Eugene Volokh's Blog, page 2728
August 18, 2011
College Department Chair Sues Professor for Libel, Loses
An interesting example of this fortunately rare occurrence comes in Olguin v. Santa Barbara Community College Dist. (Cal. Ct. App. Aug. 15, 2011). The case has an interesting discussion of the state-law "common interest privilege," which is quite important in cases involving alleged defamation within an organization or in job references; but here is an excerpt describing the court's conclusion that the statements were likely to be nondefamatory opinion:
Plaintiff Arthur Olguin, a psychology professor, appeals a judgment in favor of defendants Santa Barbara Community College District (District) and Raymond Launier, a District psychology professor. Launier filed a grievance against Olguin and sent a memo to District colleagues. Launier claimed that Olguin violated academic freedom when Olguin instructed the college bookstore not to order materials Launier authored and planned to use in his classes. Olguin stated the memo contained false statements including the "republication" of a student's complaint to the District about witnessing him commit a lewd act in his office....
[The court concludes that there was no error in the instructions that led to a jury verdict in favor of defendants, but goes on to say: –EV]
Moreover, "[a] judgment may not be reversed on appeal, even for error involving 'misdirection of the jury,' unless 'after an examination of the entire cause, including the evidence,' it appears the error caused a 'miscarriage of justice.'" ... [Here,] there was no miscarriage of justice. Launier's testimony that he was motivated by concerns about academic freedom is supported by his memo, which is essentially a treatise on academic freedom. Olguin notes that Launier said he had a "forked tongue for spewing bile." But any colleague reading it would understand that this was said in jest because Launier prefaced these remarks with the phrase "[t]ongue in cheek."
Olguin views all of Launier's negative statements about him to be actionable defamation. But Launier set forth the facts from which he drew conclusions. "'[C]ourts have found statements to be nonactionable opinion when the facts supporting the opinion are disclosed.'" "Arguments for actionability disappear when the audience members know the facts underlying an assertion and can judge the truthfulness of the allegedly defamatory statement themselves." Here Launier sent the memo to colleagues who knew he had a dispute with Olguin. This was a highly educated audience. After reading the facts of the dispute, they would view the negative conclusions to be largely "rhetorical hyperbole."
Launier said Olguin's justifications for censoring his materials were intellectually dishonest and amounted to "deceptive rationalizations." Olguin notes that Launier also accused him of being "autocratic," ignoring "academic freedom," engaging in "would-be book burning," an "abuse of power," acting illegally, ignoring district policy, being "overly-controlling," "restrictive," "censuring," "punitive," "prejudicial," "ill-justified," "discriminatory," "unethical," having a "misinformation agenda," being angry, critical, engaging in "small minded attacks," etc.
These were obvious opinions; readers would understand these words to be "a form of exaggerated expression" based on the author's "subjective judgment." Launier used these words as rhetorical barbs in an academic argument against censorship and Olguin's management of the psychology department.
Launier's memo touched upon sensitive constitutional interests by urging his academic colleagues to support his opposition to a public college's censorship of his treatises and to protect the academic freedom of professors to plan their course materials. "Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us.... That freedom is therefore a special concern of the First Amendment ...." (Keyishian v. Bd. of Regents (1967) 385 U.S. 589, 603.) Public colleges and universities are important forums for debate and the "robust exchange of ideas." Consequently, they "are not enclaves immune from the sweep of the First Amendment." (Healy v. James (1972) 408 U.S. 169, 180.) "[T]he First Amendment tolerates neither laws nor other means of coercion, persuasion or intimidation 'that cast a pall of orthodoxy' over the free exchange of ideas in the classroom." Professors do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
Consequently, in the collision of opposing opinions in heated academic debates on important issues, "'there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.'" We have "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks ...."
But the chilling effect of litigation on the discussion of these issues is obvious. Consequently, protecting even harshly critical opinions of those at the center of an important controversy "'provides assurance that public debate will not suffer for lack of 'imaginative expression.'" (Standing Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1440–1441 [protected opinions included such caustic bombast as referring to the targeted individuals as being "intellectually dishonest," "ignorant," a "buffoon," a "sub-standard human," a "bully," a "midget among giants," "whores," etc.].)
Moreover, the defense claimed the memo did not change how Olguin's colleagues viewed him because they already had "a fairly poor opinion" of him. That is supported by overwhelming evidence from the testimony of Bostwick, Bursten, Carroll, Endrijonas, Romo, and Friedlander. Those witnesses impeached Olguin's testimony that he treated his colleagues with respect. Olguin also admitted that his reputation within the department "was harmed" when he was removed as department chair in 1996, and that Launier was not responsible for that demotion. He conceded that, as early as 1996, his colleagues were criticizing him regarding his "interpersonal relationships with them." Olguin testified that he and other faculty removed Launier as department chair in 1999 partly because of [Launier's] license revocation. But Olguin was impeached when he later admitted that he did not even discover the revocation until 2000. Bostwick's testimony supported Launier's position regarding the alleged lewd behavior incident. The special verdict shows that Olguin was unable to prove causation and damages, and that jurors rejected a substantial portion of his testimony.
Seems quite right to me. UPDATE: Forgot to add: Unfortunately, it took a trial and an appeal, and who knows how much in legal fees, to get the case disposed of.
Legal Policy Arguments (Post 1 of 2) — Tying Abstract Arguments to Concrete Ones
I thought I'd post again some thoughts that I had about making effective policy arguments, in law school, in legal articles, and in briefs. I include this in the readings for my first-semester Torts students, and I thought other law students might find them helpful, too. Some of these points are obvious, but I've often noticed how even the obvious can be overlooked. I'll post two more items on this soon.
1. The best policy arguments are generally ones that go beyond the abstract, and tie the abstract arguments to concrete realities of how people act (and how the law operates). Say, for instance, that you are arguing about when newspapers should be held liable for publishing false claims about political officials that hurt the official's reputation. You could argue that "people should be liable for the harm they cause," or "the freedom of the press means that the press can't be held liable for criticizing the government." And it's possible that these high-level abstractions will persuade some of your listeners.
But others will be skeptical about each of these generalities. Often we don't hold people liable for certain kinds of harm that they cause. And sometimes we do hold the press liable for its statements, even if the statements criticize government officials. It's certainly not obvious that the freedom of the press should include complete immunity from all liability. As Justice Holmes put it, "General propositions do not decide concrete cases."
So to make the arguments more persuasive, you need to marry the generalities with more concrete observations about your particular problem. For instance, you might point out that a publisher faced with the risk of liability may decline to publish even true statements, if it's not sure the statements are true, or if it thinks a jury might wrongly conclude that they're false. Imposing liability for false and defamatory statements will thus deter socially valuable true statements, and not just the harmful and socially valueless false statements.
Or you might point out that false statements about officials not only hurt the officials, but also mislead voters, and deter some people from running for office. They might even especially deter those people who we most want to serve in office: those who cherish their reputation for honesty and integrity, and who are most likely to be turned off from public life if defamatory falsehoods repeatedly go unpunished.
You might also point out that false statements are routinely punished in other contexts, such as perjury, commercial fraud, and the like. If we trust courts to accurately decide whether testimony under oath (including testimony about a political official) was a lie, even when a person's liberty is at stake — as in a perjury prosecution — why shouldn't we trust them equally when all that is at stake is a newspaper's money?
Naturally, there are counterarguments to these concrete arguments as well as to the abstract ones. If you want a field in which an argument, once correctly made, will persuade all reasonable observers, there are doubtless spots open in Mathematics Ph.D. programs (and I say this as someone whose first great love was mathematics). But the arguments that combine the concrete and the abstract are more likely to persuade than the abstract arguments alone.
2. When it comes to concrete claims about possible consequences, the best policy arguments consider indirect consequences as well as direct ones: They look beyond how a decision will affect the parties to the case (e.g., causing one party to become poorer and the other richer), and whether it will encourage potential defendants to comply with the legal rule in the future. They also ask how people will react in more complex ways to the risk of liability, what conduct they will substitute for the liability-producing conduct.
Say, for instance, that the question is whether people should be held liable for failing to call 911 when they hear someone being attacked. One should certainly ask whether it's fair to impose such liability on a particular defendant, and whether such liability will encourage people to call 911 in the future.
But one should also ask about other effects. Say, for instance, that you witness a crime but fail to report it right away; and say that you are then approached by the police who are going door to door looking for witnesses who might help with the investigation. Would the prospect of liability for the initial failure to report discourage you from cooperating with the police? After all, the safest bet for you, once you've failed to call 911 when you needed to, is to clam up and pretend that you didn't witness the crime in the first place.
Likewise, say that the question is whether employers should be held liable for hiring employees with records of criminal violence, if the employee then violently attacks a customer of the employer. Such liability will encourage employers to hire employees who are on balance less likely to attack customers.
But this liability may make it even harder for ex-convicts to find a job after they're released from prison. This lack of a job might increase the risk that the convict will turn back to crime, and might thus increase the overall rate of violent crime.
Despite this, liability in such situations might still be a good idea. But to figure out if it's a good idea — and, more importantly for lawyers, to figure out the best arguments against it (the defense lawyer's job), or anticipate the arguments against it in order to rebut them (the plaintiff's lawyer's job) — you need to think about the full range of consequences.
Henry Ford Had Nothing to Do with Creating Medicare
An opinion from the U.S. Court of Appeals for the Sixth Circuit in Henry Ford Health System v. Department of Health and Human Services begins:
"My effort is in the direction of simplicity," once wrote the namesake of the Henry Ford Hospital. Henry Ford, My Life and Work 13 (Garden City Publ'g Co. 1922). Mr. Ford apparently had nothing to do with the creation of the Medicare program.
Despite (or perhaps because of) Medicare's complexity, the Sixth Circuit rejected the Henry Ford Health System's challenge to HHS's rules regarding reimbursement of research expenses at teaching hospitals.
August 17, 2011
What Drives Law School Tuition?
Over at Inside the Law School Scam, the anonymous "Lawprof" has some interesting posts, here and here, on why law school tuitions have grown so much over the last 20 to 30 years. I agree with some of it, but I wonder if it's also missing a significant part of the picture: The combined role of rising law firm salaries and readily-available student loans.
I'm not an expert in these topics, but here's my sense of what's happening. Law school tuition has risen greatly, but so have the salaries offered to first-year associates at large law firms. For example, when I was in law school in the mid-1990s, Harvard Law's tuition was about $20,000 a year. In contrast, today's tuition is $45,450 per year. But the salaries at the big law firms that most students aim to work for have gone up at about the same rate. When I was interviewing for a job at the big law firms in DC in 1995–96, the big DC law firms paid $74,000 to their first-year associates. Today the standard first-year salary at a big DC law firm is $160,000. If you compare the rates of increase since the mid 1990s, then, tuition has gone up 127% and salaries have gone up 116% (both in unadjusted dollars).
That's a slight difference, but not much. The ratio of law-school-cost to employed-lawyer-income has been relatively steady. And while the ratio is hardly fixed, I don't think it's entirely random. My sense is that the high salaries offered to associates at big law firms have made many students less sensitive to debt than they otherwise would be, which has in turn lessened pressure on schools to limit tuition hikes. Put another way, if law school buys you a ticket to make $160k a year plus a bonus, with your salary rising steadily to $210,00 plus bonus by your fourth year, you're not going to be as sensitive to the cost of that ticket as you otherwise would be. And if you're not as sensitive to the cost of the ticket, the cost of the ticket is more likely to rise.
Government-supported student loans are the other part of the picture. Government support enables loans to be obtained regardless of how likely it is that a particular student will get one of those high-paying jobs. This makes it easier for students to take on loans now without fully confronting how they'll pay the loans back later. As a result, it's easy for students to take on debt now and just be optimistic that they'll get a great job later. The shameful lack of candor among law schools about student employment prospects certainly hasn't helped, at least to the extent students actually rely on those representations. But the ready availability of the loans, plus the known prospect of a possible $160,000 a year salary (plus a bonus) after just three years of study, has created an environment in which law schools haven't had the pressure to limit tuition increases that they would have had otherwise. Today's high tuition is a cumulative product of that culture.
"Skating on Stilts" Wins Award
My book, Skating on Stilts, has been named a 2010 Book of the Year, winning a bronze in the Political Science category from ForeWord Review, whose awards are made each year by a panel of librarians and booksellers choosing among the offerings of independent publishers.
Charter School May Not Sue State; Charter School Teachers' Free Speech Rights Not Violated by State Curriculum Restrictions
From Nampa Classical Academy v. Goesling (9th Cir. Aug. 15, 2011) (nonprecedential) (unsigned opinion by Judges Reinhardt and Willie Fletcher, with Judge Rawlinson concurring in the result only:
Nampa Classical Academy ("NCA"), along with plaintiffs Moffett, Kosmann and M.K., sued the Idaho Public Charter School Commission, alleging that its policy prohibiting the use of sectarian or denominational texts in public schools violated the First and Fourteenth Amendments as well as Idaho state law. Sometime after the district court dismissed all of plaintiffs' claims, the state revoked NCA's charter for a lack of financial viability. We affirm the dismissal.
NCA, as a political subdivision of the state, "has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator." While NCA itself is a private non-profit corporation, Idaho law contains numerous provisions that, when taken as a whole, demonstrate that Idaho charter schools are governmental entities. Idaho charter schools are also subject to state control that weighs in favor of a finding that they are governmental entities. Like other political subdivisions, Idaho charter schools are creatures of Idaho state law that are funded by the state, subject to the supervision and control of the state, and exist at the state's mercy. NCA is therefore a government entity incapable of bringing an action against the state.
The district court erred in concluding that Moffett lacked capacity to sue the state. Because Moffet's claim that his rights as a teacher were violated by the Commission's policy is neither an official capacity claim on behalf of the school nor a non-justiciable assertion of a generalized public interest, Moffett has standing to pursue this claim.
The First Amendment's speech clause does not, however, give Idaho charter school teachers, Idaho charter school students, or the parents of Idaho charter school students a right to have primary religious texts included as part of the school curriculum. Because Idaho charter schools are governmental entities, the curriculum presented in such a school is not the speech of teachers, parents, or students, but that of the Idaho government. [Footnote: The school's speech is the state's speech even if, under Idaho law, NCA is the equivalent of a school district, and school districts have broad discretion over public school curriculum. School districts enjoy broad discretion over curricula not because the school district is a crucial part of the American constitutional design with inherent rights over public school curriculum, but because states authorize the existence of school districts as political subdivisions and delegate to them the state government's authority to run state public schools.]
The government's own speech is exempt from scrutiny under the First Amendment's speech clause. A public school's curriculum ... is "an example of the government opening up its own mouth," because the message is communicated by employees working at institutions that are state-funded, state-authorized, and extensively state-regulated. Because the government's own speech is not subject to the First Amendment, plaintiffs have no First Amendment right to compel that speech.
Plaintiffs allege that the state has retaliated against NCA, and not against the other plaintiffs. Because NCA is a political subdivision of the state, it has no constitutional right to sue the state itself; further, a political subdivision has no constitutional protection against the actions of the state.
The Commission's policy does not violate the Establishment Clause, which generally prohibits governmental promotion of religion, not governmental efforts to ensure that public entities, or private parties receiving government funds, use public money for secular purposes. Nor does the policy as applied violate the Equal Protection Clause of the Fourteenth Amendment, which does not apply to the state's disparate treatment of its own political subdivisions....
Strikes me as quite correct, given Ysursa v. Pocatello Educ. Ass'n and other cases that the opinion cites (see the full opinion text for those citations).
Charter School May Not Sue State; Charter School Teachers May Not Complain About State Curriculum Restrictions
From Nampa Classical Academy v. Goesling (9th Cir. Aug. 15, 2011) (nonprecedential) (unsigned opinion by Judges Reinhardt and Willie Fletcher, with Judge Rawlinson concurring in the result only:
Nampa Classical Academy ("NCA"), along with plaintiffs Moffett, Kosmann and M.K., sued the Idaho Public Charter School Commission, alleging that its policy prohibiting the use of sectarian or denominational texts in public schools violated the First and Fourteenth Amendments as well as Idaho state law. Sometime after the district court dismissed all of plaintiffs' claims, the state revoked NCA's charter for a lack of financial viability. We affirm the dismissal.
NCA, as a political subdivision of the state, "has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator." While NCA itself is a private non-profit corporation, Idaho law contains numerous provisions that, when taken as a whole, demonstrate that Idaho charter schools are governmental entities. Idaho charter schools are also subject to state control that weighs in favor of a finding that they are governmental entities. Like other political subdivisions, Idaho charter schools are creatures of Idaho state law that are funded by the state, subject to the supervision and control of the state, and exist at the state's mercy. NCA is therefore a government entity incapable of bringing an action against the state.
The district court erred in concluding that Moffett lacked capacity to sue the state. Because Moffet's claim that his rights as a teacher were violated by the Commission's policy is neither an official capacity claim on behalf of the school nor a non-justiciable assertion of a generalized public interest, Moffett has standing to pursue this claim.
The First Amendment's speech clause does not, however, give Idaho charter school teachers, Idaho charter school students, or the parents of Idaho charter school students a right to have primary religious texts included as part of the school curriculum. Because Idaho charter schools are governmental entities, the curriculum presented in such a school is not the speech of teachers, parents, or students, but that of the Idaho government. [Footnote: The school's speech is the state's speech even if, under Idaho law, NCA is the equivalent of a school district, and school districts have broad discretion over public school curriculum. School districts enjoy broad discretion over curricula not because the school district is a crucial part of the American constitutional design with inherent rights over public school curriculum, but because states authorize the existence of school districts as political subdivisions and delegate to them the state government's authority to run state public schools.]
The government's own speech is exempt from scrutiny under the First Amendment's speech clause. A public school's curriculum ... is "an example of the government opening up its own mouth," because the message is communicated by employees working at institutions that are state-funded, state-authorized, and extensively state-regulated. Because the government's own speech is not subject to the First Amendment, plaintiffs have no First Amendment right to compel that speech.
Plaintiffs allege that the state has retaliated against NCA, and not against the other plaintiffs. Because NCA is a political subdivision of the state, it has no constitutional right to sue the state itself; further, a political subdivision has no constitutional protection against the actions of the state.
The Commission's policy does not violate the Establishment Clause, which generally prohibits governmental promotion of religion, not governmental efforts to ensure that public entities, or private parties receiving government funds, use public money for secular purposes. Nor does the policy as applied violate the Equal Protection Clause of the Fourteenth Amendment, which does not apply to the state's disparate treatment of its own political subdivisions....
Strikes me as quite correct, given Ysursa v. Pocatello Educ. Ass'n and other cases that the opinion cites (see the full opinion text for those citations).
My Newsday Op Ed on the 11th Circuit Individual Mandate Decision
Newsday has published an op ed I wrote on the 11th Circuit decision striking down the individual mandate. Because of very tight space constraints, I was unable to cover many of the nuances of the decision. But the op ed does summarize my main thoughts on it:
Last week's Eleventh Circuit Court of Appeals decision striking down the individual mandate in President Barack Obama's health care plan is an important milestone. The court correctly recognized that there is no way to uphold the mandate without giving Congress unlimited power to mandate anything....
The ruling was co-authored by Judge Frank Hull, who became the first Democratic judge to vote to strike down the mandate. This undercuts already dubious claims that the lawsuits are frivolous; her opinion signals that the arguments against the mandate are strong enough to persuade at least one appellate judge likely to favor it on political grounds.
Since another federal appellate court, the Sixth Circuit, recently upheld the law, it's extremely likely that the Supreme Court will decide to hear the case within the next year....
Defenders of the mandate claim this is a special case because everyone eventually uses health care at some point. But the argument relies on shifting the focus from health insurance to health care. The same bait-and-switch tactic can justify any other mandate.
For example, not everyone eats broccoli. But everyone does participate in the market for food. Therefore, a mandate requiring everyone to purchase and eat broccoli would be permissible under the federal government's logic, as would any other purchase requirement. As the Eleventh Circuit puts it, "the government's position amounts to an argument that the mere fact of an individual's existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life." Whatever we do, we are always implicitly making decisions not to purchase some product or other, and those choices all have economic effects.
Student Loan Forgiveness and Government or Nonprofit Employment
Amid the debates over rising student loan debt that is undischargeable in bankruptcy, I have not seen a lot of public discussion over provisions of law that provide special forgiveness benefits to those who go to work for government or nonprofits. I'm thinking of the Public Service Loan Forgiveness program (2007), described here at the federal government student aid website. There is also a fact sheet (2009) at the site, as well as a Q&A (2010) on eligibility and other questions.
I have posted some excerpts from these documents below the fold, but am still uncertain as to the status of this program. To start with, has it disappeared or is it about to disappear in the budget bills in Congress — disappearing the way that forgiveness of student loan interest seems to be going?
In the comments, I would be interested in any factual or descriptive comments, links, etc., that directly address how these programs work, current status, eligibility, and so on. (As I would like to be able to refer others, including students, to this post and its comments as a descriptive matter, please no opinions about any of this or off-topic comments; I'd rather learn something about how it actually works and where it is headed as a program before opining or hearing your opinions. VCers are more than capable of opining about the incentives or disincentives created by such programs; at this point, I'd like a better factual grasp of this program.) From the 2009 fact sheet:
What is the Public Service Loan Forgiveness Program?
Through the College Cost Reduction and Access Act of 2007, Congress created the Public Service Loan Forgiveness Program to encourage individuals to enter and continue to work full-time in public service jobs. Under this program, borrowers may qualify for forgiveness of the remaining balance due on their eligible federal student loans after they have made 120 payments on those loans under certain repayment plans while employed full time by certain public service employers. Since borrowers must make 120 monthly payments on their eligible federal student loans beginning after October 1, 2007 before they qualify for the loan forgiveness, the first cancellations of loan balances will not be granted until October 2017.
This fact sheet summarizes the terms and conditions of the Public Service Loan Forgiveness Program.
What federal student loans are eligible for forgiveness under the Public Service Loan Forgiveness Program?
Any non-defaulted loan made under the William D. Ford Federal Direct Loan Program (Direct Loan Program) is eligible for loan forgiveness. (See below for information on how non-Direct Loans may be eligible.) The Direct Loan Program includes the following types of loans–
Federal Direct Stafford/Ford Loans (Direct Subsidized Loans) Federal Direct Unsubsidized Stafford/Ford Loans (Direct Unsubsidized Loans) Federal Direct PLUS Loans (Direct PLUS Loans) – for parents and graduate or professional students Federal Direct Consolidation Loans (Direct Consolidation Loans)
How can other federal student loans qualify for loan forgiveness?
Although loan forgiveness under this program is available only for loans made and repaid under the Direct Loan Program, loans made under other federal student loan programs may qualify for forgiveness if they are consolidated into a Direct Con– solidation Loan. However, only payments made on the Direct Consolidation Loan will count toward the required 120 monthly payments.
The following types of loans may be consolidated into the Direct Loan Program – Federal Family Education Loan (FFEL) Program loans, which include –
Subsidized Stafford Loans Unsubsidized Stafford Loans Federal PLUS Loans – for parents and graduate or professional students Federal Consolidation Loans (excluding joint spousal consolidation loans)
Federal Perkins Loans Certain Health Professions and Nursing Loans
NOTE: To consolidate a Federal Perkins Loan or Health Professions/Nursing Loan into the Direct Loan Program, you must also consolidate at least one FFEL Program loan or Direct Loan. If you are unsure about what kind of loans you have, you can find information about your federal student loans in the U.S. Department of Education's National Student Loan Data System at http:// nslds.ed.gov.
What are the borrower eligibility requirements for loan forgiveness under the Public Service Loan Forgiveness Program?
The borrower must not be in default on the loans for which forgiveness is requested. · The borrower must be employed full time by a public service organization –
When making the required 120 monthly loan payments (certain repayment conditions apply – see below); At the time the borrower applies for loan forgiveness; and At the time the remaining balance on the borrower's eligible loans is forgiven.
The "Unlimited Power" Argument and the Commerce Clause
There has to be some natural limit on how much commentary readers can bear on the individual mandate, but I wanted to respond to one argument that seems to be at the core of the arguments in the mandate debate. As the recent Eleventh Circuit decision and the recent SCOTUSblog symposium make clear, much of the constitutional argument against the individual mandate rests on the unlimited power argument: The mandate must be unconstitutional because upholding the mandate requires concluding that the federal government has unlimited power. If the mandate is within Congress's power, the thinking goes, then anything is within Congress's power; The federal government would have a general police power, which cannot be right.
I'm deeply sympathetic to the argument that current Commerce Clause doctrine gives the government too much power. At the same time, I think it's worth noting that arguments in support of the mandate do reflect a limitation on the scope of federal power: the line between regulating markets in goods and services and regulating outside of markets in goods and services. The basic idea is that Congress has Article I power to regulate markets in goods and services, as markets in goods and services are commerce. In contrast, Congress does not have have a general Article I power to regulate on subjects outside of markets in goods and services, as that is not part of commerce.
Just to be clear, it's not the line I would propose if I could rethink Commerce Clause jurisprudence from first principles. But it does appear to be the line that current Supreme Court cases draw. Thus, inLopez, the federal government couldn't ban possession of a gun in a school zone with no proven link to interstate commerce because it's extremely tenuous to argue that possessing a gun in a school zone is part of a market in goods and service. As the Lopez Court put it: "Section 922(q) is a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Thus, it couldn't be regulated. In contrast, in Raich, the federal government could regulate even intrastate possession of marijuana, as it is part of an effort to regulate a market in illegal goods and services for marijuana. The Raich court explained:
Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product").
Of course, I realize that there's a debate on how to apply that economic vs. non-economic test (or perhaps more accurately, the market vs. non-market test). Mandate supporters generally look at the law from the perspective of Congress. They reason that Congress was trying to regulate a large chunk of the United States economy, and that obviously relates to markets. In contrast, mandate opponents generally look at the law from the perspective of someone who does not participate in the market for health care. They reason that this application of the law doesn't regulate markets, as that person regulated was outside the market to begin with. But regardless of which application of the test is correct, the test itself does impose a limitation on the scope of federal power.
To be clear, I'm not saying that I personally like the current state of the law. I'm a federalism guy. I personally think the economic/non-economic line isn't enough of a limitation on federal power. Lots of things relate to markets in some way, and when you can "aggregate" economic impact, that gives Congress an enormous amount of power. The Commerce Clause is not just about commerce, it's about interstate commerce. So I would be pleased if the Supreme Court ends up taking a more restrictive view of federal power than existing caselaw reflects. But while the economic/non-economic line may not be enough of a limitation to me, I don't think it's accurate to say that it makes the federal government one of unlimited power.
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