Category Archives: Separation Of Powers

Counterpoint: The Supreme Court Will Find The Individual Mandate Unconstitutional

Earlier this week, Brad Warbiany started out the latest in our occasional series of Point-Counterpoint exchanges by arguing that the Supreme Court will ultimately uphold the Constitutionality of the Patient Protection And Affordable Care Act’s individual mandate. I’ll start off by saying that this is not an all implausible. Indeed, I’ve argued myself in the past that the odds were quite good that the Supreme Court would uphold the constitutionality of the mandate. Moreover, as Brad notes, the history of the Supreme Court’s Commerce Clause jurisprudence has been one where the Court has essentially been nearly completely deferential to Congressional exercises of authority in this area. If one were making a bet, the safe bet would be the one that says the mandate would be upheld. Nonetheless, as I argue below I believe that the Supreme Court will in the end strike down the mandate, although the fate of the rest of the PPACA remains far from certain.

The Mandate Forces Citizens To Act In A Manner Never Before Seen In American History

Brad argues against the assertion that the mandate is unique in American history because it forces citizens to purchase a product from a private seller by pointing to examples of other things that the government forces people to do, such as the military draft and jury service. It’s correct that these programs are, at least theoretically, authorized by various provisions of Article I, Section 8. However, that’s very different from what the mandate purports to set in place, which is a requirement that every person in the United States engage in a specific commercial transaction whether they choose to or not. As more than one legal commentator has noted, this is unprecedented in American history and likely one of the main reasons that the PPACA itself has aroused the ire of such a large segment of the American public. As a general rule, Americans don’t like being told what to do by the government and, for many people, this was a bridge too far.

The question is whether it is authorized under the Constitution, and I think the case in favor of it is far stronger than the supporters of the law have been willing to admit up until last week’s hearings.

The Commerce Clause

As I noted above, the Supreme Court has, at least since the New Deal Era, been very deferential to Congressional assertions of authority under the Commerce Clause. This started, as Brad notes, with the case of Wickard v. Filburn in which the Court upheld a provision of the Agricultural Adjustment Act that allowed Federal authorities to bar a farmer from growing “excess” wheat even though he would not be selling it and would solely be using it for personal use on his farm. The Court reasoned that this was acceptable because the farmer’s actions had an impact on Interstate Commerce, even though it might only be a small one. It’s a decision that has always aroused the ire of advocates of limited government and it’s implications are wide ranging. Thanks to Wickard, the Court spent some 50 years rubber stamping Federal assertions of authority under the Commerce Clause. Indeed, after the New Deal Era there were very few challenges to such laws that even made it to the Supreme Court.

Then, in the late 90s things took a surprising change. In Morrison v. United States, the Court struck down several provisions of the Violence Against Women Act which purported to make domestic violence a matter for federal law enforcement under certain circumstances. The Court held that there was no evidence that domestic violence had any connection at all to interstate commerce that would justify giving the Feds police authority that is properly the authority of state governments. Several years later, in Lopez v. United States, the Court struck down the Gun Free School Zones Act on the ground that there was not a sufficient nexus with interstate commerce. Suddenly, it seemed, the Court was finding limits to the Commerce power. There seemed to be a setback when the Court upheld Federal drug charges against a California medical marijuana dealer in Gonalez v. Raich, but there’s a good argument to be made that this case is distinguishable based on the fact that it dealt with illegal drugs and that the Court was unwilling to issue a ruling that would have thrown every single Federal drug law into Constitutional doubt. Had Gonzalez dealt with any other commodity, it’s quite conceivable that it would have gone the other way.

It’s been said by PPACA advocates that striking down the mandate would require the Court to overrule 70 years of Commerce Clause precedent, but Morrison, Lopez and even Raich, show that this isn’t necessarily true. Each of the courts that have struck down the mandate have held that the problem with the mandate isn’t that the Courts have been wrong for the past three-quarters of a century about the Commerce Clause, but that even those precedents do not authorize what Congress wishes to do in this particular case. Indeed, it is perfectly easy to distinguish Wickard and its progeny from the PPACA mandate in a way that preserves precedent and yet compels the conclusion that the mandate is a Constitutional bridge too far.

This is what I expect the Supreme Court to do when it issues its opinion in June. Much to the relief of liberals and the chagrin of conservatives, striking down the individual mandate will not mean that the New Deal will be rolled back. What it will mean, though, is that, as in Lopez and Morrison, the Court will be drawing a line and saying that Congress cannot cross it because it does not have the Constitutional authority to do so. It will, in other words, further articulate a limiting principle for the Commerce Clause.

Which brings me to the next part of Brad’s argument I need to address.

Limiting Principles

Brad is correct that the Court could construct a limiting principle if it ends up saying that the mandate is Constitutional. Perhaps this is what it will end up doing. However, it is worth understanding the importance of the failure of the Government to articulate a limiting principle when asked for one by the Court. For one thing, this isn’t the first time that the Court has failed to do so. Reviewing the transcripts of oral argument in many of the lower court proceedings, one runs into other occasions when Judges inquired of the attorneys for the Government whether they believed that there was any limit on the Commerce Power given their arguments in favor of the mandate. In no case were the attorneys willing or able to do so. In some cases, this was cited by Judges as a reason that the mandate cannot be upheld, in others it wasn’t (athough it is worth noting that lower Court judges are bound by precedent from the Supreme Court in a manner that Supreme Court Justices are not).

As a purely tactical matter, it strikes me that an attorney who is unable to provide an answer when a Judge asks “If I rule in your favor, what guarantee is there that I won’t be establishing a precedent to do X” is potentially damaging their case. Most judges are not, by their nature, radicals.Meaning that if they can avoid issuing an opinion that could have far reaching consequences they are likely to do so. It was quite evident from the questioning during last week’s oral argument over the individual mandate that the Court, and specifically Justice Kennedy, has some concerns about the future implications of issuing an opinion upholding the mandate. The Solicitor General’s failure to provide an answer may end up being fatal to the Government’s case.

The Necessary And Proper Clause

This is perhaps the strongest argument that Brad raises. Under the broadest interpretation of the Supreme Court precedents on this case, anything that is necessary for Congress to carry out one of it’s authorized powers is Constitutional. Indeed, this is pretty much what the Supreme Court said when it authorized the creation of the First Bank Of  The United States in McCullough v. Maryland. For that reason alone, it’s interesting that there was so little discussion of the necessary and proper clause during the oral argument last week. Partly, this may be because the law here is pretty much settled and has been for nearly two centuries but one would have thought that Paul Clement, the attorney for the states would have been subjected to some strong questioning on this topic by the Justices on this issue. He really wasn’t, although there was some discussion about whether the health care market was “unique” in some way that made this mandate permissible.

The problem with this argument that it still leaves the Court searching for a limiting principle. If Congressional power under the Commerce Clause to regulate the interstate health care/health insurance market is so broad that it can enact a law that includes a requirement that all Americans purchase insurance, then does that mean that its power to regulate the interstate automobile market is so broad that it can enact a law requiring Americans to buy only American made cars? Even if the Court were to decide that the Necessary and Proper Clause was sufficient authorization for the mandate, it would still be left with the limiting principle question. And my reading of the Court at this time is that there is a majority right now that is unwilling to issue an opinion that would essentially be an open door to Congressional intrusion in even more aspects of the economy, and an end to any hope that there could be limits imposed on Washington, D.C.

Conclusion

I could end up being totally wrong about this, of course. This case is so closely dividing the Court that it’s impossible to guess how it will turn out. I will say that I think that if the mandate is struck down we are looking at a 5-4 decision because there is just no way that I can see Breyer, Ginsburg, Sotomayor, or Kagan going over to the side of the conservatives on this issue. However, if the mandate is upheld I would not be surprised to see it be a 6-3 decision for a very specific reason. Ordinarily, the most senior Justice in the majority gets to decide who writes the majority opinion. However, if the Chief Justice is in the majority he gets to make that decision. If Kennedy ends up voting to uphold the mandate then I could see Chief Justice Roberts joining him so that he can write the opinion himself and make the precedential value of the decision as limited as possible.

However, if the Court were to strike down the mandate, I believe I’ve laid out a perfectly rational, Constitutional basis on which they would do so. That doesn’t mean there won’t be a political firestorm, of course, but there is going to be a political firestorm no matter how the Court rules. I don’t think there’s ever been a time in American history when such an important case was in the hands of the Court in the same year as a Presidential election. Especially an election where the very issue the Court is dealing with, the limitations on the authority of the state contained in the Constitution, were also the central issue in the Presidential election. It’s going to be a very interesting opinion regardless of which way it comes down.

Point: How The Supreme Court Will Find The Individual Mandate Constitutional

This is part of The Liberty Papers’ continuing Point/Counterpoint series, where two contributors (or a contributor and a guest) argue competing sides of an issue. In this installment, I will argue that the Supreme Court has a realistic defensible argument to find the Individual Mandate in ObamaCare Constitutional. Tomorrow, Doug Mataconis will respond with a rebuttal. Links will be updated in each post as they appear.

UPDATE 4/4: Doug’s rebuttal is available here.

As always, we’re constantly looking for good debate topics for this series, and qualified guest posters to argue one side against one of the contributors.

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Stipulated up front — I believe that ObamaCare is a severe affront to individual rights, limited government, and the ideals upon which our Republic was founded. In my own view of Constitutional jurisprudence, overturning the law is a no brainer. But as with most things our government does, they’re not listening to me, so the question is simple:

Does the Supreme Court have enough precedent to find the individual mandate Constitutional?

I think they do. And the argument has several elements.

Forcing You To Act

One of the first points of contention is the question of regulating activity versus regulating inactivity. The question being whether or not the Congress can force you to act if you choose not to. Many claim that Congress forcing you to purchase a good from a private seller is a bridge farther than they’ve ever gone before.

But taking the question of “buying from a private seller” out of the equation, is anyone suggesting that the government can’t force you to do something under threat of fine or jail? Ever heard of the Selective Service? I’d say a government that can force me to report for military service to die for my country is asking something a fair bit more serious than demanding I have health insurance. The government in this case can COMPEL you to do something within its rightful power — the power to raise armies. Or on a subject less likely to result in ending up full of lead, there’s Federal jury service. The government can COMPEL you to do something within its rightful power — the power to raise courts and ensure defendants a fair trial judged by their peers.

The question isn’t whether or not the government can force you to do something — Republicans, Democrats, Presidents, and Supreme Court Justices have all agreed that it can. The question is whether or not forcing you to buy health insurance falls within the power of what they can force you to do.

The Commerce Clause

Most of the debate so far has centered around whether the mandate — a regulation of inactivity, not of activity, is within Congress’ commerce clause power. We’ve had cases like Wickard v. Filburn, where the Court has ruled that someones activity can be regulated whether or not it directly engages in interstate commerce, because the act of growing your own wheat [and not buying it from the market] may have an affect on interstate commerce. We’ve even had Gonzales v. Raich, where the Court has ruled that the grasp of Congress extends even to activities which affect an interstate market in goods the government would prefer have no market at all.

The Government’s lawyers in this case say that the mandate is Constitutional because not buying insurance may affect interstate commerce. The opposition states that Congress can regulate activity related to interstate commerce, but regulating inactivity is a bridge too far. Supporters of ObamaCare, however, do have a point here. It can hardly be argued that refusing to purchase health insurance means that you’re not impacting the US healthcare system. Unless you have an ironclad “do not treat” waiver stapled to your forehead at all times, I’m pretty certain that if you’re in a car wreck and unconscious, you’re going to become a participant in the healthcare market. And if you don’t have insurance, that’s likely to bankrupt you, cost the taxpayer a hefty sum, or both. In this case, your supposed inactivity really is activity.

But this isn’t the only argument. One of the key points that is not argued is whether or not the US Congress has the authority to regulate the US Healthcare market at all. And the reason that’s not being argued is that it’s flatly assumed that Congress can regulate the healthcare market. In fact, even most pro-liberty Constitutionalists agree that if Congress had simply voted for a single-payer system, current Supreme Court jurisprudence wouldn’t have any cause to overturn it. So this brings us to our next point:

The Necessary and Proper Clause

This is really the crux. The clause says that Congress has power to make all laws “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.” A long time ago, that limited the government significantly. In fact, in the fight over the First Bank of The United States, the Feds argued that the Bank was necessary to engage in all the things that the government legitimately and Constitutionally needed to do. The opponents argued that while the Bank may be convenient and helpful to the government to do what it needs to do, it was hardly necessary. They took a very strong view that the word “necessary” meant what it said — if you could accomplish the goal without doing X, then X didn’t meet the Constitutional requirement of necessity.

Sadly, the Necessary & Proper clause was one of the first to get ignored by the Supreme Court, as Randy Barnett (a lawyer opposing ObamaCare in this case) pointed out in his book Restoring the Lost Constitution. One of the key growths in Government power over the early days of the Republic was to grant deference to Government lawyers if they said something was necessary.

In this case, much of the oral arguments centered around whether ObamaCare could stand without the individual mandate. Both sides agreed that Congress has the power to regulate healthcare, but they didn’t agree that the individual mandate was, on its own, Constitutional. After all, if they can mandate you purchase insurance, which might help restrain the growth of healthcare costs, might they not also mandate you purchase broccoli, as the health effects thereof might help restrain the growth of healthcare costs?

Many ObamaCare opponents cheered at the lines of questioning whether ruling the mandate Unconstitutional would cause the entire law to fall. Those opponents believed that it was a way for the Court’s conservative wing to ensure that they could toss out the whole law, rather than simply severing the mandate. But looking at the argument another way, it proves that the mandate is necessary to the law.

So let’s look at the “necessary and proper” test. First is propriety — laws made by Congress are only proper if they relate to one of its Constitutional powers. While I might not think Congress has legitimate authority to make sweeping healthcare legislation, I think we’ve well established that current Court jurisprudence is untroubled by the idea that Congress has commerce clause power to regulate healthcare. So the test of propriety is cleared. The second is necessity: is the mandate necessary to fulfill Congress’ authority to regulate the interstate commerce of healthcare. And I think the oral arguments proved, regardless of what side you’re on in this debate, that the mandate is absolutely necessary to the structure of the law. Get rid of the mandate, and you might as well throw the whole thing out.

So if regulating the healthcare market is a legitimate authority of Congress, within their purview granted by the commerce clause, then the question becomes whether this mandate is necessary for them to exercise their authority. I think the answer, as shown by oral argument, is yes. So the government clears the bars of both the Commerce Clause and the Necessary and Proper clause.

Limiting Principles

A final argument by the opponents has been that if the mandate stands, it grants Congress ultimate power, which the Court will not allow to happen. And they’ve been encouraged by some lines of questioning in oral argument, where the “broccoli test” showed that the Government’s lawyers were unable to articulate a limiting principle of their argument.

But as loath as I am to agree with Kevin Drum on something (or whoever he borrowed the argument from), the Government doesn’t need to articulate a limiting principle. It’s up to the Court to determine whether THIS action is Constitutional. And they could very easily craft a limiting principle that allows the individual insurance mandate but doesn’t allow for an individual broccoli mandate.

How simple is it?

Q. Is the individual insurance mandate absolutely necessary to the very structure of Obamacare?
A. Yes.
Q. Is the hypothetical broccoli mandate absolutely necessary to the very structure of Obamacare?
A. No. Are you f’ing serious?

The Court already has the “necessary & proper” clause as its limiting principle. If they accept the basic structure of ObamaCare as Constitutional, extending to Congress a provision that might be Unconstitutional on its own, but necessary as part of a wider power, would not be a shock.

Conclusion

I’m not going to claim that the above argument suggests that the Court will find ObamaCare Constitutional. I’m a firm believer in the idea that the Justices often decide — like people in all other walks of life — what they want to do and rationalize an argument into it afterwards. And I think we have a pretty decent idea how 8 of the 9 Justices will decide in this case, a 4-4 tie broken by Anthony Kennedy.

Should Kennedy vote to overturn the mandate, I expect the majority opinion to fall to one of the solid conservative justices. Should Kennedy vote to uphold, he very well might pen the majority opinion. For Kennedy to accept the mandate, I think he has to see a legitimate limiting principle — and the necessary & proper clause provides both the grounds for upholding the mandate and the inklings of a limiting principle in one fell swoop. Oh, and in case you followed the oral arguments, Kennedy was *very* interested in the concept of severability and seemed to assume, whether he votes to keep it or toss it, that the mandate was necessary to the structure.

I don’t know which way this thing’s gonna go, but I’m not as confident as other libertarians, conservatives, and small-government Constitutionalists. I see a very plausible rationale for upholding it, and thus I think we’re hoping that one oft-flighty Justice happens to come down on our side of the vote.

Quote Of The Day

Is there a more worthless phrase on the political landscape than “judicial activism”?

And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.

Really? EJ Dionne thinks that a legislature should be able to do whatever it wants, even if it violates the Constitution (as the Florida elections board did in Bush v. Gore and the US Congress did in Citizens United)? So he wants to throw out the entire doctrine of judicial review that’s existed since the days of English Common Law & Marbury v. Madison?

No, I don’t think that’s it. I don’t think he supports the Congress doing things that are unconstitutional. He’s just attacking the Court for striking down policies he likes. Just as conservatives do when the Court strikes down policies they like.

Claims of “judicial activism” are just criticisms of a Court doing something you disapprove of. But claims that the Court should defer to the legislature are misplaced — the Court is a check on the power of the legislature, as it should be. It’s there to rein in the legislature when they try to do something beyond the bounds of their Constitutional authority. That’s not judicial activism, that’s their job.

Book Review — The Cult Of The Presidency, Gene Healy

America has a love affair with the Presidency. Unfortunately, that love affair is a codependent, abusive relationship, and one in a very long string of the same. It wasn’t always this way. But to fix the problem, as with most abusive relationships, we need to fix ourselves first — ask what it is we want from a President and whether there’s ANYONE in the field, ANY year, who can provide it.

Thankfully, Gene Healy, based on his book of a few years ago, Cult Of The Presidency, can tell us why we keep picking megalomaniacs. And for a limited time, Cato is providing this therapy for free (in electronic/eBook form)!

In Cult Of The Presidency Healy provides a detailed and informative review of the [lack of] power wielded by the office of the President in the first century or so of our Republic. He then details some of the many expansions of power the office has seized, starting in the Progressive Era and moving forward through the decades and personalities to Bush’s administration, focusing on the enormous change in warmaking powers, domestic spying, and national “Father Figure” on the matters of domestic policy that the executive branch has become. Finally, he discusses many of the changes in Congress and the electoral/campaigning process that have occurred over the last century, moving from a party-elite driven process to the current national primary structure, which has changed the office and the type of person who would seek it. Finally, he offers some limited hope for a future where Americans, through nothing more than a lack of respect and trust in the office and its inhabitants, might eventually walk the nation back from what he hopes is the high water mark of executive power. But he freely admits that hope might just be wishful thinking on his part.

All in all, this was an excellent read. For as much as I try to be informed about history and civics, there was a LOT in here that was new material for me. For example, I hadn’t realized that the politicking process was so different prior to, say, the 1950’s than it is today. I had always assumed that the current system of state Presidential primary votes to nominate a candidate had been the standard for most of our history — it turns out it’s a very recent phenomenon. Much like Restoring The Lost Constitution did for me with the history of Constitutional law, the book took a topic about which many libertarians have bits and chunks of information, and much more clearly and methodically explained the changes both over time and with the specific Presidents involved.

I don’t often have anywhere near enough time to read. This is a book that I am *extremely glad* I finally got around to reading. It’s a book that I’d gladly recommend at Amazon’s Kindle price of $8.49, but with Cato giving it away for free right now, I’d suggest jumping at it immediately.

Ron Paul CNN National Security Debate Highlights and Observations

For those of us who value our liberties, there were a plethora of things said in last night’s debate from candidates not named Ron Paul to be very distressed about. For starters, there was the debate about the USA PATRIOT Act and whether it should be renewed, strengthened, or abolished. Unsurprisingly, Paul explained how civil liberties have eroded due to the act and lamented how willing the other candidates were to surrender even more liberty in the name of security. Paul held up Timothy McVeigh as an example of a terrorist who was tried in the traditional criminal justice system and ultimately convicted. In response, Newt Gingrich said “Timothy McVeigh succeeded.” (How he would have stopped the OKC bombings is anyone’s guess but I can’t imagine it would have been inside the framework of the Bill of Rights.) Paul’s response was spot on.

Then Rick Santorum advocated the notion of racial, religious, and ethnic profiling. Paul once again brought up Timothy McVeigh as an example of someone who would not have fit Santorum’s profile and pointed out some of the “careless use of words” being used by the other candidates (i.e. “we are at war,” naming individuals “terrorists” without due process etc.) is further compromising our liberty.

Other topics included Iran’s nuclear ambitions, the foregone conclusion that the U.S. should intervene anywhere and everywhere there is a regime our government doesn’t like, the assumption that not a single penny should be cut from the “national defense” budget, and the drug war violence in Mexico (I really wish someone would have brought up Fast and Furious).

Overall, the debate was very unsettling but Ron Paul once again was the voice of reason and responded well to his challengers.

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