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Friday, January 20, 2012

Does "No Commandeering the People" Exist?

Of all of Randy Barnett's arguments against the individual mandate, which he has developed assiduously and succeeded very well in bringing, to paraphrase Larry Lessig (back when he did constitutional theory) into the realm of the contestable, the one I find the weakest and most curious is his argument that the mandate violates a constitutional principle forbidding the "commandeering of the people."  Nevertheless, he gives the argument a clear and lengthy exposition today in a post on the Volokh Conspiracy, and it's worth reading.  (For a longer treatment, see this article.)  He argues that just as the Court accepted in Printz and New York v. United States an anti-commandeering principle with respect to some otherwise valid Commerce Clause laws that infringe on particular aspects of state sovereignty relating to the political process and structure in those states, so, by virtue of the language referring to the people in the Tenth Amendment, it also prohibits mandates that "commandeer the people."  

It's a clever argument, but one that I think was far afield from anything contemplated by either of the principal opinions he draws on.  Those opinions were about key structural aspects of state government and state sovereignty, which in turn serve to preserve political accountability and individual liberty; they were not about individual liberty in any direct fashion.  Quite unlike in those cases, when the federal government, through one of its enumerated powers, directly "commandeers" the people by demanding some action (or, really, requiring a tax penalty when that action is not undertaken), there is no blurring of the lines of political accountability.  Everyone understands whom to blame.  Nor, as in Printz, is there any question of separation of powers: the mandate will be enforced by the Executive Branch, and the people will know it.  To read those cases as so much as implying a rule against "commandeering the people" is, I think, an unfaithful reading.  (Although I do find his textual argument from the Tenth Amendment interesting.)  

A couple other things are curious about this argument.  For one thing, Barnett proceeds as much or more by way of analogy than text, arguing that "[t]he principle that the people may not be commandeered is reflected in several other constitutional provisions," such as the Third, Fifth, and Thirteenth Amendments.  So we are squarely into the penumbral reading style of Justice Douglas, or the "essential postulates" (ie., as I write in a humor piece elsewhere, "made-up stuff" not written in the Constitution) approach of the latter-day Court.  I would have thought, though, that the fact that these particular provisions say what they say and not something else, as well as the fact that they are all specific side-constraints on what is otherwise apparently permitted by the Constitution, is better evidence that a fair legal reading of the text should read those provisions as particular, not illustrative.  I am also struck by the fact that Barnett's post recognizes that "line drawing" is a "pervasive" problem in all of the law, which runs against his general insistence on line-drawing (more particularly, on judicial line-drawing).  And he concedes that his reading of the anti-commandeering principle is entirely "novel."  Novelty, of course, has been a hotly ridden hobby-horse for some time in Barnett's arguments against the mandate.  

In his post, Barnett says that the only reason the principle is novel is because the mandate itself is novel.  He attempts to reassure the Court that given the "unprecedented" nature of the mandate, his "no commandeering the people" rule, although fully applicable here, will be the Bush v. Gore of essential constitutional postulates, good for one trip only.  This is a nice jiu-jitsu move, but I think the general principle he has argued elsewhere still holds here.  The fact that he is advancing a wholly novel constitutional principle, and arguing that it is a judicially applicable principle, surely counts against it.  Indeed, given the extent to which he views this principle as a broader implication from the constitutional text as a whole, it is far from clear why it would not have appeared in some guise or other before, so I think his general anti-novelty bias is far more damaging to his anti-people-commandeering rule than to the law he seeks to attack with it.

In short, I find the "commandeering the principle" argument novel, unprecedented, and unpersuasive.  But for those who are interested in it, Barnett's post today at least presents the argument briefly and clearly.  Comments are welcome here; they are also, rather unusually, also permitted at Barnett's post.   

Posted by Paul Horwitz on January 20, 2012 at 09:48 AM in Paul Horwitz | Permalink


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As I noted a couple of times on this blog (here and here), the "no commandeering the people" argument ignores the central argument of Printz -- namely, that commandeering states to regulate private persons undermines political accountability, because those private persons will blame state officials rather than federal officials for the regulation.

The merits of this "political accountability" aside, the argument obviously has no application to commandeering of private persons to buy insurance: How will their "accountability" to their non-existent electorate be undermined by the individual mandate in PPACA?

Posted by: Rick Hills | Jan 26, 2012 11:01:03 AM

I agree with Paul Horwitz that Randy Barnett's "no commandeering the people" argument doesn't succeed. Some of my reasons are here http://works.bepress.com/patrick_brennan/69/

Posted by: Patrick McKinley Brennan | Jan 21, 2012 5:33:53 PM

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