Balkin “Flips”

Jack Balkin and I have been friends for a really long time. There is no law professor for whom I have a higher admiration and respect. An important aspect of my thinking about constitutional law began with a brilliant article Jack wrote many years ago called “The Footnote,” which I read before we ever met. So I confess it is more than a little intimidating to find myself on opposite sides of one of the most important constitutional debates of our time: The debate over whether Congress has the power to “require”–in the words of the Act–all Americans to engage in economic activities by entering into a contract with a private company upon pain of a fine or “penalty”–in the words of the Act–collected by the IRS.

Yesterday, Jack replied to my blog post So Much For the Commerce Clause Challenge to Individual Mandate Being “Frivolous”. In his lengthy post Jack makes some sensible responses, including noting that lawyers make multiple arguments all the time. Fair enough.

But in addition to being a highly creative and fearless scholar, Jack is a master rhetorician. So in his post, Jack is engaging in some “flipping.” First, is his title: Randy Barnett Wants Us to Know that His Commerce Clause Argument is not Frivolous. The key move here is not the “wants you to know,” which alludes to my motives for observing that this touting of the Tax Power theory suggests a lack of complete confidence in this unprecedented use of the Commerce Clause. No, the key move here is “his Commerce Clause argument.” By this rhetorical device he attempts to reduce the argument being made by 21 (2/5ths) of the Attorneys General of the Several States to “Randy Barnett’s argument.”

This move is in service to the main point of the paper. That I and others are trying to move what Jack calls an “off the wall” theory to the status of “on the wall.”

Randy is part of a large group of conservative and libertarian lawyers, politicians, and activists who want to change the public’s mind about the powers of the federal government. They want the public and the courts to rethink the assumptions of the activist state that came with the New Deal. They want to restrain the growth of the federal government and push it back, because they believe that this is more faithful to the Constitution as they understand it.

Randy and his allies are trying to change people’s minds through op-eds, speeches, protests, and litigation. They are trying to move things from “off the wall” to “on the wall.”

Unlike the misleading and inaccurate “Constitution-in-Exile” trope promoted by Cass Sunstein and Jeff Rosen a few years ago–and heatedly debated here and elsewhere–Jack is right about this. I and others are trying to do exactly this. Jack has read my book, Restoring the Lost Constitution: The Presumption of Liberty and has interpreted it accurately. Keep in mind that, for Jack, “off-the-wall” is descriptive of the current acceptance of an argument not its soundness or its normative appeal. By calling these ideas “off-the-wall” he was not being disparaging, and I did not take it that way.

In his post, Jack is trying to marginalize the challenge to the individual mandate by connecting the argument about its constitutionality to my and others “off-the-wall” departures from conventional constitutional argument. But this connection is completely unwarranted.

I can tell you what an “off-the-wall”–but in my view constitutionally sound–challenge to ObamaCare would look like: it would contest whether Congress has the power to regulate insurance companies under the Commerce Clause, given that the original meaning of “commerce” did not extend to insurance contracts, which is why for 100 years the insurance business was regulated state by state. Then, in the 1940s, the Supreme Court, in a weirdly reasoned opinion, upheld the use of the commerce power to reach insurance companies. (This necessitated a Congressional statute authorizing states to continue regulating insurance as they always had, which is how state regulation has persisted.) Contending that the Court enforce the original meaning of the Commerce Clause and refuse Congress the power to regulate health insurance would be an accurate reading of the Constitution in my view, but it would also be “off-the-wall” at this point.

But here is the thing. No one is making this argument. Not me, not “the large group of conservative and libertarian lawyers, politicians, and activists who want to change the public’s mind about the powers of the federal government,” and certainly not the Attorneys General of 21 states. No, we are all looking at the law as it currently exists and observing that the Supreme Court has never upheld the use of the commerce power to mandate that everyone engage in economic activity. All it has ever done is regulate or prohibit those who choose to engage in economic activity. As such there is no existing authority for extending the Commerce Clause this far.

This is an entirely conventional legal argument. Nothing off-the-wall about it. The law professors who rushed to declare, with Nancy Pelosi, that it was “frivolous” and a waste of tax-payer money to challenge the mandate are faced with this serious problem: the claim that this power is unprecedented is demonstrably true. If the commerce power had ever been used like this before, these lawprofs would have been able to produce an example. And they would not even have had to because everyone would already know about all the “requirements” they have to obey as Americans upon pain of a “penalty” collected by the IRS.

So, in the absence of any Commerce Clause precedent, in his New York Times piece last March, Jack cleverly shifted focus to the precedents upholding Congress’s Tax power. I won’t rehearse here all the doctrinal problems with this theory, which I discussed in my previous post and the WSJ op-ed to which it linked.

Of course, the Supreme Court can always expand the powers of Congress, as it has done before. But make no mistake about the fact it would be a serious step beyond current constitutional law. And, in the absence of such authority, lower courts should strike down the law and leave it to the Supreme Court to decide whether to expand federal power yet again.

But you want to know another claim that is unprecedented? The claim that Congress may require any person in the US to do anything it deems to be in the public interest or pay a fine or penalty to the IRS. I do not know who first came up with this theory, but whoever it was was pushing the envelope of federal power beyond anywhere it had ever gone. The Tax power has never been used to impose a mandate on the American people and the Supreme Court has never recognized such a power.

So I will make this prediction: If five justice vote to uphold the individual mandate, they won’t use the Tax power theory because (a) its implications are just too radical and (b) there is zero public support for such a constitutional proposition. To coin a phrase, it is “off-the-wall.”

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