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Friday, May 13, 2011

Opportunistic Federalism

One of the current memes in the effort to preserve the ACA’s individual insurance mandate is the claim that opposition to the ACA only purports to rely upon theories of federalism, but is really driven by a libertarian effort to oppose government regulation at all levels—both state and federal.  According to this view, opposition to the ACA is just the first step in restoring Lochnerian libertarianism.  For example, the libertarian commitments of Randy Barnett are regularly referred to in a manner suggesting this is the “real” reason Randy has (rather effectively thus far) led the debate against the ACA, and not because Randy really believes that the federalism-based arguments presented in his essays and briefs.

Although predictable, there are a number of problems with this attempt to discredit the current academic leader of the opposition.  First, and most obviously, even if true, it says nothing about the merits of his arguments or whether the Supreme Court should rely on such arguments and strike down the statute.  Secondly, there is nothing inconsistent in believing that the ACA violates both principles of federalism and basic principles of justice from the perspective of a libertarian.  The Court could adopt one without adopting the other.  Finally, anyone who knows Randy knows that he is absolutely serious about his arguments.

But if one is to indulge in theories of opportunistic federalism, can’t the same claim be made against proponents of the ACA? 

For example, the criticism of Randy, as I understand it, is that his theory of the case leaves New Deal precedents in place but (somehow secretly) lays the groundwork for their ultimate erosion.  But one could equally claim that the proponents’ theory leaves federalism precedents like Lopez and Morrison in place, but lays the groundwork for their ultimate erosion.  This, too, would be opportunistic federalism—pretended obeisance to federalist precedent (in order to avoid the claim that your theory leaves government power unlimited), while pursuing a theory that ultimately undermines those same precedents.

So here’s my question:  Is there anyone who supports the constitutionality of the ACA and but also supports the theory (and not just the doctrinal framework) of federalism which informed Lopez and Morrison?  As I understand it, every argument in favor of the ACA insists that the standard of review for allegedly federalism-violating statutes is no more than rational basis review.  This, in turn, is driven by a theory of subsidiarity in which the national legislature has the discretion to determine when a local matter has risen to the level of a national concern (due to congressionally perceived collective action problems affecting commerce, etc).  It is decidedly not the role of the Supreme Court, according to this view, to test whether there actually is a sufficiently significant national problem.  So long as Congress avoids violating an individual right listed in the Constitution, issues of “sufficient need” are left to the political process.  This is not, of course, the approach of Lopez and Morrison (if it were, the cases would have come out differently).

If, as I suspect, there is no “federalist proponent” of the ACA, then aren’t we dealing with an opportunistic nod to Lopez and Morrison as part of an effort to not only save the ACA but also to replace the federalist theory of those cases with a non-judicially enforced principle of subsidiarity?


Posted by Kurt Lash on May 13, 2011 at 11:57 AM | Permalink


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Incidentally, regarding the Necessary and Proper Clause, Lopez did allude to it by endorsing the following statement by CJ John Marshall: "It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary."

That last word is pretty clearly an allusion to the NP Clause. And if Congress lacks power to regulate completely intrastate activity, it's hard to see why or how Congress could legitimately regulate decision-making activity that is merely mental. I don't see how one could support the rationale of Lopez and Morrison, and also support the individual mandate, but even if that feat is possible, has Orin really successfully attempted it?

Posted by: Andrew | Jun 4, 2011 12:49:07 AM

I'll chime in late.....

In the blog post above, Kurt asked: "So here’s my question:  Is there anyone who supports the constitutionality of the ACA but also supports the theory (and not just the doctrinal framework) of federalism which informed Lopez and Morrison?"

Orin claims to fall into that category, but I'm not convinced that Orin does.

Orin has written: "If there is a federalism issue that doesn’t have a lot of practical importance, there’s a decent chance five votes exist for the pro-federalism side." So, it seems to me that Orin only supports the theory and doctrinal framework of Lopez and Morrison if and when there's not a lot of practical importance. I have never heard Orin say that the individual mandate would properly be held constitutional if such holding had little practical importance, and instead the practical importance of the individual mandate seems to be the primary reason why Orin argues constitutionality.

Note that Morrison speaks of Congress's ability to regulate "conduct or transactions", and Morrison does not say "conduct or transactions plus any non-conduct and non-transactions that have practical importance".

Posted by: Andrew | Jun 3, 2011 11:37:20 PM


I mostly agree with the view that you claim that Justice Kennedy holds. At the same time, as a former Kennedy clerk, I think your assessment of Justice Kennedy's views is simply wrong: I don't think you understand Justice Kennedy's approach to the proper scope of federal power.

Posted by: Orin Kerr | May 16, 2011 12:51:02 AM

With the continuing reminder that Joe is the True Scotsman, let's recap.

I wondered whether any proponent of the ACA accepted the reasoning, and not just the precedential status of cases like Lopez and Morrison. I explained the "reasoning" I referred to was a view of federalism that required a stronger degree of judicial review than the traditional deferential standard of review applied in cases like Lee Optical. When challenged about whether this was an odd or idiosyncratic view of the reasoning in Lopez and Morrison, I pointed out that this was the view of Lopez and Morrison held by Justice Anthony Kennedy (see especially his Comstock concurrence). You can also find this same view of the federalism reasoning in Lopez written by scholars as varied as Larry Kramer and Lynn Baker.

Having established what I meant by "accepting the federalism reasoning of Lopez and Morrison," we then considered whether any current supporter of the ACA met this criteria. As far as I can tell, no one has been identified. Orin won't answer the question. Eugene's embrace of Lopez-style federalism apparently cannot be found. No one even dares to mention Koppelman or Balkin or any of the briefs actually filed in support of the ACA.

And, no, Charles Fried does not fit the criteria. Feel free to disagree, but I think his statements in his Harvard Forward "Revolutions" alone take him out of the running. I am quite certain that Justice Kennedy would not consider him a proper spokesperson for federalism, given that Fried has singled out Kennedy's view of federalism as deserving particular criticism. Charles may believe in limited government, but he affirmatively rejects the concept of reserved state sovereignty--the concept upon which judicially reviewable federalism is built.

None of this is difficult or obscure. It does not even establish whether the ACA is constitutional or not. It was only a simple question whether any current proponent of the ACA accepts Lopez and Morrison as not only good precedent, but as also containing good reasoning regarding federalism and the appropriate level of judicial review. It is debatable, but we may have found one person--and even he expressly rejects Justice Kennedy's view of federalism and most of the federalism jurisprudence of the Supreme Court.

I find that interesting. Others may not. Thats fine.

Posted by: Kurt Lash | May 15, 2011 10:54:28 PM

I'm honored Mr. Lash, but seriously, I second Orin Kerr and others in finding your analysis flawed. That is all.

Posted by: Joe | May 15, 2011 9:17:21 PM


I'm confused by your response to me: Who here follows Justice Kennedy's view of federalism in Lopez?

Incidentally, one of the underlying uncertainties I see in your question is that it's not clear what you are asking when you ask who "supports" your theory of Lopez and also "supports" the constitutionality of the ACA. To some law professors, constitutional law is like religion: One has "beliefs" about what the Constitution truly means that are akin to beliefs as to the true God. From this perspective, a person "supports" a view if it matches their personal constitutional faith -- and asking whether one "supports" the constitutionality of the ACA is like asking whether they support a particular tenet of their religious faith.

This perspective of some theorists is quite different from the perspective of lawyers and lower-court judges, in which the relevant question is only whether one concludes that a law is constitutional or unconstitutional based on the fairest reading of existing precedents. Going back to my own responses from the beginning, I've been clear that I think the ACA is constitutional in the sense that I think the only fair reading of the cases indicates pretty clearly that the ACA is constitutional. That is, if I'm a lower court judge who has the mandate case, I will feel compelled under the precedents and principles of law that are binding upon me to vote that the law is constitutional. Such a decision would has nothing to do with my constitutional faith; it's just a question of reading cases.

Anyway, it's not entirely clear to me which version or versions of "support" you have in mind: The constitution-as-religious-faith version, the lower-court-following-precedent version, or something else.

Posted by: Orin Kerr | May 15, 2011 9:02:21 PM

I concede. Joe, you are the True Scotsman.

Posted by: Kurt Lash | May 15, 2011 8:31:14 PM

"No one who follows Justice Kennedy's view of federalism in Lopez."

With respect, many "follow" such view (or are willing to accept it as doctrine for the sake of the question, which is all that is required here) and support the ACA's constitutionality. I believe you mean "what some people like Kurt Lash want his view to be."

I don't know what "rejection of state sovereignty in McCulloch" you mean. I own his book "Saying What the Law Is," besides being familiar with the ruling. His discussion reaffirms that the ruling upheld the principles of federalism; the states have powers in their sphere but can't interfere with federal powers illicitly. Your implication supporting Marshall makes him a false Scotsman is noted.

The opposition of the "state sovereign immunity jurisprudence of the Rehnquist Court" doesn't tell me much about Lopez/Morrison, since the two are not necessary parts of each other. If he supports Judge Noonan's view on that subject, more power to him; as to the courts not having any role in determining if something is "sufficiently significant national problem," his book doesn't lead me to assume he rejects that. Again, I surely don't think we have to assume that for the ACA to rise or fall. Unlike Boerne, the case here is pretty easy.

As to the "Lochner" comment, re-reading his discussion, the book also seems to see some merit to Printz, but noting that it has some limited value in practice, especially given conditional spending.

Anyway, so Charles Fried, Orin Kerr, maybe Eugene Volokh, the people here (including myself) who are willing to accept Lopez/Morrison (and the rest) as precedent, etc. all don't count. Kurt Lash will know the True Scotsman when he sees it.

Posted by: Joe | May 15, 2011 7:59:32 PM

How about "No one who follows Justice Kennedy's view of federalism in Lopez..." Which is, of course what I was saying from the beginning. And this, by the way, may turn out to be a real problem for the defenders of the ACA.

Posted by: Kurt Lash | May 15, 2011 6:42:39 PM


In light of your response to Joe, I think you should relabel the post "No True Scotsman Believes in the Constitutionality of the ACA."

Posted by: Orin Kerr | May 15, 2011 6:24:18 PM

That's not fair. Orin identified Fried in like the sixth comment on here.

And because I didn't answer this above: Either limits on Congress's Article I powers are judicially enforceable, or they are not. I have no strong opinion on what the answer to that "should" be, but I guess if push came to shove I'd pick "judicially enforceable" by a hair. In a world where the limits are judicially enforceable, I think Lopez and Morrison were rightly decided, at least on the Commerce Clause issue, because I think they were really instances of Congress trying to exert police power under the nominal guise of regulating commerce. I think Raich was wrongly decided for the same reason. Again, I think PPACA is unquestionably constitutional because it is a clear attempt to regulate a major national industry.

Posted by: Not a prawf, but I play one on TV | May 15, 2011 5:12:29 PM

We finally have a name! Charles Fried. Who, as I am sure "Joe" already knows, embraces Marshall's rejection of state sovereignty in McCulloch, rejects the state sovereign immunity jurisprudence of the Rehnquist Court, believes "Lochnering" is an appropriate description of the court's decision in the commandeering cases, and rejects Kennedy's federalism reasoning in Lopez. Still, this has to be awarded significant points due to the apparent difficulty of the question.

Posted by: Kurt Lash | May 15, 2011 3:35:58 PM

This post opens up with a "meme" that there is some faux federalism going on when in fact the concern is generally libertarian across the board. A "problem" with this is said to be that even if true, it doesn't negate the ultimate argument. Why? If an argument is actually not given in good faith or is ultimately based on principles that go much further than even many opponents of ACA wish to go, why is it a "problem" to cite it?

I don't know how "effectively" Prof. Barnett has "led" the debate so far. Orin Kerr and Charles Fried are but two who lean right in certain ways that have pointed out the problems with his approach. But, again, if he is "leading" in a misleading fashion (such as basing things on what logically would go back to pre-New Deal times, which his writings clearly supports as the correct constitutional policy), it is notable.

The fact this is true is assumed to be fake by the post (see its tone) but from the discussions at Volokh Conspiracy and elsewhere, I find this wrong. And, the idea that all defenders of the ACA support the dissents in Lopez and Morrison is patently false. Orin Kerr points this out. I myself think they can be defended (though I think Morrison is wrong on 14A grounds and Lopez very well is better a 2A case) while showing the ACA is clearly constitutional.

Lopez singled out a local law that dealt with an issue over 40 states handled. The ACA deals with the interstate health market. Morrison dealt with something only indirectly involving commerce, federalizing a state crime. The ACA deals with the intestate health market. It is akin to Gonzalez v. Raich in this respect without being as problematic. I'd add you can support Printz and other federalist cases and support the ACA too. Local state government health personnel aren't being commandeered either.

There are federalist proponents of ACA. Is Charles Fried not a federalist? Putting him aside, that's patently false. This is not only ignored here but ignored with an edge. This sort of thing is not only flimsy reasoning, it is to be blunt annoying.

Posted by: Joe | May 15, 2011 11:02:58 AM

I'm with Orin and "not a prof."

(1) Lopez and Morrison are hard cases that depend upon one's underlying views about how proper it is to pass legislation for non-economic ends based on their substantial but attenuated effects on interstate commerce.

(2) The ACA is easily constitutional, as it is a comprehensive scheme to manage the quantity, quality, and cost of a major industry.

(3)The argument that there is something "improper" about requiring individuals to enter into commercial transactions is a plausible liberty-based argument that might well have some traction if we had continued down a Lochnerian path. It has squat to do with federalism.

Posted by: Andrew Siegel | May 15, 2011 10:11:11 AM


Your last comment makes me more certain that this post is really about your interpretation of Lopez and Morrison, not the ACA. You say you see your interpretation of Lopez and Morrison as "clear" and "non-controversial." But I don't think I've ever heard anyone describe the cases that way, and they are not what either I nor commenter "not a prof" see when we read them.

Posted by: Orin Kerr | May 14, 2011 6:54:13 PM

Correcting a typo that actually muddles things a bit: In the parenthetical in the second and third lines of the second-to-last paragraph, "(self-insurance of the non-purchase of insurance)" should read "(self-insurance OR the non-purchase of insurance)".

Posted by: Not a prawf, but I play one on TV | May 14, 2011 6:23:29 PM

Odd. I always read the main holding of Lopez and Morrison as being that an attenuated link to interstate commerce is insufficient to support a law addressing noneconomic conduct. The more meta interpretation is that Congress can't use its Commerce Clause powers to try to pass laws that are "really" noncommercial in nature (i.e., police power) but have some indirect link to interstate commerce.

(I just reread Morrison to confirm that I wasn't imagining things. I wasn't; that's still my reading. Curiously, though, Morrison says nothing about "activity" -- it talks of Congress's ability to regulate "conduct or transactions." I've not seen anyone point this terminology out in the activity/inactivity discussions in the briefing so far. Wonder why not.)

In any event, I think that under this interpretation of Lopez and Morrison, the PPACA mandate is perfectly constitutional. The conduct being raddressed through legislation (self-insurance of the non-purchase of insurance) is directly (and not inferentially) linked to Congress's attempts to regulate interstate commerce, and there is no suspicion that Congress is really trying to assert police or education or some other non-Art. I power through it. That's the reason why so many people thought these challenges were borderline frivolous. PPACA in general is unquestionably intended to regulate the (interstate commercial) health care and insurance market, and the mandate is clearly an important piece of that regulation. In other words, if you read Lopez and Morrison like I do (and that might be the wrong interpretation!), this is a really bad law to invalidate on Commerce Clause grounds.

(And in case anyone was wondering, I have not been involved in any of the ongoing litigation. I was invited to participate in the Florida litigation on behalf of one of the many parties challenging the law, but I declined because I thought [and think, if the truth be told] the claims were frivolous.)

Posted by: Not a prawf, but I play one on TV | May 14, 2011 6:19:15 PM

Since I think my theory is both quite clear and non-controversial, and presented in both my first and most recent posts, it seems we have likely reached the limits of productive discussion. I will make this my last post on this subject and let someone else have the last word.

As I stated in my first post, I believe the proponents of the ACA are using a theory of federalism which requires no more than rational basis review whenever congress is accused of violating federalist limits on national power. If you need more information about rational review, I meant "Lee Optical" (i.e., deferential) rational basis review. This view of federalism is inconsistent with the scrutiny applied in Lopez and Morrison. If this is an unconventional theory about Lopez, someone should tell Justice Kennedy (and probably everyone who actually teaches those cases in law school).

As my last post specified, what I am seeking is "any post, essay, or brief written by an academic (including yourself), that agrees with the Court's position in Lopez and Morrison that protecting federalism requires more than rational basis review (a good proxy for federalism, as opposed to subsidiarity), but still maintains that the ACA is constitutional."

Given that we've gotten this far without anyone producing such evidence, I have begun to suspect it's not there. I am happy to be proven wrong, however, and will leave it to additional posts to do so.

Posted by: Kurt Lash | May 14, 2011 5:19:31 PM


As best I can tell, you appear have a theory of what Lopez and Morrison *truly mean* that I believe is different from what most other people think those cases mean. If I'm right about that, that leaves us in a bind: You are asking us to identify a group of people who hold a set of views that includes a particular theory, but it's not entirely clear what the theory is, and it's not clear that others are aware of that view in order to have an opinion of it.

Posted by: Orin Kerr | May 14, 2011 4:35:46 PM

Orin, I'm still not sure I'm even wrong about you, much less wrong about those academics who are defending the constitutionality of the ACA. You still haven't said if you accept the federalist reasoning, and not just the outcome, in Lopez and Morrison. That, of course is what my original post addressed. The lead academic opposing the ACA has been accused of opportunistically relying on federalism precedents when in fact his actual commitments are elsewhere. My claim was that the same accusation could be leveled at the proponents of the ACA, who claim to be retaining Lopez and Morrison but in fact are forwarding a theory that is counter to the reasoning of the Court in those cases. We now know of at least one proponent of the ACA--Brian-- who openly confirms the point of my post. I'm still waiting for a single counter-example.

That fact that I pointed out that I was not aware of anyone who embraced both the ACA and the federalist reasoning of Lopez and Morrison was meant to underscore my more general point. This is an extremely rare position (which you seemed to concede by suggested people were purposely remaining silent). But other than yourself (and I'm still not sure about you), you have not named a single proponent of the ACA who embraces the federalist reasoning (and not just the outcome) of Lopez and Morrison. Truly, I would be very interested in reading where Eugene embraces the federalist reasoning of Lopez and Morrison, but regardless, I don't think anyone would view him as part of the academic effort to establish the constitutionality of the ACA. And I am still waiting for you to point me to that post where you yourself embrace the federalist reasoning (and not just the outcome) of Lopez and Morrison. I will be quite glad if you do, for it will mean that the two of us share more views than might otherwise appear in this back and forth.

But at this point, you have not been able to point me to any post, essay, or brief written by an academic (including yourself), that agrees with the Court's position in Lopez and Morrison that protecting federalism requires more than rational basis review (a good proxy for federalism, as opposed to subsidiarity), but still maintains that the ACA is constitutional. Much less have you convinced me that the main players take this view. And that, of course, was the point of the post, which started with efforts to discredit the main player opposing the ACA.

Posted by: Kurt Lash | May 14, 2011 4:03:58 PM

Kurt, as I understand your post, your claim was that there was *no one* who had the views you describe. But given that I do, and I know lots of other people who agree with me -- based on his question at the debate with Randy, I believe Eugene Volokh is one, and my sense is that Charles Fried is another -- I wonder how that changes the argument of your post. Do you now think you were wrong?

Posted by: Orin Kerr | May 14, 2011 1:38:19 PM

Thanks, Brian for your note. I think your belief that Lopez and Morrison were wrongly decided (and thus, wrongly reasoned) is widely shared among those academics who are involved in writing essays and briefs in support of the ACA. Other than Orin, I am not aware of anyone else actually constructing arguments in support of the ACA who accept the result and the reasoning of Lopez and Morrison (at least, I think Orin accepts the result and the reasoning of Lopez and Morrison). Perhaps, as Orin suggests, there are others who accept both the ACA and "federalism-as-retained-state-sovereignty," but don't want to publicly admit it. On the other hand, perhaps folks are still working through the arguments and their implications. Or, actually, perhaps most folks instinctively suspect that the arguments in support of the ACA cannot be reconciled with the federalism arguments that led to the decisions in Lopez and Morrison.

Posted by: Kurt Lash | May 13, 2011 11:14:35 PM

For the record, since I have been the most frequent defender of the ACA on this blog, my views on these matters are: 1. there is a role for the judiciary in federalism decisions, though preferably in cooperation with other branches, http://www.law.duke.edu/shell/cite.pl?57+Duke+L.+J.+1933 and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1759510; 2. Morrison and Lopez were probably wrongly decided under the precendents in place when they were adjudicated, but there are many ways to uphold the ACA without threatening either, e.g., points 3 & 4 following; 3. I agree with Orin that the ACA's incentives for purchasing insurance are easily constitutional as "necessary" ancillaries to the power to regulate insurance; 4. the ACA's incentives are also easily constitutional even under a fairly restrictive view of federal power, on the grounds that they help to overcome a coordination problem among the states, http://www.yalelawjournal.org/the-yale-law-journal-pocket-part/tax-law/the-taxing-power,-the-affordable-care-act,-and-the-limits-of-constitutional-compromise/.

Also, speaking for myself, the reason I tend to describe Randy's views on the ACA as fundamentally libertarian is because that's how he explains them in his NYU JLL article -- his response to the necessary & proper claim is that the ACA isn't "proper" in that it intrudes excessively on individual liberty.

Posted by: BDG | May 13, 2011 6:28:13 PM

My own view is that the ACA is most easily defended on the grounds that it is necessary and proper to regulating interstate commerce. My understanding is that, on their face, Lopez and Morrison are about the scope of the Commerce Clause and not the scope of the Necessary and Proper clause. So I'm not entirely sure why you see the conflict that you suggest. Can you explain a bit more?

Posted by: Orin Kerr | May 13, 2011 4:57:00 PM

Also, Orin. As one of my comments in another post earlier today mentioned, I think your dialogue with Randy Barnett at the VC have been extremely helpful to folks trying to get a handle on this debate. So I sincerely hope you post those links that explain your approach to federalism. Again, I'm not seeking a pro-ACA position that makes room for the precedents of Lopez and Morrison (which is quite common), but one which both embraces both the ACA and the "retained state sovereignty, thus heightened review" reasoning of Lopez and Morrison. If this is your position, I really do think you occupy a unique space in this debate.

Posted by: Kurt Lash | May 13, 2011 4:44:09 PM


I've explained why I think the ACA is constitutional under current law in something like 20 or 30 posts. I'm not sure what specific one you think would best fit the description. Perhaps the best place to start is my debate with Randy, starting at about the 14:30 mark:

Incidentally, in my experience there are actually lots of people that fit the category that you describe. It's just that it can really tick a lot of people off if you admit it publicy, so most don't. (One side will be upset that you approve of Lopez and Morrison and dislike the statute, and the other side will be upset that you're being disloyal and not helping the team present a unified front.) As a result, the public debate tends to feature the two sides that have matched their policy preferences and legal arguments. It doesn't mean there aren't a lot of people who haven't.

Posted by: Orin Kerr | May 13, 2011 4:40:39 PM

Thanks, Orin. My apologies if I missed the post that addresses the particular issue I raise above. Which one was it?

Posted by: Kurt Lash | May 13, 2011 3:13:27 PM

I think Lopez and Morrison are correctly decided; I oppose the ACA on policy grounds; but I think that under existing constitutional law, the ACA is pretty clearly constitutional. Perhaps you have missed my posts on this, but they're over at a blog called the Volokh Conspiracy, volokh.com.

Posted by: Orin Kerr | May 13, 2011 2:09:13 PM

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