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The “But You Need To Strike Down Something!” Argument Against the ACA

[ 51 ] May 13, 2011 |

In comments, I think Pithlord gets at what legal arguments about the ACA ultimately boil down to: “In the real world, if courts never enforce a standard, then it isn’t real.” The commerce clause compels the Supreme Court to strike down something, so even if the arguments for doing so are notably bad, why not the ACA? In his brilliant decimation of arguments that the ACA is unconstitutional, Andrew Koppelman reports a colleague describing it this way: “(1) There must be some limit on federal power; (2) I can’t think of another one; and therefore, (3) the limit must preclude the individual mandate.” Section III of Koppelman’s paper is a good response to this argument, but to me there are two especially obvious reasons to reject it:

  1. U.S. v. Lopez Fortunately, we already have a precedent that sets limits on the commerce powers of the federal government.   And because the law struck down was actually very marginal to the modern federal regulatory state — the law in question didn’t directly regulate the economy, it wasn’t essential to a broader regulatory scheme, and there was no reason to believe (and no attempt by Congress to show) that the states were incompetent to deal with the problem — it didn’t logically threaten New Deal and Great Society programs that only a tiny fringe believes to be unconstitutional.   Because the individual mandate meets all of the crucial conditions that the Gun-Free School Zones Act didn’t, it would lie around like a loaded weapon whenever someone wanted to challenge a federal program and be incapable of principled application, leading to all kinds of crank District Court judges throwing out random parts of the U.S. Code that they don’t like and possibly being upheld in some cases by cranks higher up the appellate chain.   So, in other words, striking down the ACA solves a non-existent “problem” by creating what to any non-libertarian are very serious problems.
  2. Gonzales v. Raich Not only does striking down the ACA to send a message solve an imaginary problem, there was a much better recent candidate if one is so inclined, and the resolution of that case should make the constitutionality of the ACA a no-brainer.   To be clear, I think Raich was correct and would have joined the majority, but if you wanted to send some kind of symbolic message this case would have been a much better vehicle.   In terms of the conditions discussed above, the case for prosecuting people growing medical marijuana is weaker than the case for the legality of the mandate — in particular, since nobody disputes that people could have been prosecuted for selling marijuana to people without a prescription, there wasn’t the same free-rider problem that exists with medical insurance markets.   In addition, like Wickard this case reveals the silliness of the “activity/inactivity” distinction.   What made Raich’s actions subject to federal jurisdiction was not the “activity” of growing marijuana (which is in itself a state matter) but the “inactivity” of not buying it from the national market.    For Kennedy and Scalia to vote to strike down the ACA after joining Raich would be hackery of the worst sort — partisan and not “political” in the sense that all constitutional law is political.

I can understand why people sympathetic to arguments that the ACA is unconstitutional want don’t want to focus on the actual merits of the argument, but the pragmatic justifications really don’t work either.   Even if we accept that it’s symbolically important to set judicial limits to the federal commerce power, a regulation that is integral to a a federal regulatory scheme that addresses an important problem that states are clearly incompetent to solve independently would be a horrible, horrible place to draw a line in the sand.

Comments (51)

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  1. Bill Murray says:

    For Kennedy and Scalia to vote to strike down the ACA after joining Raich would be hackery of the worst sort

    and is there anything in their record that would incline one to believe they are beyond hackery of the worst sort?

  2. chris says:

    As I responded to Pithlord in the other thread, this is like saying that if nobody commits any murders, you need to pick someone and convict him of murder anyway, to prove you’re serious about convicting people of murder.

    The whole point of having a standard for convicting people of murder is *to convict the ones who actually committed murder*, and not the others. Arbitrarily chosen sacrifices undermine that standard, they don’t reinforce it or prove its reality.

    • Pithlord says:

      The question is whether the courts should accept at face value a Congressional determination that the law is about interstate commerce, or should subject that determination to evidentiary and logical scrutiny. For the law of murder to be like the law of Article I, a jury would have to accept every not guilty plea.

      • So much for co-equal branches, I guess.

        It’s the job of the courts to second-guess the factual findings of legislatures?

        This is the most extraordinary endorsement of judicial activism I’ve ever seen.

        • AAB says:

          If a legislature “found”, say, that life begins at conception, would you still think the Court shouldn’t second-guess that finding?

          • Joe says:

            “Life” here is being used in a constitutional sense, I believe, so it’s a question of law. It’s like the legislature determining Catholicism isn’t a “religion” and not protecting its free exercise.

            http://www.law.cornell.edu/supct/html/historics/USSC_CR_0492_0490_ZX1.html

            If “life” is merely a matter of scientific fact, it would be something else. But, the implications here is that a moral, religious and constitutional question is being made.

          • No, the court should not second-guess that finding of fact.

            A law passed which incorporates that finding should be struck down on other grounds, not on the courts substituting their own judgment about facts for that of legislatures.

            Findings of fact by legislatures need only meet the lowest level of scrutiny, rationality, which is extremely deferential.

            • Dan Nexon says:

              Given the kinds of “facts” that generally make it into Supreme Court decisions, I’m pretty positive we don’t want to leave it up to the justices.

              • Pithlord says:

                I guess I disagree with this. The forensic process is worse than the democratic process at accommodating interests or legitimately making value judgments. It is better at finding facts.

        • David M. Nieporent says:

          So much for co-equal branches, I guess.

          It’s the job of the courts to second-guess the factual findings of legislatures?

          This is the most extraordinary endorsement of judicial activism I’ve ever seen.

          That’s sort of backwards; the legislature making so-called “factual findings” (*) is really intruding on the province of the judiciary, not vice-versa.

          (*) And let’s not pretend that these are really anything other than statements of policy preferences. A legislature will “find” the earth to be flat, if it’s helpful to the law it wants to pass.

      • Joe says:

        Courts do not simply accept the findings and say-so of Congress here (Lopez, Boerne, Morrison) though given they are the legislative branch, Congress does have some presumptive weight in areas the Constitution expressly gives them power to regulate over.

        The ACA is a lousy “message case” since unlike various other laws, such as let’s say targeting a single abortion procedure, this is quite clearly a valid regulation of interstate commerce.

        • Scott Lemieux says:

          Right. I’m not sure why Pithlord thinks that the Sc gives unlimited to deference to congressional findings after Morrison. (The commerce holding in that case was acceptable, although the 14th Amendment analysis was an atrocity.)

      • chris says:

        The question is whether the courts should accept at face value a Congressional determination that the law is about interstate commerce, or should subject that determination to evidentiary and logical scrutiny.

        What relevance does that have to PPACA, which would easily pass that scrutiny?

        This seems to be moving away from the thread-spawning claim that *something* has to be struck down pour encourager les autres.

        • What relevance does that have to PPACA, which would easily pass that scrutiny?

          Perhaps he meant the individual mandate, which by itself might not so easily pass that scrutiny.

          The answer to which is, there’s no such thing as the individual mandate by itself. It’s part of the overall PPACA which, as you say, easily passes that scrutiny.

      • I take back my comment.

        “The individual mandate is about interstate commerce” is not a finding of fact.

        “The individual mandate is necessary to avoid a free-rider problem that may arise from other parts of this legislation” is a finding of fact.

        • Joe says:

          SEC. 1501. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.

          (a) FINDINGS.—Congress makes the following findings:

          (1) IN GENERAL.—The individual responsibility requirement provided for in this section (in this subsection referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2)

          • as a result of the effects described in paragraph (2)

            Which goes on to describe the role of the individual mandate in making the overall system work. (eg, the free rider problem).

            • Joe says:

              “The individual mandate is about interstate commerce” is not a finding of fact.

              The quoted finding seems to basically say just that.

              A bare statement like that might not be enough w/o supporting detail. But, appears to be “a finding of fact.”

    • Hogan says:

      Apparently the Third Amendment is dead letter, since it’s never been invoked to strike down an act of Congress.

  3. The Donalde says:

    Pretty much academic, isn’t Wittle Scotty? ObamaCare sucks.

    • hv the blundering jokekiller says:

      Elaine: Do you see the irony here? You’re rejecting someone because they’re bald.

      George: So?

      Elaine: YOU’RE BALD!

  4. Pithlord says:

    I should say I am not in favor of striking down the ACA, and I don’t know whether Kennedy will be either. I would agree that if a constitutional provision cannot be offended by any legislation that any actual legislative body is likely to pass, it’s dead. For Breyer, Ginsburg, Sotomayor and Kagan, it would be fine if the enumeration of powers in Article I died that way, but I don’t think it would be fine with Kennedy. So the ACA may survive, but if that happens, Kennedy is going to want to show Article I and the principle of enumerated powers still has a pulse.

    If I were made all-powerful philosopher king of the US Constitution (or, close enough, Justice Kennedy), I’d require that the impact of legislation on interstate commerce be significant and to refuse to defer completely to Congressional determinations on the subject. A balancing test. The ACA should still pass, but not everything should pass.

    • Scott Lemieux says:

      You’re still not saying why Lopez doesn’t count.

    • Joe says:

      The Supreme Court DID declare unconstitutional legislation that was claimed to rest on the Commerce Clause. As noted, if more should be done, the ACA is a lousy place to start.

      It also declared various means of regulation not “proper,” such as “commandeering” state officials into a regulatory scheme (Printz) or requiring state legislative action (NY v. U.S.). Long past, it said things like the placement of a state capital was up to the state. The SC also blocked suits against states, even by their own residents, even if used to enforce the Commerce Power.

      There is certain provisions, like what a “high crime” means, that are largely political. I don’t find the provisions therefore of no value or meaningless. Also, the fact some libs would allow more legislation is balanced by conservatives who do a piss poor job of enforcing other provisions.

      There are nine justices though and at least five continuously DID provide limitations on the Commerce Power. Why these other cases, along with political checks, is supposed to be ignored is unclear.

      • Scott Lemieux says:

        I think part of the issue here is that Pithlord, coming from the Canadian context, is predisposed to think of the judiciary as crucial to preserving limits on federal power. But the cases aren’t symmetrical. In a country with a very centralized Westminster system where Parliament has historically been dominated by two provinces, I can see a case for an increased judicial role. But between the Madisonian proliferation of veto points and the grossly malapportioned Senate, an excessively powerful federal government or a federal government dominated by the interests of a few populous states is (to put it mildly) not a problem that requires courts to strike down random laws to solve.

    • AAB says:

      Where do you stand on U.S. v. Morrison?

    • mpowell says:

      I’m still having a hard time understanding why Scott feels that this argument was serious enough to deserve a full post.

      The idea that establishing significance in every article of the constitution to some person’s standards is more important than public policy on its merits is delusional. Ironically, I can think of at least one personal acquaintance for whom this kind of reasoning might be appealing, but that doesn’t alter my judgment regarding its merit.

    • rea says:

      I would agree that if a constitutional provision cannot be offended by any legislation that any actual legislative body is likely to pass, it’s dead.

      With all respect, that’s silly. What if congress recognizes the existence of constitutional limits on its power, and tries not to break them? You’re really saying that kind of behavior on the part of congress means that the constitutional limits on the power of congress are dead?

      • rea says:

        Is the Third Amendment a dead letter because nobody has violated it in the history of the republic?

        • Joe says:

          The 2CA held once it was violated (applied to state militia) and I have read analysis that suggests it could very well have been violated in various instances, including during the War of 1812.

          • rea says:

            Well obviously, the individual mandate violates the 3rd Amendment–it’s also a bill of attainder and a patent of nobility–because otherwise we’ll all be dukes with houses full of soldiers right before congress legislates to have us beheaded.

      • elm says:

        Who was it who said something along the lines that when you have real power, you don’t need to actually use it.

        Seems like Pithlord only thinks power exists when the person with power feels compelled to show off.

  5. CJColucci says:

    So we have to blow up a bunch of Iraqis after we’re hit by a bunch of Saudis working for an outfit holed up in Afghanistan because, goddamit, we can’t have Saudis out of Afghanistan blowing up Americans. The health care litigation is the Iraq War of commerce clause jurisprudence.

  6. David M. Nieporent says:

    To be clear, I think Raich was correct and would have joined the majority,

    So, let’s work this out. You routinely snark that there are no conservatives who care about structural issues of federalism; these are just pretexts for arguments about preferred policy outcomes. But in your case, you admit you put structural issues — specifically, worship of unlimited federal power — ahead of policy outcomes. (Either that, or you actually think that medical marijuana should be banned.)

    • dave says:

      Putting aside the transparent nonsense that liberals’ preferred structural preference is “worship of unlimited federal power” I can’t figure out the complaint here.

      Scott apparently favors coherent structural frameworks in supreme court jurisprudence (broad commerce clause) even where they go against his policy preference (medical marijuana) and thus routinely chastises conservatives who pretend to favor a structural framework (strong federalism) except when that framework goes against conservatives policy preferences (partial birth abortion, DOMA, etc.)

      What’s your criticism here?

    • Scott Lemieux says:

      But in your case, you admit you put structural issues — specifically, worship of unlimited federal power — ahead of policy outcomes. (Either that, or you actually think that medical marijuana should be banned.)

      As a policy matter, I of course think that the prosecution of Raich and the statutes that authorized that prosecution are bad. As a matter of constitutional law, I think the prosecutions are legal. While I obviously don’t believe in mechanical jurisprudence, I do believe that you have to apply constitutional doctrines with some degree of internal consistency.

    • Was this meant to be a charge of hypocrisy?

      Scott routinely chastises conservatives for not really believing in constitutional doctrines, but rather, using them as pretexts to get the policy they want.

      He then puts his money where his mouth is, and adheres to constitutional doctrine, even when it works against the policy he wants.

      OK. Good for Scott.

    • Scott Lemieux says:

      And, of course, what Dave and Joe said. I’m critical of conservatives who, say, pretend to be “federalists” but support every federal abortion regulation to come down the pike. Since I am willing to adhere to my constitutional beliefs even when they contradict my short-term policy preferences, I think I’m being…perfectly consistent. So I’m not sure what your point is.

      • David M. Nieporent says:

        My point is that you’re not merely “critical of conservatives who pretend to be federalists but…”; you routinely argue that there aren’t really any federalists, that anybody who claims to be a federalist is lying because federalism is just a pretext for enacting certain preferred policies.

        • Scott Lemieux says:

          I still don’t understand your objection. Does an essential indifference to “federalism” mean that I also have to support every exercise of constitutional authority by the federal government? To be consistent, I should support a frivolous lawsuit arguing that the Bush tax cuts or the Iraq War were unconstitutional? I don’t get it.

  7. Joe says:

    What made Raich’s actions subject to federal jurisdiction was not the “activity” of growing marijuana (which is in itself a state matter) but the “inactivity” of not buying it from the national market.

    Wasn’t the point that there was a threat of leakage and the leaked pot would directly affect the interstate market of drugs? There isn’t a “national market” in pot akin to the wheat in Wickard. She quite ‘actively’ (and I find distinction stupid, so I’m not defending it) involved in growing and consuming pot. Her “actions” affected interstate commerce.

    I agree it is a closer case than the ACA. I’m sympathetic to O’Connor. Anyway, seems like a stronger liberty case. Lopez too actually, though it came too soon for the 2A argument to work as well. The 2A is logically applied to give states the discretion to pick their own local gun policies. That case in fact was a lot better than Heller, which blocked just such discretion.

  8. Joe (not that one) says:

    I said this on Volokh’s blog, but anti-mandate folks seem to be playing a neat little game of Underpants Gnomes:

    1.) If the mandate stands, Congress could make you buy any product or service. [ed: assuming it is part of a broad commercial regulatory framework]

    2.) ???

    3.) Therefore, Congress could do anything and the Commerce Clause would have no limits.

    As fellow common, well, commenters on here will attest, I have begged and pleaded with them to explain what the “???” is. No luck. The closest anyone has come is a few people saying that Congress will then just say that whatever silly hypothetical law is at issue is “related” to commerce, which completely ignores the holding in Lopez, but whatever. (It also seems completely ludicrous to invalidate a provision that is unquestionably intended to address commercial ends because future Congresses might lie about the purpose of hypothetical noncommercial laws, but whatever to that, too.)

    The worst part about it is that Barnett’s argument is very literally that the mandate is unconstitutional because it violates the so-called “non-infinity” principle embodied in Lopez, and neither he nor his like-minded travellers seem to grasp that it is just an awful argument because as long as someone shows any hypothetical Commerce Clause limit — Congress can’t establish a federal police force to patrol the hallways of public schools and arrest ruffians, for example — the argument automatically fails at that point.

    • Scott Lemieux says:

      More to the point, as long as Lopez remains good law no other case can establish an “infinity” principle.

      • Joe (not that one) says:

        In fairness to the anti-mandate folks arguing this, I think that this is their point. If Congress can make you buy health insurance, it can make you buy anything, so therefore it can do anything (this last logical leap is what I cannot understand) — and therefore, it is inconsistent with the limited Commerce Clause power announced in Lopez.

        Though they have never explained why the law invalidated in Lopez could somehow be recast as a purchase mandate.

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