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6th Circuit Upholds Affordable Care Act
The critical vote was cast by conservative heavyweight Judge Jeffrey Sutton.
You might be reading a lot of coverage that seeks to establish Judge Sutton’s conservative bona fides by noting that he was a clerk for Justice Scalia and was appointed by George W. Bush. And those are, indeed, indicators. But let me just say that — wholly independent of those biographical facts — Judge Sutton is known to those of us who keep an eye on these things as a rising star among conservative judges. It isn’t just “hey look, a Republican upheld the law!” Judge Sutton is one of the top young guns the right has on the federal judiciary right now. His vote to uphold this law matters quite a bit.
37 Responses to “6th Circuit Upholds Affordable Care Act”
Whether the law is upheld or not, it cannot be implemented successfully. If it were, we would be broke as a country much sooner. Its incentives will end private health insurance and drive everyone to the government plan. At that point, there is not enough money in the universe to pay for all the “free” health care that will be demanded.
http://www.douglaswolf.com
Sutton is certainly an enjoyable read since he gives Elijah Sweete competition in his ability to interlace humorous asides into discussions of legal gravitas.
Nonetheless, I couldn’t help but get the feeling that the facial challenge nature of this case had a significant influence on his opinion. Therefore, maybe this says more about the judge’s pragmatism than his ideology.
Why, thank you, casualobserver.
An “effective mandate” is a key to any insurance type plan, so if are going to go down the road of OCare, it is necessary. At its present level, however, it is a carbuncle on the rump and useless.
“Its incentives will end private health insurance and drive everyone to the government plan.”
I think that is the design intent.
But whether a policy is good or bad is not relevant under rational basis review.
The question is whether regulation of economic non-activity (i.e. the refusal of individuals to purchase insurance) fits under the Commerce Clause. If so, there would seem to be nothing in the entire universe of human behavior that could not be subject to congressional mandate under an all-encompassing Commerce Clause.
I wish that the several left-leaning legal commentators here would engage with that argument on a substantive level instead of just blind ideological cheerleading.
Logan Penza said:
Sadly, I would have to concur with your argument.
When the Founding Fathers drafted the U.S. Constitution, they intended for the Commerce Clause to give the federal government the power to prevent the individual states from imposing tariffs and duties upon one another. This was explicitly stated in the Federalist Papers (see Federalist No. 22 and Federalist No. 42).
At some point during the 19th century, the federal government began to reinterpret the Commerce Clause as giving it the power to tax, subsidize, restrict, or prohibit any commercial activity that occurred across state lines.
Then, during the early 20th century, the federal government began to reinterpret the Commerce Clause as giving it the power to tax, subsidize, restrict, or prohibit any commercial activity that occurred within individual states.
Then, during the New Deal, the U.S. Supreme Court reinterpretted the Commerce Clause yet again–this time, granting the federal government the power to tax, subsidize, restrict, or prohibit non-commerical activity on private property (i.e. the growing of grain not meant for market).
And now, scarcely a decade into the the 21st century, the Obama Administration and several courts are arguing that the Commerce Clause grants the federal government the power to regulate non-activity (i.e. the refusal to purchase health care).
Based upon the logic of this most recent ruling, there is essentially no limit to what the federal government can force individuals to do or forcibly prevent individuals from doing.
For example, if the federal government wants to prevent individuals from buying or selling food food, it has the power to do so on the basis that such activity constitutes “commerce.”
And if the federal government wants to force individuals to purchase vitamins, it has the power to do so on the basis that the refusal to purchase vitamins affects the vitamin industry, which affects “commerce.”
But even if some TMV readers don’t care about the Constitutional challenge to this interpretation of the Commerce Clause, I invite them all to consider some of the real world effects of such a broad interpretation. Let’s just consider a laws that the federal government has passed under the auspices of the Commerce Clause:
Fining farmers from growing more than a pre-determined amount of wheat on their property.
Implementing wage and price controls under Nixon (done in an effort to stem inflation and ended up being a colossal failure).
Fining and imprisoning individuals for growing cannabis in their back yards (as part of the War on Drugs–another colossal failure).
Maybe there are some of you out there who aren’t all that concerned with the Commerce Clause being used to grant the federal government this kind of power. But sooner or later, the federal government (under the auspices of the Commerce Clause) is going to grant itself some power that you definitely do not approve of. And then, having already approved this broad interpretation of the Commerce Clause, what argument will you be left with?
This could show that this act will be upheld, but again I point out that this law will not work.
The Obama administration has backed off a plan to secretly poll a number of doctors t find if they accept Medicare patients. It has been pointed out that 46% of children covered by Medicaid have a dificult time finding a physician to treat them and about 17% of the physicians today do not accept Medicare. This indicates that low reimbursement rates have an impact on doctors and their accepting these insurance covered patients.
The law has provisions to cover an additional 30 million in state exchanges, and in many cases, the state exchanges will use Medicaid as the basis for payment. Lots of luck finding a doctor to accept this coverage when they will not accept Medicaid rates today. And don’t forget, each year states reduce the amount they pay since they can not afford the additional costs of increases in reimbursement.
Last, Medicare is reducing physician reimbursement by over 15% in January 2012 as verified by the CBO within the last couple of weeks. Anyone want to guess what that will do to the number of doctors accepting Medicare?
Physicians that accept Medicare and Medicaid can not, under their contract with the government, discriminate between a commercially covered patient and a government covered patient. This does not preclude the doctor from canceling his contract to accept these forms of insurance, thus allowing him/her to avoid accepting those patients.
I have six doctors I currently use that accepted Medicare. One just informed me that he was not going to accept it any longer. Are the other five far behind? I don’t think so.
Since the OP implies this is effectively a surprise coming from a rising star conservative judge, it makes it important to read his words. I did not take him to be saying the Commerce clause can in fact regulate inactivity but rather he sets up the premise that everyone inevitably has to purchase health ” services”. Therefore, if you decline insurance you do not get to end in inactivity, but rather the “activity” of self funding your inevitable purchase. Therefore, ACA is regulating only activity. Whether this premise setting is correct or not, it does seem he has made his ruling rather narrow to this rather unique set of circumstances that assume you must “buy” 100% of the time.
From the Economist:
“Still, two other appeals courts are expected to rule on the ACA this summer, and they are merely markers on the road to the Supreme Court. There it will be interesting to see how Antonin Scalia rules, considering his previous affirmation of Congress’s “authority to enact a regulation of interstate commerce” and its possession of “every power needed to make that regulation effective” in a case about medical marijuana in California. As Adam Serwer notes, in another ruling on the ACA in Virginia, Judge Henry Hudson gave Justice Scalia an out by ruling that Congress could not “compel an individual to involuntarily enter the stream of commerce”. But today the court ruled that we’re already in the stream when it comes to health care, whether we like it or not. Justice Scalia would likely have to reach a different conclusion if he is to remain consistent.”
http://www.economist.com/blogs/democracyinamerica/2011/06/health-care-reform
Should be interesting…
Nick Rivera said:
I apologize for the grammatical error in the above quote. The sentence should read “…buying or selling fast food…” The government’s preventing of individuals from buying or selling ordinary food would be a non-starter (for obvious reasons). However, given all of the “nanny staters” in government today, I’m wouldn’t put the banning of fast food past the government.
I am no lawyer. That being said, all this slippery slope Chicken Little talk lacks basic logic. Even Constitutional law must, I believe, at some point, be logical. Judge Sutton apparently considered a unique fact about healthcare which all who have seriously contemplated the healthcare crisis in America have had to consider.
People receive basic healthcare, period.
Whether it is a right or not in theory, the practice is that the sick in this country will be tended. It is different than any other commodity bought, sold or traded which concerns the slippery slopers. The only logical parallel good or service is burial. Since everybody gets some healthcare, the only remaining issue is how much and who pays. In today’s system, either tax payers or those with health insurance pay almost all of the time. That, my friends, is a commerce question if I have ever heard one. Those who do not buy insurance are gambling with a system which will serve them anyway. Without addressing this basic problem, no solution will be complete. Judge Sutton apparently understands this unique circumstance and has ruled accordingly.
“Judge Sutton apparently considered a unique fact about healthcare which all who have seriously contemplated the healthcare crisis in America have had to consider.”
Even if that over-the-top charitable interpretation is correct, that is the act of a legislator, not a judge.
BTW, if the “everyone has to buy it eventually, therefore, Congress has the power to order them what to buy and when” argument is true, there is nothing to prevent Congress from ordering everyone to buy a car (everyone has to eventually purchase transportation) and ordering everyone to purchase a minimum of 5lbs per week of vegetables (everyone has to purchase food).
The potential for abuse in that argument is infinite. But what really concerns me is that I think the nanny-state liberals know that already and they consider that a feature, not a bug.
Okay, wow. (A) Quite right, it is the act of a legislator. Specifically, the legislators who passed the ACA, whose opinions Judge Sutton is ratifying. I’ll chalk that one up to reflex, since “legislating from the bench” is vomited up by conservative critics so often they might have forgotten whatever cohesive meaning it was supposed to have in the first place.
And (B) It’s not “over the top charitable”, it’s exactly what Judge Sutton said.
But fine, let’s take Logan’s implicit challenge at face-value. What are the limits on federal power if the ACA is upheld? Can the federal government do whatever it wants? The answer is clearly, and obviously, no.
(1) The commerce clause still will be limited by, inter alia cases like United States v. Morrison and United States v. Lopez. Those cases state, in effect, that when Congress legislates under the ISC clause, the subject of regulation must either be (a) economic or (b) as-applied have an effect on interstate commerce (e.g., one can’t aggregate effects when one is regulating non-economic behavior). Nothing in upholding the ACA requires either Morrison or Lopez to be overturned. The Gun-Free School Zone Act is still unconstitutional as exceeding the ISC; ditto the struck-down portions of the Violence Against Women Act.
(2) The rest of the constitution. Judge Sutton astutely observes that, even to the extent that a presumption against regulating “inactivity” ought be read into the constitution (since it doesn’t exist in the text, so we’re deciding whether judges should essentially create it), it doesn’t make sense to infer it into a grant of power (the ISC), rather than a restriction on power (e.g., the due process clause). But nobody thinks the ACA violates the due process clause — (a) that would also mean invalidating similar state-level mandate laws (like in Massachusetts) and (b) both the states and federal government regulate inactivity all the time — laws regulating strikes (refraining from work), laws mandating vaccines (refraining medical treatment), laws enforcing delinquent child support payments (refraining from sending a good into interstate commerce), etc.. And many of these laws are federal laws.
(3) Political checks. Congress has the authority to do dumb things. I mean, really dumb things. We could declare war on Canada tomorrow. That’d be a horrible idea. It’s also a clearly constitutional idea. The vast majority of insanely stupid policies one could concoct aren’t non-existent because they’re unconstitutional, they’re non-existent because for all its faults, democracy isn’t that terrible. There are areas where we do expect systematic democratic failures, and in those areas we set up specific constitutional proscriptions. But if one doesn’t have the basic faith in a democracy that most of what it does won’t be irredeemably idiotic, then your objection is to democracy itself.
D.R. WELCH said:
The ever-broadening interpretation of the Commerce Clause is hardly “slippery slope Chicken Little talk.”
Even as we speak, nearly 100,000 people are in federal prisons (see Appendix Table 18) and more than 250,00 people are state prisons (see Table 7) for drug-related convictions. Those convictions are a direct result of the federal government’s War on Drugs. The War on Drugs, in turn, are a result of the Controlled Substances Act (Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970) which granted the federal government the power to created Schedules I – V of controlled substances as well as the police powers necessary to enforce the War on Drugs. This law has, in turn, been upheld by the recent Supreme Court ruling, Gonzales v. Raich, in which the majority [comprised of both liberal justices (Souter, Ginsberg, Breyer) and conservative justices (Scalia, Kennedy)] argued that the Commerce Clause granted the federal government the power to criminalize the production and use of home-grown cannabis.
Many more thousands of individuals have been convicted of consensual victimless offenses (i.e. gun possession, pornography) based upon federal laws passed under the auspices of the Commerce Clause. I’m simply citing the War on Drugs as the one of the more egregious results of the ever-broadening interpretation of the Commerce Clause.
So, in point of fact, we’re not talking about “theories” or “Chicken Little” scenarios. We’re talking about federal laws that have resulted in the incarceration of hundreds of thousands of people in this country.
One might argue that it is unfair of me to use the War on Drugs as a way of arguing against the broad interpretation of the Commerce Clause and that legislators should be responsible enough to know a “reasonable” law from an “unreasonable” law.
But from a Constitutional standpoint, you cannot grant the legislature broad powers and then expect it to pass only “reasonable” laws.
The argument that I am raising (and I presume Logan is also) in not whether Law X or Law Y are “reasonable” laws but whether they these laws are constitutional in the first place.
All the arguments in the world about how “reasonable” or “important” or “necessary” the Individual Mandate portion of Affordable Care Act is–is completely irrelevant from a constitutional perspective.
If an individual wants to defend the Individual Mandate on the utilitarian grounds that it is “reasonable” or “important” or “necessary”, then fine. Make that argument. But such utilitarian arguments cannot be used to argue that the Commerce Clause gives the federal government the power to regulate any economic activity or non-activity that it wishes–an argument that is not explicitly laid out anywhere in the U.S. Constitution and which is contradicted by the Federalist Papers.
I mean, I could make a fairly convincing argument that if the federal government prohibited the buying and selling of fast food, the overall health of the American population would improve substantially. But that doesn’t mean that the federal government would have the power to do so.
I can’t tell if Nick wants us to adopt consequentialist logic (expansive interpretations of the commerce clause enable government to imprison tons of non-violent drug offenders!) or not (“All the arguments in the world about how “reasonable” or “important” or “necessary” the Individual Mandate portion of Affordable Care Act is–is completely irrelevant from a constitutional perspective.”).
Of course, technically speaking the latter claim isn’t true — questions of necessity and reasonability and importance are part of constitutional doctrine all the time — but I get the point. What I don’t get is what argument Nick and Logan have for importing a non-written restriction on the commerce clause (an activity/inactivity distinction) that isn’t based on their purely policy-based objections about it enabling the passage of other, bad laws.
Also, a law banning the sale of fast food (assuming that “fast food” was defined in such a way that it wasn’t unconstitutionally vague) is a slam-dunk winner under current constitutional doctrine. It’s an economic activity which, in aggregate, has a substantial effect on interstate commerce (not all the health stuff — the buying and selling and transportation of all the food!).
Now, such a law would be deeply unpopular (I think fast food is delicious) and, I think, rather foolish. And one notes that Congress has not passed a law — not because it’d be unconstitutional, but because it’d be deeply unpopular and probably foolish. There are unnumerable bad laws that are perfectly constitutional that nonetheless will not get passed because they’d be foolish and unpopular. The frontline barrier in a democracy against bad laws should be, and is, the political process — which, in the case of forestalling a federal law barring the sale of fast food, has worked very well.
No, everyone has to buy a bike, not a car. Nanny, says so.
David, I don’t deny that your argument has merit. Unlike you and so many of your fellow progressive legal analysts, I do not subscribe to the notion that every argument I disagree with is just something absolutely meritless that is “vomited up.” But what I think you fail todo, on this and every other legal issue, is actually deal with the counterarguments to your position. Instead, you simply boil them down to strawmen, slap them with a label that relieves you of any need to do anything more than sneer along with your little ideological clique, then quit.
I think that is really bad argument form and really destructive when applied from your various perches.
As to substance, I agree that your reasoning reflects one major stream of thinking about the Commerce Clause (but certainly not the only one as you appear to have deluded yourself into thinking). I just think it is a very wrong one and that you are relying on precedents that are themselves deeply flawed and should be reinterpreted or overturned. In particular, I think that Wickburn and the New Deal-era Commerce Clause cases upon which the entire superstructure of Commerce Clause jurisprudence rests was a massive misinterpretation of the constitutional text that should be reexamined and struck down.
P.S. “Political checks” lose a lot of their value when the culture is dominated by ideologues who believe they know better than the Little People how everyone should live. The current crop of Nanny State progressives who are pushing smoking bans, high-fructose bans, fois gras bans, and innumerable other regulations of individual health choices (government control of health care gives them a massive increase in power to force their personal preferences on individuals, by the way) don’t seem to care in the least about being unpopular. In fact, they seem to see it as proof of their superiority.
I’m sorry you feel so aggrieved, Logan, but the fact is that the two legal claims made above — that Judge Sutton was behaving as a legislator, not a judge, and that “there would seem to be nothing in the entire universe of human behavior that could not be subject to congressional mandate under an all-encompassing Commerce Clause” — are simply wrong. The former crosses over from wrong into gibberish, which is why I stand by characterizing it as vomit: calling Judge Sutton’s decision to defer to the legislature an act of legislating, rather than judging, turns the (already overused, IMO) refrain of “legislating from the bench” on its head. At some point the right is going to have to wrap its head around the fact that it’s the one who wants an activist judiciary at the moment — indeed, The Most Activist Supreme Court in History — and hence a lot of their old refrains aren’t going to work anymore.
And the latter claim — that after upholding the ACA there is “nothing in the entire universe of human behavior” that can’t be regulated under the commerce clause — is obviously false, as per Lopez and Morrison. Frivolous claims should be treated frivolously.
Now, in the last comment you switch grounds and say that your problem isn’t that the ACA is unconstitutional under current doctrine, it’s that the current doctrine flowing out of Wickard v. Filburn is wrong. And yes, to the extent you’re willing to dynamite seven decades of Supreme Court precedent to get there, then the legal claim against the ACA has a lot more chops (I’d be fascinated to learn if and how you think Heart of Atlanta Motel v. United States can survive this constitutional demolition derby, or if the Civil Rights Act is also unconstitutional). But if that’s your claim, then you should not only not be surprised, but should expect to lose every vote on every decision by a lower court, because they’re not allowed to throw out Supreme Court precedent on their own initiative. I’d be far less aggravated with conservatives if they would admit that’s what’s going on here: That the ACA is clearly constitutional under current doctrine, that they think that doctrine is badly flawed, and thus the Supreme Court (but not the lower courts) should change it. But “everything that’s happened w/r/t to federal power for the last 70 years should be scratched and we should return to the Hoover Administration’s conception of the role of the national government” isn’t as good for rallying the base as “unprecedented assault on our liberty!” is.
PS: Political checks actually work best when a small minority (of cultural “elites” or whomever) seek to impose their unpopular policy beliefs on the population writ large. The thing about being an elite is that, by definition, there aren’t many of you, and you’re prone to being outvoted. Political checks are most likely to fail where a demagogic majority is targeting a relatively disenfranchised and marginalized minority class — which is why John Hart Ely’s Democracy and Distrust remains the best conceptual defense of American judicial review.
“At some point the right is going to have to wrap its head around the fact that it’s the one who wants an activist judiciary at the moment” ~ DS
With few exceptions they are loathe to do so – which is lost opportunity to redeem badly needed credibility imo.
“The former crosses over from wrong into gibberish, which is why I stand by characterizing it as vomit”
In short, like far too many progressives, you choose to insult people with dissenting views rather than engage them. I think that is unworthy of your position, your intelligence, and your ethics.
I wonder if Prof. Randy Barnett’s comments also qualify as “vomit” and “gibberish” for you, David.
http://volokh.com/2011/06/30/eigh-things-to-know-about-yesterday%E2%80%99s-sixth-circuit-decision/
Or maybe, just maybe, you could allow for the possibility that people might actually DISAGREE with you without automatically being right-wing extremists and/or idiots.
David Schraub said:
But where in the U.S. Constitution does it say that the federal government has the power to regulate “economic activity which, in aggregate, has a substantial effect on interstate commerce”?
The U.S. Constitution doesn’t say anything about any activity–economic or otherwise–that has a “substantial effect on interstate commerce.” That language does not come from the U.S. Constitution but from Wickard v. Filburn, a Supreme Court ruling that defended the federal government’s right to punish farmers for growing more than a pre-determine amount of wheat–even if the wheat being grown wasn’t destined for market.
Growing a plant in one’s backyard or a field of crops on one’s farm does not constitute economic activity. Only the buying, selling, or bartering of such a plant or crops would constitute economic activity. However, the U.S. Supreme Court got around this by arguing that growing crops not destined for market would, on aggregate, affect the price of those crops that are being sold on the market, and that for this reason, the farmer’s non-economic activity still fell under the powers granted to the federal government under the Commerce Clause.
It’s a silly argument. Any activity that I do–economic or otherwise–could, in theory, affect the market if done in the aggregate.
For example, my decision to go swimming in my swimming pool does not constitute economic activity. However, my decision to remain at home to go swimming precludes me from simultaneously going to the local waterpark. Now, the decision to remain at home to go swimming rather than patronize the local water park could, in theory, affect the economic activity of the local water park if done in the aggregrate.
Thus, the same logic that the Supreme Court used in Wickard v. Filburn could be used to defend the argument that the federal government has the power under the Commerce Clause to determine whether I can go swimming in my own pool.
So the first argument that I would make (and the one that is similar to the argument that I believe Logan is making) is that neither non-economic activity (i.e. swimming in my pool, growing wheat on one’s farm for personal consumption, growing cannabis in one’s backyard for personal consumption) or the refusal to engage in an economic transaction (i.e. refusing to purchase health insurance) constitutes “commerce.”
However, in my above comment and in several comments and posts that I have made during the last 1 or 2 years, I actually go beyond the argument the Logan is making by referring to the purpose of the Commerce Clause as stated by James Madison, the man who just happens to have written most of the U.S. Constitution. The Commerce Clause was never intended as a blanket authority for congress to tax, fine, subsidize, prohibit, restrict, restrict any economic transaction that it saw fit.
Logan, have you ever encountered a dissenting opinion you didn’t interpret as an “insult” an “attack”, or as “hate”?? I only ask because you levy those charges with such great frequency.
And what IS a “progressive” in your mind? (since you invoke them with such apparent distaste) What to you differentiates a progressive from a democrat? Do you view them only as democrats who are more rude and disagreeable? Just curious…
By the way, this is what the Commerce Clause actually says:
In other words, under the U.S. Constitution, there are only three instances in which Congress may “regulate” commerce:
1) When commerce occurs with foreign nations,
2) When commerce occurs among the several states, and
3) When commerce occurs with the Indian tribes.
I don’t think anyone who disagrees with me is stupid, but I think Logan is. Those positions are, alas, not difficult to hold in tandem. I went to the University of Chicago for law school, home of many exceptionally smart people who disagree with me on many, if not most issues. And some of them manage to be both very smart and on the fringes of modern accepted legal doctrine, like Richard Epstein (I learned Torts from his textbook, and one of the more amusing things about it was the near-constant recitation of the following refrain: “The dominant rule across most states is X. For an argument why X is wrong and the rule should be Y, see Richard Epstein ….”).
One thing that distinguishes both Epstein and Randy Barnett from someone like Logan is that both Epstein and Barnett would never be so vapid as to accuse a federal judge who is upholding a duly enacted law of Congress as acting as a “legislator”. They might criticize the judge for getting the constitution or precedent wrong, or they might admit the judge got the precedent right but think the Supreme Court should overturn it. But both of them actually have thought-out intellectual commitments which, in both of their cases, demand an exceptionally active federal judiciary striking down tons of federal (and state) laws because they believe the constitution properly read instantiates libertarian policy preferences. Logan, on the other hand, just spouts off a generic conservative talking point (“Judge, not a legislator!”) without pausing to think about whether it makes sense. There is, in other words, a rather considerable qualitative difference between the level of candle power brought to bear by Randy Barnett and Logan Penza.
As for Nick, first it has to be acknowledged that his argument very explicitly is predicated on the claim that current commerce clause doctrine is wrong. Which is a perfectly valid argument to make — but not by inferior court judges. It’s one thing for the Supreme Court to ignore precedent; they’re allowed to do that. It’s another thing to urge inferior courts to do it. That’s legal anarchy.
On the argument’s face, the case Nick is actually indicting isn’t Wickard, it’s McCulloch v. Maryland. That’s the case which (through the “necessary and proper” clause) interprets grants of federal power broadly, and (most crucially) enables the federal government to elect the means it uses to pursue its ends, even if those means are not explicitly enumerated in the Constitution (there is no constitutional provision enabling Congress to establish a bank), even if those means aren’t “absolutely” necessary to pursue the enumerated power (it isn’t a logical requirement that the constitutional power to create post roads requires the punishment of mail-robbers — Justice Marshall’s main example in McCulloch). “The baneful influence of this narrow construction on all the operations of the government, and the absolute impracticability of maintaining it, without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution ….” McCulloch, 17 U.S. 159, 204.
If anything (assuming that Nick doesn’t want to reverse McCulloch), his argument that non-economic activity often does exhibit substantial effects on commerce occurring among the several states does more to argue that Lopez and Morrison are wrong than it does argue that Raich is (or that the ACA is unconstitutional). The work being done here isn’t anything textual, it’s simply a raw intuition that the commerce power has to be limited — as Stephen Lubet summarized it, “(1) There must be some limit on federal power; (2) I can’t think of another one; and therefore, (3) the limit must preclude the individual mandate.” But there is no reason to read a grant of power in a way that demands it be a narrow one as a textual matter, and McCulloch expressly commands we do the opposite.
On the other hand, if it is McCulloch that’s the real barrier, then we might as well admit that the goal here is simply toss out our constitutional law corpus wholesale and start from scratch, because it is difficult to imagine a case (aside from Marbury itself — and where does the constitution explicitly give the power of judicial review anyway?) more foundational to our constitutional order than McCulloch. Again, there are perfectly valid intellectual grounds for asserting we should simply light a match to every volume of U.S. Reporter and start anew, but you can’t act all shocked when folks think you might be a wee bit radical for the suggestion.
I’m sorry, but the idea that health care is unique in the fact that we already require is really stretching it, because health care is a very broad category of the economy.
We all eat, sleep (preferably sheltered), travel, communicate, and seek education and entertainment. All of these activities have commercial support. Everyone engages in these general activities, and therefore, they fall under the general logic of the ruling.
“I don’t think anyone who disagrees with me is stupid, but I think Logan is.”
Well, I thought an “Assistant Editor” would show more class than a direct personal attack on a TMV contributor. Apparently, such courtesies are only for those who toe all the appropriate political lines.
I will concede, however, that my initial characterization of the decision as legislation from the bench was hasty and wrong. The response that the judges were simply recognizing the alleged problems with health care as a basis for imputing Congress’ intent as a necessary component of rational-basis review was correct. Putting that response in terms that were deliberately personally insulting was, nonetheless, unjustified, especially from an “assistant editor.”
I ask Mr. Schraub to recognize that he is not the only person who has attended law school nor is he the only person who has done well there. I further ask him to recognize that the set of people who have attended law school and done well is not comprised solely of people who agree with him.
Oh, by the way, although it is obviously grossly out of line for someone who attended a law school other than the exalted University of Chicago, it nonetheless falls to me to point out that Mr. Schraub gave a very selective and self-serving report on the reach of the Necessary and Proper Clause. What he left out was the requirement that the power be used only for legitimate government objectives. While rational-basis review puts a very low bar on what is a “legitimate” government objective, the bar is nonetheless high enough that the question of whether the individual mandate is a legitimate objective is not the automatic non-partisan answer Mr. Schraub seems to believe that it is.
Then again, I don’t have that secret UChicago handshake he’s got, so maybe that actually DOES give him transcendent and perfect knowledge of the Constitution sufficient to support his assumption that anyone who disagrees with him is contemptible. But while I congratulate him on the fact that he obtained admission to such an elite institution and even made Law Review, I caution him against assuming that makes him king of anything.
All that happened here, Logan, is that you were pugnaciously wrong on one of my comment threads, and you accordingly got your chin checked. If you don’t want that to happen in the future, be either (a) less pugnacious, (b) less wrong, or preferably (c) both.
And while you are indeed a member of the voluminous class of people whom I disagree with you, you have not demonstrated yourself to be part of the (still voluminous) subclass of people I disagree with whose opinions are nonetheless insightful and well-thought out. Trying to boot-strap your value as a contributor to this discussion onto what Richard Epstein or Randy Barnett could do because you (indeed do!) share the characteristic of “disagreeing with David” isn’t going to fly. You sir, are no Randy Barnett.
David, you should consider finding ways to “chin check” people that are less personally disrespectful, especially towards people you havenever even met and about which you know very, very little.
If you continue your current bullying practices, you will eventually find that someone will be equally merciless and hateful in response. If it is is not me, it will be someone else.
Yes, I erred in my response. I owned up to it. You have also erred (e.g., your incomplete and self-serving summary of the Necessary and Proper Clause), but you refuse to own up to it and instead continue to escalate personal attacks. I don’t think you are “stupid” or that your opinions are unworthy of civil response. I don’t think it is appropriate to behave as you have done regardless of the nature of the other person’s alleged mistakes or personality issues.
P.S. David, you don’t even have any real knowledge about what my opinions are, let alone whether they are “insightful and thought-out.” If you are going on nothing but a few blog posts and comments, you are making a serious error. Someone of your education and intelligence should be aware of the fact that internet postings rarely provide any kind of complete or nuanced basis for assessing another person’s character.
If you don’t know that or are unwilling to apply that knowledge, then perhaps that elite UChicago education and all that debate experience was wasted.
Ah, the old days where the air was punctuated with really nasty pejoratives instead of school backgrounds. When a racist accusation would fly faster than a Weiner pic on Twitter.
Ah, but at least we still have the old loyalty to the party line.
However, I still miss the older cruder less sanctioned days, even when we were called jerks on occasion. (Mark Halperin, are you listening.)
Well, at this point I admit I was out of line with my error and even with being overly “pugnacious.”
But I do think David’s response left much to be desired. More importantly, his original dismissiveness towards all arguments contrary to his preferred outcome remains a serious shortcoming on this issue as well as many of his other posts relating to legal decisions. Critics of the individual mandate have some legitimate points about Commerce Clause overreaching that deserve a better and much more engaged response than David has thus far been willing to offer. It is a long, long way from a slam-dunk. Pretending that it is a slam-dunk is not helpful.
As for David personally, I will say that I think he’s a really smart guy with an excellent academic pedigree. UChicago Law School and, even greater, Law Review is not an easy get. I’m sure I would enjoy having an actual debate with David on this or a variety of other issues. Unfortunately, blog comment threads are not conducive to detailed analysis or to acknowledging nuance.
It’s nice that Logan has cleared up and re-defined the value of his ‘blog posts and comments.’
From responses to this and past ‘Logan Penza’ threads it seems that several had reached this conclusion independently but it’s still helpful to have this important fact verified by the
authortypist himself.