Is ObamaCare Unconstitutional?

David Rivkin and Lee Casey argue that a federal mandate requiring all individuals to obtain health insurance would lie beyond the scope of Congress' enumerated powers. Specifically, they argue that neither the power to "regulate commerce among the several states" nor the taxing and spending power could support such an all-encompassing mandate. Here is a taste of their argument:

Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

Jack Balkin is similarly unconvinced. I generally agree with his bottom line, but would question some of his argument as well. First, he chides Rivkin and Casey for making an argument that would effectively invalidate the New Deal. I am not sure this is true. While some post-1937 programs might be at risk, one might also distinguish Wickard on the grounds that it involved a commodity sold in interstate commerce (wheat), whereas health insurance is a service. One might also argue that there is a difference between seeking to control the conditions of any commodity sale (its price, quantity, etc.) and mandating that a sale take place. This line would be similar to that embraced in some New Deal commerce clause cases that upheld federal regulations setting conditions on the manufacture of goods sold in interstate commerce while ostensibly leaving the manufacture of goods not sold in interstate markets untouched. If I recall correctly, this line was maintained until Maryland v. Wirtz in 1968. So while The Rivkin-Casey argument is aggressive, I don't think it would completely overturn the New Deal.

Balkin also chides Rivkin and Casey for citing Bailey v. Drexel Furniture, "a case from the Lochner Era," to make their case. Well, like it or not, Bailey has never been expressly overturned, and I think there's a good reason for that. In Bailey, the Court held that Congress could not use the taxing power to regulate behavior that would otherwise lie beyond the scope of the federal government's other enumerated powers. This may well be true. The problem with Bailey, then, is not its view of the taxing power, but rather the Bailey court's restrained view of the federal commerce power. What makes Bailey and other cases largely irrelevant today is that there is so little that the federal government seeks to tax that it cannot otherwise regulate. I'd also note that it is not as if the Court is averse to relying upon other cases with Lochner-era pedigrees. Indeed, Meyer v. Nebraska and Pierce v. Society of Sisters are still good law, and each is closer kin to Lochner than Bailey, as they relied upon Lochner's substantive due process rationale.

Speaking of substantive due process, there may be other constitutional problems arising from national health care reform — but not of the enumerated powers variety. While the federal government may be able to require national health insurance coverage, could it require all individuals to purchase plans that cover certain procedures? What if the guidelines for acceptable plans include contraception, abortion, and certain types of end-of-life care? Could the federal government require devout Catholics to purchase such plans for themselves? Insofar as a new federal entitlement and regulatory scheme severely limits the ability of individuals to make fundamental health-related choices for themselves without undue federal interference, might it also run up against Griswold, Cruzan, etc.? So long as individuals retain a choice of health care providers such concerns may be quite marginal, but were a "public plan" to become a de facto single-payer plan, the constitutional issue could grow. If limitations on abortion procedures must contain a health exception in order to be constitutional under Casey, would this complicate efforts to control costs by excluding some potentially life-saving treatments under s single-payer system? Of course, these sorts of arguments are more likely to come from libertarians than conservatives, as the latter may be uncomfortable with expanding the scope of the Court's fundamental rights jurisprudence.

UPDATE: Calvin Massey adds his thoughts here.


Is Obama Care Unconstitutional? - Part Deux:

David Rivkin and Lee Casey are back on the WSJ editorial page, arguing once again that current health care proposals are unconstitutional. Specifically, they argue that an "individual mandate" would exceed the scope of Congressional power under current precedent. Further, they argue that this limitation cannot be avoided by using the taxing power to impose a tax on those who fail to purchase a qualifying health care plan.

As with their last effort in this vein, I am unconvinced. I agree with them that an individual mandate would, in many respects, "expand the federal government's authority over individual Americans to an unprecedented degree," but I disagree that such a mandate would be unconstitutional under current precedent, particularly if adopted as part of a comprehensive health care reform plan.

There is a strong temptation to believe that every onerous or oppressive government policy is unconstitutional Were it only so. Even were the federal government confined to those powers expressly enumerated in the text, it would retain ample ability to enact many bad ideas into law, and current precedent is far more permissive. Opponents of current health care reform proposals should defeat them the old fashioned way, through the political process, and not depend upon salvation from the courts.


Is Mandatory Health Insurance Unconstitutional?: In the The Politico's Arena, we are debating Rivkin and Casey's Wall Street Journal Op-ed that Jonathan notes below. While my take on this issue differs somewhat from his, in my contribution (here), I respond to this rather catty post by Washington & Lee law professor Timothy Stoltzfus Jost. This is what I wrote:
OK, let's be old fashioned and start with what the Constitution says. After the Preamble, the very first sentence of the Constitution says "All legislative powers herein granted shall be vested in a Congress of the United States. . . ." And again the Necessary and Proper Clause gives Congress the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The Tenth Amendment is not required to see that Congressional power must be found somewhere in the document.("Tenthers"? What's next? "Firsters"? "Necessary and Proper Clausers"?Enough with the derogatory labels, already.) So where in the document is the power to mandate that individuals buy health insurance?

The power "to regulate commerce . . . . among the several states"? This clause was designed to deprive states of their powers under the Articles to erect trade barriers to commerce among the several states. It accomplished this by giving Congress the exclusive power over interstate sales and transport of goods (subject to the requirement that its regulations be both "necessary and proper"). It did not reach activities that were neither commerce, nor interstate. The business of providing health insurance is now an entirely intrastate activity. Reduce...

The "spending power"? There is no such enumerated power. There is only the enumerated power to tax. Laws spending tax revenues are authorized, again, if they are "necessary and proper for carrying into execution the foregoing powers." So we return to the previous issue: what enumerated end or object is Congress spending money to accomplish?

But following the text of the Constitution is so Eighteenth Century. Professor Jost tells us that "a basic principle of our constitutional system for the last two centuries has been that the Supreme Court is the ultimate authority on the Constitution, and the Constitution the Court now recognizes would permit Congress to adopt health care reform." So the Supreme Court gets to rewrite the written Constitution as we go along.

Never mind Dred Scott, Plessy, Korematsu and other not-so-famous Supreme Court "mistakes." The Constitution was what the Supreme Court said it was--until it changed its mind. And the Supreme Court has certainly not limited either the enumerated commerce power or the implied spending power to the original meaning of the text.

Fine. But has the the Constitution of the Supreme Court been extended to include mandating that individuals buy insurance? Professor Jost admits "the absence of a clear precedent." Really! So what has the Supreme Court's Constitution told us about the Commerce Clause Power? Professor Jost cites the medical marijuana case of Gonzales v. Raich.

As Angel Raich's lawyer, who argued the case in the Supreme Court, I think the Court erred (6-3) in reading the interstate commerce power broadly enough to allow Congress to prohibit you from growing a plant in your back yard for your own consumption. By all accounts, however, this is the most far reaching interpretation of the Commerce Power ever adopted by a majority, exceeding the reach of the past champion, Wickard v. Filburn. But even the six Justices in the majority did not say that Congress had the power to mandate you grow a plant in your back yard. Do you think a majority would find that power today?

Perhaps. But under Professor Jost's approach to constitutional law, we must await the Supreme Court's ruling before we know what "the Constitution" requires or prohibits. Until then, the Supreme Court's First Amendment still gives even "two former Bush officials" the right to publish their opinion that the written Constitution delegates to Congress no such power, provided of course they are not trying to influence the outcome of a federal election. Maybe a bare majority will decide this matter by reviewing the text. Stranger things have happened. After all, without any precedent standing in their way, a majority of the Supreme Court decided to follow the original meaning of the text of the Second Amendment in DC. v. Heller.

And when we are done examining Congress's power to mandate that you buy a particular service--or pay a fine, er "tax"--we can then consider its power to restrict the exercise of a person's fundamental right to preserve his or her life.

Professor Jost Replies: On The Politico's Arena, Professor Timothy Stoltzfus Jost, of Washington and Lee, replied to my Politico post on the constitutionality of a health insurance mandate (that I reproduced here yesterday):
I interpreted Fred's question to ask whether the current Supreme Court would uphold the constitutionality of an individual mandate, not to ask my for my personal views of the Constitution. I would be willing to wager with Prof. Barnett that the Supreme Court would uphold such a mandate given the Court's expansive reading of the Commerce clause. In fact, I don't think the vote would be close.
Here is my response:
I thank Professor Jost for his clarification. I find his interpretation of the question, "Is 'mandatory insurance' unconstitutional?" illuminating of how most constitutional law professors, along with politicians and commentators, view the Constitution. The question did not expressly ask for a prediction of how the Supreme Court would rule, unless you assume that the Constitution actually means whatever the Supreme Court says it means. According to that view, you could not criticize however the Court decides because there is no external standard against which to assess the constitutionality of a statute. But we do have such an external standard: the written Constitution.

Asking whether "mandatory insurance is unconstitutional" is not asking for a "personal opinion" on constitutionality but for a professional opinion on the proper meaning of the Constitution. The answers to this question given by my co-blogger Jon Adler and by Mark Tushnet represent a professional opinion about the meaning of Supreme Court precedents--such as Gonzales v. Raich--not the Constitution itself. Assuming that Supreme Court precedents constitute "the Constitution" empowers long dead judges to rule us from the grave. Sorry, that is hyperbole. It allows the opinions of justices to trump the meaning of the written Constitution.

Under our system, the Supreme Court has the last word on whether a statute challenged as unconstitutionality will be upheld or nullified. But it does not have the power to change the written Constitution, which always remains there to be revived when there is a political and judicial will to do so. For example, after the Supreme Court gutted the Fourteenth Amendment during Reconstruction, it remained a part of the written Constitution for a future more enlightened Supreme Court to put to good use. By the same token, the current Supreme Court can still make serious mistakes about the Constitution. Because the Constitution is in writing, there is an external "there" there by which to assess its opinions.

But there is one final twist: if the Supreme Court adopts a "presumption of constitutionality" by which it defers to the Congress's judgment of the constitutionality of its actions--as it has and as "judicial conservatives" urge--and the Congress adopts Professor Jost's view that "unconstitutionality" means whatever the Supreme Court says, then NO ONE EVER evaluates whether a act of Congress is or is not authorized by the Constitution. A pretty neat trick--and a pretty accurate description of today's constitutional law.

Constitutional "Is" Versus Constitutional "Ought" -- A Brief Reply to Barnett and Jost: Looking over the exchange between Randy Barnett and Timothy Jost on what it means to say something is "unconstitutional," I wonder if their disagreement is primarily semantic. We all recognize that there is often a difference between how the Supreme Court has construed the Constitution and how a particular person thinks the Constitution should be construed. The question is, what label to use for those different approaches?

  My sense is that the most common labels distinguish between what the law "is" and what the law "ought" to be. The former is what the courts say the law is, and the latter is what a particular person thinks the law should be. This appears to be the approach Professor Jost follows. Randy offers a somewhat different approach: He would say that the Constitution "is" what a proper theory of Constitutional interpretation indicates it should be — proper, that is, according to Randy — while what the Supreme Court has said it is is merely "the opinions of justices" which may be right or wrong.

  I suppose which understanding is better depends on which community you're talking to and what your goals are. Among constitutional theorists, the question of what the Supreme Court has actually said is boring; whether the Supreme Court was right is the interesting question. On the other hand, if the audience is the public, my sense is that claims by experts about what is constitutional or not are generally understood as a prediction of what the courts should do under existing law. The expert is normally consulted for expertise on existing law, not for his or her own individual theory of constitutional meaning. For example, if a reporter calls me and asks for my view on whether a particular police investigation violated the Fourth Amendment, I understand that to be asking me what a court should do based on existing law, not to apply my personal normative theory of constitutional interpretation to the facts.

  On the other hand, if you are trying to sell a constitutional vision to the public, with the aim of having your own views become more widely shared, you might speak of that vision as what the Constitution "is" on the thinking that the strong statement will have more persuasive impact. In that context, the claim of what is constitutional or unconstitutional is less a claim about the particular legislation or action under consideration and more a normative claim about how we should interpret the Constitution. Such claims can be a little misleading, as the public generally isn't told of the author's normative goals. On the other hand, those sorts of claims are common in public discourse about the Constitution.

Does a Federal Mandate Requiring the Purchase of Health Insurance Exceed Congress' Powers Under the Commerce Clause?

I come late to the debate over whether a federal law requiring people to purchase health insurance exceeds Congress' powers under the Commerce Clause. In my view, the answer under current precedent is clearly "no." At the same time, I do think that such a law would be unconstitutional under the correct interpretation of the Commerce Clause - or any interpretation that takes the constitutional text seriously.

I. The Health Insurance Mandate Under Current Supreme Court Precedent.

Current Supreme Court precedent allows Congress regulate virtually anything that has even a remote connection to interstate commerce, so long as it has a "substantial effect" on it. The most recent major precedent in this field is Gonzales v. Raich, where the Court held that Congress' power to regulate interstate commerce was broad enough to uphold a ban on the use of medical marijuana that was never sold in any market and never left the confines of the state where it was grown. This regulation was upheld under the "substantial effects" rule noted above. As I describe in great detail in this article, Raich renders Congress' power under the substantial effects test virtually unlimited in three different ways:

1. Raich holds that Congress can regulate virtually any "economic activity," and adopts an extraordinarily broad definition of "economic," which according to the Court of encompasses anything that involves the "production, distribution, and consumption of commodities."

2. Raich makes it easy for Congress to impose controls on even "non-economic" activity by claiming that it is part of a broader regulatory scheme aimed at something economic.

3. Raich adopts so-called "rational basis" test as the standard for Commerce Clause cases, holding that "[w]e need not determine whether [the] activities [being regulated], taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding." In legal jargon, a "rational basis" can be almost any non-completely moronic reason for believing that a particular claim might be true.

Any of these three holdings could easily justify a federal requirement forcing people to purchase health insurance. The decision to purchase or not purchase health insurance is probably "economic activity," as Raich defines it, since it involves the distribution and consumption of commodities such as medicine. When you buy health insurance, you are contracting with the insurance company to provide you with medicine and other needed commodities should you get sick.

Even if the purchase of health insurance is "non-economic" in nature, it could easily be upheld as part of a broader regulatory scheme aimed at economic activity - in this case regulation of the health care industry. As I discuss on pp. 516-18 of my article on Raich, The Court makes it very easy to prove that virtually any regulation can be considered part of a broader regulatory scheme by not requiring any proof that the regulation in question really is needed to make the broader scheme work. Finally, even if a court concludes that the government was wrong to assume that the decision to buy health insurance is "economic activity" under Raich's broad definition and wrong to believe that the mandatory purchase requirement was part of a broader regulatory scheme, the requirement could still be upheld because there was a "rational basis" for these ultimately mistaken beliefs.

II. Why Current Doctrine is Wrong.

For reasons laid out in my article, I think that Raich and other decisions interpreting the Commerce Clause very broadly were wrongly decided. I also agree with most of Randy Barnett's arguments to that effect in this post. Looking at the text of the Constitution, the Commerce Clause merely grants Congress the power to regulate "Commerce ... among the several states." Choosing to purchase (or not purchase) health insurance is not interstate commerce, if only because nearly all insurance purchases are conducted within the confines of a single state. Obviously, the decision to purchase health insurance may well have an impact on interstate commerce, and modern doctrine even before Raich allowed congressional regulation of any activities that have such a "substantial effect." However, this "effects" test is badly misguided. If the Commerce Clause really gave Congress the power to regulate any activity that merely affects interstate commerce, most of Congress' other powers listed in Article I of the Constitution would be redundant. For example, the very same phrase that enumerates Congress' power to regulate interstate commerce also gives it the power to regulate "Commerce with foreign Nations" and "with the Indian tribes." Foreign trade and trade with Indian tribes (which was a much more important part of the economy at the time of the Founding than today) clearly have major effects on interstate trade. Yet these two powers are separately enumerated, which strongly suggests that the power to regulate interstate commerce doesn't give Congress the power to regulate any activity that merely has an effect - substantial or otherwise - on that commerce.

Be that as it may, it is highly unlikely that the Supreme Court would invalidate a major provision of the health care bill, should it pass Congress. In addition to requiring the overruling of Raich and considerable revision of other precedents, such a decision would lead to a major confrontation with Congress and the president. The Court is unlikely to pick a massive fight with a still-popular president backed by a large congressional majority. Of course, it is still possible that the Court could invalidate some minor portion of the bill on Commerce Clause grounds. But even that is unlikely so long as the majority of justices remain committed to Raich. Five of the six justices who voted with the majority in that case are still on the Court. The only exception - Justice David Souter - has been replaced by a liberal justice who is unlikely to be any more willing to impose meaningful limits on congressional power than Souter was.


Really? Really?? OK, I totally get the whole IS-OUGHT distinction thing. The Constitution IS what the Supreme Court says it is. The Constitution OUGHT TO BE what the text says. Although a little jurisprudentially sophisticated for my taste, I think I grasp this.

But let me ask what has to be a simple question for my more "realist" compadres. Do they see no difference between using the power over interstate commerce to prohibit the growing of an intoxicating plant and mandating that every man, woman and child buy a service from a private company or face a hefty fine? Not make the purchase of this service a condition of engaging in some activity--like driving--but a condition of breathing itself. Not make you "contribute" to tax you for a universal government social welfare program--like Social Security or Medicare--but buy a service from a private company. What if these companies all happen to be restricted to operating intrastate? Still all the same?

Is there a clear precedent for exercising this kind of power over all individual citizens--hey and noncitizens too!--by virtue of them being alive? No? Well then maybe this case would not be dictated by the "law" of Gonzales v. Raich governing the production of fungible goods that Congress is seeking to ban from interstate commerce. But supposing there is a precedent--which for all I know there is--do my realist friends think the justices always follow their own "law" when they really don't want to? Really?

So what "constitutionality" really comes down to is whether five Justice have the, er, nerve to strike down a popular act of popular Congress a la the Evil Old Lochner Court. Fair enough. But how about a not-so-popular act of a not-so-popular Congress by the time the case reaches the High Court? What if the Repubs take back the Congress by then? Or just the House and knock off the Senate Majority Leader? Do all realist predictions about "constitutionality" remain the same? And if, to assess its constitutionality, we have to calibrate the popularity of the law and/or law maker--count the election returns, as it were, in advance of an election--before making our prediction on what the Constitution "says," does this tell us anything about the constitutional law game in our fair republic?

Of course, the safe money is always on the Supreme Court upholding an act of Congress. ALWAYS. And the even safer money is on the four "liberal" justices upholding ANY exercise of federal power that liberals happen at the moment to favor. OK, "conservatives" too with respect to executive power when their guy is in the White House--or laws that liberals happen to favor at the moment. All our justices are New Dealers; they all repudiate Lochner (or Schechter Poultry).

I realize this is all very legalful and constitutionally and all, with its irrebuttable "presumptions" and hypothetical "rational bases" and myriad whatnot. Let's all crack open our virtual copies of the United States Reports and figure this sucker out. However, in the absence of any clear super precedent, are my more realist colleagues absolutely confident that the four more "conservative" justices--and maybe even Justice Kennedy who cares something about liberty when it does not involve drugs--won't see some "principled" difference between a federal prohibition against growing something both fungible and intoxicating and a universal federal mandate to buy a service from a private company? Really? Really??

Really: In his post below, my co-blogger Randy channels Seth Myers and asks if those who follow the Supreme Court closely think that the Court would actually uphold hypothetical legislation requiring a person to have health care coverage:
[I]n the absence of any clear super precedent, are my more realist colleagues absolutely confident that the four more "conservative" justices--and maybe even Justice Kennedy who cares something about liberty when it does not involve drugs--won't see some "principled" difference between a federal prohibition against growing something both fungible and intoxicating and a universal federal mandate to buy a service from a private company? Really? Really??
   I can't speak or everyone, of course, but I am personally confident that the current Supreme Court would not strike down such legislation. The Supreme Court's federalism decisions in the last 15 years have followed a relatively predictable trend, and such a ruling would be dramatically out of step with that trend. As I wrote over at SCOTUSblog on the day Gonzales v. Raich was handed down in 2005:
I don't think this opinion should come as a surprise. When was the last time that the pro-federalism side won in a major federalism case at the Supreme Court? As best I can recall, it's been a long time; in the last few years, at least since Bush v. Gore, pro-federalism arguments have repeatedly lost.

More broadly, it seems to me that the theme of the Rehnquist Court's federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn't have a lot of practical importance, there's a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute, and the Supreme Court has shown no interest in reviewing their rulings. Because nearly every gun has traveled in or affected interstate commerce, the federal law of possessing guns in school zones is essentially the same today as it was pre-Lopez.

As soon as the issue takes on practical importance, however, the votes generally aren't there. If anything, the surprise today was that there were three votes for the pro-federalism side.
  I would think the personnel changes at the Court since I wrote that post would make this more true rather than less.

Small Contribution to the Debate Over the Constituitonality of Mandatory Health Insurance:

My small contribution is that the Supreme Court would be much more likely to invalidate elements of Obamacare on which there is no firm, direct precedent if the Republicans sweep the 2010 midterm elections than if they don't. In my view, it's no coincidence that Lopez, the first case to invalidate the a federal law on commerce grounds since the 1930s, came after the Republican sweep in 1994, and no coincidence that Raich backtracked on federalism at a time when neither the incumbent Republicans nor certainly the Democrats were spending any political capital on either limited government in general or federalism specifically, and indeed, when these issues seemed passe. The Supreme Court, institutionally, does not like to be exposed on controversial issues without any support from the political branches. The most ideological Justices (e.g., Thomas) may not care, but the swing voters do. So one thing I think we can be pretty sure of: if the Democrats still control the House and Senate in 2011, any constitutional challenge to health care reform will go nowhere.

UPDATE: Oh, and by the way, I wrote something for Cato in 1992 suggesting that there might be five votes on the Court to revive the Commmerce Clause to some degree ("given the changes in the ideological composition of the Court since 1981, Rehnquist might one day find himself leading a Court whose opinions take the requirements of the commerce clause seriously, with potentially salutary results"). At the time, in mainstream con law circles the notion that the Commerce Clause had, or would soon have, any bite at all was considered absurd, about as likely as the Supreme Court declaring Texas to be an independent republic. Ya never know.


The Supreme Court, the Election Returns, and Mandatory Health Insurance:

David Bernstein's recent post raises the issue of how the political situation might affect the Supreme Court's consideration of a case challenging the constitutionality of the Obama health care bill (should it be passed). I tend to agree with David that the Court is unlikely to invalidate any important parts of such a bill so long as the Democrats retain control of both the presidency and Congress.

Some argue that the Court simply "follows the election returns" and only invalidates legislation that the voters dislike or at least don't care about. That is clearly an overstatement. The Court has sometimes invalidated popular laws or practices. Think of the school prayer decisions and the flag burning cases, in both of which areas the Court repeatedly issued rulings that the vast majority of voters disliked. The Court also sometimes upholds very unpopular laws against constitutional challenge, as in Kelo v. City of New London. However, it is extremely rare for the Court to strike down a law that enjoys strong majority support from both the general public and the political elite, and is a major item on the current political agenda. Doing that is likely to create a head-on confrontation between the Court and the political branches of government, which the Court will almost certainly lose, as happened when the Court struck down various New Deal laws in the 1930s.

When the Court has invalidated popular laws, it has usually been in fields where political elites actually agree with the Court (as with flag-burning) and can thus insulate it from political backlash, or ones where the issue is not really a high priority for most voter. School prayer and flag burning both fall in that category, as also did the popular laws invalidated by the Supremes in such Rehnquist-era cases as United States v. Lopez (the Gun Free School Zones Act, which polls showed to be popular) and United States v. Morrison (a part of the Violence Against Women Act, a case in which 36 states filed amicus briefs supporting the government).

By contrast, health care is currently both a major concern of voters and a top priority for political elites in the Democratic Party. If the Democrats succeed in passing Obama care and then retain their congressional majorities, the Court will be on notice that invalidating any major part of the health care bill invites a massive confrontation with Congress and the president. The most ideologically committed justices (e.g. - Thomas) might be willing to take the risk. But the moderates won't. They know that Congress and the president could react with harsh measures such as refusing to obey the decision, implementing an updated version of FDR's court-packing plan (the threat of which helped persuade the Court to back down in 1937), or passing laws limiting the Court's jurisdiction. Such extreme measures are rarely used; but they could be employed if the Court crosses Congress, the president, and the voters on a major issue they care about intensely.

This, of course, assumes that a majority of the justices would want to strike down the Obama health insurance mandate if they thought they could get away with it, an assumption I questioned in my last post. But even if the justices were more interested in constraining congressional authority than I think they are, I doubt they would be willing to take the political risk of doing so in this case.

I am a strong advocate of judicial review of federalism issues, and I hope that the Court will, over time, roll back Commerce Clause precedents that give Congress virtually unlimited power. But achieving that goal will be a slow, incremental process that must take due account of political constraints. It is unrealistic to expect the Court to start the process with a decision that risks a head-on collision with the political branches over a major policy issue.


"Constitutionality" and the Real Constitution: I agree with the predictions of my fellow conspirators: When deciding whether a Congressional mandate to buy private insurance is "constitutional," the Supreme Court will likely ignore the Constitution. And since this mandate is unprecedented, their actions won't be dictated by their precedents either, even if they were inclined to follow their precedents when they don't want to, which they aren't. But all this evades my original disagreement with Professor Jost that Orin though was resolved by his is-ought distinction between "what the Constitution is" and "what the Constitution ought to be."

Professor Jost wrote two things that got my attention. Thing #1 was his reference to those who cite the Tenth Amendment as "Tenthers." In response, I cited the first sentence of Article I, and the Necessary and Proper Clause as reiterating the view that Congress only has the powers "herein granted" or "vested by this Constitution in the government of the United States, or in any department or officer thereof." So Supreme Court doctrine that, in effect, finds no limit to Congressional power must disregard not one, not two, but three explicit passages of what many Americans still naively believe to be "the Constitution."

Thing #2 was the following statement: "a basic principle of our constitutional system for the last two centuries has been that the Supreme Court is the ultimate authority on the Constitution, and the Constitution the Court now recognizes would permit Congress to adopt health care reform." In this passage, Professor Jost articulates the view of most con law professors--including Orin apparently--that "the Constitution" is what "the Court now recognizes" so the answer to the question of "constitutionality" is to engage in predicting how the Court will rule.

I reject the proposition that "the Constitution" is whatever the Court says it is or, more accurately for present purposes, how the Court may rule in some future case. I insist that "the Constitution" is the wording of the document under glass in DC. So whether something is "constitutional" depends on what "the Constitution"--the real one--says. (Of course, because the written constitution does not answer all questions to which we need answers, constitutional construction is needed to supplement constitutional interpretation. But such construction may not contradict what the Constitution--the real one--says or that construction is itself unconstitutional.)

Whatever basis Orin, Ilya, David or I have for our predictions of future Supreme Court decisions, there is one thing on which none of us rely: the Constitution, the real one. Not the Constitution as it "ought to be" but the Constitution--or "this Constitution"--the enacted one, the one that thousands of Americans visit each year.

In support of his reasonable prediction, Orin offers the following equally reasonable proposition: "If there is a federalism issue that doesn't have a lot of practical importance, there's a decent chance five votes exist for the pro-federalism side. . . . As soon as the issue takes on practical importance, however, the votes generally aren't there." But what type of proposition is this? Is it "the Constitution"? Is it even "constitutional law"? If it is neither, then I do not see how it is responsive to the question of whether a mandate to buy private insurance in constitutional, unless one redefines "constitutional" to mean "whatever the Court can be predicted to rule." THIS is what Orin calls a "semantic" issue, which it is, but it is not merely semantic. It is also substantive and very important issue to boot.

If "the Constitution is what the Court says it is," why did Justice Sotomayor repeatedly insist she would follow the law, and that following the law was all a judge should do? Did she secretly mean "I will follow the law, which is exactly the same as how I may want to rule for political and policy reasons"? OK, she did secretly mean that, but why keep it a secret?

Could it be that, had she admitted what Professor Jost, and apparently Orin, thinks is obviously true about "constitutionality," SHE WOULD NOT HAVE BEEN CONFIRMED AS A JUSTICE? I think that is a pretty safe prediction. Indeed, I predict that she and the White House actually made this very prediction, which explains her repudiation of everything constitutional law professors believe about "constitutionality."

Why would this prediction have been so safe--even safer than Orin's, Ilya's, David's, and my prediction about a future Supreme Court ruling about a health insurance mandate? Maybe because, unlike law professors, the American people still believe that "the Constitution" is the words on that piece of parchment, and that "constitutionality" depends on what those words say. True, many Americans do not know what it says, but that does not changed the brute social fact of what the Constitution still IS. Hence Justice Sotomayor's testimony that she will follow the words.

So here is my question: if Orin and Jost are right, why not come out and testify to that position under oath: That "constitutionality" is what the Supreme Court says it is unconnected from what the Constitution actually says? And until that happens, maybe the Constitution still IS the words on the parchment under glass that most Americans believe it to be. And if this is true, then does not "constitutionality" depend on what those words say--including the Tenth Amendment--regardless of how the Supreme Court can be predicted to rule, and regardless of whether the Supreme Court follows the words of the Constitution--the real one.

Let me close by repeating something else I posted on the Politico that lies at the very heart of this debate:
if the Supreme Court adopts a "presumption of constitutionality" by which it defers to the Congress's judgment of the constitutionality of its actions--as it has and as "judicial conservatives" urge--and the Congress adopts Professor Jost's view that "unconstitutionality" means whatever the Supreme Court says, then NO ONE EVER evaluates whether a act of Congress is or is not authorized by the Constitution. A pretty neat trick--and a pretty accurate description of today's constitutional law.
This point is so important that I should repeat it. When it comes to the enumerated powers of Congress, the Supreme Court should defer to Congress's assessment of constitutionality (because of judicial restraint); and Congress should defer to the Supreme Court's assessment of constitutionality (because "the Supreme Court is the ultimate authority on the Constitution"). So NO ONE SHOULD ACTUALLY INTERPRET THE CONSTITUTION! This is current American constitutional "law" in a nutshell.

I kid you not.

[PS: Any academic reader who reads the above as claiming that the "real" Constitution is the written one because it says it is "the Constitution" should reread the portion about Justice Sotomayor's confirmation testimony.]

The Constitution and the Golden Calf - A Response to Randy: Based on his comment below, I worry that Randy might misunderstand my view on his exchange with Professor Jost. In light of that, I wanted to explain my position a bit more clearly.

  I really don't care whether we label what the Supreme Court says as what the Constitution "is," or whether we use that label for what Randy Barnett thinks, or what Pam Karlan or anyone else thinks. My first post noted the common convention of referring to what the Supreme Court has said as what the Constitution "is," but that is just a convention: I pointed it out only to avoid the confusion that results when we mix conventions without saying so. I am just as happy if we call the Constitution as described by the courts as "Larry," the Constitution as construed by Randy as "Moe," and the Constitution as construed by Pam Karlan as "Curly." They are just labels, and my primary interest is in avoiding confusion among them.

  Of course, Randy is welcome to use his label, in which his vision of the Constitution is "the real Constitution," while the Constitution that others believe in are false idols. I envision Randy coming down from Mt. Sinai with a copy of Restoring the Lost Constitution, as the Israelites look up from their worship of the golden calf of the United States Reports. My point is only that the choice of label is a rhetorical move, not a jurisprudential one. I recognize it is an important rhetorical move: the believers-in-the-true-God-versus-the-heathens meme has worked for millenia, and I gather from what Randy says that it is a key part of trying to popularize his view of how the Constitution should be construed. But I think it's important to recognize the rhetorical move.

  Why is it important? I think it's important because so many people have such different visions of what the true Constitution really is. By and large, those visions tend to match the ideologies of their holders: libertarians envision a libertarian Constitution, progressives a progressive Constitution, conservatives a conservative Constitution. Each group, in good faith, sees its vision as the true Constitution. Given the wide range of views, I think it's confusing to use labels like "the real Constitution" in a way that avoids recognizing the good faith disagreement about what that real Constitution means.

Opinions All the Way Down? Orin, earlier I think you and Professor Jost were reducing the Constitution itself to the Supreme Court's opinions about its meaning--or even reducing it to the Supreme Court's rulings in a given case regardless of whether the Court is even claiming to be interpreting the Constitution rather than interpreting its own prior decisions. Now I think you may be reducing the Constitution to any opinions about its meaning (or vice versa).

In these posts, I never claimed that my opinion about the meaning of the Constitution was itself the "real Constitution." I merely denied that the Supreme Court's various opinions about the meaning of the Constitution--or predictions of its future rulings--are the real Constitution. I was responding to the "rhetorical move" that anyone who asserts the Tenth Amendment on a constitutional question is a "Tenther" because the Supreme Court is likely to reject such a claim, and that all constitutional objections to a Congressional mandate to purchase private health insurance are refuted by invoking "the Constitution the Court now recognizes." Both these rhetorical moves were made before I posted a word in response.

The issue here is not your, my or Pam Karlan's opinion about the meaning of the Constitution. The question is what is the proper subject of any such opinions? I claim opinions about "constitutionality" should be opinions about the meaning of the written Constitution, which I called the real Constitution. These opinions will differ.

True, this is a normative claim about constitutional discourse--discussions about constitutionality ought to be discussions about the Constitution, not predictions of future Supreme Court opinions--but it is not a normative claim about the meaning of the Constitution itself--that is, a claim about what the Constitution ought to mean.

I am still not sure on what you think opinions about "constitutionality" should rest, except perhaps on predictions on what the Supreme Court will do in the future. Maybe these questions will illustrate how this in not a mere semantic or rhetorical move: In a case of first impression--arguably like Heller--how would you make a constitutional argument based on your prediction of the votes of five justices? What should we have argued in Raich? Should the SG have based his constitutional argument on your predictive assumption about the votes of five justices in cases in which "federalism matters"?

Frankly, I am having a hard time operationalizing your conception of constitutionality based on what you predict the Court will do in a particular case.

Conceptions of Constitutionality -- More Thoughts In Reply to Randy: I appreciate Randy's clarification below. Where we differ, I think, is that Randy believes that we need a correct conception of what it means to say something is "constitutional" that we should use even with people who disagree with it. Randy acknowledges that his personal views of the Constitution need not be used, but he argues that, as a normative matter, views should be based on the written Constitution. That is the correct conception, so it is the one that should be used. He concludes:
  I am still not sure on what you think opinions about "constitutionality" should rest, except perhaps on predictions on what the Supreme Court will do in the future. Maybe these questions will illustrate how this in not a mere semantic or rhetorical move: In a case of first impression--arguably like Heller--how would you make a constitutional argument based on your prediction of the votes of five justices? What should we have argued in Raich? Should the SG have based his constitutional argument on your predictive assumption about the votes of five justices in cases in which "federalism matters"?
  Frankly, I am having a hard time operationalizing your conception of constitutionality based on what you predict the Court will do in a particular case.
  I fear Randy is having a hard time operationalizing my conception of constitutionality because I am not offering a conception of constitutionality to operationalize. My primary concern is clarity, not constitutional theory. I want to make sure that we're using language in a clear way, not advocate a specific constitutional vision.

  As for what lawyers should do when representing clients in court, they should do in constitutional cases what lawyers always should do: They should make the arguments that they think will persuade a majority of the court to rule in their favor. Exactly what those arguments are depends on the case, of course. Sometimes the arguments most likely to persuade a majority will rely on precedent, sometimes history, sometimes function, and sometimes text. Often a mix of most or all of the above is the best; it just depends on the case. But again, this isn't a question of constitutional theory. It's just a question of maximizing the chances you will win.

  Some may conclude that my approach is empty. As you might guess, I disagree. The reason is that you can believe strongly in a particular way to interpret the Constitution while recognizing your view is controversial or not widely shared. And I think the fact that it's controversial or not widely shared imposes a duty of candor when speaking with those who look at it differently. So you can have your views; hold them passionately; believe that you are right and that everybody else in the universe is wrong. But I think it's most fair to be candid that you have your view and others disagree: Embedding normative views in loaded terms like "the real Constitution" seems to me to shed more heat than light.

  I don't think this imposes such a serious burden. If someone asks you if X is constitutional, you can simply say, "Under existing law, yes, although I believe that's wrong." I think this is the most informative kind of answer.