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Monday, December 19, 2011

More on Framing the Con Law Course Around the ACA Litigation

Further to Michael's post about using the healthcare litigation as a frame in teaching con law this semester, I wanted to discuss some other benefits of doing so.

First, some background.  Many, probably still most, con law professors begin their con law courses with Marbury v. Madison.  I did until recently, and am still unpersuaded by Sandy Levinson's arguments against doing so.  But for the past couple of years I've switched to using the Heller decision as my first case.  It seemed to me to offer a nice introduction to a host of issues covered in con law, without the problems--the time suck, the temptation to use the case to show how clever the professor is, and so on--entailed in starting with Marbury.

But I had already decided before Michael's post to switch to leading off with the ACA litigation in the coming semester--not just the 11th Circuit decision, but several of the major appeals court decisions, as well as, eventually, some of the briefs and the oral argument--and returning to it from time to time as a framing device for the class.  The problem with Heller was that although much conventional constitutional argument uses a variety of standard methods--text, history, precedent, structure, tradition, policy, and so on--the Heller opinions are largely historically based.  Neither my students nor I have the wherewithal to deal with those questions well or quickly.  And it locks us into a discussion of originalism rather too much than I want.  

The healthcare case, I think, will be an even better platform.  For one thing, it's very timely, and my students generally respond well to using timely litigation in class.  For another, and this is a point that's probably been overlooked in some of this dicsussion, it centrally involves a statute.  Most constitutional litigation centers on statutes and involves a good deal of statutory interpretation.  Granted that this legislation is too large and unwieldly to effectively examine in class, but one can certainly cherry-pick, and thus force students to see that statutory interpretation is an essential part of constitutional interpretation.  Third, it raises, of course, a host of relevant issues for a standard first-semester con law course: structure, federalism, congressional power and its limis, how and where to find and make "new" arguments on "new issues," the effect of prior precedents, preemption, individual liberty, and so on.  Finally, especially because of how much this case is likely to turn on past Commerce Clause precedents, without ignoring questions of the original meaning or expected understanding of the Commerce Clause, the healthcare litigation is better than Heller at pointing students to a key source in constitutional argument: common-law-like reasoning from prior precedents of the Supreme Court.  (And, of course, this also leaves open the possibility of discussing how much those prior precedents should matter and whether common-law-like reasoning has any r0le in constitutional interpretation, and what role it should have.)  I'm really looking forward to this semester of con law and I think my students will get a lot out of it as well.


Posted by Paul Horwitz on December 19, 2011 at 08:11 AM in Paul Horwitz | Permalink


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Dear Marty: Thank you! On your last point, I think there is some value in starting with the ACA stuff even if you haven't covered the other material -- not because students will get it all at that point, but because with any skill, the professor can lead the students of their own accord to naturally ask the very questions that are at issue, not only in these cases but in the con law course as a whole. That's what I did with Heller; I had the students themselves come up with questions about federalism, incorporation, and so on. And it's what I plan to do with the healthcare cases; we can then come back and revisit them as they get the caselaw under their belts.

Second, please, please email me your materials! I would love to have them, and I'm grateful for your generosity in making them available. Please let me know if there's anything I can do for you in return -- at the very least, for example, I could give you feedback on what worked and what didn't. Best, Paul ([email protected]). Happy holidays.

Posted by: Paul Horwitz | Dec 19, 2011 9:43:35 AM

For what it is worth, I taught it this past semester in my first-year ConLaw class, presenting it at the end of the Commerce Clause, Necessary & Proper Clause, and Taxing/Spending Clause parts of the course, and after an intensive study of M'Culloch (on which I spend far more time than Marbury). I pulled together various materials from the briefs and courts of appeals decisions -- segregated by argument -- which I'd be happy to share with anyone, although I suspect that the merits briefs of the SG, Paul Clement and Mike Carvin/Randy Barnett (to be filed beginning January 6th) are likely to sharpen the arguments considerably for those teaching the case this coming semester. My materials cover the three principal arguments concerning the so-called "individual mandate"--Commerce Clause; N and Taxing power--but they do *not* cover the Dole "coercion" issue w/r/t the Medicaid amendment; the statutory Tax Anti-Injunction Act question; or the issue of severability, all of which we discussed in class, but much less comprehensively than the merits of the "mandate." From what I can tell, the students were really excited about covering it while the case was percolating. (We comprehensively covered Zivotofsky, too -- a fabulous teaching case on SOP.) But I don't know whether it would have worked as well had I introduced the case before discussing M'Culloch, Lopez, Raich, Comstock, Dole, et al.

Posted by: Marty Lederman | Dec 19, 2011 9:37:53 AM

Glad to oblige, Emily, although usually I'm late with my syllabus!

Posted by: Paul Horwitz | Dec 19, 2011 9:18:05 AM

Hi Paul--I am thinking of doing something similar (though maybe not to quite the same extent), and would love to see your syllabus, if you don't mind sharing. Thanks! Emily Waldman ([email protected]).

Posted by: Emily Gold Waldman | Dec 19, 2011 8:52:01 AM

His readers went wild over that particular post. It would be interesting to hear more of your thoughts.

Posted by: CHS | Dec 19, 2011 8:45:09 AM

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