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The ACA And Judicial Activism

[ 35 ] April 11, 2012 |

I have a piece up at the Prospect responding to Orin Kerr’s assessment of the various ways on which a decision striking down the ACA could be viewed as “judicial activism.”   My short answer is that in any sense of the term except for the abjectly useless tautological one (i.e. any decision I like can’t be “judicial activism”), it’s obviously judicial activism.

I did want to emphasize our major point of disagreement — whether striking down the ACA would be “judicial activism” in the sense of enlarging judicial authority versus the legislatures.   Kerr, assuming (correctly I think) that the Court would strike the law down with a relatively “minimalist” decision based on the “activity/inactivity” distinction, says “no,” because Congress would be able to achieve the same ends with some minor technical changes.  I argue that this fundamentally misreads the actually existing American legislative process and should also fatally undermine the substantive argument against the ACA:

I have one minor and one major objection here. The minor one is that I’m not convinced that a decision based on the “inactivity” distinction could be cabined quite as easily as Kerr assumes; the signal from the Supreme Court that it will start scrutinizing economic regulations in a way it hasn’t since the New Deal could well have broader effects. But even if we assume that this ticket will prove to be good for that day and train only, I have a bigger problem with No. 2, which ignores how congressional power actually works in the current system. Since control of any veto point is enough to stop Congress from acting, to say that Congress could just pursue the same goals by tweaking the system is highly misleading; this would be practically impossible for the foreseeable future. And since the liberty interest involved is ipso facto trivial (if Congress could pursue the same ends by enforcing the mandate as a “tax” rather than a “penalty,” how serious can the invasion of state sovereignty or individual freedom be?), this is exactly why striking down the ACA on these kinds of grounds would be so disturbing.

Should the Supreme Court strike down the centerpiece legislation of an incumbent administration, it would be the first time in more than 70 years since this has happened. To take this kind of extraordinary step surely requires some compelling interest being at stake. But the actual argument made by all of the challengers (with the exception of the radical libertarians who think the entire modern regulatory state is unconstitutional) is that Congress could not only pursue the same means with what are essentially terminological changes, it could pursue the same means through more coercive ends by just making Medicare universal. By definition, then, whatever violation of state sovereignty or individual liberty the ACA is supposed to be responsible for is negligible. It certainly can’t justify what would be an extraordinary act of judicial activism.

Incidentally, Eric Rauchway recently made the same mistake from the left. Yes, it would be great to see Congress just re-pass the same legislation in slightly different form and dare the Court to strike it down like it did in the 30s. But…well, I trust that the problem with the historical analogy is evident. Even if we had a Democratic Party Worth Its Salt and Obama wasn’t the Incredibly Disappointing First Democratic President to Govern From the Center Except For Every Other One (with the possible exception of LBJ on domestic policy), I’d love to hear how exactly the Democratic Party is supposed to re-pass the ACA while a Republican Party that provided zero votes to the original bill controls one legislative veto point outright and has sufficient votes to block any changes in the other.

Comments (35)

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  1. dan says:

    Can I just quote the key paragraph from Prof. Kerr’s post, since it basically proves that such a decision would be “activism” under all of his definitions other than “decisions that don’t come to my preferred policy outcome”?

    On the other hand, I think a decision striking down the mandate would be justifiably criticized as activist in the #3 precedential sense. As I have explained many times before, I think existing commerce clause precedents combined with the presumption of constitutionality point pretty clearly in the direction of upholding the mandate: There’s a reason why it never occurred to any one that a mandate might be constitutionally problematic until this very controversial legislation was written, went through the legislative process, and was about to pass. It wasn’t until that late stage that many critics of the legislation came to the conclusion that the precedents actually pointed the other way (a judgment timed in such a way to suggest motivated reasoning is at work). So given that I read the precedents that way, I think a decision pushing the law in the opposite direction (however justified or unjustified) would be fairly labeled activist in the #3 sense.

  2. ralphdibny says:

    I really don’t understand how anyone could be naive enough to argue that “Congress could just pass it again.” They followed the rules last time, and then the wingnuts changed the rules. Who in their right mind doesn’t see that, even if Congress could pass it again, the wingnuts would just pull away the football a second time? Democrats need to stop whining about following the rules and bone up on their Calvinball.

  3. Jesse Levine says:

    Not sure I agree with your argument that the current state of affairs in Congress is determinative of judicial activism as it would have been tougher in a practical sense to make that argument pre 2010, but a decision to strike down ACA would clearly be judicial activism. The slippery slope questioning was clearly bizarre.

  4. Joe says:

    Prof. Kerr is appreciated for challenging his VC cronies on the reasonableness of their constitutional arguments on this law but the piece you respond to is his too standard coy attempt to not go too far with such criticisms. He after all is still conservative, was a special adviser of Sen. Cornyn and is game to restrict Congress here some more if done the right way.

    Take the “very easily circumvented” bit. If so, striking down this law is in effect rather petty. Now, it isn’t “very easy” as shown by how hard it was to pass the law. But, the opponents say some great threat to liberty is involved. If free speech was at stake and the same basic thing could occur by a small tweak, what’s the point?

    • Scott Lemieux says:

      This is the fundamental problem. The claim that a ruling would be “easily circumvented” is empirically wrong, and it underscores just how feeble the arguments against the ACA are.

  5. Joe says:

    Some five part test, btw, is nice and all, but honestly, the term “judicial activism” is usually used in a partisan way. It often is used as an epithet too. A neutral use would likely enable it to be used positively (e.g., Gideon v. Wanwright is “activist” but not malign). I appreciate a real discussion on the term’s use and Kerr probably adds to the conversation. But, it’s an uphill battle.

  6. Murc says:

    I actually think you’re being a bit unfair to Kerr with regard to the whole “Congress could just pass a different law that achieves the same ends” thing.

    Kerr is… well, he’s absolutely right about that. Congress DOES have that power. It COULD do so. A narrowly tailored (I dislike the term ‘minimalist’ and the value judgments it implies) decision that essentially says “Okay, you guys done fucked up here” wouldn’t represent an expansion of judicial power with regard to the legislature.

    You are, of course, absolutely correct that Congress would not do so; the current Congress doesn’t have the votes. But it still possesses the power to do so. It would simply chose to not exercise it. Congress chooses NOT to do a lot of things that it absolutely has the power to do so.

    It seems like your priorities are a bit flipped around. Not having the votes to get a modified ACA through is a big damn deal, but with regard to the specific issue of how this expands or changes judicial power (which is what you and Kerr were talking about) that should be your MINOR complaint. Your MAJOR one should be that the Court is signalling that its prepared to return to pre-New Deal interpretations of legislation just as soon as it can get away with it. That IS a radical changing of the power dynamic.

    • Scott Lemieux says:

      See above. Congress might theoretically have the power to re-pass the bill, but Kerr’s argument that the rule could be “easily circumvented” is absurd. In American politics, there’s nothing “minimalist” or “narrowly tailored” about restoring the legislative status quo ante. It hugely stacks the deck in favor of the outcome conservatives on the Court prefer and hence is a substantial expansion of judicial power.

      • Murc says:

        I’m just not sure why the court should be obligated to give a damn about Congress’ dysfunctions. Congress has a lot of formal power that it flat-out refuses to exercise, but that doesn’t change the fact that those powers haven’t been taken away in any form.

        Kerr is absolutely correct when he says that the rule could be “easily circumvented.” It COULD be. Congress could chose to do so. It could chose to do so very quickly and easily. This is a power it has! The fact that it would chose NOT to do so is irrelevant to the fact that it could.

        And having said all that, I still question the relevance of what Congress might or might not choose to do to the issue at hand.

        • R Johnston says:

          The relevance is that the Constitution does not govern trivialities no one cares about. It governs fundamental rights and the structure of the government. When a court says “this law is unconstitutional because you called it a penalty rather than a tax” the court is disavowing the entire concept of a constitution.

          • Murc says:

            The relevance is that the Constitution does not govern trivialities no one cares about.

            A lot of people care about the quartering of soldiers these days, do they?

            • dan says:

              The Third Amendment may not cover a right that is often violated, but yeah, it is a nontrivial one. Extremely nontrivial, one might say. But if you disagree, well, just go ahead and start housing and feeding government troops by yourself and see how you like it.

          • Anonymous says:

            I don’t understand how the supreme court can not rule this unconstitutional. There was no representation for the American people when this bill was passed – Nancy told the Senate just vote for it and read it later, how can congress pass a bill that no one knew what was in it- this is called taxation without representation–which is unconstitutional’

        • Scott Lemieux says:

          I’m just not sure why the court should be obligated to give a damn about Congress’ dysfunctions.

          Well, if you’re going to make a “minimalist” defense of the Court premised on the idea that Congress could “easily circumvent” a decision, the fact that under extant institutional conditions there’s never anything “easy” about passing major new legislation is sure as hell relevant.

          And it’s additionally relevant, I reiterate, because the liberty interest being asserted here is absurdly trivial. It seems worth noting that the “narrow tailoring” language is particularly inappropriate here. Narrow tailoring suggests courts urging legislatures to pursue legitimate ends in less intrusive ways. Here, the courts would be saying that Congress can pursue the same ends through means that are either functionally indistinguishable or more coercive. Striking down the ACA on this basis would be the ultimate example of the Roberts Court’s bullshit-minimalism, and hand-waving about how Congress could in theory jump through this hoop if we had different institutional norms is silly.

  7. mb says:

    IMO, the ACA was a piss-poor law but not indefensible. They just did a piss-poor job of defending a piss-poor law. The inactive/active problem is specious. No one, outside the pretty insignificant hermit cohort, is truly inactive in the healthcare market. We might want to be but good luck with that. Life is actually just a giant waiting room. You think you’re inactive, but your number might be next.

    What I’m curious about is what happens to the presidential race if ACA is overturned in whole. Seems that so much of the not=very-great enthusiasm on the right is predicated on the great sin of passing the healthcare reform they always said they wanted. If the Supremes take that off the table, what’s left to fire up the base? Of course, Obama will still be black, so there’s that.

    • Incontinentia Buttocks says:

      A lot of people have made this argument, but it seems bizarre to me. What’s left to fire up the base? The base thinks that the Obama Administration is unconstitutional from top to bottom (starting with the President himself, who many believe was born outside the US).

      A ruling against the ACA will be taken to confirm this view.

      I just don’t understand how that makes the base less fired up. They can still blame Obama for gas prices, unemployment, abandoning Israel, and any number of other imaginary sins.

  8. R Johnston says:

    Since control of any veto point is enough to stop Congress from acting, to say that Congress could just pursue the same goals by tweaking the system is highly misleading; this would be practically impossible for the foreseeable future. And since the liberty interest involved is ipso facto trivial (if Congress could pursue the same ends by enforcing the mandate as a “tax” rather than a “penalty,” how serious can the invasion of state sovereignty or individual freedom be?), this is exactly why striking down the ACA on these kinds of grounds would be so disturbing.

    This is precisely why it’s hopelessly naive to believe that striking down the ACA would be the first step towards single payer or some otherwise better implementation of universal coverage even if Democrats in support of such laws controlled the veto points needed to pass such laws. The Supreme Court is not about to strike a law on the basis of a trivial rule that has no substantive effect on the law and merely sets up a procedural hoop that can be jumped through without any effort so long as you know it’s there. The Court might frame a decision such that that’s a possible interpretation in the hopes that the issues involved don’t make their way back up to the Court for another 20 years, but when push comes to shove and the Court is faced with the same issues, in either the context of a reenacted universal coverage law or in the context of any other exercise of the commerce clause that can be equivalently framed as an exercise of the taxing power, the Court will not declare itself a trivial and petty institution.

    A Court that strikes down the ACA as some sort of alleged imposition on liberty will not hesitate to strike down single payer and of necessity calls the constitutionality of Medicare and Social Security into question.

    • dan says:

      A Court that strikes down the ACA as some sort of alleged imposition on liberty will not hesitate to strike down single payer and of necessity calls the constitutionality of Medicare and Social Security into question.

      Given the transparent falsity of the “action/inaction” distinction, I see no reason why a true single payer system, if passed, could only be struck down by calling the constitutionality of Medicare and Social Security into question. Another, equally asinine distinction akin to “action/inaction” can be devised.

      Also, “single payer” is a phrase. An actual single payer system would be a fairly lengthy bill. The court could focus on one unpopular component, come up with a transparently false constitutional doctrine to hold that component unconstitutional, and then declare that provision inseparable from the rest of the law. That is exactly what the Court is doing now!

      • R Johnston says:

        The activity/inactivity “distinction” is not merely transparently false; it’s something that’s impossible for lower courts to apply in any kind of principled manner that pretends it to be true. Much like the tax/penalty distinction, it’s a matter purely of framing that has no possible substantive effect at all.

        You can draw up all the distinctions of the sort that you like; you’ll still leave all cases where the distinction allegedly applies up-in-the-air and called into question because there the distinction is content free and always can be manipulated to achieve a desired result.

        So long as there are judges and litigants who desire, as a policy matter, Social Security and Medicare to be killed off then the kind of “distinction” involved in striking the ACA calls the constitutionality of Social Security and Medicare into question. Once the Court announces that distinctions without any possible difference are matters of great constitutional importance, all bets are off on everything, because the only thing standing in the way of declaring any law unconstitutional is a judge who’s smart enough to frame it such that the distinction applies.

        • dan says:

          I don’t think you and I are in disagreement. You’re point is that if the court can create an “activity/inactivity distinction” that cannot be reconciled with precedent or existing law, it can strike down popular laws like Social Security or Medicare if it wants too. True, but my point is that if arbitrary and unfounded distinctions that don’t even succeed at meaningfully distinguishing between concededly valid laws and the laws being challenged can be adopted, the Court won’t even have to face the consequences of striking down Social Security and Medicare if it doesn’t want to — it can invent a distinction. To preserve them and strike down dongle payer should it want to if single payer ever passed.

  9. dl says:

    Hmmm…I’m not sure that in the texbook sense, any of Kerr’s examples–except for (4) “Striking Down an Established Law or Practice”–are really what has been meant by “Judicial Activism”.

    You could make a decent argument for–(2) “The decision expands the power of courts to determine the rules of our society”–but it is not really the core of what judicial activism is.

    In the abstract (3) is defensible–”The decision was not consistent with precedents.”–but there is usually sufficient room to debate whether a decision is consistent with precedent, so the definition is practically meaningless.

    I think (1) and (5) have never been thought of as judicial activism, until the recent push by conservatives to re-define the terms meaning after 60 years of railing against it as (4) became inconvenient.

    Under (4), of course, no debate about whether striking down ACA is activist.

    Of course, Barnett, in a typically obtuse follow-up post, endorses the most vacuous of the definitions, which is (5) “The decision was wrong.” Barnett: “Activism is the adoption of doctrine that contradicts the text of the Constitution” (…as I read the text, of course!)

    He even conveniently bolds the stupidest part of his analysis for the reader:

    “When speaking of constitutional adjudication, it is activist for courts to adopt doctrines that contradict the text of the Constitution either to uphold or nullify a law. In sum, it is activist for courts to substitute for the relevant constitutional provision another provision that they think, for whatever reason, is preferable. According to this definition, it is not judicial activism to strike down a statute that violates the text of the Constitution. To the contrary, it would be activist to do nothing in the face of legislation that runs afoul of the written Constitution.”

    • dan says:

      Kerr fails to point out that #5 really should be broken down into two different definitions. When a conservative defends Citizens United as not being judicial activism or argues that Kelo is, these are claims that make no sense under a definition that uses deference to public entries or a definition that uses consistency with established precedent. But at least I these cases “judicial activism” is being used as a poor shorthand for “failing to agree with my interpretation of the constitution.”

      Even this is better than what should be definition #6, a purely results oriented definition. Conservatives, after all, don’t have a problem with mandates or regulating inactivity, which is why they devised the mandate in the first place. To define “judicial activism” to mean “allowing to stand a law that I don’t like, even though it is constitutional under my interpretation of the Constitution” is going at beyond the weak #5 definition.

      • dl says:

        Yes, but most examples falling under (5), like Barnett’s, could just as well be called (6).

        The Constitution itself does not tell us in any definitive or meaningful sense whether the ACA is constitutional. Therefore, when Barnett says “any decision incompatible with the Constitution is activist,” he might as well be saying “any decision I don’t like is activist.”

        Which is why his analysis is so dumb.

        • R Johnston says:

          The difference between 5 and 6 is the difference between saying “this policy is unconstitutional because I don’t like it; here’s a half-assed rationalization for why you should agree with me” and saying “this policy is unquestionably constitutional under the half-assed rationalization I offered yesterday in favor of some other policy, but I don’t like it so it’s unconstitutional. Any rationalization I offer won’t even be good enough to be called half-assed, but I’ve got no problem proclaiming that my entire constitutional doctrine consists of ‘suck on it, you commie faggots!’ so suck on it, you commie faggots!”

  10. wengler says:

    I don’t think the ACA would come back in any form if it was struck down. It would be dead.

    Such an action would however cause many people to perhaps re-examine the Supreme Court’s role as the ultimate veto point in our government. For far too long we’ve had this mentality of ‘that’s a batshit crazy law they just passed, but we are gonna get an injunction on this thing post-haste’. Elections have consequences. You elect crazy people and they will pass crazy things, but that is the type of system that we fought for. Not a system where the ultimate decider is some dictator in a silly robe determines the fate of the country.

    • Murc says:

      Such an action would however cause many people to perhaps re-examine the Supreme Court’s role as the ultimate veto point in our government.

      I think you’re gonna need to justify that. Dred Scott didn’t cause the country as a whole to re-examine the Supreme Court’s role in things. Neither did Plessy. Neither did Dagenhart. Neither did Brown, or Roe, or Lawrence. The Court remains regarded as an extremely LEGITIMATE institution. Even all but a few crazy wingers operate within that rubric.

      Why should striking down the ACA change that?

      Also, what you are arguing for is a system in which we don’t have a Constitution. There’s nothing inherently wrong with that. Britain gets along just fine with pure legislative supremacy and no governing document. But it would be a truly radical change.

      • Scott Lemieux says:

        Yup. This idea that the people will rise up against judicial review — based on a decision polls suggest would be popular! — is a pipedream.

    • Joe says:

      “You elect crazy people and they will pass crazy things, but that is the type of system that we fought for.”

      A republican form of government is what we fought for and that entails an independent judiciary with judicial review. The people at large accept this, even if they oppose certain specific rulings. Our “fate” does not rest on this one ruling. That’s a bit much.

      • Murc says:

        A republican form of government is what we fought for and that entails an independent judiciary with judicial review.

        Neither of those two things are a pre-requisite for a a republican form of government, and while it has an independent judiciary, Britain seems to get along just fine without judicial review. Prior to the Charter, I believe Canada did as well.

        • Joe says:

          In this country, which is what we are talking about, we don’t have an established church, a constitutional monarchy and have and considered it central to republican government, an independent judiciary.

  11. chris says:

    And since the liberty interest involved is ipso facto trivial (if Congress could pursue the same ends by enforcing the mandate as a “tax” rather than a “penalty,” how serious can the invasion of state sovereignty or individual freedom be?)

    I don’t see how you can claim there is any liberty interest whatsoever in having a law worded one way rather than another, if its effects are the same. If there were any interest in such a thing, it clearly wouldn’t be a liberty interest.

  12. wkwillis says:

    Half the people in this country don’t vote. Give them something to vote for and they will vote.
    The Supremes strike down ACA and Obama can tell the nonvoters that there medical insurance bills will go away if they vote for enough liberals to pass medicare for all.
    What is Obama offering them now?

  13. Malaclypse says:

    The really great thing about being a contemporary liberal is you don’t have to know jack-shit (or care)about economics.

    And that is why liberals fucked up the world economy back in 2008 when they were out of power, by tricking banks into selling dodgy securities. Because they have fucking superpowers, including time travel, and the ability to get conservatives to invariably make the stupidest possible choice.

  14. R Johnston says:

    The really great thing about being a contemporary liberal is you don’t have to know jack-shit (or care)about economics.

    It is, sadly, true, that you don’t need to know or care anything about economics to be a liberal. Still, it is possible to know and care about economics and be a liberal, and plenty of liberals do. That doesn’t mean their economics is liberals; it just means that some liberals accept the concept of science.

    To be a conservative you need to actively reject the concept of economics as an empirical scientific study in favor of revealed truths disconnected from anything other than the tumor in your brain that’s making you delusional. Conservative economics is the prototypical example of an oxymoron.

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