Could the Health Care Law be Unconstitutional?

A recent online debate in the New York Times asked whether the recently enacted health care law is unconstitutional. For answers, the editors recruited four law professors and two attorneys in the federal health care lawsuit. Their answers will not surprise you.

Those in support of the law argue that Congress is well within its enumerated powers to tax and spend money for the general welfare, the commerce power, and does not commandeer the states under the 10th Amendment. To Jack Balkin, for example, critics of the law “are really claiming that it is unconstitutional to make Americans pay taxes,” while James Blumstein writes that success on this particular suit would require overturning decades of precedent under the Commerce power. This is something that a self-professed “minimalist” Court should not take lightly.

In contrast, those who argue against the law understand it as a quintessential exercise in police powers and thus outside the powers of Congress to regulate. According to Randy Barnett, for example, the text of the Constitution does not authorize this exercise of power, nor has the Court ever upheld anything like it. To David Rivkin and Lee Casey, counsel in the federal suit, allowing this law to stand would essentially put an end to the notion of limited, unenumerated powers. If Congress can do this, they argue, there is simply no limit to what it can do.

Can you tell what is missing from these four accounts?

These debates never cease to amaze me. To the question, is X law unconstitutional, answers are usually given in the form of legal arguments. In other words, whether the health care law is unconstitutional depends on one’s reading of the 10th Amendment, or the Ninth, or the powers of Congress under Article I. This is right out of an “Alice in Wonderland” world that I don’t think many people recognize as their own. Were the Supreme Court to accept review on this case, does anybody really believe that its decision will be controlled by pre-existing law?

I understand these are lawyers and law professors writing these short responses, and to teach in a law school under the legal method must mean that the law means something and that precedent matters. I get that. But surely there is a difference between day-to-day cases and the cases that rivet a nation. Think here Bush v. Gore; a future challenge to the Voting Rights Act; even Citizens United. Does anybody really believe these cases were or would be decided by existing law, and that the justices’ personal preferences played no role at all?

In fairness, Professor Barnett comes closest to the nub of the case. He concedes that it is a safe bet to assume that five justices will choose not to overturn the law. Yet in the following sentence, he appears to give the game away:

But what if the bill turns out to be supremely unpopular? What if one or both houses of Congress flip parties because of it? What if majorities in Congress favor repeal but are blocked by a Senate filibuster or a presidential veto? Still as confident about five votes?

I agree with Barnett that the justices will not choose to step into this morass. I also agree that the Court is influenced by context and public opinion. This is simply another way of saying that the law will play a secondary role, if any role at all. The rest of it is just window-dressing. No need to bother wasting our time.

Race and College Basketball

Anyone watching the Kentucky - West Virginia basketball game will come away admiring the skill and athleticism of the players on the floor. These players are terrific talents, no question about it.

I just can't help but notice a far more interesting phenomenon. For long stretches during the first half, all ten players on the floor were black players. In contrast, when the cameras turned to the crowd, it was predominantly white, as were the bands for both teams, the announcers and the coaches.

Finally, around the 10:47 mark, what appeared to be the first white player stepped on the floor for West Virginia: Deniz Kilicli, a freshman forward from Istanbul, Turkey.

I kid you not.

This is embarrassing in so many ways that I don't even know where to begin.

Above all, I wonder whether the people of Kentucky and West Virginia are as welcoming of students who apply to their university as they are of their basketball stars.

I also wonder whether admission officials at both schools are similarly welcoming of applicants of color as they are of basketball players, black or white.

Same for residents of both states: I wonder about their views on race and affirmative action.

Back in January, I wrote about the blatant the hypocrisy in the affirmative action debate, written in the context of the hiring of two white coaches whose credentials were questionable at best. I wondered then whether we could only "find Ward Connerly when we needed him."

I am still waiting for the outrage. After all, aren't these players taking seats on college campuses -- and college teams -- away from deserving whites?

Maybe the tea partiers could add this issue to their cause.

Are we all activists now?

President George W. Bush reminded us any chance he got that he would only appoint strict constructionists -- whatever that means -- to the federal bench. These would be judges in the mold of Justices Thomas and Scalia. This is a conservative canard, but one with plenty of traction among the public.

An article posted today by Linda Greenhouse reminded me of this old debate. Greenhouse is weighing in on looming constitutional attack on the health care bill and argues that the Supreme Court is unlikely to strike down the recent legislation. I agree with her position wholeheartedly. But her article is far more important for all that it implies about judicial behavior and the many relevant influences on federal judges.

Three passages in particular caught my attention.

The first passage responded directly to the states' arguments against the health care legislation. As she points out, one can find much commentary on this questions around the blogosphere, often made by people who ought to know better. For, as Greenhouse writes, "the only real question is whether any of these arguments will find a warm reception from at least five Supreme Court justices. The answer, almost certainly, is no." This is, without question, the crux of the case. Will the conservative justices have the will to take on the landmark health care legislation? Or in Greenhouses words, "Students of Rehnquist-style federalism will recall that the master himself blinked when his revolution got too close to the core of issues that people really care about."

Make no mistake, to take on the health care legislation would entail judicial activism of the highest order. In the wake of Citizens United and, a decade ago, Bush v. Gore, it would be hard to be surprised by anything the "conservatives" on the Court choose to do anymore.

The second passage is closely connected to the first point:

But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

I cannot help but read this passage and recall the recent Sotomayor hearings and the feigned indignation by Senator Sessions and many conservatives about her "wise Latina" remark. Her point was simple and hardly newsworthy: the background of a nominee will shape how s/he decides cases on the bench. I can hardly think of a more benign statement. This is Linda Greenhouse's point, and I wonder whether the conservatives who attacked Justice Sotomayor will likewise attack Ms. Greenhouse. I seriously doubt it.

Finally, Greenhouse writes that "John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own." I wonder whether this is true, in light of Citizens United. Perhaps this is a bad example, since few people understand the arcana of campaign finance law and the way in which the conservatives went about overturning the Austin case. Greenhouse's sentiment does help explain the recent Namudno case, where the Chief Justice avoided a constitutional confrontation with Congress over the Voting Rights Act. If Greenhouse is correct, it may just be that the Voting Rights Act is on safe constitutional ground after all. I have my doubts. Either way, I am more interested in how this argument casts the Chief Justice, as a judicial strategist more interested in his image and that of the Court than in following the exacting demands of the law.

This is exactly how we ought to view federal judges, and conservative judges should not be an exception. Somehow, however, I have a sinking feeling that it will take much more for the conservative canard to fade from view.

The Health Care Debate Heads to Court

Go back to my colleague Dawn Johnsen's Senate hearing last year to head the Office of Legal Counsel (a position for which, embarrassingly enough, she is yet to even get an up-and-down vote). At about 1 hour and 11 minutes into the hearing, Senator Sessions volunteered the following:

“I think that Roberts and Alito represent two of the finest exponents of a classical interpretation of law, a classical view of the role of a judge I have ever seen, and it troubles me that you would think that they . . . would be somehow setting about to radically remake the Constitution.”

“I think Justice Alito and Justice Roberts have classical judicial philosophies that would really trouble me if somebody thought they were unfit for the bench, and somehow set about to radically remake the constitution.

“It’s the activists that are remaking the constitution, not the classical judicial jurists.”

Reading these words, the recent Citizens United case might readily come to mind, as clear an exercise in judicial activism as we are likely to see. What that case has to do with a classical judicial philosophy, I cannot say.

I wonder what Senator Sessions thinks of the next step in the health care debate: a call by various state attorney generals, joined by Baker Hostetler as outside counsel, to overturn the legislation in the courts.

I understand the logistics: to lose in Congress is only to lose the first fight in a long and drawn out battle. It is also true that this is not a new development, as just about every major piece of legislation is ultimately challenged in court. Nobody likes to lose, after all, and you only need to find find five justices at the end of the line who agree with you. The Republicans can count votes as well as anybody else.

It is also hard to blame the lawyers. As they pointed out, to work in this particular case is "enormously gratifying and intellectually rewarding," and the law firm will only charge a "substantially reduced" rate.

I get all that. What I don't get is the unchallenged assertion that "conservative" justices are paragons of judicial moderation, classical jurists who interpret law, not make it, while the "liberals" are the judicial activists, hell-bent in their desire to radically remake the Constitution.

That so many people believe such a lie, and that a sitting U.S. Senator can tell it publicly, is one of the great conservative triumphs of this generation. Conservative jurists can strike down any piece of legislation they want, from the Religious Freedom Restoration Act to gun control legislation and campaign finance laws, and rather than scorn, Senator Sessions welcomes it as exercises in judicial restraint and classical jurisprudence (whatever that means).

The health care debate is only the latest installment in this ongoing narrative. Republicans fought the good fight, yet ultimately lost. It happens. Rather than prepare for the next fight, however, they are preparing to go to court. Their arguments are not novel: Congress lacks power to require individuals to buy health insurance; penalizing those who fail to buy insurance violates the tax-apportionment clause of the U.S. Constitution; and the legislation grants the U.S. government new powers in violation of the 10th Amendment. But that is hardly the point.

This is a canard, plain and simple. Conservatives, no more and no less than liberals, are judicial activists, and Justices Scalia and Thomas are just as intent in "radically remaking the Constitution" as Justices Marshall and Brennan. The moment we come to recognize this, the better off we will all be. For one, the judicial confirmation process would improve immeasurably.

But I am not holding my breath.

Tea Parties and Racial Epithets

I don't know whether it is true that that individual tea party protesters have used racists and homophobic epithets against Democratic lawmakers (see for example this report by Politico's Kenneth Vogel and this report). But even if it is true, Democratic leaders should have a muted reaction and should not attempt to use this for political gain.

Black Elites' Increasingly Public Rift on President Obama: What Does it Mean?

When President Obama was candidate Obama one question that preoccupied many black intellectuals was whether his candidacy or eventual presidency would be good for the blacks.  Notwithstanding the tremendous amount of progress that African Americans have made in the last 50 years, experts who work in this area will tell you that African Americans lag whites in almost all areas of socio-economic well-being.  The question among black elites was : (a) whether candidate Obama should be viewed as just another politician and thus should be made to compete for the votes of black voters by stating explicitly what he would do to help narrow the myriad equality gaps  or (b) whether the tantalizing prospect of a black man becoming President of the United States was so significant that all black people should simply get in line and vote.  Black people did get in line and vote in overwhelming numbers and the question was trampled by the euphoria of having a black family in the White House. But now the dissension among the black elites is back and it is becoming increasingly public.

Would the Supreme Court Find Deem and Pass Constitutional?

After the strum and drang on the constitutionality of deem and pass, there seems to be less hyperventilation from the blogosphere on the constitutionality of deem and pass. For example Jack Balkin is now also citing Field v. Clark (see my earlier post here relying on Field v. Clark for the proposition that deem and pass is constitutional) for the proposition that the procedure would be effectively unreviewable.  In my view, the constitutional question is pretty much settled.  Left unexplored however is how the current Court might react to deem and pass.  This is a question that will pit the formalists versus the pragmatists.