The Volokh Conspiracy

This morning the Supreme Court accepted certiorari in Clapper v. Amnesty International USA, which presents the question whether journalists and human rights organizations have standing to challenge the constitutionality of electronic surveillance of international communications without direct evidence their communications have been surveilled. In this case, the U.S. Court of Appeals for the Second Circuit held standing could be claimed because the plaintiffs had a reasonable fear of surveillance and undertook “costly and burdensome measures” to protect the confidentiality of their communications. Unsurprisingly, the SG’s office filed a cert petition. Because this decision created a circuit split with the U.S. Court of Appeals for the Sixth Circuit, a cert grant was virtually assured.

Thus far, the Roberts Court has stood pat on standing, neither raising nor lowering the hurdles to Article III standing. In this case, it will be interesting to see whether this trend continues.

Orin also blogged on this case here and here.

Supreme Court Justice Stephen Breyer has had a home robbed twice in the past three months. First burglars raided his Carribbean vacation home, while Breyer was there with guests. Then, earlier this month, his Washington, D.C. home was robbed too.

Adam White finds Jeffrey Toobin re-writing history in his much discussed New Yorker article on Citizens United. As Toobin set up the story, Citizens United was a little case, involving a “narrow” statutory question. According to Toobin’s New Yorker article, “There did not see to be a lot riding on the outcome.”

White finds Toobin’s account “preposterous.” As White notes, the day before the argument the NYT editorial page inveighed against the “wide array” of “sweeping” and “dangerous” claims made by Citizens United. Likewise SCOTUSBlog’s Lyle Denniston noted CU was asking the Court for “a sweeping rejection of congressional authority to regulate campaign spendingby corporations.” A CNN analyst named Jeffrey Toobin made the same point, opining the day of the oral argument that CU has “a pretty good case” and that the Court could “either say you have to come up with another way to regulate or this kind of regulation is simply unconstitutional.”

The latest New Yorker has an extensive excerpt of Jeffrey Toobin’s forthcoming book, The Oath: The Obama White House vs. the Supreme Court, focusing on the Supreme Court’s Citizens United decision. The story, “Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision,” is everything you’d expect from a Toobin piece. It’s engaging and informative, with exclusive behind-the-scenes reporting of how the decision came to be. This stuff is catnip for court watchers. Yet the article also contains plenty of subtle (and not-so-subtle) spin in service of Toobin’s broader narrative of an out-of-control conservative court. As a consequence, Toobin paints a somewhat misleading picture of the case and the Court.

The heart of Toobin’s article tells the story of how Citizens United metastasized from a narrow case about the application of federal campaign finance law to an obscure conservative documentary to a significant decision vindicating the First Amendment rights of corporations. As Toobin tells the tale, after the case was first argued Chief Justice Roberts drafted a narrow opinion that would have held for Citizens United on statutory grounds, but leaving the statutory regime intact. The vote would still have been 5-4, but it would have been a far less significant case. Justice Kennedy was not happy with this result, however, and authored a concurrence calling for a broader holding that would rest on First Amendment grounds. Kennedy’s concurrence apparently swayed enough of the court’s conservatives that Roberts initially acquiesced. Such a broad ruling would be improper, the court’s liberals complained, as the broader First Amendment questions had not been briefed and were not properly before the Court. Yet as there was no interest in a narrower holding, the Court ordered a reargument with supplemental briefing that would place the First Amendment question front and center.

Toobin dwells on Justice Stevens’ complaint that the Court’s broad holding in Citizens United was unnecesary, as the Court could have held for the petitioners on narrower, statutory grounds. Yet as Toobin’s own reporting confirms, no one other than Chief Justice Roberts had any interest in resolving the case on such grounds. Even when the case was first argued, not a single liberal justice was prepared to side with Citizens United, in no small part because the statutory argument was so weak.

Toobin criticizes the Deputy Solicitor General Malcolm Stewart for a concession at the first oral argument that may have sealed the government’s fate.

Since McCain-Feingold forbade the broadcast of “electronic communications” shortly before elections, this was a case about movies and television commercials. What else might the law regulate? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Alito said. Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?”

Yes, Stewart said: “Those could have been applied to additional media as well.”

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

“I’m not saying it could be banned,” Stewart replied, trying to recover. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign. . . .

Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.

Yet here it is Toobin who is wrong, not Stewart. The statutory provision at issue was limited to broadcast, cable and satellite communications, and the film at issue was to be shown as a cable on-demand program, but the government never sought to defend the law on the basis that it was limited to electronic media. After all, the point of the was to limit the role of money in campaigns, not limit television advertising. The position the government was defending was that Congress could limit corporate expenditures related to campaigns, not that it could regulate TV. Under this theory, a corporate-funded book with impermissible campaign-related content would receive no more First Amendment protection than a corporate-funded video or film, just as Stewart said. If this is an incredible proposition, that says more about the position the government sought to advance than it does Stewart’s oral argument. Campaign finance activist Fred Wertheimer made the same concession when pressed by the NYT. It’s true that Solicitor General Elena Kagan would back away from this position when it was her turn to argue the case at the second oral argument, but not without first acknowledging that the statute’s language could apply to “full-length books” and that there would, in the government’s view, be no problem with banning corporate-funded pamphlets.

Like many of the decision’s critics, Toobin suggests Citizens United is best seen as the product of the “aggressive conservative judicial activism” of Chief Justice Roberts and the court’s conservative majority.

Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.

As Toobin tells the tale, Citizens United is emblematic of the current Court’s assault on precedent and the prerogatives of the political branches. It’s a nice story, but it’s not true. “Judicial activism” is a notoriously malleable charge, but if “judicial activism” is shorthand for striking down federal statutes and overturning judicial precedents, the Roberts Court is the least “activist” court of the post-war period. As a New York Times analysis showed, the Roberts Court strikes down statutes and overturns Court precedents at a slower rate than any of is post-war predecessors, and it’s not even close. “Activism” is also a peculiar charge to make about this case, as the dissenting justices were just as reluctant to embrace a narrow statutory holding and were just as willing to overturn precedent as those in the majority. They just sought to move the law in the opposite direction. If Citizens United is supposed to be evidence of unprecedented “activism,” it’s not clear what “activism” means.

The most interesting parts of Toobin’s article are those that disclose how Citizens United was handled inside the Court. This is great stuff, and testament to Toobin’s skill as a reporter, but I still have some misgivings. We don’t know the identities of Toobin’s sources, and some of his claims are difficult to check. His story may reflect how some justices or clerks saw the case, but there may well be another side, and we won’t know until such time as the relevant court documents are released. I also cannot help but wonder whether some of Toobin’s sources, such as former Supreme Court clerks, may have violated their own ethical obligations in disclosing portions of the Court’s internal deliberations. Even if Toobin’s sources were sitting or former justices, there is something unseemly about the selective disclosure of what went on inside the Court on such a recent case.

In any event, the article is still worth reading — as I am sure Toobin’s book will be as well. Some portions will just go down better with a healthy dose of salt.

UPDATE: Tom Goldstein has a similar reaction to Toobin’s narrative about Chief Justice Roberts:

The theme of the piece is that Chief Justice Roberts orchestrated the case’s metamorphosis from a narrow ruling about statutory construction to a much broader constitutional decision with sweeping implications for campaign finance.

I should disclose that I am naturally inclined towards that reading of the history. I think that the Chief Justice is quite conservative and a brilliant tactician, including in undoing significant pieces of the legacy of the Court’s O’Connor era. I also disagree with the Citizens United decision.

But despite that, while the article is a fascinating and full accounting of the case and the background of the Court’s rapid movement to the right, the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.

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

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

An article by Will Tuell (who apparently is or was a local town selectman) in the Downeast Coastal Press reports that State Senator Cynthia Dill — seemingly the leader in the Democratic primary, though not necessarily a strong competitor to Independent candidate and former Governor Angus King — endorses Court-packing:

On the issue of whether the Supreme Court needs to be reformed, Dill, a civil rights lawyer with experience in the federal court system, called for major changes reminiscent of those sought by President Franklin Delano Roosevelt. …

Dill said she approves of President Obama’s picks and would consider expanding the number of justices on the Court if decisions she sees as unfavorable continue to be passed down. “I think there’s promise, but if we continue to get these poor decisions, I’m not opposed to adding justices. The Constitution doesn’t say we have to have nine justices, and if these nine can’t figure it out and keep producing 5-4 decisions that are crippling our country, let’s throw a few more good justices on the Court and straighten things out.”

I should note that I see nothing inherently wrong in the political branches pushing back against the Court, whether through ordinary nominations, through constitutional amendments, or possibly even through proposals to limit the Court’s jurisdiction (though I’m skeptical about the latter). But Court-packing strikes me as a pretty poor idea: It’s nearly certain to lead to partisan tit-for-tat should this be done by one party, and the consequences of such tit-for-tat are likely to hurt the judicial system with little compensating benefit, either for Democrats or Republicans. In any case, I thought I wanted to note that such a proposal was being discussed, though of course I realize that it’s politically very unlikely to succeed.

The full article, reprinted with the editor’s permission, is below:

Continue reading ‘Leading Democratic Primary Candidate for Senator from Maine Calls for Court-Packing’ »

Lyle Denniston has an interesting post on SCOTUSBlog discussing whether the Court will reconsider its judgment in Nken v. Holder because the decision was based, in part, on erroneous factual premises.

The Justice Department last month told the Court that it had provided faulty information in that case about U.S. immigration policy, but it suggested that the Court need not do anything about it. Now, however, a group of immigrants’ rights lawyers have asked the Court to actually modify the opinion after the fact, so that lower courts do not rely upon the error, with a negative impact on immigrants’ rights.

The Court has formally accepted the Justice Department’s letter expressing regret over the development, as well as the lawyers’ letter filed last Friday asking for a change in the ruling. That letter, though, was not filed for a party in the case — the immigrant Jean Marc Nken or the federal government — but rather on behalf of several immigrants’ rights groups who took part in the Nken case three years ago as amici — not a direct role. The Department has already made clear it sees no need for a modification, and Nken may have no reason to seek it, since in the meantime he has been granted asylum to stay in the U.S.

When a factual error upon which the Court had relied in Kennedy v. Louisiana was disclosed, and both the SG’s office and Louisiana sought rehearing, the Court altered the wording of its opinion, but not the result. with Nken, on the other hand, the time for rehearing has passed, but the consequences of the Court’s error may be significant.

for the immigrants’ rights lawyers, they have told the Court that this is not just a matter of procedural inconvenience or nicety. Various lower courts have relied upon the incorrect statement in the Court’s Nken opinion to deny an immigrant’s plea to remain in the U.S. until that individual has a chance to challenge deportation in court, they said. Moreover, the attorneys’ letter said, there is reason to doubt even the Justice Department’s assurances to the Court that the government now has a policy that it will allow a deported non-citizen to return to the U.S. if he or she wins a challenge to being sent away. “There is still substantial agency discretion” about that outcome, the letter argued.

What’s more, the letter said, the government can give no assurance that, in the future, some other administration may rely on what the Court had said in Nken about the right of return, and thus feel justified in refusing a non-citizen’s re-entry. The government, it added, has made no commitment “to a permanent, legally binding policy.”

It will be interesting to see how the Court responds.

Reuters previews what a Romney Administration short-list for a Supreme Court vacancy might look like.  Among those identified are former Solicitor General Paul Clement and federal appellate judges Neil Gorsuch (10th Circuit), Brett Kavanaugh (D.C. Circuit), Jeffrey Sutton (6th Circuit), Diane Sykes (7th Circuit), and Steve Colloton (8th Circuit).  The story also identifies others who could become viable nominees after early service in a Romney Administration or an early appellate confirmation, such as Viet Dinh and Miguel Estrada.  Should Romney be elected, any such list will soon be supplemented with the names of others who are either nominated to appellate courts and legal positions within the Executive Branch.  One should also not forget to look at state officials and supreme court justices, such as Colorado’s Allison Eid.

Via “The Fix” comes an interesting poll result: As of July 2010, only 28 percent of Americans knew John Roberts was Chief Justice of the United States.  Over half (53%) admitted they did not know, while others selected John Paul Stevens, Thurgood Marshall, or Harry Reid.

In March, Ilya had this interesting post on Harmon v. Kimmel, 11-496, a case the Supreme Court is now considering that presents the question whether New York’s system of rent regulation effects a taking of private property without compensation.

The Court as a whole considered the case for the first time at last Friday’s Conference.  (It was originally on for the December 9 Conference, but on December 5, at least one of the Justices asked the respondents — who had waived their right to file a brief in opposition — to file a response.)  The Court has relisted it for this Friday’s Conference, suggesting that at least some of the Justices are taking a close look at it.  The briefs in the case are available through the link above.

The Washington Post reported today on findings from a new Washington Post/ABC News poll.  According to the Post‘s story, when asked whether they expect “the Supreme Court justices will rule on this case mainly (on the basis of the law) or mainly (on the basis of their partisan political views),” 50 percent chose “partisan political views” while 40 percent chose “on the basis of the law.”  An additional one percent volunteered “both.”  On this basis, the story was given the headline  “Poll: More Americans expect Supreme Court’s health-care decision to be political.”  

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.

This week I’ll be discussing my new book, Flagrant Conduct: The Story of Lawrence v. Texas, at two different venues. On Thursday, the Charles Hamilton Houston Institute for Race & Justice will sponsor a speech at Harvard Law School from 5:30-7:00 p.m. Details are available here. 

On Friday evening at 7:00 p.m., I’ll be speaking in Washington, D.C. at the bookstore Politics & Prose.  Andrew Sullivan will offer commentary.  Details about that event are available here.

So claims the White House, and MEDIAite and Kevin Drum (Mother Jones) report on it. This apparently refers to Justice Sotomayor’s diabetes.

Now diabetes is a serious illness, and likely would be treated as disability under the Americans with Disabilities Act, as recently amended. [UPDATE: I had originally neglected to focus on the 2008 amendments to the ADA, and said that diabetes that is relatively mild with treatment wouldn't be a disability for purposes of employment law; but, as commenter fennel123 points out, it likely would be a disability under the new amendments.]

Still, if “disability” is read broadly enough to include properly treated diabetes, is it really the case that no other Justices came to the Court with similarly serious conditions? For instance, Supreme Court Justice Henry Brown was apparently blind in one eye when appointed. I would think that there had been others, given the poor state of medicine in the past. Can anyone think of any? (Please include a pointer to the source supporting your assertion, and please focus on Justices who had some sufficient disability when they were first appointed to the Supreme Court.)

I should note that I don’t think that appointing someone to the bench who has diabetes — or who is blind in one eye — is a particularly noteworthy achievement; but here I’m just asking about the facts. Thanks to Opher Banarie for the pointer.

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

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

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

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

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

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

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

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

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

In Schecter Poultry, Justice Cardozo famously wrote:

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

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

Professor David Dow of the University of Houston argues that Supreme Court justices should be impeached if the individual mandate is struck down because “Supreme Court justices who undermine the principles of the Constitution ought to be impeached.”  According to Professor Dow, the case for impeachment would not be based solely on the Court’s health care decision, but also on decisions upholding the federal partial-birth abortion law, limiting the use of race in school assignment, and Citizens United.  These decisions, Professor Dow claims, are all part of a “sustained effort on the part of the Roberts Court to return the country to the Gilded Age” and that “if the legislature acts to protect the poor and less powerful, its actions must be respected by the judicial branch.”  He concludes:

We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there’s no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.

The Washington Post‘s Ruth Marcus supports the President’s health care reform law and believes the individual mandate is constitutional.  She further believes that a decision striking down the mandate would be seen as overtly political and would be bad for both the country and the Court.  Nontheless, she was quite dismayed by the President’s recent comments about how the Supreme Court should handle this case.  She writes:

Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”

Of course, acts of Congress are entitled to judicial deference and a presumption of constitutionality.  The decision to declare a statute unconstitutional, Justice Oliver Wendell Holmes wrote in 1927, is “the gravest and most delicate duty that this court is called on to perform.”

But the president went too far in asserting that it “would be an unprecedented, extraordinary step” for the court to overturn “a law that was passed by a strong majority of a democratically elected Congress.”  That’s what courts have done since Marbury v. Madison.  The size of the congressional majority is of no constitutional significance. We give the ultimate authority to decide constitutional questions to “a group of unelected people” precisely to insulate them from public opinion.

I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok.  Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question.  For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE: Lyle Denniston also comments here.

Among this morning’s cert grants was Arkansas Game & Fish Commission v. United States, which asks whether temporary yet repeated flooding can constitute a compensable taking under the Fifth Amendment.  I blogged about this case last week here.

Ben Wittes had this interesting post on the Lawfare blog about research by Haridimos V. Thravalos suggesting the Hamdan plurality got its history wrong concerning whether conspiracy could be tried as a war crime.  See also this response from Kevin Jon Heller and Wittes’ rejoinder.

Greg Sargent is one of many commentators wondering “How did legal observers and Obamacare backers get it so wrong?”  I think he’s asking the wrong question.  A better question to ask is: why did so many expect legal elites to have any particular insight into the current court?  After  all, many of the legal experts who were so dismissive of the arguments against the mandate were equally dismissive of the federalism arguments that prevailed in cases like United States v. Lopez, New York v. United States, and City of Boerne v. Flores.  Many of the legal academics who ridiculed Randy Barnett’s work on the mandate, and who were relied upon by legal journalists and commentators, thought their schools were advancing viable legal claims in Rumsfeld v. FAIR.  Oops.  Premier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.

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.

Among the cases up for consideration at the Supreme Court’s conference on Friday is Arkansas Game & Fish Commission v. United States, which seeks review of an interesting takings case out of the U.S. Court of Appeals for the Federal Circuit.  In short, the case concerns whether the temporary flooding of property can constitute a taking for which compensation is required under the Fifth Amendment.  A divided panel of the Federal Circuit said no, holding that flooding can only effect a taking if it constitutes “an actual permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.”  As the petitioners and various amici notes, and Judge Newman argued in dissent, this is a difficult holding to square with prior Court decisions that temporary takings can be compensable.

Environmentalist groups are not  usually very sympathetic to takings claims.  Most such groups adamantly oppose compensation for regulatory takings, often out of fear that a compensation requirement would make environmental regulation too costly.  Environmentalists have also been late to consider the potential environmental consequences of eminent domain.  This case, however, presents a clear example of how enabling the federal government to evade the Fifth Amendment’s compensation requirement can facilitate environmental harm, and it does so without raising the sorts of regulatory takings claims that typically give environmentalists such fits.

The substantive argument in this case is that the flooding of land is the sort of physical occupation that can constitute a taking, even if it is only temporary.  The land at issue in this case is a wildlife management area.  The repeated flooding of this land by the U.S. Army Corps of Engineers has caused substantial damage and destroyed valuable wildlife habitat. Were the flooding recognized as a taking — albeit a temporary taking — the Army Corps might be less quick to flood such lands in pursuit of other policy goals.  Undeveloped land, such as wildlife habitat, is already more vulnerable to governmental expropriation than is more developed land because it’s cheaper.  But if the government does not have to pay for the temporary occupation of such land at all, it’s cheaper still.  The Court does not often agree to hear takings cases from the Federal Circuit, but given all the patent cases its heard in the past few years, perhaps it’s time for a slight change of pace.

In my contribution to the NRO symposium Ilya mentions below I address the claims made by liberal commentators that the Supreme Court would sacrifice its own credibility were it to strike down the individual mandate.

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.

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

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

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

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

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