Taking Stock of the Health Care Mandate in Court

This is exactly what anybody who is seriously following the health care debate needed; a scorecard of the various decisions and their court of origin. An editorial in yesterday's Times offered precisely that:

This is very helpful, but woefully incomplete.  According to the piece, six judges have concluded that the health care mandate is constitutional and five have concluded otherwise.  The article also notes that the judicial conclusions are tinted by partisan overtones, with most judges appointed by Republican presidents ruling against the mandate and judges appointed by Democratic presidents upholding it, though two judges have "broke[n] away from the partisan pattern."

This barely begins to scratch the surface.  Making sense of what has happened, and what is likely to happen in the future, requires far more information.  We need to know who these judges are, and not just who nominated them.  Think of it this way: knowing that Justice Thomas was nominated by the first President Bush tells us very little information about the ideological zealotry of the justice and the lengths to which he and his wife go in furthering conservative causes.  To be clear, I do not intend this as a criticism of Justice Tomas -- though also to be clear, I side with Randy Kennedy over Guy on this one.  The point is that a reasonable portrait of Justice Thomas, or any judge for that matter, must include more information.

The piece is falls short in other ways as well. It frames the legal question as a debate over the power of Congress to require everyone to buy health insurance even if they do not want to.  From this question, the competing answers are straight forward. To those who uphold the law, the question is whether the relevant activities affect interstate commerce in any way.  They answer this question in the affirmative.    Conversely, judges who strike down the law argue that forcing people to buy insurance is not commerce in the constitutional sense and beyond the scope of congressional regulation.  According to the 11th Circuit, the mandate is “a wholly novel and potentially unbounded assertion of Congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives.”

This is all very riveting. But is it something that the rule of law could possibly decide objectively? Put another way: how does a judge -- even a strict constructionist, assuming any such thing exists -- decide this question under the law? Does the constitutional text, or existing precedents, give us an answer? This is to ask: Does anybody buy Chief Justice Roberts' umpire analogy any loner, assuming they ever did?

This takes me to a related question: whatever happen to the many attacks on judicial activism?  If striking down the health care mandate is not judicial activism in its clearest sense, then the term is empty of any meaning.  In case you suspected as much, think about and compare the reactions to Citizens United. Your curiosity ought to be piqued, at the very least.  

Finally, I wonder how constitutional law professors teach this health care debate.  Do they teach it formalistically, and try to fit it within the post-1937 commerce clause tradition?  This is to ask, if Congress can stop people from buying small amounts of wheat for personal consumption, then surely they can force these same people to buy health insurance, no?  And if they teach these cases within that tradition, then how do they explain the recent turn?  If ideology and crass political preferences do not explain the shift, then what?

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.

Where Are Thou, Judicial Activists?

The health care law is under heavy attack in federal courts across the country.  According to these attacks, Congress does not have the power under the Commerce Clause to demand that individuals buy their own health insurance.  This is the legal question, formally stated.  Put another way: how extensive and far-reaching are the power of Congress?

I could cobble together a bunch of cases and quotes to argue that the law is in fact unconstitutional.  But I could also argue otherwise.

That is to say: does anybody seriously think that these suits will be decided by formal law, not by political ideology or the judges' personal preferences?

Make no mistake, this is no different from the recent gun control rulings, Heller and City of Chicago, or the Citizens United case, or just about any other major case you can think of.  This is also how the upcoming showdown on the constitutionality of the Voting Rights Act will play out. The justices will paste together select quotes and cases that will inexorably lead them to their inevitable conclusion.  The law will make them do it.

In this vein, I would love to ask incoming House Speaker John Boehner and Senator Sessions what they think about the health care litigation.  I would also love to ask them, in turn, what they think about the upcoming challenge to the constitutionality of the VRA.   I would also love for them to explain what made Justice Thomas a judicial activist but not Justice Thomas or Scalia.

I would then love for them to explain to us all how they would reconcile these various decisions.

It is simply not possible. Not rationally, at least.