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.”

[W]hy exactly shouldn’t [Chief Justice John Roberts] worry if he believes that a Court decision — any one, really — will impair the Court’s legitimacy, in the sense that it would make it more difficult for the Court to hold public support for its (other) decisions? Or, believes that a decision will not be seen in retrospect as a wise one (the “verdict of history” point)? I’m not here endorsing the view that a decision striking down the Affordable Care Act would impair the Court’s legitimacy or be seen in retrospect as unwise, just wondering what’s wrong with taking those things into account when a justice is thinking about how best to interpret the Constitution. (Would Justice Henry Billings Brown have been wrong to think about them when trying to decide whether to pull his draft opinion in Plessy v. Ferguson in favor of Justice Harlan’s dissent?…)

This is a good question. The answer, in my view, is that the job of Supreme Court justices is to enforce the Constitution, not to make decisions that will have broad public support or be perceived as legitimate. Indeed, judicial enforcement of constitutional restrictions on government power is particularly crucial precisely in those cases where violations of those restrictions enjoy strong political support. To turn Mark’s question about Plessy around: Was Justice Brown’s decision justified by the fact that a contrary result might have been considered “illegitimate” by majority public opinion in the 1890s, and deeply resented by millions of white southerners? Was Korematsu justified because the internment of Japanese-Americans enjoyed overwhelming public support at the time, and a decision striking it down would have been widely denounced as an illegitimate intrusion on the wartime powers of the political branches?

This point applies to legitimacy in the eyes of future public opinion, as well as contemporary opinion. Future public opinion can easily be wrong, and can often support violations of the Constitution. For example, public opinion in 1900 was far less favorable to judicial enforcement of African-American rights than public opinion in the 1870s. If 1870s Supreme Court justices could accurately predict that trend, would they have been justified in cutting back on enforcement of the Fourteenth Amendment? It’s possible that future terrorist attacks will turn majority public opinion strongly against the Supreme Court’s Guantanamo decisions. If the justices believed that to be likely, should they have endorsed the Bush administration’s position in those cases in order to get on the “right side” of history?

Nonetheless, I think there are narrow circumstances where courts can legitimately take account of legitimacy. One such situation is when a correct constitutional decision would attract such wide opposition that it cannot be effectively enforced. If that is the case, courts are simply incapable of doing their normal duty, and perhaps they would be justified in not even trying. The case for making discretion the better part of valor in such situations might be especially strong if a the correct-but-unenforceable decision undermines the Court’s ability to enforce other parts of the Constitution in future cases. Perhaps a decision like Korematsu can be defended on that basis. A contrary ruling would almost certainly have been successfully disobeyed by the president and Congress. On the other hand, it’s possible that correct decisions in such cases would at least increase the chance that public opinion would change in the future, making it possible to eventually enforce the Constitution at a later date.

It’s also possible that a decision perceived as illegitimate is itself enforceable, but might still undermine enforcement of future decisions by compromising the Court’s reputation. If this is the case, the justices will have to consider whether the future damage to the Constitution outweighs the constitutional principles that would be sacrificed by reaching the wrong result in the present case. I think this kind of scenario is unlikely. If people are willing to obey the initial “illegitimate” decision, it seems like they would also obey future decisions that are less controversial. But it’s not impossible.

In both of these scenarios, the reason why it is legitimate for the justices to consider legitimacy is because of its potential effect on their ability to do their proper job of enforcing the Constitution – not because legitimacy is valuable in itself.

I think it’s fairly clear that a decision striking down the mandate doesn’t even come close to falling into one of these two categories. As I discussed in my previous post, the vast majority of the public – including many Democrats – would actually support such a ruling.

One can reasonably argue that legitimacy should play a much larger role in judicial decision-making than I would support. Perhaps the justices should value legitimacy for its own sake. Alternatively, perhaps widespread and deeply felt public opposition to a given ruling should lead the justices to doubt the validity of its reasoning. However, anyone who believes that the Court should uphold the mandate because of the perceived illegitimacy of a contrary ruling must also oppose other decisions that are viewed as illegitimate by a larger proportion of the population. These include cases such as Roe v. Wade, Kelo v. City of New London, the school prayer and religious display decisions, the Guantanamo cases, several of the Warren Court’s defendants’ rights rulings, the flag burning cases, and other decisions supported by liberal constitutional theorists. At the time they were decided – and in some cases even today – each of these rulings were perceived as illegitimate by a larger proportion of the public than is likely to oppose a decision striking down the mandate. Some of them also attracted vociferous criticism by parts of the legal elite.

In my view, many of the above decisions were actually correct. That’s because I do not think that perceived legitimacy should be an important factor in Supreme Court decision-making, except in very rare instances. But if you believe that legitimacy should be a major factor when it comes to the mandate, that principle cannot be limited to the present case. You have to apply it consistently across the board. Doing so would call into question a wide range of Supreme Court decisions.

UPDATE: I have slightly edited this post to fix one or two typos.

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.

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.

In somewhat related news, Exorcist author William Peter Blatty is suing Georgetown University in Catholic court alleging the school has abandoned its Catholic faith and violating church teaching. According to this report, the “last straw” was Georgetown’s invitation to HHS Secretary Kathleen Sebelius to address graduating students.

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.

Here are the KFF release, summary, and the toplines.

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.

Though trumpeted by the Post‘s headline writers, the poll result does not tell us very much (even if we set aside any general skepticism of poll results.  Neither the story nor the poll considers whether the respondents considered this answer to be a criticism of the Court, nor is there any consideration of whether this is how half of Americans view the Court generally.  That is, it’s possible that a sizable percentage of the public thinks Supreme Court justices are always influenced by the partisan political views in high-profile cases, and it’s also possible that many who endorse a general statement about the Court may have different views about different justices (or about whether particular results are more or less likely to have been the result of political preferences).

Based on these poll results, it’s quite possible that many Americans think that at least some of the justices reach the correct result in particular cases in spite of — or even because of — their reliance upon their political preferences.  After all, in this same poll a sizable majority of the respondents — 67 percent — said they want the Supreme Court to either strike down the mandate or strike down the health care reform law in its entirety.  The poll also found that only 39 percent of Americans support the health care reform law, “ the lowest percentage since the Post-ABC poll began asking the question,” and that only one-half of self-identified Democrats said they wanted the entire law upheld.

Combined with other recent poll results, it’s hard to see how the finding headlined by the Post is all that significant.  It’s even harder to understand why some progressive partisans think the President should campaign against the Court if it strikes down the mandate as he seeks reelection.  Polls are consistently finding that most Americans believe the Supreme Court should and will strike down the mandate.  If anything — and I stress if anything – this would suggest there’s more political risk to the Court from upholding the mandate than from striking it down.  In the end, however, the justices should not base their votes on public opinion polls, but on what they believe the Constitution requires.

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

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

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

 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.

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.

Just a few points:

(1) Koppelman writes, with regard to child labor, “only the federal government could address the issue, since no state would act on its own.” But I pointed out in response to his last article that every single state did in fact pass laws restricting child labor. Koppelman acknowledges the point, but responds, “This, however, ignores the enormous variation in child labor policy: Some laws were weak; others were ineffectively enforced.” But saying that states chose not to have as strict laws as the federal government, or enforce them as vigorously as the federal government might, is quite different from saying that they couldn’t act; rather, they chose not to act as vigorously as the federal government. That’s what happens when you live in a federal system–sometimes you will think that states are being derelict in their legislative responsibilities; sometimes you will praise the states as laboratories of democracy for their innovations. I think I can safely assume, for example, that Koppelman opposes the federal Defense of Marriage Act but supports states that have recognized same-sex marriage. If the Republicans take control of the White House and Senate in 2013, would he want them to set a national policy on gay marriage via the commerce power? Merely pointing out that states don’t always follow one’s policy preferences is hardly a strong argument against federalism.

(2) Professor Logan Sawyer of the University of Georgia Law School coincidentally has an excellent piece out on SSRN about the origins of Court’s holding in Hammer v. Dagenhart, the case in which the Supreme Court invalidated a federal child labor statute as beyond Congress’ commerce power. The gist of the piece is that Hammer wasn’t a battle between laissez-faireists and Progressive supporters of national regulation. Rather, after the Lottery Cases, which seemed to establish the federal police power, there was debate among Progressives as to whether there were any limits to this power. One side said no, while the other side insisted, for good “Progressive” reasons (in particular, that participation in local governance is a key to good citizenship), that Commerce Clause doctrine must put some limits on federal power. So there is, in fact, a parallel to 1918 today, but the parallel is not that the Supreme Court is poised to just make up some new doctrine while ignoring social conditions. Rather, the parallel is that there is sentiment among people who otherwise recognize a strong role for national government–as four of the five conservatives on the current Court surely do–that despite past precedents granting a broad commerce power, a significant role for state and local governance must be preserved.

(3) Koppelman suggests that Jonathan Adler and I think argue that child labor “isn’t so bad.” I won’t speak for Jonathan, but I think child labor is bad, certainly if we’re talking about pre-teens working in factories (which all the states banned in any event). [What I actually wrote was, "as one would expect, wealthier states, where parents were less likely to be dependent parents on the labor of their children to avoid starvation, passed earlier and stricter legislation, exactly as it should be in a federal system." (And even federal legislation left child labor on farms to parental discretion, in deference to the fact that family farms often couldn’t survive without the children pitching in.)] But there’s always the question of “compared to what?” I don’t want to go off on a long digression about child labor, so I’ll leave it at this. Child labor laws were not motivated solely by humanitarian considerations, and depending on context, could have significant anti-humanitarian consequences. Just consider that child labor laws, including the federal laws that came before the Supreme Court, were not typically accompanied by social welfare legislation providing income support to families whose children were working because the alternative was not having adequate food and housing. [So desperate families could either be malnourished or send their kids off to work in the black market; either way, many kids would be worse off, which provides an explanation of why the poorest states had less stringent child labor laws than what the federal government tried to impose.] Consider also that the wave of national sentiment favoring child labor laws corresponded with a wave of sentiment favoring legislation keeping women out of the workplace, and severely restricting immigration. This was not a coincidence. It shouldn’t really come as a surprise that the history of these matters is rather more complicated than the morality tales we learned in civics class.

In an earlier post, Roy covered the “tortuous” history of conservative and libertarian attitudes to the mandate. Many conservatives did indeed support the idea during the 1990s and early 2000s, including Newt Gingrich, and Mitt Romney, who made it the centerpiece of his Massachusetts health care plan. The conservative Heritage Foundation first developed the mandate plan back in 1989, though their proposal was in some respects different from Obama’s and Romney’s. On the other hand, as Roy notes, many other conservatives – and the vast majority of libertarians – opposed the idea all along. I was a college student intern at Heritage back in 1994, not long after the political battle over Bill Clinton’s health care plan. Although I didn’t work on health care policy myself, I well remember the ongoing war of words between Heritage and the libertarian Cato Institute over the Heritage individual mandate plan, which Cato opposed. So too did leading free market health care and entitlement experts such as John Goodman and Peter Ferrara.

In sum, there are plenty of politicians in both parties who have switched sides over the mandate for what may well be opportunistic reasons: Gingrich, Romney, and Obama are all good examples. On the other hand, it is not true that all or even most opposition to the mandate on the right is purely opportunistic. Many conservatives and libertarians have opposed the idea for almost twenty years now, including back when it was advocated by Republicans. On the left, it is fair to point out that some of those who endorsed Obama’s plan have done so because they see it as a lesser evil compared to the previous status quo.

UPDATE: Co-blogger Jonathan Adler covered some of the relevant history in this post.

[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.

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.

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.

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.

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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.

What explains this state of affairs?  I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy.  At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases.  Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for what the law should be.  Constitutional scholarship in particular is increasingly focused on theory and less on the law.  In some corners, it’s more important to reconcile one’s claims with the writings of John Rawls than the opinions of John Roberts.

This divide explains why so many legal academics were dismissive of some of the concerns raised in this week’s oral arguments, such as the need for a limiting principle.  The Solicitor General’s office has taken this concern seriously from day one, as have a few liberal legal academics (e.g. Neil Seigel, Michael Dorf  whereas others, such as Andrew Koppelman, have been sneeringly dismissive of this argument from the get-go.  Even if Koppelman were right as a matter of first principles, he’s clearly wrong as a matter of current doctrine as understood by the current Supreme Court, though you wouldn’t know it from what he’s written.

Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia.  The current Supreme Court has a right-leaning majority, but legal academia leans decidedly to the left.  On many faculties their are few, if any, professors with any particular appreciation or understanding (let alone sympathy) for the jurisprudential views of a majority of the current justices.  This means that when ideas are floated in the faculty lounge, they may get a far more sympathetic hearing than they would ever receive in court.  So, for instance, it’s easy for Jack Balkin to dismiss an argument premised on Bailey v. Drexel Furniture because it’s a Lochner-era decision, even though Bailey remains good law.  A practicing lawyer would have been less likely to make this mistake.  Indeed, the SG actually cited Bailey approvingly this week in his argument before the Court.

In teaching our students to be effective lawyers it is important that we teach them how to understand opposing legal arguments on their own terms.  Effective appellate attorneys are conscious of this problem and devote substantial energy trying to get inside the minds of their opponents.  As I’ve heard Paul Clement (among others) explain, you can’t effectively advocate your own position until you truly understand the other side.  This can be difficult to do, particularly when we have strong feelings about a subject.    Someone who believes the PPACA is a long-overdue step toward remedying the profound injustices of the American health care system is not predisposed to embrace arguments that the PPACA is unconstitutional.  And if those same academics both lack colleagues with opposing points of view and have no particular professional interest in making sure they fairly consider the other side, it is easy for them to overlook the strength of opposing arguments and reduce them to caricatures.  Ridiculing the need for a limiting principle or other anti-mandate arguments may get approving nods in the faculty lounge, but, as we saw this week, it won’t receive an equally warm welcome in court.

UPDATE: Peter Suderman suggests another possible explanation:

What can explain liberals’ widespread failure to anticipate the Court’s wariness of the mandate? Research conducted by University of Virginia psychologist Jonathan Haidt suggests one possible answer: Liberals just aren’t as good as conservatives and libertarians at understanding how their opponents think. Haidt helped conduct research that asked respondents to fill out questionnaires about political narratives—first responding based on their own beliefs, but then responding as if trying to mimic the beliefs of their political opponents. “The results,” he writes in the May issue of Reason, “were clear and consistent.” Moderates and conservatives were the most able to think like their liberal political opponents. “Liberals,” he reports, “were the least accurate, especially those who describe themselves as ‘very liberal.’”

I’ve certainly witnessed the phenomenon Haidt describes, but generally assumed it was limited to certain contexts in which there are numerical imbalances between those on the left and the right that affects the degree of interaction people have with those of differing views. I will be curious to read more about this research and the limitations of its findings.

Commentators aghast at the possibility that the Court may invalidate a key portion of President Obama’s signature legislative accomplishment have suggested that doing so will undermine the Court’s credibility. They suggest that a decision striking down the mandate would be another Citizens United or, worse, Bush v. Gore. Given the mandate’s unpopularity, this is a hollow threat. If anything, the justices should be more wary of another Kelo, of upholding an assertion of government power that most Americans find repugnant. This is not to suggest the justices should base their decision on popular opinion, for the Constitution should be their guide. It is, however, to suggest that the Court’s credibility is at risk when it fails to constrain unconstitutional assertions of government power.

It’s also worth noting that many of those concerned with the Court’s institutional credibility in this case are strangely mute when the Court is poised to invalidate statutes or other government policies with which they disagree.  If invalidating significant legislation were such a threat to the Court’s legitimacy, the Court takes a much greater risk when it strikes down national security legislation embraced by the President and adopted by a bipartisan congressional majority (as it did in Boumediene), than when it strikes down an unpopular and unprecedented statute adopted on a party-line vote.  Whether or not it was correctly decided, Boumediene stands as the most aggressive exercise of judicial review of a national security measure enacted by Congress in the nation’s history — and it is a far better poster-child for judicial “activism” (if we must use that word), than anything the Court is likely to do here.

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.

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 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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

Less short Dalhia Lithwick: The mandate must be constitutional because it’s about the freedom to have the government make sure we take care of each other.

Lithwick’s column makes the common mistake of evaluating a measure’s constitutionality based upon the desirability of it s purpose.  Yet as Paul Clement noted in yesterday’s oral argument (and we’ve noted repeatedly), there are many other ways of ensuring that those in need are able to obtain medical care and even of encouraging more Americans to obtain health insurance.  Lithwick argues opposition to the mandate is grounded in a “dark vision” of freedom circa 1804, ignoring the legions of public policy measures adopted since that expand the social safety net without the imposition of PPACA-style mandates.

Throughout American history when we, as a people, have decided that it is important to help those in need we have relied upon the power to tax and spend for the “general welfare.”  Rather than impose upon individual Americans an obligation to act directly on behalf of others (or even themselves) we have raised monies that can be devoted to charitable and risk-management purposes and created financial incentives for charitable behavior.  The federal government could have done that here, either by further expanding Medicare and Medicaid, subsidizing insurance for those in need, or raising taxes on everyone and offsetting the increase with deductions for insurance.  In short, there are many constitutional ways for the government to demonstrate  ”compassion” without a mandate.  Yet Lithwick and others continue to insist that if their ends are pure, the means adopted must be constitutional.

If I wanted to be snarky, I’d also point out that it’s easy to be compassionate with other people’s money, and progressives should be careful before accusing those who oppose the mandate or other redistributionist policies as hard-hearted neanderthals.  After all, those on the right tend to donate a greater proportion of their own incomes  to charitable purposes than those on the left.

Today’s oral argument directly considered the constitutional tax issue, and at least three of the four liberal justices – Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor – remain skeptical. Sotomayor suggested that the government’s Tax Clause argument is flawed because it has no “limiting principle.” Ginsburg again contended that the mandate is not a tax because it isn’t a “revenue-raising” measure. And Kagan pressed the Solicitor General on why it should be considered “irrelevant” that “Congress determinedly said, this is not a tax.” Needless to say, the conservative justices were no more supportive of the federal government’s Tax Clause claim than the liberals.

I don’t know who is going to win on the Commerce Clause and Necessary and Proper Clause questions. The plaintiffs’ position is looking pretty good. Still, I would not be surprised if the federal government managed to pull it out. But I am now quite confident that the feds are not going to prevail on the Tax Clause.

If Kagan and Sotomayor do end up concluding that the mandate is not a tax, that will be consistent with the views of the president who appointed them.

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

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

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

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