Blowback Conservatism

I’ve been traveling today, driving from Amherst back to Washington, and so I’m catching up with some of the comments drawn by the piece on Commencements and the bizarre implication that springs from the judgment of the Court in Lee v. Weisman. I want to thank Carl Scott for his stirring words on Natural Rights & the Right to Choose. But on this matter of whether I would try to make use of the lever revealed in this case, he has me wrong on one critical point: I’m always in favor of the conservatives making use of the ‘principles’ laid down by the Left in order to show how those principles would work quite forcefully against them. The Left persistently fails to live by the rules or principles it lays down for others, and so the only way of making them back away is to use the precedents they set in ways that they’ll find quite jarring.

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Obamacare’s Constitutional Puzzle: Still Missing the Pieces

Last year’s Supreme Court decision on the constitutionality of the Affordable Care Act was one of the most controversial cases in American history.  In NFIB v. Sebelius, a narrow 5-4 ruling, the Court upheld the ACA’s individual health insurance mandate on the grounds that it was a constitutionally permissible tax, but rejected the federal government’s central arguments in defense of the mandate: the claim that it was authorized by Congress’ powers under the Commerce Clause and the Necessary and Proper Clause. The mandate, which requires most Americans to purchase government-approved health insurance by 2014, was the central focus of challenges to the constitutionality of “Obamacare” mounted by 28 state governments and numerous private parties.

ObamacareHarvard Law Professor Einer Elhauge’s book Obamacare on Triais a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions.

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Commerce and the Court (II)

The Supreme Court, I lamented yesterday, routinely falls down on its job of protecting interstate commerce against state depredation unless Congress has (arguably, sort of) made the first move. Mercifully, though, the Court is very generous both in finding that Congress has made such a move and in spinning out what that move entails. Exhibit A is the Federal Arbitration Act, on deck in tomorrow’s argument in American Express C. v. Italian Colors Restaurant.

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Commerce and the Court (I)

I’ve griped before (I think) about the Supreme Court’s less-than-stellar record on protecting the commerce of the United States. The Upside-Down Constitution contains an extended riff on the theme. As always, I am entirely right. A pair of Supreme Court case—a lamentable cert denial last week, and a blockbuster argument this week—confirms the analysis and illustrates the justices’ passive-aggressive posture.

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This You Must Do

Plaintiff-respondents’ briefs in the “individual mandate” portion of the Obamacare litigation, here and here, rely heavily on a distinction between regulating a commercial transaction and compelling it: the Commerce Clause, they say, authorizes Congress to do the former but not the latter. The government and its friends object that that distinction does not come from the Commerce Clause; the plaintiffs made it up. One can think of potent responses—among them, the reply that a contestable limit to the commerce power is still a lot more plausible, constitutionally speaking, than the government’s theory of a commerce power with no limit. The larger point, though, is that the plaintiffs’ distinction—and, more broadly, the agitation against the mandate—has real resonance even and perhaps especially with folks who aren’t terribly interested in constitutional nuances. Constant official assurances to the effect that the mandate is unique, and limited, and meant to make all the good Obamacare things (like guaranteed issue) work haven’t dispelled the public’s sense that a bridge is being crossed here.

There’s a potent vindication of that sense in a famous article by Lon L. Fuller entitled “Positivism and Fidelity to Law: A Reply to Professor Hart,” 71 Harvard Law Review  630 (1958). At the end of a devastating critique of Hart’s Legal Positivism, Fuller asks why positivism is so hostile to “purposive” interpretation of legal texts. Fuller views this posture as a response (albeit an “inept” response) to what he calls the real, growing, and crucial “problem of the impressed purpose”—that is, laws (or purposive mis-interpretations of laws) that compel private performance in accordance with social objectives and, in the process, threaten human freedom and dignity in a way in which mere prohibitions do not. Naturally, Fuller starts with examples involving speech and matters of conscience. He mentions the employers’ statutory duty to bargain “in good faith.” He mentions the flag salute cases and, remarkably, the “perversity” of Nazi laws coercing “Heil Hitlers!” Then comes this (p. 672):

Questions of [impressed purpose] are undoubtedly becoming more acute as the state assumes a more active role with respect to economic activity. No economic activity can be organized exclusively by “don’ts.” By its nature economic production requires co-operative effort. In the economic field there is special reason, therefore, to fear that “This you may not do” will be transformed into “This you must do—but willingly.”

“We all know,” Fuller continues, the most effective means of effecting this change: informal administrative proceedings “in which the negative threat of a statute’s sanctions may be used by its administrators to induce what they regard, in all good conscience, as ‘the proper attitude.’”

This is the world of Secretary Sebelius, whose recent pregnancy rule reflects a supreme confidence that anybody can be bullied. It is the world of the health insurance lobbyists at whose behest the individual mandate was written into Obamacare: yielding willingly to low-level tyranny is their business model. The point of public opposition to the rule and the mandate is the same: “This we won’t take—at least not willingly.”

Bond, Federalism, and Freedom


Ilya Somin reconsiders federalism and the protection of individual freedoms.

In Bond v. United States, an otherwise unremarkable recent Supreme Court ruling, a unanimous Court emphasized a profoundly important point: that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. In addition to setting boundaries “between different institutions of government for their own integrity,” constitutional federalism also “secures to citizens the liberties that derive from the diffusion of sovereign power.”

The case has important implications for both the immediate future of constitutional law and deeper issues of constitutional theory. For the near future, the decision suggests that the Court is not likely to reject federalism claims merely because they seem to be motivated by a desire to protect individual freedom rather than an interest in state autonomy for its own sake. More broadly, the case focuses attention on the ways in which limits on federal government power really do promote individual liberty.

Bond arose out of a tragic domestic situation. Philadelphia resident Carol Anne Bond discovered that a close friend of hers was pregnant, and that Bond’s husband was the father. In an effort to get revenge on this woman, Bond allegedly placed dangerous chemicals in areas the other woman was likely to touch, with the result that the latter got a burn on her hand. Prosecutors charged Bond with violating a federal law that forbids the use of chemicals that can cause death or serious injury to persons or animals, except for a “peaceful purpose.” Bond’s lawyers contended that this law is unconstitutional because it violates the Tenth Amendment, which holds that “the powers not delegated” to the federal government by “the Constitution” are “reserved to the States… or to the people.” Only states, Bond argued, have the authority to regulate criminal behavior of this type.

The federal government claimed that Bond is not allowed to raise this argument because the Tenth Amendment’s constraints on the scope of congressional power are intended to protect state governments, not individual citizens. The Supreme Court, as we have seen, decided otherwise because federalism protects individual freedom as well as state sovereignty.

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