Category Archive 'Commerce Clause'

19 Jun 2012

The Left is Still in Constitutional Denial

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Kevin Drum, in Mother Jones, contends that we diabolical conservatives first strong-armed the Republican Party into accepting our view of the unconstitutionality of the Obamacare individual mandate, then we successfully used the right-wing media to brainwash the mainstream media into accepting our arguments as legitimate, and all this, you see, gives cover to our partisan judges to make a partisan ruling.

Two years ago, when President Obama signed the Affordable Care Act into law, the idea that its individual mandate provision was unconstitutional was laughable. There was no case law, no precedent, and frankly, no serious argument that the federal government’s Commerce Clause power didn’t give it the authority to mandate purchase of health insurance if it wanted to. That’s why Democrats didn’t bother looking for a clever alternative—many of which were available—in order to avoid including an explicit mandate in the law. They didn’t think they needed to. Of course it was constitutional. Even Randy Barnett, the law professor who popularized the activity/inactivity distinction that opponents latched onto as their best bet against the mandate, initially didn’t really think it was anything but a long shot.

So how did that conventional wisdom change so dramatically in only two years? …

let’s hear what a nonliberal has to say about it:

    Orin Kerr says that, in the two years since he gave the individual mandate only a one-percent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. “That legitimized the argument in a way we haven’t really seen before,” Kerr said. “We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage.” Finally, he says, “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.”

This is, needless to say, a powerfully depressing analysis. For all practical purposes, Kerr is agreeing that conservative judges don’t even bother pretending to be neutral anymore. They listen to Fox News, and if something becomes a consvative talking point then they’re on board. And that goes all the way up to the Supreme Court.

Kevin Drum’s perspective amounts to assuming that extreme New Deal jurisprudence, like the 1942 Wickard v. Filburn (a decision which ruled that the Constitution’s grant of power to regulate Interstate Commerce gave Congress the power to tell an Ohio farmer named Roscoe Filburn that he was not allowed to grow wheat on his farm to feed his own chickens. Farmer Filburn using his own wheat, and not buying wheat on the market, was deemed to impact Interstate Commerce and therefore to provide a legal basis for Congressional authority.) was good law and destined to endure forever unchallenged by the reasoning of later courts.

Kevin Drum studiously ignores the fact that the Constitution-in-exile of the New Deal era has been gradually coming back. The Supreme Court resumed, in a modest way, re-adopting the perspective that Constitutional authority to regulate Interstate Commerce actually required the legislative object to involve commerce crossing state lines. In U.S. v. Lopez (1995), the Court struck down a Gun-Free School Zone law because the regulated activity concerned actually had nothing to do with Interstate Commerce.

A number of other once-thought-to-be-extinct Constitutional provisions, like the Second Amendment, have come roaring back to life in recent years.

To believe, as people like Kevin Drum and Nancy Pelosi notoriously did, that it was completely unnecessary to look for an actual constitutionally enumerated power to permit Congress to tell Americans to buy health insurance policies is to reject the fundamental American idea of limited government.

What has actually occurred, over decades, is a national debate over whether a long string of unprincipled, legal realist rulings simply setting the Constitution and the entire earlier history of constitutional law aside were correct. In law review articles, public debate, and in national elections leading to judicial appointments and ultimately to rulings, the left has been losing and the conservative position has been winning.

In the end, there should be no surprise to anyone who takes the Constitution seriously when the Obamacare individual mandate is struck down. That was the intent of the framers, and those of us who contend that that is what the Constitution says inevitably have the better arguments.

10 Apr 2012

Why SCOTUS Will Strike Down Obamacare

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Ben Smith quotes an unnamed conservative lawyer who offers a simultaneously cynical and whimsical explanation of exactly why Obamacare is toast.

You have built an imaginary mansion, with thousands of rooms, on the foundation of Wickard v. Filburn — the 1942 ruling that broadened the understanding of how the Commerce Clause could be used to regulate economic activity.

We aren’t being asked to radically revise the Commerce Clause and throw out seven decades of law, and we won’t. But we know the founders never intended the Commerce Clause to allow the Federal Government to regulate everything on the planet. So we are going to accept Randy Barnett’s basically spurious exception to that basically spurious idea, and throw out the Affordable Care Act on the grounds that the Commerce Clause regulates “activity” (which we don’t really believe), but not “inactivity” (because, why not draw the line somewhere?).

This is to say: You have built a fantasy mansion on the Commerce Clause. You can hardly blame us if, in one wing of this mansion, down a dusty corridor, we build a fantasy room called “inactivity,” lock the door, and don’t let you in.

11 Jul 2011

Barack Obama Says Now is the Time to “Eat Our Peas”

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From PackerBronco (one of Ann Althouse’s commenters):

These days, when the President says that we have to “eat our peas,” I no longer know whether he’s offering a metaphor or invoking the Commerce Clause.

“Eat our peas” occurs around 1:05

08 Oct 2010

Michigan Judge Upholds Health Insurance Mandate

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Michigan federal district Judge George Caram Steeh III upheld the Obamacare individual health insurance purchase mandate in a case challenging the law brought by the conservative Christian Thomas More Law Center.

The Politico story

Steeh’s decision referred to a number of intellectually questionable precedents expanding the Commerce Clause outrageously through the use of casuistical reasoning.

As Judge Steeh not inaccurately observes, a body of precedent law exists sustaining congressional edicts based on the constitutional power to regulate interstate commerce effectively reaching all sorts of persons and activities not in fact engaged in Interstate Commerce.

Post New Deal jurisprudential understanding of the Commerce Clause limitation amounted to the Constitution forbidding congressional interference only in cases of individual persons or activities that could not be in any way, shape or form theoretically causally connected (even negatively) to the national economy or to rational goals of liberal policy by clever and well-educated attorneys.

Such a standard is, of course, completely nugatory and impotent to stop anything at all, and Judge Steeh abashedly alludes to the relatively recent, and distinctly innovative for their era, cases of Morrison and Lopez to establish the contrary. I smiled ironically upon reading that.

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check. How participants in the health care services market pay for such services has a documented impact on interstate commerce. Obviously, this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.

The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ homegrown marijuana was “entirely separated from the market”); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce” and “may forestall resort to the market”); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal). Similarly, plaintiffs in this case are participants in the health care services market. They are not outside the market. While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.

Judge Steeh’s decision is a competent and professionally produced example of carefully reasoned liberal statism, and very much represents the Keep-the-Constitution-in-Exile reasoning that will be used to defend Obamacare when the various state lawsuits eventually reach the Supreme Court.

The New Federalism and Rational Basis casuistry will meet again in the nation’s highest court before terribly long.

Ilya Somin, at Volokh, pessimistically believes the mandate is more likely to be upheld than not.

I think we have the better reasoning and a narrow conservative majority on the Court, backed by a national negative consensus on Obamacare. I’m not so sure we are going to lose.


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