might be arguing that tax credits and exemptions are perforce constitutionally suspect, because that would be a breathtaking claim. It would potentially require the Supreme Court to examine and rewrite the whole tax code. I think it’s more reasonable and realistic to interpret the plaintiffs as acknowledging that some (many?) forms of tax incentive are constitutional, and that the tax credit suggested by Justice S could be structured so as to be among them.

If I did misread Clement, then, alas, the plaintiffs’ position is even more radical than I realized.

I think Clement’s position is clear from his later statement in the same exchange with Sotomayor that any “tax on not having something” is an unconstitutional “direct tax.” Jonathan is wrong, however, to assume that that implies that all tax credits are unconstitutional. A tax credit is a deduction from some preexisting tax, such as an income tax. If the preexisting tax is constitutional, the same goes for most tax credits that merely serve to lower it for some people. By contrast, the individual mandate is a free-standing fine imposed on people who fail to purchase health insurance. If it were a true tax credit for purchasing health insurance (one that goes beyond previous tax deductions for employer-provided health insurance), it would cost the federal government billions of dollars in income tax revenue – including, presumably, from people who could claim the credit because they already have health insurance. Congress could potentially enact an across-the-board income tax increase to offset the lost revenue. But that too would be very different from the policy that it actually chose, and would have been a political non-starter to boot.

UPDATE #4: I have slightly modified the last update in order to make it clearer.

Last month, Virginia enacted a law forbidding state officers, including police, from helping the federal government investigate, surveil, or detain terrorist suspects who are U.S. citizens. This may or may not be good policy. David Rivkin and Charles Stimson argue it’s also unconstitutional. They write:

It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores. . . .

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

This is an odd argument. It’s black letter law that the federal government may not “commandeer” state officers to enforce or implement federal law. This is true without regard to the purpose of the requirement. If a particular federal policy is that important, the federal government can expend its own resources and direct its own officers to implement and enforce the law. This is true even if, as Rivkin and Stimson maintain, that Virginia’s legislation is premised upon mistaken assumptions about what federal law authorizes or requires.

Rivkin and Stimson imply that Virginia’s new law violates conditions imposed on funds Virginia willingly accepted from the federal government. Maybe so, but this does not make Virginia’s law unconstitutional. It just means Virginia may have to give up some federal funds, provided that the conditions were clear when Congress authorized and Virginia accepted the relevant funds. There is no general requirement that states enforce all federal policies just because they accept some federal funds. And just because a policy is enacted pursuant to the “war on terror” does not mean that states have to go along.

In 2010, the Supreme Court unanimously held that Carol Anne Bond had standing to challenge her conviction under the Chemical Weapons Convention Implementation Act of 1998 for trying to poison her husband’s lover. On remand, the U.S. Court of Appeals for the Third Circuit rejected her constitutional challenge to the Act for exceeding the scope of the treaty power. According to the court’s opinion, this was a result largely dictated by Missouri v. Holland. Here is the summary provided in the introduction to the court’s opinion.

This case is before us on remand from the Supreme Court, which vacated our earlier judgment that Appellant
Carol Anne Bond lacked standing to challenge, on Tenth Amendment grounds, her conviction under the penal
provision of the Chemical Weapons Convention Implementation Act of 1998, 18 U.S.C. § 229 (the “Act”), which implements the 1993 Chemical Weapons Convention, 32 I.L.M. 800 (1993) (the “Convention”). The Supreme Court determined that Bond does have standing to advance that challenge, and returned the case to us to consider her constitutional argument.

In her merits argument, Bond urges us to set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress’s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution. Cognizant of the widening scope of issues taken up in international agreements, as well as the renewed vigor with which principles of federalism have been employed by the Supreme Court in scrutinizing assertions of federal authority, we agree with Bond that treaty-implementing legislation ought not, by virtue of that status alone, stand immune from scrutiny under principles of federalism. However, because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that “there can be no dispute about the validity of [a] statute” that implements a valid treaty, 252 U.S. at 432, we will affirm Bond‟s conviction.

Although the panel was unanimous, the case produced three opinions — an opinion for the court by Judge Jordan and concurrences by Judges Rendell and Ambro, the latter of which expressly urges the Supreme Court to take up the case to provide further guidance on the proper interpretation of Missouri v. Holland. As Judge Ambro concludes his opinion:

Since Holland, Congress has largely resisted testing the outer bounds of its treaty-implementing authority. . . . But if ever there were a statute that did test those limits, it would be Section 229. With its shockingly broad definitions, Section 229 federalizes purely local, runof-the-mill criminal conduct. The statute is a troublesome example of the Federal Government‟s appetite for criminal lawmaking. Sweeping statutes like Section 229 are in deep tension with an important structural feature of our Government: “The States possess primary authority for
defining and enforcing the criminal law.”

I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” Nicholas Quinn Rosenkranz, Executing The Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005), and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.

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

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

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

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

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

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

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

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

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

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

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

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

Greg Mankiw has a good column explaining why competition among governments produces benefits much like competition among firms.  This is one of the arguments for federalism. Yet Mankiw also explains why what some conservatives see as a feature of federalism strikes some liberals as a bug.

While conservatives embrace governmental competition, liberals have good reason to worry about it. The left has a more expansive view of the role of public policy. Liberals want the government not only to provide public services but also to redistribute economic resources. In the words of President Obama, they want to “spread the wealth around.”

Yet redistribution is harder when people and capital are free to move to other jurisdictions that offer better deals. If you are going to take from Peter to pay Paul, Peter may well decide to leave. It is perhaps no surprise that state and local tax systems are less progressive than the federal one.

Whether competition among governments is good or bad comes down to the philosophical questions of what you want government to do and how much you fear government power. If the government’s job is merely to provide services, like roads, schools and courts, competition among governmental producers may be as good a discipline as competition among private producers. But if government’s job is also to remedy many of life’s inequities, you may want a stronger centralized government, unchecked by competition.

Interjurisdictional competition is not only about disciplining governments, however.  It is also about discovery.  Different states will enact different policy responses to various problems, and other states can learn from the results.  This is one reason why federalism has failed to produce a “race to the bottom” in areas like environmental protection.  States want economic growth, but they also want a clean environment.  Thus when one state discovers how to achieve environmental goals more effectively or at lower cost, other states tend to follow suit.

Interjurisdictional competition and discovery is not universally acclaimed on the right.  Just ask Rick Santorum.  Just as some liberals to fear federalism will restrain progressive government interventions, some social conservatives fear federalism’s effect on restrictive social policies.  Take gay marriage.  Several states now recognize same-sex marriages.  This creates the opportunity for people to move to jurisdictions more compatible with their preferences.  It also provides an opportunity to see whether conservative fears that allowing gay couples to marry will somehow undermine broader social mores — and if (when) the sky fails to fall, other states will become more likely to follow suit.  The discovery process federalism facilitates often makes people more amenable to social change, as they can observe the likely effects of such changes in other jurisdictions.  In this way, federalism is not just about advancing policies preferred by the left or the right.  Rather it’s a way to help us discover which sets of policies actually work best.

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.

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

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

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

With that score sheet, I fear the cynics win.

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

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

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

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

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

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

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

Conor Friedersdorf has a hard time taking seriously many commentators who complain a decision striking down the individual mandate would be an unprecedented exercise of “judicial activism.”

 I don’t doubt that movement liberals will be upset if the individual mandate is struck down. But what exactly would the reaction against such a decision look like? President Obama’s recent remarks notwithstanding, it isn’t as if the left wants a Supreme Court that consistently respects legislative majorities. The iconic decisions of The Warren Court, Roe vs. Wade, and efforts to extend marriage rights to gays are all premised on the notion that striking down popular laws is sometimes a worthy enterprise. Nor is the left going to champion fidelity to the text of the Constitution as it was understood at the time of the country’s Founding. And as Lawrence v. Texas shows, liberals are comfortable celebrating when longstanding precedents are overturned (after strategic hunts by ideologically-driven activists for the perfect case).

Thus the unavoidably tricky position in which Affordable Care Act defenders find themselves: liberal justices are going to keep “discovering rights” and expanding certain liberties in the future, rejecting originalism, the judgment of legislatures and at times even longstanding precedent. They’ll keep advancing the idea that ours is a living constitution that adapts with the times. And those commitments undermine complaints they make about conservative justices discovering rights, expanding economic liberties, overruling legislators, and overturning precedents.

“We’re okay with those things, but you’ve always claimed to be against them” is enough to demonstrate hypocrisy; but it’s a little much for Obamacare defenders to start claiming that the conservative justices are party to “a conservative Coup d’Etat,” as my colleague James Fallow’s correspondent put it. If the unnamed reader wasn’t identified as being from Holland I’d half-suspect it was Newt Gingrich back with more hyperbolic rhetoric intended to undermine the judiciary.

[And, incidentally, Friedersdorf believes "the individual mandate is superior as policy to whatever alternative we'll likely get if it's struck down."]

As VC readers know, I don’t believe the Court needs to overturn any existing federalism precedent to hold the individual mandate unconstitutional, just as the Court did not need to do any such thing to reach its decisions in New York, Printz, or Lopez.  I would certainly be happy if the Court curtailed or overturned some commerce clause precedents, such as Raich, but I don’t think it’s necessary.  But it’s particularly amusing to see those who have no problem courts overturning precedent, voiding legislative enactments or dramatically altering (if not inventing ) constitutional doctrine complain that the court might do so again here.  If it was acceptable for the Commerce Clause to be “tortured beyond recognition” — to be made more flexible than “Stretch Armstrong” — in order to achieve socially desirable results, it’s hard to see how it is suddenly  unacceptable for the Court to (re)discover modest limits on the scope of federal power.  But of course I would feel this way, as I’ve yet to learn that ‘judicial activism” is just a handy phrase to describe court opinions you don’t like.

One aspect of the ACA litigation that has not received due attention is the effect of the Court’s ruling on the scope Foreign Commerce Clause. An expansive, limitless definition of the scope of “Commerce” would presumably apply to Foreign Commerce as well. If there is no limiting principle for the former, it would be hard to have a limiting principle for the latter.

Under the logic of the government’s approach, Congress could regulate or mandate transactions purely between foreigners with no direct U.S. nexus. This is because these foreigners could have – should have! – engaged in transactions with the U.S instead. Purely foreign transactions affect the price of things in the U.S. If insurance would be cheaper if more people bought it, the same could be said about American cars. It makes no difference if the recalcitrant non-purchaser is foreign or domestic. Can the Japanese be required to buy U.S. cars? Certainly such a law would be closely related a major economic sector, as defenders of the ACA like to put it. (I am of course holding aside issues of enforceability to focus on the Commerce power.)

Or consider a rationale closer to the ACA case. If the mandate falls within Interstate Commerce, why not Foreign Commerce as well? Just as health people may get sick while uninsured, foreigners might come to the U.S. uninsured. At the time they come, no doubt Congress could require purchasing insurance as part of its Immigration powers. But by then it could be too late, they could be sick not insurable. So could Congress require foreigners to buy insurance or broccoli prior to coming to America on the theory that they might at some point come to America? Foreigners from countries where a sizable percentage visit the U.S.? Foreigners who have visited the U.S. in the past?

It is ironic that the liberal interpretation of the Commerce power would allow American exceptionalism and give Congress regulatory powers in excess of what would be allowed by international law. On the other hand, it is hard to doctrinally cabin disrespect for the domestic division of sovereignty from disrespect for the international division of sovereignty.

In Kiobel, the ATS case I have been blogging about, the Supreme Court has shown some skepticism about broad extraterritorial assertions of U.S. law (based proximately on statutory, not constitutional concerns, though in my forthcoming paper, I argue the Offenses Clause of the constitution and foreign commerce clause underpins the statutory issue. The justices might want to consider that a ruling for the government in the ACA case would open a whole world of extraterritorial legislation.

In Schecter Poultry, Justice Cardozo famously wrote:

Here is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center.

The point here is the “periphery” is not just internal; the periphery is also the world. That which obliterates the distinction between the local and national also tends to obliterate the distinction between global and national.

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

At a joint press conference today with President Calderon of Mexico, and Prime Minister Harper of Canada, President Obama was asked whether, in light last week’s oral arguments, he was concerned the Supreme Court might strike down the individual mandate or other portions of his health care reform law.  According to the White House transcript, he responded:

With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law.  And the reason is because, in accordance with precedent out there, it’s constitutional.  That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

I think it’s important — because I watched some of the commentary last week — to remind people that this is not an abstract argument.  People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions. . . .

And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care.  So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this.  And I hope that’s not forgotten in this political debate.

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.  And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.  And I’m pretty confident that this Court will recognize that and not take that step. . . .

I’m confident that this will be upheld because it should be upheld.  And, again, that’s not just my opinion; that’s the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they’re not particularly sympathetic to this particular piece of legislation or my presidency.

Gerald Magliocca believes these comments were “foolish” and akin to throwing rocks at tigers.

Is lecturing the Court while the case is under submission the best way to persuade, say, Justice Kennedy? The same Justice Kennedy who wrote Citizens United and was called out by the President at the State of the Union Address? Sometimes “No comment” is the best answer.

President Obama was not always opposed to the Supreme Court “overturning a law that was passed by a strong majority of a democratically elected Congress.” In 2008, while running for President, then-Senator Obama praised the Supreme Court’s Boumediene decision, which overturned bipartisan national security legislation.  According to the June 13, 2008 Los Angeles Times he called the decision “an important step toward reestablishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus” and praised the Court’s rejection of President Bush’s ”attempt to create a legal black hole at Guantanamo.”

UPDATE: Lyle Denniston also comments here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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