The interesting thing about the lead opinion is that it was written by Laurence Silberman, a judge with impeccable conservative credentials. As Jon says, it’s a straightforward but very strong opinion, and he’s particularly good on the meaningless of the “activity/inactivity” distinction.
Tag: "constitutional law"
In light of the Obama administration’s decision not to seek an en banc rehearing of the 11th Circuit’s ruling that the ACA is unconstitutional, there has been some good stuff written about the possibility that the Supreme Court will duck the issue with a jurisdictional ruling.
I have a piece up at the Prospect that makes a couple points about this I haven’t see elsewhere yet. First, the fact that the Roberts Court has limited standing in other areas is neither here nor there in terms of whether they will do it here. Supreme Court majorities limit standing to litigants whose claims they favor approximately never. And, second, for the Supreme Court to duck the issue now and then issue a ruling after the election would be the worst of all worlds. While paeans to the passive virtues have become increasingly common, I prefer transparency myself. Anyway, click over for the whole argument.
I think that to the extent that Bachmann’s assertions that the Massachusetts health care bill is unconstitutional were a gaffe, it was a Kinsleyean gaffe. That is, I think at bottom the arguments against the constitutionality reflect libertarian principles much more than federalist ones. When a judge talks about “extinguishing the right” to finance one’s own medical expenses, the level of government involved is beside the point.
Either way, it’s still pretty striking that 1 of the top 3 contenders for the Republican presidential nomination wants to bring Lochner back, to go along with the other one who wants to bring Gilded Age conceptions of federal power back.
To reiterate, Rick Perry is if anything wingnuttier than Michelle Bachmann, and also isn’t very bright. None of which will stop him from being cast by the media as the Serious, Thinking Person’s Conservative in the GOP race.
In fairness, he’s not always reflexively anti-government; when it comes to state murders of innocent people, he’s all for it!
If you’ve been waiting for Ann Althouse to enter the debate about the constitutionality of the debt ceiling, you’re in luck! If you want to learn something, well, you’re crazy. And you’re also out of luck, since her response is written in Vacuous Wingnut Buzzword rather than English. Her addition to Laurence Tribe’s op-ed, in its entirety:
Oh, how ploddingly boring Professor Tribe is! Vividly creative lawprofs have perceived that the 14th Amendment transformed the President into a dictator, and here comes Tribe with his gigantic wet blanket of case citations and constitutional texts. So wooden and formalistic!
The Constitution is alive! Have you not heard? A seed has been found: the public debt clause. It has fabulous growth potential. It had life from the moment these legal geniuses inseminated that ovum of constitutional text. And you would snuff out their brilliant conception? Heartless! That is so lacking in… empathy.
The first thing you’ll notice is that there’s nothing particularly “formalistic” about Tribe’s analysis (which isn’t an insult.) He cites the same constitutional text as everyone else involved in the debate, and the “case citations” consist of exactly one cite that says nothing either way about whether the debt ceiling law is consistent with the 14th Amendment. His argument is powerful — certainly the strongest argument skeptics have — but it’s based primarily on inferences from the structure of the text and a pragmatic argument about the aggrandizement of executive power.
Althouse, needless to say, doesn’t cite the constitutional theorists who are allegedly using “empathy” as the primary basis for an argument that the debt ceiling is unconstitutional. If you examine Jack Balkin’s analysis (1,2,3) , however, you’ll note that it’s based on a careful reading of constitutional text and history, and is more “originalist” than “living constitutionalist” (although in Balkin’s view this is a false dichotomy.) Whether or not one finds it persuasive, it’s if anything more “formalistic” than Tribe’s.
One may find one of the arguments more or less persuasive, but like most constitutional questions of any interest the constitutionality of the debt ceiling isn’t a technical question that can be answered merely by citing the constitutional text, let alone argument by string-of-empty-catchphrases.
I’ve essentially become resigned to executive branch domination of foreign policy — the only thing that can stop it is for Congress to actually assert its prerogatives, and there’s no reason to believe it will do so. Still, the DOJ lawyers were right: the idea that the attacks on Libya don’t require congressional authorization is not serious, and it represents a further erosion of checks within the executive branch.
Federal judge rules that the ban on direct corporate contributions to candidates is unconstitutional. It is still not clear whether the 5-4 decision ultimate holding the initial ruling will be written by Kennedy or Roberts; I’m definitely guessing that the former will see this as the vehicle to reconsider existing precedent that he’s looking for…
My column in the Prospect this week discusses how the oral arguments at 4th Circuit earlier this week represented the pure shoddiness of the constitutional arguments being mounted against the ACA. The “inactivity/activity” distinction is not a serious argument but something cooked up to strike down a particular bill without accepting the logical implications, and it shows:
But the “activity/inactivity” distinction is not only conceptually problematic; it lacks any real legal basis. The text of the Constitution certainly does not make this distinction, nor has it been relevant to the many of the Supreme Court’s foundational precedents.
Why did legal challenges to the ACA come to rest on such a feeble argument? The answer is that political realities painted conservative litigators into a corner. It is possible to make a coherent and principled argument that the Affordable Care Act is unconstitutional. But this argument would have to look like those advanced by libertarian legal scholars like Randy Barnett and Richard Epstein, who have argued that the modern regulatory state is itself unconstitutional. If the commerce clause should be read as merely conferring on the government a limited power to regulate trade, then the Affordable Care Act is indeed unconstitutional.
The problems with advancing such a claim, however, are manifest. First, such arguments were conclusively rejected by the Supreme Court 70 years ago. Second, a constitutional vision reverting our regulatory law to the 1800s would have no political support. The “activity/inactivity” distinction is less a serious argument than an ad hoc, outcome-oriented attempt to strike down on particular law without threatening other popular federal programs.
If the Supreme Court were to strike down the ACA based on this argument, it would be the worst Supreme Court decision since Bush v. Gore. Alas, that decision should remind us that the Supreme Court could very well do it anyway.
One of the better moments in the utter dismantling of the arguments that the ACA is unconstitutional performed by the 4th Circuit yesterday was Diana Gribbon Motz pointing out that Daniel Webster managed to give four days worth of oral argument on the commerce clause without mentioning the “activity” that conservatives have been convinced since 2009 was central to the clause’s point. David Bernstein thinks progressives should be careful about this:
I don’t think that the Democrats want to fight this battle over the 18th or early 19th century understanding of Congress’s power to regulate interstate commerce.
Well, actually, I would have no problem with the ACA being evaluated according to an “early 19th century” understanding of the commerce clause — if the most important Supreme Court opinions of that period count. The libertarian trick is to pretend that there was a consistent, uncontroversial understanding that the federal government had a very limited ability to regulate interstate commerce that was broken only during the New Deal. But, unless you believe that John Marshall and Alexander Hamilton lack the constitutional authority of Roger Taney and James McReynolds, that’s not the case. Looking at the long sweep of American history, it’s the Jacksonian and Lochner eras that are anomalous, and both were rejected as decisively as can be imagined.
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I have a new column up about the Supreme Court stretching to defend corporate interests — who saw that coming? — in AT&T v. Concepcion. Another point about the preemption cases is that they’re a classic example of Lemieux’s Law: Nobody Actually Cares About Federalism.
Nor can the outcome in AT&T v. Concepcion be justified by broader conservative constitutional principles. The Court’s conservatives are allegedly committed to federalism — that is, states’ rights — but here they called for federal uniformity. (Some of these same justices are likely to argue against federal uniformity when the Affordable Care Act and its alleged intrusion on state sovereignty comes up). From the Fugitive Slave Act to the Federal Partial-Birth Abortion Act, alleged conservative commitments to “federalism” rarely survive clashes with cherished conservative interests, and Wednesday’s ruling is another case in point.
You could be committed to federalism and uphold uniform rules where Congress clearly preempted state law — but in this case it did no such thing.
It’s interesting to see that Scalia wrote the majority opinion. As I’ve said before, the whole line of sovereign immunity cases are a particular embarrassment to Scalia’s “textualism.” Say what you will about conservative commerce clause jurisprudence, but it rests on at least a plausible textual foundation. But the 11th Amendment — unlike the due process or equal protection clauses — has very specific language. It could have but doesn’t apply to citizens suing their own state. (It’s particularly amusing to see Scalia join opinions that construe “another State” to read “own State” given his certainty that the 14th Amendment is silent on the question of gender.) Rehnquist has conceded as much (“we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.”) Whether right or wrong, that’s the kind of reasoning Scalia enjoys making fun of when other people use it.