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Dissents: The constitutionality of the individual mandate

Bill Daley, a visiting associate professor at Notre Dame Law School, e-mailed this reply to my earlier comments on the constitutionality of the individual mandate. I'll respond in a subsequent post. As an aside, I try to read the comments, but it's easier for me to keep track of e-mail, so if you have something you want me to see personally, e-mail is often better.

You have written more than once now that the "abstract constitutionality" of the Health Care Bill is not what's at issue, just the party affiliation of the judge deciding the case. I don't really get what that's supposed to mean. Is it your view that when judges have persistent disagreement about issue x, the arguments are ipso facto not about issue x but about something else?

Take, for instance, the area of sentencing law in criminal cases. A series of cases around sentencing have for years been decided in a "pro-defendant" (we might say "liberal") direction since Justice Thomas joined Antonin Scalia, Ruth Bader Ginsberg, John Paul Stevens and David Souter. Leading the dissenters has been Steven Breyer, as the cases deal with the constitutionality (among other things) of the federal sentencing guidelines (of which Breyer was a leading proponent). Now, these cases were pretty predictable, but the predictability did not map onto partisan affiliation but the methodological preference (or not) for formalism among the justices. The formalists were winning. It remains to be seen what will happen with two new Democratic appointees on the court. But it will be their methodology in such cases, not their party affiliation, that will determine the outcome. Does this mean the cases are not "really" about the constitution, as you think with health care? Or are the disagreements about the constitution unless the divide is neatly partisan?

The Supreme Court justices agree by 7-2 or better some 90% of the time or so, as I recall. There are a narrow band of high-profile cases in which the disagreements are real and persistent and frequently predictable along partisan lines. That should not be surprising, and nor should it lead to the cynical view that what's going on is just politics by other means. The methodological differences are real and in good faith, even if they've largely been sorted out by political groupings (as is inevitable, one supposes, in a system of presidential appointments).

For what it's worth, conservatives differ pretty widely on the question of the health care bill, mostly depending upon how faithful to some original vision of the constitution they think the Supreme Court ought to be (of course, one can also differ on that original vision), but also depending upon their reading of the current doctrine. I hold, as do most folks that I know, that this law is well within the ambit of what we've approved of, and highly unlikely to be questioned by this Supreme Court except perhaps by Justice Thomas (who is the most willing to throw precedent overboard when he's convinced it gets a fundamental constitutional point wrong). But other conservatives think we misread current precedent, or that the issue is just different enough to warrant a fresh look at Commerce Clause jurisprudence without disturbing many precedents -- they are distinguishable. But these are good-faith methodological arguments among conservatives (as the sentencing commission arguments were among both liberals and conservatives).

I do not think it serves you well to keep writing what seems just an empty and cynical statement that when cases are predictable along partisan lines then it's not about the law at all. It may be true that in some categories of cases partisan politics is a helpful predictor of results, but as a matter of describing what both the liberal and conservative (the labels, as the sentencing cases show, are hardly perfect) are actually doing in deciding the cases it does their work and our system an injustice.

By Ezra Klein  | October 15, 2010; 3:15 PM ET
Categories:  Health Reform  
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Next: The Treasury's defense of HAMP


An amendment needs created to abolish any supreme court decision that passes with only one vote.

Posted by: lauren2010 | October 15, 2010 3:17 PM | Report abuse

The writer's point is well taken. But I think Ezra's larger point was that there is no clear "right answer" regarding the constitutionality of the individual mandate. If the question is framed as "Can congress, under the commerce clause, financially penalize (or "tax")individuals for refusing to engage in a commercial activity," I think this is a question of first impression for the court, so precedent will be of little help. And looking for the "original intent" of the Framers is a highly subjective enterprise, as the Framers were a diverse group with differing views.

Posted by: jduptonma | October 15, 2010 3:40 PM | Report abuse

Ezra, props for posting this critique, but frankly its not very good. I never took you to mean that ALL SCOTUS decisions are decidedly politically, just the few decisions that broadly affect the public, the decisions that consider setting aside precedents for how we conduct our system, the decisions that are, well, political. How else can one read decisions such as Citizens United which are so odds with decades of stare decisis (with the possible exemption of Justice Kennedy)?

The individual mandate is the perfect case to be viewed through a judicial politics lens, because it is so far outside the precedent of what an acceptable law is (and I say this as a liberal.) However, I recognize that all of the Democratic Justices will disagree with me because, at the end of the day, they want to help the Democratic argument. The writer of this email should recognize that he too is out of touch with how the Conservative Justices will vote.

Posted by: michaelh81 | October 15, 2010 3:54 PM | Report abuse

This is still a bit too simplistic. "Party affiliation" is sort of different than "politics."

Sure, "party affiliation" doesn't tell us much about how judges will rule. Parties change too much for affiliation to mean anything.

Broadly, though, their "politics" tells us something about their political philosophy and the way they see the world. Sure, there are idiosyncratic issues that don't lend themselves to broad constitutional frameworks, or are interpreted differently by the judges. That doesn't disprove that the way someone sees the world -- which is bound up in their political beliefs -- doesn't help predict how they will rule.

"But it will be their methodology in such cases, not their party affiliation, that will determine the outcome."

But those are somewhat one-in-the-same. Conservatives -- in religion, politics, and in lawyering -- love appeals to the past and "authority." Hence, lots of stuff about founders and sacred texts. Liberals tend to take a more holistic approach and emphasize current realities. On some issues, they may differ on the "method" used (Jack Balkin's commerce clause versus his Privileges or Immunities approaches are vastly different, despite him being a left-leaning guy). But on most *constitutional* issues, you could predict with good accuracy the outcome reached based on what you know about someone's "politics" (but not necessarily their "affiliation").

Posted by: Chris_ | October 15, 2010 4:00 PM | Report abuse

Some questions aren't as easy as they might first appear. Consider two examples well-known to the authors of the US Constitution:

"Thus the statute of king Edward IV, which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that favoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II, which prescribes a thing seemingly as indifferent; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation."

(Blackstone, Sir William. Book the First - Chapter the First: Of the Absolute Rights of Individuals. c. 1723)

Posted by: rmgregory | October 15, 2010 4:00 PM | Report abuse

anyone who's followed Scalia's decisions knows he votes by his political beliefs.

Posted by: newagent99 | October 15, 2010 4:19 PM | Report abuse

Re: "Now, these cases were pretty predictable, but the predictability did not map onto partisan affiliation but the methodological preference (or not) for formalism among the justices."

The problem with the law prof's argument is that judges tend to chose a methodology based on their political preferences, so that the choice of a methodology *is* a political choice. For example, it seems likely that Scalia prefers formalism because it's a way of getting conservative results in the cases he cares the most about (substantive due process and equal protection cases), though obviously it leads to some liberal results in the cases he doesn't really care a lot about (flag burning, mandatory sentencing, etc.). Those liberal results in cases he doesn't care about are just the cost of getting conservative results in other cases he does care about. The same thing goes for liberals and their more pragmatic approaches, by the way.

Ezra, if you'd like to respond to this law prof, I'd suggest reading a chapter from Judge Posner's book How Judges Think titled "The Supreme Court is a Political Court." Posner even responds to a version of the law prof's argument. That is, Posner argues that the Blakely-Booker line of cases (which the prof uses as his example) are not an instance of "law" rising above "politics."

By the way, the law prof is just wrong to suggest that Stevens, Souter, and Ginsberg are formalists. So that's another reason why Booker isn't such a great example for him.

Posted by: blah1 | October 15, 2010 5:16 PM | Report abuse

I like to see it explained why current commerce clause doctrine goes to such great lengths to ignore how commerce was regulated by the states and foreign nations with each other. See:

Posted by: JASinAZ | October 16, 2010 2:54 AM | Report abuse

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