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Friday, May 25, 2012

Really, Professor McConnell?

I have to say, I've been enjoying Erik Spoelstra's working of the refs in the NBA playoffs far more than the similar efforts by law professors and political activists regarding the Affordable Care Act case in recent days.  Like Mark Tushnet and Paul Horwitz, I tend to think the latter efforts are mostly an attempt to preemptively spin the Court's decision, because it's too late to try and influence the Court's decision.  (I should note that I wrote one of the post-argument Balkinization posts to which Paul refers.  I wrote it because the moderators of that blog invited me to respond to another guest post they had published, which had (in part) criticized an argument presented in an amicus brief I wrote in the case; in part because the issue was so technical and divorced from the politically salient question of the individual mandate, I had no expectation that either post would influence the Court or any subsequent political discussion.)

Unlike Paul, I'm not generally troubled by the idea that law professors like Randy Barnett or anyone else might have an agenda of moving the law in a particular direction -- nor that the agenda might be a long-term one that relies not just on persuading the Court in a particular case but also on persuading the public that a decision or set of decisions is right or wrong, legitimate or illegitimate.  So I don't have a problem with the idea that professors and activists on both sides are engaging in preemptive spin here.

All that said, I do think that today's Wall Street Journal op-ed by Michael McConnell is unworthy of its author, who is rightly regarded as one of the very most influential constitutional scholars of the past few decades.  I am particularly struck by this graf:

If liberal supporters of the health-care law were as confident of the merits of their position as they claim to be, they would offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans.

But of course Professor McConnell knows that liberal supporters of the health-care law (not to mention conservatives like Charles Fried and Henry Monaghan!) have been offering "actual legal arguments" -- "based on text, history, structure, and precedent," no less! -- since the beginning.  The major argument offered in defense of the mandate was that health care services are themselves interstate commerce under the Supreme Court's precedents and that the mandate just regulates how those services will be paid for.  I, for one, have always thought that the strongest textual argument for the individual mandate was based on the Commerce Clause and the Necessary and Proper Clause:  the health insurance industry is a very significant part of interstate commerce, the guaranteed issue and community rating provisions of the ACA are clearly regulations of that commerce, and the mandate is necessary and proper to make those provisions work.  Lots of liberal supporters of the ACA have made that argument.  Jack Balkin and others have argued that the textual basis of the individual mandate lies in the Article I power to "lay and collect taxes."  Einer Elhauge has written a series of articles for various outlets making the argument for the constitutionality of the individual mandate based on history.  Neil Siegel and others have offered arguments for upholding the mandate based on constitutional structure.  And absolutely everyone who has defended the mandate has done so based on precedent.

Now Professor McConnell can agree or disagree with these arguments.  I take it he disagrees.  Fine.  That's the debate that the Court and commentators are having (in parallel, at the moment).  But it's ludicrous and disappointing for Professor McConnell to suggest that "liberal supporters of the health-care law" have not made "actual legal arguments" in defense of the mandate.  I don't doubt that many of the supporters of the law who have taken to general-interest blogs have failed to offer legal arguments --and why should they if they're not practicing lawyers? -- but I always thought the better practice was to respond to the strongest arguments for the other side.  Professor McConnell suggests that defenders of the ACA have not mustered arguments based on text, history, structure, and precedent, but many have actually been doing so from the beginning.

Posted by Sam Bagenstos on May 25, 2012 at 09:53 AM | Permalink


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I don't see the link in the original post, so here is the WSJ piece: http://online.wsj.com/article/SB10001424052702304707604577422923531419782.html

Kind of a hassle when the OP hides the link.

Posted by: AndyK | Jun 4, 2012 3:43:09 PM

Jay, the open-ended "liberal supporters" is used, not the obscure few that have not used legal arguments.

Posted by: Joe | May 28, 2012 12:10:16 PM

"But it's ludicrous and disappointing for Professor McConnell to suggest that 'liberal supporters of the health-care law' have not made 'actual legal arguments' in defense of the mandate."


But McConnell's not saying that *no* liberal supporters have made *any* legal arguments in its defense. He's just addressing those that haven't. Your mischaracterization of his argument suggests either disingenuousness or a failure of reading comprehension.

Posted by: Jay | May 27, 2012 11:53:17 AM

Clearly, both sides made both legal and policy arguments supporting their position. Each side thinks that "its" attorneys argued more from law and reason than the other side.

Posted by: Ray Campbell | May 26, 2012 4:50:14 PM

At least in the copyright case, the word "limited times" is right there. Libertarians will say they agree when an attempt was made to cabin that. In the CC area, in effect, some want to formulate some "limit" since otherwise just too much power over commerce is possible. But, the "limit" is not quite as clearly there, is it?

Obscenity is a reasonable example (the law is full with limits, not all of them crystal clear) though again at least there the 1A says "no law" and you can go all Black on everyone.

But, there is no such textual basis to set up some sort of "inactivity" or "mandate" (assuming them as accurate terms) rule on regulation of CC under the specific context at hand. Interstate commerce is being regulated and if nothing else a certain means is "necessary" to its regulation and unless there is some substantive limit elsewhere it is "proper." If not, maybe those tests would work, though I really am not convinced they make much sense (like Sutton), but not here.

Posted by: Joe | May 26, 2012 12:06:22 AM

As soon as the "where do you draw the line" issue arose it was clear where this was headed. When Congress extends the copyright act no one is challenged to come up with a limit. The Court announces no limit even thought in that case the Constitution say "for a limited time." Roughly the same when it comes to obscenity. So, the big hullabaloo about drawing the line and which McConnell says is something has has both sides stumped is really a make weight argument in order to get where we know this is going. "What use are legal arguments when that is no longer the way the game is played?" (Bush v. Gore). I am not sure exactly where that is in Bush v. Gore but it's there somewhere.

Posted by: Jeff | May 25, 2012 10:37:14 PM

To put the same point a different way, presumably you can still be a conservative even if you aren't a hardcore originalist or a hardcore libertarian. Wilkinson is neither, so it's no surprise where he lands. Judge Posner likely thinks the challenge is bunk, too, although he's less reliably conservative than Wilkinson. Both thought little of Heller.

Posted by: anon | May 25, 2012 10:10:53 PM

For what it's worth, I consider myself conservative, young, and reasonably well-informed on these matters. And I have thought from the beginning that what Professor Bagenstos says is the best argument in favor of the ACA is obviously right: guaranteed coverage regulates commerce, and the mandate is necessary and proper. The tenor of the arguments against are mainly (1) we want *some* limit, and this is something, and (2) this is an individual liberty problem, e.g., broccoli (::shudder::). I'm all for limited government, but this is just made up, and if you want to argue about liberty, do it directly by citing due process--where the conservative in me will handily reject it. The idea that we can regulate farmer Filburn's home-grown and home-consumed wheat and Angel Raich's home-grown and home-smoked pot, but not impose a penalty for making it harder to guarantee coverage, i.e., regulate commerce, borders on laughable. Maybe those cases are wrong, but the ship has long-since sailed. (Orin doesn't have a monopoly on Burkeanism.)

I think the conservatives you need to talk to are the more cautious and/or pragmatic ones. Outside of Orin, I don't many of these folks have said much, but I would guess people like Eric Posner, Adrian Vermeule, and Jack Goldsmith aren't too impressed with the challenge. I know many others like me who agree.

Posted by: anon | May 25, 2012 9:14:37 PM

Prof. Bernstein has more important things to do than answer my extended attempt to state my views. It is nice outside, so I can relate. Have a nice weekend.

Posted by: Joe | May 25, 2012 6:13:52 PM

Back to the original post that makes me reconsider the unflattering things I have said about this blog. What you have with that WSJ piece is the ultimate in anti-intellectualism. Not that there are not arguments either way. There are. But, when people who are capable of being intellectuals use that image (a form of institutional authority) to make meaningless arguments seem more compelling, they are just plain dishonest.

Posted by: Jeff | May 25, 2012 5:45:47 PM

"Why this isn't the place to cite Orin Kerr and Eugene Volokh's views"

Either you understand the obvious and are being tendentious, or you don't understand the obvious.

Posted by: David Bernstein | May 25, 2012 4:59:26 PM

AF cited Sutton using text as well as precedent.

Why this isn't the place to cite Orin Kerr and Eugene Volokh's views, when some True Scotsman argument about "conservatives" is made is also unclear. David Bernstein brings it up and then doesn't want to argue it.

Finally, if Sutton was concerned about his "own career," he would be just as likely to write an "outlier" opinion akin to the 11th Cir. since it might allow him to be more likely to be nominated by a Republican president, the party at the moment strongly against this law. If anything, his reasoning might be a negative, since it provides uncomfortable cover to supporters of the law.

If Silberman actually said that "the Commerce Clause knows no judicially enforceable limits," he would have violated his role, since the USSC had in multiple opinions (as the concurrence noted) said the opposite.

He did not. The opinion noted "so long as a rational basis exists for believing that a congressional enactment, as a whole, substantially relates to interstate commerce" ... this is a "limit" that is "judicially enforceable." See, U.S. v. Lopez and U.S. v. Morrison. The apparent reference is to this:

"We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce."

I don't think it's too hard to point to a few examples that violate the Constitution as a whole (e.g., mandating the purchase of abortion services) but regardless this is different from saying that the CC itself has no limits. An economic purchase is commercial. There are lots of things that are not, like say, speaking in favor of the law.

This subject has a lot of this sort of thing.

Posted by: Joe | May 25, 2012 4:47:48 PM

In general, what you would do as a lower court judge and a Supreme Court justice are two different things. But lower court judges write opinions and these opinions provide specific information about the basis for their opinions.

If a lower court judge rejects an argument as unworkable and inconsistent with constitutional text (as Judge Sutton did with the challengers' arguments based on the activity/inactivity distinction and on the N&P Clause), it's fair to conclude he is rejecting the argument because he believes it is unworkable and inconsistent with constitutional text -- not just because he believes it is inconsistent with precedent.

Posted by: AF | May 25, 2012 3:59:50 PM

Again, what you do as a circuit judge bound to interpret precedent as best you can (especially when you have to consider your own career, in which case you are REALLY trying to make sure you don't write an outlier opinion) and what you do as a Supreme Court Justice are two different things.

Posted by: David Bernstein | May 25, 2012 2:59:29 PM

"Yet if Sutton were on the Supreme Court, I think it's entirely plausible he'd vote to invalidate the ACA--perhaps as not "proper" under the N & P Clause if he thought the government hadn't articulated a limiting principle . . . ."

Judge Sutton expressly rejected the argument that the ACA isn't proper under the N&P clause. He did so without citing a single Supreme Court case. And he endorsed a number of the limiting principles that the government had articulated. See Thomas More Law Center v. Obama, 651 F. 3d 529, 562-63 (6th Cir. 2011) (Sutton J.).

Posted by: AF | May 25, 2012 2:50:49 PM

(I don't think this is a good place to address Eugene and Orin's views).

Posted by: David Bernstein | May 25, 2012 2:04:06 PM

DB -- I'll take that bet. What odds are you giving? My guess is that there are at least a few fedsoc members who also work at Sidley Austin, and therefore care very very deeply what Carter Phillips thinks (or at the very least will say so if asked).

Posted by: D.Schleicher | May 25, 2012 2:03:27 PM

Yet if Sutton were on the Supreme Court, I think it's entirely plausible he'd vote to invalidate the ACA--perhaps as not "proper" under the N & P Clause if he thought the government hadn't articulated a limiting principle, or perhaps he'd find the Medicaid mandate unconstitutional. A Supreme Court Justice has different responsibilities (and pressures, especially for someone thought to be an obvious shortlist USSC candidate) than does a lower court judge. Silberman is a different case, as he explicitly argued that the Commerce Clause knows no judicially enforceable limits.

Posted by: David Bernstein | May 25, 2012 2:03:17 PM

"So I don't think in good conscience anyone can be counted as supporting the constitutionality of the ACA unless they've said they think the Supreme Court of the USA should uphold it."

The problem with this argument is that Judge Sutton, Professor Kerr, Professor Volokh, etc. have addressed the arguments being made by the Obamacare challengers and said they find them unworkable and unpersuasive, as a matter of constitutional text and logic as well as precedent. As Orin's post indicates, there may be a fine distinction between rejecting the challengers' arguments and supporting the constitutionality of the ACA, but it's a pretty fine distinction. In any event, it's clear that all of these thinkers find the challengers' arguments to be unpersuasive on the merits.

Here, for example, is Judge Sutton: "Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No — for several reasons. First, the relevant text of the Constitution does not contain such a limitation. . . . Second, the promise offered by the action/inaction dichotomy — of establishing a principled and categorical limit on the commerce power — seems unlikely to deliver in practice. . . . " Etc. Precedent plays a role in his opinion, but he clearly disagrees with the challengers' arguments on the merits, not merely by virtue of being bound by Supreme Court precedent.

Posted by: AF | May 25, 2012 1:53:47 PM

More "True Scotsman" conservatives. Not the first time this debate was raised here. What is the point of this? There are enough self-labelled conservatives (the evolving conservative reference is a good catch) who think the law is constitutional if misguided. This is standard for various issues. As with the "the left is trying to intimidate Roberts" stuff, this is silly and not the best use of critics' time here.

I'm all for advocacy by law professors but at some point it goes off the rails and appears to be a tad counterproductive.

Posted by: Joe | May 25, 2012 1:52:26 PM

I'm not a conservative politically (libertarian is far more apt), but I think if I were on a lower court, I would likely vote to uphold the ACA under current precedent as the most reasonable extension thereof, but if I were on the USSC, I wouldn't think that precedent REQUIRES such a result, and likely would vote the other way. So I don't think in good conscience anyone can be counted as supporting the constitutionality of the ACA unless they've said they think the Supreme Court of the USA should uphold it.

Plus, the fact that a few liberal holdouts like Raoul Berger and Alex Bickel (and even today Jeff Rosen) who continued to preach the doctrine of judicial restraint doesn't change the fact that time had largely passed this version of liberal constitutionalism by. If you were to talk to under-50s active in the Federalist Society, could you find a single individual who cares what Carter Phillips thinks of the ACA ? (I had no idea that he had said anything about it, in fact).

Posted by: David Bernstein | May 25, 2012 1:32:29 PM

This is not working the ref at a basketball game -- it seems more like working the ref at a Premiere League match on relegation day. And I would issue Professor McConnell a yellow card for bringing the game into disrepute...

All seriousness aside, I strongly suspect that the space limitations of the WSJ ended up removing some (perhaps not much, but some) nuance from Professor McConnell's editorial. He may well not have written them in in the first place because he was aware of those limitations, but I'm reasonably sure that his actual position is somewhat more nuanced than the us-versus-them, black-and-white, if-you're-not-with-me-you're-a-Commie approach in the editorial as printed. That said, he's still responsible for bringing juridicopolitical discourse into disrepute (if that is even possible).

Posted by: C.E. Petit | May 25, 2012 1:23:49 PM

Thanks Orin. I had missed that post. Correct me if I'm wrong, but I don't read it as contradicting my statement that you have never said you would strike down Obamacare if you were on the Court. To be sure, you don't say that you would vote to uphold it either. But my reading of your thoughtful commentary on the issue is that you do not believe the Obamacare challengers have articulated a "genuinely principled or workable doctrine to justify" striking down the mandate.

Posted by: AF | May 25, 2012 1:22:35 PM

AF, for what it's worth, my own post on what I think the Supreme Court should do is here:

Posted by: Orin Kerr | May 25, 2012 1:08:50 PM

"Citing to conservatives who support the constititionality of the ACA would be far more persuasive if defenders could cite someone under age 75."

Orin Kerr, Eugene Volokh, Rick Hills, Jeffrey Sutton, Carter Phillips, just to name a few off the top of my head.

The fact that these prominent scholars/legal thinkers haven't been as outspoken as Fried et al is precisely because they *are* conservative and under the age of 75, and presumably don't want to burn too many bridges with the conservative movement that has embraced the Obamacare challenges. For that reason, it is safe to assume that a number of additional conservatives agree with them, but have not gone on the record.

The argument that these conservatives support the constitutionality of Obamacare based only on existing law and would not necessarily vote in the same way if they were on the Supreme Court is utterly unpersuasive given that (1) the Obamacare challengers contend that existing law supports their position and (2) none of the above individuals have ever said (or implied) that they would strike down Obamacare if they were on the Supreme Court -- a comment they would have every incentive to make, if they believed it, in order bolster their conservative bona fides.

Posted by: AF | May 25, 2012 12:58:35 PM

May I sympathize with David a little here? I don't see the best writers on the ACA throwing Fried around with abandon, so to speak, but it certainly is a frequent argument in more popular discussion, and David is right that the folks most often touted as conservative believers that the mandate is constitutional, either in toto or under current law, are of a different generation of conservatives.

I say that in a value-neutral way. Indeed, two generations later, I think many individuals, including liberals, would no longer view people like Wechsler as apostates or invest the same kind of emotion in guarding the borders of an earlier age; they would simply view the shift in views as a historically interesting phenomenon worthy of institutional analysis. I feel sure we can do the same with the shift in conservative views. I would add that although the reactionary vs. governing ideology argument is a possible one, so is an argument from skillful organization, message discipline, and political economy. Although I am sure that sincere views are involved, from an outside perspective I would also say that one reason the AEI today is, in my personal view, a complete joke is that it wisely went where the money was. Conservatives, like liberals, respond over the long hault to financial incentives as well as ideological principles.

By the way, David, I lament that you haven't mentioned Orin, although 1) I acknowledge that he has limited himself to speaking about current law, and 2) one might mistake him for an over-75-year-old.

Posted by: Paul Horwitz | May 25, 2012 12:37:37 PM

Another substantive problem with Judge McConnell's analysis is that it says, incorrectly, that the Commerce Clause part of the ACA case involves 'marking the proper line of partition between the authority of the general and that of the State governments.' Presumably that's an accurate quote from Madison, but it's not an accurate description of the Commerce Clause question currently pending at the Supreme Court. It should be common ground that the national and state governments have concurrent authority over many things, including some aspects of health insurance. (If not, what is ERISA?)

Posted by: Mark Regan | May 25, 2012 12:37:04 PM

David, since the ACA was a conservative idea hatched in Republican think tanks in the 90s, can we just cite to Republicans of the 90s as conservatives who vouch for the constitutionality of it?

Posted by: Brando Simeo Starkey | May 25, 2012 12:36:45 PM

(But it's true that J. Harvie Wilkinson is only in his late 60s)

Posted by: David Bernstein | May 25, 2012 12:26:43 PM

Sutton said the best reading of existing precedent is that the law is constitutional. That doesn't mean he'd vote that way if he were on the USSC.

Michael Teter: Of course "conservatives" who came of age in the 1950s and 60s, before modern originalism even existed (and who largely adopted the views of the Old Progressives in favor of judicial restrain to combat Warren Court activism), are often going to have different views than conservatives who came of age anywhere from one to four decades later. The old conservatives were "reactionary" in a nondisparaging sense. Modern conservatives are looking for their own governing ideology.

Posted by: David Bernstein | May 25, 2012 12:25:55 PM

This post got me to thinking: everyone knows that one of the best ways to "work" a ref is with a loud, supportive home crowd. Many refs will get swept up in the enthusiasm and make some questionable calls. Why not implement a home/away schedule for the Court? What if the Court had heard the ACA oral argument in a San Francisco courtroom? It could hear the Texas affirmative action case at a Federalist Society conference. It would give new meaning to the term "home court advantage."

Which reminds me of this clip, from The Naked Gun: http://www.youtube.com/watch?v=x-S-eeInJVk

Any bets on which justice is most likely to play the role of Leslie Nielson?

Posted by: Michael Teter | May 25, 2012 12:14:49 PM

It sounds like you're saying, David, that conservatism is a living, evolving doctrine. Interesting.

Posted by: Michael Teter | May 25, 2012 12:14:06 PM

Judge Jeffrey Sutton was born in 1960.

Posted by: Mark Regan | May 25, 2012 12:08:06 PM

Fried and Monaghan are exceptional scholars, but if they are "conservatives" they are "conservatives" of a very different era. The constant citation to Fried (and Laurence Silberman), who supported Obama in '08 and felt strongly enough in favor of the ACA to actually write a brief on its behalf reminds me (historically, not morally) of segregationists in the late '50s and early '60s who consistently appealed to the views of "liberals" like Learned Hand and Herbert Wechsler, whose views no longer had much currency among modern liberals, even though a couple of decades earlier those views virtually defined the "progressive" mainstream. Citing to conservatives who support the constititionality of the ACA would be far more persuasive if defenders could cite someone under age 75.

Posted by: David Bernstein | May 25, 2012 11:50:02 AM

Hi Sam -- certainly you are right that many "liberal supporters of the health-care law" have been making constitutional arguments in its defense. But, in fairness to Prof. McConnell, it seems to me that his piece is in response to the recent ref-working / pre-spinning arguments (I'm thinking of Jeff Rosen's piece, in particular) that a ruling invalidating the mandate would mark Chief Justice Roberts as a failure (and a partisan) because it would be divisive, because the law is the President's signature legislation, because it would be "activist," etc.

McConnell concedes that the case is "hard," and to say this is to acknowledge, it seems to me, that arguments in support of it have been offered and are plausible. He's pushing back -- correctly, in my view -- on the line of argument from *some* the Act's supporters that seems to say that the case is, in fact, so easy that getting it "wrong" in good faith is not possible.

Posted by: Rick Garnett | May 25, 2012 11:37:53 AM

Good post. I find the claim that progressives haven't proffered legal arguments in support of ACA risible. I also find it funny that the same sorts of people bemoaning the "working of the refs" had absolutely no qualms with one of the "refs" regurgitating Fox News talking points from the bench during oral arguments.


Posted by: Brando Simeo Starkey | May 25, 2012 11:22:37 AM

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