The Volokh Conspiracy

No one was more involved in the challenge to the Affordable Care Act than Ilya Shapiro.  Besides myself, I believe he was the only person who attended every court of appeals argument and we often sat together in the court room.  Here is the abstract of his new essay on the decision in NFIB v. Sebelius, which was just published in the Texas Journal of Law and Public Policy:

Abstract: The constitutional challenge to Obamacare was a case that comes along once every generation, if not less often. Not because it could affect a presidential election or was otherwise politically significant, but because it reconsidered so many aspects of our constitutional first principles: the fundamental relationships between citizens and the government and between the states and the federal government; the role of the judiciary in saying what the law is and checking the political branches; and the scope of and limits to all three branches’ powers. This case was not about the state of health care in America or how to fix this troubled area of public policy. It was instead about how to read our nation’s basic law and whether Congress was constitutionally authorized to use the tools it used in this particular instance.

Anyone reading this article will already know at least the basic outline of the Supreme Court’s ruling. As I wrote on the leading Supreme Court blog in the wake of the decision, those who challenged the law won everything but the case. That is, the Supreme Court adopted all of our legal theories regarding the scope of federal regulatory authority and yet Obamacare stands. This article explains and elaborates on those basic points, the good (Commerce Clause, Necessary & Proper Clause, Spending Clause), the bad (the taxing power), and the ugly (John Roberts’s reasoning and motivations).

In sum, the Constitution’s structural provisions — federalism, separation and enumeration of powers, checks and balances — aren’t just a dry exercise in political theory, but a means to protect individual liberty from the concentrated power of popular majorities. Justice Kennedy said it best in summarizing the joint dissent from the bench: “Structure means liberty.” If Congress can avoid the Constitution’s structural limits by “taxing” inactivity, its power is no more limited and liberty no better protected than if it were allowed to regulate at will under the Commerce Clause. The ultimate lesson to draw from this two-year legal seminar, then, is that the proper role of judges is to apply the Constitution regardless of whether it leads to upholding or striking down legislation. And a correct application of the Constitution inevitably rests on the Madisonian principles of ordered liberty and limited government that the document embodies.

He is a lot more critical of the tax power aspect of Roberts decision than I chose to be in my piece, which was mainly emphasizing the positive.  Here are his ten criticisms of that aspect of the Roberts opinion (with all the supporting reasoning omitted), which I assume constitutes the “ugly.”

Roberts got this wrong for at least ten reasons.

First, Roberts misapplied the constitutional avoidance canon....

Second, Roberts managed to read the mandate as a tax for constitutional purposes after finding that it was not a tax in the context of the Anti-Injunction Act (AIA), a federal law that prevents taxpayers from challenging a tax until it has been levied or assessed....

Third, Roberts simultaneously found that there’s no scienter requirement to the individual mandate, meaning no requirement of conscious or knowing violation of the law—and that people have a “choice” of whether to buy health insurance or to pay the tax....

Fourth, the fact that the payment for non-insurance is collected by the IRS through “the normal means of taxation,”61 another of Roberts’s pro-tax factors, is irrelevant....

Fifth, Roberts noted that the IRS can’t punish people or attach any other “negative legal consequences” for the nonpayment of the Obamacare tax66—which is important because Congress can use only its regulatory authority to punish people, not its taxing power67—but this factor is too good to be true because money is fungible....

Sixth, Roberts conflated tax credits on ownership or activity with his new tax on inactivity....

Seventh, Roberts’s correct statement that “the Constitution doesn’t guarantee that individuals may avoid taxation through inactivity” is beside the point given that he goes on to rule out the precise types of taxes (capitations and other direct taxes; see the tenth point below) levied on something other than activity....

Eighth, Roberts erroneously declined to examine Congress’s motive, which was clearly intended to compel behavior rather than raise revenue....

Ninth, building on the above point, Chief Justice Roberts, while thinking that he was throwing Obamacare back to the people for final judgment via the ballot box, actually allowed the political branches to escape political accountability. That is, if Congress had wanted to create a taxation system to fund Obamacare or incentivize health insurance purchases, it could’ve done so....

Tenth and finally (and perhaps most importantly), Roberts never explained what kind of tax he was upholding....

In short, Roberts’s taxing power section simply doesn’t compute. It’s still unclear what the provision at issue is; even after the ruling, a debate rages over whether it’s a tax or a penalty....  Roberts thus succeeded in crafting a ticket good for the Obamacare train only. He must have at some point posed to himself the conundrum of how to uphold this law without expanding federal power, and that’s the result we got.

Then there is this from the ending:

The sad thing about this entire episode is that the Chief Justice didn’t have to do what he did to “save the Court.” For one thing, Obamacare has always been unpopular—particularly its individual mandate, which even a majority of Democrats thought was unconstitutional—so upholding it, and in such a bizarre way, has actually hurt public trust in the Court. For another, Roberts only damaged his own reputation by making this move after months of warnings from politicians—including President Obama—and pundits that striking down the law would sully the Court. (I don’t at all believe that he succumbed to pressure of that sort, but many people do.) Perhaps most importantly, though, the reason we care about maintaining the Court’s integrity is so it can make the tough calls in the controversial cases while letting the political chips fall where they may. Striking down Obamacare would have been just the sort of thing for which the Court needs all that accrued institutional respect and gravitas. Instead, we have a strategic decision dressed up in legal robes, judicially enacting a law Congress didn’t pass.

But what was Roberts saving the Court for if not the sort of epochal case that NFIB was? In refraining from making the hard balls-and-strikes calls he discussed at his confirmation hearings, Roberts showed precisely why we don’t want our judges playing politics.

You can download the whole thing from SSRN here.

I have just posted to SSRN the paper, Who Won the Obamacare Case (and Why Did so Many Law Professors Miss the Boat)?, on which my forthcoming Dunwody Lecture at the University of Florida on March 22nd will be based.  It will appear in the Florida Law Review.  Here is the abstract.

ABSTRACT: In this essay, prepared as the basis for the 2013 Dunwody Distinguished Lecture in Law at the Fredric G. Levin College of Law, University of Florida, I describe five aspects of the Supreme Court’s decision in NFIB v. Sebelius that are sometimes overlooked or misunderstood. (1) The Court held that imposing economic mandates on the people was unconstitutional under the Commerce and Necessary and Proper Clauses; (2) Whether viewed from a formalist or realist perspective, Chief Justice Roberts’ reasoning was the holding in the case; (3) The Court did not uphold the constitutionality of the individual insurance mandate under the tax power; (4) The newfound power to tax inactivity is far less dangerous than the commerce power that was advocated by the government and most law professors; and (5) the doctrine established by NFIB matters (to the extent that constitutional law doctrine ever matters). Finally, I turn my attention to the question of why so many law professors got this case so wrong. After providing a lengthy compendium of published law professor opinions about the case, I suggest that most missed the boat because they have failed to appreciate the constitutional gestalt that informed the Rehnquist Court’s New Federalism, a gestalt that can now be seen to carry over to a majority of the Roberts Court.

For some, the last point I make may be of greatest interest because I think it helps explain why the lawsuit had legs to a degree that most law professors did not expect, and I do not attribute this solely to the ideological imbalance of the legal academy.  After all, some on the right, like Orin, were similarly surprised.

You can download it here.

As Orin noted, today comes the news that Oxford NYU Professor Ronald Dworkin has passed away. I was a student in Dworkin’s jurisprudence class when he visited Harvard Law School, and remember fondly him debating my torts professor Charles Fried who questioned him from the student seats.  I thought then that Dworkin clearly won those exchanges.  I also remember the appearance in the back of the classroom one day of HLA Hart, who Dworkin had succeeded as the Professor of Jurisprudence at Oxford.

Dworkin did me a very good turn once. When I was deeply absorbed in Harvard’s extensive 9-hour criminal law trial practice program, I neglected my other courses. I showed up for one only to find I didn’t understand a word the professor was saying. After class, I made a bee line to the Registrar to drop the course, but being a third year student, I needed to find replacement credits. Dworkin agreed to sponsor an independent study for 1 credit hour (I don’t remember how I made up the other 2). I wrote a paper criticizing a chapter of his recently published book, Taking Rights Seriously, devoted to the proposition that there is “no general right to liberty.”

I met with him a couple times to discuss my paper, and the interchanges were amazing. Rather than respond to the criticism or argue, he got inside my argument to see what I needed to say in order to make it work. When he asked me whether I was willing to trade off property rights for an increase in liberty, and I declined, he replied: “Well then you’re not a libertarian, you’re a propertarian.” That challenge inspired a great deal of my early work on liberty that culminated in my book The Structure of Liberty: Justice and the Rule of Law (OUP 1998). (I am currently writing an Afterword for a new edition to be published by Oxford University Press).  (I still think I am a libertarian.)

Some years later I watched him devastate Richard Posner at a conference held at the University of Chicago Law School.  Posner was proposing his normative theory of wealth maximation, and Dworkin systematically dismembered the arguments in session after session.

Still later, I saw him engage with Mark Tushnet at an AALS conference on jurisprudence, I believe, in Philadelphia.  Dworkin was describing his forthcoming book, Law’s Empire, which with Richard John Hart Ely’s Democracy and Distrust, I consider to be one of the few masterpieces of constitutional theory in the Twentieth Century.  (I think Jack Balkin’s Living Originalism is one of the very few books since then to get into the same league.)   Dworkin was challenged from the floor by Mark Tushnet who informed everyone that, by mistake, Harvard University Press had sent him an advanced copy which he had read.   After Tushnet asked his question and moved to sit down, Dworkin asked him to remain at the microphone so he could respond.  Dworkin then launched into a long disquisition that Tushnet was compelled to follow closely, never knowing when a question would emerge from the flow of reasoning.  My own sense was that Dworkin got the better of that exchange.

A master rhetorician, Dworkin was not without his faults and weaknesses, but today is not the day to dwell on these.  Today, I choose to remember the man who did me a very good turn when I needed it badly, at a school where good turns from faculty were hard to come by, and something he did not need to do.  I remember him as a debater extraordinaire who, in his prime, could simply take your breath away when in verbal combat.  I remember him as a scintillating teacher who had a deep influence on me.  Before I became an originalist in the late 90s, if you had asked me about my approach to constitutional interpretation, I would have described myself as a Dworkinian.  Even when I was a very junior professor, he seemed to remember me when we met and was very gracious in his praise.

Ronald Dworkin, dead at 81.  I will miss him.

PS:  Apologies for any typos or errors in grammar.  I had to write this quickly before boarding a plane at Dulles for the originalist works-in-progress conference at the University of San Diego.

Today, the Senate Subcommittee on the Constitution, Civil Rights and Human Rights is holding a hearing on proposals for new gun controls.  Below is my letter to the Ranking Member, Senator Ted Cruz, which expands upon a brief op-ed of mine, Gun Control Fails Rationality Test, that ran in the Washington Examiner a couple weeks ago:

Hon. Ted Cruz, Ranking Member
Subcommittee on the Constitution, Civil Rights and Human Rights
Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Senator Cruz,

Within minutes of the Sandy Hook murders, gun control advocates began exploiting this horrific event to promote their favored policies. I know this because I was contacted by reporters to respond to these calls even before I had heard that the event had taken place moments before. This was far too early to know what had happened, much less how and why. Yet the drum beat had begun for long sought after measures that would not have prevented these murders. That drum beat continues.

I understand that you are having hearings on various gun control proposals on Tuesday, February 12th. In your deliberations, you may find useful the attached article entitled, “Gun control fails rationality test,” that appeared on January 29th in the Washington Examiner. In this article, I make the following points:

• The Supreme Court evaluates fundamental rights using a heightened standard of scrutiny;
• The Supreme Court has held that the individual right to keep and bear arms is a fundamental right;
• Some of these measures – for example, laws prohibiting such popular rifles as the AR-15 and the normal capacity magazines for such rifles – are flatly precluded by the Supreme Court’s categorical protection of weapons “in common use” by ordinary citizens for lawful purposes, such as the protection of self and others;
• These and most other gun regulations currently under consideration would also fail the least demanding heightened scrutiny: rationality review;
• This is because most proposals either would not have prevented the incidents that are said to motivate their passage, they would keep legal weapons of identical lethality, or they are discriminatory in their treatment of the Second Amendment rights of American citizens;
• For this reason, these measures are irrational;
• This analysis is useful to identify such measures as pretextual efforts, the real purpose of which is to impose an undue burden on the exercise of the fundamental right to keep and bear arms, or to improperly stigmatize its exercise;
• For all these reasons most, if not all, of the measures being proposed are unconstitutional.

To this analysis, I would add that the Congress has its own independent obligation to assess the constitutionality of the measures it enacts. When the courts defer in any way to Congress – as they do even when applying heightened scrutiny – it is on the assumption that Congress has already considered independently whether its legislation is within its enumerated powers, or has violated an express prohibition of the Constitution. For this reason, the types of “scrutiny” that courts will apply to enacted laws is irrelevant to Congress’s own assessment of whether any measure it may enact is irrational and, therefore, unconstitutional. In other words, although the courts have the last word on whether an enacted measure is unconstitutional, Congress has the first word. And a refusal by Congress to enact a measure because, in its judgment, the measure violates the Second Amendment will take precedence over any judicial or executive branch opinion on that question. Only if Congress concludes that a measure is constitutional, does the executive and judicial branches have the opportunity to disagree with this assessment.

Therefore, it falls to your subcommittee to inquire seriously into whether any given measure under consideration would actually violate the Second Amendment. To this end, you should ask:

• Would the proposed measure would have prevented the event, such as Sandy Hook, that is being used to justifies its enactment?
• Are firearms with equal if not greater lethality and rate of fire left legal while others are being prohibited?
• Will some citizens – such as current or retired members of law enforcement or government officials – be privileged in the means by which they can protect themselves over others?
• If an American citizen who is employed to protect the safety of others, or an active or retired police officer, requires a certain type of weapon, with a certain rate of fire or capacity, to protect him or herself or others, why does not a law abiding citizen of the United States require the same sort of weapon for the same lawful purpose?
• Will those who are willing to violate laws be affected in any manner by the existence of this measure, or will its burden largely be borne by law-abiding, and in many cases licenced, citizens who pose no threat to others?
• Will a gun control measure, such as the maintenance of a data base, facilitate future violations of the fundamental guarantees of the Second Amendment, for example, by making confiscation of weapons easier?

The rationality of gun control measures turn on the answers to these and other such questions. Yet most law professors who opine on the constitutionality of gun control measures simply do not know enough about firearms, or the realistic effects of gun regulations, to have a genuinely expert opinion on whether any particular proposal is constitutional. Instead, their opinions are typically based either on their predictions of how courts will rule, often based on how they hope the courts will rule, or their opinion of how deferential courts should be to the Congress. Unless they address questions such as those I listed, however, their opinions can provide little guidance to Congress in its independent assessment of the constitutionality of these proposals.

It is the job of Congress to ask these questions in order to ferret out efforts to violate the fundamental rights of Americans by those who dislike the rights protected by the Second Amendment, or who have an irrational fear of firearms. The answers provided by such an independent inquiry will reveal many of the current proposals to be pretextual efforts having little or nothing to do with preventing the incidents that have roused the emotions of the public, and everything to do with imposing an undue burden upon, and stigmatizing the exercise of a fundamental right.I hope this letter, and the accompanying article, helps inform the Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights discussion.

Sincerely,

Professor Randy E. Barnett
Carmack Waterhouse Professor of Legal Theory
Director, Georgetown Center for the Constitution

Glenn Reynolds has a terrific, and very short, paper on SSRN on Ham Sandwich Nation: Due Process When Everything is a Crime, which I highly recommend.  (Conor Friedersdorf blogs about it here.)   Here is the key passage that summarizes the problem:

Overcriminalization has thus left us in a peculiar place: Though people suspected of a crime have extensive due process rights in dealing with the police, and people charged with a crime have even more extensive due process rights in court, the actual decision whether or not to charge a person with a crime is almost completely unconstrained. Yet, because of overcharging and plea bargains, that decision is probably the single most important event in the chain of criminal procedure.

He then offers a number of tentative suggestions on how to address this problem, which Friedersdorf summarizes as follows:

• Rather than granting prosecutors absolute immunity against lawsuits, shift to a “qualified, good-faith immunity for prosecutors” — in other words, make them personally liable in instance when they aren’t carrying out their duties in good faith.

• If a personal is charged with a crime and acquitted, make the prosecution pay their legal bill. Or if there are multiple crimes being adjudicated, “we might pro-rate things: Charge a defendant with 20 offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would certainly discourage overcharging.”

•  Ban plea bargains all together, so that every criminal charge filed would have to be backed up in open court.

• Alternatively, “we might require that the prosecution’s plea offers be presented to a jury or judge before sentencing. Jurors might then wonder why they are being asked to sentence a defendant to 20 years without parole when the prosecution was willing to settle for 5. 15 years in jail seems a rather stiff punishment for making the state undergo the bother of a trial.”

• Consider whether regulatory violations should be subject to criminal sanctions at all.

Friedersdorf also notes reform proposals by Orin and by Radley Balko. As a former Chicago prosecutor myself (and the father of a Brooklyn prosecutor) I don’t think prosecutors are bad guys.  But I do think they respond to the incentive structure of the system in which they work.  Glenn’s first two proposals remind me of my first law review article as a law professor in the Emory Law Review (not available online) in which I proposed altering the incentive structure for unconstitutional police behavior by replacing exclusion of evidence with a court of claims-type system to administer fines against the department.  Something similar could work with DA’s offices who, to protect their budget, will then control line DA’s. But the Number One problem identified by Glenn and Radley Balko is overcriminalization.  See also Gene Healy’s Go Directly To Jail: The Criminalization of Almost Everything, and Harvey Silverglate’s Three Felonies A Day. As Glenn notes:

The result of overcriminalization is that prosecutors no longer need to wait for obvious signs of a crime. Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character. And since . . . everyone is a criminal if prosecutors look hard enough, they’re guaranteed to find something eventually.

Something needs to be done about this.  You can start by downloading Glenn’s short paper here.

UPDATE:  For another take on overcriminalization Judge Alex Kozinski and (my former student) Misha Tseytlin, see their essay, You’re (Probably) a Federal Criminal.  (Go to page 43 of this Google Books preview).

I missed noting Lysander Spooner’s 205th birthday yesterday, but politics professor Helen Knowles didn’t.  You can check out her remembrance here and her new article about Spooner, Seeing the Light: Lysander Spooner’s Increasingly Popular Constitutionalism.  Here’s the abstract:

In recent years, the rise in academic interest in “popular constitutionalism” has been accompanied by scholarly efforts to identify examples from American history that support that movement’s normative claims about the ills of judicial supremacy. Should antislavery constitutionalists receive substantive discussion in this historical narrative? This article uses the writings of Lysander Spooner (1808-1887) (who authored the most extensive argument that slavery was unconstitutional) to demonstrate the complexities of answering this question. Nineteenth century abolitionists who wrote about the Constitution were constantly confronted with judges unwilling to act for liberty and justice. However, this did not result in an automatic acceptance of the need to issue a popular constitutionalist call to ‘take the Constitution away from the courts.’ Many, such as William Lloyd Garrison, adhered to an anti-constitutionalist position – advocating destruction of the nation’s supreme law. Lysander Spooner was no Garrisonian, but he also did not become a popular constitutionalist until the late 1850s. Not until the decision in Dred Scott did he finally decide to abandon his earlier belief in greater judicial involvement in the interpretive conversation about the meaning of the Constitution.

In my article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, I discuss Spooner at length, but also the many other “constitutional abolitionists” who, unlike him, turned to politics to advance their antislavery agenda — first, by forming the Liberty Party, then the Free Soil Party, and finally the Republican Party.  Folks who saw Lincoln know that it was the Republican Party’s first president and a Republican Congress that adopted the Thirteenth Amendment making slavery unconstitutional, in part, so the courts would not later reverse Lincoln’s Emancipation Proclamation and return the freedman to servitude.

There is much about which to be critical of Lincoln — and certainly more critical that Doris Kearns Goodwin in her excellent book, Team of Rivals, on which the Spielberg film was based. Goodwin obviously fell in love with her subject. But the movie shows the pervasive racism that the abolitionists had to overcome to form a political party that was such a threat to the slave power that it chose to succeed from the Union rather than live a single day under Republican antislavery policies. It was constitutional abolitionists like Theodore Dwight Weld, Alvan Stewart, Charles Dexter Cleveland, William Goodell, Benjamin Shaw, James Birney, Joel Tiffany, Horace Mann, Lewis Tappan, Gerrit Smith, Byron Paine, Frederick Douglass and, in particular, Salmon Chase who developed and promulgated the constitutional platform that came to be the core of the new Republican Party. These men did not agree about everything, but most shared in common their high regard for the antislavery constitutionalism of Lysander Spooner.

Happy Birthday, Lysander.

The deadline to apply for the Georgetown Center for the Constitution Fellowship is February 1st.

The Georgetown Center for the Constitution Fellowships is designed for a highly-qualified law graduate who intends to pursue an academic career.  We seek applicants who have shown an aptitude for independent scholarly research, as demonstrated by their scholarly work in law school, research related to other graduate degree programs, and/or their professional activities after law school.

During their residence at Georgetown, Fellows are expected to produce significant scholarship for publication and teach a seminar on the subject of their research as a Visiting Lecturer. The Fellow also will contribute to the intellectual life of the Center by participating and guest lecturing in various constitutional law courses at Georgetown, and will have the opportunity to take part in the Georgetown Law Fellows’ Collaborative in preparation for the academic job market. The position is designed for individuals intending to go onto the legal academic job market within two years.

The Fellowship

The Fellow will be in residence at Georgetown Law Center for a two-year period. The Fellowship permit the Fellows to complete a year of research, writing and teaching a seminar, before applying for teaching positions during their second year. During the Fellow’s tenure at Georgetown, he or she will be expected to produce at least one major academic piece of scholarship. The Fellow will be mentored by the faculty associated with the Center, and will work closely with his or her mentors in the development of the major writing project.

The Fellow will also be expected to contribute to the intellectual life of the Center in a meaningful way by participating, where appropriate, in ongoing Center projects. This will include attending and participating in Center programs.  The Fellow will also  have the opportunity to attend scholarly symposia, lectures, and brown bag seminars with Georgetown Law faculty, and to participate in the Georgetown Fellows’ Collaborative, described below.

The Georgetown Fellows’ Collaborative

The Georgetown Fellows’ Collaborative is a program designed for the fellows at Georgetown Law and its various institutes who wish to pursue an academic career. The core of the Georgetown Fellows’ Collaborative is the regular Fellows Workshop and the ongoing Fellows Seminar. Members of the Fellows’ Collaborative are also invited to programs about the teaching market, and work together and with members of the faculty in the application process.

Fellows Workshop

The Fellows Workshop meets every other week and gives Fellows from the different Georgetown programs an opportunity to present their works in progress to one another. The goal is to improve the quality of participants’ work in a collaborative, supportive, critical and rigorous process of peer-review. The Fellows Workshop is run in the same format as faculty workshops. Presenting fellows are encouraged, though not required, to invite faculty with relevant interests to attend as well.

Fellows Seminar

The Fellow is expected to participate in the Fellows Seminar, which is conducted by members of the faculty. The Fellows Seminar provides, in two years, an overview of major ideas in legal thought and scholarship. The Fellow will have the opportunity to participate in four seminars, consisting of: (1) Legal Theory and Jurisprudence (2) Law and Social Sciences (3) Law and Humanities, and (4) Contemporary Debates in Legal Scholarship. A different seminar will be offered each semester. Fellows are not required to produce any writing for the seminar, but it is expected that the Fellow will participate in a lively discussion.

Benefits

The Fellowship offers a competitive stipend and eligibility for staff health insurance.

Application Requirements

Fellowship applications must be made by mail.

Application submissions must include the Application Form, CV, Research Proposal/Scholarly Agenda, published or unpublished writing sample, official transcripts for any degrees earned, and two letters of recommendation.

Searching for something else, I came across this PBS News Hour appearance of mine with Walter Dellinger on March 27th, the day the individual insurance mandate was argued in the Supreme Court.  I was struck by how close we both were to the actual outcome of the case, even in the heat of the moment.  I begin, for example, by describing the division on the Court as 4 in favor and 4 opposed (though I don’t name the 9th justice, I believe I thought it was Chief Justice Roberts, not Justice Kennedy), and we both agree at the end that we don’t know from the argument how the case would be resolved.   I also made the point that upholding the mandate under the Commerce Clause would be far more dangerous than under the tax power (a point I had been including in my speeches after hearing Judge Brett Kavanaugh make a similar observation during oral argument in the Seven Sky case).

As it happened, and as I explain in a forthcoming article in the Florida Law Review, the mandate qua mandate was not upheld by Chief Justice Roberts under the tax power as the government and the concurring justices advocated.  Rather, what the statute dubs the insurance “requirement” was eliminated from the statute by a “saving construction,” leaving only a legal option to buy insurance or not, with an incentive to buy provided by a modest “penalty,” which was constitutional under the tax power only because it was not so punitive as to compel the purchase of health insurance.  (Yes, a nonpunitive “penalty” is problem, but that is a problem with the Chief Justice’s attempt at a “saving construction”;  it does not make the mandate qua mandate constitutional under the tax power.)  Unlike Justice Ginsburg and the three justices who joined her concurrence, the Chief Justice implied that such a coercive use of the tax power to mandate activity would also be unconstitutional.

Be this as it may, I thought readers might be interested in watching this 9 minute exchange.

Watch Is Health Law’s Individual Mandate Constitutional? on PBS. See more from PBS NewsHour.

As John just noted, author Robert Bork, a former-Yale law professor, who also served as Solicitor General of the United States and a as a judge on the DC Circuit Court of Appeals, died today at the age of 84.  He had been in ill-health for some time.  Bork flirted with libertarianism before becoming perhaps the leading advocate of judicial conservatism. Among his lasting achievements was the support he gave to some Yale law students seeking to found an organization called the Federalist Society.  The Federalist Society has this tribute to him on its Facebook page.

Bork was indirectly instrumental in my transition from contracts to constitutional law.  At a time when I had three projects on the Ninth Amendment in press — an article, anthology, and law review symposium — he famously gave the following description of the Ninth Amendment during his ill-fated 1987 confirmation hearing to the Supreme Court.

I do not think you can use the Ninth Amendment unless you know something of what it means.  For example, if you had an amendment that says ‘Congress shall make no’ and then there is an ink  blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.

This statement created a big market for my Ninth Amendment publications when they appeared during the next year.  Years later, I recall being introduced by him on a panel he was moderating.  After reading aloud the title of my anthology:  The Rights Retained by the People: The History and Meaning of the Ninth Amendment, he good-naturedly responded, “That sounds like a book I should read.”

Although I thought his Supreme Court confirmation hearing, chaired by then-Senate Judiciary Committee Chairman Joe Biden, was largely substantive and fair, the smear campaign waged against him outside the hearing room by activist groups — triggered by Senator Edward Kennedy’s floor speech describing “Robert Bork’s America” delivered minutes after Bork’s nomination by President Reagan — kicked off the now decades-long Disdain Campaign by the Left against conservative and libertarian judges and justices that I describe in my recent contribution to the Harvard Law Review Forum.

Robert Bork.  R.I.P.

The webpage for the new Georgetown Center for the Constitution has gone live here.  You can see some nice pictures of the first two events of the center — Justice Scalia’s book signing event and a debate on future Affordable Care Act challenges — here.  In addition, the application for the 2-year Georgetown Center for the Constitution Fellowship is now available.  Here is how the Fellowship is described:

The Georgetown Center for the Constitution Fellowships is designed for a highly-qualified law graduate who intends to pursue an academic career.  We seek applicants who have shown an aptitude for independent scholarly research, as demonstrated by their scholarly work in law school, research related to other graduate degree programs, and/or their professional activities after law school.

During their residence at Georgetown, Fellows are expected to produce significant scholarship for publication and teach a seminar on the subject of their research as a Visiting Lecturer. The Fellow also will contribute to the intellectual life of the Center by participating and guest lecturing in various constitutional law courses at Georgetown, and will have the opportunity to take part in the Georgetown Law Fellows’ Collaborative in preparation for the academic job market. The position is designed for individuals intending to go onto the legal academic job market within two years.

The Fellowship

The Fellow will be in residence at Georgetown Law Center for a two-year period. The Fellowship permit the Fellows to complete a year of research, writing and teaching a seminar, before applying for teaching positions during their second year. During the Fellow’s tenure at Georgetown, he or she will be expected to produce at least one major academic piece of scholarship. The Fellow will be mentored by the faculty associated with the Center, and will work closely with his or her mentors in the development of the major writing project.

The Fellow will also be expected to contribute to the intellectual life of the Center in a meaningful way by participating, where appropriate, in ongoing Center projects. This will include attending and participating in Center programs.  The Fellow will also  have the opportunity to attend scholarly symposia, lectures, and brown bag seminars with Georgetown Law faculty, and to participate in the Georgetown Fellows’ Collaborative, described below.

The Georgetown Fellows’ Collaborative

The Georgetown Fellows’ Collaborative is a program designed for the fellows at Georgetown Law and its various institutes who wish to pursue an academic career. The core of the Georgetown Fellows’ Collaborative is the regular Fellows Workshop and the ongoing Fellows Seminar. Members of the Fellows’ Collaborative are also invited to programs about the teaching market, and work together and with members of the faculty in the application process.

Fellows Workshop

The Fellows Workshop meets every other week and gives Fellows from the different Georgetown programs an opportunity to present their works in progress to one another. The goal is to improve the quality of participants’ work in a collaborative, supportive, critical and rigorous process of peer-review. The Fellows Workshop is run in the same format as faculty workshops. Presenting fellows are encouraged, though not required, to invite faculty with relevant interests to attend as well.

Fellows Seminar

The Fellow is expected to participate in the Fellows Seminar, which is conducted by members of the faculty. The Fellows Seminar provides, in two years, an overview of major ideas in legal thought and scholarship. The Fellow will have the opportunity to participate in four seminars, consisting of: (1) Legal Theory and Jurisprudence (2) Law and Social Sciences (3) Law and Humanities, and (4) Contemporary Debates in Legal Scholarship. A different seminar will be offered each semester. Fellows are not required to produce any writing for the seminar, but it is expected that the Fellow will participate in a lively discussion.

Benefits

The Fellowship offers a competitive stipend and eligibility for staff health insurance.

Additional application information, and a link to download the application form, is here.   The deadline for applications is February 1st.

This day in liberty: On December 6, 1865 the Thirteenth Amendment was adopted by the requisite majority of states, thus abolishing slavery in the United States.

Scene in the House on the Passage of the Proposition to Amend the Constitution, January 31, 1865.

The Examiner’s Tim Carney had a nice column yesterday on how the House GOP is operating in the pocket of the entertainment industry when it comes to copyright entitled, GOP sides with Mickey Mouse on copyright reform.  The column was provoked by the decision of the Republican Study Committee to withdraw a report urging reform of copyright restrictions, and then dismissing the staffer, Derek Khanna, who authored the report.  After describing the controversy over the paper Carney continues:

Republicans are surprisingly close to the entertainment industry. For instance, Mitch Glazier, as a Republican House Judiciary Committee staffer in the late 1990s, played a key role in drafting GOP bills expanding copyright before cashing out to the industry. He now runs the Recording Industry Association of America, a $4 million-a-year lobby operation that fights for more government protection of record labels.

So Republican politicians, with their sensitivities to K Street and their general pro-big-business tendencies, are not eager to roll back the extraordinary government protection for Hollywood and Nashville. But free-market think tanks and writers are banging the drum.

Jerry Brito, a scholar at the Mercatus Center, has just published“Copyright Unbalanced: From Incentive to Excess,” an entire book of essays critiquing current copyright law from a free-market perspective, and the Cato Institute is hosting a panel on the book Thursday.

Brito’s incisive book tells tale after tale of government kowtowing to copyright holders. An egregious example is Mickey Mouse. “Each time the copyright ... was about to expire, and the happy rodent was about to become a shared cultural icon like Santa Claus, Hamlet, and Uncle Sam, Congress has extended the copyright term,” Brito explains.

This is not at all what the founders had in mind when they authorized Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. ... ”

Retroactively extending the copyright on a work produced long ago cannot promote useful arts and sciences. It just enriches the copyright holder and denies access to everyone else — which is exactly the point, if you’re an industry lobbyist.

Once again, big business is aligned with big government and against open competition. So far, the party of free markets is on the wrong side.

I have worked with Khanna (profiled here), who is also an evening student at Georgetown Law, and found him to be a very bright, principled and committed individual who did not deserve this fate.   Here’s hoping he lands at an outfit that can make full use of his considerable talents and initiative.

Earlier this week, James Taranto of Best of the Web (which I faithfully read every day) disparaged the challenge to Obamacare being brought by the Pacific Legal Foundation, a challenge that is based on the fact that the “tax” in the Affordable Care Act did not originate in the House as  seems to be required by the Constitution.  Yesterday, Tim Sandefur, attorney for PLF  (and author of The Right to Earn a Living), responded on its blog with this post:  Will the courts enforce the Origination Clause against Obamacare?    After candidly admitting that the challenge is an uphill battle, Sandefur offers the following legal analysis:

Taranto’s right that the Supreme Court has distinguished taxes that are “bills for raising revenue” and uses of the tax power that are something else—“penalty assessments” or “fines” used to enforce compliance with a law passed under one of Congress’ enumerated powers. The Constitution’s limits on the taxing power don’t apply to the latter. In Munoz-Flores, the Court upheld a penalty that convicted criminals were forced to pay into a special “victims’ compensation” fund, because that was not a bill for raising revenue—it was an assessment used to enforce compliance with a federal criminal law. In Millard v. Roberts, what looked like a tax was actually a financial penalty used to enforce compliance with a law regulating railroads, which was passed under Congress’ enumerated power to govern the District of Columbia. Courts of Appeals have upheld similar financial penalties used to enforce compliance with regulations of interstate commerce. At first, the Obamacare penalty looks a lot like this.

Yet the NFIB decision said no. There, the majority ruled that the Individual Mandate is only a tax, passed solely on the basis of Congress’ taxing power, and not a penalty used to enforce compliance with a regulation of commerce. The exaction “may for constitutional purposes be considered a tax, not a penalty,” the Court said. “[U]nlike the ‘prohibitory’ financial punishment inDrexel Furniture,” a person may make a “reasonable financial decision to make the payment rather than purchase insurance.” Second, the law doesn’t require any kind of mental state—it doesn’t assess a person’s wrongfulness—it just requires a person to pay. Third, the IRS “is notallowed to use those means most suggestive of a punitive sanction” in order to enforce the exaction. For these reasons, the Court said the Obamacare tax was the reverse of the penalty in the Drexel Furniture case, which though calling itself a tax was actually a penalty for enforcing compliance with a regulation of commerce. Here, what called itself a penalty was actually only a tax. Obviously it was meant (unjustly) to make people buy insurance against their will, but that “does not mean that it cannot be a valid exercise of the taxing power….  It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.” Whatever one thinks of this, we have to take the Court at its word: the law is only a tax. And the justices went on to determine whether it was an unconstitutional direct tax, which they would not have done if the tax were only being used to enforce compliance with a regulatory scheme: “Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.”

Contrast that with the Fourth Circuit’s decision in Rodgers v. United States, a follow-up to the infamous Wickard v. Fillburn. There, the farmer argued that the fee for growing too much wheat was an unconstitutional direct tax. The court ruled it was not, because it was really not a tax—only an “imposition of sanctions by the Congress under the commerce clause.” Since the Constitution’s various limits on the taxing power “relate[] solely to taxation generally for the purpose of revenue only, and not impositions made incidentally under the commerce clause,” the penalty wasn’t subject to the constitutional restrictions on the taxing power.

So while Taranto is right that the Court has created two categories of monetary exactions—those that are bills for raising revenue and those that exist just to enforce compliance with some other law—the NFIB decision places the Obamacare exaction squarely in the former and not in the latter category. And the exception to the Origination Clause that the cases have established applies only to the latter. Taranto writes that it’s “far from clear that ObamaCare was a ‘Bill for raising Revenue,’ since its main purpose was to remake the health insurance market,” but Congress can “remake the market” either through a Commerce Clause enactment and associated penalties, which are not subject to the Origination Clause, or through a tax itself—which is subject to the Origination Clause.

Of course, the Court could construct a new exception to the Origination Clause, which would exempt even legislation that, like the PPACA, rests solely on Congress’ power to tax. It could expand the exception to apply not just to enforcement assessments attached to Commerce Clause enactments or other enumerated powers (such as were at issue in Munoz-Flores, Rodgers, and other cases), but also to behavior-changing taxes that rest solely on the taxing power. But that really would open the door to tax-power-based government reconstructions of American society, and with minimal democratic oversight. That would be as much an unprecedented innovation in constitutional law as was the effort to expand the Commerce Clause to authorize compulsory purchases, which the NFIB majority rejected. And if the NFIB decision risks opening the door to tax-based mandates—something the Court denied—then it is all the more important that the Constitution’s democratic checks and balances over that taxing power should be enforced, not ignored. At least allow voters to control this power as the framers intended.

Again, we can’t know what the courts will do until they do it, but I hope I’ve shown why it’s worthwhile for us to litigate this case.

All of this talk could be moot, of course, if Chief Justice Roberts’ Commerce Clause opinion in NFIB is just non-binding dicta. Mr. Taranto strongly believes it isn’t, and so do I, but until the courts say so, it’s still possible that the trial judge could ignore all our tax arguments and uphold the Individual Mandate as an exercise of the Commerce Clause, on the grounds that the NFIBdecision didn’t resolve that issue one way or the other. We’ve also asked the court to clarify this point, which is another reason our case is important.

Finally, keep in mind that ours is only one of several challenges to Obamacare still being litigated. There’s the Oklahoma case challenging Obamacare exchanges, the Arizona case challenging IPAB, and the cases challenging the contraception mandate, and probably others. At the same time, states are refusing to collaborate with the Obamacare mandate by declining to establish exchanges. All of this is critical to keeping open the possibility of market-based health insurance reform and strengthening resistance against the ultimate government takeover of medicine. We know this is a hard case to win. But so was the NFIB case, and so is every case seeking to rescue liberty from the ever-growing regulatory welfare state. We cannot succeed if we do not make the effort.

For more on our case, please take a moment to listen to our latest PLF Podcast, or check out our litigation backgrounder and our blog posts about this case.

On November 20th, after visiting my seminar, Recent Books on the Constitution, Justice Scalia held a book signing for Reading Law at Georgetown Law for the inaugural event of the new Georgetown Center for the Constitution that I will be directing.

Georgetown Law Dean William Treanor, Justice Antonin Scalia, and Professor Randy Barnett

The Georgetown Center for the Constitution will be devoted to studying and developing originalist textualism. I will post more on the projected scope of its activities soon when our web page goes live.   But, in addition to events such as this one, the Center will offer two 2-year fellowships in residence at Georgetown to assist in preparing for law teaching positions, an annual conference, a week-long credited summer seminar for law students on “Originalism and the Federalist Papers” (cosponsored with the Legal Studies Institute of the Fund for American Studies) and a summer weekend boot camp for originalist scholars to examine both the theory of originalism and how it should best be practiced in a rigorous and nonideological manner.

The Harvard Law Review‘s annual Supreme Court Foreword is the highest profile article published by America’s premier law review. This year’s Foreword, by Stanford law professor Pam Karlan, is entitled “Democracy and Disdain” (a take off on Richard Hart Ely’s classic book, Democracy and Distrust). As Orin noted a couple weeks back, the Review asked Steve Calabresi and me to contribute replies to the Harvard Law Review Forum. Steve’s excellent reply, “The Constitution and Disdain,” his here. My reply, “The Disdain Campaign,” is here.  It’s theme is taken from the movie Cool Hand Luke:

You run one time, you got yourself a set of chains. You run twice you got yourself two sets. You ain’t gonna need no third set, ‘cause you gonna get your mind right. And I mean RIGHT. Take a good look at Luke. Cool Hand Luke?

Here is the abstract:

In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as “a thinly veiled critique of Congress: the fools couldn’t even figure out how to structure section § 5000A to render it constitutional.” And of the Chief Justice’s attitude, she says that “[h]e conveyed disdain even as he upheld the Act.” In her conclusion, she asks, “if the Justices disdain us, how ought we to respond?” This question echoes how she begins her provocative piece: “The Court’s dismissive treatment of politics raises the question whether, and for how long, the people will maintain their confidence in a Court that has lost its confidence in them.”

Although Professor Karlan also offers insightful observations comparing the Roberts Court with the Warren Court, her principal theme is reflected in these passages and the very title of her piece: “Democracy and Disdain.” According to Karlan, in addition to whatever may be wrong with their principles and doctrines, the conservative Justices simply have a bad attitude. To paraphrase the Captain in Cool Hand Luke, they don’t have their “minds right.” It is this quite distinctive thesis the author wishes to examine here. For, as it happens, the left knows a thing or two about disdain.

My conclusion:

Disdain is okay, so long as it is directed at the five conservative Justices on the Supreme Court when the four progressive ones are opposing them.

Indeed, disdain is a weapon to be wielded like the dogs in Cool Hand Luke to bring conservative Justices to heel. It is not enough for the Chief Justice to yield to the political branches. He must also have his mind righ

Boss Paul: You got your mind right, Luke? Luke: Yeah. I got it right. I got it right, boss. (He grips the ankles of the guard) Boss Paul: Suppose you’s [to] back-slide on us? Luke: Oh no I won’t. I won’t, boss. Boss Paul: Suppose you’s to back-sass? Luke: No I won’t. I won’t. I got my mind right.

Until Chief Justice Roberts does — or until the conservative Justices lose their slim majority — the disdain campaign will continue.

As I chronicle in the rest of the essay, Karlan’s Foreword is just the latest in a campaign to impugn the integrity of the conservative justices and, if need be, the Supreme Court so long as there is a conservative majority.  I thank the Review for soliciting alternative perspectives.  You can read the whole thing here or here.

For those who don’t remember the scenes from Cool Hand Luke, we can thank YouTube for letting us see them again: