Eugene Volokh's Blog, page 2628
January 23, 2012
Padilla Appeal Dismissed by Fourth Circuit
Although the big news today is the Supreme Court opinion in Jones, we also have the Fourth Circuit dismissing the Padilla appeal in a Bivens claim. Lawfare's Steve Vladeck explains and comments:
Jack [Goldsmith] just flagged the Fourth Circuit's unanimous 39-page opinion throwing out Lebron v. Rumsfeld–one of the two pending Bivens suits brought by Jose Padilla arising out of his detention (and alleged abuse) as an "enemy combatant." Although Padilla's allegations (if true) would have stated serious violations of his constitutional rights arising out of his long-term incommunicado detention as an "enemy combatant" (and his alleged abuse while in custody), the panel (Wilkinson, Motz, Duncan) declined to recognize a Bivens remedy. There's a lot to say about Judge Wilkinson's disturbing opinion for the court–and I'll try to explain why it's disturbing below the fold.
The short of Judge Wilkinson's analysis is encapsulated within the following two passages:
Special factors do counsel judicial hesitation in implying causes of action for enemy combatants held in military detention. First, the Constitution delegates authority over military affairs to Congress and to the President as Commander in Chief. It contemplates no comparable role for the judiciary. Second, judicial review of military decisions would stray from the traditional subjects of judicial competence. Litigation of the sort proposed thus risks impingement on explicit constitutional assignments of responsibility to the coordinate branches of our government. Together, the grant of affirmative powers to Congress and the Executive in the first two Articles of our founding document suggest some measure of caution on the part of the Third Branch. . . . When, as here, these two branches exercise their military responsibilities in concert –- Congress by enacting the AUMF and the President by detaining Padilla pursuant thereto—the need to hesitate before using Bivens actions to stake out a role for the judicial branch seems clear.
In other words, once Congress triggers the use of military force, Bivens should not generally be available if government officers violate the rights of U.S. citizens while ostensibly acting under such authorization. And if that logic wasn't clear enough, Judge Wilkinson concludes:
Padilla's complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the though that those involved would face prolonged civil litigation and potential personal liability.
Vladeck, we should add, is not persuaded by the Fourth Circuit's analysis:
[T]o hold, as the Fourth Circuit does, that these factors categorically cut against the availability of a Bivens remedy is to forswear any Bivens claim challenging any governmental abuses committed in the name of protecting national security, even those in cases in which state secrets or qualified immunity would not bar relief–that is, cases in which there is no realistic potential for the disclosure of classified national security information and it is clear that what the government officers did was unlawful at the time of their conduct. Whether or not that was true in Padilla's case, this is a disturbing result going forward.
What's the Status of the Mosaic Theory After Jones?
In its opinion below in what became United States v. Jones, the D.C. Circuit introduced a new "mosaic" theory of the Fourth Amendment. Under that theory, whether government conduct is a search is measured not by whether an individual act is a search, but rather whether the collective sum of the different acts over time amount to a search. Although that argument didn't get much play in the Supreme Court briefs or at argument, it surfaced this morning in the Jones opinions. And perhaps the most fascinating aspect of the Jones opinions is that there appears to be a majority ready to embrace the mosaic theory, at least in some form.
Let's start with Justice Alito's concurring opinion for himself, Ginsburg, Breyer, and Kagan. Alito's concurring opinion is mostly devoted to criticizing Scalia's new trespass theory. But near the end of his concurrence, Alito then turns to how he would decide Jones:
[R]elatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques
It sounds like Alito is using what I have elsewhere called the "probabilistic" approach to the reasonable expectation of privacy test, where an expectation of privacy is reasonable based on what a reasonable person would expect, and then he is allowing for at least some sort of mosaic aggregation. Thus, echoing the D.C. Circuit, Alito appears to be looking at whether the government conduct taken over time collects an amount of information that is somehow surprising or unexpected.
In his majority opinion, Justice Scalia concludes that the mosaic theory need not be addressed, but that it is a "novelty" that raises "thorny problems" if embraced. Responding to Alito, Scalia writes:
There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is "surely" too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an "extraordinary offens[e]" which may permit longer observation. See post, at 13–14. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these "vexing problems" in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.
That brings us to Justice Sotomayor, whose concurring opinion was sort of with Scalia, sort of with Alito, and then hints at being even more pro-privacy than either one. Sotomayor calls the Scalia rationale for the case "an irreducible constitutional minimum," but she then goes on to look favorably on Alito's opinion:
As JUSTICE ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Post, at 10–11. Under that rubric, I agree with JUSTICE ALITO that, at the very least, "longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy." Post, at 13. . . .
Sotomayor then goes on to discuss the nature of GPS surveillance specifically, and then writes:
I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one's public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.
Fascinating. What's particularly interesting to me is that the mosaic theory seems like a revolutionary new approach to Fourth Amendment law, and yet here 5 Justices seem ready to embrace it without even really recognizing how dramatic the change might be or what it might mean. Perhaps that means that the Justices see it as having some non-obvious limitation that makes it narrower than it might seem. Perhaps it only would apply to GPS devices or beepers, for example? Or perhaps the Justices just didn't think too deeply about the issue and the complications it raises — perhaps because Scalia came forward with his new trespass test and any other theory would just be dicta?
Either way, the biggest surprise of Jones is that the mosaic theory lives. And it may have five votes. As always, stay tuned.
What Jones Does Not Hold
A lot of the early press reports on United States v. Jones reports that the Supreme Court held that the government needs a warrant to install a GPS device. But that's not correct, actually. The Court merely held that the installation of the GPS was a Fourth Amendment "search." The Court declined to reach when the installation of the device is reasonable or unreasonable. As the opinion explains on page 12 of the slip opinion:
The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because "officers had reasonable suspicion, and in-deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy." Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).
So we actually don't yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment "search."
The New Doctrine of What is A Fourth Amendment Search
For the last 40 years, the hornbook law of what amounts to a Fourth Amendment search was that a search occurs when government conduct violates both a subjective expectation of privacy and an objective reasonable expectation of privacy. As of this morning's decision in Jones, the new doctrine for what is a Fourth Amendment "search" appears to be as follows:
A search occurs either when
(a) A trespassory test is satisfied: (1) a "trespass" occurs, (2) the trespass is onto an enumerated item listed in the Fourth Amendment ("persons, houses, papers, or effects"), and (3) it occurs with the intent "to find something or to obtain information"
or
(b) The Katz test is satisfied: the government conduct violates a subjective expectation of privacy and an objective reasonable expectation of privacy
Today's majority opinion in Jones announces the trespassory test and applies to to find that the installation of the device with intent to use it was a search. As a result, the Court doesn't purport to reach the "reasonable expectation of privacy" question. The Court also did not reach when installing a GPS device is a reasonable search, holding that the issue was forfeited because it was not raised below.
UPDATE: At first blush, one question I'm not entirely certain of is what the test is for a trespass. Trespass law has changed over time, and it varies state to state. Civil trespass can be different from criminal trespass. Is the question whether the act would have constituted a trespass at common law, or whether it is a trespass today? Justice Alito's opinion indicates that he thinks the test is a trespass at common law, but does the majority take a view on that?
Three Types of Limits on Congressional Power
In Marbury v. Madison, John Marshall wrote:
The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.
Once the Court moves beyond the original meaning of the text to allow Congress to reach activity that is neither "interstate" nor "commerce" (using the Necessary & Proper Clause as its warrant), there still remains the need to establish some limit on these "implied" nontextual powers, lest the national government becomes a government of general powers. The "express prohibitions" provided by the Bill of Rights don't count since they equally constrain state governments. Were these the only constraints on federal power, then the scope of the power of Congress would be exactly the same as the power of states. And this proposition has always been rejected by the Supreme Court. As Chief Justice Rehnquist affirmed in Lopez:
We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, §8. As James Madison wrote, "[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." The Federalist No. 45. This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." Gregory v. Ashcroft (1991). "Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front."…
So the challenge is to limit, somehow, the scope of the power that lies beyond Congress's plenary power "to regulate commercce . . . among the several states."
One possible constraint is political. But , as John Marshall stated above in Marbury, a "political" constraint which allows the legislative branch to define the limits of its own power is not sufficient. What is needed is a judicial constraint. Much more can be said about why political constraints are insufficient, but time and space are limited. Suffice it to say that, whether or not Marshall (and Rehnquist) are wrong about the need for a judicially-enforced constraint, even the New Deal Court in Wickard declined to adopt "political constaints" as the only constraint on the enumerated powers of Congress. See Barry Cushman, Rethinking the New Deal Court.
But there are only two types of judicially-enforceable limits. The first is fact-based. Examine the "rationality" of a particular measure to see if it is really serving the enumerated power. This was the method commonly employed by the Supreme Court before the New Deal in both Due Process and Commerce Clause cases, but which the Supreme Court has generally rejected in favor of hypothetical rational basis scrutiny. The government contends that the power to impose economic mandates on the people is limited by the fact that "health care is different" from other sorts of economic mandates, e.g. a mandate to buy GM cars. We disagree. Were this to be a genuine limit, we would be entitled to a hearing to decide this factual question. On remand, the courts would also have to adopt some standard of review to decide whether we or the government were correct in our respective assessments of the facts. This standard cannot be modern hypothetical rational basis scrutiny, because that would be no scrutiny at all and would fail to provide a judicially-enforceable constraint. The Justices know this. While heightened factual scrutiny of the choice of congressional means would not bother me, it runs contrary to the Court's approach since the New Deal and would surely bother the Justices.
This leaves the approach employed by the Court in Lopez: identify a judicially-administrable categorical limitation on the implied powers of Congress. This is my reading of what Justice Rehnquist was attempting to achieve in Lopez: identify a categorical limitation on the implied power of Congress to go beyond the regulation of interstate commerce itself and reach intrastate activity that was not itself "commerce" which would be consistent with prior post-New Deal decisions ("this far"). So he adopted the nontextual and nonoriginalist distinction between the regulation of intrastate activity that is "economic" ("this far") but not "noneconomic" ("no farther") regardless of whether the noneconomic activity could rationally be said, in the aggregate, to substantially affect interstate commerce.
In Raich we asserted that, because Angel Raich's and Dianne Monson's activities were noneconomic — no money was being exchanged for marijuana — their conduct fell outside the line the Court had drawn in Lopez and Morrison. The government contended that Angel's and Dianne's activity was "economic" because it substituted for the economic activity of buying marijuana on the market. Had the Court accepted the position of the government, Raich would have replaced Wickard as the outermost reach of Congressional power and led to an unlimited Commerce Clause/Necessary & Proper Clause power. As I said during oral argument, every activity, even marital sexual relations, could be construed as "substitute" for something available on the market.
Perhaps sensing this, happily, the Court implicitly rejected the government's expansive theory, and therefore greatly limited the scope of its holding in Raich, when it held that the production and consumption of a "commodity" was quintessential economic activity, relying on the definition found in a 1966 Webster's dictionary. Indeed, by limiting its holding to the particular dictionary definition of "economic" from Webster's, Raich actually narrowed the scope of Lopez, assuming this was to be the exclusive definition of "economic" that would be employed by the Court in the future. For example, buying insurance, while broadly "economic" is not the purchase or consumption of a "commodity." In this sense, the holding of Raich was limited to a power that had clearly been exercised in the past ("this far"): the power to prohibit the intrastate production and consumption of a commodity.
Justice Scalia's concurrence in Raich extending the power to reach noneconomic activity when doing so was essential to a broader regulation of interstate commerce seems more ambitious, which is why the government has relied so heavily upon it throughout this litigation. Yet I think Justice Scalia was responding to another feature of Raich that was downplayed during the litigation and never explicitly examined (although Justice Thomas mentions it in a footnote of his dissent). We were bringing an "as applied" Commerce Clause challenge in which we did not contest the power of Congress to regulate the interstate drug trade. Neither did we contest the power of Congress to reach the intrastate drug trade in states that had not legalized such trade. We were attempting to carve out a sub-class of activities from that which Congress was trying to regulate: wholly intrastate cultivation and use of marijuana for medical use as authorized by state law. Much of oral argument was devoted to defending the cogency of this sub-class.
Although such as applied challenges had been brought before, none had ever succeeded. I believe that Justice Scalia's Necessary & Proper Clause-focused opinion was his attempt to handle this aspect of the case by explaining why, if Congress could regulate genuinely interstate commerce in intoxicating substances (as we conceded), as part of its broader regulatory scheme, it could also reach this subset of activities that could not feasibly be distinguished from the commerce over which it had control. For Justice Scalia, the fact that these activities may be noneconomic (not for money) did not make it any less necessary to reach them, or at least so Congress could decide in its discretion.
It remains to be seen whether Justice Scalia will be willing to extend this rationale to a facial challenge to a power to mandate the purchase of insurance by individuals because it is "essential" to the power of Congress to regulate the terms by which insurance companies do business. This is the government's contention, but it is a considerable step beyond the problem Justice Scalia was wrestling with in Raich. Recall that, in the facial challenge in Comstock, Justice Scalia joined Justice Thomas's dissenting opinion in which Justice Thomas reasserted Justice Scalia's holding in Printz that the means chosen by Congress (commandeering the states) was "improper." So Justice Scalia still holds the view that some means of executing the commerce power, while necessary under a rational basis approach, are nevertheless improper. The question for him is whether his analysis of "necessity" in Raich is similarly qualified by the "impropriety" of the chosen means.
To date, the government has been unable to articulate a "categorical" limitation on the power to mandate that individuals enter into contracts with private parties, yet it has not been bold enough to assert that the only constraint is "political." And I do not believe that their "factual" limitation ("health care is different") will fly. If the Court does accept this approach, then assuming it also adopts a modern hypothetical rational basis approach, it would effectively be adopting the "political constraints only" position. Maybe, as in Raich, the Court will simply say that because the "decision" not to buy health insurance is "economic," as the government urges, it can be reached under Lopez. But the power to reach economic "decisions" is as capacious as the government's "substitution" theory in Lopez. It is a mere fig-leaf to cover the "political constraints only" position that will fool no one if it is adopted. This would not even amount to the "symbolic" federalism reading of Lopez; it would be no federalism at all. Which, again, is why this case is such a big deal.
January 22, 2012
Execute Those Who Import Marijuana?
In 1996, then-Speaker of the House Newt Gingrich introduced the Drug Importer Death Penalty Act which, as the name implies, would have imposed the death penalty on those who imported a sufficient amount of marijuana or other illegal drugs into the United States on more than one occasion. (Hat tip: Ezra Klein)
"This Far and No Farther": Baselines and the Individual Insurance Mandate
Much of the difference of opinion over the constitutionality of the individual insurance mandate turns on a difference of opinion about the appropriate baseline for evaluating Congressional power. For 60 years, law professors taught that Congress had unlimited discretion with respect to using its commerce power to regulate the national economy. They held this view notwithstanding that the Supreme Court had never ennunciated such a position and that we now know that some Justices on the New Deal Court considered doing so in Wickard but declined to pull that trigger. Virtually all "progressive" academics — and many, if not most, "conservatives" whose constitutional views were formed before 1995 — accepted and continue to accept this proposition as the baseline against which Congressional legislation was to be assessed.
Regardless of whether this was ever the baseline accepted by the Supreme Court, in 1995, the Supreme Court arguably (more on this in a moment) rejected it in favor of another: Congress has discretion with respect to all the powers that have been upheld up to that point, but any claim of implied Congressional power beyond that point was constitutionally suspect. Because Congress had never before attempted to regulate wholly intrastate noneconomic activity, a majority of the Court in Lopez and again in Morrison (over the empassioned dissent of those Justices who hewed to the other baseline) said it would not recognize this new extension of power. Raich can be understood as an effort to restrain Congress from exercising a power it had long used: the power to regulate the intrastate cultivation, possession and distribution of an intoxicating substance. It can also be understood as an effort to sustain an "as applied" challenge to a facially constitutional exercise of the commerce power, and no such challenge had ever before succeeded.
Since Lopez and Morrison have now become fixed poles of constitutional decision, there are two competing readings of these cases depending on which baseline one holds. Those who continue to hold the baseline of unlimited Congressional discretion – whose politics can be progressive or conservative – construe Lopez and Morrison as identifying a relatively narrow exception to this power. Since the individual insurance mandate does not clearly fall within this exception, it is therefore deemed by them to be clearly constitutional. This is why, I believe, so many constitutional law professors thought this case was so easy.
In contrast, those who interpret Chief Justice Rehnquist's opinions in Lopez and Morrison as rejecting that baseline in favor of the position that Congress may go as far as it has gone in the past, but no farther view the mandate quite differently. Because the power to require all citizens to enter into contracts with private companies is a new or "unprecedented" claim of power, it is at minimum constitutionally suspect and at maximum unconstitutional. Given the baseline, the burden is on the government to justify this expansion of federal power as both necessary and proper. As important, there must be some identifiable and judicially administable limit on its exercise.
Ultimately, it will be up to the individual Justices to decide which baseline they wish to employ. Do Lopez and Morrison represent merely symbolic "sport" cases as so many academics now believe? Or did these cases (along with cases such as New York, Printz and Alden) establish a post-New Deal baseline ("this far and no farther") beyond which Congress may not go without meeting a serious burden of justification? Because this case will tell us which baseline the Roberts Court wishes to affirm for the future, it is both a very big deal and not all that easy to predict simply on the basis of prior cases and doctrines. If the Roberts Court adopts the first baseline, however, it will not only be repudiating what I believe to be the best reading of the Rehnquist Court's landmark decisions establishing the so-called New Federalism, it will finally be doing what even the New Deal Court could not bring itself to do. Regardless of how they eventually rule, one can well understand why the Court would feel the need for 3 days of oral argument to consider this decision.
The Lessons of the 1920–21 Depression
Interesting column by James Grant on the short but severe post-WWI Depression of 1920–21:
Our Great Recession ended 2½ years ago, according to the official cyclical timekeepers, but you wouldn't know it by a glance at the news. Zero percent interest rates and $1 trillion in "stimulus" notwithstanding, the U.S. economy can hardly seem to heave itself out of bed in the morning. Now compare this with the first full year of recovery from the ugly depression of 1920–21. In 1922, under the unsung stewardship of the president best remembered for his underlings' scandals and his own early death in office, the unemployment rate fell from 15.6 percent to 9 percent (on its way to 3.2 percent in 1923), while constant-dollar output leapt by 16 percent. After which the 1920s proverbially roared.
And how did the administration of Warren G. Harding, in conjunction with the Federal Reserve, produce these astonishing results? Why, by raising interest rates, reducing the public debt and balancing the federal budget. Let 21st-century economists rub their eyes in disbelief. Eighteen months after the depression started, it ended.
I've been fascinated by the contrast of Harding's response to the 1920 depression versus Roosevelt's seemingly-counterproductive response to the Great Depression since I read several discussions a few years back (see here, here, and here). The problem with macroeconomics, of course, is the paucity of data points and the inability to control for relevant variables. But it is nevertheless striking to me that discussion always seems to focus on what at first glance appears to be the failed Hoover-Roosevelt response to the Great Depression rather than the apparently effective Harding response to the 1920 Depression.
The only discussions I've seen of the 1920 Depression are those that support Harding. Has anyone written a good response to that story, because what I've read seems fairly compelling (at least to the extent that macroeconomics can ever tell a compelling story).
Extremist Islamic Terror Attacks in Nigeria Kill Over 170
The attacks began Friday, but continued today.
The radical Islamist terror group Boko Haram, believed to have carried out over 500 terror attacks last year, has already claimed responsibility for the violence in Kano. The group, whose name can be translated as "Western education is a sin," said that the onslaught was a protest against the government's refusal to release its members from prison.
January 21, 2012
Commandeering the People to Avoid Taxation (And Some Other Thoughts)
Trevor Burris responds to my exchange with Orin on applying the state noncommandeering doctrine to mandates that "the people" enter into contractual relations with private companies in Commandeering the People to Avoid Taxation: A Reply to Barnett and Kerr. Here is an excerpt:
I believe Professor Barnett has the right of it, but I do acknowledge Professor Kerr's concerns. I would like to add something to Professor Barnett's argument: The individual mandate was passed to avoid the political liability that a taxation-driven scheme would have brought (if you doubt this, read Michael Cannon's post here). This is constitutionally significant to the anti-commandeering argument.
[snip]
If the federal government is properly understood as resting on dual representative pillars—the people and the states—then either can be commandeered. Although our case law only discusses the impropriety of commandeering state governments, it is fully within a proper understanding of the Constitution that people are equally susceptible to unconstitutional commandeering. It is of no matter that they are commandeered at other times—e.g., jury duty, the draft, etc.—because states are likewise commandeered by the Constitution—e.g., rules on choosing senators, members of Congress, and electors, as well as the prohibitions in Article 1, Section 10. But since, at some fundamental level, commandeering is so repugnant to a limited government empowered by a free people, there has to be some way to determine unconstitutional commandeering.
In order to determine this, I propose that, because we are talking about the people and not the states, we must look to the ways in which commandeering is constitutionally allowed and see if those protections have been avoided in passing the individual mandate. Taxation is a dangerous power, but the Constitution requires that it be above the board so citizens are aware when forced wealth transfers are occurring. For similar reasons, Article 1, Section 9 requires that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." As Michael Cannon's post linked above shows, this type of accounting was intentionally avoided by Congress in passing PPACA.
So, I offer to Professor Kerr this principle of decision in the case: THIS IS NOT OKAY. Specifically, when looking to whether or not the people have been commandeered, we look to whether the protections in the Constitution that prevent commandeering have been avoided. One instance in which this would nearly always be the case: the forced purchase of a product from a private entity.
You can read the whole thing here.
A few clarifications of my position.
In my view, "commandeering" has a much narrower and more specific meaning in the existing doctrine than "commanding." It means taking over a power properly exercised by another sovereign. In New York, the power is that of a State legislature to enact legislation (and the correlative power to decline to exercise this power). With the mandate it the power of "the people" to consent to enter into contractual relations with a private party (and the correlative power to decline to exercise this power). Just as state legislatures have their own reserved power to enact statutes, so too do individuals have the reserved power to alter their legal relations with others via contract. Indeed, as Lon Fuller observed, these powers are very similar. "Commandeering" is the coercing of states (or by extension individuals) to exercise their distinct powers in ways desired by Congress.
For this reason, making you live with a soldier in your home, convicting yourself by your own words, or performing personal services for another, best exemplify the noncommandeering concept. The power to "take" property for public use, an example I also used in my earlier post, is closer to the power to tax.
Now, Congress has expressly delegated powers to coerce individuals that it lacks against the States, most importantly the power to tax. But the (dangerous) power to confiscate property in the form of taxes or by eminent domain is not the same as the power to make someone alter their legal relations with another person, which is what contracts do.
Congress also has many powers at its disposal to create incentives for states and individuals to exercise their reserved powers in ways that Congress desires, and providing such incentives is not "commandeering" (unless, as per Dole, they cross the line into "coercion").
Likewise, as the term appears to be used by the Court, States (and by extension private persons) are not "commandeered" when they are forcibly prevented from exercising their powers, or when they are regulated in the manner of their exercise. Prohibitions on race and sex discrimination by individuals regulate the manner by which certain activities like operating a restaurant or hotel are to be conducted; these measures do not command that persons enter into the restaurant or hotel business. The very same line has implicitly been drawn by the Court in applying the noncommandeering doctrine to States, while upholding the power of Congress to regulate the manner by which States engage in economic activity.
This is all a question of delegated power, not the side constraints of rights. Congress is claiming an implied power to force people to enter into contracts with private companies. Is its claim of implied power warranted or not? The fact that, as Justice Kennedy explained in Bond, the enumeration of delegated Congressional power is means of protecting liberty does not render it the same type of endeavor as the doctrinal protection of certain "fundamental" rights under the Due Process Clause. Indeed, the Federalists originally contended that the protection of express rights would be unnecessary at the federal level because of the limited and enumerated delegation of powers in the Constitution.
I think the "commandeering" concept best explains why so many people instinctively find the individual insurance mandate peculiarly offensive, just as it explains why some justices found the State mandates in New York and Printz to be objectionable. Conversely, those who take a fundamentally different view of the relationship of the relationship of the individual to the government — or of the States to the federal government — simply do not understand what the fuss is all about. In this regard, if no other, the debate over the mandate is revealing.
You can read a fuller treatment of the approach in my 2010 law review article, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional. But since I published that piece, I have had considerable time to give the matter fuller thought, so I might not explain the position precisely the same way today.
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