The Volokh Conspiracy

The U.S. Court of Appeals for the Fifth Circuit sternly rebuked the U.S. Environmental Protection Agency for overstepping its statutory authority in rejecting three air pollution control regulations adopted by the state of Texas for their alleged non-conformity with applicable Clean Air Act requirements.  In Luminant Generation Company, LLC v. EPA, the Fifth Circuit the EPA had “no legal basis” for its decision and remanded the decision back to the agency.

At issue in the case were three Texas regulations governing permit requirements that were a part of Texas’ State Implementation Plan (SIP) under the federal Clean Air Act.  According to the statute, the EPA is to decide whether or not relevant state regulations comply with SIP requirements within 18 months of their submission.  In this case, however, the EPA waited years before claiming the three regulatory provisions were insufficient.  More significantly, the EPA “did not identify any provision of the CAA or its implementing regulations that Texas’s program violated.”

Before the Fifth Circuit, the EPA confessed error and conceded that it had been arbitrary and capricious with regard to two of the contested regulations, but it still sought to defend its decision with respect to the third. No dice.  The Fifth Circuit found the EPA had filed to identify any basis for rejecting the regulation under federal law.  The Fifth Circuit’s decision concludes:

This chapter in regulatory history has lasted almost two decades. Texas submitted its first two standard permits for PCPs to the EPA for approval in 1994. Texas made various amendments to these permits over the years, and promptly submitted each amendment to the EPA. The most recently amended version is the PCP Standard Permit at issue in this case. Despite an eighteen month statutory deadline, the EPA did not take action on any of these submissions until September 15, 2010. At that late date, the EPA disapproved the PCP Standard Permit—submitted four and a half years earlier—based on its purported nonconformity with three extra-statutory standards that the EPA created out of whole cloth. Moreover, the EPA did this in the context of a cooperative federalism regime that affords sweeping discretion to the states to develop implementation plans and assigns to the EPA the narrow task of ensuring that a state plan meets the minimum requirements of the Act. The EPA applied these unauthorized standards to disapprove of a state program for projects that reduce air pollution and that, under the Act’s plain terms, is subject to only the most minimal regulation.

Because the EPA waited until more than three years after the statutory deadline to act on Texas’s submission, we order the EPA to reconsider it expeditiously. On remand, the EPA must limit its review of Texas’s regulations to ensuring that they meet the minimal CAA requirements that govern SIP revisions to minor NSR, as set forth in 42 U.S.C. § 7410(a)(2)(C) and § 7410(l). If Texas’s regulations satisfy those basic requirements, the EPA must approve them, as § 7410(k)(3) requires. That is the full extent of the EPA’s authority in the SIP-approval process because that is all the authority that the CAA confers. See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.”).

The opinion was written by Judge Elrod and joined by Judge Barksdale.  Judge Garza concurredin the judgment only without opinion.

Adam Teicholz of the Atlantic claims that the Volokh Conspiracy deserves much of the credit or blame for the possible upcoming defeat of the individual mandate in the Supreme Court.:

Blogs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges. At Volokh, Barnett and other libertarian academics have been debating and refining their arguments against the mandate since before the ACA was signed. At the beginning, law professor Jonathan Adler fleshed out the approach that came to typify the elite conservative response for the first months of the public debate: the Founders never intended for the Constitution to permit such broad federal power, but given New Deal-era precedent, the mandate, if it became law, would pass muster. Things changed on Volokh around the time that it became clear that an insurance mandate would be part of whichever health care reform package passed into law.

One congressional floor speech seemed to mark a tonal turning point for Volokh, the moment its writers realized their power to shape debate. On December 22, 2009, Democratic Senator Max Baucus quoted the post by Jonathan Adler mentioned above. Adler clearly resented that Baucus had taken his lawyerly evaluation of the case, stripped out the interesting part (that a pure reading of the Constitution weighs against the mandate, even if precedent weighs in its favor), and used it in a political context — and he responded on Volokh directly to the senator. If the world was going to use Volokh as a political tool, then he could, too. There followed months of posts by various Volokh bloggers, alongside increasingly sophisticated legal arguments, about just how reasonable, how comfortably within bounds the legal arguments against the mandate were. By the following year, a district court judge had cited Barnett in his opinion striking down health care reform, and Barnett himself had left behind his March 2010 conclusion that the Supreme Court would need to risk its credibility in a politically charged case, Bush v. Gore-style, to overturn the mandate.

I am flattered by this estimate of our influence. But there are a number of flaws in Teicholz’ account. First and foremost, it is simply not true that we all thought that the individual mandate would pass muster under current precedent until the exchange between Jonathan Adler and Senator Baucus led us to “realize [our] power to shape debate.”

We knew we had that “power” long before the Adler-Baucus debate. Several of us had influenced public debate through blogging previously. Eugene Volokh has had a lot of influence on public debate over free speech, gun rights, and other issues. Todd Zywicki’s excellent blogging about bankruptcy issues has been extremely influential for years. My own blogging about post-Kelo eminent domain reform and property rights has impacted debate over those issues, and led to invitations to testify before the U.S. Senate Judiciary Committee and other government bodies.

Randy Barnett believed that the individual mandate could not be justified under current precedent all along, which I think was also true of David Kopel. As for me, I always believed that the mandate was unconstitutional, but initially thought that it could be justified under the Supreme Court’s decision in Gonzales v. Raich (which I have long argued was wrongly decided). What changed my mind was a close re-reading of Raich with the individual mandate case specifically in mind. I obviously can’t speak for Jonathan Adler. But I suspect that the evolution of his views was similar.

Randy and I also initially believed that striking down the mandate would be more politically difficult for the Supreme Court than is likely actually to be the case. That’s because we (or at least I) failed to foresee that the mandate and the health care bill as a whole would remain so unpopular for so long. I’d like to think that some of that unpopularity was the result of our efforts. But the lion’s share was surely caused by other factors. If we really had the power to swing public opinion massively, I would long since have persuaded the public to oppose the War on Drugs and support legalization of organ sales.

Where we did have some influence is in debunking the myth that the constitutionality of the mandate was a no-brainer backed by an overwhelming consensus of expert opinion. But we could not have done that were we not 1) recognized academic experts on these issues ourselves, and 2) able to point to other well-known experts who also believed the mandate to be unconstitutional, many of them not VC-ers. The latter include such prominent constitutional law scholars as Richard Epstein, Steve Calabresi, Steve Presser, and Gary Lawson.

Randy, of course, played an especially vital role by developing crucial legal arguments that had a huge influence. But those arguments would have been of little avail if they could not persuade judges and other experts, as well as lay public opinion. The world is full of laws that are widely disliked, but have no chance of getting invalidated by a court because the arguments against them have no credibility with legal professionals.

Teichholz also errs in thinking that our arguments against the mandate fell by the wayside when the case reached the Supreme Court and the anti-mandate lawyers started using “better-trodden” arguments – implying that our points were mainly for the purpose of influencing the lay public. In reality, Tuesday’s oral argument overwhelmingly focused on the point that I and others here have been pushing for a long time: that the government’s rationales for the mandate lacks any logical limitations, and could therefore justify virtually any mandate of any kind. Several of the justices also suggested that the mandate is constitutionally dubious because it does not regulate any preexisting economic activity – the main argument that Randy has been emphasizing since 2009. Some of Justice Scalia’s questions on the Necessary and Proper Clause almost exactly mirrored the central point of an amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars (though I reiterate that I have no way of knowing whether he got the idea from my brief).

Finally, Teicholz writes as if it is somehow unusual for lawyers to be “waging this battle not only in the courtroom but in the court of public opinion,” suggesting that Randy’s dual role as lawyer and public advocate is particularly “unusual for an appellate lawyer.” In reality, two-track strategies in important constitutional cases are far from new. The abolitionist movement arguably pioneered this kind of approach in the 1840s and 1850s when they challenged the Fugitive Slave Act and other pro-slavery laws. The NAACP pursued a similar strategy since the early 1900s, as have feminists, environmentalists, the gay rights movement, gun rights advocates, property rights supporters and many others. Randy’s role is also far from “unusual” among lawyers involved in high-profile constitutional cases of this kind. As far back as the 1940s, Thurgood Marshall was both the lead appellate litigator for the cause of black civil rights and a major public spokesman for that cause. These historical precedents (many of them by left-wing movements) are what led me to suggest back in March 2010 that a similar strategy could work in this case.

What happened here is just one of many examples of conservatives and libertarians adapting strategies that were mostly pioneered by the political left. Such borrowing from the left is at the heart of much of what conservative and libertarian activists for legal change have achieved over the last thirty years. Ironically, some on the left don’t recognize the influence of their own tactics when they are adopted by adversaries. Perhaps they should recall that imitation is the sincerest form of flattery.

Today’s oral argument was a good day for the anti-mandate plaintiffs and a troubling one for the law’s defenders. I have long argued that the weakest point in the federal government’s case is the failure to provide a coherent explanation of why the rationale for the health insurance mandate doesn’t also justify virtually any other mandate Congress might impose (e.g. here and here). All of the conservative justices raised this exact issue during the course of today’s oral argument, with the exception of the usually silent Clarence Thomas, whom few doubt will vote to strike down. And none of them seemed satisfied with Solicitor General Donald Verrilli’s answers. This does not bode well for the mandate.

I was also very happy to see this exchange between Verrilli and Justice Scalia regarding the Necessary and Proper Clause:

JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.

The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all
this questioning has been about. What — what is left? If the government can do this, what — what else can it
not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this is a regulation -­

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that exists.

GENERAL VERRILLI: But it -­

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.

Scalia makes the key points that 1) a federal law must be both “necessary” and “proper” to be authorized by the Necessary and Proper Clause, and (2) a statute cannot be proper if the legal rationale for it would justify nearly unlimited federal power. These are exactly the arguments that we advanced in the amicus brief on this very issue that I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars.

I’m not saying that Scalia necessarily got the argument from us, or even that he read the brief. But whatever led him to take up this point, I’m very happy that he raised it. It is the key weakness in the federal government’s Necessary and Proper Clause argument, which is otherwise fairly strong – a weakness that the federal government almost completely ignored in their Petitioner’s brief for the Supreme Court. The federal government has tried to turn the Necessary and Proper Clause into a mere “necessary clause.” But, if Scalia’s views are any indication, the Supreme Court majority doesn’t seem to be buying.

As I explain in the amicus brief (pp. 28-29), this point also enables Scalia to distinguish his concurring opinion in Gonzales v. Raich, which many defenders of the mandate have been relying on. Raich did not address the issue of propriety. And in his concurring opinion in that case, Scalia emphasized (as he had in previous opinions) that “proper” is an independent limit on congressional power under the Clause, separate from necessity.

Before the oral argument, I thought that the plaintiffs had about a 30-40% chance of winning. I believed it was likely that the federal government would manage to persuade at least one conservative justice to buy one of their many “health care is special” rationales for the mandate. Now, I think the chances of the mandate being invalidated is at least 50%. The conservative justices just don’t seem to be biting on the “health care is special” hook.

On the other hand, it is still too early for mandate opponents to celebrate. The federal government has a whole raft of different “health care is special” arguments (I go through them and their weaknesses in Part I of this article). If the feds can persuade just one of the conservative justices to accept just one of these theories, they can still win. We certainly cannot rule out such a scenario. It could still easily happen. But unlike in high school debate, quantity of arguments in a major Supreme Court case is rarely a good substitute for quality. And the quality of the government’s “health care is special arguments” is at the very least highly suspect.

UPDATE: I have changed the original reference to “all five of the conservative justices” to exclude Clarence Thomas, who – as usual – did not ask any questions.

Today’s Supreme Court oral argument transcript suggests that many of the justices, including at least three of the liberals, are skeptical of claims that the individual mandate is a tax. This is important not only for today’s argument about the applicability of the Anti-Injunction Act (which probably does not apply if the mandate penalty is not a tax), but to tomorrow’s argument about the constitutionality of the mandate. The federal government has argued that the mandate is constitutional because it is an exercise of Congress’ power under the Tax Clause. Lower courts have almost uniformly rejected this constitutional tax argument, and today’s questioning suggests that the Supreme Court is unlikely to accept it either.

Justice Stephen Breyer suggested that the mandate is not a tax because “Congress has nowhere used the word “‘tax.’” Justice Ginsburg noted that the mandate may not be a tax because it isn’t a “revenue-raising measure,” and because the monetary penalty is separable from the mandate itself. Justice Sotomayor also expressed doubts about whether the mandate is a tax, as did several for the conservative justices. As far as I can tell, none of the justices seemed to support the argument that the mandate is a tax.

Thus, today’s events do not bode well for the federal government’s constitutional tax argument. However, there are two caveats to this conjecture. First, the justices sometimes ask questions for rhetorical effect or play devil’s advocate. I don’t think they are doing so here, but obviously I can’t be sure. Second, it is theoretically possible that the constitutional definition of what qualifies as a “tax” is broader than the AIA definition. This is not the usual view of the matter. Indeed, the one lower court that ruled that the AIA applies to this case did so precisely because they thought that the AIA’s definition of “tax” is broader than the Constitution’s. However, it’s not completely impossible that the Court will reach the exact opposite conclusion, and the Solicitor General actually argued for such an approach today. However, there is no indication that the justices are leaning in that direction, or that any of them believe that the constitutional definition of a tax is broader than the AIA definition.

Even if the federal government loses on the tax argument, they could still win on the Commerce Clause or the Necessary and Proper Clause. The latter is probably their strongest point. Still, it’s interesting that the tax argument – which has attained great popularity among academic supporters of the mandate – has been overwhelmingly repudiated by the courts, including several judges who voted to uphold the law on other grounds. And it looks like the Supreme Court may well go the same as the lower courts on this issue.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jason Kuznicki and Timothy Sandefur have written responses to my post critiquing Kuznicki’s earlier statement that the idea of legal secession is a “category error.”

Kuznicki writes:

Of course, it’s indisputably true that some secessions are authorized by some countries’ constitutions. Others, however, are not. Within these two types of cases, authorized and unauthorized, we can also imagine specific acts of secession that we find ethically justified or ethically unjustified.

That a given constitution forbids secession does not in my view mean that all secessions from it are necessarily unjustified. It means only that we have to justify them through extraconstitutional means, and these means must in themselves be weighty enough to also justify overthrowing the existing legal order.

Similarly, that a given constitution allows secession does not in my view automatically justify all secessions carried out under it. We may still find some of them ill-advised or even unjustified. There’s nothing about constitutional law that says that where the law permits a thing, the conscience has to be silent.

I agree with all of the above. But I think it is in some tension with Kuznicki’s previous comment on the subject, which claimed that “[s]ecession is the decision to step out of an existing political order, so it’s a category error to try to justify it legally.” Kuznicki’s most recent post, by contrast, suggests that such justifications are not category errors at all, though sometimes they may be wrong for other reasons. However, we all sometimes make off-the-cuff statements (or, in this, case twitter posts) that don’t fully reflect our considered views. I know I have done it, so I can hardly blame Kuznicki for doing so.

I have more disagreements with Sandefur’s post:

Jason Kuznicki and Ilya Somin make the critical error of mistaking “secession” for “revolution.” Revolution means to overthrow a political and legal order, while secession is a legal theory—it is the theory that for a state to leave the union is itself within the legal order. It is therefore literally incorrect to say that secession is the “attempt to step outside the legal order.” That’s revolution. The American Revolution was not an attempt at secession—note that the word was virtually never used by the Revolutionary leaders. On the contrary, the term secession came into use in the decades before the Civil War as an attempt to justify a (pseudo-)revolutionary act within the legal order.

As I explained in this post, secession and revolution are not mutually exclusive categories. At least as used in contemporary English, secession is used to denote any effort to split off part of a state’s territory and form a new nation, whether legally or not. Some secessions also qualify as revolutions, in the sense that they seek to establish a political regime very different from that which existed before. The American Revolution was an example of revolutionary secession. By contrast, some secession movements are not revolutionary in this sense (e.g. – today’s secession movements in Scotland and Quebec, which seek to establish parliamentary democracies only modestly different from those that presently exist in Canada and the UK). It is true that the American Founders did not use the term “secession” in the 1770s. But that’s because it had not been invented yet, not because it isn’t an accurate description of (part of) their agenda.

Sandefur is also far more certain than I am that secession was illegal under the US Constitution as of 1861, arguing that “many of [the Constitution's] pre-1865 provisions—from the Guarantee Clause to the Privileges And Immunities Clause—were absolutely incompatible with secession, and the subsequent amendments are even moreso.” This may be true, but I am not so sure. The Guarantee Clause and Privileges and Immunities Clause impose various obligations on “states” that the federal government can enforce. However, if states have a right to secede, they would no longer be “states” of the American Union after such as secession has occurred. At that point, the Constitution – and the federal government’s power to enforce its provisions – would no longer apply to it. The clauses Sandefur mentions are plausibly interpreted as applying to all states in the Union, for so long as they remain part of it, but not if they secede. Imagine an Alcoholics Anonymous chapter that has a clause in its charter giving the organization the authority to guarantee that the members never drink alcoholic beverages. Does such a clause necessarily mean that members are forbidden to leave AA (and therefore no longer be subject to this clause)?

I don’t think any of the above proves that secession is constitutionally permissible. It only demonstrates that the issue is a closer call than many suppose.

Sandefur also suggests that, if secession is legal, it requires no additional justification:

[I]f the law allows secession, then no more justification is required—just as a person wanting to sell his car requires no further justification than that he wants to and it belongs to him. If secession is a legal right, no further rationale is required (at least, vis-a-vis the federal union). But if secession is not legal—that is when further justification is required (and in the case of 1861, is lacking). Only if it is a law-breaking act do we get to the question of whether it is nevertheless justified in some moral sense.

I think this is wrong. Many legal activities might also be immoral or unjust. Slavery was legal in many states until 1865, but it was still an evil, and people still had a moral obligation not to become slaveowners. Similarly, secession for the purpose of protecting slavery was evil even if it was legal under the Constitution.

UPDATE: Timothy Sandefur responds in an update to his original post:

[O]bviously I do not deny that “[m]any legal activities might also be immoral or unjust,” and that secession for the purpose of perpetuating slavery was both. Of course that is true. (That’s why I added the qualifier “vis-a-vis the federal union.”) My point is that if secession were legally valid, then the state would have the legal authority to secede regardless of its rightness or wrongness, just as one has a legal right to do immoral things. But it is only because secession was and is illegal, that the rightness or wrongness of the act is relevant: because it is then incumbent upon a “seceding” state to justify such an act as an act of revolution (which can justify illegal acts in some cases). That route, however, is not open to the Confederacy, due to the immorality of its acts.

I think there is an internal contradiction here. Sandefur recognizes that “[m]any legal activities might also be immoral or unjust,” but also argues that “it is only because secession was and is illegal, that the rightness or wrongness of the act is relevant.” Actually, it would be relevant even in the case of a legal secession, because some legal actions “might also be immoral or unjust.”

Sandefur also makes the following point:

[I]t’s important to reiterate that the U.S. Constitution’s system of divided sovereignty is in no sense analogous to Alcoholics Anonymous: the states are not “members” of the federal government in the way that people are members of A.A. Indeed, the states are not, properly speaking, “members” at all…. A closer analogy would be if A.A. purported to absolve its members of membership in the AAA. It would have no standing to do so, and any attempt to do so would violate the contractual rights of the members in question.

My use of the AA analogy was only for the limited purpose of showing that an organization can have rules that impose restrictions on members while they remain members, but do not apply if the members choose to leave the group. The Guarantee Clause, Privileges and Immunities Clause, and other parts of the Constitution imposing restrictions on the states can be interpreted as rules of this type. As to the states not being “members” of the Union, I think it’s fairly clear that they are. It is after all, called the United States of America, which implies a federal union composed of members that are states. This, of course, does not settle the question of whether and under what conditions the members are entitled to leave the Union. But my purpose was not to show that there clearly is a right of secession under the Constitution, but merely to demonstrate that the idea of such a right is more plausible than critics imagine.

As part of the ongoing discussion of libertarian views on the Civil War and secession, Jason Kuznicki of Cato and David Drumm of the Jonathan Turley blog have argued, in Kuznicki’s words, that “[s]ecession is the decision to step out of an existing political order, so it’s a category error to try to justify it legally.”

I generally agree with Drumm’s and Kuznicki’s condemnation of libertarian defenses of Confederate secession. But I don’t think that legal secession is necessarily a “category error.” Like many other legal relationships – partnerships, clubs, corporations – a federal system of government can incorporate rules that provide for its own dissolution. For example, the Canadian Supreme Court has ruled that Canada’s Constitution allows Quebec to secede so long as the secessionists prevail in a referendum and negotiate certain issues with the rest of Canada. If Quebec does secede in the aftermath of a secessionist referendum victory, the resulting secession will be perfectly legal under Canadian law. There are other federal constitutions that explicitly provide for a right of secession. The most famous recent example is Article 72 of the Soviet Constitution, which numerous constituent republics seceded under in 1990-91.

The US Constitution, of course, is one of many where secession is neither explicitly banned or explicitly permitted. As a result, both critics and defenders of a constitutional right of secession have good arguments for their respective positions. Unlike the preceding Articles of Confederation, the Constitution does not include a Clause stating that the federal union is “perpetual.” While the Articles clearly banned secession, the Constitution is ambiguous on the subject.

Even if state secession is constitutionally permissible, the Confederate secession of 1861 was deeply reprehensible because it was undertaken for the profoundly evil purpose of perpetuating and extending slavery. But not all secession movements have such motives. Some are undertaken for good or at least defensible reasons. In any event, there is nothing inherently contradictory about the idea of a legal secession.

Next Tuesday, March 13, from 9:30 to 10:30, I will be taking part in a debate on the individual mandate litigation at the Washington Legal Foundation. Joining me will be Andrew Pincus of Mayer Brown, counsel for a group of constitutional law professors who filed an amicus brief supporting the constitutionality of the mandate. I myself authored a brief against the mandate on behalf of WLF and a different group of constitutional law scholars. Tom Goldstein of SCOTUSblog will moderate.

In this recent post, University of Texas constitutional law professor Sanford Levinson calls for a reassessment of our federal and state constitutions:

[I]nstead of being fixated on what the Constitution means, one instead asks whether the Constitution, given a stipulated meaning that may in fact not be at all difficult to discern, is in fact wise. One might call this a “Jeffersonian” approach to the Constitution inasmuch as it invites relentlessly asking whether the Constitution is serving us well. This is, incidentally, an especially important question if we agree on constitutional meaning. Disagreement, after all, suggests the possibility of legitimately interpreting the Constitution to achieve what we might describe as “happy endings.” The situation is decidedly different, however, if we agree on constitutional meaning, but believe that it sets us up less for happy endings than for driving over a cliff….

I have recently published a new book, Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford University Press), that focuses almost exclusively on the wisdom of constitutional structures that are, almost without exception, obvious in their meaning. Evidence of this obviousness is that they are rarely brought up in law school classes precisely because there is nothing to “argue about” in the only sense that lawyers and their professors define that term, which involves debates about meaning…

An important theme of the book is that there are fifty-one constitutions within the United States if one takes into account the fifty states. More to the point, these state constitutions can teach valuable lessons of their own. Some of them, as with the national constitution, may offer cautionary lessons inasmuch as they help to explain the dysfunctionalities of given state politics.

I agree with much of what Sandy says in this post. We should not blindly venerate the Constitution. And we should give serious consideration to the possibility that some parts of it are flawed or even dysfunctional. As I explained in this post, a few parts of the Constitution are indefensible and some others are at least open to serious question. Sandy is also right that legal scholars should pay more attention to the effects of the clear “hardwired” parts of the Constitution and to state constitutional law. The latter is sadly neglected by most constitutional law academics, and rarely gets its due in the law school curriculum. Hopefully, Sandy’s important book will help change that.

On the other hand, I am far less confident than Sandy that we should push for a major restructuring of the Constitution at this point in our history. As Richard Epstein notes in his response to Sandy’s post, such an effort could easily do more harm than good. We should not abjure all efforts constitutional reform. But I would prefer to use a scalpel rather than a meat cleaver. For that reason, I am skeptical of calls for a new constitutional convention, which has been advocated by some on the political right, as well as by Sandy himself.

I also disagree with some of Sandy’s specific criticisms of federal and state constitutions. For example, he writes that California’s state constitution is flawed because of “the near-inability to raise any taxes, given the constitutional requirement of a two-thirds vote in the legislature, coupled with the ability of the California electorate to pass legislation and even constitutional amendments through mechanisms of ‘direct’ democracy.” However, California has in fact been quite successful in raising taxes. It has the third-highest state income tax rate of any state (trailing only Hawaii and Oregon). The highest rate (9.3%) kicks in at an annual income of just $48,029. The state also has an above average state sales tax rate (6.25%). California’s fiscal crisis is the result of unusually high spending, not unusually low tax rates.

However, Sandy is not entirely wrong to believe that California’s problems have a constitutional dimension. As I explained in this post, the state’s dysfunctions are in part the result of its vast size and its favorable geographic location, which make it difficult for citizens to “vote with their feet” against excessive taxation and regulation. Only in the last few years have things gotten so bad that the state has begun to suffer net outmigration to other states. Californians would have been better off if the state were broken up into several smaller jurisdictions that would have to compete with each other for residents. But that option is rendered almost impossible by the federal Constitution.

UPDATE: The Tax Foundation reports that California has an additional 10.3% tax rate on incomes of over $1 million per year.

UPDATE #2: Mike Rappaport has posted a thoughtful response to Sandy’s post here. I agree with many of Mike’s points, though I a more sympathetic than he is to reforms that would make the US Constitution easier to amend.

Over at Libertarianism.Org, Jonathan Blanks has an interesting series of posts criticizing libertarians who defend the secession of the Southern states that precipitated the civil war (see here and here). Like Blanks, I believe that any possible justification that the Confederates may have had was negated by the fact that they seceded for the purpose of perpetuating slavery – a far greater violation of libertarian rights than anything white southerners could complain of in 1861.

There are, generally speaking, three types of libertarian perspectives on the Civil War. Many libertarians actually support the war, some condemn it without defending the Confederacy, and some are actually pro-Confederate.

I. Libertarian Unionism.

Many libertarians actually agree with the conventional wisdom on the conflict: that, although it caused great harm, it was ultimately beneficial because it led to the abolition of slavery. Although I haven’t seen any survey data, informal discussions with libertarian intellectuals and activists lead me to believe that this view actually very common in the movement, perhaps more so than either of the others. However, few libertarian Unionists have actually written about the conflict, perhaps because libertarian scholars tend to focus on issues where we diverge from the conventional wisdom of non-libertarians rather than endorse it (Tim Sandefur’s article on the subject is an interesting exception). Pro-Union libertarians do, however, differ from many other defenders of the Union cause in so far as most believe that the preservation of the Union was not by itself a sufficient justification for the war, independent of slavery.

II. Condemning the War Without Endorsing the Confederacy.

A second libertarian approach to the Civil War recognizes that the Confederates seceded for the purpose of protecting slavery, and does not defend their actions. But it still holds that the war actually did more harm than good, because slavery might have been abolished soon anyway and the war did not result in anything resembling full equality for blacks. Libertarian historian Jeffrey Rogers Hummel is perhaps the leading modern defender of this view. I disagree with his perspective. But it is not unreasonable. The Civil War resulted in the loss of over 600,000 lives, extensive violations of civil liberties, and enormous destruction. And it is indeed true that blacks had to wait another century before they got full legal equality.

Nonetheless, I believe the war was worth the cost because the abolition of slavery was a tremendous advance even if it fell short of full equality. I am skeptical of claims that slavery would have disappeared quickly even without the war. As Blanks points out, slavery was not on its way out, either economically or politically, and the price of slaves was actually rising – indicating that the market expected the “Peculiar Institution” to last for a long time to come.

III. Pro-Confederate Libertarians.

We now come to those libertarians who actually defend the Confederacy and its “right” to secession, the targets of Blanks’ posts. These libertarians argue either that the secession wasn’t really about slavery or that the southern states had a right to secede regardless of their reason for doing so.

On the first point, as Blanks emphasizes, the Confederate leaders themselves repeatedly stated that protecting slavery was their principle motivation. This was forcefully articulated at the time by Jefferson Davis, Confederate Vice President Alexander Stephens (who famously called slavery the “cornerstone” of the Confederacy), and the southern state governments’ official statements giving their reasons for secession. Modern defenders of the Confederacy cannot get around the fact that the most damning evidence against it comes from the statements of its own leaders.

As for claims that the southern states had a right to secede independent of their motives for doing so, Blanks effectively dismantles this one. Slavery was a far greater violation of libertarian rights than anything that white southerners were suffering at the hands of the federal government in 1861. Even if a majority of the population in some jurisdiction supports secession, libertarians should still oppose if the purpose of secession is to perpetuate and extend a massive violation of libertarian rights. And few institutions violate such rights more blatantly than slavery. I don’t agree with all of Blanks’ arguments. Unlike him, I think it’s far from clear that secession was unconstitutional. But whether constitutional or not, Confederate secession was a great evil. Indeed, if the Constitution did permit secession for the purpose perpetuating slavery, that’s more an indictment of the Constitution than a justification of Confederate secession.

IV. Remembering that Blacks Count Too.

I would also add an important point that is overlooked by both Blanks and most modern defenders of the Confederacy: Even if you do endorse any secession that is supported by a majority of the population in a given state, you should still condemn the Confederacy. Southern secession can only be defended on majoritarian grounds if you discount the views of southern blacks. As of 1860, African-Americans constituted about 40% of the population of the states that formed the Confederacy. It’s a safe bet that they were overwhelmingly opposed to secession. When you combine this overwhelming black opposition with that of the substantial minority of southern whites who also wanted to stay in the Union, it is highly likely that a majority of southerners in 1861 opposed secession. Once you recognize that blacks count too, it becomes clear that Confederate secession was anti-majoritarian as well as proslavery.

I don’t believe that most of today’s libertarian defenders of the Confederacy ignore the views of blacks out of racism. They probably do so because they unthinkingly take for granted the laws of the time, which in the South excluded even free blacks from the franchise (as was also true in many northern states). But there is no reason to accept the validity of that exclusion. Indeed, libertarians should be the first to recognize that southern state governments had no right to rule over African-Americans without even the slightest pretense of gaining their consent.

Duke law professor Stephen Sachs has a new essay. “The Uneasy Case for the Affordable Care Act,” responding to Erwin Chemerinsky on the constitutionality of the individual mandate.  Here is the abstract from SSRN:

The constitutionality of the Affordable Care Act is sometimes said to be an “easy” question, with the Act’s opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won’t be easy, and the arguments against it sound in law rather than politics.

Written to accompany and respond to Erwin Chemerinsky’s essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. Congress has power to regulate commerce among the several States, but that might not extend to every individual decision involving economic considerations — walking rather than taking the bus, stargazing rather than renting movies, or carrying a gun in a school zone rather than hiring private bodyguards. Even the necessary-and-proper power, the strongest ground for the mandate, may stop short of letting Congress claim extraordinary powers to fix the problems created by its exercise of ordinary ones.

Because the mandate’s opponents can find some support in existing doctrines, a decision striking down the mandate needn’t be a drastic break from past practice. By contrast, a decision upholding the mandate would raise serious questions about the limits of Congress’s powers. To many, these questions offer good reasons for doubting whether existing doctrine gets it right — reasons having more to do with constitutional theory than political preference.

(Hat tip: Legal Theory Blog)

This brief paper is a welcome addition to the debate over the individual mandate because it eschews categorical claims about how existing precedent applies to the mandate. As I have maintained for some time, there are strong arguments in favor of the individual mandate’s constitutionality, particularly under the Necessary and Proper Clause. But there are also strong arguments for the unconstitutionality of the mandate, particularly if one takes seriously the notion of judicially enforced limits on federal power.

That the constitutionality of the mandate is not an “easy” case is shown by the fact that its defenders have not coalesced around a simple and straightforward defense. The arguments put forward by prominent academics supporting the mandate (e.g. Balkin, Amar, etc.) have evolved substantially, and some early arguments in support of the mandate have been abandoned. The arguments contained in the Justice Department’s briefs have evolved substantially as well. Not only has the mandate divided the appellate courts, but those judges voting to uphold the mandate have adopted differing (and at times even conflicting) rationales. These are not the hallmarks of an easy case.

The constitutionality of the individual mandate will not be determined by a simple and straightforward application of existing precedent, as existing precedent only goes so far. Precedent will need to be supplemented with resort to foundational conceptions about the nature of federal power. Those who believe that Lopez, et al., are slight exceptions to expansive federal authority see constitutionality of the mandate as a natural extension of post-New Deal jurisprudence. Those who believe that Lopez, et al., marked a reassertion of underlying constitutional principles — as the opening line of Lopez would suggest — see the mandate as an anathema. Whichever way the Court goes (and readers know I believe the Court should strike it down), the Court will not need to overturn existing precedent to do it.

This Thursday at 12:15 PM, I will be debating the individual mandate case at UCLA Law School with UCLA professor Jonathan Varat. The event is sponsored by the UCLA chapter of the Federalist Society.

An initiative to legalize possession of 1 ounce or less of marijuana qualified for the November ballot in Colorado yesterday.    The initiative only legalizes possession for those 21 or older, and would also make it legal to grow up to six marijuana plants in one’s home and decriminalize the licensed sale of marijuana, subject to local government regulation or prohibition.

The initiative would have no effect on federal law, so those growing or selling marijuana would still have to worry about federal law enforcement. But does it have to be this way?  When alcohol prohibition ended,states remained free to regulate or proscribe alcohol sales, and federal law (among other things) made it illegal to transport alcohol across state lines in violation of state law.  In other words, the primary federal role became helping states maintain the alcohol laws of their choice.  Given the number of states that have sought to legalize medical marijuana or, in the case of Colorado, consider the legalization of possession, perhaps its time to introduce a bit of federalism into federal drug policy.  Okay, it’s actually long past time for this.  But each time another state moves against drug prohibition is another opportunity to reconsider drug prohibition and the nature and extent to which federal resources should be devoted to the war on drugs.