Home / General / Judicial Activism, Part MMCCCXXVIII

Judicial Activism, Part MMCCCXXVIII


I have a Daily Beast article regarding the recent conversion of so many Federalist Society types to the virtues of aggressive judicial review of legislative enactments.

The HCR bill does put a lot of jurisprudential and political conservatives in a tricky position. Consider the view advocated by Orin Kerr, which is that

(a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I’ll stand by my prediction. I just don’t see lower courts finding these issues difficult, and I don’t see the Supreme Court likely to take the case. I recognize there’s always the theoretical possibility of the Supreme Court doing something totally unexpected — a Bush v. Gore moment, if you will — but I think the realistic possibility of that happening is less than 1%.

This strikes me as a wild underestimate of the odds, for reasons I touch on in the DB article. What’s interesting to me is whether Kerr thinks the SCOTUS should uphold the individual mandate under these circumstances, and if so why?

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  • cleter

    Look, the individual mandate is not fundamentally different than the requirement to purchase flood insurance that the federal government instituted in the 1960s. The constitutionality of mandated flood insurance for people in flood-prone areas was challenged in the 1970s, and it’s constitutionality was upheld. Done.

    Now, maybe the Roberts court would overturn that, and throw out the health mandate AND the 40 year-old underpinning of federal disaster preparedness, but if I was appointed by George “Heckuva Job” Bush, I’m not sure I would want to touch it.

  • “underestimate of the odds” — you mean, you think reversal is more likely than Kerr says? Just to be clear.

  • Incontinentia Buttocks

    arguments about an issue like the constitutionality of the health-care reform bill are, as a practical matter, simply a form of politics by other means. If that strikes you as an overstatement, try to find someone who supported the bill as a matter of policy, yet who nevertheless thinks its constitutionality is in doubt. Your search will be about as successful as a search for someone who is opposed to legalized abortion but believes Roe v. Wade was decided correctly.

    I’m generally sympathetic to legal-realist understandings of the function of our courts and there’s a side to me that likes the sweeping quality of this claim….but I’m not sure that it’s entirely true.

    You’re right that it’s hard to find someone opposed to legalized abortion who defends Roe, but there are plenty of people who at least claim to support abortion rights but who feel that Roe was wrongly decided (though I’ll admit that I question how much people like, e.g., Jeffrey Rosen or Will Saletan actually care about abortion rights). Similarly there was a sizable minority of people who favor strong gun control laws but believe that the 2nd Amendment confers an individual right that makes such laws unconstitutional.

    However, as a general rule, I agree: people almost never believe that he Constitution prohibits policies that they support and all-too-often seem willing to make strained arguments that it prohibits things that they disdain (see all the nonsense claiming that the filibuster–an appalling Senate procedure–is unconstitutional).

    • I’m just a lowly (non-trad) 1L, fresh out of my ConLaw class last semester, but I’m as progressive as they come and would support single-payer in a heart-beat. But will admit that I worry about the constitutionality of this bill – despite being personally assured by Con scholar Michael Dorf that it passes muster. It’s possible because I’m a cynical NDN and have seen the SCOTUS turn every single piece of federal Indian legislation on its head, but I think it’s because the individual mandate just feels so very wrong — as well as a potentially dangerous precedent that we don’t _have_ to set, as single payer doesn’t require profitability. However, I figure this SCOTUS, as opposed to the days of the Rehnquist states-rights CC decisions such as Morrison and Lopez, will certainly uphold the interests of their corporate supporters; thus, it probably won’t be overturned.

      So here’s one person who supports the policy, but questions the means.

  • Cathie from Canada

    Actually, if there is one thing in the insurance reform bill which is unpopular, it is the individual mandate. And if there is one thing in the health insurance reform that the insurance companies like, it is the individual mandate. Without it, people will just wait to buy insurance until they are on their way to the hospital, and the insurance companies will all go broke (thus leading to Medicare for all, so its not that I think that would be a bad thing.)
    So I wouldn’t be surprised to see some of this bluster die down as the politicians start to receive a few quiet phone calls from their friendly insurance company executives.

  • If the commerce clause empowers Congress to ban dilation-and-extraction abortion, it empowers Congress to use the tax code to enforce a requirement to purchase health insurance.

  • flounder

    Paul, perhaps it’s too meta, but I think a good way to head all this stuff off somewhat is to get Republicans defending the constitutionality of their federally-mandated tort reform dreams.

    I mean tort law has been the province of states for what, 200 years, and here in Arizona our State Constitution forbids the capping of damages as result of death or injury.

    I can’t think of a single thing in Obamacare that conflicts with AZ’s State Constitution, yet 50% of the Republican health care “plan” (i.e. cap damages and make the insurance commish of Mississippi the national insurance commissioner) is at odd with Arizona high-law.

    There has to a reason why there is a total blackout on asking Republican leaders why they think federally mandated tort reform is constitutional yet the individual mandate is somehow not.

    McCain’s legislative director is ducking me big time to avoid dealing with this. And none of the papers in my area or Phoenix will touch it.

  • kth

    The reason the Roberts court won’t overturn the individual mandate is that the consequences–contrary to their posturing, the only thing they care about–aren’t favorable to them.

    The mandate could easily be re-engineered as a general tax increase combined with a tax credit for everyone who can prove they are covered by a qualifying plan, and there’s nothing even remotely objectionable constitutionally about such a rework.

    Worse yet, if the Roberts court overturns the individual mandate, and there are no longer the votes for such a fix, the regulations against the insurers are still in place. So you’d have a situation in which no one would have to buy insurance until they got sick, but insurers would not be free to refuse them. An insurance company death spiral would quickly ensue, probably followed by some kind of public option or expansion of Medicare. In short, there’s no percentage in it for Roberts’ clients in the insurance companies.

  • Vlad

    What I don’t get is why people seem to be treating the individual mandate as solely a commerce clause issue. As I understand the HCR bill, the mandate is a product of Congress’s authority to tax, not just its authority to regulate commerce. And holding that Congress couldn’t levy a tax like the mandate would open up an unbelievable can of worms.

    • sugarbiscuit

      Bingo! We have a winner!

  • jpwf13

    (see all the nonsense claiming that the filibuster–an appalling Senate procedure–is unconstitutional).

    What I love is the recent nonsense claiming that having the house vote on the senate’s version of the bill was unconstitutional

    plus some noise or other claiming that the Filibuster is constitutionally mandated (yes and coming from some people who said the opposite 5 years ago)

  • superking

    The HCR bill does put a lot of jurisprudential and political conservatives in a tricky position.

    There is no such thing as a “tricky position” for jurisprudential and political conservatives because they have neither concern for consistency nor shame. If this got the S.Ct., we all well know that Roberts, Alito, Thomas, and Scalia would quickly write majesticaly masturbatory opinions striking it down without a second thought about judicial restraint or their prior expressed concern for originalism, federalism, strict constructionism, or any other doctrine they claim to fetishize. To quote Battlestar Galactica, “All this has happened before, and all this will happen again.”

    We should really stop being shocked.

  • WrongfulDeath

    Asking the courts to decide if overzealous socialists have overstepped their constitutional limits is not “judicial activism”.

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