A Response to Randy on “No Commandeering”

Thanks very much to Randy for his post arguing that his “no commandeering of the people” theory could be the argument that addresses my different concerns and create a sound way to strike down the mandate. Like all of Randy’s work, it is engaging, interesting, and important. But of the different arguments Randy offers to invalidate the mandate, I find the “no commandeering of the people” argument the least persuasive. Here’s a run-down of why.

First, the “commandeering of the people” claim reads like a emanations-and-penumbras argument, in which we look to various bits and pieces of the constitution to try to assemble them into a brand-new principle to get to where we want to go. Maybe I’m too sensitive to constitutional claims that rely on implicit principles of the Third Amendment. But that kind of legal reasoning gives my Burkean instincts the heebie-jeebies. In my experience, the point of emanations-and-penumbras arguments is to present something new as if it were something old (but just not quite previously recognized). I get the move, but here it seems pretty clear that the argument is new. As Randy concedes, the existing doctrine is about commandeering the states, not about commandeering the people.

Even if this is to be recognized as a new constitutional principle, it’s not clear how it works. First, it’s not clear to me how saying you have to pay an extra fee if you don’t buy health insurance “commandeers” anything. True, it’s an incentive to do something. But it’s a relatively modest one, and strikes me as far short of the coercive take-over implied by the concept of commandeering. And If we say that this sort of modest incentive amounts to commandeering, then isn’t most of what the government does commandeering? For example, does the home mortgage deduction commandeer you to buy a house? And more obviously, doesn’t the draft commandeer you to join the military?

Randy introduces several limitations on the theory that lead him to conclude that the mandate is the first case of the relevant kind of commandeering, and therefore is the only legislation that needs to be invalidated. But his limitations strike me as rather arbitrary. First, Randy limits his proposal to “economic” commandeering. That presumably would deal with the draft cases. But if the Constitution is to be read to prohibit commandeering, isn’t economic commandeering the least offensive kind? A draft forcibly making someone go off to fight a war (and risk death in combat) seems exponentially more offensive than making someone pay a few hundred bucks through a lower tax refund if their income is above a certain amount. And isn’t the limitation to “economic” commandeering an odd fit with the tax power? Under Randy’s theory, as I understand it, it seems that Congress is actually perfectly free to engage in economic commandeering as long as it does so through something formally called a tax. If economic commandeering is to be recognized as a core constitutional prohibition, it seems surprising that it could be so easily done under the tax power.

Finally, there’s my Weschlerian neutral principles reaction. One of Randy’s selling points for the no-commandeering argument is that it could be adopted in a way that only strikes down the mandate. He writes: “In short, if a majority of justices have the will to invalidate the individual insurance mandate, they surely have the way.” Although potentially appealing to the Burkean instinct, from a Wechslerian perspective that’s a bug rather than feature. A novel argument that manages to only strike down the one law we don’t like is not based on an appeal to lasting principle. Instead it appeals to expedience; it gets us where we want to go. From a Weschlerian neutral principles perspective, I’d be much more drawn to a principle that has all sorts of results that we don’t like. The more we don’t like the results, the more we have an indication that we are adopting the principle because of its constitutional truth and not because we don’t like the Affordable Care Act.

Anyway, my apologies again for the long post. Randy’s ideas are rich and interesting as always, and even at this length i know I’m only scratching the surface.