Joe Biden is worth his weight in gold for his gaffes and ill-timed quips. When he whispered to the President in range of a live microphone before the signing of the health care bill: “This is a big f—ing deal!”, you could see the President purse his lips. At least one of them realized there was a live mic right there, though it would have been classic if he’d said, “That’s f—in’ A right.”
The health bill is a big deal. No doubt about it. Sure, I think it’s misguided and unfunded. But it sets up a huge new government program that, it’s easy to say fairly, is one giant leap towards a single-payer health care system in the United States. That’s a big deal.1
Anyway, to this law student trying to write a blog, the bigger f—ing deal is the pending constitutional challenge to the law. Most of the media coverage is worthless, but I AM really f—ing grateful for some pretty f—ing serious dialogue about what a constitutional challenge looks like and what the f—ing issues are. This one in particular is well worth the lengthy read.
I’ll poorly paraphrase the main arguments, which really focus on a discreet issue: does the Constitution anywhere authorize an individual mandate to purchase health insurance through either the commerce, taxation, or spending powers?
Challengers argue that Congress lacks the authority under the Constitution to tax people for not engaging in a commercial transaction (purchasing insurance). In other words, you can’t regulate person’s “inactivity.” The Commerce Clause does not warrant such intrusion because of not buying something is not commerce and a person’s decision to not buy health insurance is not vital to the overarching regulation. The taxing power does not support such an action because it’s an excise tax on existing, rather than a tax on income or consumption. This makes the tax (although revenue raising) a purely regulatory or punitive measure, which courts may view as unconstitutional. And the spending power does not support it because the tax itself isn’t really spending.
The supporter of the bill (and opponent of the constitutional challenge), says, in essence, “I call bullocks on all that.” At its heart the mandate is simply an exercise of Congress’ authority to tax and spend for the general welfare. This authority is broad and, basically, unlimited. The tax in question here raises revenue and is part of a broader regulatory scheme, much like most, if not all, tax provisions. Plus, the health care bill is well within Congress’ power to set economic policy, which the courts have avoided invalidating since Lochner. Congress has broad, discretionary authority to enact economic regulations that is based on decades of both Supreme Court jurisprudence and lawmaking that covers areas as diverse as education, gun policy, crime, estate taxes, and environmental protections. Where there are overarching areas of public concern that transcend state boundaries, the federal government is the only body qualified or authorized to regulate. Plus to suggest that not participating in a national health plan is not an economic decision is as irrelevant as it is dumb.
Perhaps it shouldn’t be though. Some believe this challenge may place us on constitutional ground unexplored since Lochner.
If defenders of the bill in this constitutional dialogue are correct, the Constitution really places no structural constraints on Congress to enact any regulation or mandate. The only constraints which exist are those which protect fundamental rights and those are protected only if Congressional action fails to withstand the strict scrutiny of the courts. A citizen’s only recourse is through redressing the government with her concerns or the electoral process.
Opponents of the bill argue that the Constitution is meaningless without the structural constraints placed on the federal government. Logically, you might add to this argument that federalism is dead as any sort of mechanism for defining spheres of power within our system.
The Constitution is as much a structural document as one that defines “fundamental rights.” The concepts are inextricably interrelated. To the extent structural constraints are eroded, our fundamental rights are imperiled as the federal legislature enacts economic legislation that courts refuse to second-guess. Yet, absent any meaningful constraints on legislative power, the courts are the sole arbiter of rights. I like judges and courts and lawyers, but not to tell me what to do. Asked in the form of a question: Can you have a “scheme of ordered liberty” without any real constraints, or order, imposed on government authorities other than periodic elections?
The concentration of power and authority in Washington (and, incidentally, in large corporations) is a direct threat to individual liberty. While such authority is often exercised for the good of people, it is far more difficult to hold accountable those who wield it when there are no discernible bounds to it.
I suspect the challenge will come to naught, colliding as it does with a host of precedents that grant Congress nearly unlimited authority to regulate even non-commercial, local activity through the Commerce Clause, ala Wickard. Since overturning Lochner, courts grant substantial deference to Congress when it comes to economic regulation.
But perhaps they shouldn’t.
Let’s return to Lochner. A court could defend a position that while there are no structural, constitutional constraints to enacting the health reform bill, the court does reserve the right to ensure that such regulations do not imperil individual liberties. Even if Congress has authority under the Constitution to enact an individual mandate to purchase health insurance with a fine for non-compliance, if such law places too heavy a burden on the individual right to contract or the right “to be let alone” by the government (to use the “right to privacy” reasoning), then courts can overturn that regulation. That would be the ONLY way to check congressional power, whichever party wielded it.
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1 On a related note rant, we have a bunch of chicken-s*** leaders who refuse to level with us about our real choices are about taxes and spending. The CBO estimates for this bill are a joke; the CBO itself estimates their accuracy at “50/50.” Makes you wonder why the President can sound so certain about the bill’s budget impact. Perhaps that’s because, as a people (to the extent one can define that term), we refuse to believe trade offs will one day be necessary. Hands off my Medicare and unemployment, you socialist bastard! So long as we get ours and those taxes come after we’re dead, right? I guess the election will tell what the “people” think about this.
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17 Responses to This IS a big F-ING deal – the constitutional challenge, that is
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I think you should check out Jack Balkin’s writing on Balkinization as he provides a pretty good defense of the mandate. I think Balkin’s best point is that not buying health insurance is economic activity because uninsured people substitute their lack of insurance with alternative medicine, OTC drugs, and the emergency room when things get bad. Balkin claims:
My own personal two cents is that I wouldn’t anticipate the SC to overturn the mandate. The commerce clause for better or worse has been consistently upheld to provide the government expansive authority to do just about anything. Is such a reading of the commerce clause consistent with an originalist interpretation of the constitution? Probably not. However, the expansiveness of the commerce clause is the direct result of the Court’s attempts to meaningfully enforce anti-discrimination (against blacks originally.) Weakening the commerce clause could (depending on the wording of the decision) weaken those anti-discrimination decisions as well.
If the general gist of my analysis is right, the next question is “should the authority to regulate discrimination (such as not allowing blacks in your restaurant) be tied to Congress’s authority to regulate interstate commerce? Probably not. You would hope that this country would be able to realize that economic and social policy should not be as linked as our they currently are. However, when the Supreme Court decided to nullify the privileges and immunities clause, the SC had no choice (unless it wanted to overturn Slaughterhouse).
So partly as a result of path dependency, the SC linked big government and universal civil rights together. Because our country has a strong desire (to varying degrees depending on what civil rights you are talking about) to protect civil rights, the consequences, (as a result of using the commerce clause as the authority to prevent discrimination) of that desire has been big government.
Balkin’s writing is the best, IMHO, (or least most regular) of those defending the constitutionality of the bill online. He is the defender of the bill in the PENNumbra link above (and here).
He’s right in that having more young, healthy people in the pool, assuming they are a large bloc of people who wouldn’t otherwise buy insurance, would increase the size of the risk pool and lower costs. Setting aside the notion that the government can mandate that you sacrifice your own economic interest in order to improve the risk pool for everyone else (and worsen it for yourself) for a second, I’ll point to Rivkin and Casey’s position from the PENNumbra debate:
To add insult to the injury of forcibly taking your economic choice away, insurance companies that participate in the exchange CANNOT assess your health status at all (whether you’re in top health or have a pre-existing condition – cuts both ways) in setting premiums. You can’t purchase a high-deductible policy that includes lesser benefits. You also can’t purchase a policy that has a lifetime or yearly limit. Etc, etc, etc. Any of the typical “market” behavior a consumer would otherwise seek to engage in
I believe that’s wrong on a number of levels, but you’re probably right on the law. I think your Commerce Clause analysis is generally correct. (You’re miles ahead of other aspiring 1Ls at this point, that’s for sure.) The question is really does mandate’s authority:
(a) rest in the commerce clause,
(b) is the activity intra- or inter-state,
(c) if intra, does it regulate economic or non-economic activity,
(d) if non-economic, does such activity have a substantial impact on interstate commerce, and (e) even if it does, is the behavior regulated traditionally state-regulated and is there a cognizable limit on the regulatory power?
There’s at least a chance the challengers of this law can make the case that this law (and the mandate in particular) steps over this boundary. But I believe it’s a minority view generally and it remains to be seen if it’s a minority of the Supreme Court.
I’m arguing that a fallback might be to redefine how the courts review these cases. If an individual mandate to purchase insurance cannot be questioned on other constitutional grounds, an expansion (return? regression?) of the fundamental rights analysis (ala Lochner) may be the only way to challenge such laws in the future.
Rivkin and Lee are simply wrong (or perhaps I am misunderstanding their argument) that uninsured people, “do not impose any extra costs on the pool.” Balkin gets at the root of the issue with emergency rooms. Emergency rooms have to take anyone who is poor. Depending on how many people enter a hospital without insurance directly affects the hospitals viability. In fact, the only reason why we haven’t seen hospitals collapsing left and right is because hospitals are turning away the uninsured to affiliated the HMOs which are starting to break. If you can show that the uninsured hurt hospitals, and consequently other’s ability to seek treatment because a hospital closes down or the price of treatment goes up, I don’t see how you can argue that not purchasing health insurance doesn’t affect interstate commerce.
As for Lochner, I think a defense of Congress’s authority to enact the mandate to improve the general welfare of the nation. To be clear, I’m not a fan of this argument. Almost anything can be construed as benefiting the general welfare, and we certainly wouldn’t want judges to determine whether the effects of a certain policy do in fact improve the general welfare. In fact, out of all three branches Congress is the best equipped to determine whether a policy benefits the general welfare. They are the most democratic of the three branches and they hold various committees and debate the merits of the bill. As such, constitutionally speaking, the mandate benefits the general welfare because Congress deemed it so by passing the bill. Although such an interpretation should be limited to prevent bills that shock the conscience (such as authorizing torture, genocide, etc.) from passing, I don’t believe anyone can claim the health mandate is so outrageous that one can at a cursory glance call it repulsive.
If Congress does have the authority to issue the mandate because it improves the general welfare then i think it follows that Congress is best suited to determine the tradeoffs between privacy and a sustainable national policy. Or to phrase it as a question, what exactly is a too heavy burden on the right to be left alone in the context of mandate that simply isn’t a subterfuge for “I disagree with the implementation or aims of this policy?” Or do people have an absolute right to privacy?
I find it ironic that you use the right to privacy, a right de-linked from the commerce clause (for the most part), and yet it is one of the most controversial rights, in terms of whether it should exist, in America. It’s legal authority is a bit too wishy-washy for many to handle; the analysis often appears to be based on many subjective factors. On the other hand, it’s pretty easy to determine if something affects interstate commerce (aka, everything but babysitting–assuming you don’t cross state lines in driving to watch the kids).
A lot of this is really a policy debate…
So, are hospitals turning uninsured patients away or treating them? You can’t have it both ways. If they’re turning them away, they’re not losing money on treating them, right? The cost for hospitals comes in providing unreimbursed care to patients. The answer in this case could (should?) be an expansion of government reimbursement for care provided to the uninsured (or under-insured) but it doesn’t necessarily follow that an individual mandate to have everyone purchase insurance, including those who can pay or choose to pay through other means or would prefer to purchase a less expensive plan. One possible remedy could be a government-backed catastrophic care plan for all that preserves free choice in other areas of health care. Another could be tiered exchange and risk pool system that allows greater choice. Another could be a single payer plan like the government health benefits program (and similar to Germany’s setup). Whatever the case, if you don’t deal with the root causes of our health problems (chronic, preventable disease) then market-based, single-payer, cash-only or any other payment system won’t do a lick of good. But, this is really just the policy debate. All I’m saying is that I’m not sure what we got was the best outcome or that it will really “bend the cost curve” in the right direction.
Incidentally, you’re correct to the extent that choosing not to participate in a risk pool can affect the risk calculation for those in the pool. But if “imposing extra costs” on a pool I’m not a member of is the basis for regulating then the government can require me to join or leave ANY risk pool because my non-participation in a government-favored risk pool imposes costs on those in that pool. Perhaps the government could have done that anyway, but they hadn’t really done so in the past.
On the legal side…
I agree completely that Congress can likely justify the mandate through the commerce, taxing, or spending powers. Or all of the above. If nothing else, a legal challenge might refine that authority a bit.
My concern is really more theoretical: what legal case is left for challenging such action if it threatens or impairs individual liberty?
If those three powers are basically unbounded, the only real recourse is fundamental rights because you need to “delink” your challenge from these other powers. I’m not wild about the “right to privacy” but it’s among the more robust non-textual (implied) individual liberties. I offer it as an illustration of how such a challenge to a health care mandate might take shape. (Emphasis on MIGHT). Lochner was really just a fundamental rights doctrine in different (more common law based) clothing.
Indeed, the “right to let alone” – a foundational principle of the privacy right – is a form of subterfuge for that very disagreement. So? Are legal principles and rights not open to being tested in this way? If not, you might want to reconsider your career path. Such disagreements force courts and legislatures to define the nature and scope of rights which arguably intrude upon individual liberties or other legal rights. Wrestling with outcomes of laws you or your clients don’t like (even if you agree with the underlying legal principle) is a central part of legal discourse and zealous representation of your clients.
The two of you pretty much hashed out anything relevant I had to add on the issue.
*But*, given the reference to civil rights, I came across this link from the Tax Prof Blog
As to the policy debate..
I agree that there could have very well been better options than this current healthcare reform; this was simply a minor quibble I had with their statement. However, it is possible for hospitals to start to fail while they turn away uninsured. The paradox is explained by the fact that hospitals cannot turn away every uninsured person they see. Someone who is suffering from a gun-shot wound (GSW) probably needs to be treated immediately whereas illnesses are not so severe that someone can be transferred for treatment. In some cases, a hospital may be the only place to treat someone who comes into the ER as an HMO wouldn’t have the resources. As I’m sure you can imagine, different hospitals face these stresses differently which depends on a lot of different factors (one for example could be the amount of gun-violence in the area, budget, etc.) Whether a hospital or HMOs are (starting to) failing in the area is a case-by-case basis.
The legal debate…
I understand you are making a theoretical about reviving Lochner to some extent. My point with my general welfare argument (which I realize was not clear, though it was midnight) would be that Congress would have a compelling interest in making healthcare because it determined the policy would benefit the general welfare. Whether the mandate actually benefits the general welfare is irrelevant as Congress is the body authorized by the Constitution to determine such facts.
Second, I am curious what a heavy undue burden on the right to be left alone would be. Are there any meaningful constraints on the right to be “left alone.” Or is your vision of privacy with respect to taxes so extreme that people should be able to pick and choose which government programs they wish to support (hopefully we agree that this is a bad idea)? If people should be required to support government programs they don’t support, such as public schools or the USPS, then what makes health insurance different? Or is the notion of privacy in this context simply depend on whether the judge agrees or disagrees with the merits of the policy determine whether there is an “undue burden.” While I understand personal political beliefs often unduly affect legal reasoning, this shouldn’t necessarily be how two people having a conversation should view the law. After all, isn’t the whole debate over the torture memos whether John Yoo et. al. gave result-oriented legal reasoning?
Third, your lawyer-client point at the end of your response is misplaced. Though I touched on this earlier, result-oriented legal reasoning is generally frowned upon. Of course when you are representing a client you take on the responsibility of advocating their position and so you cite all legal precedent and principles that support your client, even if your client is in the wrong. Here however, there is no client; there is only our personal convictions. It’s troubling if you think result-oriented legal reasoning is justified when there isn’t a client. Though I suppose this is what we call a politician (something I am not becoming).
Finally, I brought up the civil rights linkage to the commerce clause because the conservative wing frequently ignores how the expansive interpretation of the commerce clause is responsible for a large part of the US civil rights legislation. The debate about the whether the expansive interpretation of the commerce clause is good or bad cannot be separated from a discussion of civil rights given how the law has developed in this country. Once you take into account the civil rights aspect of the commerce clause, the furor of a “de-linked” civil right such as privacy, arguments against an expansive interpretation of the commerce clause sound less persuasive.
The argument that this plan is beyond the taxing power is probably the weakest argument going. Our current tax regime taxes activity as well as inactivity. All things being equal, people with children pay less income tax than people without children. Consequently, those who choose not to have children pay more tax. The decision to have children, or not, is clearly a fundamental right, yet I pay more tax than Octo-mom for exercising my fundamental right not to have children. We accept this without question.
Furthermore, we consider the taxing power limited to taxing income, consumption, or other wealth transfers, because that is the way the tax law has developed. But the constitution does not limit Congress’s authority to a particular type of tax base. The “tax base” can be whatever Congress decides it to be. Congress could decide tomorrow that income is not the appropriate tax base. They could decide that they are going to implement a tax on existence, for example, each person pays $15,000 just for being alive, with no rhyme or reason. They could adjust this figure up or down based on a person’s age. There is really no limit to the different methods Congress could use to raise revenue through the use of a tax.
Good points, Jorge.
I think that’s an important – potentially dispositive – shortcoming in Rivkin and Lee’s argument. They focus on rather dated precedent about taxation only limited to income. It’s a nice thought, but not rooted in current law.
Could you argue that this is a fine for noncompliance with a regulation that cannot be managed through the tax code?
TDot-
that’s a good one!
“if it decreases exposure to UV rays… it COULD cut down on cases of skin cancer”
ah. well in that case…. tax away, my friends.
Ricky-
Moving our discussion down here because we’re losing space up there…
My personal views on the Commerce Clause, using the taxing power to achieve regulatory ends, or spending for the general welfare are irrelevant here since I’ve stipulated that those bases could all be used to justify a congressional mandate to purchase health insurance. That said, I agree that Congress is generally in the best position to determine what spending is in the general welfare or what taxation is necessary to achieve regulatory ends. If Congressional action is subject to legal challenge at all in this case, I’m arguing that it must be unrelated to these three powers.
There’s no need to get hung up on the “right to privacy” argument. I used it as a modern-day example of how the liberty to contract under Lochner used to work. Of course there’s not an unlimited right to privacy; indeed, there’s a definite standard for infringing on it: there can be no substantial interference with the right to privacy without a compelling government interest advanced by narrowly tailored means. I certainly don’t have a vision for taxes and privacy; I’m not sure what that would look. I also don’t think one has a general right to opt out of paying certain taxes based on the right to privacy. That’s an argument for conscientious refusal or objection, which I’m not making here. [update: to put a finer point on this, the difference between the USPS and other government programs your taxes support is that this is a mandate to contract with a specific insurance company for a government-mandated service. the distinction is critical. This isn't an opt-out of a tax argument, it's a question about whether you can legally challenge economic regulations that are otherwise deemed valid under the commerce, taxing, and spending powers.]
Instead, I’ll just go ahead and argue that the “liberty to contract” should be reestablished as a fundamental right. This might serve as a mechanism for reviewing congressional mandates such as that requiring an individual to purchase health insurance. That’s all I’m suggesting and there would need to be more thinking than I’ll do here about what that might mean.
You may need to help me understand why the outcomes of the civil rights cases are relevant here. Those civil rights cases can be distinguished from our hypothetical exercise here. There, whatever you think about the commerce clause justification for the regulation, congressional action was intended to expand liberty. Here, we would be looking at a congressional action that diminishes it, using the same regulatory justification. If that justification is valid (in the sense that courts uphold it), there is limited legal recourse to challenge it.
“Let elections work it out” is one answer to this dilemma (if one exists) because, after all, the law is the law so long as it’s made through a valid, democratic process.
Another is to use the fundamental rights/substantive due process analysis – with, say, a liberty to contract (or other fundamental right) – to *potentially* provide a check on unbounded power exercised by majorities in Congress.
I don’t think we’re really disagreeing, just stating it in different ways.
I only have a couple of other points –
The general welfare argument is a two-fold argument. Part of it is to establish that Congress has the authority to implement the legislation–this we seem to agree on. The second part deals with what it means to support the general welfare. Presumably anyone can make an argument that any law potentially hurts the “liberty to contract” or other “fundamental liberties,” (which I understand here as so-called 9th amendment-based rights) Were your vision adopted as sound legal reasoning, almost any and every law would be challenged in the courts assuming someone had the money to bring suit. Rather, because Congress is in the best position to determine what the proper tradeoffs for various individual liberties are, as long as Congress can demonstrate the legislation achieves a government objective without violating someone’s constitutional rights, then the legislation is legit. What we disagree on is where the burden of proof should lie on a piece of legislation to be Constitutional. I am against your proposition, as currently stated, because it leaves the constitutionality of almost all federal legislation in a precarious position subject to the whims on the political leanings of any judges. To emphasize the point further, under your proposition practically all legislation would require a compelling government interest advanced by narrowly tailored means. I interpret this as a rather high burden of proof (which I assume is what you want) and do not believe it would be beneficial for the functioning of the government for reasons stated above. Perhaps this is where we disagree.
Also, am I correct in assuming that you distinguish the mandate from the USPS because the former mandates consumption in the private sector where the USPS is a government-run agency. If so, then a) would the mandate be constitutional if it included ‘a public option’ and b) would government regulation mandating all car owners purchase car insurance be illegitimate? (I suspect you’ll argue that the difference between car insurance and health insurance is that not everyone needs to own a car where under mandate everyone has to buy health insurance. To pre-empt this, first it’s almost laughable to say that the majority of americans can live without a car. Second, the mandate could be rewritten with a false choice such as, “anyone who uses medecine or medical services must purchase health insurance.)
Finally the civil rights issue. My position is that checks on the commerce clause have more than economic ones because most of our civil rights (this includes conservative civil rights legislation such as bans on certain abortion techniques) are authorized through the commerce clause. To argue that Congress’s ability to implement legislation via the commerce clause, one must have an answer to protect civil rights unless they want to claim civil rights are bad. One civil rights enter the commerce clause debate, I think the conservative position for limiting the commerce clause becomes much less persuasive. Now granted, I think it’s absurd that our civil rights are linked to interstate commerce, but that’s the reality we have.
Your expand/diminish liberty distinction is not that strong. First, one could argue (not that I would) the mandate does expand liberty by strengthening the right to life for those that couldn’t pay for insurance before because they get assistance in insurance. Second, one could argue almost that almost any anti-discrimination diminishes liberty. If you prevent me from denying black customers in my hotel or restaurant, you are diminishing my liberty to determine who I let on my private property. I suspect you’ll argue that there is a government compelling government interest implemented with narrowly tailored means in the latter case. And my response is that under your revival potentially opens up a lot of legislation and principles we probably don’t want to question.
As to let the elections work it out, do we want our civil rights to be subject to the popular passions of the time?
I have to be honest, I don’t understand what you mean by due process analysis, perhaps you could clarify. Lastly, I think you should see Randy Barnett’s post on the Volokh Conspiracy on the Though this amendment is different from what you are advocating, there’s a reason he adds the rider “this amendment will not affect secion 5 (the enforcement mechanism) of the Fourteenth Amendment.
I do truly wish I had anything approaching a “vision” of what this should look like. You give me far too much credit in that regard. In fact, I suspect there is far more fuzziness than insight in my streams of consciousness here.
Frankly, if my analysis leaves the constitutionality of federal legislation at acute risk of legal challenge, then good! Congress should absolutely be sensitive to the boundaries placed on its actions by the Constitution, by an independent judiciary, and, most importantly, by voters.
However, the substantive due process analysis would instill no such fear. In reality, the burden I’ve described (albeit poorly) is really just current law and invalidates far fewer pieces of legislation than the language suggests. The due process clause of the 14th Amendment includes both procedural and substantive elements, each a separate analysis altogether.
On the substantive side, if a plaintiff can prove that a certain government action places an undue burden on, or substantially impairs, the exercise of a fundamental right, the government bears the burden of showing that it has used narrowly tailored means (i.e. there were no less drastic alternatives) to advance compelling government interests. These fundamental rights include what some call the “textual” rights like religion, speech, assembly, press, freedom from unreasonable searches and seizures, and (now) gun ownership, as well as the non-textual rights, such as privacy (and the reproductive rights that grow out of it).
Your commerce clause and abortion argument is illustrative of how this would work (even if it takes us back to “privacy – ugh!). The Partial Birth Abortion Ban is rooted in Congress’ commerce power. The battle over whether Congress can implement such a regulation that governs a woman’s right to privacy (or right to choose, whichever you prefer) focuses on the burden the legislation has on that fundamental right, NOT on whether the commerce clause is a legitimate source of power. So, Congress had to demonstrate that the ban was the least dramatic means of advancing its compelling interest in protecting the life of the mother and unborn child. It failed several times before it was upheld (in large part, because of change in the Court membership), but it was analyzed from this substantive due process angle and not from whether the commerce clause was a legitimate source of regulatory authority.
Here, if the challenge to the health care mandate were based on the freedom to contract you are correct that judges would play a much larger role in the process under this hypothesis, based as it is on a fundamental right. Indeed, substantive due process is largely a judicial construct for defining just those things. I suspect (but am not assuming) we agree that this is generally not desirable, but I continue to whether it’s necessary to preserve some sort of legal recourse to challenge congressional action.
On the two examples you offer on the liberty issue:
I agree that calling the freedom to contract a fundamental right might imperil civil rights laws. I’d be concerned with that result as well and it raises the central concern with fundamental rights jurisprudence: that it results in unelected judges acting as arbiter between conflicting rights. The compelling interest of maintaining equal access to places of public accommodation might still justify a ban on racial discrimination in hotel accommodations. Congress would need to give it some thought, for sure. If this discussion were about limiting the scope of the Commerce Clause, like Professor Barnett proposes, we could certainly address what effect that might (or might not) have on civil rights laws. As our discussion stands now, that’s not necessary since neither of us is making that argument.
To argue that the mandate expands liberty is also interesting. Government can already provide this insurance to the uninsured. It already does through Medicaid, for example. This is simply spending for the general welfare. The issue is whether this arguable expansion of rights justifies the mandate placed on everyone to purchase a private health insurance policy since you can provide coverage for the uninsured without that mandate. Whether the mandate is the least drastic means would be a central question IF the freedom to contract were the fundamental right at issue.
To be clear, I’m not advocating that we should just let elections work it all out. That is simply one option if we want to drop the notion that there is legal recourse to challenge federal law. This would leave our nation to the whims of the majority for most everything. While we may in fact need a smaller role, overall, for unelected judges, there are certain rights, principles, and values that should be protected from the mob. How we define those is the great challenge of living in a Republic.
I only have a couple other comments; after that I don’t think I have much more to add to the discussion.
1. I think we have different views of what the world would look like if the Courts adopted your proposal. I still see Congress attempting to pas lots of legislation based on interstate commerce (as you admit, though I’ll later contest, your proposal does not limit the commerce clause directly). This will lead to a flooding of constitutional challenges for any and every group that believes their fundamental liberties have been violated. If you accept that and still think its a good thing, then you simply have a view of a court system that is not based on reality. The costs of running such a court system would make a current expenditure. For this reason alone, I think your proposal should be rejected.
2. I’d take issue with some minor parts of the partial-birth abortion analysis, but let’s assume your characterization is correct and that judges play a much larger role. It would then appear that a ‘government’s compelling interest’ and ‘narrowly tailored means’ become the new commerce clause. I hopefully don’t have to go into an analysis of why this development would be a bad thing.
3. A discussion of how this notion of fundamental liberties affect civil rights is needed. Whether a policy expands or diminishes liberty as you put it will depend on whether the person political leanings are to the left or the right. Whether or not a policy is a net benefit to liberty will be entirely based on your political beliefs At least under commerced-based civil rights the question is not that politicized; it is merely does the activity in question affect something in another state.
Lastly, the reason why I focused on the general welfare argument and the fact that Congress is the best actor to determine whether the policy is net-beneficial. I’ll grant you (for the sake of argument) that you are correct about the health mandate being a bad policy because it increases costs for others and leads to a decrease in policy. However the question is not clear-cut. There is some data (which for the purpose of the argument we’ll assume is incorrect) to suggest that the health mandate is a good idea. Congress in their wisdom (or ignorance) has elected to believe the evidence that says the health mandate will be net-beneficial to the general public is correct. My argument is that the Courts should show deference to Congress because they should not second guess their fact-finding abilities unless a serious–and I mean serious–negligence has been made. I think you would be hard-pressed to say this policy qualifies as one of those mistakes unless you want almost major policy the FG passes to be subject to a post-judicial fact-finding investigation.
Fair enough. Thanks for engaging with me on this. It helps to see where I’m way off and where I might be able to look into this a bit more.
This will also be my last comment…
#1 – I never suggested this approach would limit commerce clause legislation. There are already a host of lawsuits filed each year on fundamental rights, though such rights are largely well-defined so the courts are able to deal with them quite effectively.
#2 – Fundamental rights are already a check on commerce clause power; they are not the “new” commerce clause. They’re separate analyses and judges do play a large role. You can either argue that the commerce clause should be scaled back or another check on govt power be strengthened. For the sake of argument, I’ve only argued for the latter and just accepted the large role of the judge.
#3 – I try to avoid result-oriented reasoning so I’ll refrain from answering that!
I just don’t really agree with your premise here… the Commerce Clause jurisprudence is every bit as politicized (and result-oriented) as the fundamental rights jurisprudence.
#4 – I agree on Congress being the preferable body for fact-finding and lawmaking. We will disagree that this preference should forestall robust judicial review of government actions. I’ve assumed that this is necessary as a last resort against overreaching by the federal government.
Have a good weekend, Ricky. Look forward to reading about your choice in schools.
To add one more example of the concern about putting the discretion you would in the hands of judges, look no further than the GLBT rights issues going on in the courts today. Personally I think it’s an inevitability that all these anti-gay rights legislation will be overturned through legislation based on the commerce clause or 14th amendment challenges. But it hasn’t happened yet; and that fact should trouble a libertarian (not calling you one, but you do from this post have libertarian-like leanings) who is socially liberal. Your jurisprudence places a naive faith that judges will do the best thing.
The best way to limit big government or respect federalism is to elect congressmen who share that view and make this a threshold issue for a congressman to gain your vote. Efforts to restore federalism will have the best results from general elections, not from Supreme Court decision
I agree that most – if not all – of those laws will be repealed at some point as well. I doubt the courts will wait for legislatures to act though. I’m not sure I trust legislatures to do the best thing either, though I believe legislatures are often the most legitimate decision maker on these issues.
This discussion was never really about restoring federalism, assuming as I did that there is no longer a meaningful structural limit on federal legislative power in place. Restoring or redefining federalism – i.e., Barnett’s amendment – is a separate discussion altogether. Given this assumed death of federalism, I’m simply asking whether there is a place for an expanded notion of individual rights that might counteract an alleged overreach by the federal government.
Thanks again.
[...] to a Lochner-esque era in order to limit the Congress’s ability to use to commerce clause to do just about anything. Of course the health reform bill is what started this whole mess. But I’ve said all I had to [...]