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Thursday, March 29, 2012

The mandate, conditioning the environment, and "The Myth of Judicial Activism"

As I read today's (to me) depressingly predictable op-ed by E.J. Dionne, in which -- in what seems to me a pretty obvious attempt to "condition the environment," and pre-fab some outrage, by invoking Bush v. Gore, Citizens United, etc. -- he anticipatorily accuses the Court's "conservatives" of "activism" for seeming to consider invalidating the insurance-mandate aspect of the Affordable Care Act, I was reminded of Kim Roosevelt's book, from a few years ago, The Myth of Judicial Activism.  (Kim and I discussed his book, and the "activism" charge, here, at the PENNumbra site.)

I genuinely don't know what the Court will do with the mandate, and I'm not sure what I think the right answer is to the question, "Does the Constitution, correctly understood, authorize Congress to enact it?"  (I do think the question is interesting and important and hard, and I am sure that Dahlia Lithwick is wrong in thinking that the question's answer is obvious and that only low politics and hackery could explain a Court ruling that the answer is "no.")  I also think that not many people -- not E.J. Dionne and not most other critics of the Court's "conservatives" -- really oppose "judicial activism," and so I can only sigh at his concluding charge that "a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. "  (Is Dionne a big fan of stricter standing doctrines?  Did he lament Boudmediene, or Roper?)   

I know there are some principled and consistent Thayerians out there -- some write for this blog -- but they do not seem thick on the ground.  It seems to me that what most of us (for better or worse) want and praise is a Court that strikes down government actions we think are bad and upholds ones that we think are good; that what we lawyers probably should want and praise is a Court that invalidates laws that are actually (and pretty clearly) unconstitutional (good or bad) and reasonably applies the rest (good or bad); and that complaints about "activism" are more often political-rhetoric moves than the conclusions of arguments.  If the Constitution gives Congress the power to impose the mandate, then of course the Justices should "defer to those elected to make [that] law[]"; but if it (pretty clearly) doesn't, then they should not.  No? 

Posted by Rick Garnett on March 29, 2012 at 01:53 PM in Constitutional thoughts, Rick Garnett | Permalink


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Thanks for the mention, Rick! I remember our debate fondly. I think that what we should want is a Court that has a theory about when deference is appropriate and when suspicion is appropriate, and that applies that theory fairly consistently across doctrinal areas so that it doesn't seem to be engaging in politically-motivated opportunism. I think that whether the Court has a good reason not to defer on the healthcare mandate depends on whose framing you accept--which unfortunately is a partisan issue. If this is an unprecedented intrusion on liberty, then there's a a reason not to defer. (McCulloch actually expresses this principle, when it says deference to Congress on the bank question is appropriate because what's at stake is not a great principle of liberty but simply whether this is a power that belongs to the states or the feds.) But if this is relatively obviously a regulation of commerce, or a necessary and proper means to effectuate such a regulation, then deference would be appropriate.

Posted by: Kim | Apr 2, 2012 4:15:31 PM

This is kind of off the beaten path a bit, but could someone explain to me the "limiting principle" argument? Honestly, after hearing it for years now, and having it be featured in oral arguments this week, I still really don't understand it. I learned in Con Law I that Lopez basically draws the line at economic regulation (I took the class in the sweet spot between Lopen and Morrison and Raich). Why isn't that the limit that mandate opponents are so desperately seeking?

I know that they then say something like "but Congress can say that any law is economic in nature," but: (1) doesn't the "piling inference upon inference" language in Lopez address this; (2) even if not, isn't the answer to increase the level of scrutiny afforded in such cases; (3) and in any event, is a case involving unquestionable economic regulation really the best vehicle to announce a rule designed to prevent Congress from pretending that non-economic regulation is really economic?

Maybe I'm just thick. I really don't understand the "limiting principle" argument at all, and yet it looks likely to be embraced by the majority of the Court.

Posted by: Joe (not that one) | Mar 30, 2012 4:26:01 PM

Joe, were you aiming for irony, or do you think that argument from authority and argument by bare assertion are not (let me be nice) weak arguments?

Posted by: Mike | Mar 30, 2012 10:40:36 AM

The problem for many is that when Charles Fried and Walter Dellinger agree the case is fairly easy, it isn't just what is a 'good idea' (many don't really like the "mandate" on policy grounds) should be upheld, but that a reasonable consistent application of long held law makes this an easy case. It also doesn't help (let me be nice) weak arguments keep on being made such as a need for some "limiting principle" as if (1) plenary enumerated powers should be limited (2) many repeatedly have been given (3) the Constitution itself supplies many. Again, Charles Fried was out there upset at some of the questions from the bench. This isn't just the run of the mill case, is it? Not that harping on Bush v. Gore and Citizens United, two favorite tropes, doesn't get tedious.

Posted by: Joe | Mar 30, 2012 12:46:04 AM

I think you raise a really interesting question about the sociology of the case, as between elites and popular opinion. From the perspective of the legal elite--look at Lithwick's piece, or the NYT article on Randy Barnett--the ACA is clearly constitutional. Even Randy himself compared an potential unconstitutionality holding to Bush v. Gore II. But when you ask: "should Congress be allowed to force you to buy something from a private company?," many folks have a problem with that. Frankly, I think the populist argument is not really a Commerce Clause argument, but rather some form of liberty argument: I should be free not to buy something. But there is no such right currently in the Constitution. That's why I think you see the divide.

One other point: I think the elite conventional wisdom has consistently underestimated the doctrinal power of the unconstitutionality claim. Yes, you can certainly make arguments as to a limiting principle, but none of them are drop-dead "correct." And the "tax/not a tax" argument has been so muddied by the government that I can see why the justices would have a hard time buying it.

Posted by: Matt Bodie | Mar 29, 2012 7:29:12 PM

Thanks for this post, which I think raises an interesting question given the sort of role reversals the mandate seems to bring about. I have long thought that the best way to think about judicial "activism" is in terms of the degree of deference/standards of review etc. that a judge affords other institutions and actors--whether those be the legislature, a lower court, an agency, or whatever.

Of course, a judge can always claim to be giving great deference--any rational basis upheld--and in reality do something quite different. And that, I think, is where the most cynicism creeps in; some rational bases are more equal than others, depending on policy preferences. But I do think that is at the level of deference--what is stated, and what we think is actually given--that we can make more principled and less politicized judgments about judicial activism.

Posted by: Ian Bartrum | Mar 29, 2012 5:54:23 PM

Hi Matt, I didn't mean to say that the Court's big decisions are (just) political; I do think there are (often) correct answers. And, I have no problem -- at all -- with those who make arguments to the effect that the correct answer in this case is that the Constitution authorizes the ACA. What I find depressing, in this context, are (i) assertions (without actual engagement) that "the other side's" arguments are obviously frivolous and (ii) what seem to me to be opportunistic complaints about "activism" (in the place of arguments about what the correct answer, on the merits, is).

Posted by: Rick Garnett | Mar 29, 2012 5:48:04 PM


For a while I thought you were saying that all of the Court's big decisions are to some extent political, and therefore it's hypocritical to attack only those decisions that one finds politically unpalatable. But your last two sentences invoke the notion that there is a correct answer that the Constitution gives to these questions. If there is a correct answer, aren't some answers thereby incorrect? And if so, isn't that what these folks are arguing--that finding the ACA to be unconstitutional would be an (extremely) incorrect reading of the Constitution?


Posted by: Matt Bodie | Mar 29, 2012 4:15:06 PM

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