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Monday, January 31, 2011

Judge Vinson's incoherent extension of Printz's anti-commandeering principle from states to private persons

Consider the following train wreck of Necessary & Proper reasoning contained in Judge Vinson's opinion striking down the individual mandate:
(1) It is a legitimate end for Congress to regulate the insurance industry to prevent "insurers from excluding or charging higher rates to people with pre-existing conditions" (pages 60-61);
(2) The Individual Mandate in the ACA is "necessary" to enable Congress to regulate the insurance industry in this manner (page 63). Yet...
(3) "[T]he individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."

Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end? Judge Vinson never presents even the simulacrum of an argument: Instead, he engages in hand-waving. He states that "[t]he Necessary and Proper Clause cannot be utilized to 'pass laws for the accomplishment of objects' that are not within Congress’ enumerated powers (page 62)." Yes, of course -- but, just a page earlier, Judge Vinson had conceded that the end of regulating the insurance industry is an "object" within Congress' enumerated powers! Judge Vinson follows this non sequitur with another: He quotes Printz's statement that, "[w]hen a 'Law . . . for carrying into Execution' the Commerce Clause [violates other Constitutional principles], it is not a 'Law . . . proper for carrying into Execution the Commerce Clause....'" (page 62). But his very quotation requires Judge Vinson to point to some "other Constitutional principle" besides the doctrine of enumerated powers to justify his opinion. Judge Vinson never does so: He brandishes the language of enumerated powers, even though the language is wholly non-germane to the task at hand.

What is responsible for this egregious muddle of McCulloch? As the quotation from Printz suggests, Judge Vinson is extending Printz's an anti-commandeering principle from states to private persons. The problem, of course, is that Printz's anti-commandeering principle is rooted in the idea that Congress can conscript private persons -- a power which Congress has routinely exercised to force us private folk to serve on juries, testify as witnesses, and register for the draft. That's the whole gist of the Court's contrast in New York v. United States between the Articles of Confederation (under which states could be commandeered to raise troops for Congress) and the the U.S. Constitution (under which Congress has to conscript soldiers directly using its own powers): Congress does not need to force the states to draft us, the New York Court reasoned, because Congress can draft us itself.

This is not to say that there is not a place in the U.S. Constitution for an anti-commandeering principle to prevent the government's commandeering of private persons. That place is, however, the Bill of Rights and the Civil War Amendments, not Article I. By using Article I doctrines to advance a libertarian agenda, Judge Vinson (and his chief handler, Randy Barnett) risks discrediting the former by not defending the latter plainly and coherently.

Posted by Rick Hills on January 31, 2011 at 11:14 PM | Permalink

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Charles Dickens' "The law is a ass" might be directed at the declarer of what the law is.

Posted by: Shag from Brookline | Feb 1, 2011 6:45:49 AM

Rick: It seems to me that, for Judge Vinson, the "non-infinity rule" does the work that the no-commandeering rule did for Justice Scalia in Printz. The Judge can concede, he thinks, (i) a valid / permissible / authorized end, and (ii) a reasonable relationship between the means at issue and that end, but still insist that (iii) because the constitutionality of the means at issue depends on it being the case that Congress can do anything it wants, (iv) the means at issue is not "proper."

So, we could push back and say (among other things) (1) it is *not* the case that the non-infinity rule is violated by upholding the mandate (i.e., deny that allowing Congress to enact the mandate requires allowing Congress to enact anything / everything), or (2) the non-infinity rule does not, in fact, constrain the reach of the N & P Clause. Because I am one of those wackos who thinks that the Necessary and Proper Clause really does suggest the existence of (judicially enforceable) lines between means that are "necessary and proper" and those that are, Congress's preferences notwithstanding, not, I guess I'm more inclined to go with (1). What do you think?

Posted by: Rick Garnett | Feb 1, 2011 8:51:14 AM

Yes, Rick, I am entirely inclined to go with (1): The "non-infinity rule" is simply inapplicable to this case. I think that Judge Vinson's reductio argument is patently unconvincing.

Why would the Congress' power to conscript private services -- a power, incidentally, that Congress has exercised in the military arena since the War of 1812 -- somehow imply that Congress can do whatever it wants? Congress can conscript people only when such conscription is really necessary for the execution of some enumerated power. No one doubts that regulating insurers is an exercise of the Commerce power. So how can one doubt that conscription to buy insurance is closely related to this exercise of the Commerce power? How in the world does this sequence of reasoning imply in any way whatsoever that Congress can do whatever it wants?

So far as the commerce clause is concerned, Congress cannot use conscription that is not tied to the national economy. So Congress could not (for instance) use conscription to dragoon you into monitoring your children's TV-watching habits. To the extent that you agree with me that Congress lacks enumerated powers over the family, education, violent crime unrelated to economic enterprises, and so forth, then Congress would also lack any power to conscript private persons to advance unconstitutional regulations in these fields.

But once one has conceded -- as Judge Vinson does -- that Congress can regulate the business of insurance -- what does it matter that Congress happens to use this particular regulatory technique?

There are lots of federal statutes that I'd be inclined to view as unconstitutional. I'd give the fish-eye to the federal regulation of abortions, the anti-arson statute, the Mann Act, the anti-car-jacking statute, the Endangered Species Act as applied to residential property, and a slew of others. That the Court upholds these statutes when they contain baloney "jurisdictional elements" raises a true reductio.

But drawing a line in the sand on the question of conscription strikes me as a colossal non sequitur. Allowing conscription does not permit Congress to do anything, and barring conscription does precious little to prevent Congress from doing anything.

Posted by: Rick Hills | Feb 1, 2011 10:00:09 AM

Rick, I think I am pretty much on the same page as you are (assuming I am correct in reading you as agreeing with me that the non-infinity rule is, actually, a rule.) That is -- recognizing that folks like Randy have thought about this much longer, and in more depth than I have -- I am not really moved by the "this situation is really different because Congress is compelling activity, and regulating inactivity" claim. I *do* worry, though, about the argument of many of the mandate's defenders, i.e., "this is a really important issue, and so Congress can do whatever it thinks is necessary to address this issue."

Actually, I was hoping for a little more stirring-of-the-doctrinal-pot with respect to the conditional-spending thing. When even Judge Vinson thinks that there're no judicially enforceable limits on Congress's ability to regulate-by-attaching-conditions, well, I guess that's it. =-)

Posted by: Rick Garnett | Feb 1, 2011 11:19:03 AM

Rick and Rick,

Thanks for this interesting exchange. I agree with you that the “non-infinity” principle seems to be driving part of Judge Vinson’s conclusion here, and I tend to agree that Judge Vinson overstates the threat posed to that principle by holding the mandate to be a valid exercise of Congress’s power.

But there’s something else at work too. Judge Vinson argues that Congress cannot be permitted to “define the scope of its power merely by arguing that a provision is ‘necessary’ to avoid the negative consequences that will potentially flow from its own statutory enactments.” Op. at 62–63; see also Op. at 60 (positing a difference between the mandate being “used to implement or facilitate enforcement of the Act’s insurance industry reforms” and it “being used as the means to avoid the adverse consequences of the Act itself”).

Now it’s an interesting argument, but there’s just no way to square it with Comstock. In that case, the federal criminal justice and prison systems -- programs enacted pursuant to Congress’s enumerated power, including the Commerce Clause -- caused “negative consequences”: uprooting sexually dangerous offenders from their home states, moving them across the country, and then releasing them at the end of their sentences into communities that were unequipped or unwilling to deal with the dangers they posed. The Court held that a federal civil commitment law was a Necessary and Proper means of effectuating the enumerated powers pursuant to which the underlying criminal laws were passed -- even though the problems the commitment regime addressed were caused by the operation of those laws. Indeed, Justice Alito’s concurring opinion was pretty explicit about the point:

The only additional question presented here is whether, in order to carry into execution the enumerated powers on which the federal criminal laws rest, it is also necessary and proper for Congress to protect the public from dangers created by the federal criminal justice and prison systems. In my view, the answer to that question is “yes.”

Posted by: a poster | Feb 1, 2011 11:49:32 AM

"A Poster": Not to make this an echo chamber, but I think you are right that Judge Vinson goes too far when he says that a measure that is, in Congress's view, necessary to avoid a law's bad consequences cannot be "necessary and proper." I *think* what he had in mind, and was worried about, was a kind of disingenuous on Congress's part -- that Congress might think, "we can expand our regulatory power by enacting sloppy and harmful laws, and then adding to those laws additional measures that become 'necessary', and therefore constitutionally authorized, because of their fix-the-problems-we-created quality." I guess my view is that, if Congress is doing *that*, then we really are sunk. But, I'm not sure a court is going to be able to distinguish reliably *that* from other kinds of downside-risk-reducing legislation that we *do* think Congress has the power to enact.

Posted by: Rick Garnett | Feb 1, 2011 2:02:28 PM

Rick H. wrote: "Congress can conscript people only when such conscription is really necessary for the execution of some enumerated power."

But "necessary", in fact, has been interpreted to mean only "convenient," and "convenient," in turn, is defined by Congress's view of convenience, with the Court deferring to it. So "necessary" has no limiting weight at all, and if Congress can conscript people when it's necessary to do so for the execution of some enumerated powers, and enumerated powers includes the power to regulate inactivity, then yes, indeed, Congress can do whatever it wants, and Judge Vinson is correct to conclude that this cannot be a "proper" interpretation of Article I.

Posted by: David Bernstein | Feb 1, 2011 3:06:52 PM

While Article I has a "necessary and proper" clause, Article III (which does not specify either judicial review or judicial supremacy) does not.

Posted by: Shag from Brookline | Feb 1, 2011 3:07:24 PM

"How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end?"

--We can easily conceive of such a case:

If instead of raising money via the individual mandate, the ACA funded itself by closing military bases and quartering soldiers in our homes. That would be a legitimate purpose, outside congresses power compel.

Legitimate ends don't elevate illegitimate means. In the same way that the legislature can't try raising an army by establishing a national religion, the Federal government can't regulate the insurance industry by compelling passive individuals to engage in economic activity against their will.

Judge Vinson has interpreted N&P relative to what's required on the whole, but you've interpreted it relative to what's required for a particular piece of legislation. Your view is counter to Lopez --and it is indeed infinite if the necessity-criteria can be drawn only from what the statue itself requires. How could we ever assail any well-crafted law?

Posted by: Amelica Enders | Feb 1, 2011 8:37:39 PM

Amelica Enders writes:

If instead of raising money via the individual mandate, the ACA funded itself by closing military bases and quartering soldiers in our homes. That would be a legitimate purpose, outside congresses power compel.

Righto, I agree 100%: If Judge Vinson had made an argument -- any argument, I'm not picky -- that conscripting private persons is somehow implicitly a forbidden means, whereas forbidding persons from acting is O.K., then I'd have no complaint with the opinion. I would not necessarily agree with it, but, at least, I'd respect it as a reasoned piece of work.

But I look in vain for any argument that the Constitution contains some implied right against being conscripted to act. Judge Vinson does not attack Arver v. United States, 245 U.S. 366 (1918), jury duty, being subpoenaed to testify, being forced to fill out income tax returns, etc. He does not quote Daniel Webster's 1814 speech denouncing the idea that Congress has the power to "take children from their parents and parents from their children and compel them to fight the battles of any war which the folly or the wickedness of government may engage in." He did not make any libertarian noises whatsoever that conscription, in particular, is more of a forbidden means than chartering a bank or burning Roscoe Filburn's crop. That's what one would have to do in order to argue, as Amelica Enders attempts to do, that conscription is like quartering soldiers in one's house -- a violation of a side constraint on Congress' powers.

Instead, Judge Vinson relies on this notion, utterly bewildering to me, that somehow conscription is more remotely connected to the ACA's legitimate goal than other regulatory mechanisms. This "remoteness" point, I do not get. The nexus between the individual mandate and ACA's goal of keeping the insurance system solvent is as tight as a rusty bolt: If there is a problem with that mandate, it has to do with its invasion of personal liberty, not its remoteness from legitimate ends.

Nor do I understand this repeated claim -- repeated but not defended by my friend and classmate, David Bernstein, above -- that, if one allows Congress to conscript people at all, then one will slide down the slippery slope to allowing Congress conscript people for any purpose. David apparently thinks that the nexus between an implied means and an enumerated end is just too tenuous to do any work. But this assertion, if true, would be equally true of ACA's prohibition on action -- say, the ban on discrimination against people with pre-existing conditions -- as a mandate to act: The "conscripting" nature of the implied means just has nothing whatsoever to do with the issue of remoteness of means from ends.

Moreover, Lopez belies David's assertion that the nexus between implied means and enumerated ends must always be deferentially reviewed: We could have strict scrutiny of implied means in areas that seem remote from properly national concerns -- say, laws regulating education, family, violent crime, and the rest. So why not invest our efforts into building up a real theory of federalism, based on what the feds ought to do and what states ought to do, rather than repeat the undefended assertion that conscription is a forbidden means?

Posted by: Rick Hills | Feb 1, 2011 9:27:48 PM

Obviously this will eventually go all the way to the Supreme Court, but the scholarly ruling by Judge Vinson was well crafted and a real boost to overturning the law. Actually, you now have to say it HAS been overturned, in its entirety, and only a successful series of appeals can save it, absent Congressional action.

Posted by: Chris Taus | Feb 1, 2011 10:32:32 PM

Rick: Your logic assumes that police authority can be transferred away from the states on the basis of statutory word-play so long the requirements are attached to enumerated federal power. So not avoid the question of what's Necessary and Proper by simply attaching the law to a more certain legislative power? Would you agree that Congress could have instead required all citizens to purchase insurance in order to maintain a ready militia?

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

If results are more essential than procedure (as you suggest) then why risk a battle with the states? Do super-majorities count for nothing?

Posted by: Calinon Pervil | Feb 2, 2011 12:05:58 AM

Hi, Rick, thanks for the thoughtful response. I could say a lot about this, but it's past my bedtime. I'll just say that (a) I don't think Lopez, in light of both Morrison and Raich, really shows that the means/end connection really has any oomph, as opposed to the distinction between economic and non-economic activity; and (b) in light of that, and given Justice Kennedy's clear proclivity to refuse the federal government a general police power, one either has to draw a line at "inactivity" is not economic activity, or concede that Congress does indeed have a general police power. If the Court rules otherwise, why not re-argue Morrison based on the idea that cracking down on domestic violence is essential to reducing health care costs in the U.S., given the physical, emotional, and psychological toll? If NOT buying health insurance is regulatable as economic activity, then hitting your wife should be as well. It would make more sense, I agree, if the Court would instead take the "necessary" part of necessary and proper seriously. But Raich (and indeed decades of precedent) shows that a majority of the Court does not.

Posted by: David Bernstein | Feb 2, 2011 12:13:41 AM

The power of Congress to force people "to serve on juries, testify as witnesses, and register for the draft" seems to extend from the duties of citizenship. Unlike the Articles deriving their authority from the states, the Constitution derives its authority from the people.

Posted by: Adam | Feb 2, 2011 1:01:54 AM

David Bernstein brings to mind SNL's "Church Lady" and "her" "How convenient" and the Gershwins' "It Ain't Necessarily So." Did David consult Webster's 1789 dictionary?

Posted by: Shag from Brookline | Feb 2, 2011 6:03:42 AM

"one either has to draw a line at "inactivity" is not economic activity, or concede that Congress does indeed have a general police power"

Why exactly? The line's utter artificiality in this context ("activity" is going on -- people are making health decisions, many involving economic activity) only underlines it's questionable validity. The Morrison slippery slope fear can be stop via means/end and close connection. Domestic violence/not commerce; insurance/health decisions = commerce.

Adam speaks of "duties of citizenship" -- see Jack Balkin's argument at Balkinization yesterday on that point. Such duty includes following regulations promoting interstate commerce regulation and paying taxes that promote such ends. Citizens want to not leave the sick to die on the streets etc. They have a responsibility in return.

Posted by: Joe | Feb 2, 2011 10:12:45 AM

"Health decisions" should be understood to mean insurance related health decisions. Not anything under the sun that might involve health. Insurance or buying health care via economic transactions (self-medicating) w/o it is "commerce" and closely tied to the thing regulated.

Anything under the sun, like the domestic violence in Morrison, can somehow be connected to it. Not good enough. The close means/end economic hook here is a limit, while the "inactivity" line is artificial and not one at all.

Posted by: Joe | Feb 3, 2011 2:36:40 PM

[The following comment is from Randy Barnett, who had trouble posting the comment from his computer. He e-mailed it to me, and I am posting it on his behalf]:

Rick (& Rick),

Rick writes "How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end?" Where does Printz fit into the structure your analysis? Didn't Congress have a rational basis for believing that mandating local sheriffs to run background checks was means that was necessary to its legitimate end of regulating the interstate commerce in guns? Was there any express prohibition against employing such "means"? Is the "letter" of the Tenth Amendment limited to the protection of state sovereignty? Indeed is "sovereignty" (state or otherwise) mentioned anywhere in the Constitution? (Also notice Justice Scalia's discussion in Printz about the unprecedented nature of state mandates first held unconstitutional in the 1990s in New York. Before New York and Printz, there was no "anticommandeering" principle because state commandeering had not been done before the 1970s)

This is NOT a question about the differences between "commandeering the states" and "commandeering the people." -- i.e. your second paragraph. We should discuss this separately. I have questions about your position on that too. My question is simply how Printz fits the syllogism you wrote in your post. I assume you do have an answer to this question, but I think that articulating that answer may be helpful to this discussion and I am very interested to hear it.

Aside to Rick: is this really how you want to talk about a senior sitting federal judge (who, by the way, I have never met): "By using Article I doctrines to advance a libertarian agenda, Judge Vinson (and his chief handler, Randy Barnett) risks discrediting the former by not defending the latter plainly and coherently." You really don't think his 78 page article, or the man himself, merits any respect? Do you have any personal knowledge of the Judge's political agenda (because I certainly do not)?

Posted by: Rick Hills | Feb 5, 2011 10:31:53 AM

The final aside is pretty petty. If his ruling falls on the merits, and many underline it does -- patently so -- it does not "merit any respect." Or, not much. Barnett, who is not above sharp talk when debating subjects, suddenly is getting all "concerned" here.

The authors here are too polite to say so, but that's unconvincing.

Posted by: Joe | Feb 21, 2011 10:51:32 AM

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