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Tuesday, April 19, 2011

If you said the ACA was unconstitutional, what would be your Con Law grade?

I was reading over this piece on the debate at Harvard over the constitutionality of the Affordable Care Act (ACA).  It got me to thinking: what if you are a Con Law professor (I'm not), and you talked about the ACA in class.  You explained that you believe (like many, if not most, of our nation's Con Law professors) that the ACA is constitutional.  Not only that, but you think the arguments for its unconstitutionality are pretty weak, given past precedent and the structure of our government.  And then, on your exam, you have a question directly asking about the constitutionality of the ACA.  Or maybe you have another hypothetical act where Congress requires everyone to buy at least 10 pounds of broccoli every year.  How do you grade it?

I'm asking because right now 50% of the district courts considering the matter have found the ACA to be unconstitutional.  At the same time, as I indicated above, my rough guess would be that most Con Law professors think the act is constitutional -- not only that, but it's clearly constitutional.  If a student submitted an answer that mirrored Judge Vinson's opinion, how would that be graded by someone who thought the opinion was clearly wrong?

I'm sure this sort of question comes up all the time in Con Law, and I may be naive to think that the ACA's constitutionality would be a rare example of the problem.  But I guess I think it might be different because (1) many people seem to think that the act is clearly constitutional, in a more definitive way than most open questions, (2) many people seem to think that Judge Vinson's reasoning is fairly suspect, in a more problematic way than other opinions on open questions, and (3) the question is still very much open, and the Supreme Court could adopt Judge Vinson's opinion when it finally addresses the matter.  Is it possible that a student could get a bad grade and yet be right about the ultimate result?  And if so, is this a problem?

Posted by Matt Bodie on April 19, 2011 at 11:51 PM in Constitutional thoughts | Permalink


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Matt, I don't see anything conceptually problematic about saying that (a) an answer is clearly wrong based on existing law but (b) the Supreme Court might adopt that answer anyway. We all recognize that the Supreme Court departs from precedent at times. So long as an exam question asks students to apply existing law, what the Supreme Court might actually do is irrelevant.

Posted by: Orin Kerr | Apr 20, 2011 1:08:33 AM

Yes, yes, and I know that comes up in any law-related course. But I still cling to the notion that there's something a little different here, if not in type then at least in degree. There's a strong segment of con law folks (led by "mastermind" Randy Barnett) that champions an interpretation of the Constitution that many other con law folks think is flatly, grossly, maybe even undeniably wrong. But it has traction in the district courts. It's different than many of the other controversial topics, I think, in that there's more agreement about what a "close" case is in those realms. You might think the Carhart opinion's reasoning is poor, for example, but you can get there from Casey. Maybe the best analogy is Bush v. Gore -- if a student had used the Bush v. Gore analysis prior to the decision, how would it have been graded by most con law profs? But that case is more sui generis and overtly political. The ACA stuff has a deeper pull -- it's more about competing and incompatible visions of the role of the federal government. The ACA unconstitutionality argument is arguably more unsupportable, based on precedent, but is more theoretically and philosophically justifiable.

Maybe I should retitle this post: "Would Randy Barnett Fail Your Con Law Course?"

Posted by: Matt Bodie | Apr 20, 2011 1:43:20 AM

I wonder if this boils down to the difference between (a) how a student of the law might try to learn and apply existing law and (b) how an influential voice in the legal world might try to harness a political movement to change common understandings of what the law should be.

Posted by: Orin Kerr | Apr 20, 2011 3:01:05 AM

Well, I can actually speak to this, as I'm a student who wrote that the ACA was unconstitutional on a certain non-Barnett Georgetown professor's Con Law exam. He gave me an A. But frankly, that seemed to be the professor's view too, and I largely regurgitated the analysis he hinted at in class, along with what Barnett's written. Since writing that exam, I no longer agree with what I wrote, after having written some of Prof. Kerr's postings over at Volokh, which have convinced me that the ACA's probably constitutional under the Necessary and Proper Clause, if not necessarily the Commerce Clause. That said, Judge Vinson's opinion, for all its flaws, would make, in short form, a respectable answer on an exam, or at least I'd think so. I don't think he's plainly wrong; Wickard is perfectly distinguishable, as is Raich, Lopez does say 'activity,' and there are all those worrisome broccoli hypos. Cabining Comstock is harder, but it's not impossible to make a decent, if probably incorrect, argument, that Lopez and Morrison imply, without articulating, some limitation on the Necessary and Proper Clause when the commerce power is invoked - or otherwise, why weren't those statutes upheld under the Necessary and Proper Clause? I do find it a little hard to see what purpose all our complex Commerce Clause jurisprudence serves if, all along, there was a simple means/ends test on which Congress could always fall back. But there must be something very basic I'm missing.

Posted by: Asher Steinberg | Apr 20, 2011 3:06:56 AM

Orin, I don't think that distinction works. Randy has written numerous times that he is NOT making a normative argument, that he is saying that under existing precedent the health care law is unconstitutional. So if Randy was your student and you wanted him to "learn and apply existing law," he would presumably write the exact same things as he is writing now. And then it seems your answer to Matt's question would be, yes, you would fail Randy Barnett in Con Law...

Of course, what a real law student would do (I know I did) is write the answer that he thinks the professor wants to hear. So I guarantee that virtually every student in Randy's class would write the health care law is unconstitutional, and virtually every student in Orin's class would write the health care law is constitutional. In this sense Matt's question is unrealistic. The problem is not that a student could get a bad grade and yet turn out to be "right" (where "right" is defined by 5 votes at a point in time with a certain political configuration of justices), it is that students often feel the need to disguise their true beliefs in order to get a good grade.

Posted by: TJ | Apr 20, 2011 4:55:22 AM

After 18 years of teaching constitutional law, I have come to the conclusion that any position likely held by a Justice currently on the United States Supreme Court is fair game. I regularly give A's, for example, to students who agree with decisions and rationales (whether held by a majority or by a particular Justice) that I quite strongly believe are unreasonable interpretations of law and precedent. But since I am aware that I am not the measure of all things, and that today's minority position may yet become tomorrow's majority, all I ask of students is that they fully explain their position in terms of the cases and materials we discussed in class. This includes acknowledging counter-arguments (and counter-readings of precedent).

What I would not do, however, is deny a top grade to a student simply because they come to a conclusion that, although held by one or more members of the current Court, is nevertheless a position I find remarkably wrong. If it's got a vote on the current Court, it's presumptively within the realm of acceptable answers on a Con Law exam.

Posted by: Kurt Lash | Apr 20, 2011 9:00:46 AM


I don't teach Con Law, so any student who tried to write that the ACA was constitutional would get an F for being unable to remember what course he was enrolled in. More broadly, I try not to test on questions if I have telegraphed my feelings on them. And if I do, I'm contrarian enough to look particularly skeptically on answers that seem to be parroting back to me what students think I want to hear.


It seems to me that the question isn't what is "acceptable" in the abstract, but rather what you decide to test on for purposes of grading your students. That is, there are several different questions you might be asking on your exam: 1) To apply precedent faithfully as possible, 2) To say what the student would do if he or she were on the Supreme Court, 3) To say what the student things the answer should be if there were no precedent at all, etc. It seems to me the question is what you see as valuable to test on, not a broader question of what determines legitimacy in legal discourse. That's my sense, at least.

Posted by: Orin Kerr | Apr 20, 2011 11:32:45 AM

Oh, and I should add on the broader question that TJ is right: Students generally try to mirror back what the professor says, which is often the best strategy for getting a high grade. Of course, that's not too different from practicing law, as lawyers try to mirror back what the judge thinks in order to have the best chance of winning.

Posted by: Orin Kerr | Apr 20, 2011 11:41:54 AM

I've always viewed statements of the form "Argument X would receive a failing grade in my class" as in the same category as "X is judicial activism" or "X is the product of special interest lobbying" -- that is, as a sort of reverse puffery, an expression of strong disagreement that is otherwise devoid of content.

Posted by: Bruce Boyden | Apr 20, 2011 11:42:54 AM

I suppose it depends on how the question is worded, but aren't the best answers going to be those that, as Kurt suggests, acknowledge counter-arguments? It's been a while since I've taken law school exams, but I seem to recall a lot of my exam answers across courses being in the form of "The best arguments for position X are _____, and the other side would likely argue___" rather than, "Position X is correct because ___"

Posted by: Wannabe | Apr 20, 2011 11:52:25 AM

Orin, touche, but Matt's question is hardly limited to health care or Con Law--it just happens to be an area where people are particularly strongly divided, with each side accusing the other of not being wrong but beyond-the-pale-wrong. And yes we should all try (and I too try) and avoid giving an unfair advantage to students who just parrot back our own views -- but I think it safe to say that students do not trust professors much on this, and with my own experience as student still reasonably fresh in mind I can't say that they are unjustified in their thinking.

In my mind, your "apply precedent faithfully" option seems to suggest a very formalist view of law that says there is one right answer if that is how the question is framed. But I think almost everyone except Ronald Dworkin will accept there is often more than one right answer. Now the question becomes how we define the range of acceptable answers. There is an obvious temptation to have the range centered on our own view of things (which most people work to counteract with varying success).

Posted by: TJ | Apr 20, 2011 12:00:37 PM

As a Con Law prof currently grading final exams and as one who has blogged and written that the ACA is constitutional under current caselaw, I tend to agree with Orin but with an important distinction. On a final exam, the actual conclusion -- whether a law is constitutional or unconstitutional -- is unimportant to me; I deliberately create fact patterns that are "close to the line," where reasonable jurists could go either way. What matters is the student's analysis and defense of why the proposition of law announced in case X leads to his/her conclusion (and why a contrary precedent is distinguishable). Hence, while I didn't test on the ACA (because, like Orin, I don't test on hypos or statutes that we've discussed in class so as to avoid the "parroting" problem), I could see giving an A to a student who makes a structurally sound argument for why current caselaw condemns the ACA and an inferior grade to a student who makes a poor or incoherent argument for why it is constitutional. But, Matt, your post seems one-sided, questioning liberal con law professors' grading policies; are you equally worried that conservative profs might give a poor grade to students who support the constitutionality of the ACA?

Posted by: Norman Williams | Apr 20, 2011 12:10:22 PM

TJ writes:

In my mind, your "apply precedent faithfully" option seems to suggest a very formalist view of law that says there is one right answer if that is how the question is framed. But I think almost everyone except Ronald Dworkin will accept there is often more than one right answer.

I don't mean it that way. I think there are two different isues: What kinds of questions we're asking, and what kind of answers are available. In my view, we can all agree to put aside our own policy preferences, and our own personal theories, and just ask where the precedents seem to take us. If we do that, we will then encounter situations in which there are clear answers, legal questions for which there are no clear answers, and legal questions for which there are no answers. Put another way, deciding to apply precedent faithfully does not imply that the precedents will suggest an answer: It just reflects a decision to look at those precedents seriously, honestly, and fairly, to see if they happen to do so.

Posted by: Orin Kerr | Apr 20, 2011 3:02:23 PM

Well, I guess I'm reflecting my impression that, as of last year, Randy Barnett was acknowledging the "fringe"-ness of his position, at least in terms of whether the Supreme Court would adopt it. So it seems to me that someone who thinks the ACA is unconstitutional would recognize that it's a harder case to make. But of course, a Barnett-ish figure could be moved to give a lower grade to someone who said the case for unconstitutionality is ridiculous, even though a number of liberal law profs have said something to that effect.

I tend to like contrarian answers as well, as I think it shows independent thinking. But contrarian can veer off into "creative but unlikely" and then to just plain "wrong." This case interests me because some profs would put the unconstitutionality argument into the "wrong" category, I think, even though a segment of the population thinks it's the right answer.

Posted by: Matt Bodie | Apr 20, 2011 3:11:30 PM

Well, I got an A from Barnett, and his test was something like: do an analysis on such and such regulation based on (a) pre-Civil War case law, (b) post-Civil War case law, (c) New Deal case law, and (d) modern case law. I'm pretty sure for the latter two I said the regulation was constitutional.

Posted by: q | Apr 20, 2011 5:15:56 PM

Well, I can agree that if we all agree to put aside the policy preference gloss, there tends to be a narrower range of potential answers. But I think the problem Matt raises illustrates the limit of that principle. What we have is a situation where one prominent constitutional scholar says the most faithful application of precedent requires X, while others say that the most faithful application of precedent makes X frivolous. Unless you say that one or the other side is lying about their descriptive view--e.g. Randy secretly thinks that the health care law is constitutional under the best reading of existing precedent but won't say that in order to advance his ideological agenda--then we are back to Matt's original question of what to do with that kind of ideological range. The easy solution, which everyone seems to be giving, is "don't give the exam, and if you do, grade it fairly." But it is easier said than done.

Posted by: TJ | Apr 20, 2011 5:29:14 PM

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