Archive | Commerce Clause

Legal Action and Political Action as a Two-Track Strategy for Opposing Obamacare

In a recent post, I suggested that Obamacare will be almost impossible to repeal through political action. History shows that it is extremely difficult to eliminate entitlements. In addition, repeal would require Republican congressional majorities and a Republican president; I doubt we will get both simultaneously for years to come. Although various state governments and conservative and libertarian activists are planning to file legal challenges to the bill, I also doubt that lawsuits alone can achieve that goal. The Supreme Court is reluctant to take on the political branches of government on major issues that are a high priority for Congress and the president. When it has done so in the past (as in the 1930s), it has usually lost.

But while neither legal nor political action is likely succeed by itself, a two-track strategy combining the two stands a better chance. Unlike most high-profile policy initiatives enacted with strong presidential and congressional support, Obamacare is generally unpopular. Polls show substantial opposition to it, with opponents outnumbering supporters by 10 to 20 points (see here and here). If majority opinion continues to oppose the bill and Republicans make big gains in November as a result, the courts might be less hesitant to strike it down. They will not face any political retribution if they strike down a bill that most of the public and a new congressional majority actually opposes. Indeed, their public standing might even increase if they did so. As co-blogger Randy Barnett puts it:

[I]f this legislation is popular, they are unlikely to strike it down. But if it is deeply unpopular, and one or both houses of Congress flip parties as a result, then the legislation is much more vulnerable. Assuming the Supreme Court follows the election returns, as “realists” claim.

We [...]

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Gail Heriot and Peter Kirsanow on the Akaka Bill

In today’s Wall Street Journal, Gail Heriot and Peter Kirsanow of the US Commission on Civil Rights have an interesting op ed criticizing the Akaka Bill, which I myself criticized on federalism grounds in this post:

Last week, the House of Representatives, in a largely party-line vote, passed the Native Hawaiian Government Reorganization Act. Popularly known as “the Akaka bill,” this piece of legislation might turn out to be this Congress’s single most calamitous decision.

The bill creates a complex federal framework under which most of the nation’s approximately 400,000 ethnic Hawaiians can organize themselves into one vast Indian tribe. It endows the tribe with the “inherent powers and privileges of self-government,” including the privilege of sovereign immunity from lawsuit. It also by clear implication confers the power to tax, to promulgate and enforce a criminal code, and to exercise eminent domain. Hawaii will in effect be two states, not one.

The method used to create this tribe should make everyone squeamish. The bill delegates the delicate task of deciding who may join the tribe to a federal commission appointed by the secretary of the Interior. Ultimately, the tribe itself will have the power to expel members or invite new ones.

Earlier versions of the bill demanded that the secretary appoint only ethnic Hawaiians as commissioners. In the current version, only those with “10 years of experience in the study and determination of Native Hawaiian genealogy” and “an ability to read and translate . . . documents written in the Hawaiian language” may serve on the commission. These commissioners will examine an applicants’ backgrounds to ensure that only “qualified Native Hawaiians” with the right amount of Hawaiian blood join the tribe….

First, the Akaka bill privileges what is in fact a race, not a tribe. The very act

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Federalism and the Akaka Bill

The House of Representatives recently passed the Akaka bill, H.R. 2314, which would give native Hawaiians the power to establish a new “tribal” government modeled on that of Indian tribes. Most of the debate over the bill has focused on the racial aspect, since it apparently seeks to create a government entity under the exclusive control of a single ethnic group. This may be a violation of the Equal Protection Clause. Whether this constitutional objection is valid or not, I think there are serious constitutional federalism problems with the legislation.

I. The Commerce Clause Doesn’t Give Congress the Power to Create an New Indian Tribe for Native Hawaiians.

Supporters claim that Congress has the power to enact this bill under the so-called Indian Commerce Clause, which gives Congress the authority to “To regulate Commerce . . . with the Indian tribes.”

As legal scholar and US Commission on Civil Rights Commissioner Gail Heriot pointed out in her testimony against the bill, this is “a thin reed indeed upon which to predicate a power to create a tribal government.” Heriot emphasizes that the power to regulate commerce with existing Indian tribes does not include the power to create a wholly new tribe:

The United States has long recognized the sovereign or quasi-sovereign status of certain tribes. But until now, it has done so only with groups that have a long, continuous history of self-governance. Tribes were treated as semi-autonomous entities, because they were; they had never been brought under the full control of both federal and state authority. Federal policy toward them was simply an appropriate bow to reality. To withdraw recognition to any such group without very good reason would be an injustice.

By retroactively creating a tribe out of individuals who are already full citizens of both

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Comstock and National Security Detentions

Co-blogger Ken Anderson asks:

Here’s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be. Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road? Or am I just seeing the world too much through a national security lens?

These issues were not discussed in the briefs of the parties, the oral arguments, or any of the amicus briefs I have seen (though I haven’t read all of the latter). Even if Comstock wins, I don’t think the decision will have much impact on national security detentions. The Comstock litigation only addresses Congress’ power to confine people using its powers under the Commerce Clause and the Necessary and Proper Clause. The detention of terrorists and other enemy combatants is authorized by some combination of Congress’ power to declare war, its power to “raise and support Armies” (which presumably includes those personnel responsible for holding enemy prisoners); its power to establish laws for the “government and regulation” of the armed forces (including procedures for detaining enemy combatants), and its power to “define and punish” offenses under the “law of nations” (which includes the power to punish enemy combatants who have committed war crimes). Some detentions might also be authorized by the president’s power as commander-in-chief, though in my view such detentions are subject to congressional regulation. [...]

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Assessing the Comstock Oral Argument

Corey Rayburn Yung has a detailed discussion of today’s Comstock oral argument. See here and here. He also predicts a 6-3 victory for the government. Other analysts gave widely differing predictions. Regular VC readers may recall that Comstock is the case where the government is defending a statute allowing it to civilly confine “sexually dangerous” offenders after the completion of their federal prison terms – even if the crimes for which they were originally convicted have no connection to sexual predation. Somewhat strangely, in my view, the government’s brief focused almost entirely on the Necessary and Proper Clause, and largely ignored potentially effective arguments that they could prevail under current Commerce Clause precedent. To my mind, the most telling exchange in the oral argument was this one between Justice Scalia and Solicitor General Elena Kagan:

JUSTICE SCALIA: General Kagan, you are relying on the Necessary and Proper Clause, right? You say: But necessary and proper doesn’t mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution.

Now why is this necessary for the execution of any Federal power? The Federal criminal proceeding has terminated. The individual is released. You could say it’s necessary for the good of society, but that’s not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he’s served his punishment.

GENERAL KAGAN: The Court has always said, Justice Scalia that the Necessary and Proper Clause, the question is is it necessary and proper to the beneficial exercise of Federal powers. And so this is,

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The Myth of an Expert Consensus on the Constitutionality of an Individual Health Insurance Mandate

In an important recent speech, Senator Max Baucus claims that there is a broad consensus among legal scholars (that the individual mandate is constitutional. He claims that “those who study constitutional law as a line of work have drawn th[e] same conclusion” as congressional Democrats. Similar assertions have been made in parts of the liberal blogosphere. For example, Think Progress denounces Republican Senators Ensign and DeMint for citing only “right-wing think tanks” in support of their claims that the mandate is unconstitutional, and chides them for supposedly being unable to cite “a single judge, justice or reputable constitutional scholar who believes that health reform is unconstitutional.”

There certainly are prominent constitutional law scholars who agree with Baucus. But the claim that there is an overwhelming expert consensus on the subject is simply false. As co-blogger Jonathan Adler points out, Baucus mistakenly cited him as a scholar who agrees with the Democrats’ conclusions even though he actually believes that the mandate is not constitutional. The “right-wing think tank” study cited by Ensign and DeMint was actually coauthored by co-blogger Randy Barnett, one of the nation’s most prominent constitutional law scholars, and an expert on the original meaning of the Commerce Clause (the provision usually cited as authorizing Congress to impose the mandate). Richard Epstein of NYU and the University of Chicago is another prominent legal scholar (one of the ten most cited in the country) who believes that the mandate is unconstitutional.

I certainly wouldn’t put myself on the same plane as Jonathan, Randy, or Richard Epstein. But I’m a professional constitutional law academic, federalism and the Commerce Clause are among my areas of expertise, and I think the mandate is unconstitutional too.

It probably is true that more constitutional law scholars believe that the mandate is constitutional than [...]

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The Constitutionality of an Individual Mandate — A Reply to Sen. Baucus

Yesterday, on the Senate floor, Senator Max Baucus quoted my August 22 VC post on the constitutionality of an individual mandate.  Specifically, he quoted the following passage:

In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate.

This quote was part of a longer speech in which Senator Baucus sought to show that many “prominent legal scholars” believe that “Congress has the constitutional authority to impose a requirement on individuals to maintain health coverage.”

While Senator Baucus quoted me correctly, I think he left out some important context and, as a consequence, may have created a mistaken impression of my views.

My August 22 post was a comment on an op-ed by David Rivkin and Lee Casey.  In response to their claim that an individual mandate was unconstitutional under current law, I argued:

While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme.

What I did not mention in that post, but have written repeatedly elsewhere, is that I believe that some of these “recent commerce clause cases,” most notably Gonzales v. Raich, were wrongly decided, and adopted an excessively expansive view of federal power under the Commerce and Necessary & Proper Clauses (see, e.g., here and here). Under these cases, I believe that it is difficult to argue that an individual mandate exceeds congressional authority. Under a [...]

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Senator Hatch & Stuart Taylor on the Constitutionality of an Individual Health Insurance Mandate

On Friday, Senator Hatch gave a major speech on the floor of the Senate on the unconstitutionality of a federal health insurance mandate that readers may find very interesting. Although the Senator favorably mentions my Heritage legal memorandum and introduced it into the Congressional record, his presentation of the constitutional problems with a mandate is both distinctive and powerful.

For a contrary assessment, readers may also be interested in Stuart Taylor’s reporting of the debate in the National Journal in which he contends that The Supreme Court Should Defer to Congress on Requiring Americans to Buy Health Insurance. Here is part of his take:

I don’t see a clear winner in these dueling arguments about commerce-clause precedent. I also think that it would be far better for Congress simply to increase taxes to finance the subsidies, which — while politically toxic — would raise no constitutional problem.

But I am nonetheless fairly confident that the justices would, and should, defer to the political branches here. The alternative would be to strike down the president’s signature initiative — something that no Court has done in more than 70 years, for good reason.

I know and highly respect Stuart Taylor, and always find his writings insightful, but I think he unintentially quotes a post of mine here on Volokh somewhat out of context. Here is what he quotes me as saying along with his response:

In an earlier exchange on the same blog, a colleague’s [Orin’s] suggestion that the justices would not pick a massive fight with a still-popular president backed by a large congressional majority provoked this biting retort from Barnett.

“So what ‘constitutionality’ really comes down to is whether five justices have the, er, nerve to strike down a popular act of popular Congress…. But how about a not-so-popular

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Regulating Inactivity Under the Commerce Clause

My co-blogger Randy Barnett has posted his very interesting analysis of why he believes that requiring health care insurance is unconstitutional under existing Commerce Clause precedents. A key part of his argument is that requiring health care insurance is not regulating commercial activity because it attempts to regulate inactivity:

To assess the constitutionality of a claim of power under the Commerce Clause, the primary question becomes, “what class of activity is Congress seeking to regulate?” Only when this question is answered can the Court assess whether that class of activity substantially affects interstate commerce. Significantly, the mandate imposed by the pending bills does not regulate or prohibit the economic activity of providing or administering health insurance. Nor does it regulate or prohibit the economic activity of providing health care, whether by doctors, hospitals, pharmaceutical companies, or other entities engaged in the business of providing a medical good or service. Indeed, the health care mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to “regulate” inactivity.

Proponents of the individual mandate are contending that, under its power to “regulate commerce…among the several states,” Congress may regulate the doing of nothing at all! In other words, the statute purports to convert inactivity into a class of activity. By its own plain terms, the individual mandate provision regulates the absence of action. To uphold this power under its existing doctrine, the Court must conclude that an individual’s failure to enter into a contract for health insurance is an activity that is “economic” in nature– that is, it is part of a “class of activity” that “substantially affects interstate commerce.”

Never in this nation’s history has the commerce power been used to require a person who does nothing to engage in

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Is Health Insurance Mandate Constitutional?

Head conspirator Eugene Volokh and I will be on a panel today at the Heritage Foundation at 12:30pm discussing the constitutionality of the proposed individual health insurance mandate. Senator Orrin Hatch will deliver opening remarks. I will question the constitutionality of such a mandate; I expect Eugene to be skeptical that a constitutional challenge would succeed. Details of the event are here. Here is how the event is described:

Can Congress require all Americans to buy a new Buick every year or pay a tax equivalent to the price of a used LeSabre? Some members of Congress claim that power in the health care debate. Indeed, all the leading health care bills being debated in Congress require Americans to either secure or purchase health insurance with a particular threshold of coverage, estimated to cost up to $15,000/year for a typical family. Such a purchase mandate has never been attempted. The purpose of this forced purchase, coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize the coverage for others. Sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or through the gimmick of unconstitutional tax penalties. The sponsors have struggled to analogize and justify the mandate under existing federal laws and court decisions, but those efforts all fail under serious scrutiny. Senator Orrin Hatch and a growing number of Congressmen argue the mandate is unconstitutional as a matter of first principles and under any reasonable reading of constitutional precedents, and it is very unlikely the Supreme Court would devise or extend current constitutional doctrines to save them.

The Heritage Foundation has assembled a panel of distinguished constitutional scholars to discuss the issue and its ramifications for the larger bill. Professor

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Debating the Constitutionality of an Individual Mandate

The latest installment of the Federalist Society’s “Originally Speaking” debate series features UC Irvine Dean Erwin Chemerinsky and Baker & Hostetler partner David Rivkin sparring over the constitutionality of an individual mandate.

We’ve had something of a debate over this subject here on the VC as well.  Our prior posts are collected here. [...]

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How Much of a Difference will the Administration’s New Policy on Prosecuting Medical Marijuana Cases Make?

Many critics of the War on Drugs, myself included, were happy to see the Obama adminstration’s new memo urging federal prosecutors not to pursue cases against medical marijuana users in states where such use is legal under state law. The administration’s policy could potentially offset some of the negative effects of the Supreme Court’s 2005 decision in Gonzales v. Raich, which held that Congress’ power to regulate interstate commerce gave it the authority to forbid the possession of medical marijuana even in cases where the marijuana in question had never been sold in any market or left the state where it was grown (I criticized Raich in this article).

However, as Jacob Sullum points out, the policy may not make much difference in practice, especially in California (the state with by far the biggest concentration of medical marijuana cases). The key sticking point is that the memo only applies to uses of medical marijuana that are in “clear and unambiguous compliance with state law”:

During his presidential campaign, Barack Obama repeatedly promised to stop federal interference with state laws that allow the medical use of marijuana. On Monday the Justice Department seemed to deliver on that promise with a memo telling U.S. attorneys to avoid prosecuting people who use or provide medical marijuana in compliance with state law.

The new policy sounds a lot better than the Bush administration’s refusal to tolerate any deviation from federal law in this area. But because of disagreements about what compliance with state law requires, it may not make much difference in practice.

This week’s memo . . . tells federal prosecutors in the 14 states that recognize cannabis as a medicine they “should not focus federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws

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First Circuit upholds federal ban on juvenile handgun possession

The decision is here, and includes extensive analysis of 19th and early 20th century state laws (and court decisions upholding them under state constitution RKBA provisions) against juvenile handgun possession, or sale of handguns to juveniles. The decision also rejects a challenge that the federal ban on simple possession in one’s own home exceeds congressional authority under the power to regulate interstate commerce. In Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act, 30 Connecticut Law Review 59 (1997), Glenn H. Reynolds and I argued that the interstate commerce power should not be used to regulate intrastate activity, especially activity involving controversial social issues like firearms or abortion. In a 1999 Issue Paper for the Independence Institute, I wrote a brief section (Part VII) which presents some policy arguments against the federal aw. As you’ll see by reading the First Circuit case, there are good reason why the juvenile delinquent should not have owned a gun. But I that there is a less restrictive alternative than the federal approach. [...]

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