Ask Kagan about ObamaCare
Senate Judiciary Committee members should be sure to ask Solicitor General and Supreme Court nominee Elena Kagan, during her upcoming confirmation hearings, whether she or her office played any part in crafting ObamaCare or the administration’s defense to the lawsuits challenging that law. If Kagan helped to craft either, that would present a conflict of interest: when those lawsuits reach the Supreme Court, she would be sitting in judgment over a case in which she had already taken sides.
Though the Solicitor General deals with appellate matters, it is certainly possible that Kagan was consulted during the drafting of the law or the administration’s legal strategy for defending it.
The Senate Democrats who drafted ObamaCare took pains to protect it from a constitutional challenge. The law contains several pages of findings designed to show that the Constitution’s commerce clause authorizes Congress to force Americans to purchase health insurance. It would have been prudent for Senate Democrats to ask the government’s top appellate lawyer, who belongs to the same political party, whether they had done all they could to protect the “individual mandate” from a constitutional challenge.
Opponents began filing legal challenges to ObamaCare just minutes after President Obama signed it into law, and seven weeks before he announced Kagan’s nomination. On Tuesday, the Obama administration filed its first response, to a private lawsuit. According to the Associated Press, that filing “is to be followed in coming weeks and months by federal government court responses to lawsuits filed by many states.” Regarding the case filed by 13 (soon to be 20) state attorneys general, The New York Times reports, “Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it.” It is not certain, but it is certainly possible that the Office of the Solicitor General was consulted on the government’s response to lawsuits that would likely reach the Supreme Court.
If Kagan played a role in drafting ObamaCare or formulating the administration’s legal defense, and is confirmed by the Senate, propriety would dictate that she recuse herself from any challenges to that law that reach the high court. Supporters and opponents alike should be interested to know whether the Court will judge ObamaCare with nine justices on the bench, or eight.
Filed under: General; Government and Politics; Health Care; Law and Civil Liberties
NYT: Attorneys General Advance “a Credible Theory for Eviscerating” ObamaCare
The New York Times‘ Kevin Sack reports on the legal challenge to ObamaCare’s individual mandate launched by 20 state attorneys general:
Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it…
Jonathan Turley, who teaches at George Washington University Law School, said that if forced to bet, he would predict that the courts would uphold the health care law. But Mr. Turley said that the federal government’s case was far from open-and-shut, and that he found the arguments against the mandate compelling.
“There are few cases in the history of the court system that have a more significant assertion of authority by the government,” said Mr. Turley, a civil libertarian who acknowledged being strange bedfellows with the conservative theorists behind the lawsuit. “This case, more than any other, may give the court sticker shock in terms of its impact on federalism.”
Supporters claim the individual mandate will pass muster with the Supreme Court because in the past the Court has declared that the U.S. Constitution’s interstate commerce clause authorizes Congress to regulate non-commercial activity that affects interstate commerce. Sack writes:
Lawyers for the government will contend that, because of the cost-shifting nature of health insurance, people who do not obtain coverage inevitably affect the pricing and availability of policies for everyone else. That, they will argue, is enough to satisfy the Supreme Court’s test.
But to [the attorneys' general outside counsel David] Rivkin, the acceptance of that argument would herald an era without limits.
“Every decision you can make as a human being has an economic footprint — whether to procreate, whether to marry,” he said. “To say that is enough for your behavior to be regulated transforms the Commerce Clause into an infinitely capacious font of power, whose exercise is only restricted by the Bill of Rights.”
Sack’s article contains an inaccuracy. He writes:
Congressional bill writers took steps to immunize the law against constitutional challenge…They labeled the penalty on those who do not obtain coverage an “excise tax,” because such taxes enjoy substantial constitutional protection.
In fact, the law uses the term “excise tax” several times, but never in reference to the penalty for violating the individual mandate. It describes that penalty solely as a penalty. (The law does refer to the penalty for violating the employer mandate as a tax, but not an excise tax.)
As my Cato colleague Randy Barnett explains, that means supporters cannot reasonably claim that the individual mandate’s penalty is a tax, because that’s not what Congress approved. As Cato chairman Bob Levy explains, even if supporters do claim that penalty is a tax, it would be an unconstitutional tax, because it does not fit into any of the categories of taxes the Constitution authorizes Congress to impose.
The “substantial constitutional protections” afforded to excise taxes do not protect the individual mandate.
Kagan Nomination Launches Constitutional Debate
As expected, and despite an exhaustive review of shortlist candidates, dead-end leaks about Hillary Clinton, and other distractions, President Obama settled on the long-time prohibitive favorite to be his next Supreme Court nominee. Elena Kagan became the justice-in-waiting the moment Sonia Sotomayor was confirmed, so you didn’t have to be Tom Goldstein to have predicted this. The president wanted a highly credentialed non-judge who would serve for a long time and wouldn’t cost too much political capital. He got a 50-year-old solicitor general and former dean of Harvard Law School – the first female in each post – whose record the Senate (and media, and activists) already examined in a confirmation process that put her into her current post. That her appointment would put three women on the high court for the first time also doesn’t hurt.
Kagan is certainly not the worst possible nominee from among those in the potential pool – that would’ve been Harold Koh, had President Obama been most inclined to appoint the first Asian-American justice – but others would have been better in various ways. Although all Democratic nominees would be expected to have similar views on hot-button “culture war” issues like abortion, gay rights and gun control, Diane Wood is a renowned expert on antitrust and complex commercial litigation, for example, and Merrick Garland would almost certainly bring a stronger understanding of administrative law. Although some on the left are concerned that replacing Justice John Paul Stevens with Kagan “moves the Court to the right,” there is no indication that the solicitor general is anything but a standard modern liberal, with all the unfortunate views that entails on the scope of federal power. Another concern is her mediocre performance in her current position – the choices of which legal arguments to make from those available to her in defending federal laws in Citizens United and United States v. Stevens, for example, were not strategically sound – though she may well be better suited to a judicial rather than advocacy role.
In any event, with Democrats still holding a 59-seat Senate majority, Elena Kagan’s confirmation is in no doubt whatsoever. The more interesting aspect of the next couple of months, culminating in hearings before the Judiciary Committee, will be the debate over the meaning of the Constitution and what limits there are to government action. In an election year when a highly unpopular and patently unconstitutional health care “reform” was rammed through Congress using every procedural gimmick imaginable, voters are more sensitive to constitutional discourse now than they have been in decades. From bailing out the financial and auto industries to fining every man, woman and child who doesn’t buy a government-approved health insurance policy – and, coming soon, regulating carbon emissions – the Obama administration is taking over civil society at a rate that alarms Americans and fuels both Tea Party populism and interest in libertarian policy solutions (which Cato is happy to offer but wishes were implemented on the front end instead of being invoked as a response to destructive statism). The Kagan nomination is the perfect vehicle for a public airing of these important issues.
Senators should thus ask questions about the meaning of the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause, to name but three provisions under which courts have ratified incredible assertions of federal power divorced from those the Constitution discretely enumerates. If Elena Kagan refuses to answer such queries substantively – employing the usual dodge that she may be called upon to interpret these clauses as justice – we can rightfully hold that response against her, as she herself counseled in a law review article 15 years ago.
More on the (Un)Constitutionality of Obamacare
Earlier this week, I reacted to reports that the University of Washington couldn’t find any legal scholars willing to question Obamacare’s constitutionality by issuing a challenge: I will debate the constitutional merits of Obamacare against anyone, anytime, anywhere (as long as the sponsoring group/individual covers my travel expenses). Here’s a video version of my challenge:
Cato adjunct scholars Dave Kopel and Ilya Somin, blogging at the Volokh Conspiracy, go into much greater depth on the myth of an expert consensus.
And if you’re tired of hearing the debate about the debate and want to hear the latest on why the individual mandate is unconstitutional, listen to my colleague (and Cato’s chairman) Bob Levy’s podcast.
Why Do Libertarians Care about Federalism?
That’s the question NYU law professor Rick Hills asks over at PrawfsBlaws:
So why do American libertarians think that federalism is consistent with their commitment to individual liberty? Why not, instead, support a strong national government that can suppress subnational trade wars and protect a robust set of national liberties? What’s the payoff, in terms of individual liberty, from protecting subnational jurisdictions’ exclusive jurisdiction over certain topics?
In other words, if government is bad, why do we want a multiplicity of governments — federal, state, local — all presumably restricting individual liberty in some way?
Well, with all due respect to Prof. Hills — who also graciously commended Cato’s brief in Comstock, in which we argue that that Congress cannot enact a civil commitment statute for sexual predators because there is no such enumerated power and it cannot be inferred from the Necessary & Proper Clause — his analysis erroneously assumes that libertarians (he specifically mentions Cato, our senior fellow Randy Barnett, and our adjunct scholar Ilya Somin) are results-oriented in our approach to constitutional interpretation. And we shouldn’t pursue federalism, he says, because it’s against our interests.
Both of these premises are flawed. I won’t go into much detail because Randy and (the other) Ilya have already provided reactions at the Volokh Conspiracy here and here, with which I agree. First , we like federalism because that’s the system the Constitution set up and luckily, the Constitution is, for the most part, a libertarian document. Second, the Framers set up the Constitution that way because the different levels of government would exist not to multiply power-hungry bureaucrats’ opportunities for mischief but precisely to disallow dangerous aggregations of power. So from the get-go there was no possibility of federal tyranny and, after the Fourteenth Amendment empowered Congress and federal courts to protect individual rights against state infringement, there was to be no state tyranny either.
And so, much as we like the strict limitations on Congress’s power — the express enumerations of Article I, section 8, the Commerce Clause, etc. — we also like the Due Process, Equal Protection, and Privileges or Immunities Clauses of the Fourteenth Amendment. There is thus no conflict between federalism as a structural constitutional provision that promotes liberty and other, “anti-federalist” provisions that also promote liberty. In practice that means there is no conflict between arguing that Obamacare exceeds the federal government’s authority while asking the Supreme Court to strike down Chicago’s handgun ban. The original meaning of the relevant constitutional provisions support both arguments — and both arguments enhance liberty!
It really is a remarkable document, this Constitution. Too bad its proper understanding has been lost.
For related thoughts on this fascinating debate, Randy proposes a constitutional amendment that might get us back to the federalism we once knew while (the other) Ilya dispels another of Prof. Hills’s minor premises, that European libertarians diverge from Americans on the issue of federalism.
Is the Health Care Lawsuit For Real?
The Hill asked me the following question:
Thirteen state attorneys general have filled a lawsuit claiming that the new healthcare reforms are unconstitutional. Is this a real legal challenge or a political stunt?
Here’s my response:
The challenge is very real—and necessary—but we are in uncharted territory here so it’s difficult to predict how courts will react.
The strongest and most important legal argument attacks the constitutionality of the individual mandate to buy a certain approved health insurance plan. Never before has the federal government—or any other—tried to force Americans to buy a particular good or service. Never before has it said that every man, woman, and child alive has to purchase a particular product, on penalty of civil or criminal sanction or forfeiture. And never before have courts had to consider such a breathtaking assertion of raw power — not even during the height of the New Deal, when the Supreme Court ratified Congress’ regulation of what people grew in their backyards on the awkward theory that such behavior affected interstate commerce.
The individual health care mandate is an even greater expansion of congressional power under the Commerce Clause. And it cannot be justified under the Necessary and Proper or General Welfare Clauses either, because these provisions guide the exercise of Congress’ enumerated powers without adding to them. In short, if the challenges to this health care “reform” fail, nobody will ever be able to claim plausibly that the Constitution limits federal power.
You can read here the responses of other pundits — including several non-lawyers, curiously.
The States Respond to ObamaCare
Today Politico Arena asks:
Do the 13 state attorneys general have a case against ObamaCare?
My response:
Absolutely. It will be an uphill battle, because modern “constitutional law” is so far removed from the Constitution itself, but a win is not impossible. There are three main arguments. (1) Under the Constitution, as properly interpreted, Congress has no power to enact such a plan. (2) The plan conscripts state governments into carrying out and paying for federal mandates. And (3) the individual mandate amounts to an unlawful capitation or direct tax.
Actually, Justice Breyer, the Constitution Enumerates Specific Powers, not Limitations on Otherwise Plenary Federal Power
Today I went to the Court to watch the argument in United States v. Comstock, which I blogged about previously and in which Cato filed an amicus brief. As I also blogged previously, Cato’s arguments so concerned the government that the solicitor general spent four pages of her reply brief going after them.
At issue is a 2006 federal law that provides for the civil commitment of any federal prisoner after the conclusion of his sentence upon the appropriate official’s certification that the soon-to-be-released prisoner is “sexually dangerous.” The problem is that, while states have what’s called a “police power” to handle this sort of thing — to appropriately deal with with threats to society from the dangerously insane and so forth — the federal government’s powers are limited to those enumerated in the Constitution. And I’m sorry, there’s no power to civilly commit people who have committed no further crime beyond those for which they’ve already been duly punished.
The Constitutionality of the Individual Mandate
Ezra Klein defends an individual healthcare mandate against charges that it’s unconstitutional, and what’s striking to me is that the argument seems awfully wobbly even if you’re on board with a lot of the post–New Deal jurisprudence about the scope of federal power. Sez Ez:
The summary is that you can look at the individual mandate as a tax, which is constitutional, or as a regulation forcing private actors to engage in a certain transaction, much like the minimum wage, which is also constitutional. I’ve also heard scholars mention auto insurance, which is an obvious analogue, and the Americans With Disabilities Act, which proved that the government can order businesses to install ramps, despite the fact that the constitution doesn’t explicitly give the federal government jurisdiction over entryways.
This doesn’t seem like the right level of analysis. Some taxes and regulations are within the ambit of federal powers; that doesn’t mean anything capable of being so described is. Some things not explicitly and specifically mentioned in Article I are nevertheless necessarily implicit in the enumerated powers; that doesn’t mean anything is. Auto insurance seems like a poor analogue because it’s a condition of access to government-maintained roadways. Ezra also mentions Massachusetts’ individual mandate, which seems rather beside the point in a discussion of the scope of Congress’ Article I powers. But bracket that. Even if you think the federal commerce power legitimately extends to legislation like the ADA, there’s intuitively a world of difference between saying that a commercial enterprise providing services to the public must provide them in such-and-such a fashion and insisting that private persons have to engage in a specified type of transaction just by dint of being alive. I don’t think the best reading of the Commerce Clause encompasses either, but it’s not that hard to conceive a reading that extends to the former but not the latter. I stress this just because I don’t think you have to be a libertarian or have a very restrictive view of the legitimate scope of federal power to believe there’s a genuine question here. The real form of the argument here looks an awful lot like: “Look, we’ve stretched commerce…between the several states so absurdly already, why are we even pretending it might be found to exclude anything?”
As it Turns Out, There Are Limits on Congress’s Power
In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. One provision of the law authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.
Six days before the scheduled release of Graydon Comstock — who had been sentenced to 37 months in jail for receiving child pornography — the attorney general certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone.
Comstock and several others challenged their confinements as going beyond Congress’s constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case.
Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress’s limited and enumerated powers. The government’s reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely “carries into execution” the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers.
While the government justifies its actions by invoking its implied power “to establish a federal penal system” — itself a necessary and proper auxiliary to certain enumerated powers — civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity.
As the Supreme Court recognized almost 150 years ago in Ex Parte Milligan, “[n]o graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole,” than the government’s unconstitutional assertion of power against its own citizens. In this spirit, the Court should affirm the Fourth Circuit’s rejection of this blatant government overreach.
United States v. Comstock will be argued on January 12. You can read Cato’s brief here.
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