Tuesday, December 14, 2010

Judging the Health Care Law

A federal judge in Virginia has fired the first direct salvo against the constitutionality of the health care law, and the debate now rages in the blogosphere. This is a debate largely about the merits of Judge Hudson’s opinion in Virginia v. Sebelius striking down the law’s specific mandate that individuals buy health insurance. To the critics, this ruling is "bizarre," significant error" and invites “mischief,” with parts of the opinion reading “as someone determined to strike the mandate regardless of the force of argument in the way.According to Jack Balkin, Judge Hudson could only make his case by “dredg[ing] up jurisprudence from the court's Lochner Era, which has been discredited since the New Deal.” The argument, Balkin concludes, is “remarkabl[y] weak.”

Critics of the law take the opposite view. To Randy Barnett, for example, the ruling is “a milestone in the legal process of deciding whether Congress has the power to command every person in the United States to enter into an economic relationship with a private company. According to Peter Wehner, former domestic policy advisor to President George W. Bush, argues that “Judge Hudson’s a serious judge and he has put into words, and into a legal decision, a fairly profound pronouncement, which is that a key element of Obama’s health care plan is unconstitutional, Ilya Somin similarly argues that to uphold the individual mandate “would give Congress virtually unlimited power to mandate anything it wants.” This would be both “dangerous and unconstitutional.”

This is an important debate, and I don't mean to minimize it here.  But to focus on the legal debate would be to miss what is far and away the much more interesting story and its many lessons.

The larger puzzle goes as follows: how to explain the ruling as a political act?  (In fact, I'd argue that this is the only way the ruling can be explained). There are three parts to this answer.  First, note how the New York Times reported the ruling in its immediate aftermath: "what is now clear is that the challenges from dozens of states to the law’s constitutionality can no longer be dismissed as frivolous, as they were earlier this year by some scholars and Democratic partisans." The fact that one judge somewhere could side with the plaintiffs must mean that the challenge to the law cannot possibly be crazy, frivolous, or simply out of the legal mainstream.  But that seems overstated. It also begs an important question: who is Judge Hudson? Is he a crazy judge on the fringe, a respected jurist seldom overturned on appeal, or is he somewhere in between?

This is the second part to the larger answer. The Times recognizes that this is an important part of the story, as it writes that Judge Hudson "has a long history in Republican politics in Northern Virginia."  Judge Hudson has also been described as having "financial ties to both the attorney general who is challenging the law and to a powerhouse conservative law firm whose clients include prominent Republican officials and critics of reform."  In other words, it appears that Judge Hudson is well connected in party politics and likely has views on these kinds of questions.  This is hardly a disqualifying discovery, of course.

In fact, and this is the third piece, the two prior judges who have upheld the health care law were appointed by President Clinton.  So for anyone keeping score at home, the challenges now stand as 2-1, Clinton leading Bush.

There are many lessons here, yet three readily come to mind.  First, does anybody doubt that judges are strategic actors who decide cases in accordance to their own policy goals?  In other words, is it possible to read Judge Hudson's opinion and the vigorous debate that has ensued and not conclude, as the attitudinalist model counsels, that Judge Hudson decided the case as he did because he is a Republican?  

Second, and once we accept that Judge Hudson is a partisan judicial activist no different from any liberal judge often derided by conservatives, what do we make of the view that this ruling will "further destabilize political support for a law that is under fierce attack from Republicans in Congress and in many statehouses"? I am fully aware that the American public is not always the most savvy and ideologically sophisticated, but this seems a bit much.  If scholars themselves cannot agree, and if the scorecard reads 2-1 in favor of the constitutionality of the law, who exactly will be persuaded by this new, partisan reading of the law?  Or is the American public really that malleable? I am afraid we already know the answer to that question.

Finally, what is it that we teach our students about courts, judges, and the rule of law?  Too often, we fail to teach our students about the craft of judicial interpretation as a strategic and ultimately political craft. But any story that does not include this piece is ultimately an incomplete story.  Put another way: imagine a first-year constitutional law class where the professor decides to assign the Sebelius case. How should she teach the course?  Does this case make any sense outside its social and political context?  Does law explain anything?

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