Asking the hard questions at Econ Lib: Is FDA approval superfluous to the actual safety of drugs? The Sebelius decision throws a ticking time bomb of federalism (link no longer available) into the lap of Obamacare. The Claremont Center for Constitutional Jurisprudence challenges (link no longer available) Depression era milk regulations in Hettinga v. United States. The accused has been charged with the unspeakable crime of trying to sell milk to Costco below the prices of its competitors. For shame! Of course, Law and Liberty's Michael Greve provides the full treatment of cartel regulation and the jettisoning of the original nationalist logic of commerce that…
My colleague Ilya Somin has penned a good piece on “The Individual Mandate and the Proper Meaning of ‘Proper’,” arguing that Chief Justice John Roberts’ opinion in NFIB v. Sebelius has “moved our jurisprudence closer to the proper meaning of proper.” Moreover, the Chief was right to conclude that the notorious individual mandate flunks a proper “proper” test. I agree with that assessment and much else in Ilya’s instructive article, though perhaps for somewhat different reasons.
Don't miss this discussion at Law and Liberty's Forum on Michael Oakeshott's rule of law as the key principle of freedom. David Henderson at EconLog critiques Northwestern economist Robert Gordon's paper "Is U.S. Economic Growth Over? Faltering Innovation Confronts the Six Headwinds." With the NFIB v. Sebelius decision shaping our politics this podcast from the Federalist Society Faculty Book Podcast featuring Professor Scott Gerber’s new book, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 is worth considering. Walter Olson has a great roundup of coverage on asset forfeiture practices by local governments around the country. Re: Class Action lawsuit abuse: Ted…
My friend and faculty colleague Eric Claeys has just published a very fine piece (link no longer available) on the appropriate (conservative) response to NFIB v. Sebelius. He rejects, as do I, a "the Court has spoken and therefore" theory of the Constitution, in this as in any other case and context. In the terms of the ConLaw trade, we are "departmentalists." Grrr. We may have funny names but we are not French. The moniker is just shorthand for the contention that constitutional interpretation/construction/development is not a judicial monopoly; other "departments," also known as branches of government, have a legitimate role. The danger in insisting on the…
This is a short postscript to my previous posts on NFIB v. Sebelius. In those posts, I came to the conclusion that the lead opinion "works," to whatever extent it does, because it takes a static view of the structural elements of the national government ordained by the Constitution. On a dynamic view of the workings of that government, it is questionable that a law can be interpreted as an exercise of the power to lay and collect taxes if it has the effect of imposing a new tax sub rosa. The reason this outcome is questionable under a dynamic view of…
My last post explained my belief that Section III-B of Chief Justice Roberts’ opinion in NFIB v. Sebelius relies on equating a law having the arithmetic effect of raising taxes (while simultaneously offering a tax credit) with an exercise of Congress’s power to lay and collect taxes. I ended that post with a question that I have rephrased slightly here: what are the essential characteristics of a legal culture in which a person might believe (or plausibly expect others to be persuaded) that legislation having the effect of a tax hike is, solely by virtue of that effect, an exercise of the power to tax.
1. In my view, this question has particular significance because the Section III-B equation looks flatly wrong from the vantage point of political science. I do not know of any student of contemporary American politics who thinks the individual mandate would have been adopted had it been described to the public as a tax-hike-cum-offsetting-incentive-tax-credit.
In Parts III-C and III-D of his opinion in NFIB v. Sebelius, Chief Justice Roberts concludes that
[t]he Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. . . .
The Federal Government [has] the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.
1. Plenty of bandwidth has been consumed analyzing this conclusion. Many of the analyses quarrel over whether Section 5000a can “fairly” be interpreted to impose a tax on being uninsured rather than as a command to be insured. Others focus on whether the Chief Justice was right that Section 5000a (b)’s exaction is a “tax” rather than a penalty for purposes of Congress’s Article I power to lay and collect taxes. A subset of these commentators ask a follow up question: if Section 5000a imposes a tax, did the Chief Justice convincingly show that it is not subject to apportionment among the states?
While these questions are interesting and many of the answers proposed are thought-provoking, scoring NFIB v. Sebelius on technique does not strike me as a worthwhile endeavor.
In the course of his thoughtful discussion of Chief Justice Roberts’ reported change of mind on NFIB v. Sebelius, Mike Rappaport makes what seems, at first glance, to be an unassailable assertion: A justice ought not to consider extraneous circumstances surrounding a decision, such as its effect on his or her reputation. Instead: “The decision is supposed to be based on a justice’s view of the law.”
But closer inspection reveals tension between that premise and the doctrine of judicial restraint, which I recently argued in this space was theoretically but not inherently compatible with the philosophy of originalism that Rappaport, like Justices Scalia and Thomas, espouses. If Federalist 78 is to be believed, a justice ought very much to consider circumstances beyond his or her narrow reading of the law.
I have spent the last several days reading and re-reading the opinions in NFIB v. Sebelius, hoping to find a unifying “theme” to organize all my thoughts about the case before posting about any of them. This exercise has left me with a deeper appreciation of how blogging differs from other forms of expository writing; a headache; and a vague sense that NFIB v. Sebelius is in part a case about sovereignty (as I had thought when I submitted this amicus brief (link no longer available) to the Eleventh Circuit).
Beneath the variegated opinions on health care issued by a divided Supreme Court, a shared subplot lurks: the strange and contentious fate of broccoli in a free republic. The conservative justices utilized the specter of a broccoli mandate to argue that the requirement to purchase health insurance exceeds Congress’ powers under the commerce clause. Justice Ruth Bader Ginsburg, writing for the minority on that issue, was at pains to say the analogy was inapt. Yet all sides are falling prey to a fallacy that illustrates the Court’s lofty self-image as the Platonic protector not just against abuse but against absurdity too.
Call it the reductio ad constitutionatum: the suggestion that a power is unconstitutional if it could be absurdly applied. In political argument, the reductio ad absurdum—questioning a premise by showing that it leads to absurd consequences—is legitimate. In judicial reasoning, though, it is less useful. Its unstated assumption is that the courts exist to protect us against our own acts of silliness—a vast understanding of judicial power. Even Earl Warren might blush.