Liberty Law Blog

A Disaster of Monumental Proportions

by Mike Rappaport / 5 Comments

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Unfortunately, I was away at a conference when the Obamacare decision came down and have not had a chance to blog on it.  In the next several days, I will be blogging about several aspects of the decision.

Let me start out with what I thought should have been obvious: This is a calamity.  Some commentators (who opposed Obamacare and believe that the federal government’s powers should be limited) have suggested that Chief Justice Roberts’ decision has a silver lining.  I disagree.  Chief Justice Roberts’ decision to join the progressive justices to uphold Obamacare is a disaster of monumental proportions.

Before the decision, I was predicting (along with some other knowledgeable observers) that there was a 55% chance that the Supreme Court would strike down the mandate, with a 20% chance of the entire statute being struck down.  The main question was whether Justice Kennedy’s vote could be had.  Because there is so much that is bad in Obamacare (with the mandate in many respects being the least of it, especially if one separates the mandate from the preexisting conditions regulations), the only genuine victory would have been the entire statute being struck down.  Unfortunately, the odds of getting Justice Kennedy’s vote to do that seemed pretty long.

But, amazingly, it turned out that Justice Kennedy was willing to strike down the entire law.  The expected conditions necessary for a full victory appeared to be there.  But then Chief Justice Roberts spoiled that victory by joining the progressives.  In my view, Obamacare is one of the most important pieces of legislation in the last 50 years and among the worst.  It could have been killed.  But due to Roberts, it continues to exist and even if the Republicans win in 2012, it seems hard to be confident that the whole law will be eliminated.  Sorry, there is no way to see Roberts’ decision as anything other than a disaster.

Some have been arguing that Roberts’s decision has a silver lining because it got the entire court to sign on to limits on the Commerce Clause.  Sorry, but I am not buying it.  Let’s put to the side that very few statutes of any importance are likely to involve the power to require purchases.  So let’s assume a really important statute does involve this power.  Let’s imagine that Congress passes a law comparable to Obamacare – call it Obamacare II – that penalizes the purchase of a commodity but for political reasons cannot call the penalty a tax and makes clear in the statute that the law does not impose a tax.  (Hey, wait, didn’t that happen already?)  In that situation, does anyone really believe that the progressive justices would not dispense with this precedent in a heartbeat and approve the next holy grail of liberalism?

They might distinguish the precedent.  Or they might simply overturn it  (Let’s not forget that the Supreme Court’s precedent doctrine gives the Court significant discretion to overturn pretty much anything they want to.)  The limits announced in this decision will no more stop a second Obamacare than United States v.  Lopez’s symbolic language prevented the Court from approving Congress’s power to prohibit medical marijuana.

When you have been defeated, there is little point in denying what has happened.  Let’s face it.  It is a disaster.

Roberts’ Rules for Self-Government

by Greg Weiner / 5 Comments

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Beneath the variegated opinions on health care issued by a divided Supreme Court, a shared subplot lurks: the strange and contentious fate of broccoli in a free republic.  The conservative justices utilized the specter of a broccoli mandate to argue that the requirement to purchase health insurance exceeds Congress’ powers under the commerce clause.  Justice Ruth Bader Ginsburg, writing for the minority on that issue, was at pains to say the analogy was inapt.  Yet all sides are falling prey to a fallacy that illustrates the Court’s lofty self-image as the Platonic protector not just against abuse but against absurdity too.

Call it the reductio ad constitutionatum: the suggestion that a power is unconstitutional if it could be absurdly applied. In political argument, the reductio ad absurdum—questioning a premise by showing that it leads to absurd consequences—is legitimate.  In judicial reasoning, though, it is less useful. Its unstated assumption is that the courts exist to protect us against our own acts of silliness—a vast understanding of judicial power. Even Earl Warren might blush. Continue Reading →

Friday Roundup, June 29

by Richard Reinsch / 0 Comments

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  • At Econlog, David Henderson wonders where we are on the Laffer curve?
  • Walter Olson wonders about Chief Justice John Roberts’ secret strategy. This glosses over the point that the ground probably could have been held.
  • Adam White connects Chief Justice Roberts to Marbury‘s John Marshall.
  • Point of Law features a bevy of commentators on the Obamacare decision. Highlights include Richard Epstein, Michael Rosman, and Erwin Chemerinsky.

Yesterday

by Michael S. Greve / 6 Comments

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The decision and opinions in the health care cases were bound to be shaped by considerations outside “pure” legal principle—by politics or statesmanship, call it what you will. As it happens, I have a relatively high tolerance for that sort of thing. What strikes me as disappointing about NFIB v. Sebelius is that the statesmanship and politics are so bad. Continue Reading →

Breaking the Chains of Ignorance and Despotism

by Kevin Gutzman / 6 Comments

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Political rhetoric does more than simply convey partisan messages.  It can also provide insight into changing conceptions of the relationship between the citizen and government, the ruled and the rulers.

So, for example, in its 1776 Declaration of Independence, the Continental Congress did not just lay out its case for seceding from the British Empire.  Rather, it claimed that God had endowed men with certain inalienable rights, famously including “life, liberty, and the pursuit of happiness.”  It also envisioned the citizenry as ultimately in a position of mastery over its government.  When government ceased to serve their purposes, Congress claimed, “It is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Continue Reading →

A Tax, Not a Penalty

by Richard Reinsch / 11 Comments

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So we now know that Chief Justice Roberts has joined with the four progressive members of the Court to uphold the Affordable Care Act on the ground that the “penalty” owed by any citizen violating the purchase mandate is not a penalty but a tax. As Ilya Somin notes at Volokh this is quite the surprise given that virtually every lower court judge rejected this argument.

Justice Scalia’s dissent powerfully address this point. Here are two brief excerpts:

“Our cases establish a clear line between a tax and a penalty: “[A] tax is an enforced contribution to provide for the suppport of a government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.” U. S. v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. s. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held–never–that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power-even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.

In further part, the dissent presses this point by observing as follows:

We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty.

But we have never–never–treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in § 5000A itself and elsewhere throughout the Act, Congress called the exaction in § 5000A(b) a “penalty”

Happy (Almost) Birthday, PCAOB

by Tom Christina / 1 Comment

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Tomorrow will be the second anniversary of the Court’s decision in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010).  I intended to mark the occasion by posting these thoughts on June 28th itself, but quite understandably, all of us will be completely preoccupied by Florida v. HHS tomorrow.  (In fact, on Thursday morning, I will be on a panel analyzing the Florida v. HHS decision at an event sponsored by AEI.  Readers are invited to use this link for details about attending in person or watching the live video feed.) 

So here goes, one day earlier than anticipatedy:

1.  Except for GMU’s Neomi Rao, no one over the past two years seems to have read the Chief Justice Roberts’ opinion in Free Enterprise Fund with all the care and attention it deserves.  That is their loss, because the opinion is at least as thought-provoking as I expect the decision in Florida v. HHS is likely to be.  (By the way, Professor Rao’s excellent paper on the Free Enterprise Fund decision and some of its potential implications for federal administrative law is available here.   I cannot recommend it highly enough. )

2.  Reading Chief Justice Roberts’ opinion in Free Enterprise Fund convinced me that a majority of the Court has reached at least a de facto consensus on an important analytic framework potentially applicable to a broad array of constitutional issues.  The foundation of that analytic framework is the perception that each of many individual clauses in the Constitution reflects each of three basic values:  (1) reliance on structural features to create sustained impediments to the exercise of governmental power as a general matter (not just exercises touching on particular interests or undertaken under particular circumstances); (2) individual liberty (in contradistinction to individual rights, to say nothing of individual “entitlements”); and (3) popular accountability of elected public officials. 

 However, there seems to be more than just that shared perception behind Free Enterprise Fund and several other significant decisions in the recent past.  I am tempted to say that the perception described above is becoming a shared analytic framework because of an additional factor:  a majority of the Justices do not regard it as a coincidence that they repeatedly encounter the three-part linkage described above.  One might say that at least five of the Court’s members have seen that linkage often enough that they have a more open mind than some of their predecessors about its presence elsewhere in the document.      

 3.  Free Enterprise Fund holds that an act of Congress is unconstitutional to the extent it provides that a principal officer of the United States wielding executive power may be removed only for cause and only by another principal officer of the United States, who himself may be removed only for cause.  The holding is formulated as a rule that any officer of the federal executive other than an inferior officer must be removable by the President at will or removable by an officer who is removable by the President at will.  As Professor Rao has explained, the logic behind this formulation, if accepted, is sufficient to support the conclusion that any officer of the United States (other than an inferior officer) who wields any part of the executive power must be removable at will by the President or removable at will by another officer removable at will by the President. 

 As an aside, the shade of Franklin Delano Roosevelt soon may be at peace, because the days of Humphrey’s Executor v.United States (1935) may well be numbered.  (Humphrey’s Executor, touted to us as a pillar on which the New Deal rests, positively infuriatedRooseveltand was one source of the animus toward the Court that led to his ill-fated Court packing scheme.) 

 If you have any doubt about what might be in store for Humphrey’s Executor, compare Free Enterprise Fund’s account of Myers v. United States (1926) with its account of Humphrey’s Executor.  The style of the latter bespeaks the drudgery of the task.  With its clinical accuracy and lack of engagement it resembles nothing so much as an autopsy report.  By contrast, the description of Myers is not only animated, but even livened up with President Truman’s “The buck stops here” aphorism.  I take this as more than just adding a dash of folksiness to the discussion.  In the context of describing Myers, the sign that graced President Truman’s desk is an anachronism.  Their presence makes sense only insofar as they represent an endorsement of Myers. 

 4.  The opinion in Free Enterprise Fund is quite literally dazzling.  At times it seems to rest on one or both of two discrete provisions of Article II, the Faithful Execution Clause and the vesting of federal executive power in a unitary executive.  But at other times it seems that the rationale depends on a single principle deduced from the presence of both clauses in Article II, i.e., the President’s accountability to the voters. 

 We hold that the dual for-cause limitations on the removal of Board members contravene the Constitution’s separation of powers. . . .

[The double “for cause” protection] arrangement is contrary to Article II’s vesting of the executive power in the President. Without the ability to oversee the Board [through the removal power] . . . [h]e can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member’s breach of faith.

 The diffusion of power carries with it a diffusion of accountability. . . . Without a clear and effective chain of command, the public cannot “determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.” . . . That is why the Framers sought to ensure that “those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.” . . .

The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so.

 5.  I think it is interesting to re-read Citizens United v. Federal Election Commission (2010) keeping the flow of the argument in the Free Enterprise Foundation opinion in mind.   Free Enterprise Fund (decided about six months later) is in some ways an elaboration of the very first sentence in Citizens United addressing the merits of the First Amendment issue:

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.

 6.  Then, to round out the picture, there is Bond v. United States (2011), decided last June, where similar themes are sounded, both as to the precise question presented and in an analogy based on the Presentment Clause that Justice Kennedy uses to illustrate his reasoning.     

 State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”  . . .

 Some of these liberties are of a political character. The federal structure . . . enables greater citizen “involvement in democratic processes,” . . . Federalism secures the freedom of the individual. . . .

  [T]he dynamic between and among the branches is not the only object of the Constitution’s concern. The structural principles secured by the separation of powers protect the individual as well. . . . For example, the requirement that a bill enacted by Congress be presented to the President for signature before it can become law gives the President a check over Congress’ exercise of legislative power. See U. S. Const., Art. I, §7. Yet individuals, too, are protected . . .

 7.  Naturally, I may be reading entirely too much into these opinions, but my conclusions at least give me high hopes about what tomorrow may bring.

 

State of Florida vs. George Zimmerman (2): The Fabrication of Probable Cause

by David Conway / 4 Comments

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Under Florida’s ‘stand your ground’ law, a person using deadly force against another is immune from prosecution for having done so under the following two conditions.

‘The individual reasonably believe[d]… such force… necessary to prevent imminent death or great bodily harm…’ (776.013).

‘The person… [was] not engaged in an unlawful activity… [and was] attacked… in a… place where he or she ha[d] a right to be… [in which case] he or she… has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it…  necessary… to prevent death or great bodily harm.’ (776.013 [3])

Continue Reading →

Preliminary Thoughts on Arizona v. United States: Part II

by Mike Rappaport / 2 Comments

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Here I continue my thoughts on Arizona immigration case.  For Part I of this post, see here.

5. Justice Scalia also criticizes the majority and the Obama Administration for arguing that state enforcement of federal immigration laws is preempted because it conflicts with executive branch priorities.  President Obama’s new immigration policy is based on the idea that the federal government has limited resources to enforce the immigration laws.  Arizona seeks to help them enforce the law, with an offer that calls the Administration’s bluff.  The Administration is saying: “No thanks, we don’t want the help.  We like the discretion.”

Justice Scalia writes: “But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.”  I am sympathetic to Scalia here, although the Administration could be right if the Congress had expressed a preference for executive branch discretion and against state assistance.

6. Interestingly, Justice Thomas did not join Scalia’s opinion, even though Thomas largely agrees with Scalia on the preemption questions.  One interesting possibility is that Thomas did not join Scalia because Thomas does not agree that the federal government has, as an original matter, the power to regulate immigration as part of its inherent sovereignty.

7. Finally, Justice Alito writes separately from both Thomas and Scalia.  Part of the reason is that Alito has a different bottom line.  Alito believes that Section 3 of the Arizona Act, which provides that an alien who willfully fails “to complete or carry an alien registration document” in violation of federal law is guilty of a misdemeanor under state law.  Justice Alito’s view is that the Supreme Court’s 1941 decision in Hines v. Davidowitz required this conclusion.  According to Alito, Hines had said that Congress had enacted a complete scheme of alien registration and therefore state laws could neither interfere with or complement that scheme.

Justice Alito’s opinion is written in the language of precedent and institutionalism that we have come to expect from him.  He seems happy to avoid Justice Scalia’s originalism and to continue the development of his own distinctive style of reasoning.

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