The Volokh Conspiracy

Slate columnist Farhad Manjoo has an interesting article arguing that conservatives are right to complain about the IRS’ use of political profiling, but argues that they should use the same reasoning to rethink their support for racial profiling in law enforcement. As he points out the IRS justification for political profiling is very similar to standard arguments for racial profiling in combatting terrorism and crime:

Pretend you work at the Internal Revenue Service... Every day, a big stack of files lands on your desk.... Each file represents a new application for a certain tax status—501(c)(4), a tax-exempt designation meant for “social welfare” organizations. Nonprofits with this status aren’t required to disclose the identity of their donors and they’re allowed to lobby legislative officials. The catch is that they must limit their political campaign activity....

It’s your job to decide which 501(c)(4) applications represent legitimate social-welfare organizations, and which ones are from groups trying to hide their campaign activities. What’s more, you’ve got to sort the good from the bad very quickly, as you’re being inundated with applications....

So what do you do? You look for a shortcut. Someone at your office notices that a lot of the applications for 501(c)(4) status are from groups that claim to be part of the burgeoning Tea Party movement. Aha! When you’re looking for signs of political activity, wouldn’t it make sense to search for criteria related to the largest new political movement of our times? So that’s what you do...

[T]here’s a name for the kind of shortcut that the IRS’s Cincinnati office used to pick out applications for greater scrutiny: “profiling.” By using superficial characteristics—groups’ names or mission statements—to determine whether they should be subject to deeper investigation, the IRS was acting like the TSA agent who pulls aside the guy in the turban, or the FBI agents that target mosques when investigating terrorism, or New York City cops who stop and frisk young black males in an effort to prevent crime....

All these efforts rely on the same intellectual justification—looking at surface characteristics makes sense because they’re a potential signal of deeper activity, whether it’s terrorism or crime or electioneering. As a right-wing blogger might say, “Not all Muslims are terrorists—but most terrorists are Muslims....”

That’s exactly what the IRS was doing with Tea Party groups. Not all Tea Party groups applying for 501(c)(4) status were engaged in campaign politics. But out of all the many groups that applied for such status, wouldn’t any reasonable person guess that a group called “Tea Party Patriots” is more likely to be engaged in campaign activity than, say, a group focused on rescuing abandoned puppies?

The deep irony of the IRS scandal is that people on the political right are being subjected to exactly the kind of profiling that they’ve long advocated in fighting terrorism and crime—and they don’t seem to appreciate it. I’m on their side: This case perfectly illustrates why profiling is wrong...

I made a similar point several years ago when I explained the parallels between the conservative defense of racial profiling and left-wing rationales for affirmative action (see here and here). Overall, I think Manjoo is right. And if he has not already done so, he should extent his skepticism about the use of profiling to cover the affirmative action case.

But I do have two caveats about his argument. First, I am not convinced that the IRS was merely engaged in neutral profiling intended to increase the chance of ferreting out political groups. It is true that “a group called ‘Tea Party Patriots’ is more likely to be engaged in campaign activity than, say, a group focused on rescuing abandoned puppies.” But the same is true of a group called “Occupy Wall Street” or one with some other name using a standard left-wing catch-phrase. Yet there is no evidence that the IRS targeted groups with liberal code words in their names in the same way it targeted conservative ones. That suggests political bias, not just a simple effort to economize on search costs. Obviously, however, racial profiling in law enforcement often flunks the neutrality test as well.

Second, I would not go as far as Manjoo in abjuring all forms of profiling. There is a difference between profiling based on characteristics that impinge on important constitutional rights such as freedom of speech and freedom from racial discrimination by government and profiling policies that rely on less problematic proxies. The latter may also be unjust or ineffective. But they are not as objectionable as profiling based on race or ideology.

That said, I hope that the IRS scandal will indeed persuade conservatives who support racial profiling to reconsider the issue. I also hope that more liberals will apply their critique of racial profiling to affirmative action.

On Monday April 1, I will be speaking at a George Mason University School of Law panel on the Tea Party movement and voter rationality. Lots of data show that voters are often ignorant about politics and highly biased in their evaluation of the information they do know. The panel will focus on the extent to which Tea Party supporters are better than other voters on these dimensions, worse, or roughly the same.

Also participating in the event are co-blogger Todd Zywicki (who is a prominent academic expert on public choice theory), and Matt Kibbe of Freedomworks, one of the leading organizations associated with the Tea Party Movement). The panel will be held at George Mason Law School from noon to 1 PM in Room 222. It is sponsored by the GMU Federalist Society.

I have written about the Tea Party movement and political ignorance in this article, and here. My general take is that Tea Party supporters probably have higher political knowledge levels than the average voter because they have higher-than-average education and interest in politics (two strong predictors of political knowledge). However, as I discuss in my article linked above, they are far from free of the ignorance and political bias that are common across the political spectrum. For example, I cited surveys showing that “birtherism” is much more widespread among Tea Party supporters than among the public as a whole. This is part of a general pattern in which committed partisans are more likely to fall for myths that conform to their preexisting biases.

Earlier this week I was interviewed by Brad Plumer of the Washington Post‘s Wonkblog about my ideas for “conservative” approaches to environmental protection (and my recent paper on the subject). The resulting article is here.

In a recent column, Harvard Law Professor Cass Sunstein argues that Republican senators who have filibustered some of Barack Obama’s judicial nominees are more to blame than Democrats who previously filibustered GOP nominees because the Democrats only tried to block nominees who were “out of the mainstream,” while the GOP targeted any nominees whom they “strongly disagree” with on constitutional issues. Sunstein does recognize that “Senate Democrats deserve a fair share of the blame for this dismal situation” because “their use of the out-of-the-mainstream test sometimes veered disturbingly close to the disagreement test.” But he claims that the GOP has gone further than the Democrats did.

Sunstein’s critique is overdrawn. If the Republicans really tried to filibuster any Obama nominees with whom they have strong disagreements, they would have filibustered virtually all of them, not just a few. In reality, they have targeted nominees who they thought were even more liberal than the average nominees put up by a Democratic administration and/or had a “paper trail” that made them unusually vulnerable to attack. Democrats pursued a similar strategy during recent Republican administrations.

Most of the nominees that Democrats aggressively opposed during the Reagan, Bush I, and Bush II administrations were well within the mainstream of modern conservative constitutional thought. That was certainly true of high-profile cases such as Miguel Estrada and Peter Keisler. Similarly, most of the Democratic nominees targeted by Republicans under Clinton or Obama were well within the mainstream of modern liberal constitutional theory.

The underlying reality here is that there is a deep chasm between mainstream conservative views on constitutional interpretation and mainstream liberal ones. The standard-issue conservative Republican jurist believes that the Constitution provides extensive protection for gun rights and property rights, that the courts should enforce significant federalism-based constraints on Congress’ powers, that all or most affirmative action programs violate the Fourteenth Amendment, that Roe v. Wade should be overruled, and that there is no general right to privacy in the Constitution. The standard-issue liberal Democratic jurist thinks that all of the above is wrong. Each side believes that the other side is not only wrong about some particular issues, but has a fundamentally defective approach to constitutional interpretation and the role of judicial review. Much of what the conservative mainstream believes about constitutional law is completely anathema to the liberal mainstream, and vice versa.

Yet both sets of views are clearly within the “mainstream” of their respective parties. And both also enjoy substantial public support. I won’t run through all the relevant survey data here. But both liberal and conservative positions on most of the above constitutional issues have considerable appeal (usually at least 30-40 percent of the publidc). Neither is confined to a small clique of “extremists.”

Given the deep divide between the conservative mainstream and the liberal one, it is no surprise that the two sides have gradually escalated their efforts to impede the other’s judicial nominees over the last thirty years. If you think that the other party’s nominees are not just suboptimal but threats to fundamental constitutional principles, you are likely to seize on any possible tools that could be used to block them.

Once we recognize that the issue here is not a conflict between “extremists” and “the mainstream,” but one between two mainstream views that are very far apart, there are three reasonable responses to the situations. One is co-blogger Jonathan Adler’s view that both sides should abjure the use of the filibuster and other delaying tactics, and perhaps also stop opposing technically qualified nominees on the basis of their judicial philosophy. Another (closer to my view) is that both sides are equally entitled to consider nominees’ views and to use any blocking tactics permitted by the rules of the Senate. The Senate can, of course, change its rules. But until they do so, it is not wrong for either side to exploit them for the purpose of opposing judicial nominees who they believe are likely to make badly misguided decisions should they get on the bench.

Finally, partisans on each side can argue that their side is justified in using aggressive tactics and the other is not because the former is right about the constitutional issues in dispute, while the latter is wrong. Just as just wars have a different moral status from unjust ones, so the use of the filibuster against nominees who are badly wrong about key constitutional issues is more legitimate than its use against those who are right.

But there is a big difference between distinguishing between nominees with right and wrong views and distinguishing between those who are inside and outside of the mainstream. A mainstream view of the Constitution can be badly wrong. Indeed, if mainstream liberals are right about constitutional interpretation, that implies that the mainstream conservative view is badly wrong, and vice versa. Similarly, an extremist view can be correct. Between, say, 1890 and 1930, the view that the Constitution bans racial segregation in public education was clearly an “extreme” one. Ditto for the view that the Constitution imposes tight constraints on sex discrimination by state governments (considered extreme for much of American history), and quite a few other cases.

There are serious arguments for each of these three approaches. But none of them can rest on the assumption that either the Democrats or the Republicans are targeting only “out of the mainstream” nominees.

Ultimately, we should spend less time talking about whether nominees’ views are “out of the mainstream” and more time focusing on whether they are correct. For the most part, presidents of both parties are likely to nominate judges who are within the mainstream of their side of the political spectrum, and that mainstream is also likely to enjoy considerable public support (even if not always a majority). But when one side’s mainstream is deeply at odds with the other’s, that suggests that one or both are also badly misguided.

UPDATE: I have changed the title to better reflect the argument of the post.

Last fall, I participated in a conference at Duke Law School on “Conservative Visions of Our Environmental Future,” sponsored by the Duke Environmental Law and Policy Forum, Nicholas Institute for Environmental Policy Solutions, Nicholas School for the Environment, Duke Federalist Society, Duke College Republicans and the Energy & Enterprise Initiative.   I blogged the event, summarizing the various talks as they occurred, save for my own. (It’s a bit hard to talk and type at the same time.)

A brief paper, summarizing my remarks, is now on SSRN.  Here’s the abstract:

The existing environmental regulatory architecture, largely erected in the 1970s, is outdated and ill-suited to address contemporary environmental concerns. Any debate on the future of environmental protection, if it is to be meaningful, must span the political spectrum. Yet there is little engagement in the substance of environmental policy from the political right. Conservatives have largely failed to consider how the nation’s environmental goals may be best achieved. Perhaps as a consequence, the general premises underlying existing environmental laws have gone unchallenged and few meaningful reforms have proposed, let alone adopted. This essay, prepared for the Duke Law School conference on “Conservative Visions of Our Environmental Future,” represents a small effort to fill this void. Specifically, this essay briefly outlines a conservative alternative to the conventional environmental paradigm. After surveying contemporary conservative approaches to environmental policies, it briefly sketches some problems with the conventional environmental paradigm, particularly its emphasis on prescriptive regulation and the centralization of regulatory authority in the hands of the federal government. The essay then concludes with a summary of several environmental principles that could provide the basis for a conservative alternative to conventional environmental policies. 

This paper will be published along with other papers from the conference in a symposium issue of the Duke Environmental Law and Policy Forum due out later this year.

UPDATE: My Washington Post “WonkBlog” interview about this paper is available here.

Best line of the evening: “I don’t think you’re stoners... You’re nerds!”

Former Utah Governor Jon Huntsman endorses gay marriage in The American Conservative. Here’s a bit of his argument:

All Americans should be treated equally by the law, whether they marry in a church, another religious institution, or a town hall. This does not mean that any religious group would be forced by the state to recognize relationships that run counter to their conscience. Civil equality is compatible with, and indeed promotes, freedom of conscience.

Marriage is not an issue that people rationalize through the abstract lens of the law; rather it is something understood emotionally through one’s own experience with family, neighbors, and friends. The party of Lincoln should stand with our best tradition of equality and support full civil marriage for all Americans.

This is both the right thing to do and will better allow us to confront the real choice our country is facing: a choice between the Founders’ vision of a limited government that empowers free markets, with a level playing field giving opportunity to all, and a world of crony capitalism and rent-seeking by the most powerful economic interests.

I agree with Huntsman’s take, in particular his suggestion that the issue of same-sex marriage is “not an issue that people rationalize through the abstract lens of the law.”  This is one of the reasons it’s such a difficult issue for the courts.

There are powerful policy arguments for recognizing same-sex marriages.  As my co-blogger Dale Carpenter has shown, there is even a strong prudential conservative case for allowing same-sex couples to marry.  Yet the legal arguments that recognition of same-sex marriage is constitutionally compelled are not nearly so compelling.  As I see it, the ultimate issue is the definition of marriage — whether the state may define the institution as a union of a man and a woman or whether an individual’s “right to marry” necessarily entails the right to redefine the institution.  Viewed in this light, state laws maintaining a traditional definition of marriage easily satisfy rational basis scrutiny and could likely meet the demands of intermediate scrutiny as well.  (The federal government’s refusal to recognize same-sex marriages recognized under state law, on the other hand, is a closer call, as it is not clear there is a sufficient federal interest to satisfy all but the least demanding variants of rational basis review.)  So while I hope same-sex marriage ultimately prevails, I wish the battle was being fought in the political arena rather than in the courts.

[An interesting aside: Huntsman's essay, which also calls upon the GOP to be more welcoming of immigrants, appears in a magazine co-founded by Pat Buchanan.]

It was interesting to see that both Marco Rubio in his official Republican response to President Obama’s State of the Union and libertarian-leaning Senator Rand Paul in the Tea Party response argued for a less restrictive immigration policy. This is an important development for a party whose conservative wing has long been known for its support of restrictionism.

Rubio restated his longstanding support for expanding legal immigration and at least some regularization of the status of the illegal immigrants already here. The notable development here is not that he said it, but that it was embodied in the GOP’s official response to the President.

Paul actually went further than Rubio, advocating a much broader pro-immigrant stance:

We are the party that embraces hard work and ingenuity, therefore we must be the party that embraces the immigrant who wants to come to America for a better future.

We must be the party who sees immigrants as assets, not liabilities.

We must be the party that says, “If you want to work, if you want to become an American, we welcome you.”

Taken literally, this suggests a policy of open borders for anyone who “want[s] to work” and “become an American.” Most likely, Paul did not intend to go that far. But it’s still a pretty strong statement, reminiscent of Ronald Reagan’s 1989 farewell address, where he called for an America “open to anyone with the will and the heart to get here.” And unlike both Rubio and President Obama in the State of the Union, Paul did not couple this call for increased immigration with a call for increased border enforcement.

It is significant that this sentiment was included in a speech billed as the official Tea Party response to the State of the Union. Although the Tea Party is often portrayed as a group of extreme social conservatives, it also has a large libertarian wing that includes about half of its supporters. Paul’s speech is an important sign that the libertarian wing of the Tea Party is gaining ground, at least on immigration. I discussed the distribution of Tea Party opinion in more detail in this article.

It is also noteworthy that both Rubio and Paul linked support for immigration with a more general pro-free market and pro-individual freedom stance. I elaborated on that idea in more detail here. Free migration is also an important element of political freedom.

Obviously, the immigration sections of Paul’s and Rubio’s speeches are very general. It remains to be seen whether and to what extent the GOP and the Tea Party movement will translate them into policy specifics. Moreover, the Republican Party still clearly contains a large restrictionist wing, some parts of which verge into nativism. They are not simply going to give up as a result of these two speeches.

The speeches also did not address standard conservative objections to immigration, such as the claim that it will lead to massive increases in welfare spending, which I challenged here. Like most political speeches, Rubio’s and Paul’s have little in the way of in-depth reasoning.

Despite these caveats, it is clear that the winds of change are blowing in the GOP on this issue, probably for a combination of both political and principled reasons. Combined with President Obama’s own apparent commitment to immigration reform, which he reiterated in the State of the Union, it’s even possible we will get some change we can believe in.

UPDATE: It’s worth noting that Rand Paul’s Senate website is much less pro-immigration. The page devoted to the issue mostly focuses on the supposed need to prevent illegal immigration, while only briefly mentioning his “support [for] legal immigration.” It’s theoretically possible to reconcile the website and the speech by noting that a policy that makes immigration legal for all those who “want to work” and become Americans would largely eliminate the issue of illegal immigration, because the vast majority of potential immigrants could then just get in legally. It’s more likely, however, that the speech represents either a change of position or at least a major change of emphasis. If immigrants really are “assets, not liabilities,” it makes no sense to make a big point of “securing the border” against them, as Paul does on the Senate website.

National Review has posted an on-line symposium in honor of Judge Robert Bork, the great legal scholar and jurist who passed away today. Here is an excerpt from my contribution:

Judge Robert Bork was an outstanding legal scholar and jurist. It is often forgotten that he first became prominent thanks to his path-breaking work on antitrust law and economics in the 1960s and ’70s. In this area, he made major advances that have become conventional wisdom for scholars across the political spectrum....

Bork’s theories on constitutional law are far more controversial. Nonetheless, he undeniably made a major contribution to the defense of originalism. He played a key role in bringing it from the margins of legal thought to the center....

In his later years, Bork ran into two contradictions that bedevil conservative legal and political thought more generally. The first is the tension between originalism and judicial deference to the democratic process. In many cases, enforcing the original meaning of the Constitution requires imposing tight constraints on legislative and executive power.... Second, Bork advocated extensive government regulation and “censorship” (his word) of the culture, without considering the possibility that this form of government intervention is often prone to the same pitfalls that he had earlier identified in government economic regulation.

The controversy over his 1987 Supreme Court nomination and the continuing ideological divide over judicial review make it difficult to objectively assess Judge Bork’s legacy. In the long run, however, I think he will be remembered for his important contributions to legal thought — even by those who, like myself, disagreed with many of his conclusions.

I previously wrote about Judge Bork’s legal and political thought (mostly focusing on the differences between us) here and here, and in this 2008 article for a symposium on Bork’s work. Readers of those pieces will see that I have many reservations about Bork’s ideas. Nonetheless, he was a giant of late 20th century legal thought, and will be remembered as such. The fact that we are still debating his work decades after his most influential books and articles were published is in itself a major testament to his significance.

I only briefly met Judge Bork. For that reason, I have focused these reflections on his legal and political thought rather than my very limited personal impressions of the man. But I would like to take this opportunity to extend condolences to Judge Bork’s family, friends, and professional colleagues, some of whom may perhaps be readers of this blog.

UPDATE: The symposium also includes a good contribution by co-blogger Jonathan Adler.

Six states have marijuana legalization referendum questions on the ballot in this year’s election. Philip Smith has a good summary of them on the Stop the Drug War website [HT: Tom Angell]. Colorado, Oregon, and Washington will vote on initiatives to legalize marijuana generally, though all three would impose fairly extensive regulation on the new marijuana market. I wrote about Colorado’s Question 64 in this post. Arkansas, Massachusetts, and Montana will be voting on the legalization of medical marijuana only.

None of these six initiatives go as far as I and many other opponents of the War on Drugs would ideally want. But, if they pass, all would be noteworthy improvements over the status quo, especially the three that would legalize marijuana generally.

State-level initiatives obviously cannot repeal federal laws banning marijuana. But they can make enforcement of federal law more difficult by withdrawing state support for it, and also help create political momentum that could eventually lead to repeal of the federal law. Both public and elite support for drug legalization has grown in recent years, with support for the legalization of marijuana hitting 50% for the first time last year. If all or most of these initiatives prevail, it could strengthen the political momentum of legalization and help promote additional reform at both the state and federal level.

Much of the remaining political opposition to drug legalization comes from political conservatives, who polls show are far more likely to support the War on Drugs than liberals and moderates. I summarized the conservative case for legalization here. Skeptical conservatives may also want to check out William F. Buckley’s important 1996 article on the subject.

NYU law professor Richard Epstein has an excellent short summary of F.A. Hayek’s thought and its continuing relevance today. Along the way, Epstein explodes various claims that Hayek’s thought had little intellectual merit and little influence until Tea Partiers and Republicans like Paul Ryan popularized it over the last few years. In reality, as I summarized here, Hayek was one of the most widely cited economists of the last century, influencing not only other economists but also scholars in many other disciplines.

In this 2008 post, I explained why many of Hayek’s ideas remain relevant today. However, it is somewhat ironic that conservative Republicans have embraced his ideas in recent years. Hayek was highly critical of conservatism for reasons that also remain relevant today. He outlined that critique in a famous 1960 essay appropriately entitled “Why I Am not A Conservative.” That doesn’t mean that conservatives are somehow barred from adopting Hayek’s ideas. But they should give greater attention to his critique of their ideology, which is in many ways a natural extension of the Hayekian critique of left-wing statism that many conservatives admire.

UPDATE: I have fixed the previously incorrect link to my 2008 post on Hayek’s critique of conservatism.

Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests that the battle over the mandate has led liberals to change position and embrace “judicial restraint,” which they were reluctant to do before.

There is something to these claims. But I think there is a lot more continuity in both liberal and conservative attitudes towards judicial review than these commentators suggest. As I pointed out at the very beginning of the individual mandate battle, conservative scholars and jurists have been arguing for stronger judicial enforcement of constitutional limits on federal power for many years now. The issue long predates Obamacare.

Alicea contrasts the four conservative justices’ position on the mandate with Chief Justice Rehnquist’s endorsement of “restraint.” In reality, however, Rehnquist led the federalism “revolution” of the 1990s and dissented in Gonzales v. Raich. Moreover, he was advocating stronger enforcement of federalism as far back as the 1976 case of National League of Cities v. Usery . When that decision was overruled in 1985, both he and Sandra Day O’Connor bitterly dissented and forcefully rejected the dominant liberal view that federalism issues should be left to the political process. Thus, there is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.

For at least 30 years, many conservative scholars and jurists have also been urging strong judicial enforcement of constitutional property rights. Rehnquist was a leader on that issue too, notably in his dissent in the key 1978 Penn Central case, which established the modern – largely pro-government – standard for regulatory takings cases.

These longstanding attitudes were sometimes obscured by loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of that rhetoric. But most conservatives used the term “activism” to denounce decisions that they saw as departing from originalism, not simply ones striking down laws.

There is greater consistency than meets the eye on the liberal side too. While liberals have long favored aggressive judicial review on issues like privacy rights and defendants’ rights, they have for decades opposed nearly all judicial enforcement of structural limits on federal power, and most judicial protection for property rights and economic liberties. For nearly a century, the dominant left-wing view has been that such issues must be left to the political process. I think the latter attitude is misguided. But it’s hardly new.

In sum, the main disagreement between liberals and conservatives is not about whether judicial review in general should be deferential to the political process, but rather on what kinds of legislation should be treated deferentially and what kinds should not. There is also, of course, an important longstanding debate over methodology: whether the courts should rely on originalist methodology in deciding which laws to strike down, or whether they should give greater weight to various “living constitution” theories.

I don’t fully subscribe to either the conservative or liberal approaches to judicial review. And I don’t think either has been anything close to fully consistent over time. That’s especially true if you shift the focus away from scholars and judges to politicians and parties, which are more likely to be influenced by short-term political calculations. But both have been a lot less inconsistent than some commentators like to suggest.

The struggle over the individual mandate was not some strange role reversal. It was a continuation of a longstanding battle over the issue of judicial enforcement of federalism.

UPDATE: I should mention that I am still abroad, and therefore may not be able to respond to any responses this post may generate for some time. I took advantage of a short break in my travel schedule to write this post and my previous one.

UPDATE #2: Co-blogger David Bernstein reminds me of Rehnquist’s notable 1981 concurring opinion in Hodel v. Virginia Surface Mining, where he criticized the Supreme Court’s Commerce Clause jurisprudence for giving Congress too much power.

UPDATE #3: Alicea responds to this post here:

I do not disagree with much of what Somin says. How could one dispute that judicial conservatives have long objected to the expansion of federal power and favored a judicial response to this accretion of authority? No one with a passing familiarity of American constitutional history could contest these points, and I did not do so in my essay

It is equally undeniable that Chief Justice Rehnquist was willing to enforce limits on federal power, especially during the federalism cases of the 1990s. My claim was not that Rehnquist was averse to patrolling the boundaries of federal power. Even a Justice with a far more modest view of the judicial role than Rehnquist will encounter statutes that he or she thinks are clearly unconstitutional.

Nor did I argue that Rehnquist’s view of judicial restraint remained constant throughout his tenure on the Court. I wrote only about his role at the founding of the conservative legal movement in the 1970s, long before the Federalism Revolution of the 1990s. That is not to say that Rehnquist’s views changed dramatically from the 1970s through the 1990s, but I confined my observations of the Justice to his role at the beginning of the movement.

I do think that Rehnquist expressed a modest view of the judicial role during the 1970s, as his 1976 lecture on the “Notion of a Living Constitution” shows....

Even if I were mistaken in describing Rehnquist’s jurisprudence, that would not undermine my point that the older view of judicial restraint was once dominant in the conservative legal movement. Robert Bork undoubtedly adhered to the Justice Harlan conception of restraint, and I think it is fair to say that his jurisprudential views were emblematic of the movement until the early- to mid-1980s. Somin focuses on Rehnquist’s views, but my argument was much broader and does not rise or fall with how the Rehnquist of the 1970s is categorized.

Thus, I think that in arguing that my case is overstated, Somin overstates my case. He ascribes positions to me that I did not express in the article. To take another example, I did not say that the healthcare decision “represents a sea change in conservative attitudes to judicial review.” In fact, I argued quite the opposite: that the change in legal conservatives’ conception of judicial restraint has been going on since at least the 1990s. The healthcare decision simply highlights how far legal conservatives have moved away from the old, Justice Harlan conception of restraint, with its emphasis on deference to current majorities and modest view of the judicial role...

I end by noting that neither Somin nor [Ed] Whelan disagreed with a key argument in the article: that there are two different views of judicial restraint within the conservative legal movement.

With regard to Rehnquist, as I explain in my original post, he argued for strong judicial review on federalism and property rights issues long before the 1990s, and indeed going all the way back to the 1970s. in the 1976 article that Alicea cites, Rehnquist criticized not strong judicial review as such, but judicial review based on “living constitution” theories. He did not object to aggressive judicial review in cases where the legislature adopts laws that are unconstitutional from an originalist point of view.It is also important to emphasize, as I briefly note above, that Rehnquist was not alone in holding those views. Several other conservative justices of the era expressed similar views on federalism, notably Sandra Day O’Connor. Robert Bork did indeed express a more deferential approach to judicial review. But even he suggested in his writings of the 1980s and early 1990s that much of the post-New Deal federalism jurisprudence was questionable. Other prominent conservative jurists made similar statements. Thus, Alicea is wrong to trace the change in conservative perspectives on these issues only back to the 1990s. In reality, it dates back at least to the early to mid-1970s.

I should add that when I said that, on Alicea’s theory, “the individual mandate case represents a sea change in conservative attitudes to judicial review,” I did not mean to suggest that he thinks the sea change occurred only as a result of this case, but rather that the conservative reaction to the mandate is part of a relatively recent change in attitude. I apologize for any confusion on this point. However, I think we do differ in so far as he portrays the change as a relatively recent development, whereas in my view it had deep roots going back several decades.

Finally, I agree that there are at least two views of the judicial role among conservatives. Indeed, there are probably many more than just two. My point, however, is that many prominent conservatives have been arguing for strong judicial review on federalism and property rights issues for a long time now. Neither the 1990s nor the individual mandate case represented a sea change in that respect.

Conservative writer Michael Fumento explains his discomfort with the “extreme right” in Salon. While I think portions of his essay are overstated, I generally agree. Further, like Professor Bainbridge, I found this passage worth repeating:

Civility and respect for order – nay, demand for order – have always been tenets of conservatism. The most prominent work of history’s most prominent conservative, Edmund Burke, was a reaction to the anger and hatred that swept France during the revolution. It would eventually rip the country apart and plunge all of Europe into decades of war. Such is the rotted fruit of mass-produced hate and rage. Burke, not incidentally, was a true Tea Party supporter, risking everything as a member of Parliament to support the rebellion in the United States.

All of today’s right-wing darlings got there by mastering what Burke feared most: screaming “J’accuse! J’accuse!” Turning people against each other. Taking seeds of fear, anger and hatred and planting them to grow a new crop.

That the other side may or may not have done it first is no excuse. If civility and tolerance are virtues — and I believe they are — than one should be civil and tolerant, without regard to what one’s opponents do. More Fumento:

Incivility is hardly the domain of the new right. American society grows ever coarser. But this is cold comfort. Conservative ideology demands civility of conservatives; demands, yes, self-policing. Let others act as they will, bearing evidence of the shallowness of their positions. It also demands respect for official offices, such as the presidency. When our guy is in office, you give him that modicum of respect – and when your guy is in office, we do the same. The other party is to be referred to as “the loyal opposition,” not with words the FCC forbids on the air.

Fumento also suggests this approach can get in the way of meaningful reforms, and I think he has a point here too.

The new right cannot advance a conservative agenda precisely because, other than a few small holdouts like the American Conservative magazine or that battleship that refuses to become a museum, George Will, it is not itself conservative. Pod people are running the show. It has no such capability; no such desire. I find that disturbing for obvious reasons. But, based on my own conversations with liberals, I think – nay, I know – that if more of these allegedly godless, treasonous people understood real conservatism a lot would embrace many conservative positions.

Thus everybody realizes government spending has lost its airbrakes. But while the new right screams the most about big government, it nonetheless supported President George W. Bush as he presided over the largest expansion of government spending since uber-liberal FDR and left us with a massive debt before President Obama was sworn in. Why? Silly rabbit! Because the left opposed him.

It is often said that politics is the art of the possible. The problem with too many politicians is not that they compromise, but that they have no principles to guide them. The American political system is structured to make dramatic change extremely difficult. Major reforms take time, and must often be achieved step by step. Blind ideological rigidity, such as to an anti-tax pledge that would prevent Congress from repealing ethanol subsidies, is no help, and is certainly not conservative. This is not a call for moderation, but for prudence. One can seek dramatic, even revolutionary, changes in the size and scope of government without resort to the tactics Fumento finds so distasteful.

Both sides in the individual mandate litigation have developed a wide range of legal arguments to support their position. Some defenders of the mandate have also emphasized several nonlegal reasons why they believe the Court should uphold the law. These arguments have gotten more emphasis since the Supreme Court oral argument seemed to go badly for the pro-mandate side. The most common are claims that a decision striking down the mandate would damage the Court’s “legitimacy,” that a 5-4 decision striking down the mandate would be impermissibly “partisan,” and that it would be inconsistent with judicial “conservatism.”

Even if correct, none of these arguments actually prove that the Court should uphold the mandate as a legal matter. A decision that is perceived as “illegitimate,” partisan, and unconservative can still be legally correct. Conversely, one that is widely accepted, enjoys bipartisan support, and is consistent with conservatism can still be wrong. Plessy v. Ferguson and Korematsu are well-known examples of terrible rulings that fit all three criteria at the time they were decided.

In addition, all three arguments are flawed even on their own terms.

I. A Decision Striking Down the Mandate is Likely to Enhance the Court’s Legitimacy More than it Undermines it.

Claims that a decision striking down the mandate will undermine the Court’s “legitimacy” founder on the simple reality that an overwhelmingly majority of the public wants the law to be invalidated. Even a slight 48-44 plurality of Democrats agree, according to a Washington Post/ABC poll. Decisions that damage the Court’s legitimacy tend to be ones that run contrary to majority opinion, such as some of the cases striking down New Deal laws in the 1930s. By contrast, a decision failing to strike down a law that large majorities believe to be unconstitutional can actually damage the Court’s reputation and create a political backlash, as the case of Kelo v. City of New London dramatically demonstrated.

Striking down the mandate will damage the Court’s reputation in the eyes of many liberals and some legal elites. But a decision upholding it will equally anger many conservatives and libertarians, including plenty of constitutional law experts. There is not and never has been an expert consensus on the constitutionality of the mandate. Any decision the Court reaches is likely to anger some people, both experts and members of the general public. But more are likely to be disappointed by a decision upholding the law.

Ultimately, the Court should not base its decision in this case on “legitimacy” considerations. If the justices believe that the mandate is constitutional, they should vote to uphold it despite the possible damage to their reputations. But it would be a terrible signal if key swing justices refused to strike down a law merely because their reputations would be damaged in the eyes of a small minority of the public and a vocal faction of the legal elite. It would certainly call into question their willingness to make unpopular decisions that are compelled by their duty to uphold the Constitution, including in cases where they must strike down unconstitutional laws that really do enjoy broad public support.

II. An Impermissibly “Partisan” Decision?

Any decision striking down the mandate is likely to pit the five conservative Republican justices against the four liberal Democrats. Some commentators, such as Larry Lessig and Jonathan Cohn, claim that such a result would be impermissibly “partisan,” creating a perception that the Court is only willing to strike down “liberal” laws.

This sort of argument urges judges to engage in genuinely political decision-making in order to avoid the mere appearance of it. If a Republican-appointed justice votes to uphold a law he believes to be unconstitutional in order to avoid the appearance of “partisanship,” he would be allowing political considerations to trump his oath to uphold the Constitution.

Even if there is a judicial duty to avoid the appearance of a partisan split, why doesn’t it fall on the liberal justices just as much as the conservatives? If one or more of the liberal justices were to join the five conservatives in striking down the mandate, that would diminish the appearance of partisanship just as much as a conservative “defection” to the liberal side would.

Finally, this line of criticism overlooks an important reason why decisions enforcing limits on congressional power often have an ideological division: the Court’s liberals have consistently voted against nearly all structural limits on congressional power under the Commerce Clause, the Necessary and Proper Clause, and the Tenth Amendment. Thus, the Court enforces such limits only in those cases where the five conservative justices can agree among themselves. The only way for the conservatives to avoid the appearance of partisanship in this area would be complete abdication of judicial enforcement of structural limits on congressional power.

III. Consistency with Judicial “Conservatism.”

Jeffrey Rosen and others have argued that a decision against the mandate would be inconsistent with “conservative” attacks on “judicial activism” and deference to legislative judgment. Judicial conservatism is not a single, unitary entity. All sorts of decisions can potentially be justified on “conservative” grounds.

However, one major strand of conservative legal thought over the last thirty years has been the need to enforce constitutional limits on federal government power. This idea would be completely undercut by a decision upholding the mandate, since all of the government’s arguments in favor of the mandate amount to a blank check for unconstrained congressional power. As I explain in detail in this amicus brief for the Washington Legal Foundation and a group of constitutional law scholars, the government’s various “health care is special” arguments collapse under close inspection.

Conservative support for judicially enforced limits on federal power is in some tension with loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of such rhetoric. However, for most on the right, “judicial activism” is not coextensive with any judicial overruling of statutes, but rather with departures from the text and original meaning of the Constitution. And the originalist case against the mandate is very strong.

Conservatives and others can disagree among themselves as to how much deference should be given to Congress in any given case. In considering this issue, they should weigh two points that Rosen advanced in his important 2006 book The Most Democratic Branch: How The Courts Serve America.

Although generally advocating judicial deference to Congress, Rosen notes two important exceptions to this principle. The first is that “When Congress’s own prerogatives are under constitutional assault (in cases involving legislative apportionment or free speech, for example), it may be less appropriate for judges to defer to Congress’s self-interested interpretations of the scope of its own power.” Obviously, there are few more “self-interested” interpretations of “the scope of its own power” than one that would give Congress virtually unlimited power to impose any mandate it wants.

Second, Rosen suggests that “[f]or the Court to defer to the constitutional views of Congress, Congress must debate issues in constitutional (rather than political) terms” (pg. 10). In order to deserve deference, Congress needs to take the relevant constitutional issues seriously. In the individual mandate case, congressional Democrats notoriously demonstrated utter contempt for the constitutional issues, and plenty of ignorance to boot.

In fairness, their performance was no worse than that of the GOP when they controlled Congress during the Bush years. Far from generating serious constitutional deliberation in the legislative branch, the judiciary’s tendency to defer to Congress on federalism issues has had the opposite effect. Both parties give short shrift to constitutional limits on federal power because judicial deference has created a political culture in which almost anything goes. More careful judicial scrutiny of Congress’ handiwork might lead Congress to start taking the Constitution seriously again. That result should be welcomed by conservatives, libertarians, and liberals alike.

A nondeferential posture by the Court wouldn’t necessarily lead to the invalidation of the mandate. It merely means that the justices should give little weight to Congress’ “self-interested” interpretations of its own power and instead come to their own independent judgment on the constitutional issues at stake.

Ultimately, the Court should not decide the individual mandate case based on these sorts of nonlegal considerations. It is more important that its decision be right than that it be perceived as legitimate, nonpartisan, or conservative. But even on its own terms, the nonlegal case for upholding the mandate is not as impressive as its advocates claim.

UPDATE: Ed Whelan makes some relevant points here.

Politico’s Arena site recently asked contributors to weigh in on whether the GOP is likely to be “wounded” by its support for severe restrictions on immigration. My answer is available here:

The real tragedy here is not that the GOP might suffer politically, but that so many conservative Republicans have turned against immigration in the first place. Conservatives claim to support free markets, yet many of them also wish to use massive government intervention to close off an international free market in labor. They extol the virtues of self-help, economic opportunity, and individual achievement. Yet many of them also want to build a wall to keep out immigrants who come seeking greater freedom and opportunity than they could hope for in their native lands.

Had the restrictive immigration policies favored by some of today’s conservatives been in force a century ago, the ancestors of most of those conservatives would never have been able to come to America in the first place....

Ronald Reagan said that America should be “a tall, proud city… teeming with people of all kinds living in harmony and peace.. and … doors …. open to anyone with the will and the heart to get here.” More recently, former Florida governor Jeb Bush urged Republicans to rethink their views on immigration. Conservative Republicans should heed their call.

In this post, I explained why conservatives (and some libertarians) are wrong to worry that increased immigration will lead to a larger welfare state. Evidence from many countries suggests that increased immigration and ethnic diversity actually reduces support for welfare state policies.

For this reason, among others, Jeb Bush is right to urge a change in the GOP position on this issue:

Republicans should reengage on this issue and reframe it. Start by recognizing that new Americans strengthen our economy. We need more people to come to this country, ready to work and to contribute their creativity to our economy.... Just as Republicans believe in free trade of goods, we should support the freer flow of human talent.