So I agree with both James Ceaser and Peter Lawler. Dr. Ceaser is right that the question of whether the mandate is constitutional has not at all been settled by the Supreme Court. You have four Justices who think that the Obamacare scheme of mandate and penalty is unconstitutional. You have four Justices who believe the scheme is constitutional. You have one Justice who believes that, if you squint, ignore the mandate, call the penalty that the law calls a penalty a tax and, and otherwise self-deceive, then Obamacare’s scheme of mandate and penalty is both nonexistent and constitutionally enforceable. This is not a stable arrangement and there is no obligation on the part of anyone to pretend to buy the contortions of Justice Roberts.
But Dr. Lawler is right that the Supreme Court decision will, in the short-run, serve to dampen discussion of the constitutionality of Obamacare. Now conservatives can say that the Supreme Court found the federal individual health insurance purchase mandate unconstitutional (and the Court did – sorta), but it is much more obvious that the majority concluded that the scheme of mandate and penalty can operate exactly as written. Whatever is contained in the too-nuanced majority opinion written by the too-clever-for-the-country’s-own-good Chief Justice, it sure looks and feels like the Supreme Court found the mandate and penalty scheme constitutional. Now who are you going to trust on the constitutionality of Obamacare, Romney (the 2012 ideological model) or Roberts?
That’s the very short-term. In the longer-term, it is quite possible that conservatives will win the argument over the extent of the government’s commerce clause power within the elected branches (and eventually within the federal courts as judges are appointed and confirmed.) The federal judiciary’s abortion jurisprudence has been radically pro-choice for two generations, but public opinion has, in recent years moved in a moderately pro-life direction. The problem is that November 2012 is within the short-term and the Obamacare decision makes the political constitutionalist case against Obamacare tougher – even tougher than it would be if the Court had waited until next year to take up the case.
For my part, I would add that an understanding of our constitutional disputes that arranges limited government, natural rights constitutionalists like Calvin Coolidge vs. historicist, expansive government, post-constitutional progressives like Herbert Croly and Woodrow Wilson is problematic. There is something to looking at it like that. The turn of the century Progressives saw the Constitution as outdated and too restraining on central government power (restraints often enforce through judicial review.). They also saw that public respect for the Constitution meant that a frontal assault demanding either abolition or clear cut repudiation of that document was unlikely. So they developed the idea of a “living constitution.” This entailed praise for our flexible and developing (though not through formal amendment) Constitution that, as society changed, made the unconstitutional constitutional. This was allegedly the key that allowed the Constitution to survive into the modern world. Now keep in mind, the “living constitution” was originally a way to get around the Constitution, but the praise was real and loud and latter progressives bought in. Scratch a lot of our liberals today, and you’ll see that they buy into both the praise of the Constitution and the idea that the Constitution loses all stable meaning when it conflicts with their contemporary policy preferences (even when their policy preferences today conflict with their policy preferences yesterday.) They know that it impossible to get into the minds of the authors of the document or apply their document to the present and that Bush (and Reagan, and Nixon, and the next Republican President) “shredded the Constitution.” This turns judicial liberalism into something more than a doctrine of expansive government. They are against expansive government when it involves banning the termination at-will of a full term fetus. This combination of (pretty sincere) rhetorical love for the Constitution plus the belief that the document can be endlessly rewritten to suit their present policy priorities converts the document into a license for their continued political power regardless of elections, or precedent, or the words of the Constitution itself. The present policy orientation of a plurality of self-identified “progressives” is good enough.
Now the temptation to read one’s every preference into the Constitution is universal I guess, but which strikes you as more likely, that Scalia would vote to strike down the same sex marriage law of New York or that Stephen Breyer would vote to strike down a state law that defined marriage as between a man and a woman?
July 2nd, 2012 | 9:48 pm
Maybe it’s nothing but talk, but I am heartened by the GOP response so far. It seems like the Tea Party has stiffened the spines of their elected representatives. BUT if the GOP wins the White House and both houses of Congress and doesn’t repeal the Obamacare monstrosity by any means necessary, look for primary bloodbaths from sea to shining sea.
July 3rd, 2012 | 9:47 am
One thing that hasn’t been talked about much in all this is how CJ Roberts’ opinion would actually restrain the commerce clause. I haven’t read his full opinion yet, but the originalist position is that regulations of interstate commerce had to DIRECTLY EFFECT the commerece regulated, and that concatenations of causal chains like those seen in the modern AGGREGATE EFFECT test or SUBSTANTIAL EFFECT test do not pass muster. Historically the change and “reinterpretation” occured with the Blaisdell case and others during the 1930s period of the court. I guess Roberts was just saying that he wants to take one step closer to the original interpretation on commerce (as in, not allowing mandates of involvement in commerece), but I don’t see him fully rejecting the living constitution for the original interpretation in this case.
July 3rd, 2012 | 9:59 am
Woops, I shouldn’t have said “Blaisdell” there, that was a contract clause case. I should have said “U.S. v. Darby”
July 3rd, 2012 | 10:27 am
“One thing that hasn’t been talked about much in all this is how CJ Roberts’ opinion would actually restrain the commerce clause.”
CJ, presumably a federal mandate to purchase a product from a private vendor would not be enforceable through a criminal or civil penalty according to the Roberts opinion. Such enforcement of a mandate would be legal according to the Ginsburg concurring opinion. Also, according to Roberts, there is no mandate because the mandate is unconstitutional and the penalty is a tax because it is small enough that it doesn’t actually enforce compliance. What a mess. Though one more liberal Justice and things clean up nicely.
July 3rd, 2012 | 10:31 am
For the record only: I’m not sure that the DIRECT vs. INDIRECT effect distinction on the COMMERCE CLAUSE isn’t just as a judicial invention. It certainly isn’t unambiguous originalism. It doesn’t seem to me to be a distinction Marshall would have come up with. So I’m good w Roberts’ interpretation of the CC.
July 3rd, 2012 | 1:00 pm
One of the best chapters in Christopher Wolfe’s book the Rise of Modern Judicial Review is the one that shows you why correct interpetation of the commerce clause is quite difficult. The indirect v. direct effect distinction is not the only major difficulty either. Read carefully, that chapter should convince you that originalism cannot restore the old dual federalism. To get back to that, you’re going to need an amendment. And many conservatives, such as yours truly, would be unlikely to support such an amendment. Because the progressives were right that the reality of most of our commerce is national.
But one thing is clear, or should be: originalism does reject the Wickard precedent, which the liberal 4 would extend to just about everything under the sun were they to get one more justice(and they would likely discared the barely restraining Lopez and Morrison precedents in doing so).
July 3rd, 2012 | 1:37 pm
Just from a scan of CJ Roberts’ opinion, I think the key passage on this point is:
“Our precedents read that to mean that Congress may regulate ‘the channels of interstate commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate commerce.’ The power over activities that SUBSTANTIALLY AFFECT interstate commerce can be expansive. That power has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s extortionate collections from a neighborhood butcher shop.”
Those first three provisos come from Rhenquist’s opinion in Lopez; after that Roberts explicitly accepts the substantial Affect test and Wickard.
At the end of the opinion, Roberts does say this though:
“The proximity and degree of connection between the mandate and the subsequent commercial activity is too lacking to justify an exception of the sort urged by the Government.”
Is Roberts using the ‘ole Sutherland proximate cause test? Personally, I don’t think so… on the whole I think the Substantial affect test is controlling here.
July 3rd, 2012 | 7:45 pm
CJ, I don’t think there was a real shot that this Court, this year, was going to overturn the substantial affects test as such. I think, for whatever it is worth, that the limits Roberts found were:
“The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3(emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.
“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27.”
July 4th, 2012 | 12:42 pm
So quite the learned discussion. I completely agree w Carl. I also think it’s unclear whether Roberts accept WICKARD. But probably not, because it suggests no limits at all.
July 4th, 2012 | 1:01 pm
The Roberts opinion goes out of its way to distinguish the mandate from any and all prior Court decisions. The Roberts opinion strongly suggests that one can agree with the finding in WICKARD (narrowly construed) and yet still find the mandate unconstitutional. The Roberts opinion can be read to undermine Wickard, but it can also be read as merely limiting WICKARD’s implications (the Congress can ban you from growing wheat, but can’t mandate that you purchase wheat.)
It is another question as to whether any of the above is even minimally intellectually honest.
July 4th, 2012 | 1:59 pm
Each of Pete’s points is right–from the ambiguity on W to the wondering about the intellectual honesty. If the mandate is unprecedented, then there’s no need to reverse any precedents (obviously). So I’m still okay w Roberts’ opinion as an interpretation of the CC, I think.
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