The Law

It’s Time For ObamaCare To Face A Death Panel

The Supreme Court is currently conducting a marathon three-day session of oral arguments on the challenges to ObamaCare, an almost unprecedented amount of time for the Court to consider any case. But the ObamaCare issue isn’t just another case, or even just another case involving weighty constitutional issues. If the Court upholds ObamaCare’s individual mandate, it will put the final nail in the coffin of the federal government being a government of limited, enumerated powers. If the federal government can force everyone to buy health insurance, there’s not much holding the federal government back from forcing us to buy certain foods, drive certain cars, or engage in any other activity that the federal government deems (in its infinite wisdom) to be for the “common good.”

ObamaCare supporters argue that health care is somehow different from everything else: because we will all use the health care system at some point in our lives, the government has a higher interest in regulating it and making sure that costs are allocated “fairly.” There’s a huge flaw in that argument: it’s a license for unlimited government power. As the example goes, why couldn’t the government make everyone buy broccoli? After all, you must participate in the market for food. Even those wraith-thin supermodels have to eat at one point or another. And broccoli is good for you, which would reduce health care costs. So why can’t Michelle Obama make everyone eat broccoli, or choose to pay a “penalty?”

For that matter, since the Chevy Volt is a massive taxpayer-financed boondoggle, why not mandate that everyone must buy a Chevy Volt or pay a “penalty?” After all, everyone must somehow participate in the “transportation market,” even those people whose only interaction with the market is when they buy their motorized wheelchair to carry their beached-whale bodies to the local buffet. So why not just mandate that everyone buy a Chevy Volt or pay a fine?

In fact, since Disney is taking a bath on John Carter, why shouldn’t they lobby Congress to make everyone in the country see the movie or pay a fine? After all, everyone participates in the “entertainment market” too.

And that’s the major constitutional problem with ObamaCare: a broccoli mandate, a Chevy Volt mandate, a John Carter mandate, they’re all separated from the individual insurance mandate by degree, not by principle.

The individual mandate is the most sweeping power grab of our generation—in terms of real-world impact it makes the PATRIOT Act look timid. And yet there’s been nowhere near the outcry about ObamaCare as they has been about the PATRIOT Act.

The Tax Man (Doesn’t) Cometh

The government has argued that the individual mandate’s penalty really is a tax. The reason why the government makes this argument is because of a federal law called the Anti-Injunction Act. The Anti-Injunction Act is a federal law that prevents people from challenging taxes in courts as a way of getting out of paying taxes. In other words, if the Court bought this argument, the challenges to ObamaCare would fail.

The government’s argument that the ObamaCare penalty really is a “tax” doesn’t save them. For one, it’s an argument that goes against the facts: nothing in the health care law makes the penalty into a tax other than the fact that it was shoved into the Internal Revenue Code. The President and Congressional Democrats were adamant that it was not really a tax, otherwise they would be accused of breaking their promise not to raise taxes on the middle class. Nor is the tax But when it became legally convenient to say that the “penalty” really was a tax, the government is now making that argument. But the penalty isn’t a tax in either form or substance, so that argument is unlikely to go anywhere. And, based on the Court’s skeptical questions in today’s arguments, it looks like the tax argument isn’t likely to carry much weight.

Kill (the) Bill

The problems with ObamaCare are legion, not only is it bad policy, but it sets a precedent that wipes away the system of checks and balances that keep our system of government functioning. The Supreme Court has this opportunity to stand up for the established constitutional order and strike down the individual mandate as a violation of both the letter and the spirit of the Constitution. If they do not, the costs could be grave. There’s not only the risk of eroding freedoms, but there’s a much more concrete risk as well: ObamaCare is bad law. It won’t make health care cheaper, it won’t make it easier for people to see a doctor, it won’t save lives. It will create a system where medical care is artificially limited by the government (both directly and indirectly). If that sounds a bit like a “death panel” concept, it should. Because that’s what has to happen: the government has no magic fairy wand that they can waive over our healthcare system to make health care cost less. The only way to reduce costs is to ration, and that’s exactly what would have to be done in order to make ObamaCare work.

But the Supreme Court isn’t concerned with health care policy, at least not directly. Their concern is with the question of whether ObamaCare is consistent with our constitutional order. It is not. The individual mandate in ObamaCare is no less unconstitutional than a broccoli mandate, a Chevy Volt mandate, or a mandate to see John Carter. The Commerce Clause isn’t a blank check for the government to take effective control of an entire sector of the American economy. The Supreme Court should serve as ObamaCare’s “death panel.”

The Law

Yes, Virginia, Congresscritters Should Care About The Constitution

Newsweek has a stereotypical hit piece on the recent Republican Pledge to America. Ramesh Ponnuru notes a curious passage from the piece:

Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.

Now, one shouldn’t expect too much from Newsweek—a magazine that quite literally isn’t worth the paper it’s printed on. But Slate‘s Dahlia Lithwick, who should know something about the Constitution given that she’s a legal correspondent also thinks there’s something weird about Congresscritters actually reading the Constitution.

Of course, that view is completely bonkers.

A Little Constitutional Law 101

Here’s why Congresscritters should care about the constitutionality of the bills they vote on: because they swore an oath to do that. Every member of Congress must take an oath of office. The oath states:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

How can a Congresscritter “support and defend the Constitution” without the ability to interpret what the Constitution means? It’s rather difficult to argue that someone is supporting and defending a document when they are purposefully ignoring it.

This oath is required by Article VI of the Constitution, which requires all federal and state officeholders to support the Constitution. That means that Congresscritters have the power to interpret the Constitution. That means that the President has the power to interpret the Constitution. That means that state governors have the power to interpret the Constitution. In order to support the Constitution, you have to know what you’re supporting.

Not only that, but there’s nothing in the Constitution that gives the judiciary the sole right to interpret the Constitution. In fact, there’s nothing in the text of the Constitution that gives the judiciary the right to interpret the Constitution at all. The ability for the Supreme Court to declare a law unconstitutional (what we lawyers call “judicial review”) isn’t in Article III of the Constitution, or anywhere else. So where does it come from?

If you remember Marbury v. Madison from your high school civics class, good for you. That is considered the first time that the Supreme Court said that it had the power to strike down a federal statute for violating the Constitution. Marbury wasn’t decided until 1803, years after the Constitution was ratified. Now, what you learned in high school civics class isn’t entirely true—the Supreme Court was always intended to have the power of judicial review, and Marbury just made that practice explicit. (Oh, and another thing about Marbury: it may have been wrong. Marbury struck down parts of the Judiciary Act of 1789 as violating the Constitution on a debatable legal theory. But don’t try making that argument in court…)

The Supreme Court even recognizes that it isn’t the final and only arbiter of what’s constitutional and what’s not. The Supreme Court won’t decide certain kinds of cases that may implicate a constitutional issue under what’s called the political question doctrine. The Supreme Court won’t, and can’t, decide a hypothetical question about the Constitution. In order for the Supreme Court to be able to make a decision, there must be a “case or controversy” under Article III of the Constitution. The Supreme Court simply will not hear cases, no matter how important the Constitutional issue, unless there’s something actually at stake for real live parties.

That’s why the idea that the Supreme Court, and only the Supreme Court, has the right to interpret the Constitution is so screwy. The Supreme Court can’t determine whether a pending bill in Congress is constitutional or not. Congress can’t ask the Supreme Court to do that job for them. So what would Lithwick and the editors at Newsweek have Congress do—pass a bill they suspect is unconstitutional and then wait for the Supreme Court to strike it down? That’s just silly, and it would be a violation of the Oath of Office that every Congresscritter takes.

That theory is an example of two things: first, that some people who should know better don’t know much at all about the Constitution, even those who supposedly write about the courts for a livings. Secondly, it exposes the fetishization of the judiciary on the part of some on the left. Yes, the judiciary has an important function in society. I’m a lawyer, so without it, I’d have to do something that actually adds value to society. But the judiciary is part of three co-equal branches of government. The judiciary isn’t a super-legislature. It can’t make executive decisions. Its primary purpose is to provide a check on the other two branches. Many on the left don’t understand why the judiciary was supposed to be the “least dangerous branch” of government. They don’t understand the concept that the role of a judge is a limited one, and is sharply and absolutely proscribed by constitutional limits. They see the courts as instruments of social change, and that’s not the way the courts are intended to function.

The Pledge to America is right: not only does Congress have the power to interpret the Constitution, they have the obligation to do so. If they could not interpret the Constitution, they would be unable to protect or defend it. If Congress stops caring about the constitutionality of the statutes they pass, then our system of government is in a great deal of trouble.

Political Philosophy, Politics, The Law

Congress To Illinois: Get Rid Of Blago Or No Cash

Jim Geraghty notes a curious provision in the stimulus bill directed at the State of Illinois:

None of the funds provided by this Act may be made available to the State of Illinois, or any agency of the State, unless (1) the use of such funds by the State is approved in legislation enacted by the State after the date of the enactment of this Act, or (2) Rod R. Blagojevich no longer holds the office of Governor of the State of Illinois.The preceding sentence shall not apply to any funds provided directly to a unit of local government (1) by a Federal department or agency, or (2) by an established formula from the State.

It seems to me that this move is unconstitutional. The federal government may condition receipt of federal funds on doing certain things. For example, the Supreme Court upheld the federal government only allowing for highway funding to the states if they raised the drinking age to 21. South Dakota v. Dole, 483 U.S. 203 (1987). However, that case only allowed the government to do so for reasons related to the “general welfare”. Helvering v. Davis, 301 U. S. 619, 640–41 (1937).

The question is whether Illinois getting rid of Gov. Blagojevich is related to the “general welfare.” Say what you will of the corrupt and profane Illinois governor, he has not yet been convicted of any crime. This probably isn’t an illegal bill of attainder since it’s punishing Illinois rather than Blagojevich himself, but it’s still a gross violation of the principle of federalism. The “general welfare” isn’t a way for Congress to advance narrow issues or play political hardball. It would be blatantly unconstitutional for Congress to condition federal funding on a state electing a Republican governor or electing a female governor. So why should it be constitutional for the federal government to withhold funds from Illinois because they refuse to impeach Blagojevich on Congress’ timetable.

Even though the courts generally defer to Congress on what is defined as being in the national interest, this seems to be a rather clear case of Congress overstepping their constitutional limits.


Telecom Immunity, Ex Past Facto Laws, And Executive Power

Glenn Reynolds shows why the bill to give retroactive immunity to telecom companies involved who turned over data to the government as part of anti-terrorism investigations is not an ex post facto law. He also has another interesting follow-up post on how the idea of strong Executive powers under the Constitution is nothing new—using an example from the Ninth Circuit, probably the nation’s most liberal that allow President Ford to essentially extend a lapsed statute by Executive Order.

The idea that the “unitary executive” theory is some novel and dangerous departure from Constitutional principles doesn’t have much to it. The principle of separation of powers as always given the Executive Branch wide discretion in managing national affairs under its constitutional scheme of powers—especially in the President’s law enforcement and national security powers.

Those who have taken a course in Constitutional Law know of the famous case of Youngstown Sheet and Tube Co. v. Sawyer 343 U.S. 579 (1952), a case coming out of the Korean War in which President Truman tried to seize a Pennsylvania steel mill that was about to be shut down because of striking workers. Justice Hugo Black gave a wonderfully formalist majority decision holding that the seizure was unconstitutional, but the opinion that ended up being the most crucial to understanding Presidential powers is Justice Jackson’s concurrence. (Here is an edited version of the decision which highlights the essential parts of each opinion.)

Justice Jackson came up with three “categories” of Presidential power, each of which should receive different levels of deference from the courts:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter….

Justice Jackson agreed that the seizure of the steel mills was in that third category—President Truman had asked for such powers before but Congress had specifically denied him the right to make such seizures.

Why does Youngstown Steel matter today? Because it gives us a very clear way of determining when a Presidential action is unconstitutional and when it is not. As Justice Jackson notes, if Congress authorizes the President to do something and the President does it, virtually the only way that could be unconstitutional is if the federal government itself doesn’t have power to take that action under the Constitution. (For instance, if Congress passed a law allowing for the quartering of troops and the President ordered the military to carry that law out, it would still violate the Constitution.).

In the case that Prof. Reynolds mentions above, the Court seems to take the argument that the Executive Order extending the export law is a Youngstown Category I circumstance:

Former section 5(b) of the TWEA delegated to the President broad and extensive powers; “it could not have been otherwise if the President were to have, within constitutional boundaries, the flexibility required to meet problems surrounding a national emergency with the success desired by Congress.” United States v. Yoshida International, Inc., 526 F.2d 560, 573 (Cust. & Pat.App.1975) (footnote omitted). Wary of impairing the flexibility necessary to such a broad delegation, courts have not normally reviewed “the essentially political questions surrounding the declaration or continuance of a national emergency” under former s 5(b). Id. at 579. The statute contained no standards by which to determine whether a national emergency existed or continued; in fact, Congress had delegated to the President the authority to define all of the terms in that subsection of the TWEA including “national emergency,” as long as the definitions were consistent with the purposes of the TWEA. 50 U.S.C. app. s 5(b)(3). In the absence of a compelling reason to address the difficult questions concerning the declaration and duration of a national emergency under former s 5(b), we decline to do so.

Moreover, the EAA apparently was allowed to lapse only because Congress could not resolve questions relating to the antiboycott provisions. See Arab Boycott Hearings on S. 69 and S. 92, Before the Subcommittee on International Finance of the Senate Committee on Banking, Housing and Urban Affairs, 95th Congress, 1st Sess. 1 (Senator Stevenson) (1977). The Spawrs have offered no evidence that Congress intended to dismantle the export controls.

In conclusion, even under the demanding scrutiny the Spawrs argue is appropriate because of the criminal nature of this case, it is unmistakable that Congress intended to permit the President to use the TWEA to employ the same regulatory tools during a national emergency as it had employed under the EAA. We, therefore, conclude that the President had the authority during the nine-month lapse in the EAA to maintain the export regulations.

U.S. v. Spawr Optical Research, 685 F.2d 1076, 1981 (9th Cir. 1982). Because Congress had intended for the President to have these powers, and the lapse of the statute didn’t necessarily change that intent, the President still had the power to enforce a similar policy. Now, the Ninth Circuit didn’t cite Youngstown here, but the basic principle still applies.

All this talk about “new” and “sweeping” executive powers ignores the long-standing legal and historical traditions of executive power under the Constitution. The Presidency is the only part of the US Government that is controlled by a single individual, and the Founders rightly believed that there were some tasks which required a single individual. While the Presidency is a strong office, that office does have constraints that distinguish it from that of the King of England. See The Federalist #69.

I suspect that most of the clamor about how terrible the Bush Presidency is and how much of the Constitution is being “swept under the rug” or “shredded” or whatever is just more political bluster. If in January 20, 2009 Hillary Clinton takes the oath of office and becomes President (perish the thought!), she isn’t going to suddenly change the balance of executive power in this country. (In fact, I’d argue she’d go much farther than Bush has.) All those people who argue that Bush is somehow violating the Constitution never seem to be able to explain what specific part of the Constitution is being violated, and even when they point to one, the supposed violation is rarely real.