Eugene Volokh's Blog, page 2579
March 29, 2012
Whatever Happened to the Mismatch Effect?
As some readers will recall, a little more than seven years ago I published an analysis of law school affirmative action in the Stanford Law Review. The article was the first to present detailed data on the operation and effects of racial preferences in law schools (focusing on blacks).
I also laid out evidence suggesting that large preferences seemed to be worsening black outcomes. I argued that this was plausibly due to a "mismatch effect"; students receiving large preferences (for whatever reason) were likely to find themselves in academic environments where they had to struggle just to keep up; professor instruction would typically be aimed at the "median" student, so students with weaker academic preparation would tend to fall behind, and, even if they did not become discouraged and give up, would tend to learn less than they would have learned in an environment where their level of academic preparation was closer to the class median.
I suggested that the "mismatch effect" could explain as much as half of the black-white gap in first-time bar passage rates (the full gap is thirty to forty percentage points). I also suggested that "mismatch" might so worsen black outcomes that, on net, contemporary affirmative action was not adding to the total number of black lawyers, and might even be lowering the total number of new, licensed black attorneys.
The article generated intense interest, debate, and criticism, though even most critics conceded that I had gotten the facts right. Several well-known empirical scholars in law schools published essays that purported to disprove the mismatch hypothesis. For awhile, many defenders of affirmative action seemed to assume that the article would inevitably provoke a crisis in legal academia, and while attempting to seize the moral high ground in the debate, they attracted even more publicity to the article.
After several months, however, it became clear there would be no widespread calls, among either law students or law faculty, for further inquiry and reform, and things died down. Those unhappy with the "mismatch" article – and that included the vast majority of law school and university administrators – decided the best strategy was to (a) ignore the issue and (b) use their best efforts to prevent the further release of data such as I had used in the original article. There was another, smaller burst of attention when I published a follow-up article about affirmative action in law firms, and its similar tendency to boomerang on the intended beneficiaries; but otherwise, public debate about mismatch faded away.
It is about to come back.
Over the past few years, there has been a steadily growing stream of empirical research on affirmative action, much of it taking up the mismatch question. Some social scientists, like Peter Arcidiacono at Duke University and Frederick Smyth at the University of Virginia, were interested in this subject and producing valuable research well before my Stanford article appeared. Others, like Doug Williams at Sewanee University or Robert Zelnick at Boston University, were intrigued by some of the issues that arose out of the public mismatch debate and the questions raised in the debate. Still others have been attracted by the "natural experiments" in affirmative action created by the bans on racial preferences adopted in half-a-dozen states. I have worked closely with Jane Yakowitz (soon to join the law faculty at the University of Arizona) and public-spirited lawyers to pry loose data relevant for studying affirmative action.
Cumulatively, these scholars have produced a remarkable body of research (some of which can be found here) <p>Cumulatively, these scholars have produced a remarkable body of research (some of which can be found <a href=">here) on the workings and effects of affirmative action. And the Supreme Court's decision (by granting cert to Fisher v. University of Texas) to revisit the subject of racial admissions preferences in higher education will undoubtedly fuel interest in this work. Over the next few days on The Volokh Conpsiracy, I'm going to highlight some of this research and the challenges facing a healthy public discussion of the mismatch issue.
Saying "I Don't Know if Negroes Have Always Worked [Hard]" = Crime in France
Agence France Press reports (thanks to Ed Grinberg for the pointer):
A Paris court on Thursday found Jean-Paul Guerlain, the former "nose" behind the world-famous perfume brand, guilty of racial insults after televised remarks he made about "negroes" and fined him.
Asked in a 2010 interview about how he created the Samsara scent, Guerlain replied: "For once, I set to work like a negro. I don't know if negroes have always worked like that, but anyway."
The court judged that the second part of his reply was racist and fined him 6,000 euros ($8,000). The maximum it could have imposed was six months in prison and a 22,500-euro fine.
Guerlain was also ordered to pay 2,000 euros in damages to each of three anti-racist groups that were civil plaintiffs in the case….
Guerlain used the word "negre", which is also commonly used in France in its other meaning signifying "ghost writer".
National Review Symposium on the ACA Oral Arguments
National Review has posted a symposium on this week's ACA oral arguments, with contributions by various conservative and libertarian pundits, policy experts, and legal scholars. The symposium includes short assessments of the argument by co-blogger Jonathan Adler and myself. Here's an excerpt from my piece:
This week's Supreme Court oral argument did not go well for the individual mandate. The conservative justices zeroed in on the biggest weakness in the pro-mandate case: the fact that the federal government's rationales for the law would also justify virtually any other federal mandate, including laws forcing people to purchase broccoli, cars, or just about any other product. This undercuts the principle that the Constitution sets limits to the scope of federal power….
It is still far from certain that the plaintiffs will prevail. The federal government has numerous arguments intended to prove that this mandate is unique. If it can persuade just one of the conservative justices to accept just one of these theories, it can still win, since it is certain to get the votes of the four liberals. Nonetheless, the mandate is looking a lot shakier than many expected.
Argentina Severely Limits Importation of Books — Allegedly Due to Concerns About Lead in the Ink
Juan Carols Hidalgo (Cato@Liberty) writes:
The Argentine government has severely restricted the importation of books due to "human health concerns" [in Spanish]. That's right. According to the government, it can be dangerous to "page through" a book that has high lead quantities in its ink. "If you put you finger in your mouth after paging through a book, that can be dangerous," said Juan Carlos Sacco, the vice-president of an industrialist organization that supports the measure.
The government claims that this is not a ban. However, since each buyer has to demonstrate at the airport's customs office that the ink in the purchased book has lead quantities no higher than 0.006% in its chemical composition, the result is that all book imports into the country are stalled….
Thanks to Opher Banarie for the pointer.
Magistrate Judge Rejects Mosaic Theory of Fourth Amendment For Cell-Site Information
I have posted the short opinion (dated March 23) from Magistrate Judge Collings of the District of Massachusetts here. It largely adopts the reasoning of United States v. Graham from the District of Maryland, which I blogged about here. In my view, Judge Collings was correct to issue the order without probable cause for a second reason: The Fourth Amendment questions are not yet ripe for review, as I argue in this amicus brief I filed recently in the Fifth Circuit.
District Court Holds Second Amendment Applies Outside the Home, Strikes Down Ban on Gun Transportation During
Bateman v. Perdue (E.D.N.C. Mar. 29, 2012) involves a North Carolina law that bans "transport[ing] or possess[ing] off [one's] own premises any dangerous weapon" when a state of emergency has been declared. "Due to natural disasters and severe weather, states of emergency are declared with some frequency in North Carolina. In 2010, for example, the Governor … issued four statewide emergency declarations and one declaration covering a fifteen-county area …." There were also at least six local states of emergency declared. All five of these 2010 states of emergency were in response to weather conditions, and the frequency of such declarations may stem from the fact that "[a] state of emergency must be declared in order to qualify for federal disaster assistance."
The court concluded that:
1. The right to keep and bear arms extends to carrying outside one's property, for self-defense and for other reasons. The law interferes with the exercise of this right.
2. The law also interferes with the exercise of people's right to defend themselves in their homes, because it bars people from buying weapons and them transporting them to their homes.
3. The law must therefore be considered under strict scrutiny, because it isn't just limited to high-risk gun possessors, to particular kinds of guns, or particular manners or times of carrying guns, and because it interferes with getting guns even for home defense (though, as I noted, the court also concluded that carrying guns for defense outside the home is also generally constitutionally protected).
4. The law fails strict scrutiny, because they "excessively intrude upon plaintiffs' Second Amendment rights by effectively banning them … from engaging in conduct that is at thev ery core of the Second Amendment at a time when the need for self-defense may be at its very greatest" and therefore aren't narrowly tailored to serve the government's compelling interest in public safety.
Note that, as is often the case, the application of "strict scrutiny" can be quite rights-protective or not depending on what one understands "narrow tailoring" to mean. If narrow tailoring requires some plausible reason to believe that the law will on balance help prevent crime and injury, then that requirement will very often be satisfied. If it requires social science proof that the law will on balance help prevent crime and injury, then that requirement will rarely be satisfied, especially in situations such as this: There will rarely be solid studies of the effects of this particular kind of law.
And if, as here, "narrow tailoring" requires that the law not "excessively intrude" on rights, then that might be something like a rule of per se invalidation (at least as to very heavy burdens on the right): The premise of such an approach is that, regardless of whether the restrictions will reduce crime and injury, it is still unconstitutional if it interferes with the core of the right, since the constitutional recognition of the right expresses a judgment that the right must be protected despite the threat it may pose to compelling government interests. For more on all this, check out my Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009).
Congratulations to Alan Gura, the lawyer who won Heller and McDonald, on his victory in this case, and to the Second Amendment Foundation, which helped file the case.
Some Tentative Thoughts on the Medicaid Case
In all the hoopla over the individual mandate, most people (myself emphatically included) have not devoted enough attention to the other big Obamacare case before the Court: the 26 states' challenge to to the part of the act requiring the states to massively expand Medicaid coverage (covering every non-elderly with an income up to 138% of the poverty line) or face the loss of all their federal Medicaid funds. Medicaid is a huge program that represents some 40% of all federal grants to state governments, according to the states' brief. In cases such as South Dakota v. Dole, the Supreme Court has ruled that Congress has very broad discretion in imposing conditions on spending grants offered to states, but also warned that such conditions are unconstitutional if they are so onerous as to be "coercive." What qualifies as "coercion" in this context? The Court has never favored us with an explanation, and the whole concept is murky at best.
In this case, the states' strongest argument is that, if anything is "coercive," it's the threat of withdrawing such a massive proportion of all their federal funds, especially after the states have become dependent on Medicaid grants over a period of many years. If this isn't coercion through funding conditions, it' hard to see what is. On the other hand, as the federal government points out, it's hard to draw a clear line here. And, if the states wanted to avoid dependency, they could simply have refused to participate Medicaid in the first place.
My interpretation of yesterday's Medicaid oral argument is that there probably aren't five votes to overturn this part of the law. The liberal justices strongly support the federal government's position, while several of the conservatives are at the very least on the fence. I conjecture that the real purpose of the Court's surprising decision to hear this case was to try to develop a clearer definition of what counts as "coercion" rather than a desire to invalidate this part of Obamacare. However, Lyle Denniston of SCOTUSblog – who is much more sympathetic to the federal government's position than I am – thinks there is a good chance that the law will be struck down.
What should the Court do? I honestly don't have a very clear answer. My own view is that the coercion test is both unclear and doesn't have much basis in the text and original meaning of the Constitution. On that I tend to agree with the Court's liberal justices. On the other hand, the Spending Clause only gives Congress the power to spend money for the purposes of providing for the common defense, paying the federal debt, and advancing the "general Welfare." I think that the Court is wrong to interpret "general welfare" to include essentially anything that Congress thinks might potentially be beneficial. If that were correct, the power to spend for the common defense and the debts of the United States would be essentially superfluous. I developed this argument in more detail in one of my first academic articles back in 2002. The original meaning of General Welfare is much narrower, as is well explained in this article by John Eastman.
However, fully endorsing my approach or Eastman's theory would require the Court to reverse important precedents and undercut major existing government programs on which both state governments and large numbers of people have become heavily dependent. It's both unrealistic and undesirable for the Court to try to do something like that in one fell swoop.
I would therefore prefer for the Court to move incrementally in the direction of tightening up its definition of "General Welfare," without massively disrupting long-established major existing programs. How best to do that is a very difficult question to which I don't have any particularly good answer. Eastman, however, presents some interesting arguments about how the coercion theory can be used to bring us closer to the original meaning of "general Welfare" in his amicus brief in the Medicaid case. I tentatively think his approach is probably superior to the available alternatives. But I readily admit that I'm not really sure about how best to deal with this difficult conundrum.
Regardless, it will be interesting to see whether a majority of the justices can agree on a clearer definition of "coercion" and if so what it is.
Justice Kennedy, "Actuarial Risk," and the Individual Mandate's Unconstitutionality
Is the government's argument this — and maybe I won't state it accurately. It is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks. That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument? (Tr. 56:21-57:4.)
But [the uninsured] are in the market in the sense that they are creating a risk that the market must account for. (Id. 70:14-16.)
And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. (Id. 104:13-22.)
I do not pretend to know how Justice Kennedy is going to vote in this case. But the oral argument itself reveals why he may well have been just putting the Government's argument in the best possible light, rather than adopting it himself. Specifically, elsewhere, he and others strongly suggested that the "actuarial risk" concern is: 1) a legally inadequate limiting principle; 2) a factually inapposite justification; and 3) redressable through alternative constitutional means.
Legally Inadequate Limiting Principle: Justice Kennedy's "actuarial risk" questions are being read to suggest that the uninsured "affect" commerce in the sense that they externalize the risk of unaffordable illness on the public. But, as Justices Kennedy and Roberts principally emphasized, there is no principled reason why that is the only economic effect flowing from the non-purchase of a product that Congress can seek to undo by compelling the product's purchase. (See, e.g., Tr. 16:18-17:7, 39:6-43:8.) Nothing in the Commerce Clause or the Necessary and Proper Clause conceivably limit Congress to regulating non-purchase of a product if and only if that non-purchase externalizes risk, rather than having a different type of unwanted economic effect. For example, Detroit's economic woes are no less "proximately" caused by the fact that Americans don't want to buy domestic cars. Indeed, to the contrary, they are more "proximately" caused: when an individual choose not to buy a domestic car, the "effect" on GM et al. is direct and immediate (and as Paul Clement argued, unemployed workers shift costs to the employed); whereas when an individual chooses not to buy insurance, the "effect" on health-insurers and healthcare-providers if that individual later incurs an unaffordable illness is contingent and remote.
Factually Inapposite Justification: Moreover, the "internalize-actuarial-risk" defense of the mandate cannot be squared with the fact that the mandate forces individuals to purchase insurance that is neither actuarially priced (due to the community-rating requirement that bars consideration of actual health status) nor limited to unaffordable illness (due to minimum-essential-benefits requirements that drastically exceed catastrophic coverage). Justices Roberts and Alito principally emphasized this mismatch in the Government's theory, (see, e.g., Tr. 31:24-34:22), and Mike Carvin returned to the point in direct response to Justice Kennedy's final question about the issue, (id. 104:24-106:8). The mismatch demonstrates that the predominant purpose and effect of the mandate is instead to stimulate demand for its own sake — i.e. to force young, healthy individuals who will not incur unaffordable illnesses to subsidize the costs of old, sick individuals who will. But that is precisely the rationale that even the Solicitor General disavowed (id. at 16:22-25.)
Alternative Constitutional Means: Finally, as Justice Kennedy himself observed, Congress has myriad legitimate alternatives to address those who externalize risk. Namely, it can incentivize them to internalize risk (by rewarding those who do so or by sanctioning those who fail to pay for costs they incur) or it can force them to internalize risk (through proper use of the tax power). For that reason, as Justice Kennedy suggested, there is no reason to stretch the commerce power, (Tr. 25:3-10), and thereby "change[] the relationship of the Federal Government to the individual in a very fundamental way," (id. 31:11-16.)
Again, you never know what any Justice will do, but sitting in the courtroom, I sensed that Justice Kennedy had an impassioned concern for how upholding the mandate would fundamentally change the relationship of the individual to the federal government. These other questions were raised later and with much less intensity. But I could be wrong about this.
Yet another reason to keep the lawyers out of cyberops
According to Richard Clarke, government lawyers play such a large role in designing American covert cyber operations that by the time the lawyers are done messing with them, they're anything but covert:
One reason to believe the Stuxnet attack was made in the USA, Clarke says, "was that it very much had the feel to it of having been written by or governed by a team of Washington lawyers."
"What makes you say that?" I asked.
"Well, first of all, I've sat through a lot of meetings with Washington [government/Pentagon/CIA/NSA-type] lawyers going over covert action proposals. And I know what lawyers do.
"The lawyers want to make sure that they very much limit the effects of the action. So that there's no collateral damage." He is referring to legal concerns about the Law of Armed Conflict, an international code designed to minimize civilian casualties that U.S. government lawyers seek to follow in most cases.
Clarke illustrates by walking me through the way Stuxnet took down the Iranian centrifuges.
"What does this incredible Stuxnet thing do? As soon as it gets into the network and wakes up, it verifies it's in the right network by saying, 'Am I in a network that's running a SCADA [Supervisory Control and Data Acquisition] software control system?' 'Yes.' Second question: 'Is it running Siemens [the German manufacturer of the Iranian plant controls]?' 'Yes.' Third question: 'Is it running Siemens 7 [a genre of software control package]?' 'Yes.' Fourth question: 'Is this software contacting an electrical motor made by one of two companies?'" He pauses.
"Well, if the answer to that was 'yes,' there was only one place it could be. Natanz."
"There are reports that it's gotten loose, though," I said, reports of Stuxnet worms showing up all over the cyberworld. To which Clarke has a fascinating answer:
"It got loose because there was a mistake," he says. "It's clear to me that lawyers went over it and gave it what's called, in the IT business, a TTL."
"What's that?"
"If you saw Blade Runner [in which artificial intelligence androids were given a limited life span—a "time to die"], it's a 'Time to Live.'" Do the job, commit suicide and disappear. No more damage, collateral or otherwise.
"So there was a TTL built into Stuxnet," he says [to avoid violating international law against collateral damage, say to the Iranian electrical grid]. And somehow it didn't work."
The last time I wrote about the restrictions that US government lawyers are piling on cyberweapons, I asked, "Lawyers don't win wars. But can they lose one?" Clarke's observation, however, suggests another problem.
If other nations decide that they can attribute attacks to the United States because our legal culture leaves such distinct fingerprints on our covert weapons, maybe the better question is whether American government lawyers will be responsible for causing the next war.
(Hat tip to Jack Goldsmith, who flagged the Clarke article in Lawfare. Photo credit: Freefoto)
Nearing the end of the search for the non-existent limiting principles
With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law's academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles. They are:
1. The Necessary and Proper Clause. "Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate." This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a "community rating") or requiring sellers to sell products at far below cost to some customers (e.g., "guaranteed issue") then the market will probably "unravel" (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).
So Siegel's argument is really an anti-limiting principle: if Congress imposes ruinous price controls on a market, to help favored consumers, then Congress can try to save the market's producers by mandating that disfavored consumers buy overpriced products from those producers.
2. The Commerce Clause. "The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets." This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related violence). However, it's pretty clear under long-established doctrine that the Commerce power can be used to address "social problems that do not involve markets." E.g., Caminetti v. United States, 242 U.S. 470 (1917) (Congress can use the interstate commerce power to criminalize interstate travel by people intending to engage in non-commercial extra-marital sex); Champion v. Ames, 188 U.S. 321 (1903) ("What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals?"). Personally, I thought that Chief Justice Fuller's dissent in Champion had the better argument, but Champion and its progeny are well-established precedents, so proposed limiting principle number two does not work, unless we overrule a century of precedent.
Besides that, #2 does not work for the same reason that #1 does not work. If Congress forced food producers to sell products to some consumers at far below cost, then Congress could (for economic, not social/moral motives) force other consumers to buy overpriced food, so that the producers do not go bankrupt. Imagine that instead of the Food Stamp program (general tax revenue given to 1/6 of the U.S. population to help them buy food), Congress forced grocery stores to sell food to poor people at far below cost. And instead of raising taxes in order to give money to the grocery stores to make up for their losses on the coerced sales, Congress instead forced other consumers to spend thousands of dollars on food from those same stores, which would be sold to those consumers at far above its free market price.
If there's a limiting principle, the only one seems to be that in order to mandate the purchase of a product, Congress must also inflict some other harm on the producers of the product, which the coerced purchases will ameliorate.
3. "Collective action failures and interstate externalities impede the ability of the states to guarantee access to health insurance, prevent adverse selection, and prevent cost shifting by acting on their own. Insurers operate in multiple states and have fled from states that guarantee access to states that do not." This is really a policy argument for Obamacare. Hypothesizing that it's a good policy argument, it's not a limiting principle. That the advocates of Obamacare think that the policy arguments for their mandate is better than the policy arguments for other mandates does not provide courts with a limiting principle of law.
Moreover, the policy argument is wrong. It's true that some insurance companies stop operating in states where the law forces them to sell insurance to legislatively-favored purchasers at far below the actuarial cost of the insurance, with the legislature failing to compensate the companies for the enormous resulting losses. If you make it difficult for companies to operate profitably in your state, then they will eventually stop operating in your state. It's not a collective action problem; it's just a problem of several states enacting laws that prevent companies from covering their costs. Any state with guaranteed issue and other price controls can solve the problem immediately by simply using tax revenues pay compensation for the subsidy which the state law forces the insurance companies to provide to certain consumers.
Obamacare is a particularly weak case in which to argue that the federal government is riding the rescue of the states to solve a collective action problem. For the first time in American history, a majority of the States are suing to ask that a federal law be declared unconstitutional. These states are taking collective action to stop the federal government from imposing a problem on them.
4. The Tax Power. "[T]he minimum coverage provision respects the limits on the tax power. The difference between a tax and a penalty is the difference between the minimum coverage provision and a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured. Unlike the minimum coverage provision, such an exaction would be so coercive that it would raise little or no revenue. It would thus be beyond the scope of the tax power."
Let's put aside the fact that, however ingenious the progressive professoriate's tax arguments have been, the chances that the individual mandate is going to be upheld under the tax power appear to be at most 1% greater than the chance the Buddy Roemer will be the next President of the United States.
Presuming that Siegel's tax justification for the individual mandate is valid, it is an anti-limiting principle. Congress can indeed mandate eating hamburgers, smoking, not smoking, not eating hamburgers, or anything else Congress wants to mandate, as long as Congress sets the "tax" at level that will raise a moderate amount of revenue, does not include a scienter requirement, and does not make the "tax" increase each month that the individual refuses to do what Congress mandates.
5. Liberty. "The minimum coverage provision does not violate any individual rights, including bodily integrity and substantive due process more generally. These rights would be violated by a mandate to eat broccoli or exercise a certain amount." Pointing to the existence of the Bill of Rights is not an example of a limiting principle for an enumerated federal power. The Constitution does not say that Congress may do whatever it wishes as long as the Bill of Rights protections of Liberty are not violated. Ordering New York State to take title to low-level radioactive waste generated within the state (New York v. United States) did not violate any person's substantive due process rights, but the order was nonetheless unconstitutional because it exceeded Congress's powers. The federal Gun-Free School Zones Act did not, as applied, violate the Second Amendment rights of Alfonso Lopez, who was carrying the gun to deliver it to a criminal gang. Yet the Act still exceeded Congress's commerce power. A limiting principle must limit the exercise of the power itself, not merely point out that the Bill of Rights protects some islands of Liberty which the infinitely vast sea of federal power might not cover.
Finally, I certainly agree with Professor Siegel that the Fifth Amendment's liberty guarantee (and its 14th Amendment analogue for the states) should be interpreted to say that no American government can order people to consume a certain amount of healthy food, or to exercise. But there is no major case that is on point for this. The argument for a new unenumerated right "not to eat the minimum quantity of nutritious food which government scientists have determined is essential for good health" is something that would have to be built almost entirely by extrapolation from cases that have nothing to do with food. I hope that courts would accept the argument; but if the political culture ever moved far enough so that a nutrition mandate could pass a legislature, I'm not as certain as Prof. Siegel that courts would overturn the mandate. The odds of winning a case against a nutrition mandate will be better if the judges who decide that case have not grown up in a nation where a federal health control mandate is the law of the land.
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