Mood Indigo
Last thing before turning in last night, I put up "Calling the Law Office of Epstein & Yoo," asking Richard Epstein and John Yoo what they make of the case, now underway in Florida, in which 20 state attorneys general are challenging the constitutionality of ObamaCare. At the time, I assumed, without really realizing it, that the court case was quixotic. Overturn the most massive piece of legislation enacted in decades? Whatever the constitutional merits, what court would even dare? The whole matter seemed laughable.
Yet now, in the early hours--here in California, the sun won't come up for another 90 minutes or so--I find my mind returning to the court case in a completely different mood or register. Think of it. Consider what it says about the institutions of the oldest constitutional democracy on earth. The chief legal officials of no fewer than 20 states believe the administration's signature legislation--the legislation on which Barack Obama in some basic way staked his presidency--violates our founding document. This isn't a minor dispute about whether some regulatory agency has overstepped its bounds. It isn't even a dispute about a more or less minor provision of the Constitution. When Richard Epstein and John Yoo argue about the chief executive's war-making powers, it can get pretty technical. This isn't like that. This is fundamental. This goes to the most basic workings of our institutions as a self-governing people under the law. If the federal government has the right to force every citizen to purchase health insurance simply because--well, simply because he exists--then, the state attorneys general argue, there is virtually no aspect of our lives that lies beyond the reach of federal power. The founding constraint on the federal authority--the creation of a government of limited and enumerated powers--will, after two-and-a-third centuries, have simply...evanesced.
This isn't an act of Third World madness, like sailing ships to Gaza, or an accident, like the oil leak, or an act of God, like each of the ten hurricanes the forecasters are now predicting over the course of the summer. This is something we have done to ourselves.
The sun will come up soon, I'll drive the kids to school, then grab a cup of coffee at Peet's, and then, most likely, find myself in a cheerful enough mood by the time I sit down at my desk to start work. It's wonderful, really, the way life simply goes on, quotidian tasks taking one from hour to hour. But in the back of my mind, like the residue of a bad dream, there will linger a certain apprehension. Something seems wrong. Something seems to be sliding away.
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Re: Mood Indigo
I'm not a law professor (although I do play one on the Internet), but I don't think that the challenges to ObamaCare are quixotic. In two cases from the 90's, SCOTUS did strike down legislation as going beyond Congress's commerce power. Neither case involved legislation as comprehensive as ObamaCare, but at least the Court has signaled that there are limits to the enumerated powers.
But the legal battle should focus not only on Congress's power, but also on individual liberty. The left has spent decades building up a constitutional "zone of privacy" used most famously in the abortion context, but which has been applied to other "personal and intimate decisions" such as the decision to refuse medical treatment. If the government can't force you to accept medical treatment (even life-saving treatment), how on earth can it force you to buy health insurance.
I'm sure a creative court can find a way to square this circle, but on the bright side, the left may finally be forced to concede the contradiction between expanding government power and expanding "privacy" rights.
Re: Mood Indigo
Let's begin, Peter, with your first question. Is ObamaCare unconstitutional?
The elephant in the closet is the rational basis test: so long as one good thing comes out of complex legislation, ignore all the demerits. That test makes it impossible to undo complex legislation.
That said, there are three lines of attack. I regard the commerce clause attack as the weakest, with the claim that the individual mandate is not "in commerce" because of what it forces people to do. But it is rational to do that, if we look at the statute as a whole, and realize that this measure is rationally related to preventing freeriding. It is all quite silly economically, but that is not the point here.
A better challenge is that the rates for the insurance carriers will give them no option to leave and deny them a competitive rate of return. But if rational basis is applied, good luck.
A third argument is that all the coercion on the states encroaches their sovereignty. But there is always some reason to do this.
The last two arguments have more traction because in both rate regulation and intergovernmental relationships there is some uneasiness with rational basis.
Edited on Jun 4, 2010 at 9:14amMay '10
Re: Mood Indigo
Peter, this sent a chill down my spine...
The founding constraint on the federal authority--the creation of a government of limited and enumerated powers--will, after two-and-a-third centuries, have simply...evanesced.
I can't shake the powerless feeling that is has also been done to us. Especially as a product of the public school system of the 80s and 90s.
Re: Mood Indigo
I agree with Richard about the three main constitutional issues, though I would rank their chances differently. When answering this, there are three questions: 1) what does the Constitution originally mean; 2) what would the Supreme Court do if it honestly applied its precedents; 3) what will the Supreme Court actually do? Unfortunately, but not surprisingly, the answers to these three questions are often different.
First, on the question of the Constitution's original meaning, I think (and I believe Richard would agree) that health care was not what the Framers would have understood to lie within Congress's power to regulate interstate commerce. Regulating the standards for interstate businesses, like insurance companies, may well have, but the Framers would not have understood the powers of the government to include such excessive regulation as to deprive enterprises of a reasonable profit. I also think that the Framers would not have thought that Congress's powers include the right to regulate states as states -- here, to force states to run insurance exchanges.
Edited on Jun 4, 2010 at 11:58amRe: Mood Indigo
Second, Richard, on what the Court's current precedents require, I think that the interstate commerce clause case is the biggest problem for the health care bill, if only because the Court's precedents have never allowed the punishment of inactivity (which itself may be the root cause of America's health problems). There are two Supreme Court cases on point: a) the Wickard case, where the Court allowed Congress to regulate whether an individual farmer was allowed to grow and use 240 bushels of wheat (which was recently used to justify the federal criminalization of pot smoking); and b) Lopez, the case of the pistol-packing peewee, where the Court said that Congress could not criminalize the mere possession of a handgun in a school zone.
Re: Mood Indigo
Third, in terms of what the Supreme Court will do, we all know that the Supreme Court is a political institution as much as a legal one, and the Justices are the products of a political selection process. We don't choose the country's #1 lawyers or best judges for promotion for the Supreme Court. If the Court "follows the election returns," as has been said, it cannot help but notice the deep unpopularity of the health care bill. In fact, the more unpopular it becomes, the more future Congresses may try to repeal it, the more freedom the Court will have to read the Interstate Commerce Clause not to extend congressional power to inactivity.
Re: Mood Indigo
If I've got this right, Richard, you see three avenues for proving ObamaCare unconstitutional--but feel nearly certain that, if the Supreme Court were to apply the "rational basis" test, all three would fail.
After reading your post, I looked up "rational basis" in Wikipedia. Sure enough: "Application of the rational basis test almost always means a ruling favorable to the government. The Wikipedia article also made clear that the "rational basis" test has been the default standard of review for constitutional challenges to federal statutes ever since United States v. Carolene Products was argued all the way back in 1938. Asking the Court to set aside "rational basis," then, would be asking it to set aside more than seven decades of precedent.
My new question, then, is simple: Is there any likelihood the Court would indeed set aside the "rational basis" test? That's the true threshold question, right? Under what circumstances--under the force of what arguments--might the Court actually set "rational basis" aside to adopt a higher level of scrutiny?
Re: Mood Indigo
On the originalism issue every feature of this legislation is so far beyond the pale that it is not worth talking about. Gibbons v. Odgen, which was John Marshall's authoritative exposition of the commerce power in 1824 thought that the federal government did not have the power to inspect goods at the outset or a conclusion of an interstate journey. That does not sound like a reason to nationalize the system. On encroachment, the clear sense at that time was that state were equal partners with the federal government. The ability to commandeer states to do various activities on pain of losing transfer payments was not on the horizon. The rate of return regulation at that time was quite primitive because there were no complex network industries like rairlroads to regulate. The issue of confiscation would not have arisen, because no one would have thought that the federal government could have done any of this. So trying to identify a reasoned response to an utterly implausible inquiry will net you nothing.
Re: Mood Indigo
As to the changes of the various theories, I play the odds. The encroachment theory has had some traction, as had the challenges based on rate regulation. The commerce clause arguaments have gone nowhere in other cases. The nonactivity line is inventive, but it leaves huge bits of the program in place, and will not be severed from the rest, or so I think.
True enough. But it cuts both ways. If there is a sustained political protest against the bill, it could be taken as a sign that politics will curb the excess so that everything else will survive. To strike it down will create all sorts of real difficulties with a program that has been implemented in some parts, but not in others. I think that postponement through politics is much more likely, and that the court would then ratify that decision by finding some way to avoid passing on the issue.
Re: Mood Indigo
Richard Epstein
On the originalism issue every feature of this legislation is so far beyond the pale that it is not worth talking about.
Richard: I agree on the originalism point, but it is also helpful to remind everyone about what the original Constitution was intended to do (after all, you wrote the classic Proper Scope of the Commerce Clause Power in 1987). It allowed Congress to enact rules to create a truly national market in goods and services, but not to engage in social engineering and certainly not to reach activity that occurs wholly in one state.
Re: Mood Indigo
Richard Epstein
The ability to commandeer states to do various activities on pain of losing transfer payments was not on the horizon.
On the issue of commandeering, let me be a little more clear. I take it that Obamacare's demands on the states will have to be defended as a spending condition. The federal government will require that states create insurance exchanges as the price for receiving federal medical funds. In other words, a bribe made possible by the large revenues made available to the federal government because of the income tax. Because of cases like Printz (where the Court said the federal government could not order states officers to carry out background checks before a handgun purchase) or New York (where the Court said that Congress could not order the states to pass laws creating dumps for the storage of nuclear waste), Congress cannot constitutionally order the states to do its dirty work for it.
But even spending has some restrictions. The Framers would have thought health care to be an issue of state and local control and would not have thought the federal government would get into the business of using its revenues to make grants as a means of coercing states to pass its favored policies. Obamacare still could run into the precedents of the Supreme Court, though I think the chances are low. Even when Congress tries to bribe states, there must be a nexus or link between the funds and the condition -- the leading case is South Dakota v. Dole, where the Court allowed Congress to give out federal highway grants on the condition that states raise their drinking ages to 21. Now forcing states to set up insurance exchanges might be close enough to the purpose of Medicaid and Medicare spending to pass the Dole test. On the other hand, the Court might feel that the exchanges themselves are not related if they are not themselves used by the Medicaid and Medicare programs.
I hate to say it, but I think the Court is afraid to enforce limits on federal spending, even in the limited ways it has done so with direct regulation under the Commerce Clause. The link between the exchanges and federal medical spending seems good enough under Dole, despite it offending the Framers' original design. That's one reason I think the Commerce Clause attack is the best bet.
Edited on Jun 4, 2010 at 2:18pmMay '10
Re: Mood Indigo
In order to determine if Obamacare is unconstitutional, one must first determine the nature of constitutionality.
The argument that Obamacare is unconstitutional takes the following form.
-Obamacare is [blank]
-All [blank] are unconstitutional
-Therefore, Obamacare is unconstitutional
That which makes Obamacare unconstitutional must fill in the blank space. The question is what will? What aspects of Obamacare make it unconstitutional?
The problem as I understand it is that the essence of constitutionality is not static - its dynamic (regardless if it should be static or dynamic).
What was unconstitutional years ago can be constitutional today, particularly acts of government intervention that depend upon generous interpretations of the Commerce Clause.
I'm wary of any proposition that a specific piece of legislation or act of government is unconstitutional because, as history lucidly demonstrates, the nature of constitutionality is easily subject to change, especially to change that expands the power of government. The trend in constitutionality has been one of growing allowances for bigger government. If inductive reasoning is any guide, this trend will continue.
If the appeal by the attorneys general fails, it will illustrate the growing futility of arguing against expansions of government power via constitutional arguments.
Re: Mood Indigo
Peter: Richard is right that if the rational basis test is used, Obamacare will survive. The only case I can think of where a law failed the test was in the gay rights cases from Colorado and Texas, where the Court said that only animus -- irrational dislike -- justified laws that discriminated against gays. The Court hasn't struck down an economic regulation on rational basis grounds since its failed effort to oppose the New Deal.
But the rational test won't apply if the law in question lies outside the Commerce Clause entirely. If the activity -- like the pistol held by the peewee in school -- is not considered commercial activity, then there is no rational basis test. There is no test, period. So the question is whether sitting on one's couch, watching t.v., and refusing to buy health insurance is in itself an economic activity subject to government regulation. If it is, then there really is no limit to federal power (another reason, in a second case, that the Court struck down a federal law as outside the Commerce Clause -- it had to draw the line somewhere).
May '10
Re: Mood Indigo
If rational basis is the issue, we could even be surprised at how some people decide. Justice Thomas would likely, based on his past decisions, be relatively deferential to Congress based on separation of powers, but very much dislike the encroachment aspects.
Is it possible that this could end up being one of those weird smorgasboard decisions like Casey, where it is settled by an inconclusive plurality and there are several different opinions predicated on different grounds?
Re: Mood Indigo
The guy in the back of the class raises his hand and asks the following:
If the application of the rational basis test says that one good result in a piece of legislation that has thousands of bad results means that the legislation is constitutional, in what parallel universe is that rational? And how does something pass constitutional muster under a test that doesn't appear to even reference the Constitution?
When I read Professor Epstein's observation that Obamacare is so far beyond the pale of originalism that it isn't even worth talking about, I must tell you my heart grew heavy. So we have brave men and women fighting and dying for, ...the rational basis test, the basis of which is not even rational?
Peter, in your original post you said that this was not a technical issue, that it was a "fundamental" question that goes to the very foundation of who we are as a free society. But notice please how quickly it became technical as the discussion unfolded.
As I read the back and forth, the question kept repeating itself in my mind, "Whose country is it anyway?" The Constitution enumerates a power to regulate interstate commerce. It should not take advanced degrees in irrational rationality to ascertain that where no commerce is taking place, e.g. someone elects NOT to purchase health insurance, there is no commerce to regulate. This is the difference between regulating and mandating, and it should be plain to anyone with a 7th grade education.
Likewise, to Michael's syllogism that asks what is it specifically about Obamacare that makes it unconstitutional, I would answer with the language of the 10th Amendment. Specifically, Obamacare is not among the powers granted to the federal government by the Constitution, therefore it is specifically prohibited by the Constitution. And that, sports fans is rational.
And to answer my own question, this is our country. Not the politicians, or the unions, and certainly not the lawyers or the judges who issue edicts like thunderbolts from Mt Olympus, oblivious to the Constitution they swore an oath to uphold. The original understanding and words of the Constitution are worth talking about alright. In my world, they were worth dying for. They are worth defending at home too, don't you think?
Edited on Jun 4, 2010 at 6:11pmMay '10
Re: Mood Indigo
David, the rational basis test is not a balancing of interests, it is about separation of powers. It is a minimum standard for the Court to decide whether a piece of legislation is totally specious, or might have some purpose- and the benefit of the doubt goes to the legislative branch, because creating legislation is their job. Therefore, you don't interfere unless there is a constitutional violation or there is no rational basis whatever (much of the campaign finance bill- McCain-Feingold- probably should have dumped on constitutional grounds; instead, the Court ignored the 1st Amd and found a rational basis). If we prefer a non-activist court, we don't necessarily object to the low standard.
But I agree that the requirement to act, as opposed to preventing me from acting, as described by Prof. Yoo offends my liberty-loving soul. What else will they be able to force me to do after establishing this precedent?
May '10
Re: Mood Indigo
A question from the guy on the stool with the pointy hat: I heard a comment the other day that resonated with me, and it concerned the Commerce Clause. Specifically, the assertion was that, at the time of the Constitution's writing, "regulate" meant something a little different than it does today.
We think of "regulate" as meaning, fiddle with the controls and the details to make the system work the way you want it to. But, the assertion goes, at the time of writing, "regulate" meant "to make regular". That is, you made the system regular by eliminating obstacles to the free flow of goods and services. But as long as it is working, you don't meddle.
Is there any merit to this line of reasoning, historically or legally?
Re: Mood Indigo
John, I do appreciate your kind references to my 1987 commerce clause article, which I think does get the history about right, not that others will follow it. But we should not be too optimistic here. The power to create national markets did not necessarily mean that it was to be used to create open national markets, although that was decidedly one possibility. Even in Gibbons, Marshall noted that requiring all ships to have US pilots was part of the commerce power, and the foreign commerce power was created in part to allow the imposition of tariffs on foreign goods.
As to the encroachment arguments, the case is a bit stronger I think than you suggest. The key point here is that it is not just a case that you don't get federal money if you don't sign up. There are also provisions that call for the states to also provide increased medicare coverage to certain groups up the poverty line. That was the real strong point in the Florida complaint in my view. So you are damned if you join in, and taxed specifically if you don't. That is more than holding back federal money.…
Edited on Jun 5, 2010 at 8:15amRe: Mood Indigo
…But even if we look only at the taxes, John, there is a bad prisoner's dilemma game. All state citizens have to pay the taxes, and if their state bails out of the program, their revenue goes elsewhere. Tough medicine.
These are strong arguments, but any court that chooses to ignore them will find enough language to support its position, starting with the strong presumption of constitutionality for all government regulation of the eocnomy.
Edited on Jun 5, 2010 at 8:15amRe: Mood Indigo
There is no doubt that this was one meaning of the term to "regulate" and probably was what John Locke meant when he said that in civil society property could be regulated. Think of the statute of frauds, which dealt with writing requirements for deeds and wills as an example of that movement. But I doubt very much that it fits the constitutional definition. Commerce covered foreign, domestic and Indian commerce. There is no question that people thought that the foreign power (to which the most attention was paid) allowed the imposition of tariffs. The Indian Commerce power featured a nonintercourse statute from 1790, which banned certain purchases with the Indian tribes. And Marshall himself in Gibbons took a broader definition, as did everyone thinking about the railroad rate cases later on. So that definition is just too narrow to hit the historical practice.