Commenter Brandon, a frequent critic of my posts on the individual mandate, offers the following question tonight in a comment thread:
Orin,
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur’s piece quoted by Barnett). Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice (which I’ve been a part of now for more than 4 years). So perhaps you’d like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically, DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I?????? I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided. Thnx.- Brandon
I wasn’t planning to blog on this. But because Brandon asks so nicely, I thought I would respond.
Now that the mandate case has reached the Supreme Court, the case triggers conflicting instincts for me. On one hand, as I’ve said before, I’m a federalism guy. I think limits on federal power play a critical role in our federal system, and I think Supreme Court doctrine has erroneously permitted the federal government to become too big and play too intrusive a role in American society. The Commerce Clause was never intended to give the federal government a general police power. It was meant to just allow the federal government to regulate interstate commerce. That part of me would cheer if the Supreme Court struck down the mandate.
On the other hand, I’m also a Burkean conservative stare decisis guy, and I’m acutely aware of the Supreme Court’s long struggle to identify principled and workable limits on the scope of the Commerce Clause. History has shown that it’s surprisingly hard to do that, and that unprincipled or unstable lines don’t last and just destabilize the law for a short window before being rejected. My comfort with the Court striking down the mandate therefore varies considerably based on how the Court could do it. Let’s imagine, hypothetically, that the Supreme Court strikes down the mandate but does not identify any genuinely principled or workable doctrine to justify it. The Court’s decision merely reopens the hornet’s nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning. In that case, the Burkean conservative part of me would be dismayed by the Court’s decision. Sure, the federalism guy side of me would be happy, but it would be outweighed by my Burkean objections. But if we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed and my reaction would be different.
That explains why I have posted a lot of “law professor hypotheticals” about the implications of the mandate challenge. The more I see the theory driving the challenge as workable and principled, the more I favor it. I can’t gauge how much the challenge triggers my Burkean objections without understanding exactly what it is and how it might work.
Now add another consideration. I also value the Supreme Court deciding cases independently of politics as much and often as possible. This is a sort of Wechslerian neutral principles idea that the Justices shouldn’t be political actors in robes. Horribly out of fashion in the faculty lounge, to be sure. But the neutral principles part of me is pretty dubious about the mandate challenge because the challenge seems so transparently political. The Affordable Care Act is President Obama’s signature legislative achievement. Everyone who opposes the constitutionality of the mandate just so happens to also oppose the mandate politically. And the most commonly-asserted constitutional argument against the mandate wasn’t even thought up until around just before the mandate was passed, only to be readily embraced by the same folks that tried to stop the legislation in Congress but failed.
The obvious political valence of the mandate challenge gives me a lot of pause, and it adds a significant complication in my view of what the Court should do. On one hand, it’s obvious that any decision striking down the President’s signature legislation would have enormous political ripple effects. Given that the theory behind the challenge was largely made up to stop the mandate, and it’s hard to imagine more than 5 votes to strike down the mandate, that would make the Supreme Court a political player in ways that dwarf recent examples. The narrative of the decision as deeply political would resonate with a lot of people. But my concerns go beyond that. Because I don’t like it when the Court’s decisions have an obvious political valence, I start to care about the vote count and the political resonance of the opinions. All other things being equal, I’d greatly prefer a vote line-up that didn’t break along the obvious 5-4 political lines, and that is written in ways that echo partisan concerns. A 5-4 conservative/liberal split written in ways that echo the political framing of the challenge (and for some might be) the Justices reflecting their politics. I would prefer a line-up with cross-party voting, and opinions with more lasting and long-term legal gravitas; something that tells us that there is more than just politics afoot here.
Where do these and other sometimes-competing concerns lead? In my case, they lead me to conclude that I can’t know what I would prefer the Supreme Court to do unless I know what the options are. I’m less concerned with whether the Court strikes down or upholds the mandate than how it does so. If I can dream about a perfect world, I would like to see a 9-0 decision that identifies a widely-shared neutral principle deeply rooted in precedent that also limits the scope of the federal government in a significant way, But that’s a pipe dream. To borrow from Donald Rumsfeld, you go into Court with the Justices and the precedents you have, not the Justices and the precedents you might want.
The realistic options therefore are much more confined. When I imagine the realistic options, I can imagine both a hypothetical majority opinion striking down the mandate that I would prefer to a hypothetical dissent upholding it and a hypothetical majority opinion upholding it that I would prefer to a hypothetical dissent striking it down. It depends on how the opinions are written, what they would say, and whether they would identify clear lasting principles outside of the short-term political environment of the present. For example, is a hypothetical decision upholding the mandate a 5-4 Breyer opinion that dismisses federalism, or is it a 8-1 Roberts opinion that recognizes the great value of federalism but concludes reluctantly in a Sutton-esque way that the lack of a principle and the weight of stare decisis dooms the challenge? Is a hypothetical decision striking down the mandate one that is easily circumvented by a future Congress and is easily construed as a one-time-only way to stop legislation most Republicans oppose, or is a deeper principle adopted?
Anyway, sorry for the long post, which I’m sure will leave a lot of readers unsatisfied and which still leaves a lot out. That’s part of the reason I wasn’t planning on posting about this. Hopefully at least some readers will find it interesting.