The Volokh Conspiracy

Various commenters on my recent post about Peter Jackson’s upcoming movie version of The Hobbit lament the fact that it is impossible to make a movie based Tolkien’s Silmarillion, the book that describes the history leading up to The Hobbit and The Lord of the Rings. The idea that the Silmarillion is impossible to film has become conventional wisdom. But I’m not sure it’s true.

I don’t doubt that it’s impossible to make a movie version that incorporates the entire Silmarillion. It covers several thousand years of history with numerous stories that are only loosely connected. But it is surely feasible to make movie versions of some of the individual stories, several of which are self-contained and have well-developed characters. The Tale of Beren and Luthien is an obvious choice. It’s a great tale of love and adventure, one of Tolkien’s own favorites among his works. The story of Turin Turambar is a great heroic tragedy, and could also work as a standalone movie (though Hollywood might not like the absence of a happy ending). Turin’s story has now been published in an expanded version based on Tolkien’s previously unpublished notes: The Children of Hurin. I blogged about it here and here. There is easily enough good material there to make a movie version.

These stories are almost as compelling as The Hobbit and the Lord of the Rings. Moreover, there is a built-in audience for movies based on them, since there are so many Tolkien fans out there (including many new ones attracted by the earlier LOTR movies). Once you drop the assumption that a Silmarillion movie must cover the entire book, it becomes a much more feasible project.

I doubt that either Peter Jackson or any other Hollywood bigwig reads the Volokh Conspiracy. Even if they do, they are probably (rightly) skeptical of film-making advice from legal scholars. Still, I hope they would consider the idea of a Silmarillion movie, on the off-chance that they do hear about it. 

UPDATE: As at least one commenter points out, a TV series based on the Silmarillion or one of its component parts might also work. Indeed, it might be even more appropriate than a movie, since it would not have to be limited to just 2–3 hours and could tell a longer story.

I very much appreciate Randy’s response to my latest post; It’s really terrific to have this discussion with him. While I have him on the line, I wanted to push Randy a bit on the act/omission distinction.

If the constitutional line is between acts and omissions, as Randy suggests, then I gather Randy would agree that Congress could circumvent this restriction by prohibiting an affirmative act together with failure to buy health insurance. That’s what Congress did when it wanted to require sex offenders to register, for example. Under that recent law, a person who is supposed to register as a sex offender is guilty of a federal crime if he crosses a state line and has failed to register. The “act” is the crossing of state lines, even though the real goal is to require sex offenders to register. The circuit courts have so far unanimously upheld this prohibition as being within Congress’s power. 

Given that, I’d be interested in Randy’s view of what “acts” Congress could legitimately use to overcome the proposed act/omission distinction in the case of the individual mandate. Here are four possibilities:

a) Congress prohibits the affirmative act of crossing state lines after having failed to purchase health insurance.
b) Congress prohibits the affirmative act of using a means of interstate commerce, such as the Internet or the telephone system, after having failed to purchase health insurance.
c) Congress prohibits the affirmative act of using the postal service after having failed to purchase health insurance.
d) Congress prohibits the affirmative act of purchasing of any item in interstate commerce after having failed to purchase health insurance.

If the Supreme Court were to adopt the proposed act/omission distinction, which ones of these law would be constitutional because they are punishing “acts” rather than “omissions”? All of them? None of them? 

I thank Orin for his thoughtful response and believe I understand much better our areas of disagreement. I am happy to discuss the “line drawing” problem instead of “slippery slopes.” In McDonald, there was always a serious line drawing problem with reviving the Privileges or Immunities Clause. But there is no comparable line drawing problem with striking down economic mandates. Congress has gotten along quite well for 220 years without the power to mandate economic activity when regulating interstate commerce. Barring Congress from imposing economic mandates will affect no other laws now on the books, though it will cut short a potential slippery slope into all sorts of economic mandates Congress might dream up to avoid taking political responsibility for enacting taxing and spending schemes.

I also think I see better now what Orin is driving at when he claims that: “The challenge to the constitutionality of the individual mandate tries to engage in just the kind of line-drawing that the Justices have concluded they can’t do. It tries to carve out a zone of economic regulation that Congress is forbidden to enact. But exactly what is the zone? Where exactly is the line?” Yet, it is easy to distinguish regulating and prohibiting voluntary economic activity, on the one hand, from requiring such activity on the other. The Justices never had to make this distinction before, because Congress never before attempted to impose an economic mandate on the citizenry at large. And only one law will be in jeopardy if the Supreme Court declines to extend its current doctrine from activity to inactivity. 

As to why the line should be drawn here, there are many powerful reasons, some of which I identify in my paper. But the ability to draw a principled line is easy: it is the difference between acts and omissions. Of course, Orin (like Justice Breyer) may think that the rationale for regulating economic activity may extend to inactivity, and he is entirely free to argue why the Supreme Court ought to recognize such a power in Congress. Indeed, that issue will be debated seriously from now until the end of this litigation. But that is not a “line drawing problem.” That is a substantive legal debate requiring a substantive analysis. 

I did not have Orin in mind when I wrote the following in my paper (which you can download here), but I think it may well describe how he is approaching this issue:

Until 1995, law professors believed that, beginning in 1937 with cases such as NLRB v. Jones & Laughlin Steel, United States v. Darby, and Wickard v. Filburn, the Supreme Court had so expanded the scope of the commerce power of Congress that Congress could do anything it wanted provided it was not violating some other constitutional constraint, like say the First Amendment.

So law professors were shocked when the Supreme Court in 1995 held in United States v. Lopez that the Gun Free School Zone Act unconstitutionally exceeded the commerce power of Congress. They interpreted this case as an aberration. By 1995, Congress had become so complacent about the scope of its powers that it did not even bother to make findings about why the act was within its commerce power. Most law professors were confident that, in the future, the Court would uphold any law if Congress made adequate findings that the activity it sought to regulate had a substantial effect on interstate commerce. 

So law professors were, once again, surprised when the Supreme Court in 2000 held in United States v. Morrison that the Violence Against Women Act was unconstitutional-notwithstanding extensive hearings and findings about the substantial effects of violence against women on interstate commerce. In the wake of Morrison, law professors started to believe that the Court just might be serious about drawing a line between what is national and what is local, and lower courts started to be more receptive to Commerce Clause challenges. 

In one such case I helped bring on behalf of Angel Raich and Diane Monson, the Ninth Circuit held that the Controlled Substances Act was unconstitutional as applied to marijuana grown at home for medical use as authorized by state law. When the Supreme Court in Gonzales v. Raich turned away this challenge, however, law professors breathed a sigh of relief that they had been right all along. They reverted to their pre–Lopez understanding that Congress can do pretty much whatever it wants under its commerce power.

Indeed, the new conventional wisdom is that, so long as Congress establishes a sweeping and ambitious regulatory scheme, it can reach any activity-whether economic or not-that it deems to be essential to that scheme. In other words, the more grandiose the claim of power by Congress, the stronger is its claim of constitutionality. 

Hence some law professors have breezily asserted that Congress may, for the first time in American history, use its commerce power to mandate that all individuals in the United States engage in economic activity. After all, this mandate is essential to Congress’s grandiose new scheme regulating private insurance companies. So under Raich, it must be constitutional.

The rest of my paper explains why I believe this conventional wisdom is an inaccurate understanding of existing doctrine governing “necessity” in the context of the commerce power, and also why the Court should not expand beyond existing doctrine. 

Given that Orin quotes from Justice Kennedy’s concurring opinion in Lopez, we ought also to note Justice Kennedy’s concurring opinion in Comstock where he insisted that:

The operative constitutional provision in this case is the Necessary and Proper Clause. This Court has not held that the Lee Optical test, asking if “it might be thought that the particular legislative measure was a rational way to correct” an evil, is the proper test in this context. Rather, under the Necessary and Proper Clause, application of a “rational basis” test should be at least as exacting as it has been in the Commerce Clause cases, if not more so. . . .

I had thought it a basic principle that the powers reserved to the States consist of the whole, undefined residuum of power remaining after taking account of powers granted to the National Government. The Constitution delegates limited powers to the National Government and then reserves the remainder for the States (or the people), not the other way around, as the Court’s analysis suggests. And the powers reserved to the States are so broad that they remain undefined. Residual power, sometimes referred to (perhaps imperfectly) as the police power, belongs to the States and the States alone.

It is correct in one sense to say that if the National Government has the power to act under the Necessary and Proper Clause then that power is not one reserved to the States. But the precepts of federalism embodied in the Constitution inform which powers are properly exercised by the National Government in the first place. See Lopez, 514 U. S., at 580–581 (Kennedy, J., concurring); see also McCulloch, supra, at 421 (powers “consist[ent] with the letter and spirit of the constitution, are constitutional”). It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause; if so, that is a factor suggesting that the power is not one properly within the reach of federal power.

The opinion of the Court should not be interpreted to hold that the only, or even the principal, constraints on the exercise of congressional power are the Constitution’s express prohibitions. The Court’s discussion of the Tenth Amendment invites the inference that restrictions flowing from the federal system are of no import when defining the limits of the National Government’s power, as it proceeds by first asking whether the power is within the National Government’s reach, and if so it discards federalism concerns entirely.

These remarks explain why the Court ignores important limitations stemming from federalism principles. Those principles are essential to an understanding of the function and province of the States in our constitutional structure.

True, Justice Kennedy expresses his concern here with compromising state sovereignty, rather than categorical distinctions like the difference between “economic” and “noneconomic” activity, or activity and inactivity. (Recall that Justice Kennedy did join the majority opinion in Lopez that drew the line between “economic” and “noneconomic” activity, while also concurring.) But the issue of Congress’s power to impose economic mandates was not before him in Comstock. And this passage does not sound to me like a justice willing to overthrow the traditional effort to draw a line between the enumerated power of Congress and powers “reserved to the states respectively or to the people.”

Of course, if Orin is right that a majority of the justices have indeed given up on all efforts to draw a “line” around Congress’s power to each any activity — or inactivity — it deems convenient to its regulation of interstate commerce, then the challenge to the mandate will surely fail–as will the scheme of limited and enumerated powers. That would be breaking new ground indeed. I wonder if the time is ripe for that sort of judicial declaration? 

In a post commenting on the controversy generated by our earlier exchange (see here and here), Sandy Levinson writes:

It is obvious that contemporary libertarians are prone to blame individuals for most (even if .... not all) things that befall them; political liberals are far more likely to offer structuralist explanations that have the consequence of exempting individuals from “responsibility” for much of their fate. 

I don’t think this is correct. One of the central tenets of libertarianism is that many bad things that befall individuals are caused by excessive government intervention. I gave several examples of such in my last two posts, and of course libertarian scholars have catalogued many more.

Once government has caused harm or injustice, it is natural to want government to compensate the victims. However, libertarians are more wary than liberals of large-scale government programs rationalized by the need to compensate for government’s own injustices. Unfortunately, using “government” to compensate the victims almost always actually requires forcing taxpayers to do so. And most of them are also innocent of inflicting the original injustice. Thus, using government to correct its “own” injustices usually involves creating new and sometimes even greater injustices. 

Moreover, a program intended to compensate the victims of a specific government-inflicted injustice often gets “captured” by interest groups and gets diverted away from its original purposes. For example, affirmative action was originally instituted to compensate African-Americans for the horrible government-inflicted injustices of slavery and segregation, a worthy objective that I have great sympathy for. Over time, however, various other groups have become beneficiaries of the system under the “diversity” rationale, often in ways that undercut the original objective. I don’t categorically rule out the option of using government programs to alleviate government-created injustices. But any such efforts must take due account of 1) the harm to innocent taxpayers, and 2) the possible perversion of the resulting program by interest group politics. For these reasons, I prefer compensatory measures that involve a one-time payment that is difficult to divert and does not establish an ongoing bureaucracy or class of interest group beneficiaries. The 1988 bill compensating Japanese-Americans unjustly interned during World War II is a good example (though I think the payments were probably too low).

There is also nothing unlibertarian in recognizing that many people suffer simply as a result of bad luck. A person who can’t get a well-paying job because his IQ is very low for genetic reasons surely can’t be blamed for that. Few libertarians would disagree. But the fact that a misfortune is not the fault of the victim does not necessarily mean that government should intervene to “fix” it. After all, the misfortune also is not the fault of the taxpayers who would be forced to pay for the fix. Moreover, giving government broad authority to correct misfortunes caused by bad luck leads to all the standard pathologies of big government that I summarized here. Over time, this harms a great many innocent people.

In sum, the big disagreement between libertarians and liberals is not over whether individuals often suffer misfortunes that aren’t their fault (though there is sometimes debate over the degree of individual fault in particular cases). It is rather over the justice, efficacy, and potential negative side-effects of government action.

It is always a pleasure when Randy responds to one of my posts that touches on his areas of expertise. Here are a few thoughts in reply to Randy:

1) I fear there is a misunderstanding as to what comparison I made in my post to which Randy responds. In my post, I compared the blog debate here at the Volokh Conspiracy on the P or I arguments in McDonald with the blog debate on the individual mandate. That is, I was comparing VC posts then and the reactions of VC commenters then to VC posts now and the reactions of VC commenters now. Randy responds by arguing that the legal issues presented by the two cases are quite different. That’s true, but I don’t think I argued to the contrary. On the other hand, Randy’s post today does reaffirm my sense of deja vu on the blog debate: It seems to me that his post responding to me today has a passing similarity in tone and argument to this post responding to me on the road to McDonald. And come to think of it, the post you’re reading right now is kind of like this one replying to Randy. (Am I the only one who is thinking of this scene from Spaceballs right now?)

2) Randy contends that one major difference between the challenge in McDonald and the challenge here is that the challenge in McDonald raised slippery slope problems but that it is the defenders of the mandate who have slippery slope problems. I think Randy has it backwards, however. Supreme Court Justices think in terms of line-drawing, not slippery slopes. A slippery slope may be a reason to draw or not draw a line in a particular place, but it’s the actual line-drawing — the decisionmaking — that they care about as judges. If they have to draw a line, they want it to be a coherent and clear line. And if they can’t draw a coherent and clear line, often they would rather not draw a line at all. 

This was a big problem for the petitioners in McDonald because privileges or immunities argument raised an enormous line-drawing problem as to what rights were included or excluded. The petitioners refused to even say what rights were included or excluded. That made the P or I argument in McDonald very unlikely to be adopted, as was clear to many court-followers as soon as the brief was filed (and was clear to others after the oral argument).

In the case of the individual mandate, it is once again the challengers to the law who have the line-drawing problem. To see why, you have to recall the long struggle in Supreme Court decisions with trying to draw lines in the scope of federal power in the area of economic affairs and commercial matters. Over time, the Supreme Court gave up on trying to distinguish between interstate and intrastate in this area — it was just too hard to distinguish the two persuasively, the Justices thought. Justice Kennedy highlighted this long history in his Lopez concurrence that I excerpted on Friday, and included his own view that stare decisis requires adhering to that approach.

[Stare decisis] forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system. Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy.

The challenge to the constitutionality of the individual mandate tries to engage in just the kind of line-drawing that the Justices have concluded they can’t do. It tries to carve out a zone of economic regulation that Congress is forbidden to enact. But exactly what is the zone? Where exactly is the line? I asked that question in a blog post back in April, Drawing Lines in the Commerce Clause Debate on Health Care Reform, and I was interested that no one offered any answers. Perhaps Randy has an answer to that post, and if so, I would be interested to see where he would draw the line between constitutional and unconstitutional. But I think it’s the challengers to the mandate, not the defenders, that have the line-drawing problem. 

3) Randy suggests that he is confused by what kind of claim I am making when I discuss the constitutionality of the mandate. As Randy has articulated elsewhere:

When discussing the “constitutionality” of a governmental action, one must distinguish between three senses of ‘constitutionality’: (1) What the Constitution says and means; (2) what the Supreme Court has said and meant, and (3) whether there are five votes on the Supreme Court to uphold or invalidate the action.

To make sure we’re on the same page, I have blogged about (2) and (3). I blogged about (2), what the Supreme Court has said and meant, starting with my post “Some Tentative Thoughts on the Constitutionality of the Individual Mandate Under Current Supreme Court Doctrine.” I blogged about (3) in various places, both directly and indirectly, starting with my post “What Are the Chances that the Courts Will Strike Down the Individual Mandate?”. As for (1), I haven’t blogged on it at all because I am not a constitutional theorist and I’m quite skeptical of grand constitutional theory. So it’s not the kind of question that falls within my area of particular interest or expertise. I very much enjoy reading Randy’s fascinating work in this area, and I realize this is Randy’s approach. But it just happens that it’s not mine, so I haven’t blogged about that. 

UPDATE: As a slight amendment to that last point, I should point out that I alluded to (1) briefly in this post, in which I wrote:

I don’t like modern commerce clause doctrine, . . if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, [and] I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause.

I don’t know if that really counts as blogging about (1), but it might, so I wanted to make sure my post wasn’t misleading.

Timothy Sandefur  produces important research on economic liberty. I’m pleased that the Independence Institute, where I work, recently hosted an event for him to promote his book. I’m also happy that he has become part of the team of Cato Institute writers, which I have been part of since 1988. As a contributing editor of Liberty, I have followed his writing since he was a law student. And of course I commend Eugene for inviting him to guest-blog for VC. However, one item in his blogging appears to me to be erroneous:

When talking about “substantive due process,” as I’ve been doing, one must address a number of myths about that theory that, sadly, are so common that many law students are never even taught what the theory even means.

I.

Here is a good example: “the Supreme Court has never in its entire history tried to derive [substantive due process] from the text of the Constitution.” Nelson Lund & David B. Kopel, Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III, 25 J.L. & Pol’y 1, 3 (2009). Now, whether one accepts or rejects the idea of “substantive due process,” this claim is just false. The Supreme Court had repeatedly explained how substantive protections arise from the Constitution’s text.

The quote is not precisely accurate, and here, the lack of precision leads to a serious error. In the article that Sandefur cites, Nelson Lund and I were discussing and criticizing Roe v. Wade. After a quote from Roe about “the Fourteenth Amendment’s concept of personal liberty,” we then wrote: “This was presumably a reference to the doctrine of substantive due process, which the Supreme Court has never in its entire history tried to derive from the text of the Constitution.”

Our statement as actually written was accurate. Sandefur supplies no example to counter our statement that “the doctrine of substantive due process” (that is, of selective incorporation, unenumerated substantive rights such as those in Meyer v. Nebraska and Roe v. Wade, and so on) has never been the beneficiary of a Supreme Court attempt to derive it from the text of the Constitution.

Instead of showing a case where the Supreme Court did what we had said it did not do (explicate a textual basis for “the doctrine of substantive due process”), Sandefur instead supplies two quotes from Supreme Court cases that did something else.

The first quote, from Loan Ass’n v. Topeka (1874) is little more than an asserted conclusion, albeit one I happen to think is correct. The block quote from Hurtado v. California (1884) provides a litany of things that are not “due process of law”; such as bills of attainder, or special laws enacted to favor or harm a particular individual or group. The Hurtardo quote presents a common nineteenth century view of “due process of law,” with, at least arguably, hundreds of years of roots in American legal understandings. Some of the background of this thinking can be found in Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585 (2009) and James W. Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Comment. 315 (1999). Both authors trace the “due process of law” concept from Magna Carta’s “law of the land” provision, through Dr. Bonham’s Case (voiding a local monopoly on the practice of medicine) and its explication by Edward Coke, and to its understanding by the American colonists. This understanding (which might have been incorrect as a matter of English law) was adopted by the American Framers, and carried forward by antebellum state courts.

So yes, “due process of law,” in a textualist sense, can require judicial action against even laws which may have been enacted under proper procedures, such as special legislation (e.g., taking property from X to give it Y). And, quite obviously, this traditional view of “due process of law,” summarized in Hurtardo, has very little to do with “the doctrine of substantive due process.” The former, text-based view, condemns special legislation; yet you can’t use the modern Supreme Court’s “doctrine of substantive due process” to attack a congressional statute that was enacted for the obvious benefit of one corporation, whereas such a challenge might be plausible under the “due process of law” principle of Hurtardo.

In short, Nelson and I did not voice any objection to the principle of “due process of law” as briefly explicated in Hurtardo. Instead, we claimed that the Supreme Court’s doctrine of substantive due process (which is much more wide-ranging and dubious) has not been derived by the Court from the text of the Constitution. Hypothetically, it might have been possible to so derive at least some of the modern SDP decisions, but I suggest that the absence of any Supreme Court citations from Sandefur rebutting what we actually said is further support for our point.

In an earlier post, Orin compares the current challenges to the constitutionality of the individual insurance mandate to debates on this blog over the case of McDonald v. Chicago. But there are some marked differences between the two challenges, and I don’t believe he recollects accurately the nature of the debate we had over McDonald.

First, and most importantly, in McDonald, in addition to challenging the Chicago gun ban, which most observers (Orin included) believed would succeed, the challengers were also seeking the outright reversal of longstanding Supreme Court precedents on originalist grounds — in particular, the Slaughter-House Cases, Cruikshank, and Presser. In contrast, in the challenges to the mandate, the challengers are resting their case on their interpretation of existing Supreme Court precedents. In particular, they rely on the long line of cases that analyze the “class of (intrastate) activity” being regulated to see if it is either “economic” or “essential to a broader regulation of interstate commerce.” In no previous case, has the Court ever sanctioned the mandating of economic activity as a Necessary and Proper exercise of the commerce power. The difference between challenging century-old precedents and offering an interpretation of existing precedents can hardly be exaggerated. This difference is already being manifested in the rulings of lower court judges.

Second, and of almost equal importance, in McDonald, the challengers’ theory of the Privilege or Immunities Clause faced several uncertainties including serious “slippery scope” issues. These included identifying what rights are included among the privileges or immunities of citizens of the United States, how such rights are to be identified, what differential treatment, if any, is warranted between citizens and persons, and what laws might be unconstitutional under a revived Privileges or Immunities Clause. Although these difficulties were known and debated in advance, they really came to the fore during a very contentious oral argument when they were raised by both the liberal and conservative sides of the Court. Because of these difficulties, no one who witnessed that argument was optimistic that the Court would revive the Privileges or Immunities Clause. In the challenges to the mandate, however, a judicial refusal to allow Congress to impose “economic mandates” on individuals to effectuate its commerce power would affect one and only one law: the Patients Protection and Affordable Care Act of 2010. This is because it is the only law in American history that ever sought to impose such economic mandates (or so the Court could easily reason, as did Judge Vinson). For example, these challenges would not reach such taxing and spending programs as Social Security or Medicare; nor would they reach a single-payer Medicare-for-everyone scheme, should Congress enact one. By contrast, the government’s “economic decisions” theory (such as it is) faces enormous slippery slope objections all coming to this: what principled limit is there to allowing Congress to mandate that person engage in economic activity–especially on the theory that the Government (and Orin) advance for why this mandate is necessary and proper? Any serious defender of the constitutionality of economic mandates needs to come to grips with these slippery slope concerns, unless one is prepared to argue that there are no judicially-enforced limits to the Commerce and Necessary & Proper Clause–a proposition that has always been rejected by the Supreme Court. When contemplating oral argument in this case, I know which side i would prefer to be arguing. 

Third, and less importantly, if the PPACA remains as politically unpopular when the Court considers the challenge as it is today, and one or both houses of Congress have changed parties, and a repeal initiative in Congress is blocked by a counter-majoritarian Senate filibuster or Presidential veto, the Justices will feel more comfortable accepting valid constitutional objections to this law than they would if the law was perceived by them to be popular. All they need to do to strike down the mandate is stick with their previous decisions limiting the scope of “necessity,” all of which involved the regulation of “activity.” Alternatively or secondarily, they could find economic mandates to be an “improper” means for effectuating the commerce power. In contrast, in McDonald, they could strike down the Chicago Gun Ban by merely extending its existing Due Process Clause jurisprudence to the Second Amendment without opening “Pandora’s box.” Add to this the fact that the mandate does not go into effect until 2014, so they will not have the burden of striking down a system that is already up and running (as was the gun ban in Chicago). 

Finally, I think Orin misremembers the nature of the debate he and I had about McDonald. My claim then was that “the Constitution” protected the right to keep and bear arms against state infringement as a privilege or immunity of citizenship–as ultimately contended by Justice Thomas in his McDonald dissent, and never denied by Justice Alito in his majority opinion in McDonald. Orin countered by characterizing my position as “the Constitution as it ought to be,” as opposed “the Constitution as it is.” I found this distinction baffling and we debated several rounds on what it means to claim that a statute is “unconstitutional.” To the extent I understood his position–and I never felt confident that I did–Orin seemed to be basing his view of “constitutionality” solely on his prediction of what the Court would do, rather than any substantive analysis of the Constitution or even of existing doctrine. My view of “constitutionality” did not rest on such predictions, so I did not need to offer any. Indeed, I did not see how you could argue Orin’s conception of constitutionality to a court: “Justices, may it please the Court. The Constitution protects the right to keep and bear arms as an aspect of the Due Process Clause because I predict this is what you will hold. I reserve the balance of my time for rebuttal.” In response, Orin said as an advocate he would employ the full range of constitutional analysis and argument, but I simply did not see how this connected up with his view of “constitutionality” which declined any reliance upon or even any mention of these modes of analysis. As I recall, THIS was what we were debating.

Of course, because the challengers of the mandate are basing their challenge on their reading of existing doctrine, rather than any claim about the original meaning of the text, Orin can’t offer the same critique. Instead, he now seems to be basing his view of “constitutionality” on some combination of his predictive prowess (hence his fond recollection of McDonald) and an exceedingly confident interpretation of Supreme Court doctrine apparently based on his view of its underlying rationale. I must confess that I am again uncertain about the nature of his interpretive claims about how to read precedent, though I strongly suspect that his reading of doctrine is, once again, actually a product of his prediction of how the Court will rule. In essence, he seems to be predicting how the Justices will write the opinion upholding the mandate, but I could be wrong about this. Once again, neither Ilya, nor Jonathon, nor I are basing our claims about existing doctrine on our prediction of how the Supreme Court will actually rule. If the challenge was decided today, I think the best case scenario for upholding the law would be 6–3, and best case scenario for striking it down would be 5–4. But notice that, like Orin’s predictions, these are completely nonfalsifiable until the decision is handed down. Unlike McDonald, however, this time Orin IS also offering his own reading of existing doctrine, so the nature of this disagreement is different than before. And unlike McDonald, in which the Seventh Circuit denied the Privileges or Immunities Clause (and even the Due Process Clause) claim on the basis of precedent, this time, Orin is in the position of challenging an opinion of a sitting federal district court judge, rather than merely his cobloggers. Hence his complaint about the “missing argument.” So, at this point, he cannot resort to mere prediction of how the district court will rule and must move on to discuss his reading of the cases versus those of Judge Vinson. 

From Andrew Ferguson’s review of Dinesh D’Souza’s The Roots Of Obama’s Rage in The Weekly Standard:

The partisan mind—left-wing or right-wing, Republican or Democrat—is incapable of maintaining more than one oversized object of irrational contempt at a time. When Obama took his place in the Republican imagination, his titanic awfulness crowded out the horrors of Bad Old Bill; Clinton’s five days in Moscow were replaced by Obama’s three years in that mysterious Indonesian “madrassa.”

We should probably be grateful for this psychological limitation. Without it the negativity of our politics would be relentless. Like Ronald Reagan before him, George W. Bush was reviled for eight years by Democrats driven mad by a sputtering rage—the “most right-wing president in history”!—but it’s only a matter of time until they rediscover him as a mild-mannered figure, the signer of campaign finance reform, funder of African AIDS relief, would-be grantor of amnesty to illegal aliens; an able if sometimes misguided man whose public service stands in stark contrast to whatever revolting Republicans have come after him. The Dubya renaissance will begin the moment President Christie takes his hand off the Bible and begins his Inaugural Address.

It’s in this light that the anti-Obama hysteria of recent months should be seen. Among professionals, political loyalties and hates are as changeable as the weather, bearing no relation to the plain evidence that normal people try to rely on. Taking the long view means never taking them seriously. Lucky for us, the hysterics make it so easy not to take them seriously.

The review is subtitled “How Not to Understand Obama.”  It’s fair to say Ferguson was not impressed by D’Souza’s book.

The idea of robotic cars that drive themselves is a good one, I think, and one whose time is rapidly coming.  The New York Times reports on Google undertaking test drives of cars in the San Francisco area with robotically controlled cars, including a drive down Lombard Street, a famously hilly and difficult street.  The engineers are those who took honors at recent DARPA contests for creating vehicles able to self-navigate urban settings; these are the top people in the business:

During a half-hour drive beginning on Google’s campus 35 miles south of San Francisco last Wednesday, a Prius equipped with a variety of sensors and following a route programmed into the GPS navigation system nimbly accelerated in the entrance lane and merged into fast-moving traffic on Highway 101, the freeway through Silicon Valley.  It drove at the speed limit, which it knew because the limit for every road is included in its database, and left the freeway several exits later. The device atop the car produced a detailed map of the environment.

The car then drove in city traffic through Mountain View, stopping for lights and stop signs, as well as making announcements like “approaching a crosswalk” (to warn the human at the wheel) or “turn ahead” in a pleasant female voice. This same pleasant voice would, engineers said, alert the driver if a master control system detected anything amiss with the various sensors.

The test drives have a human navigator in the car as well as an expert human driver at the wheel to take control if something went wrong; the Times article says that assuming human control is no more difficult than ending cruise control.  None of which I doubt at all.  The article added, however, that Google had carefully examined the California vehicle code to determine that the experimental cars were legal to drive on the road:

But the advent of autonomous vehicles poses thorny legal issues, the Google researchers acknowledged. Under current law, a human must be in control of a car at all times, but what does that mean if the human is not really paying attention as the car crosses through, say, a school zone, figuring that the robot is driving more safely than he would?  And in the event of an accident, who would be liable — the person behind the wheel or the maker of the software?

“The technology is ahead of the law in many areas,” said Bernard Lu, senior staff counsel for the California Department of Motor Vehicles. “If you look at the vehicle code, there are dozens of laws pertaining to the driver of a vehicle, and they all presume to have a human being operating the vehicle.”

The Google researchers said they had carefully examined California’s motor vehicle regulations and determined that because a human driver can override any error, the experimental cars are legal. Mr. Lu agreed.

I am particularly curious whether Google had, or perhaps ought to have in the future, an obligation to let appropriate California authorities know that it was test-driving experimental cars with at least some question as to whether the configuration of a human poised to take over is safe and effective.  In fact, I wonder if it did so in advance — the article gives a California Department of Motor Vehicles counsel’s view, but I wonder whether that came before or after the fact?  Is there some obligation to warn the local law enforcement before undertaking something like this?  And to be perfectly blunt, suppose that it were Toyota that had been doing this?  Would the reaction have been quite so agreeable?

I am delighted to see this kind of technology moving forward, and definitely agree that the technology is ahead of the law in some of these areas.  As a lawyer interested in robotics and the law, I do have some questions as to the appropriate protocols in place for testing new technologies, and whether there are obligations to let the public know in advance, or authorities know in advance, what one is doing.  I have no doubt that Google carefully checked its legal position beforehand.  Query whether this is exactly the right set of legal rules for testing new technologies that, in order to see whether they can function as they are intended, require that they be tested in, among, and with the public.  I do not have a settled view on how these rules should work.

Update:  Alert commenter points to an article at Jalopnik on the question of whether Google’s cars are legal on California roads; the article says that Google alerted local authorities.  But my question is still, what should be the rules for deciding whether the car is safe to take in traffic among people like you and me?  Who should be able to decide that?

In a certain sense, after all, what Google is doing is a form of human subject experimentation, of the kind that were it a university, would likely at a minimum require discussion with a human subjects committee, informing the subjects, etc.  Of course, one can say that this is not the proper analogy — and I would agree as a lawyer looking at California’s codes — but I would still ask the question, without having at this point a fixed answer, should it be?  The nature of Google’s testing requires that it be done among the driving public, by assumption among people who don’t know there is a robot among them; should this be regarded as ethical and should the legal rules allow for it in dealing with robots?

From a technology and society standpoint, the long term gains from this kind of technology will presumably be once we mandate that all cars be driven by robots.  Among other things, if things work as hoped, it will allow for much, much smaller spacings between the cars and higher road speeds that will extract greater efficiencies from roads and highways, and help manage congestion problems.  Being able to read the Volokh Conspiracy on your way to work is vitally important, of course, but not the only potential gain of the new technologies.

Update 2:  Several of the comments suggest that the issue isn’t really a big one, since the “driver” that Google has placed behind the wheel is ultimately legal responsible for the operation of the vehicle under the law, as it currently stands.  I’m sure that Google has researched this question as a matter of current law thoroughly and I don’t doubt the conclusion.  Query once again, however, whether that would be a stable legal rule of liability in the case of ordinary people for whom the vehicle has come equipped with this technology; if something goes wrong, you are responsible and then you turn and sue the manufacturer?

But we’ve been down these paths before; it seems to me it would be hard in some future where the technology is widespread and beyond the ability of a human operator to have much sense of whether the machine is properly operational, to have any very direct form of liability, either as a matter of tort or a matter of the criminal law of the vehicle code.  People simply will conclude, with good reason, that it would be unfair and inefficient to hold them responsible for the operation of technology without any clear way of knowing whether it works or not.  The responsibility then moves backwards to the manufacturer, and other points of expert contact, but it is hard not to conclude that in terms of the actual operation of the vehicle, that point of accountability is lost.  It might well — I am pretty certain that it would — be made up by safety and other gains from the widesrpead use of the technology, but I would not at all believe that the current liability rules in either tort or the criminal aspects of the vehicle code would remain legally stable.

And the idea of the “system” acting as a “driver” when everyone is mandated to use the system — well, I assume at that point, we shift entirely to a different arrangement for liability.  The idea of the “system” as “driver” as “liable” is interesting, but I would assume that at that point, it morphs into some insurance system of liability and compensation.

(No more updates for me — I’m allowing myself to be distracted from writing about the operational and strategic uses of UAVs.  Can I get a robotic system to write that for me?)

Or so reports the Associated Press (available in the Washington Post).

The justice said the annual speech to Congress has become very political and awkward for the justices, who he says are expected to sit “like the proverbial potted plant.”
* * * * *
The better course, Alito said, is to follow the example of more experienced justices like Antonin Scalia, Clarence Thomas and the recently retired John Paul Stevens. None has attended in several years.

“So I doubt that I will be there in January,” Alito said.

File under “surprising to absolutely no one.”

In a recent post at Balkinization, Sandy Levinson argues that the recent mostly government-funded rescue of the trapped Chilean miners proves the need for a large welfare state. He also issues a challenge to the Volokh Conspiracy:

PBS reports that the cost of rescuing the 33 trapped Chilean miners was $10–20 million. A third apparently came from private donations, with the rest from a mix of the state-owned copper company in charge of the effort and the government of Chile itself. Every American law student is told that there is, in the United States, no “duty to rescue.” It is, of course, just such a notion of “good Samaritanism” that is the foundation of the welfare state, in which haves see their funds redistributed to have-nots lest the latter end up starving or freezing on the streets or watching their houses burn down because they can’t afford to pay the user fee to the local fire department....

I’ve done a quick check of recent entries to the Volokh Conspiracy, which I take it is the leading collection of libertarians in the legal academy, and I notice that none of them saw the rescue as worthy of comment. Might it be too threatening for, say, David Bernstein, who announced his forthcoming talk to the Federalist Society (with a comment to follow by Jack Balkin) on his new book that attempts to rehabilitate Lochner, to admit that at least sometimes there is a role for the “rescuing state,” which, almost by definition, must take from those who have in order to provide for those who don’t?

First, I very much appreciate Sandy’s calling us “the leading collection of libertarians in the legal academy.”

Second, I can’t speak for David Bernstein. But my own view is not that the mine rescue is unworthy of comment, but that I’m not a good person to comment on it. Why? Because I am not an expert on either industrial accidents generally or mining specifically. For reasons I recently explained here, I try to limit my blogging on public policy issues to areas where I have real expertise or at least follow closely. Sandy Levinson is a leading constitutional law scholar, and his work on the issues where he is an expert is almost always insightful and interesting. On this issue, however, I suspect that Sandy’s expertise isn’t much greater than mine. At the very least, such expertise isn’t evident in his post. For example, Sandy doesn’t actually cite any evidence showing that a government-led system for dealing with industrial and mining accidents is superior to private sector alternatives. 

Given my own lack of expertise on industrial accidents, I’m not going to try to offer an argument to the contrary. I will say, however, that the mining accident adds little to the case for the modern welfare state even if Sandy’s interpretation of what happened there is completely correct.

As I pointed out in a recent response to one of Sandy’s co-bloggers, it is perfectly consistent to believe on the one hand that government should provide some degree of assistance to those of the poor who genuinely can’t care for themselves, while also arguing for a massive reduction in government intervention in the economy. That was the view of libertarian thinkers such as Milton Friedman and F.A. Hayek. Much government intervention benefits not the poor, but the wealthy and well-organized interest groups, who generally have vastly greater political power than the poor do. It is ironic that Sandy brings up David Bernstein’s work on Lochner in this context. A central element of David’s analysis of Lochner and other early 20th century labor regulations is that those policies in fact benefited organized interest groups at the expense of poor, immigrant, minority, and female workers. In many cases, David points out,this was actually their intended purpose, not merely an accidental side effect.

It is also somewhat strange that Sandy (in the same post) uses the issue of government aid to the poor to attack people like Paul Ryan and Eric Cantor. These politicians haven’t even come close to proposing the abolition of the welfare state. They are far less radical in that respect than I am (I too would not abolish the entire welfare state, but I would abolish a lot more than either Ryan or the GOP leadership would). Rather, Ryan’s famous “road map” proposes to scale back the welfare state primarily by introducing greater means testing. In other words, he seeks to cut benefits to the wealthy and middle class, not the poor “have-nots” who, in Sandy’s words, might “end up starving or freezing.” As Ryan himself puts it, he supports a “robust safety net” for the latter. 

As I noted in my last post, there is actually a lot of historical evidence that private sector institutions often do a better job than the state in aiding the poor as well as the rich and middle class. But even if you believe, as I do, that some degree of government redistribution to the poor is needed, that doesn’t justify anything remotely resembling today’s overgrown government. Indeed, redistribution to the genuinely needy would be far easier to maintain if it weren’t for the looming fiscal crisis created in large part by enormous bailouts and entitlement programs that mostly benefit the nonpoor.

There is plenty of bad news in the world today. But one recent piece of really great news is that Peter Jackson’s film version of The Hobbit, has finally been greenlighted and is scheduled to begin filming in February 2011 [HT: fellow legal academic Tolkien fan Steve Bainbridge]. Apparently, Jackson has managed to settle the labor union problems that threatened to further delay production.

As Tolkien might have said, this is truly a sign that “A light from the shadows shall spring.” Not all those who wander are lost, including Peter Jackson.

Perhaps it’s not too late to include a part for co-blogger Randy Barnett, who has previous experience in sci fi/fantasy roles. I myself would be happy to sign on as a consultant on Middle Earth property law.

On a (slightly) more serious note, I can’t wait to see the movie. Jackson did an excellent job with the Lord of the Rings films, and I have high expectations for this project as well.

Thank you to The Volokh Conspiracy for allowing me to guest blog this week about economic liberty and the law. Economic freedom is one of the most crucial of human rights, and it is a shame that government violates this right in so many ways today, and with little serious opposition by the courts that are supposed to protect our rights.

Check out the new Right to Earn A Living book page, and if you haven’t joined our Facebook page, please do so today!

I hope readers will check out PLF Liberty Blog for more updates on the cases I and my Pacific Legal Foundation colleagues are litigating. Also, in the coming weeks I’ll be speaking at events across the country, and would love to meet any VC readers or PLF supporters. I’ll be speaking in Boston on Tuesday, Hartford on Wednesday, Portland and Brewer, Maine, on Thursday, and again in Boston on Friday. Check out the book page for a full schedule of future talks in those and other cities across the country.

Please also drop by my personal blog, Freespace, and Panda’s Thumb, where I sometimes write about creationsim/evolution issues.

I recently was reminded of this quote about Commerce Clause doctrine and I thought I would put it out there for comment in light of the recent debates on the constitutionality of the individual mandate:

[T]he Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system. Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy.

Do you agree or disagree? The source of the quote, for those who are interested, is below the fold.

Continue reading ‘One Perspective on the Scope of Federal Power “In the Commercial Sphere”’ »

At Balkinization, prominent legal historian Brian Tamanaha has an interesting post on progressivism, racism, and libertarianism. He acknowledges that libertarians, including me, are right to point out that early 20th century progressivism was tarred by racism. But he also argues that libertarians have their own historical skeletons in the closet, ones he claims are more difficult to shed than racism is for progressives:

With the resurgence of the use of the term “progressive” by liberals, libertarians have taken to reminding liberals that their turn-of-the-century progressive forebears were virulent racists. According to libertarians, when the social reformist impulse of progressivism mixed with the personal racism of progressives, a toxic brew resulted that led to the legal oppression of blacks and other racial minorities. “The ideas of race and color were powerful, controlling elements in progressive social and political thinking,” [David Southern] argues. “And this fixation on race explains how democratic reform and racism went hand-in-hand.” Libertarians even blame progressives for Jim Crow laws.

There is much truth in this charge......

But classical liberals have their own embarrassing grandparents. Herbert Spencer, the most influential advocate of laissez faire in nineteenth century America, opposed all government aid to the poor and infirm because it thwarted the biological law that the weakest should die. (He coined the phrase “survival of the fittest.”)....

While racism can be severed without loss from progressivism (and indeed has been), the doctrine that government activities should be strictly limited to protecting property, enforcing contracts, and maintaining order is built into libertarianism. Ludwig von Mises, the leading classical liberal of the early twentieth century (not a social Darwinist), opposed public education as beyond the proper scope of government, and he was against any unemployment benefits (because it encourages indolence). Von Mises recognized that the unemployed would suffer, but he felt this was justified because it would increase overall material wealth. Clear echoes of this argument are still made in libertarian circles today. 

To the extent that Tamanaha merely wants to suggest that early libertarians such as Spencer made some very dubious arguments that modern libertarians should repudiate, he is surely right. I also welcome his acknowledgement, which echoes that of some other liberal scholars, of the close relationship between early 20th century progressivism and racism. But I take issue with some of his other points about both libertarianism and progressivism.

I. Progressivism and Racism.

I don’t believe that early 20th century Progressive racism is as easily sidestepped by modern liberals as Tamanaha suggests. As I explained in my earlier post on the subject, “The racist elements of Progressive ideology don’t prove that economic interventionism is racist by nature..... Still less do they prove that modern left-wingers are necessarily racist as well. But they do undercut claims that racism is primarily a product of the ‘right’ and that economic leftism and racial progress necessarily go together.” The point is not that modern liberals are racists (the vast majority are not), but that many of them are wrong to believe that racism is mostly or exclusively a product of “the right.” 

There is a second, even more important, lesson here as well. It is that concentrating economic power in the hands of government is unlikely to benefit unpopular minority groups and the politically weak more generally. Rather, government intervention is likely to benefit the politically influential at the expense of the weak, which usually includes the poor, as well as disliked racial, religious and other minorities. As co-blogger David Bernstein notes, “[a]s a matter of American history, activist government was often used to oppress minority groups. As a matter of world history, the record of “activist government” with regard to minorities is even worse. And as a matter of political theory, it’s not at all clear why one would expect public policy in a democracy to necessarily be helpful to minority groups.” Progressive-era economic regulations that victimized blacks and immigrants are just one of many historical examples. 

This is the really important lesson of early 20th century racism for modern progressives. And it’s one that few of them have fully assimilated. Indeed, it’s not clear that they can assimilate it without seriously questioning one of modern progressivism’s central commitments: the idea that there should be few or no constitutional constraints on government’s power to control “economic” activities.

II. Libertarianism and “Hard-Heartedness.”

Tamanaha is indeed correct to note Herbert Spencer’s social Darwinist “hard-heartedness,” which is not defensible. On the other hand, few if any modern libertarians either oppose all charity or rely on social Darwinist arguments about the “survival of the fittest” in any significant way. David’s work on the Lochner era shows that social Darwinism was a much less important element even in early 20th century libertarian legal thought than was traditionally believed. For example, contra Oliver Wendell Holmes, it is simply not true that the justices who decided Lochner did so under the influence of social Darwinist ideas.

Few modern libertarians even cite Spencer or other social Darwinists at all. By contrast, modern liberals do often cite early 20th century progressives as inspirations for their ideology. And until recently, few of them paid much attention to the more unsavory aspects of early 20th century Progressivism (though I should add that some far left radical scholars, such as Gabriel Kolko, were much more critical).

Tamanaha is also correct to note that many modern libertarians oppose welfare statism across the board for reasons unrelated to social Darwinism. He is wrong, however, to suggest that this position is an essential element of libertarian thought. Such prominent libertarian scholars as Milton Friedman (inventor of the negative income tax), and F.A. Hayek argued that libertarianism is compatible with a strictly limited welfare state. It is a coherent position to argue that property rights and economic liberties should get strong protection — far stronger than most liberals would permit — without concluding that they always outweigh all other considerations.

While my own views are close to the Hayek-Friedman position, I do not believe that more categorical versions of libertarianism are morally disreputable or something that modern libertarians should be embarrassed about. There is a serious case that the functions currently performed by the welfare state are likely to be better done by private organizations. Historian David Beito has shown how the rise of the welfare state destroyed many private mutual aid organizations that often did a better job of providing social services to the poor without creating perverse incentives. You don’t have to be either a social Darwinist or “hard-hearted” to endorse Beito’s position. Indeed, Arthur Brooks’ research shows that opponents of government welfare on average donate a far larger proportion of their income to charities that benefit the poor than supporters do.

As for public education, its extremely poor record over the last several decades and its repeated use for indoctrination suggests that libertarians have no reason to apologize for Mises’ views. To put it a different way, libertarians can support educating the public without supporting public schooling. As E.G. West describes in his classic Education and the State, education levels in Britain and the United States were rapidly rising before the introduction of public schooling, which was largely motivated by a desire to indoctrinate students in government-approved religious and political views. In the words of John Stuart Mill, an important intellectual forebear for both libertarians and progressives, “A general State education” promotes whatever view “pleases the predominant power in the government.... in proportion as it is efficient and successful, it establishes a despotism over the mind, leading by natural tendency to one over the body.”

UPDATE: I am having some difficulties eliminating certain technical problems in this post. I hope to get them resolved soon. 

UPDATE #2: The technical issue has been solved.

UPDATE #3: Various people, including my wife and David Bernstein, have pointed out that I was too quick to endorse Tamanaha’s critique of Herbert Spencer. As Damon Root explains here, Spencer was not actually opposed to private charity, and many of the other standard charges against him are also based on distortions of his work:

At the heart of [historian Richard] Hofstadter’s [famous] case [against Spencer] is the following passage from Spencer’s famous first book, Social Statics (1851): “If they are sufficiently complete to live, they do live, and it is well they should live. If they are not sufficiently complete to live, they die, and it is best they should die.” 

That certainly sounds rough, but as it turns out, Hofstadter failed to mention the first sentence of Spencer’s next paragraph, which reads, “Of course, in so far as the severity of this process is mitigated by the spontaneous sympathy of men for each other, it is proper that it should be mitigated.” As philosophy professor Roderick Long has remarked, “The upshot of the entire section, then, is that while the operation of natural selection is beneficial, its mitigation by human benevolence is even more beneficial.” This is a far cry from Hofstadter’s summary of the text, which has Spencer advocating that the “unfit...should be eliminated.”

Similarly, Hofstadter repeatedly points to Spencer’s famous phrase, “survival of the fittest,” a line that Charles Darwin added to the fifth edition of Origin of Species. But by fit, Spencer meant something very different from brute force. In his view, human society had evolved from a “militant” state, which was characterized by violence and force, to an “industrial” one, characterized by trade and voluntary cooperation. Thus Spencer the “extreme conservative” supported labor unions (so long as they were voluntary) as a way to mitigate and reform the “harsh and cruel conduct” of employers. 

Roderick Long has more information on Spencer’s views on charity here.

Marty Robins has a nice column summing up the case against a foreclosure moratorium in light of the foreclosure documentation fiasco.

The bottom line is that these guys screwed up royally and need to take their lumps.  But equally, we should not forget that we are talking about homeowners who haven’t paid their bills.  This is a fight as to who has the right to foreclose, not whether foreclosure is valid.

[With apologies to Orin.]

The more I participate in discussions on the constitutionality of the individual mandate, the more it feels to me like a replay of the debate over the limits of federal commerce clause power prior to the Supreme Court’s decision in United States v. Lopez.

In both cases, the issue is whether the Supreme Court will adopt limitations on the scope of government power that are greatly desired by libertarians and supported from an originalist perspective, but that Supreme Court doctrine hasn’t shown any particular sign of adopting as a a matter of constitutional law. In both cases, the commentary in favor of the limitation seems aimed at fostering a sense of the legitimacy of those limitations with the hope that this will make it more likely for the Supreme Court to adopt them. In both cases, most informed observers were skeptical (if not incredulous) at the idea that the Supreme Court  would take that step– only a handful of people saw the invalidation of the Gun Free School Zones Act as a realistic possibility; most saw it as extremely unlikely. In both cases, many commenters are extremely passionate about what they believe the correct constitutional answer must be — with commenters seemingly lining up in the same way on the two issues. And in both cases, most informed commentators would expect the Supreme Court to side affirm federal power.

There are differences, of course. The debate over the Commerce Clause pre–Lopez was more for law geeks than the public: It concerned the likelihood the Court would affirm the limitations of the federal commerce power for the first time in over fifty years  in a low-profile case few had heard of, let alone cared about, and it lacked the broad political movement that exists over the individual mandate.  Yet then, as now, the litigation occurred at a time when limited government political arguments were on the rise and now, unlike before, serious academics and court watchers believe that, as a predictive matter, the constitutionality of the individual mandate is  an “open question.”   Nonetheless, I can’t avoid the sense of deja vu — but maybe that’s wishful thinking.

Turns out I was being filmed for an upcoming Stossel special, not for the weekly show on Fox Business.  So don’t look for me tonight because I won’t be there!  I’m sure that tonight’s show will be great anyway, even (especially?) without me.

The more I participate in discussions on the constitutionality of the indivdiual mandate, the more it feels to me like a replay of last year’s discussions on the Privileges or Immunities Clause on the road to McDonald v. City of Chicago.

In both cases, the issue is whether the Supreme Court will adopt limitations on the scope of government power that are greatly desired by libertarians and supported from an originalist perspective, but that Supreme Court doctrine hasn’t shown any particular sign of adopting as a a matter of constitutional law. In both cases, much of the commentary in favor of the limitation seems aimed at fostering a sense of the legitimacy of those limitations with the hope that this will make it more likely for the Supreme Court to adopt them. In both cases, I find myself at odds with my co-bloggers on the likelihood that the Supreme Court would take that step — with my co-bloggers seeing it as a quite realistic possibility, and me seeing it as extremely unlikely. (In both cases, I saw it from the outset as a likely 8–1, with only Justice Thomas on board.) And in both cases, many commenters are extremely passionate about what they believe the correct constitutional answer must be — with commenters seemingly lining up in the same way on the two issues. 

There are differences, of course. The debate over McDonald was more for law geeks than the public: It concerned the likelihood an argument would win in a known case, not even the result in that case, and it lacked the broad political movement that exists over the individual mandate. Still, I can’t avoid the sense of deja vu.

I am currently underwater with some things and won’t be posting much, despite my interest in the debates over drones, targeted killing, and much else besides. However, I wanted to suggest that, for those trying to make sense of US actions in AfPak — including the overt strikes by NATO against safe havens in Pakistan, the sharply increased public pressure by the US on the Pakistan government to take action against these safe havens, the unapologetic defense of targeted killing even of US citizens in places like Yemen or Somalia or beyond, etc. — at this moment there are two key sources.

One is Woodward’s new book. I took a pause out of writing some stuff on these topics to read the book; events unfolding now appear quite directly to follow on the path laid out in the President’s review of Afghanistan and Pakistan strategy a year ago. This is the main narrative of the book, and well worth reading closely. There’s little going on now that is not presaged in those discussions. And current events are both following a plan laid out a year ago, almost exactly, and running up to the planned December 2010 strategic review.

Two, the reporting by Adam Entous, Julian Barnes, Siobhan Gorman, and others at the Wall Street Journal’s news pages. I follow the reporting in all the papers closely, and the Journal’s news coverage at this point in time is eating the other newspapers’ coverage for lunch. I think the Washington Post figured they had it covered with the excerpts from Woodward’s book, and have been caught somewhat flatfooted by what is going on now — and seem curiously unable to connect it to their own excerpts from Woodward’s book. The Washington Times is always very good because its national security team is well connected in DC and on the ground in AfPak, but outgunned in this particular phase of reporting. The New York Times is unfocused; Helene Cooper is unsuited to this beat, and despite my considerable respect for Scott Shane and others there, alas, the national security reporting team seems to have lapsed into simply waiting for someone to leak it something.

Entous, who just came over from Reuter’s, and the other folks at the Journal have been aggressively working sources in DC as well as on the ground in AfPak, and I admire the way in which they approach analysis as news reporters — it’s not fit to a preexisting political narrative, but instead trying to link up the longer run picture of strategy by closely reading Woodward and others close to the process from a year or two or five ago, and see events in a strategic frame that is not about prior narratives. It’s exemplary reporting that is both very detail oriented and yet analytically clear-eyed. It is still newspaper reporting, rather than magazine journalism let loose on the front page, but scrupulously neutral and simultaneously an analytic and factually detailed take.  Actually, it’s a little bit like what one would hope the best intelligence analysis inside the agencies would look like; one hopes that Panetta and others receive stuff this good with all the secret stuff tucked in as well.

There’s a surprising amount of great poetry about economic liberty; perhaps the most famous is Shylock’s comment in The Merchant of Venice, when Antonio recommends that the state confiscate Shylock’s property: “Nay, take my life and all; pardon not that: / You take my house when you do take the prop / That doth sustain my house; you take my life / When you do take the means whereby I live.” The Supreme Court quoted this passage in Adams v. Tanner, 244 U.S. 590 (1917), when it struck down a state law that outlawed employment agencies. While the government could certainly regulate such agencies to protect the public and to police against fraud or force, it could not “justify destruction of one’s right to follow a distinctly useful calling in an upright way.”

Other poets have celebrated economic dynamism; there’s Whitman’s evocative praise of American industry, and Sandburg’s ode to muscular Chicago; the New Deal’s insane restrictions on economic freedom led to Ogden Nash’s famous parody “One From One Leaves Two,” and also inspired a poem about the Shechter Poultry case by Mrs. Shechter herself.

But I’ve always most enjoyed Maya Angelou’s poem “Times Square Shoeshine Composition.” Although Angelou’s shoeshiner speaks ironically of capitalism, he is actually a prime example of the opportunity that free markets offer to people in his position, and Angelou’s warm celebration of his boastful pride in his work harmonizes remarkably well with Whitman’s mechanics and artificers. He really is a capitalist; an entrepreneur who has achieved a degree of self-reliance and pride that was, of course, totally denied to his ancestors. When he insists on the quarter and a dime instead of just a quarter, he brings to mind Frederick Douglass, who described in The Life And Times how he felt upon being paid for his first job after escaping from slavery:

I was not long in accomplishing the job when the dear lady put into my hand two silver half dollars. To understand the emotion which swelled my heart as I clasped this money, realizing that I had no master who could take it from me — that it was mine — that my hands were my own, and could earn more of the precious coin — one must have been in some sense himself a slave…. I was not only a freeman but a free-working man, and no Master Hugh stood ready at the end of the week to seize my hard earnings.

Angelou certainly has valid reason to be ironic in her poem, but that irony doesn’t cloud the deeper truth of the shoeshiner’s free independence — which brings me to the case of Ego Brown.

Brown ran a shoeshine stand in Washington, D.C. — except that city ordinances prohibited the running of shoeshine stands on the sidewalks. Other kinds of merchants could sell things on the sidewalk; just not shoeshiners. The rule was a holdover from the days of Jim Crow, when white shoeshiners generally worked indoors, and thus used economic regulations to exclude competition from black shoeshiners who worked outside. Represented by the Institute for Justice, Brown sued, and a federal district court struck down the law under the rational basis test: “There must be at least some plausible connection between the ‘uniqueness’ of a bootblack and the purpose of the law. To find this connection, we would have to ‘strain our imagination’ beyond that which is required under the rational basis test to justify prohibiting bootblacks from the use of public space while permitting access to virtually every other type of vendor. Even the minimal rational basis test does not require the court to muse endlessly about this regulation’s conceivable objectives nor to ‘manufacture justifications’ for its continued existence.” Brown v. Barry, 710 F. Supp. 352, 356 (D.D.C. 1989).

Brown, who’s still shining shoes today, is Angelou’s creation brought to life — every bit as independent and admirable as his poetic counterpart.

The great international law scholar Louis Henkin passed away two days ago; for many decades he taught at Columbia Law School, which released a note from the dean on Professor Henkin’s passing. Over at Opinio Juris, Harold Koh, currently Legal Adviser to the State Department, has a lovely tribute to him.  I have come not to share Lou’s views on some things related to international law and human rights, but that’s neither here nor there; Lou Henkin is one of the giants of international law and the human rights movement.

For me personally, however, what I will most recall about Louis Henkin is something altogether different.  When my wife and I lived in New York, we would occasionally run into Lou and Alice Henkin, walking hand-in-hand along the streets of the Upper West Side near Columbia.  It was this then middle-aged couple strolling hand in hand that always caught my wife’s attention, and mine; I hope we can be like that, said My Beloved Wife on one occasion.  Ave atque vale.  And deepest sympathies to Alice Henkin and all their family.

This week, environmental analysts from left and right came together to offer a “post-partisan” approach to climate change.  In Post-Partisan Power: How a Limited and Direct Approach to Energy Innovation Can Deliver Cheap Energy, Economic Productivity, and National Prosperity, Steven Hayward (American Enterprise Institute), Mark Muro (Brookings Institution), and Ted Nordhaus and Michael Shellenberger (Breakthrough Institute) argues that the best path to a clean energy future is to make alternatives to fossil fuels much less expensive, and that this can be best achieved by increased support for technological innovation.  Specifically, the paper calls for a dramatic increase in federal support for clean energy R&D, an overhaul of the energy innovation system, and greater use of military procurement to drive the diffusion of clean energy technologies (including next generation nuclear power).  While not without flaws, the proposal represents a serious alternative to politically-moribund cap-and-trade proposals and the regulate-everything mindset that produced the Waxman-Markey bill.

The proposal has sparked a range of reactions.  Doctrinaire environmentalists are concerned, but some thoughtful progressives seem to realize this sort of non-regulatory approach to climate policy may be the only game in town.  (See also here.) Those truly concerned about the accumulation of greenhouse gases in the atmosphere should see this as a good thing.  As David Leonhardt notes, even some supporters of cap-and-trade have acknowledged that Waxman-Markey was oversold.  Despite its tremendous costs, the bill would not have driven down U.S. emissions all that much, and it would have done nothing to prevent massive emission increases in China, India and the rest of the developing world.  The reality is that unless it becomes cheap to power the world in a low-carbon way, it will not happen, and regulatory mandates are no way to achieve this goal.

The biggest question about Post-Partisan Power is how to pay for the proposals.  As a general matter, it’s much easier to increase spending than to impose wide-ranging regulatory controls on energy (and, I would argue, it’s would  also be easier to adopt a revenue-neutral carbon tax than Waxman-Markey-style cap-and-trade, but that’s the subject for another post).   Nonetheless, in the current political environment, it will be difficult to find the $25 billion or so necessary to fund the “post-partisan” plan.  Eliminating energy subsidies could get us only part way there, and a carbon tax to fund additional federal spending would be DOA in the new Congress.

Fortunately there are other options.  If the goal is to increase economic investment in clean energy innovation, not all of the money has to come from the federal government.  Indeed, if the goal is to induce $25 billion in investment, this does not require $25 billion in federal funding.  As I discuss in this paper, technology-inducement prizes can greatly leverage R&D investments.  The Ansari X-Prize offered $10 million for reusable, manned spacecraft but induced an estimated $100 million in investments in pursuing the prize.  Equally important, the resulting innovation sowed the seeds of a fledgling space travel industry, showing how properly designed prizes can lead to commercially viable technologies.  A ten-to-one multiplier is not guaranteed for all prizes, but with prizes the federal government need not put up $25 billion to spur that level of investment.  Federal procurement can also be used to increase the incentive for private sector investment in clean energy R&D  without greatly increasing costs to the taxpayer.

If there’s “post-partisan” support for increased investment in clean energy technology, there should also be such support for prizes.  John McCain proposed a battery prize in the 2008 presidential campaign and the Obama Administration has endorsed greater reliance on prizes in technology funding.  The authors of Post-Partisan Power are correct that there is no solution to climate change without substantial breakthroughs in clean energy technologies.  If their vision of increased clean energy R&D is to become a reality, technology-inducement prizes would be a great place to start.

My colleague Erik Jensen, who has forgotten more about the Taxing Power than I’ll ever know, has a new paper on whether the individual mandate is a “tax” for constitutional purposes.  Here’s the abstract:

This article, prepared for a symposium at the Salmon P. Chase College of Law, Northern Kentucky University, considers whether the Taxing Clause provides an alternative constitutional basis, as some have recently argued, for the individual mandate in the Patient Protection and Affordable Care Act of 2010 — the requirement, going into effect in 2014, that most individuals acquire satisfactory health insurance or pay a penalty. The article concludes that the Taxing Clause arguments are misguided. At best, the Clause can provide authority for the penalty, not for the mandate as a whole. Furthermore, the article questions whether the penalty will be a tax at all — if not, the Taxing Clause is obviously irrelevant — or, if it will be a tax, whether constitutional limitations on the taxing power will be satisfied. In particular, the article takes seriously whether the penalty might be a capitation tax, a form of direct tax that would have to meet an onerous apportionment rule to be valid. And the article argues that the penalty will not be a “tax on incomes” exempted from apportionment by the Sixteenth Amendment. The bottom line is this: relying on the Taxing Clause makes the analysis of the individual mandate more complicated than it needs to be, and the focus of constitutional analysis should return to where it has always belonged: the Commerce Clause.

Like my co-conspirators, I believe the Necessary & Proper Clause provides the strongest basis for the constitutionality of the individual mandate.  I“m inclined to agree with Ilya nad Randy, rather than Orin, but I believe it’s a close call.

The constitutional argument, as has been rehearsed in this space before,  is that that mandate is a “necessary and proper” means of facilitating some of the regulations of health insurance markets contained in the recent health care reform legislation that are themselves constitutional exercises of the commerce power.   But is the individual mandate, as enacted, really a  “necessary” part of health care reform?  I am not so sure.

An individual mandate is intended to mitigate the economic effects of other regulatory measures contained in the health care reform legislation, such as the prohibition on insurers excluding coverage for preexisting conditions, and prevent insurance premium increases due to adverse selection.  The fear is that healthy people will rationally decline to purchase coverage until they are sick, and that this will cause health insurance premiums to increase, which will cause more health people to opt out, and so on.  By requiring  all Americans to purchase health coverage, the mandate prevents adverse selection and keeps healthier (and cheaper to ensure) people in the insurance pools.  At least that is how it works in the theory.

A sufficiently stringent individual mandate could well eliminate the adverse selection problem, but that is not what Congress enacted.  Instead, Congress enacted a mandate that does not solve the adverse selection problem.  For many Americans, the penalty for failing to purchase health insurance will remain substantially below the cost of purchasing a federally approved health insurance policy.  This is one of the reasons no one expects health care reform to achieve universal coverage.  This is also why the individual mandate is expected to generate substantial revenue from the imposition of the penalty — which is convenient for those who wish to argue that the mandate is a proper exercise of the taxing power.  This is also a reason why the health care reform legislation will not be as effective at controlling health insurance costs as some hope.

What this means is that it is hard to argue that the individual mandate Congress adopted is really “necessary” to the success of health care reform.  If Congress believed eliminating adverse selection were absolutely essential to the success of reform, it could have adopted a tougher mandate.  It did not.  Instead it adopted a mandate which helps on the margin, but does not eliminate the economic consequences of other measures, such as the bar on excluding preexisting commissions, and adverse selection will continue.

Does this matter in the current litigation?   The Necessary & Proper Clause has rarely (if ever) been interpreted by federal courts to limit Congress only to those measures which are truly necessary to carry into execution other powers.  So even if the mandate is not “necessary,” it may still be “necessary and proper,” and thus constitutional.  But if the mandate is not truly necessary for health care reform to work — that is, if (as enacted) it cannot hope to fix the problem it was ostensibly adopted to fix —  I think that the argument for its consitutionality is, on the margin, somewhat weaker.

My law school friend Allison Leotta, a federal prosecutor who specializes in sex crimes, is blogging about each episode of Law & Order: SVU to explain what in each episode was realistic and what was not. Allison also has a new novel out with Simon & Schuster, The Law of Attraction, about, well, a Harvard Law School graduate who becomes a federal prosecutor specializing in sex crimes. 

Congratulations to Randy Barnett in particular for the new Florida decision refusing to dismiss the challenge to the individual mandate. The language the judge uses at various points in the opinion very closely resembles the language Randy has used in framing the challenge. That is a major accomplishment. 

Indeed, reading the opinion, I had to wonder if Judge Vinson and/or his law clerk(s) read the Volokh Conspiracy. For example, there is Footnote 18:

See, e.g., Randy Barnett, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional, N.Y.U. J.L. & Liberty (forthcoming), at 27 (stating that the argument for the penalty being justified under Congress’s broad taxing authority is based on a “radical” theory that, if accepted, would authorize Congress “to penalize or mandate any activity by anyone in the country, provided it limited the sanction to a fine enforced by the Internal Revenue Service,” which would “effectively grant Congress a general police power”). 

While citing Randy’s work wouldn’t necessarily be a sign of reading the blog, it’s notable that Randy posted about that article just a few weeks ago, on September 22nd, the date the draft was posted on SSRN. It’s of course possible that the judge learned about the article some other way, but I wouldn’t be surprised to learn that Judge Vinson or his law clerk read it here first.

As to the merits of Judge Vinson’s opinion, I found it a bit frustrating. In particular, it seems to me that Judge Vinson’s opinion never actually addresses the necessary and proper argument that both Ilya and I agree is the best argument in favor of the constitutionality of the mandate against the claim that it is beyond the scope of Article I power. At page 61, Judge Vinson insists that he is familiar with the cases, and he announces that based on his knowledge this is a hard question. Oddly, though, Judge Vinson doesn’t actually articulate the legal standard offered in those cases and explain why those cases don’t answer the question here. 

I find that pretty frustrating. If you’re going to write a 65-page opinion on a legal issue, why not actually discuss the legal standard and explain how it applies to the facts rather than just insist that if you had done so it would have been clear that this was a hard issue? Judicial opinions are supposed to show their work, not just express a degree of certainty as to whether they think issues are hard. Or so it seems to me, anyway.

There are several interesting aspects of today’s Florida federal district court ruling rejecting the government’s motion to dismiss a challenge to the Obama health care plan’s individual mandate brought by 20 states and the National Federation of Independent Business. First, as Randy Barnett emphasizes, this ruling, like the similar Virginia decision before it, further undercuts claims that the lawsuits against the mandate are either frivolous or clearly precluded by existing precedent. Even the recent Michigan district court ruling upholding the mandate conceded that it was a case of “first impression” (although the judge also tried to argue that the mandate ultimately does fit under current doctrine).

I. Judge Vinson Rules that the Mandate is Not a Tax.

Second, Judge Roger Vinson rejected outright the federal government’s claim that the mandate is a “tax” that is authorized by Congress’ authority under the Tax Clause. Instead, he concludes that it is a regulatory penalty, a point that I emphasized in my amicus brief in the Virginia case on behalf of the Washington Legal Foundation and a group of constitutional law professors:

Because it is called a penalty on its face (and because Congress knew how to say “tax” when it intended to....), it would be improper to inquire as to whether Congress really meant to impose a tax. I will not assume that Congress had an unstated design to act pursuant to its taxing authority, nor will I impute a revenue-generating purpose to the penalty when Congress specifically chose not to provide one. It is “beyond the competency” of this court to question and ascertain whether Congress really meant to do and say something other than what it did.

As the Supreme Court held by necessary implication, this court cannot “undertake, by collateral inquiry as to the measure of the [revenue-raising] effect of a [penalty], to ascribe to Congress an attempt, under the guise of [the Commerce Clause], to exercise another power.” See Sonzinsky, supra, 300 U.S. at 514. This conclusion is further justified in this case since President Obama, who signed the bill into law, has “absolutely” rejected the argument that the penalty is a tax.... To conclude, as I do, that Congress imposed a penalty and not a tax is not merely formalistic hair-splitting. There are clear, important, and well-established differences between the two. See Dep’t of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 779–80, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994) (“Whereas [penalties] are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue-raising, rather than punitive, purposes.”); Reorganized CF&I Fabricators of Utah, Inc., supra, 518 U.S. at 224 (“‘a tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,’” whereas, “if the concept of penalty means anything, it means punishment for an unlawful act or omission”).

Notice that at least in this instance, President Obama’s preenactment claims that the mandate is not a tax have come back to bite him. 

The federal government now will not be able to rely on the tax argument at the summary judgment stage of the litigation before Judge Vinson (though they will of course be able to raise it again on appeal). Judge Vinson concluded that he had to resolves the tax issue at this early stage of the litigation in order to address the federal government’s claim that, because this was a tax case, the court lacked jurisdiction under the Anti-Injunction Act. 

II. The Commerce Clause and Necessary and Proper Clause Arguments.

The federal government will, of course, be able to raise their Commerce Clause and Necessary and Proper Clause arguments. Here, too, however, Judge Vinson raised serious doubts about the government’s arguments, even though he emphasized that these issues cannot be fully considered at this stage of the process. In his view, the government’s claim that the mandate is clearly supported by existing precedent in this area is “not even a close call.” He emphasized the novel nature of the mandate:

I have read and am familiar with all the pertinent Commerce Clause cases, from Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), to Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). I am also familiar with the relevant Necessary and Proper Clause cases, from M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), to United States v. Comstock, — U.S. —, 130 S. Ct. 1949, 176 L. Ed. 2d 878 (2010). This case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before. The power that the individual mandate seeks to harness is simply without prior precedent.

Vinson’s analysis of the Commerce Clause precedents (pp. 62–64 of his opinion) is very similar to my discussion of them in our amicus brief (Part I), though I don’t claim any direct influence. As Vinson emphasizes, the prior cases “involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel [Katzenbach v. Heart of Atlanta Motel] or growing wheat [as in Wickard v. Filburn], you are engaging in interstate commerce and subject to federal authority.” In this case, by contrast, “[t]he individual mandate applies across the board. People have no choice and there is no way to avoid it..... It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.” There is a slight error in Vinson’s analysis here. Wickard did not hold that growing wheat for use on a commercial farm was itself “interstate commerce.” Rather, it could be regulated because it was intrastate state economic activity that, in the aggregate, has a “substantial effect” on interstate commerce.

Finally, Judge Vinson ruled that all the plaintiffs had standing (continuing a trend from the previous two cases), dismissed three weak federalism-related claims put forward by the state plaintiffs, and refused to dismiss their claim that the funding provisions of the act violated constitutional restrictions on “coercion” of states through conditional federal spending grants. Vinson concluded that this latter argument was just barely strong enough to get to the summary judgment stage. For reasons I may blog about later, I believe that the states’ coercion argument is correct under the text of the Constitution, but highly unlikely to prevail under current Spending Clause doctrine.

Obviously, this is only a ruling on a motion to dismiss. Judge Vinson could end up accepting the government’s Commerce Clause or Necessary and Proper Clause arguments when he decides later whether to grant summary judgment (though I think that improbable based on what he wrote in today’s opinion). Whatever he decides, the case will be appealed to the Eleventh Circuit Court of Appeals. It is quite likely that the issue will eventually be decided by the Supreme Court. It is still my view that the Court is more likely to uphold the mandate than strike it down, though the latter is far from impossible. That said, today’s ruling is certainly a victory for the anti-mandate plaintiffs. 

UPDATE: Orin Kerr asks why Judge Vinson didn’t seriously address the federal government’s Necessary and Proper Clause argument, other than to say that the relevant precedents don’t cover the issues raised by this case. It’s a reasonable question. I agree that he should have focused on it more. On the other hand, it’s important to remember that this was merely a motion for dismissal and he only needed to consider the argument to the extent of showing that the issue can’t be clearly and easily resolved in the federal government’s favor. Moreover, the federal government’s own brief in favor of dismissal gives short shrift to the Necessary and Proper argument (less than 1 page buried near the end of a 50 page brief). The Justice Department instead emphasizes the Commerce Clause and Tax Clause arguments, both of which Vinson considers at length. I suspect Vinson also believed that much of what he said in reference to the Commerce Clause issue also applies to the Necessary and Proper Clause. The opinion (pp. 62–64) seems to consider the two issues in tandem, though this point is not as clear as it should be. In sum, it seems to me that neither Judge Vinson nor the Obama Justice Department shares my and Orin’s view that this is the federal government’s best argument.

My comment on today’s decision, granting the motion to dismiss on some counts, and while allowing other counts to proceed. Like Randy’s comment, my comment is posted on the blog of the site Health Care Lawsuits, which is hosted by the Independent Women’s Forum.

The court entirely rejected the administration’s claim that the penalty for disobeying the mandate is justified under the federal tax power. As the court noted, Congress went out of its way to specify that the penalty is not a tax. Second, the court ruled that it is proper for the plaintiffs to be heard in their challenge to the mandate, which goes into effect in 2014. The court cited extensive precedent showing that when a future harm is certain, courts can act in the present to protect citizens from that harm. The court rejected the argument that the various employer mandates violate the constitutional sovereignty of states; as the court noted, the law simply treats states like other large employers, and so making states provide the same health benefits as other large employers must provide is no different from making states pay the same minimum wage as all other employers.

While federal spending programs may set conditions on grants to states, Supreme Court precedent states that the grants must not be coercive. Here, the court agreed that the states had raised a plausible legal argument which should be allowed to go forward:  the health control presents states with the unacceptable choice of massively increasing their own Medicaid spending on millions of more people, or of losing all funding for the traditional Medicaid program. Finally, the court agreed that the challenge to the individual mandate could go forward, because the mandate was “unprecedented.” Never before has Congress attempted to use its power of regulating interstate commerce to force people to buy a particular product. Because there is no judicial precedent in support of such a mandate, the plaintiffs had raised a plausible constitutional challenge which should be allowed to go forward.

The court’s ruling is not a final decision on the constitutional merits, but it is a solid, meticulously researched, and carefully-reasoned decision declaring that the opponents of the health control law have raised legitimate constitutional objections.

Because I leave for my lecture in less than an hour, I cannot do full blog post on the decision. But here is a statement that will appear on healthcarelawsuits.org.

In its “talking points” today, the White House claims that the 21 state attorney’s general challenging the constitutionality of the health care reform act are “opportunistic politicians . . . wasting taxpayer dollars on a frivolous lawsuit that is bound to fail.” Today’s ruling by a federal district court judge officially repudiated this claim. 

In denying the government’s motion to dismiss the challenge to the individual health insurance mandate, Judge Vinson ruled that “the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.” This is because of the unprecedented nature of the government’s claim of power. As Judge Vinson explained, all previous commerce clause cases involved the regulation of “voluntary undertaking[s]” or activity. But “in this case we are dealing with something very different. The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake.” 

This decision now join’s District Judge Henry Hudson’s ruling in Virgina refusing to dismiss the challenge to the individual mandate. In both Virginia and Florida we now move to a decision on the merits. Given how well both judges understood the constitutional novelty of imposing economic mandates on the people, there is reason to be cautiously optimistic that they will find the individual insurance mandate to be unconstitutional. But, however the district courts rule on this case, their reception of the arguments made by the state attorneys general foretell that the ultimate decision will be made by the U.S. Supreme Court.

Of course, Judge Vinson also, quite correctly wrote this: “Of course, to say that something is ‘novel’ and ‘unprecedented’ does not necessarily mean that it is ‘unconstitutional’ and ‘improper.’ There may be a first time for anything.” So stay tuned. Next up: oral argument on the motion for summary judgment in the Virginia AG lawsuit, followed by briefing the motion for summary judgment in Florida.

Judge Roger Vinson of the Northern District of Florida has issued a decision refusing to dismiss the constitutional challenge to the Obama Administration’s health care legislation. You can read the decision here, and more information here. On the Commerce Clause issue, the court said:

The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive. As the nonpartisan CBO concluded sixteen years ago (when the individual mandate was considered, but not pursued during the 1994 national healthcare reform efforts): “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.” Of course, to say that something is “novel” and “unprecedented” does not necessarily mean that it is “unconstitutional” and “improper.” There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.

 I represent an individual in a separate lawsuit challenging the Individual Mandate.

Today or tomorrow, we are expecting a ruling on the government’s motion to dismiss the lawsuit against the Patents Protection and Affordable Care Act in Florida district court. Someone sent me what purports to be the “talking points” memo being circulated by Jeff Cruz of the White House “Office of Public Engagement.” I figured that I would do my part by providing these talking points directly to the public without any filter. Given its substance, there is no reason to question its authenticity, and it will enable you to anticipate the government’s reaction to the decision. There is nothing at all surprising, scurrilous, or embarrassing here (except maybe calling these “talking points”), and the memo does provide an overview of some of the other cases now pending,

Of course, there is the continued refrain that all legal challenges to the Act are “frivolous,” a claim even law professors who have been following these suits no longer make. (For my take on why the lawsuits are not frivolous see here.)

In his summaries of the lawsuits, Mr. Cruz fails to mention that the Virginia lawsuit survived the government’s motion to dismiss (as did some counts in the Michigan lawsuit)–which constituted a legal ruling that the challenge was not frivolous–and that the Michigan lawsuit found there was standing to challenge the law.

Also, Mr. Cruz writes “The new law doesn’t work without this requirement,” which is the government’s position as to why it is “necessary” under the Necessary and Proper Clause. But if that claim is accepted, and the mandate is found to be “unnecessary” under existing doctrine, or is otherwise improper, then given the absence of a severability clause, the regulations imposed on the insurance clause should also fall. 

[NOTE: I have deleted the phone number and a portion of the return email address of Mr. Cruz]

CONFIDENTIAL.

From: Cruz, Jeffrey N. [mailto:____@__.eop.gov]
Sent: Thursday, October 14, 2010 12:40 PM
Subject:

Friends,
Today we are expecting a decision in Florida on whether a legal challenge to the Affordable Care Act can move forward. As of today, three legal challenges against the Affordable Care Act have been decided by federal district courts, and all three cases have been dismissed. Attached and below you will find background information and talking points on these legal challenges.
Jeff

TALKING POINTS

· Thanks to the health care law, Americans no longer have to worry about being denied coverage because of a pre-existing condition, being dropped from insurance or going bankrupt if they get sick. If the plaintiffs get their way, it will all be undone.
· Judges in Maryland, California, and recently Michigan have dismissed cases challenging the constitutionality of the Affordable Care Act.
· The people pushing these cases are politically motivated and outside of the legal mainstream.
· Five of the politician-plaintiffs in these lawsuits are or were running for higher office at some point during the 2010 election cycle.

Nevada Example:
· Nevada Attorney General Catherine Cortez Masto called the legal challenge “futile,” and did not join the lawsuit.
· In an unprecedented move, Nevada Governor Jim Gibbons protested the Nevada AG’s refusal to join a lawsuit by issuing an executive order naming an “all-volunteer” legal team to challenge the law.
· At the time Governor Gibbons was locked in a reelection primary race, which he lost. 

[Las Vegas Review Journal, 8/6/10]
· These irresponsible and partisan suits will cause real harm to real people. The Affordable Care Act has already helped millions of Americans, their families, and their businesses.

This law has:
- ensured that kids with cancer have access to coverage;
- given tax-credits to small-businesses that provide insurance to their workers;
- allowed recent college graduates looking for jobs to stay on their parents plans;
- sent checks to seniors to help pay for their prescriptions.

Individual Mandate:
· This is about individual responsibility, putting an end to free-riders and making sure everyone pays their fair share.
· American families shouldn’t have to shoulder the additional cost of the uninsured. Right now, the average American family with insurance pays over $1,000 a year in higher premiums to cover the cost of care for the uninsured.
· The law will ease the cost burden on those who have insurance and make it more affordable for those who don’t by providing financial help to families earning up to eighty-eight thousand dollars a year.

Overturning the Individual Mandate:
· The new law doesn’t work without this requirement. People need to take responsibility for their health coverage so that we can rein in costs and provide access to insurance for everyone including those with pre-existing conditions.
· The minimum coverage requirement prevents people from abusing the system, and procrastinators from jacking-up premiums. Allowing people to delay getting insurance until they are sick in new non-group exchanges will increase premiums by 27 percent in 2019.

Court Cases
At a time when states are making tough choices about budget cuts, opportunistic politicians are wasting taxpayer dollars on a frivolous lawsuit that is bound to fail.
· The Attorneys General, Governors, and state representatives named in these lawsuits are attempting to overturn more than two hundred years of well-established legal precedent.
· The Coverage Provision is absolutely constitutional. Last week a Michigan Federal Court judge rejected a challenge to the coverage requirement, ruling that the law was within Congress’ constitutional right to regulate interstate commerce.

BACKGROUND: LEGAL CHALLENGES

As of October 13, three cases have been decided by federal district courts, and all three cases have been dismissed. The plaintiffs include: four Republican governors, 15 Republican state attorneys general, 17 right-wing advocacy groups.

Maryland District Court — July 28:
The Outcome: The Court dismissed the challenge
The Challenger: Several physicians opposed to “socialized medicine.”
· This case, Anderson v. Obama, was swiftly appealed to the Fourth Circuit Court of Appeals
· September 8, the Fourth Circuit Court of Appeals rejected the appeal and affirmed the District Court’s dismissal.

California District Court – August 27:
The Outcome: The Court dismissed the challenge
The Challenger: The Pacific Justice Institute
· The Court held that the Institute “already provides health insurance to its employees,” who therefore may well be in compliance with the personal responsibility provision when it takes effect in 2014. Therefore, they cannot point to a “threatened or actual injury” and have no “standing” to bring the suit.
· This decision, Baldwin v. Sibelius, has been appealed to the Ninth Circuit Court of Appeals.

Michigan District Court – October 7:
The Outcome: The Court dismissed the challenge
The Challenger: The Thomas More Law Center
· The Court upheld the individual mandate or personal responsibility provision. The Judge agreed that, in order to guarantee insurance protection for all, even those with pre-existing conditions, a personal responsibility provision is needed to prevent additional “cost-shifting” and “even higher premiums,” and to avoid “driving the insurance market into extinction.”
· Thomas More Law Center v. Sibelius, will be appealed to the Sixth Circuit Court of Appeals.

Virginia District Court — Pending:
The Outcome: In Progress – October 18 oral arguments
The Challenger: Virginia Attorney General Kenneth Cuccinelli
· October 18, the Court will hear oral arguments as to the claim that personal responsibility provision is unconstitutional, and therefore the entire health reform law should be struck down.
· The Justice Department will argue that Cuccinelli’s claim has no legal basis and should be dismissed, in line with the Michigan Court’s October 7 decision.

Florida District Court — Pending:
The Outcome: In Progress — October 14 decision to on DOJ motion to dismiss
The Challengers: 21 Republican state attorneys general and governors (Full list below)
· September 14, oral argument was heard on Justice Department’s motion to dismiss the case, Florida et al. v. DHHS et al. The Florida District Judge has promised a decision on the motion October 14.
· If the judge permits some or all of the attorney generals’ claims to proceed, there will be further proceedings and a final decision later this year or early next year.
· This case is notable because the attorneys general challenge, not only the individual mandate or personal responsibility provision, but also the expansion of Medicaid coverage to all adults up to 133% of the federal poverty line, and its establishment of “exchanges” for persons not covered by employer-sponsored group health plans. 

Jeff Cruz
Associate Director
White House | Office of Public Engagement
202-___-____
___@___.eop.gov

The new Princeton Review rankings state that George Mason has the “most conservative students” “based on student assessment of the political bent of the student body at large”.

My impression over the years has been that the student body at GMU is more or less evenly split between liberals and conservatives, which I’m pretty sure would make the student body much less conservative than at schools like Regent or BYU. 

So I decided to do an informal, optional, and anonymous survey of the students in my Con Law I section, who represent about half of our 2L day class. Here are the results:

Q Which of these is closest to your political views?

1. Green 0
2. Very Liberal 5
3. Liberal 10
4. Moderately Liberal 9
5. Moderate 7
6. Moderately Conservative 11
7. Conservative 3
8. Very Conservative 4
9. Libertarian 6
10. Other 0 

Note that there are more “very liberal” students than “very conservative” students, and way more “liberal” than “conservative students. And even if you put “libertarian” students into the conservative camp (unfairly, in my opinion), you still wind up with a 24–24 left-right tie.

Some students suggested to me that there might be some self-selection of liberal students into my section, and that their class year might be more liberal than average. Even if one or both of these things are true (and I have no way of measuring them), it’s unlikely that they have such a large effect on the results that they undermine the general point, that GMU students aren’t nearly as conservative as what Princeton Review would suggest, and indeed are reasonably well-balanced ideologically.

So why, if P.R. is accurate, do students perceive their colleagues as being so conservative? I can think of at least two plausible explanations. First, unlike the runner-up schools (Regent, BYU, Ave Maria, Samford), GMU is neither a religious school, nor is it located in a conservative part of the country. Rather, the school is in Arlington, a liberal county, and next to D.C., an even more liberal jurisdiction. Our students often come from liberal universities in the Northeast and Mid-Atlantic. So compared to what one might expect from a secular law school in a liberal part of the world, the student body seems quite conservative. And indeed, there is no other school on P.R.‘s top 10 list that is not either religious, located in a conservative region, or both.

Second, some (small) fraction of GMU students come here precisely because they prefer a non-overwhelmingly-left-wing political environment, which is what they would get at every one of the schools we primarily compete with for students. These students are disproportionately likely to speak up in class, and thus make the student body seem more conservative than it really is. 

Intrusive business regulations have a disproportionately negative impact on the poor and members of minority groups, who lack the political influence that whereby wealthy corporations and politically well-connected people are able to obtain special government favors. Nobody has done better scholarship on this point than Volokh Conspiracy blogger David Bernstein. The historical examples of the abuse of licensing laws and other regulations to oppress racial minorities are legion, and depressing. But they aren’t surprising. The lesson of public choice theory is that when government can redistribute wealth or opportunities, that power will fall into the hands of politically well-connected groups, who use it to their own advantage at the expense of less favored groups.

The treatment of the Chinese in California is a distressing example. At the California Constitutional Convention of 1878 — organized by the anti-Chinese Workingmen’s Party — many delegates spoke of their readiness to exploit government’s regulatory powers to keep out the Chinese workers who competed with white labor. As one delegate said, the Chinese laborer was

Continue reading ‘Racial Impacts and Business Regulations’ »

The Yes on 19 website has posted a petition by law professors in support of California proposition 19, which would decriminalize marijuana in that state. Among the signers are six of the Volokh Conspirators — Jonathan Adler, Randy Barnett, David Bernstein, David Post, Sasha Volokh, and myself. There are also many prominent non-VC signers, including Erwin Chemerinsky, Alan Dershowitz, Paul Butler, and David Friedman (well-known law and economics scholar and son of Milton):

As law professors at many law schools who focus on various areas of legal scholarship, we write this open letter to encourage a wholesale rethinking of marijuana policy in this country, and to endorse the Tax and Control Cannabis 2010 initiative—Proposition 19—that will be voted on in November in California.

For decades, our country has pursued a wasteful and ineffective policy of marijuana prohibition. As with alcohol prohibition, this approach has failed to control marijuana, and left its trade in the hands of an unregulated and increasingly violent black market. At the same time, marijuana prohibition has clogged California’s courts alone with tens of thousands of non-violent marijuana offenders each year. Yet marijuana remains as available as ever, with teens reporting that it is easier for them to buy than alcohol across the country.

Proposition 19 would remove criminal penalties for private use and cultivation of small amounts of marijuana by adults and allow California localities to adopt—if they choose—measures to regulate commerce in marijuana. Passage of Proposition 19 would be an important next step toward adopting an approach more grounded in reason, for California and beyond.

Our communities would be better served if the criminal justice resources we currently spend to investigate, arrest, and prosecute people for marijuana offenses each year were redirected toward addressing unsolved violent crimes. In short, the present policy is causing more harm than good, and is eroding respect for the law.....

This country has an example of a path from prohibition. Alcohol is subject to a regulatory framework that is far safer in every respect than the days of Al Capone. Just like the State of New York did when it rolled back Prohibition 10 years before the nation as a whole, California should show leadership and restore respect for the law by enacting the Tax and Control Cannabis 2010 initiative this November.

Unfortunately, lifting the state ban on marijuana possession will not fully legalize marijuana in California. The federal ban that the Supreme Court upheld in Gonzales v. Raich will remain. So far, the Obama Administration has not kept the president’s campaign promise to stop federal raids on purveyors of medical marijuana in states where it is legal, and the administration almost certainly would not cooperate with the much broader legalization envisioned by Proposition 19.

On the other hand, federal enforcement resources are limited. So Proposition 19 will greatly reduce the incidence of marijuana prosecutions in California, even if the drug remains theoretically illegal there. Perhaps more importantly, passage of Prop 19 would be a major political setback for drug prohibition. A victorious Prop 19 would likely be imitated in other states with referendum initiative processes. That in turn would put the federal War on Drugs under increasing stress. If several large states withdraw state resources from marijuana enforcement, the feds would either have to massively increase their own enforcement efforts or consider giving up the fight. At a time of increasing budgetary problems, the latter option might be more likely.