Tag: Commerce Clause

Update on the Legal Challenges to Obamacare

Since I first issued my challenge to debate “anyone anytime anywhere” on the (un)constitutionality of Obamacare, a lot has happened.  For one thing, Randy Barnett and Richard Epstein, among many others, have published provoctive articles looking at issues beyond the Commerce Clause justification for the individual mandate – such as the argument that Congress’s tax power justifies the mandate penalty and that the new Medicaid arrangement amounts to a coercive federal-state bargain.  (Look for to a longish article from yours truly due to come out in next month’s issue of Health Affairs.)  For another, as Michael Cannon noted, seven more states – plus the National Federation of Independent Business and two individuals – have joined the Florida-led lawsuit against Obamacare.  Perhaps most importantly, such legal challenges are gaining mainstream credibility.

Here’s a brief look at some important legal filings from the past 10 days:

  1. On May 11, the U.S. government filed a response to the Thomas More Center’s lawsuit asking a federal court in Michigan to enjoin Obamacare on various grounds, including, distinct from other suits I’ve seen, religious liberty violations from having to pay for abortions.  The government argues that the plaintiffs lack standing because it’s unclear whether the individual mandate will harm them and in any event this provision doesn’t go into effect until 2014 at the earliest. The government also predictably argues that the mandate is a valid exercise of Congress’s power to regulate interstate commerce and to provide for the general welfare.  There is nothing surprising here and we now await the court’s preliminary ruling.
  2. On May 12, the U.S. Citizens Association (a conservative group) and five individuals filed a new suit in Ohio, as Jacob Sullum notes.  In addition to the government powers arguments that are being made in most Obamacare lawsuits (most notably the state suits), this suit claims a violation of: the First Amendment freedom of association (the government forces people to associate with insurers); individual liberty interests under the Fifth Amendment; and the right to privacy under the Fifth Amendment’s liberty provision, Ninth Amendment retained rights, and the rights emanating from the First, Third, Fourth, Fifth, and Ninth Amendments (such is the Court’s convoluted jurisprudence in this area).  I’ll add that the attorney filing this suit, Jonathan Emord, worked for Cato over 20 years ago.
  3. On May 14, Florida filed an amended complaint that, along with adding seven states, two individuals, and the NFIB – so all potential standing bases are covered – beefs up relevant factual allegations and, most importantly, shores up a few legal insufficiencies to the previous claims.  This is a solid complaint, and alleges the following counts: (1) the individual mandate/penalty exceeds Congress’s power under both the Commerce Clause and taxing power and, as such, violate the Ninth and Tenth Amendments; (2) the mandate violate’s the Fifth Amendment’s Due Process Clause; (3) the mandate penalty is an unconstitutional capitation or direct tax because it is unapportioned; (4) the Medicare expansion constitutes a coercive federal-state bargain that commandeers state officials; (5) a different formulation of coercion/commandeering; and (6) interference with state sovereignty and functions under the Tenth Amendment.   After further briefing, oral arguments on the government’s expected motion to dismiss are scheduled for September 14 in Pensacola.
  4. At least one enterprising analyst has determined that the 2,400-page bill lacks a severability clause.  This means that if one part of the bill is struck down as unconstitutional, the whole thing falls! – and would mean that the drafters committed legal malpractice of the highest order.  I guess it goes to show that nobody has read the whole thing.

Finally, if anybody is reading this is in Seattle, I’ll be debating Obamacare at the University of Washington Law School next Thursday, May 27 at 4:30pm.  This debate, sponsored by a number of groups, including the law school itself and the Federalist Society, is free and open to the public.  For those interested in other subjects, I’ll be giving a different talk to the Puget Sound Federalist Society Lawyers Chapter the day before at 6:30pm at the Washington Athletic Club ($25, rsvp to Michael Bindas at mbindas [at] ij [dot] org).  The title of that one is “Justice Elena Kagan?  What the President’s Choice Tells Us About the Modern Court and Confirmation Process.”  Please do introduce yourself to me if you attend either event.

Supreme Court Further Reduces Constitutional Limits on Federal Power

As Roger has just blogged, the Supreme Court in today’s Comstock decision has ”turned an instrumental power, dependent on Congress’s other powers, into an independent power.”  That is, Justice Breyer’s decision has imbued the Necessary and Proper Clause – which merely gives Congress the power to enact laws that are “necessary and proper” for “carrying into execution” one of the powers enumerated in Article I, section 8 – with independent authority to justify federal power.  Thus, in effect, Congress has the power to do anything it deems “necessary and proper” (or, indeed “convenient or useful”), quite apart from whether that thing relates to an enumerated power or not.  I explained here why this view – and Breyer’s elaboration on it during oral argument – is wrong.

Without exaggeration, the Comstock decision is one of the most harmful Supreme Court decisions in recent memory.  If there is anything worse than the Court’s radical expansion of the Necessary and Proper Clause, it is that seven justices signed onto this sweeping pronouncement.  While it isn’t surprising that Justice Breyer, joined by his “progressive” colleagues, would have such an expansive view of federal power, it is disconcerting that Chief Justice Roberts joined the majority opinion in its entirety.  And while Justice Kennedy separately counsels that “the Constitution does require the invalidation of congressional attempts to extend federal power in some instances,” it’s hard to see what those instances are in the wake of Comstock.  Justice Alito also has some qualms about the reach of the Necessary and Proper Clause but unfortunately is left satisfied that here “there is a substantial link to Congress’ constitutional powers” (adding yet another exception that swallows the constitutional rule on limited congressional power).

Only Justice Thomas, whose magisterial dissent is joined by Justice Scalia, sees today’s decision for what it is, the transformation of the Necessary and Proper Clause into a sort of federal police power, the existence of which the Court has long denied.  As Thomas says, ”the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.”  (This is of course counter not only the Court majority but also the immortal words of President George W. Bush that “when somebody hurts, government has got to move.”)

About the only good thing about this opinion is that it declined to expand Congress’s power under the Commerce Clause – an alternative justification for the law at issue that the government offered unsuccessfully in the court below and which Solicitor General Elena Kagan abandoned before the Supreme Court.

For more coverage of Comstock, see Josh Blackman’s series of posts and Randy Barnett at the Volokh Conspiracy.  Also, here is Cato’s brief on the case (which I summarize here) and my description of Kagan’s response to some of the points we raised.

Ask Kagan about ObamaCare

Senate Judiciary Committee members should be sure to ask Solicitor General and Supreme Court nominee Elena Kagan, during her upcoming confirmation hearings, whether she or her office played any part in crafting ObamaCare or the administration’s defense to the lawsuits challenging that law.  If Kagan helped to craft either, that would present a conflict of interest: when those lawsuits reach the Supreme Court, she would be sitting in judgment over a case in which she had already taken sides.

Though the Solicitor General deals with appellate matters, it is certainly possible that Kagan was consulted during the drafting of the law or the administration’s legal strategy for defending it.

The Senate Democrats who drafted ObamaCare took pains to protect it from a constitutional challenge.  The law contains several pages of findings designed to show that the Constitution’s commerce clause authorizes Congress to force Americans to purchase health insurance.  It would have been prudent for Senate Democrats to ask the government’s top appellate lawyer, who belongs to the same political party, whether they had done all they could to protect the “individual mandate” from a constitutional challenge.

Opponents began filing legal challenges to ObamaCare just minutes after President Obama signed it into law, and seven weeks before he announced Kagan’s nomination.  On Tuesday, the Obama administration filed its first response, to a private lawsuit.  According to the Associated Press, that filing “is to be followed in coming weeks and months by federal government court responses to lawsuits filed by many states.”  Regarding the case filed by 13 (soon to be 20) state attorneys general, The New York Times reports, “Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it.”  It is not certain, but it is certainly possible that the Office of the Solicitor General was consulted on the government’s response to lawsuits that would likely reach the Supreme Court.

If Kagan played a role in drafting ObamaCare or formulating the administration’s legal defense, and is confirmed by the Senate, propriety would dictate that she recuse herself from any challenges to that law that reach the high court.  Supporters and opponents alike should be interested to know whether the Court will judge ObamaCare with nine justices on the bench, or eight.

NYT: Attorneys General Advance “a Credible Theory for Eviscerating” ObamaCare

The New York Times‘ Kevin Sack reports on the legal challenge to ObamaCare’s individual mandate launched by 20 state attorneys general:

Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it…

Jonathan Turley, who teaches at George Washington University Law School, said that if forced to bet, he would predict that the courts would uphold the health care law. But Mr. Turley said that the federal government’s case was far from open-and-shut, and that he found the arguments against the mandate compelling.

“There are few cases in the history of the court system that have a more significant assertion of authority by the government,” said Mr. Turley, a civil libertarian who acknowledged being strange bedfellows with the conservative theorists behind the lawsuit. “This case, more than any other, may give the court sticker shock in terms of its impact on federalism.”

Supporters claim the individual mandate will pass muster with the Supreme Court because in the past the Court has declared that the U.S. Constitution’s interstate commerce clause authorizes Congress to regulate non-commercial activity that affects interstate commerce. Sack writes:

Lawyers for the government will contend that, because of the cost-shifting nature of health insurance, people who do not obtain coverage inevitably affect the pricing and availability of policies for everyone else. That, they will argue, is enough to satisfy the Supreme Court’s test.

But to [the attorneys’ general outside counsel David] Rivkin, the acceptance of that argument would herald an era without limits.

“Every decision you can make as a human being has an economic footprint — whether to procreate, whether to marry,” he said. “To say that is enough for your behavior to be regulated transforms the Commerce Clause into an infinitely capacious font of power, whose exercise is only restricted by the Bill of Rights.”

Sack’s article contains an inaccuracy.  He writes:

Congressional bill writers took steps to immunize the law against constitutional challenge…They labeled the penalty on those who do not obtain coverage an “excise tax,” because such taxes enjoy substantial constitutional protection.

In fact, the law uses the term “excise tax” several times, but never in reference to the penalty for violating the individual mandate.  It describes that penalty solely as a penalty.  (The law does refer to the penalty for violating the employer mandate as a tax, but not an excise tax.)

As my Cato colleague Randy Barnett explains, that means supporters cannot reasonably claim that the individual mandate’s penalty is a tax, because that’s not what Congress approved.  As Cato chairman Bob Levy explains, even if supporters do claim that penalty is a tax, it would be an unconstitutional tax, because it does not fit into any of the categories of taxes the Constitution authorizes Congress to impose.

The “substantial constitutional protections” afforded to excise taxes do not protect the individual mandate.

Kagan Nomination Launches Constitutional Debate

As expected, and despite an exhaustive review of shortlist candidates, dead-end leaks about Hillary Clinton, and other distractions, President Obama settled on the long-time prohibitive favorite to be his next Supreme Court nominee.  Elena Kagan became the justice-in-waiting the moment Sonia Sotomayor was confirmed, so you didn’t have to be Tom Goldstein to have predicted this.  The president wanted a highly credentialed non-judge who would serve for a long time and wouldn’t cost too much political capital.  He got a 50-year-old solicitor general and former dean of Harvard Law School – the first female in each post – whose record the Senate (and media, and activists) already examined in a confirmation process that put her into her current post.  That her appointment would put three women on the high court for the first time also doesn’t hurt.

Kagan is certainly not the worst possible nominee from among those in the potential pool – that would’ve been Harold Koh, had President Obama been most inclined to appoint the first Asian-American justice – but others would have been better in various ways.  Although all Democratic nominees would be expected to have similar views on hot-button “culture war” issues like abortion, gay rights and gun control, Diane Wood is a renowned expert on antitrust and complex commercial litigation, for example, and Merrick Garland would almost certainly bring a stronger understanding of administrative law.  Although some on the left are concerned that replacing Justice John Paul Stevens with Kagan “moves the Court to the right,” there is no indication that the solicitor general is anything but a standard modern liberal, with all the unfortunate views that entails on the scope of federal power.  Another concern is her mediocre performance in her current position – the choices of which legal arguments to make from those available to her in defending federal laws in Citizens United and United States v. Stevens, for example, were not strategically sound – though she may well be better suited to a judicial rather than advocacy role.

In any event, with Democrats still holding a 59-seat Senate majority, Elena Kagan’s confirmation is in no doubt whatsoever.  The more interesting aspect of the next couple of months, culminating in hearings before the Judiciary Committee, will be the debate over the meaning of the Constitution and what limits there are to government action.  In an election year when a highly unpopular and patently unconstitutional health care “reform” was rammed through Congress using every procedural gimmick imaginable, voters are more sensitive to constitutional discourse now than they have been in decades.  From bailing out the financial and auto industries to fining every man, woman and child who doesn’t buy a government-approved health insurance policy – and, coming soon, regulating carbon emissions – the Obama administration is taking over civil society at a rate that alarms Americans and fuels both Tea Party populism and interest in libertarian policy solutions (which Cato is happy to offer but wishes were implemented on the front end instead of being invoked as a response to destructive statism).  The Kagan nomination is the perfect vehicle for a public airing of these important issues.

Senators should thus ask questions about the meaning of the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause, to name but three provisions under which courts have ratified incredible assertions of federal power divorced from those the Constitution discretely enumerates.  If Elena Kagan refuses to answer such queries substantively – employing the usual dodge that she may be called upon to interpret these clauses as justice – we can rightfully hold that response against her, as she herself counseled in a law review article 15 years ago.

More on the (Un)Constitutionality of Obamacare

Earlier this week, I reacted to reports that the University of Washington couldn’t find any legal scholars willing to question Obamacare’s constitutionality by issuing a challenge: I will debate the constitutional merits of Obamacare against anyone, anytime, anywhere (as long as the sponsoring group/individual covers my travel expenses).  Here’s a video version of my challenge:

Cato adjunct scholars Dave Kopel and Ilya Somin, blogging at the Volokh Conspiracy, go into much greater depth on the myth of an expert consensus.

And if you’re tired of hearing the debate about the debate and want to hear the latest on why the individual mandate is unconstitutional, listen to my colleague (and Cato’s chairman) Bob Levy’s podcast.

Why Do Libertarians Care about Federalism?

That’s the question NYU law professor Rick Hills asks over at PrawfsBlaws:

So why do American libertarians think that federalism is consistent with their commitment to individual liberty? Why not, instead, support a strong national government that can suppress subnational trade wars and protect a robust set of national liberties? What’s the payoff, in terms of individual liberty, from protecting subnational jurisdictions’ exclusive jurisdiction over certain topics?

In other words, if government is bad, why do we want a multiplicity of governments – federal, state, local – all presumably restricting individual liberty in some way?

Well, with all due respect to Prof. Hills – who also graciously commended Cato’s brief in Comstock, in which we argue that that Congress cannot enact a civil commitment statute for sexual predators because there is no such enumerated power and it cannot be inferred from the Necessary & Proper Clause – his analysis erroneously assumes that libertarians (he specifically mentions Cato, our senior fellow Randy Barnett, and our adjunct scholar Ilya Somin) are results-oriented in our approach to constitutional interpretation.  And we shouldn’t pursue federalism, he says, because it’s against our interests.

Both of these premises are flawed.  I won’t go into much detail because Randy and (the other) Ilya have already provided reactions at the Volokh Conspiracy here and here, with which I agree.  First , we like federalism because that’s the system the Constitution set up and luckily, the Constitution is, for the most part, a libertarian document.  Second, the Framers set up the Constitution that way because the different levels of government would exist not to multiply power-hungry bureaucrats’ opportunities for mischief but precisely to disallow dangerous aggregations of power.  So from the get-go there was no possibility of federal tyranny and, after the Fourteenth Amendment empowered Congress and federal courts to protect individual rights against state infringement, there was to be no state tyranny either.

And so, much as we like the strict limitations on Congress’s power – the express enumerations of Article I, section 8, the Commerce Clause, etc. – we also like the Due Process, Equal Protection, and Privileges or Immunities Clauses of the Fourteenth Amendment.  There is thus no conflict between federalism as a structural constitutional provision that promotes liberty and other, “anti-federalist” provisions that also promote liberty.  In practice that means there is no conflict between arguing that Obamacare exceeds the federal government’s authority while asking the Supreme Court to strike down Chicago’s handgun ban.  The original meaning of the relevant constitutional provisions support both arguments – and both arguments enhance liberty!

It really is a remarkable document, this Constitution.  Too bad its proper understanding has been lost

For related thoughts on this fascinating debate, Randy proposes a constitutional amendment that might get us back to the federalism we once knew while (the other) Ilya dispels another of Prof. Hills’s minor premises, that European libertarians diverge from Americans on the issue of federalism.