Eugene Volokh's Blog, page 2708
September 19, 2011
Is the Individual Mandate "Unprecedented" Because It Is More Statist Than Previous Laws, or Because It Is More Market-Oriented?
One of the common claims made by opponents of the individual mandate is that it is "unprecedented" — and therefore constitutionally suspect — for Congress to use the Commerce Clause power to mandate the purchase of a product. Never in United States history has Congress interfered so much with personal freedom so as to mandate the purchase of a product. If Congress can do this, the thinking runs, then individual freedom is lost because there are no limits on what other statist things the federal government can do. As a result, approving the mandate would enable unprecedented statism: If the federal government can cross this line, it can cross any line.
That's the narrative. At the risk of ticking off my fellow libertarians even more than I have already, however, I wonder if this narrative is somewhat backwards.
Here's my thinking. The basic goal of the Affordable Care Act is to make sure everyone has health care insurance. In the 1960s, Great Society era, that goal would have been satisfied by establishing a government monopoly that forced government insurance on everyone. Consider the Medicare program, which was first established in 1965. Under Medicare, the federal government automatically provides health insurance to those 65 or older. The program is paid for with taxes paid by the country's employees, most of whom are under 65, who must pay a 2.9% payroll tax.
The 1960s Great-Society way to establish health care for everyone would have been to extend Medicare so that it applies to everyone. The payroll tax would have been increased, and insurance would have been provided to everyone under a uniform plan run by the federal Government. Throughout the debate over health care, first in the Clinton years and later with the Obama administration, the 1960s Great Society model was in play at times under the rubric of the "single-payer model." That's what those on the left wanted in the current health care debate.
Pretty much everyone agrees that a single-payer government monopoly paid for out of payroll taxes would be constitutional. It's the old big-government way of doing things, and is certainly not "unprecedented." It's old news. So if the Affordable Care Act had been based on that model, there would be no challenge to its constitutionality.
Now enter the individual mandate. In the health care debates, an individual mandate was considered a more market-oriented alternative to the single-payer model. As far back as 1992, the idea was pitched by the Heritage Foundation as the Heritage Consumer Choice Health Plan. It was then enacted in Massachusetts in 2006 under Republican Governor Mitt Romney. The basic idea is to reject a one-size-fits-all method of government control and to instead continue to allow private companies to offer health care plans, with the catch that everyone who can afford health care must buy it.
The end result is similar to that in a mandatory benefit program, in that everyone ends up with health care insurance. But under a individual mandate health care plan, private companies are allowed to compete amongst each other for customers. Instead of forcing the same benefit on everyone and using the tax system to force people to pay for it in payroll taxes, it maintains the basic dynamic of a purchased good and thereby retains some aspects of a market system based on competition among providers. Of course, it's not a free market by any stretch. Those who can afford it are required to purchase a good from one of the approved insurance companies, which libertarians will abhor. But on a scale from a total free market to total government control, the option is more market-oriented than the Great Society approach — which would require the benefit to be provided and paid for without even the pretense of a market purchase.
Let's return to the title of the post, the question of why the mandate is "unprecented." If I understand the way in which mandate challengers use that term, the mandate isn't unprecedented because the government has never been this statist. To the contrary, it is "unprecedented" because it is the first time that a major federal government benefit program rejected the 1960s Great Society model and instead tried to adopt a more market-oriented approach to benefits. That is, the mandate is unprecedented because it tries to create a federal government benefit program while maintaining the basic market dynamic of goods being bought and sold instead of a government monopoly dynamic of paying for benefits through taxes. As far as I know, it's the first time a federal government program has tried to use that kind of hybrid government-market model.
Why does this matter? I think it matters in part because it suggests that the arguments of the mandate challengers are libertarian only in the short run. In the short run, we know as between a 1960s Great Society model and an individual mandate model, that the individual mandate model was more politically popular — and that even it barely squeaked through Congress. As a result, if you can get the individual mandate struck down, then the effect is likely to keep away either kind of health care system as long as the current political picture stays roughly steady. That's why the argument looks libertarian today, and presumably why so many libertarians embrace it: For the foreseeable future, it would have the libertarian result of leading to neither a government monopoly nor an individual mandate model of health care. The former would be ruled out by public opinion, and the latter by the courts.
In the long term, however, the argument of the mandate opponents doesn't strike me as a particularly libertarian. If the courts conclude that the mandate approach is unconstitutional, then the more market-oriented approach to benefits would be ruled out. Congress would have a choice: Don't mandate benefits, or else mandate using a 1960s Great Society government monopoly model. Depending on what kinds of policies are popular in the future, the result may be to push future Congresses to embrace the government monopoly model more. If Congress had the determination to pass a benefits program but the more market-oriented approach were ruled out, then it would presumably proceed with a government monopoly program instead. Perhaps the Constitution requires that. But it doesn't strike me as a libertarian result.
N.Y. Magazine on Obama and Israel
This is an interesting piece defending the Obama Administration's record on Israel.
For what it's worth, I don't think Obama is "anti-Israel." But I think the NY Mag piece misses some significant elements of the puzzle. Obama made it clear during the 2008 campaign that he was anti-Likud. Likud happened to be the Israeli party in power when he came into office. This created several problems for Obama, some substantive and some for "optics."
On the optics side, it's pretty hard to be anti-Likud when the Likud is in power and not look like you are exhibiting some hostility to Israel.
Relatedly, on the substantive side, it's pretty clear to me that the Obama Administration wanted to topple the Likud-led government so they could get a more dovish government more to their liking in power.
This led the Administration to publicly demand that Israel initiate a full settlement freeze, something the Palestinians themselves had never demanded [as a precondition to negotiations]. The strategy, as I see it, was that with a new extremely popular president Israel wouldn't be able to say no, but Netanyahu's coalition was too right-wing to say yes. So the government would have to fall, as Shamir's did in the early '90s in part because he couldn't get along with the Bush Administration.
This proved a spectacular miscalculation. Netanyahu had a much broader coalition than Shamir's, including the Labor Party. And Israel has become a major issue in conservative politics, which is was not twenty years ago. Pressure on Netanyahu invited pushback from the Republicans, leading Democrats to tell the president to ratchet it down. And again optics-wise, how often does the U.S. try to undermine the coalition governing one of its democratic allies?
Meanwhile, the Palestinians couldn't demand less from the Israelis than Obama demanded, so they refused negotiations in the absence of a full settlement freeze. In interviews I've seen, Palestinian officials have been quite explicit that this is the reason they have been unwilling to negotiate with Israel. So Obama not only came off as anti-Israel to many friends of Israel, he also undermined what was left of the peace process.
Finally, with regard to domestic politics I pointed out repeatedly during the 2008 campaign that one of Obama's weaknesses was that his entire adult life was spent in circles in which liberal/left views were taken for granted. In Obama's circles, publicly pressuring Israel and using "evenhanded" language to refer to the Palestinian-Israeli conflict (while favoring Israel beneath the rhetorical surface) seems perfectly reasonable, even a bit "right-wing." The JStreet types that are Obama's natural constituency would certainly think so. (The mistaken assumption, pushed by JStreet itself, was that the average pro-Israel American was the equivalent of a JStreeter. This isn't true, and to the extent it applies to some Jewish voters, the JStreeter types are almost all hardcore Democrats, not the swing voters/donors Obama is having trouble with.)
But in mainstream pro-Israel sentiment, especially among the more traditional Jewish communities on the East Coast, "evenhanded" sentiment sounds extremely suspicious, especially (lest we forget) given that Obama still faced suspicion thanks to his longstanding membership in a church with an arguably anti-Semitic and certainly anti-Israel minister. (Remarkably, Rev. Wright never comes up in the NY Mag piece).
In short, I think the Obama Administration took it for granted that pro-Israel Americans would understand Obama and his administration were pro-Israel, but were simply willing to pressure Israel for its own good, at the expense of the Likud and its allies but not Israel. Instead, what a lot of Americans thought they saw was the Administration pressuring Israel publicly but coddling the other side. The NY Mag piece suggests that the Administration was also pressuring the Arabs, but much more quietly. Perhaps, but you can only get away with that if folks trust your pro-Israel bona fides, which they did not with Obama.
Taylor Branch on Paying College Athletes
Historian Taylor Branch has a fascinating Atlantic article on the history of regulations forbidding pay for college athletes. He also makes a strong case for abolishing those rules and describes various legal challenges to them. I don't agree with all of Branch's analysis. For example, I'm not as optimistic as he is that lawsuits will lead to the end of the NCAA cartel. The Supreme Court has long interpreted the antitrust laws to exempt college sports, and it is unlikely to change its mind — both because a multibillion dollar industry has relied on those decisions and because the Court generally does not like to change its statutory interpretation decisions.
But I do agree with Branch that the rules need to be changed. In any event, the article is well worth reading for anyone interested in the issue.
I myself made the case for allowing colleges to pay athletes here and here.
Pakistan Court Temporarily Blocks Facebook on the Grounds That It "Spread[s] Religious Hatred"
So reports Pakistan Today:
The Lahore High Court Justice Sh Azmat Saeed on Monday ordered ministry of information and technology to block access to all websites in Pakistan especially American social networking website "Facebook", spreading religious hatred on internet and to submit a compliance report by October 6. The judge, however, made it clear that no search engine including "Google" would be blocked.
The court issued this order while hearing a petition seeking a permanent ban on the access to American social networking website "Facebook" for hosting competition featuring blasphemous caricatures.
Muhammad & Ahmad, a public interest litigation firm, through chairman Muhammad Azhar Siddique advocate filed this petition and prayed for a permanent ban on access to Facebook for hosting a fresh blasphemous caricature drawing contest world over under a title "2nd Annual Draw Muhammad Day-May 20, 2011″....
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
The Subjects of the Constitution
Hello, Conspiracy! This week, I will be guest-blogging about a new model of constitutional review. The first two installments — The Subjects of the Constitution and The Objects of the Constitution — were recently published in the Stanford Law Review, and the comprehensive version is forthcoming next year as a book by Oxford University Press. Many thanks to Eugene for the introduction and to Randy Barnett for the rave review.
This past summer, the project was cited by the Third Circuit in a controversial executive detention case and discussed by the Seventh Circuit in an important gun rights case. As Randy anticipated, it was also cited by Virginia earlier this year in its challenge to ObamaCare. I will be discussing these practical applications later in the week. Today, I will begin with the simple observation from which all these applications follow.
The school year has just begun, and in countless law school classrooms across the country, a phrase is just beginning to echo. In all of these classrooms, professors are intoning, and students are dutifully transcribing, the following words: "This statute violates the Constitution."
This is commonplace. It is also wrong.
Statutes do not violate the Constitution any more than guns commit murder. The Constitution prohibits certain actions. Actions require actors, just as verbs require subjects. Government actors, not statutes, violate the Constitution. Congress, the President, federal courts, state officials — these are the potential subjects of a constitutional challenge. And every constitutional claim should begin by identifying which one is to blame.
Yet, as a general matter, our constitutional discourse is maddeningly vague about exactly who has violated the Constitution. If Congress makes a law, the President executes the law, and a constitutional right is violated, it must be that either Congress or the President violated the Constitution. But which one? And is the answer the same in every case? The Court rarely says that "Congress has violated the Constitution" or "the President has violated the Constitution." Instead, it insists on saying: "the statute violates the Constitution" (or, worse yet, "the statute violates the Constitution as-applied").
This formulation derives, perhaps, from an odd linguistic quirk. Congress acts by making laws. But the product of the action of Congress — the statute, the public law — is also called an "Act of Congress." In grammatical terms, "act" is both a noun ("an act") and a verb ("to act"), as it has been since before the Founding. In common parlance, when Congress acts (lowercase, verb), the result is an Act (uppercase, noun) of Congress.
But note the subtle difference between saying that "an act of Congress violated the Constitution" and saying that "an Act of Congress violates the Constitution." The former (lowercase, past tense) properly focuses on Congress, its action in making the law, and the moment in the past when the law was made. The latter (uppercase, present tense) confusingly focuses on the statute itself in the present, as though the statute were the culprit and its offense ongoing. And so usage has varied from the analytically correct ("this action of Congress violated the Constitution") to the ambiguous ("this act/Act of Congress violated/violates the Constitution") to the incorrect ("this statute violates the Constitution").
From the Court's perspective, this last formulation may possess the (dubious) merit of euphemism. Judicial review is always a politically sensitive matter, and the Court understandably tries to avoid direct confrontation with the coordinate branches. By saying that "the statute violates the Constitution," the Court carefully avoids pointing a finger or casting express blame.
But this is not merely harmless euphemism. To say that "a statute" — rather than a government official — violates the Constitution is to conceal and abet a constitutional culprit. Usually, the Court is at pains to emphasize the crucial importance of constitutional accountability. But here, the Court's phrasing renders the government more opaque and less accountable, so that the People do not know whom to blame, whom to vote against, whom to impeach. In short, the Court's circumlocution hails from the familiar, passive, elusive, "mistakes were made" school of constitutional responsibility.
But that is not the worst of it. To say that "a statute violates the constitution" is to perpetuate a pathetic fallacy. Judicial review is not the review of statutes at large; judicial review is constitutional review of governmental action. Government actors violate the Constitution. And the structure and substance of judicial review turns on which one committed the violation.
This is not a mere linguistic or grammatical point, but a deep structural implication of federalism and separation of powers. The Constitution restricts all different governmental actors. And it restricts these different actors differently. One cannot determine whether the Constitution has been violated without knowing who has allegedly violated it. The predicates of judicial review inevitably depend upon the subjects of judicial review.
Chief Justice Marshall understood this, recognizing that the who question is "of great importance." But a century later, the Court had entirely lost sight of the subjects of the Constitution. The fact that different clauses bind different actors is now treated, in case after case, as an embarrassing drafting error, fit for judicial "correction." It would be "unthinkable," the Supreme Court insists, if a constitutional prohibition applied to one governmental actor and not another. Yet it is hardly unthinkable — indeed, it is an irrefutable textual fact — that different clauses apply to different government actors.
As Marshall knew, this is a fundamental structural feature of our Constitution, reflecting the Framers' deep insight that each branch and level of government poses different and distinct threats to individual liberty. As I will try to demonstrate this week, it is essential to identify the constitutional culprit, because judicial review of a legislative act is entirely different — formally, structurally, temporally different — from judicial review of an executive act. These basic differences dictate both the structure and the substance of judicial review.
So, the first step in any act of judicial review must be to figure out the subject of the constitutional claim. The first question to ask is the all-important who question. The Constitution has allegedly been violated. Who has violated it?
MoveOn Takes On Student Loans
For whatever reason, I'm on MoveOn.Org's e-mail distribution list. Last week, I received an e-mail from MoveOn.Org that seemed a bit far afield from that organziations usual concerns: A petition calling for the federal government to forgive student loans as a way to stimulate the economy. The e-mail, titled "Sick of your student loans?" reads:
Dear MoveOn member,
Forgiving the student loan debt of all Americans will have an immediate stimulative effect on our economy. With the stroke of the President's pen, millions of Americans would suddenly have hundreds, or in some cases, thousands of extra dollars in their pockets each and every month to spend on ailing sectors of the economy.As consumer spending increases, businesses will begin to hire, jobs will be created, and a new era of innovation, entrepreneurship, and prosperity will be ushered in for all. A rising tide does, in fact, lift all boats—forgiving student loan debt, rather than tax cuts for corporations, millionaires and billionaires, has a MUCH greater chance of helping to raise that tide in a MUCH shorter time-frame.
The future economic success of this country is wholly dependent upon a well-educated, prosperous middle class. Instead of saddling entire generations with debt from which there is no escape, let's empower the American people to grow this economy on their own!
That's why I created a petition on SignOn.org, calling on President Obama and Congress to support legislation seeking student loan forgiveness as a means of economic stimulus.
I accept that the dramatic growth of student-loan debt is a problem, but I am unconvinced that blanket loan forgiveness is the right response, or that such a policy would be a cost-effective way to stimulate the economy.
Rehearing Security-Investigation-as-Retaliation Case
Federal courts of appeals do not grant petitions for rehearing en banc very often. Three-judge panels grant petitions for rehearing and new arguments even less often. So it is interesting to see that the U.S. Court of Appeals for the D.C. Circuit has granted a panel rehearing, complete with supplemental briefing and another oral argument, in Rattigan v. Holder. In this case, an FBI employee alleges that he was subject to a security investigation as retaliation for filing discrimination complaints. The FBI argued that Rattigan's claim was nonjusticiable, as it would require a court to examine and second-guess national security judgments that are committed to the FBI's discretion.
In its original decision, the D.C. Circuit rejected the FBI's defense 2–1. Judge Tatel wrote the opinion for the court, joined by Judge Rogers, holding that a federal court could review decisions to report potential security risks, even if it could not review any subsequent security-clearance decision made by government officials charged with making such decisions. Judge Kavanaugh dissented, objecting to the majority's narrow reading of the relevant precedent and its "slicing and dicing of the security clearance process into reviewable and unreviewable portions."
The order granting rehearing asks for additional briefing focuses on three questions relating to the scope of Supreme Court precedent committing national security clearance decisions to agency discretion. I've reproduced the questions below the jump.
(1) Does Egan's bar on judicial review of national security clearance decisions extend to actions by employees outside of the Security Division?
(2) If Egan's bar does not extend to decisions by employees outside the Security Division, would allowing Title VII retaliation claims against such employees chill their reporting of information involving suspicion of national security concerns to the Security Division pursuant to Executive Order 12,968? If so, why? Would departmental complaint procedures not also chill such reporting?
(3) If the court were to allow Title VII retaliation claims based on referrals of knowingly false information, does any record evidence in this case support such a claim? If not, should a remand be ordered?
Bill of Rights Institute Video on Republic v. Democracy
In honor of Constitution Day (I'm just getting around to blogging it late), my friends at the Bill of Rights Institute (where I serve on the Board of Directors and as the Chair of the Academic Advisory Council) have produced a nifty little video describing the difference between a constitutional republic and a democracy. As they note on their blog, this is an elusive (but important) distinction for many citizens.
Conference on "A Growing Crisis in the Credit Market"
I'll be participating in a program tomorrow on "A Growing Crisis in the Credit Market," a one-day conference on "The Plight Facing the Unbanked and the Under-Banked in America." The program is co-sponsored by the National Urban League, National Bankers Association, Competitive Enterprise Institute, and Hispanic Leadership Fund and will focus on the challenges of unbanked and under-banked consumers in America today and recent government policies that have increased and exacerbated the problem. Should be an interesting program with an unusually wide variety of perspectives looking at the same problems.
Supreme Court Stays Texas Execution
Given all the attention paid to Rick Perry's "record tally" of executions as Texas Governor, I am surprised the Supreme Court's decision last week to stay the execution of Duane Edward Buck has not received more attention. From the Houston Chronicle:
Buck was sentenced to die for the July 1995 shooting deaths of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck also shot his sister, Phyllis Taylor, in the chest at point-blank range, but the woman recovered and later became an advocate for saving his life.
The legal fight for Buck's life centered on a 2000 assertion by then-Texas Attorney General John Cornyn that Buck's case was among six capital trials that might have been tainted by racial testimony from psychologist Walter Quijano.
The other five killers all received new federal court-ordered punishment hearings in which they again were sentenced to death. But Buck, whose case still was at the state level at the time of Cornyn's pronouncement, never had his sentencing reconsidered.
Given the stay, I would think that a grant of certiorari is likely.
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