My co-blogger Randy Barnett offered an interesting response to my post below on taking a vow of consistency in arguments about the mandate. In my post, I suggested that those who have argued that upholding the mandate would necessarily mean that the federal government has no limits should have to stick with that assessment if the mandate is upheld. If a majority upholds the mandate, those who have argued that upholding the mandate necessarily means there are no limits on federal power should not be able to switch positions ex post. In the comments, Randy responded:
Orin, realistically, does this not depend on the contours of the opinion upholding the mandate? For example, the majority opinion in Raich was based on the fact that the cultivation of marijuana was “economic” according to a 1966 Webster’s dictionary defining “economic” as “the production, distribution and consumption of commodities.” (I am paraphrasing, I did not look it up.) This was in sharp contrast with the government’s sweeping rationale that anything that substitutes for a market good is “economic.” No one, well at least not me, anticipated the Webster’s dictionary definition, which greatly limited the scope of the Raich decision. Think about the 5 limiting “considerations” in Comstock. Are not future litigators entitled to utilize these factors in the future? (Notice, however, that the government and most mandate defenders do not take them very seriously when they claim that Chief Justice Roberts MUST uphold the mandate because he joined the opinion in Comstock.) What if the hypothetical opinion says that, because health care is genuinely unique — one of kind — mandates are *only* usable with health insurance? I am not saying they will write such an ad hoc opinion. Indeed, I fear they would not. And the government does not actually assert this limited a rationale. But supposing the opinion was written that way. Would a defender of enumerated powers need to ignore these limitations? Don’t we have to wait and see?
I think Randy is clearly right in this paragraph. On one hand, a hypothetical opinion upholding the mandate could be written very broadly to eliminate future Commerce Clause challenges. On the other hand, such an opinion could be written very narrowly to permit and even encourage lots of future Commerce Clause challenges. So far we seem to agree. The problem, though, is that Randy’s position above seems inconsistent with the argument mandate opponents have been making that if the mandate is upheld, it will mean the end of limits on federal power. As Randy shows in the paragraph quoted above, that’s not the case: There certainly are ways to limit federal power and yet uphold the mandate.
I don’t mean to dismiss the basic rhetorical moves of cause lawyering. We all know how it works: To make your case, argue that adverse precedents are very narrow while claiming that the sky will fall if the next case goes that same way. If you lose the next case, shift positions and claim the sky didn’t fall, and that actually the decision in that case is not only very narrow but actually helps your position. (And if you win the next case, call it a pathbreaking case that redefines the entire field.) I think we all understand those moves, and the reasons for them. My point was just to suggest that if we insist on consistency between ex post and ex ante assessments of the significance of different decisions, we’re likely to get a more accurate set of claims ex ante.
On a mostly-unrelated note, Randy asks at the end of his comment if the fact that the Supreme Court has agreed to hear the case and scheduled 6 hours of argument has changed my understanding of what “constitutionality” is (quotes in the original). I’m not sure I understand the question. But the Court had to take the case when there was a circuit split; it’s a no-brainer grant. I think the 6 hours of argument shows that the Justices are intensely interested in the case and see it as very important. I give Randy a ton of credit for that surprising turn of events. His ideas really caught on in the political arena, which gave them legs in the judicial arena, and that changed the terms of the debate in a way that very likely led to the circuit split and therefore Supreme Court review. So kudos to Randy for that; it’s a truly remarkable achievement. At the same time, I’m not sure what that elevated level of interest at the Supreme Court is supposed to suggest about the meaning of “constitutionality.”