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HCR ruled unconstitutional — 31 Comments

1. Great news. If Obama is a reprisal of FDR, is a court-packing scheme next?

2. On a general level (because most people will only understand “ruled unconstitutional”) this is great news because it will help keep the better remedy in view: repeal by Congress.

   This issue becomes non-complex merely by asserting that Wickard v. Filburn is unconstitutional.

   It needs to be overruled just like Plessy, just like Dred Scott, simply because the Commerce Clause has been misinterpreted by a Supreme Court made up of FDR appointees who were legislating from the bench.

   The Wickard Court reasoned that growing one’s own wheat (in this case, for chicken feed) with no intention of ever allowing it to leave the farm, much less cross state lines in commerce, meant you wouldn’t need to buy as much wheat. Therefore, your actions affected interstate commerce, bringing them into the sphere of federal government control.

   Lisa Simpson: That’s specious reasoning, Dad.

   Homer Simpson: Thanks, Sweetie.

   Its clear that the Supreme Court, like Homer, did not appreciate the term “specious reasoning.”

   A look at who was deciding what is instructive:

   The what:

   “regulate” as used in the Constitution means “make regular” not “control.”

   The purpose of the Commerce Clause is to ensure regularity (uniformity) amongst the States in matters of trade, not give the federal government authority to stick its nose into every economic transaction.

   The Who: In 1942, there were seven FDR appointees plus Roberts and Harlan Stone as Chief who was promoted to that position by FDR.

   The simplicity of Wickard and Obamacare is revealed by who is deciding what. In Wickard, a command and control economy was being foisted upon America at a time when it seemed capitalism had failed, but there was an obstacle in the way: The U.S. Constitution. Given that the Constitution was written to limit federal power, how can an interpretation where federal power is expanded by correct?

3. I’m encouraged by this development, and sincerely hope the conservatives on the court don’t blink and that Kennedy is in a conservative frame of mind that day.

   Kennedy may even consider this a prime opportunity to poke Obama in the eye for the State of the Union debacle….

   One can hope.

   Regarding Wickard v. Filburn, I don’t see even a conservative court simply reversing itself – but I do have hopes that it would try to find a path that would eventually dismantle that particularly egregious verdict so that over time it becomes irrelevant.

   Kind of like what the left tried to do to the 2nd Amendment – only successful from an originalist viewpoint.

   Should that fail, there are amendments being proposed right now that would reclaim certain authority to the state legislatures, since the Senate has simply become a more elite version of the House of Representatives.

   Perhaps the threat that the states would become more vigorously active on that level would be enough to move the court to reverse itself, but I doubt it unless it was a very serious threat to their authority.

   Then again, a threat to their authority – specifically the authority of the Supreme Court – could be enough to get the message across to them that they risk becoming irrelevant if they don’t do the right thing.

4. More specious reasoning:

   Orin Kerr at “Volokh” says Judge Hudson opinion has a fairly obvious and significant error of logic.

   NO! The statement which is obvious and logical belongs to Judge Hudson. The fairly obvious and significant error of logic belongs to Kerr.

   The point, Kerr tells us, of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated lists of Article I powers to achieve the ends listed in Article I. According to Kerr, Hudson, by claiming the N & P clause does not provide the means to enforce Obamacare, is disallowing the extra means afforded by the N & P clause.

   But here is what Judge Hudson did say:

   “If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.”

   Hudson is only saying the means are constitutional when the end is constitutional. Hudson is not denying the validity of the N & P clause for constitutional ends.

   Kerr, in his third paragraph, equates “means covered by the Commerce Clause” with the N & P clause, which is specious reasoning because there are none of the former. The N & P clause is the means for “carrying into execution the foregoing powers.”

5. Curtis quoted from the opinion in question:

   “If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.”

   I am no fan of the HCR bill, but I think this illuminates a very common source of acrimony in reading judicial decisions, and that is where one’s starting presumptions are. Judge Hogan here is saying, as Curtis explained, if the end is unconstitutional then necessary and proper means to that end are no good either. But inasmuch as the necessary and proper clause must be given some meaning (i.e. it cannot be rendered surplussage), it has to interpreted — to at least some degree — to allow governmental actions which are not allowed elsewhere (if they’re already allowed elsewhere, than the N&P clause becomes meaningless).

   Now if you say, as Judge Hogan did, that making people buy health insurance is not a constitutionally permissible end, then the means to enforce that end are no good either. But what if you say making people buy health insurance is not an end at all, but a means to a permissible end of expanding availability of health care and lowering health care costs? (This is not to argue it would work out that way; it is to argue that would be the expressed intention behind it). That end is probably permissible under the commerce clause, as no one could argue health care does not affect interstate commerce. Seen that way, compelling people to buy insurance, instead of being an impermissible end, becomes a means to a permissible end, and therefore it is OK under the N&P clause.

   If you consider it both “necessary” and “proper,” which is another test entirely. But as I understand the precedent it is one the individual mandate would likely pass.

   BTW I am a lawyer but by no means a specialist in constitutional law. So a healthy grain of salt is probably well-advised here.

6. But what if you say making people buy health insurance is not an end at all, but a means to a permissible end of expanding availability of health care and lowering health care costs?

   So an unconstitutional means is ok as long as it isn’t the end? That certainly doesn’t seem to be the way our legal system works, there are many law enforcement actions that are unconstitutional means to constitutional ends . . .

   My view of constitutionaliity is that the constitution applies a set of black and right rules irrespective of means and end.

   That end is probably permissible under the commerce clause, as no one could argue health care does not affect interstate commerce.

   Affect?

   Well, no doubt health care does effect interstate commerce. Frankly, the consititution doesn’t give the feds the ability to regulate anything that effects interstate commerce, that was a bad supreme court decision that accomplished that. Everything effects interstate commerce; even my choice of favorite color (which no doubt can also be regulated).

7. A wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement.

   Agriculture, manufacturers, commerce, and navigation, the four pillars of our prosperity, are then most thriving when left most free to individual enterprise.

   I am for a government rigorously frugal and simple. Were we directed from Washington when to sow, when to reap, we should soon want bread.

   Quotes from the founder of the Democratic Party.

8. Don said:

   “So an unconstitutional means is ok as long as it isn’t the end? That certainly doesn’t seem to be the way our legal system works, there are many law enforcement actions that are unconstitutional means to constitutional ends . . .”

   I think the Supremes weighed in on this earlier this year. Discussing the N&P clause:

   The Clause grants Congress broad authority to pass laws in furtherance of its constitutionally enumerated powers. It makes clear that grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or “useful” or “conducive” to the enumerated power’s “beneficial exercise,” e.g., McCulloch v. Maryland, 4 Wheat. 316, 413, 418, 4 L.Ed. 579, and that Congress can “legislate on that vast mass of incidental powers which must be involved in the constitution,” id., at 421. In determining whether the Clause authorizes a particular federal statute, there must be “means-ends rationality” between the enacted statute and the source of federal power. Sabri v. United States, 541 U.S. 600, 605, 124 S.Ct. 1941, 158 L.Ed.2d 891. The Constitution “addresse[s]” the “choice of means” “primarily … to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.” Burroughs v. United States, 290 U.S. 534, 547-548, 54 S.Ct. 287, 78 L.Ed. 484.

   United States v. Comstock, 130 S. Ct. 1949, 1951-52, 176 L. Ed. 2d 878 (2010).

   I think the limits currently recognized for the N&P clause is that it allows pretty much anything which is not actually prohibited elsewhere in the Constitution. So assuming health care reform is itself a permissible end, you’d have to find something affirmatively prohibiting the individual mandate to make it impermissible as a means.

   There’s a good discussion of all this here.

9. A brilliant argument for Obamacare: We need it to rescue our economy. Government, having done so well with senior retirement and education of the young, is the only body capable or trustworthy enough to safeguard the health of its citizens. Constitutionally speaking, Obamacare is essential to ensure the domestic tranquility.

   Richard Johnston’s point bears oft repeating: where one’s starting presumptions are determines much. No amount of arguing will resolve the essential difference between the red and the grey. (Red is blood, life; Grey is living death)

10. No ONE would ever confuse Obama with FDR, and no, he has no way of packing the SCOTUS even if he wanted to, which he doesn’t.

    I think , honestly, they knew Obamacare was going to lose in the Supreme Court when it gets there. Obama was never about really reforming health care to begin with. This whole farce has had two purposes:
    A. Safeguard the insurance companies profits.
    B. Allow Obama to look like he’s actually done something or at least “tried’ to do something. If the SCOTUS does strike it, or parts of it , down – well, he tried didn’t he? It’ll be the same thing when the Republicans in congress defund what is left of it.

    Kabuki. But it’s sure upset alot of you. As I said in one thread a few weeks ago – healthcare needs a major overhaul and I’d either go full fledged libertarian or do the dreaded Public Option, not this farce.

11. Da big O says he is ready for a fight..

    “I will be happy to see the Republicans test whether or not I’m itching for a fight on a whole range of issues,” Obama said last week. “I suspect they will find I am. And I think the American people will be on my side on a whole bunch of these fights.”

    Rawr… like Bert Lahr?

    Moody’s warned Monday that it could move a step closer to cutting the U.S. Aaa rating if President Obama’s tax and unemployment benefit package becomes law.

    After Obama announced his plan, Treasury prices fell sharply in volatile trade last week and yields have hit a six-month high, in part due to concerns over the effect the package will have on government debt levels.

    If the bill becomes law, it will “adversely affect the federal government budget deficit and debt level,” Moody’s said.

12. If you are following the Volokh thread, you will see why the best remedy is for Congress to repeal Obamacare. Many see Hudson’s ruling as judicial activism and from their standpoint they are right given the precedents that have been set forth from and since Wickard. A superior authority must address the question and that superior authority is of course the sovereign will of the people as expressed through their representatives to make law. People seem to forget this very important distinction. Congress makes law and if the people don’t want Obamacare, they don’t have to have it. We need not fight it at the more limited and nuanced level of constitutional precedent. Only two questions present? Do the people not want it? Is it Constitutional to repeal it? If the two answers are yes, then there’s no problem except the will of the people to make it happen.

13. @ Richard Johnston 6:38 pm. I think the limits currently recognized for the N&P clause is that it allows pretty much anything which is not actually prohibited elsewhere in the Constitution. In other words, one small part of a document whose purpose is to limit the authority of Congress to powers specifically enumerated therein is being used to empower the Congress without limit. (This cannot be done without also ignoring into oblivion the ninth and tenth amendments.)

    This. cannot. possibly. be. correct.

    It doesn’t take a legal education, or even very much intelligence, to understand that.

    What it takes is awareness: awareness that all three branches of the federal government have been on a continual power grab for at least 7 decades, if not longer: the vaunted checks and balances that we learned about when we were growing up do not function, and have not done so in a very long time.

    @ Curtis. Ditto to all of your comments here. 🙂

14. Richard Johnston: You were dead on with your analysis:

    “But what if you say making people buy health insurance is not an end at all, but a means to a permissible end of expanding availability of health care and lowering health care costs?”

    Substituting the end for the means and creating a new end is just a contrivance. The attorneys can play with words all they want but we know we can’t allow wordplay to justify socialism.

15. I’m not a con law specialist, but I’ve studied under people who are, and my sense of the matter is that, unfortunately, Richard Johnston is correct.

    From reading the Volokh guys argue for several months – mainly Barnett and Kerr – I get the impression that Comstock was a pretty important opinion, and there is no way to tell how five on the current court will apply it to Obamacare.

    Part of the problem is that the N&P clause has for a very long time been used as a cudgel in ideological disputes on the Court, particularly over war powers, but not exclusively. If you read Milligan or the dissents in Myers, Neagle, and the Prize Cases, it’s pretty clear that there has always been a tendency to use N&P as an all-purpose signifier for “Congressional supremacy,” and there is always a tendency to let congressional supremacy in government slide into congressional supremacy over all aspects of life. Even the great John Marshall showed some tendency to that view in his war powers decisions, and McCuloch can be read that way (probably incorrectly, but that’s not the issue).

    The only way, it seems to me, that Kennedy is going to go along with the “four horsemen” is if he can be persuaded that Obamacare is not “proper,” and if he can be persuaded that Wickard is distinguishable. As Noah Feldman said recently, Justice Kennedy has never met a right he didn’t like, and the question is where he will decide the “right” is in this case – with the people or with the government. Perhaps the Florida court will do a better job in beginning to make that case.

    Ultimately, we can’t rely on the courts. We need to repeal this disaster down to the last ipse dixit.

16. I’m not a Con law guy either, and I haven’t been diligent in keeping up with the ongoing Volokh discussions. I do, however, find heartening Richard Epstein’s typically interesting take on the Necessary and Proper issue ever at NRO. See http://www.nationalreview.com/corner/255188/obamacare-now-ropes-richard-epstein

    He notes, first of all, that Hudson does deal with the troublesome New Deal era Wickard case that extended federal authority over every kernel of wheat in the contiguous 48 (“It rather insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate.”)

    More interesting, though, is his Necessary and Proper discussion. Analyzing the mandate as a cross-subsidy, Epstein argues “if X group is entitled to the subsidy, we can somehow identify the Y group who is duty bound to pay it. So as a normative matter, it is hard to explain why the individual mandate has to be the flip side of the subsidy when general taxes are still available.” In fact, Epstein shows, the X group could be funded through the general fund.

    The mandate is not “Necessary,” regardless of whether it is “Proper.”

17. lb100 – I saw Epstein’s analysis, and while I agree with him as a matter of principle, I’m not sure that’ll do it w/r/t disposing of the necessity argument.

    Marshall was clear, as far as I recall, in McCulloch that “necessary” need not mean “absolutely necessary.” So, the Bank of the US was not the only way to raise the funds and perform the tasks the government wanted to perform, but it was one legitimate way of doing so that was appropriate in the circumstances.

    Furthermore, Comstock is a real problem. If you read the relevant section of the opinion, it basically says that all of whatever “necessary” is supposed to mean is to be defined by Congress. The question is if that means “on the understanding that it meets a rational basis test” or not. And even if that is implied, the rational basis test is a thin reed indeed on which to hang our hopes.

    To cut to the chase, and without pretending to be an expert (Epstein could be right for all I know), I just don’t see Kennedy being persuaded by Epstein’s reasoning or anything too “constricting”-seeming on the “necessary” question. I could see him feeling more comfortable finding a way to distinguish Wickard – and Epstein is persuasive on that. I could see him feeling better about making this a one-off thing relating to some nebulous standard of propriety that he would get to define – that he loves to “cross the Rubicon” as he always says in his typically vain way is clear. Mass. v EPA and Boumediene v Bush are cases in point.

    In short, he is not going to want to do anything that seems or could be construed as being too “conservative.” Toying with “necessary” not long after Comstock in favor of striking down a liberal shibboleth is not his MO, as I read him.

    But one thing that has me second guessing is his patent refusal to retire at least during Obama’s first term. He seems to be itching to “cross” another “Rubicon,” and I think he might actually like to be the guy who did Mass v EPA, Boumediene, AND striking down the mandate.

    Then he could be the leader of the No Labels party after he retires.

18. Kolnai–Those are strong points. I can’t argue with anything you say.

    I do take some refuge in a comment, made in the wake of the leaked Tribe letter regarding Sotomayor’s possible unsuitability, that she may be so offputting that she will drive Kennedy over to the Scalia wing. This would be a great time for ‘ol Tony to show his pique.

19. lb100 – hear hear!

    The really unfortunate thing in all of this is that we have contorted our constitutional doctrine so much that we actually have to pretend like this is debatable.

    I don’t for a second believe that Washington, Madison, Jefferson, Morris, Jay, Marshall, (James) Wilson, or any of those guys would doubt that this health care law was an abomination. At most I might believe that maybe, just maybe, someone like Jefferson (as President, not as an ideologue) or Hamilton would accept a temporary mandate as an emergency measure – perhaps like price controls or something.

    I just don’t think very much constitutional sophistication is needed to see that even if the bill is arguably alright, the process was a completely undisciplined free-for-all that needs to be rectified post haste. (In case you can’t tell, I’m a Hadley Arkes guy as far as constitutionalism goes – I think it’s principally about maintaining republican etiquette and discipline at the functional level).

    Hence, it is very, very doubtful than any Founder would admit the Constitutionality of the bill; and it is even more doubtful that any one of them would say it was generated in a republican manner. Yes, it was technically passed by both houses and signed by the President, but so much of that result was purchased by bribes and pay-offs and procedural tricks that it comes as close to being illegitimate as a legitimate bill can be.

    It was – if you’ll pardon what looks like a redundancy – simply “bad politics.” It is a low law, drafted lowly, and passed in a manner befitting some pit below Tartarus. The whole spectacle was disgusting, and I think nearly all, if not all, of the Founders would have agreed.

    Somehow that judgment – whether one calls it a matter of constitutionality or simply republican propriety – has to emerge from all of this politicking and bury this bill.

    I’m using strong language, but that’s my thinking on the matter, undiluted. This goes far beyond con law interpretive traditions and precedents per se, and goes into the realm of the very sprit of our national project. Clearly those progressives who support the bill agree, else they wouldn’t be so evangelical in their claims about it. We ought to meet them on that ground, and re-assert what we know is the spirit they wish to distort beyond all recognition.

    Alright. Homily finished.

20. One thing is clear: this issue, and many many others now, cannot and must not be left up solely to the lawyers, black-robed or not.

    No offense intended. 🙂

21. My head hurts reading all these comments. And you all say physics is difficult and hard to understand! 😉

22. The problem with going into precedent is that the precedent is wrong. The precedent is dominated by Wickard and its progeny. I don’t believe the Supreme Court has the courage or mind to do what needs to be done and declare all the precedent mush and flush it.

    Sad that retaining the original intent of limited government is now judicial activism.

    Robert’s “one’s starting presumptions” applies here. The precedents do not have the starting presumption of limited government. Therefore the language and the structure of the precedents create the intended result and bar, logically, any other.

    More Jefferson quotes:

    My reading of history convinces me that most bad government results from too much government.

    The natural progress of things is for liberty to yield and government to gain ground.

    Every government degenerates when trusted to the rulers of the people alone. The people themselves are its only safe depositories.

    Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.

23. Armed rebellion may not be necessary after all, but it is still too early to say with certainty.

24. # physicsguy Says:
    December 14th, 2010 at 10:04 am

    My head hurts reading all these comments. And you all say physics is difficult and hard to understand! 😉

    AMEN, physicsguy! (My major was chemical engineering.)

25. ELC said:

    “In other words, one small part of a document whose purpose is to limit the authority of Congress to powers specifically enumerated therein is being used to empower the Congress without limit. ”

    You will like what Randy Barnett and Kurt Lash have to say here.

26. Artfldgr:
    Da big O says he is ready for a fight..

    “I will be happy to see the Republicans test whether or not I’m itching for a fight on a whole range of issues,” Obama said last week. “I suspect they will find I am. And I think the American people will be on my side on a whole bunch of these fights.”

    Rawr… like Bert Lahr?

    Exactly!

    It’s been my experience that the ones to announce how ready they are to fight are lying. They are hoping that, by announcing their readiness to fight, they won’t have to. The real fighters don’t telegraph their intentions; they simply wait for the right time to fight, at which time they fight to win.

    President Obama doesn’t seem to understand the concept of “fighting to win”. He’d much rather get his opponents disqualified, so that he doesn’t have to fight at all.

    He’s a talker, not a doer. But we knew that already.

    respectfully,
    Daniel in Brookline

27. I’ve been considering the precedent problem, and the thought in my mind has gone from how can Obamacare be derailed, to how is the best way to undo Wickard vs Filburn?

    After all, without that precedent, much of what Congress likes to do falls for lack of authority.

    I don’t expect even the Roberts Court to overturn that case, so that means alternative methods should be investigated.

    So how can this be accomplished?

28. @ Curtis 11:22 am. The problem with going into precedent is that the precedent is wrong. The precedent is dominated by Wickard and its progeny. I don’t believe the Supreme Court has the courage or mind to do what needs to be done and declare all the precedent mush and flush it.

    Yes, the precedent is wrong. No, they don’t have the courage to flush it. Even more: they don’t want to do so. What they have done is this: they have, for practical purposes, eliminated the constitution and replaced it with their own rulings. They can’t recant Wickard and its descendants without admitting their gross abuse of power.

    @ Richard Johnston 12:48 pm. Thanks.

29. Richard Johnston points to the analysis of Kurt Lash, posted at Volokh today by Randy Barnett.

    I think Lash addresses some of the worries I and others had about Hudson’s opinion, but I suspect Orin is going to reply that it’s one thing to say “this mandate violates the letter and spirit of the Constitution” and another thing to show that based on the precedents.

    Personally, given what I said above, I think Hudson gets it exactly right if that’s indeed what he meant (and Lash convinced me that it is) – at a certain point, something is just “out of bounds” and there’s not much more to be said about it. “You know it when you see it.” Naturally that’s not a good legal rule, but philosophically that’s the truest thing that can be said about the mandate (and the entire bill, from process to final product). It’s an immediate offense to every republican tradition and sensibility we have.

    Anyway, I’m glad Lash clarified the matter and showed that Hudson did not make the elementary error attributed to him.

30. Bingo – William Jacobson at Legal Insurrection addresses the N&P issue:

    http://legalinsurrection.blogspot.com/2010/12/neither-necessary-nor-proper.html

    His argument is that the rule of construction applied by Orin Kerr and others – do not interpret clauses in such a way that they are rendered redundant – is not what Judge Hudson had in mind. He was thinking of another rule of construction that dictates not interpreting clauses in such a way that the rest of the document is rendered absurd.

    That is a very basic, solid argument for the statement that the mandate violates the spirit of the Constitution. I think it will easily win over Scalia, Roberts, Alito, and Thomas.

    Kennedy will shrug – there is no way the man who did Mass v EPA could possibly be moved by such a rule of construction.

    Still, this is the way to do it. The discussion has to remain at the level of fundamentals, and the more I look at Hudson’s opinion, the more admirable I find it in that regard.

31. “You know it when you see it”.

    That phrase was used by a SC justice – Potter Stewart I think – in reference to pornography. Not a bad analogy :^).

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