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The Hidden Libertarianism of the Challenge to the ACA

[ 81 ] March 29, 2012 |

I have some thoughts at CIF about why the challengers to the ACA simultaneously argue that the mandate isn’t a regulation of interstate commerce and is so essential to a concededly constitutionalism regulation of interstate commerce that it can’t be severed:

Why would Clement advance this self-refuting argument? It tells us two things. First of all, there is a hidden libertarian agenda behind the modest-seeming argument that the mandate and only the mandate is unconstitutional. It’s no coincidence that one of the prime movers behind the constitutional challenge to the ACA – the esteemed Georgetown Law professor, Randy Barnett – is a radical libertarian who considers most of the modern regulatory state unconstitutional. The argument against the mandate is, at bottom, a libertarian one – comparable to pre-New Deal arguments that minimum wage laws and federal pensions are unconstitutional. It is necessary to conceal this to have any chance of getting five votes at the court, but the severance argument gives away the show.

There are also political reasons for opponents of the ACA to argue that the mandate cannot be severed from the rest of the statute. American political institutions, with their high number of veto points, very strongly privilege the status quo. Striking down the whole ACA would revert us to the status quo ante, in which the privileged interests favored by Republicans would make major changes to the American healthcare system nearly impossible.

Just striking down the mandate while leaving provisions such as the ban on discrimination based on pre-existing conditions, however, would create a status quo in which insurance companies would be desperate for change because they would be faced with a vicious circle in which healthy people fled the system, leading to ever-higher costs for everyone else. Nobody can predict what kind of fix Congress would create – it would depend on subsequent elections – but the challengers of the ACA could be faced with only a half-win or even a Pyrrhic victory. So, they would prefer that the act be struck down in its entirety.

The argument is really Lochner in disguise, which can also be seen in the recycled Glenn Beck Scalia and Alito favored us with throughout the oral argument.

One more point is that I would be cautious about excessive optimism should the mandate and only the mandate be struck down.   Barring an unusual Democratic landslide or huge transformations in American politics the fix would be far more likely to be a half-assed, weaker, less equitable version of the ACA than single-payer.   But the outcome would almost certainly be better than if the bill was struck down in its entirety.


Comments (81)

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  1. Anderson says:

    The argument is really Lochner in disguise

    Cue David Bernstein in 5 … 4 …

    • rea says:

      I had a discussion with Bernstein over Lochner a while back, in comments at, I think Crooked Timber. I guess he’s really a law professor, but he sure has a strange take on the law. He doesn’t think the holding of Lochner is relevant to what the case stands for.

  2. R Johnston says:

    The argument is really Lochner in disguise

    If by “in disguise” you mean “”.

    There is no disguise involved. The argument against the ACA is the argument that the regulatory and administrative states are inherently unconstitutional. It is an argument that if taken seriously requires the dissolution of the country because no modern state can function that way.

  3. Davis X. Machina says:

    Barring an unusual Democratic landslide or huge transformations in American politics the fix would be far more likely to be a half-assed, weaker, less equitable version of the ACA than single-payer.

    You’re an optimist. I expect to be exposed to the spectacle of a nation trying to address a 1919-style ‘flu epidemic with tort reform as its major weapon.

    • c u n d gulag says:

      Yes, but don’t forget the other major weapon:
      Insurance companies will be able, like the flu virus, to cross state’s lines!


    • Njorl says:

      Wouldn’t the opponents of reform be under pressure to act quickly? Reformers would seem, to me, to have all of the leverage if only the mandate is struck down.

      I just don’t see how they kill the mandate based on political motives, and suddenly turn off the politics.

      • Davis X. Machina says:

        The sudden surge of Freedom™ will distract us all from the absence of any alternative proposals.

      • Lee says:

        No, there is an immense status quo bias in American politics. Discontent with the American healthcare system was growing for years prior to the passing of the ACA. It was clear to many that the government provided universal healthcare was the best possible solution. The opponents of reform were able to avoid having to deal with healthcare politics without much political harm in the past. They will do so in the present and future.

  4. bobbo says:

    I could easily see the Court striking down the whole thing. The mandate is not necessary and proper and is therefore void. The mandate is necessary and proper to the execution of the rest of the law so the whole law fails. It’s absolutely incoherent, but when has that stopped these clowns? (See, e.g., Bush v. Gore)

    • catclub says:

      There are still lots of parts that are unconnected to the mandate – like the expansion of medicaid.

      I am amazed that all the previous unfunded mandate that Congress has foisted on the states have not made it to the SC – maybe because they would have no grounds?

      Raise your drinking age or we will cut road funding.
      If you take education funding, also change x,y and z. These are nothing new. The medicaid armtwisting is unrelated to the mandate.

  5. dp says:

    Any American law student who wrote the BS spewed by the Fab Five this week on a Con Law exam last semester would have flunked the class.

    My mind, it remains boggled.

    • R Johnston says:

      You have to admit that they’re looking to make con-law a really easy class. That’s what happens when you mandate that the concept of law doesn’t apply in the case of “constitutional” analysis and that it’s all just ad-hoc bullshit without even the pretense of principle. Once you reduce con law to unadulterated and particularly puerile sarcasm there’s not much left to it.

      • Holden Pattern says:

        Movement conservative judges have done more to rehabilitate Legal Realism as a theory of jurisprudence than all of the dreaded postmodernist Marxists in the legal academy.

        • R Johnston says:

          They do more than that. Legal realism, while promoting cynicism about the possibility that legal decisions are motivated by law, still allows for the possibility that there are some constraints somewhere on judges imposing whatever they want willy nilly, even if within the bounds of those constraints decisions are motivated almost entirely by policy preferences. The current crop of conservatives are completely unbounded in their application of policy preferences to decide cases and take legal realism one step further.

          And they’re even worse than that because they make no effort to explain their policy preferences through any sort of coherent principles. Justices deciding a case used to at least try to gin up a rule that could be applied by lower courts as a precedent, even if there was no legal basis for that rule. Legal realism in the past might have acknowledged that there were actual rules to come out of cases, even if those rules were merely expressions of personal preferences and not based in law, but now conservatives on the Supreme Court have completely abandoned the function of setting rules for lower courts to follow in future cases.

          The new legal realism is decidedly more depressing than the old legal realism.

          • Holden Pattern says:

            [C]onservatives on the Supreme Court have completely abandoned the function of setting rules for lower courts to follow in future cases.

            Oh, I don’t think they’ve abandoned that function. They’ve merely shifted the realm in when that function operates from the mostly-legal to the purely political. The rule is: “Do what the 5 most conservative justices would want you to do according to the current ‘policy’ commitments of the Republican Party.”

            • R Johnston says:

              The problem with calling that a rule that can be applied is that such a rule quickly devolves into “Do whatever your best guess is that won’t be overturned, taking into consideration the limited caseload of the Supreme Court” and then devolves further to “do whatever you feel like because even if you are overturned you have lifetime tenure and you can’t be overturned in a way that’s detrimental to your career or even mildly embarrassing.”

  6. Joe says:

    On the Lochner front:

    Roberts: The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits on the Federal power, as opposed to limits on the States, which was the issue in Lochner.

    “Lochner” is a symbol of various things, including the belief that substantive due process protects us from eminently reasonable modern economic regulations and other cases from that era struck down FEDERAL laws on that ground.

    Roberts misses this “key” to Lochner.

  7. Davis X. Machina says:

    Roberts: The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is…

    Just a logical follow-on to Thomas’ position on the Establishment Clause, isn’t it?

  8. Murc says:

    “In disguise?”

    It seems to me the libertarian nature of the objections to the ACA are nakedly transparent. They’re features, not bugs. I haven’t seen anyone try to disguise or obfuscate them in any way.

    One more point is that I would be cautious about excessive optimism should the mandate and only the mandate be struck down.

    I have to admit that with the possibility of my dream becoming a reality suddenly looming, I’m having to consider what happens if I play the tape through to the end.

    What I start thinking is “Well, there’ll be a strong push to scuttle the rest of the ACA, of course, but the votes to override a veto in that regard don’t exist. We could pass a revised version of the mandate or a public option, but the Republicans will never go for that. That leaves us deadlocked, which is a plus in my view, but the insurance industry will be screaming bloody murder to be saved, which means that some bogus package will be cobbled together with a few progressive fig leafs. But all the Democrats need to do is stand firm and refuse to comprom-


    Well, fuck.”

    • Njorl says:

      There’s no way the SC puts the insurance industry’s nutsack in Obama’s plyers. They might risk tossing it to congressional Democrats – it’s likely that some Democrats will go along with some “compromise” – but one man is unpredictable.

  9. Simple m says:

    Good time for a massive bird flu epidemic to chastise the pols.

  10. It comes down to this: do either Roberts of Kennedy care enough about the image and legitimacy of the Supreme Court to avoid a decision that would almost certainly be a naked partisan policy repudiation of Congress? That’s a tough call. Kennedy has established that although it is sometimes a strain to rationalize it, he can whore out with the best of them. Roberts may be inclined to tread a little more carefully.

    • DrDick says:

      Kennedy, maybe. Roberts, I doubt it. Scalia, Alito, and Thomas, not even close.

    • Holden Pattern says:

      I think that you misunderstand the nature of legitimacy in the movement conservative worldview. Legitimacy is determined by power and outcome, not by fidelity to process.

      Dems wring their hands and worry that they’ll be attacked for not following “process”, while movement conservatives understand that “process” is a weapon to be wielded just like “civility”, and the winners will write the history.

  11. Hogan says:

    Farley was here.

  12. Malaclypse says:

    Good thing the Senate very much over-represents white and rural voters then. =)

    For now. Demographics is destiny. Rage on against the coming of the night, Anonatroll, rage on.

  13. bobbyp says:

    Severability guts big powerful interests.

    Invalidating the whole thing undermines the SC as an institution, and could well bring an unexpected end to conservative New Deal revanchism as a potent political force.

    My wild guess is Kennedy votes to leave this tar baby alone freeing the other four to revel in their originalist purity.

  14. Anonymous says:

    You can delete my comments all you want you dickless commies, but ObamaCare is finished.

    BTW Rarely, shouldn’t you be on RT giving Putin a big, sloppy blowjob? And how long until you REALLY decide to whore out and appear on CCTV English as well? Hu Jintao’s cock isn’t going to suck itself after all!

  15. John says:

    Marxism and Marxism-Leninism are not the same thing.

  16. Murc says:

    I love it when Farley cleans house. the threads become these amazing pieces of dadaist art.

  17. Anonymous says:

    Accusing somebody who wont say that one man masturbating inside another mans butthole is an act of love is accused of being gay. OoohhOoooOoh, how ORIGINAL!

  18. Anderson says:

    I can’t imagine going to anything like as much effort to post unwanted comments at RedState or any similar blog.

    It’s bizarre conduct, which makes speculations about Anon’s psychological motives inevitable. What is this guy getting out of it? Is his life away from the keyboard really so sad as that?

  19. timb says:

    Is Anonymous Goldstein himself?

    He’s a disgusting, racist moron….check

    Has he mentioned wrestling or asked anyone for money?

    Has he written 10,000 words where 1500 would be necessary?

  20. Jesse Ewiak says:

    As a side note, a special middle finger to any Nader ’00 voters from Florida out there. For all the GoreBush are the same calls I heard, I have a funny feeling the 2 appointments Al Gore would’ve made to the bench wouldn’t be on the verge of destroying the ACA.

  21. Incontinentia Buttocks says:

    Or for the Heritage Foundation c. 1993 and the inevitable GOP Presidential candidate, who invented the policy package the SCOTUS stands poised to invalidate.

  22. Medrawt says:

    I believe the GOP candidate is covered by the “Massholes” category.

  23. Sharon says:

    This the part of this challenge I don’t understand. The preferred policy of the GOP for the last 15+years has been the mandate. How do they leverage the market to cover all of those uninsured Americans?

    How do they implement their Medicare reform?

  24. Medrawt says:

    That’s not what Mr. Buttocks was saying.

  25. DrDick says:

    So you honestly admit that you are now openly fascist? That is a refreshing bit of honesty.

  26. Malaclypse says:

    Subtext never far from text with Darleen’s readers, is it?

  27. DrDick says:

    If you ever find it, let us know. I think you will need a microscope. BTW, I actually am a proud Marxist, so insult fail, dipshit.

  28. Steve LaBonne says:

    You guys are missing the sheer brilliance of “Suck my cock, Marxist”. It is nothing less than the ENTIRE content of contemporary “conservatism” expressed in a mere four words. Bravo, Anonymous.

  29. Surreal American says:


  30. Davis X. Machina says:

    In a dick-measuring contest, it helps to be an utter and complete dick….

  31. Steve LaBonne says:

    Are you giving lessons?

  32. Surreal American says:

    Can we ask you for pointers on that topic?

  33. Malaclypse says:

    Your argument is persuasive, but needs more Juche Dance Party. Please do better next time.

  34. Hogan says:

    Before you start the victory dance, aren’t you supposed to, I don’t know, score an actual touchdown or something?

  35. DrDick says:

    Very bad ones.

  36. Malaclypse says:

    We always win in the end.

    If you don’t count the Civil War, or Brown v Board, or Griswold, or Roe, or the CRA, or the ADA, or gay marriage, or DADT repeal. Or your inevitable descent into demographic irrelevancy.

  37. Malaclypse says:

    Darleen’s readership does, indeed, represent the Party of Ideas.

    She must be very proud.

  38. fasteddie9318 says:

    That’s fucking brilliant. I literally did laugh out loud at this, which almost never happens.

  39. Malaclypse says:

    You’ve had eight years to try. And every year, there are fewer and fewer old Fox viewers as a percent of the population. Every year, you become less relevant. You are nothing but old age burning at the close of the day. Rage on, dying troll, rage on.

  40. Surreal American says:

    Oh yeah that’s right. Wingnuts are federalists unless it’s not convenient for them.

  41. Malaclypse says:

    Not as much as Obama bugs you.

  42. Malaclypse says:

    Obama is about to be rendered completely impotent

    Subtext again becoming text.

    the Conservative Five and SCOTUS.

    SCOTUS and the Conservative Five would make a great name for a crappy band.

  43. DrDick says:

    That would be the party of really bad, insane and stupid ideas.

  44. Bill Murray says:

    I once was on an intramural basketball team called Ed Meese and the Porn Dogs

  45. Anonymous says:

    As opposed to Marxism-Leninism. Now THERE was a brilliant idea!

  46. John says:

    American Liberals are typically enormous fans of Marxism-Leninism.

  47. Anonymous says:

    The one I was trying to reply too is a “proud Marxist”.

  48. Big Dry says:

    Next time try the REPLY button.

  49. DrDick says:

    It is a much better idea than any you are capable of (or even capable of spelling). Also, as others observed upthread, Marxism and Marxist-Leninism are not the same thing, but I would not expect a low functioning moron like yourself to understand that, or anything else.

    BTW, did you know that every time you post here you make a contribution to the NAACP, Planned Parenthood, and the Human Rights Campaign? It creates ad revenues for our hosts who will contribute it to causes that drive you even more insane.

    Cha-ching, beeyotchez!

  50. Holden Pattern says:

    This the part of this challenge I don’t understand. The preferred policy of the GOP for the last 15+years has been the mandate.

    Well, apparently, the last 20+ years of that position was all a head fake to get the Dems to adopt a market-based approach in the hope that it would appease the Republicans. Good news, it worked! Or the Republicans got crazier, and the Dems became the old Republican Party.

    How do they leverage the market to cover all of those uninsured Americans? How do they implement their Medicare reform?

    The current crop of TeaTards that make up Republican base and leadership don’t plan to do the first at all except (a) tort reform and (b) race to the bottom just like credit cards — they plan to let people die or be ruined. As to the second, the Medicare reform plan is VOUCHERS, MAN! Which won’t increase at the same rate as costs, so that the elderly (not the current elderly, because those people vote) will gradually be forced into shittier and shittier plans sourced out of whatever state has actually reached bottom.

  51. R Johnston says:

    As to the second, the Medicare reform plan is VOUCHERS, MAN!

    I’m pretty sure the Medicare reform plan is to have it declared unconstitutional right after the ACA is struck down. If the ACA is struck down you can bet your bottom dollar that some federal judge is going to strike down Medicare within the year, and there’s no way that the Supreme Court blinks at it. There is no credible or even describable right-wing theory under which the ACA is unconstitutional and Medicare isn’t, and there is no judge who would strike down the ACA and balk at striking down Medicare. I suppose if you come at it from the left you could decide that universal health care is a substantive due process right and that privatizing government function is unconstitutional, but somehow I don’t think that if the ACA is struck down that that will be a viable line of argument or a desirable one to any winger.

  52. Holden Pattern says:

    @ R Johnston: Ah, but I think you are missing the key item here — old people like Medicare, and those crotchety fuckers vote, and a LOT of them vote Republican.

  53. R Johnston says:

    @HP: I’m not missing that at all, it’s just that there’s no way to stop some lower court from striking down Medicare once the Wingtard Supremes strike down the ACA and by the time it gets back to the Supremes they’ll be on board because otherwise they’ll have to admit they were wrong about the ACA and if there’s one thing they’ll never do it’s admit they could ever be wrong. I fully credit the conservatard majority with being unable to look ahead far enough to understand the consequences of striking down the ACA. If they don’t strike the ACA it will be because Roberts and Kennedy really can’t establish the cognitive dissonance needed to overcome the fact that the argument that the mandate isn’t severable demands that it’s constitutional, nor are they willing to sever the mandate and kill off the insurance industry.

  54. Holden Pattern says:

    @HP: I guess I feel like the Wingtard SCOTUS would get the high sign from some of the insiders not to queer the coot vote, and they would create a distinction without a difference (Roberts being the master of that art form), whatever rump moderate group is left in the court would sign on, and Medicare would survive.

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