Eugene Volokh's Blog, page 2756

Republican Senator and Physician Tom Coburn Questions Constitutionality of Federal Malpractice Reform

(Randy Barnett)

A few weeks ago, I had this column in the Washington Examiner questioning the "fair-weather federalism" of House Republicans supporting HR-5, which regulates the tort of malpractice by employing a highly expansive reading of the commerce power. I was pleased, therefore, to learn of this statement by Senator Tom Coburn (R-OK), a physician and supporter of medical malpractice reform, in which he questions the constitutionality of federal malpractice reform.

Dr. Adashi: Shifting gears now Senator to another issue that is obviously on the mind of all physicians and that you as a practicing family medicine practitioner as well as an obstetrician/gynecologist would be very aware of, and that is of course the malpractice challenge and the notion that perhaps we can reform our medical liability situation. What is your general vision on that matter, and could you support a bill such as the health act proposed by Representative Gingrey? Do you think of this as a federal matter as opposed to a state matter? What can you share with our viewers, given a life experience both as a practitioner and as a legislator on this thorny issue?

Senator Coburn: It is a big issue. Defensive medicine costs, at a minimum, are $200 billion a year in this country. Where you have seen significant tort reform, like Texas, California, and Mississippi, what you have seen is not only have malpractice rates gone down, but also after about 2 years, you start to see practice patterns change. Oklahoma, my home state, just passed a tort change. We have been trying to do it for 25 years, and now there is a limitation on noneconomic damages for every action — not just healthcare — every action in our state is limited to $350,000. That is going to draw business to our state like crazy.

What I worry about as a fiscal conservative and also as a constitutionalist, is that the first time we put our nose under the tent to start telling Oklahoma or Ohio or Michigan what their tort law will be, where will it stop? In other words, if we can expand the commerce clause enough to mandate that you have to buy health insurance, then I'm sure nobody would object to saying we can extend it enough to say what your tort law is going to be. Then we are going to have the federal government telling us what our tort laws are going to be in healthcare, and what about our tort laws in everything else? Where does it stop?

One of the things our founders believed was that our 13 separate states could actually have some unique identity under this constitution and maybe do things differently, and I think we ought to allow that process to continue as long as we are protecting human and civil rights. I am real happy about what Oklahoma has done. I can't believe that any state wouldn't do that, but it is okay to fail. I don't like the liability system. I had a bill last year — the Patient's Choice Act — which incentivized the states to change. In other words, if you would go to a system where you would actually reform, we would supplement your Medicaid payments. We would incentivize you to do that, and I think that is the better way to do it.

The Puzzling Case of Moore v. State

(Orin Kerr)

Held, by the Indiana Supreme Court: A drunken passenger in a car that is pulled over for a traffic violation is guilty of public intoxication, on the ground that "established precedent has long recognized that a person in a vehicle stopped along a highway is in a public place for purposes of the public intoxication statute. " (citing Miles v. State, 247 Ind. 423, 425, 216 N.E.2d 847, 849 (1966)).

What a strange result, and as far as I can tell, entirely avoidable. First, the Miles case seems easily distinguishable. In Miles, the person arrested was found by the officer parked by the side of the road with the window down, and thus was at least plausibly in "public." In contrast, as I understand Moore, the defendant was only stopped by the side of the road because the police officer seized Moore and forced Moore to be stopped by the side of the road when the officer pulled over the vehicle.

Under the principle of the venerable case of Martin v. State, 31 Ala. App. 334, 12 So.2d 427 (1944) — taught in nearly every 1L criminal law course — I would think this makes a critical difference: An officer can't force a drunken person to be in "public" and then arrest the person for being drunk in public. As the Martin court put it:

[A] voluntary appearance is presupposed [by the statute]. The rule has been declared, and we think it sound, that an accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer.

I would think the same principle applies when the defendant was forcibly stopped along the highway.

Thanks to Howard Bashman for the link.

District Court Upholds Polar Bear Listing

(Jonathan H. Adler)

Yesterday, the federal district court in D.C. upheld the federal government's decision to list polar bears as "threatened" under the Endangered Species Act against challenges from all sides. Environmentalist organizations argued the government should have instead listed the polar bear as "endangered" (a more protected status), while Alaska and industry groups argued the polar bear should not have been listed at all. As I expected, the Fish & Wildlife Service's decision has been sustained. In In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, Judge Sullivan turned away the challenges from both sides and deferred to the agency's determination.

Holly Doremus analyzes the opinion here. I've posted the opening of the 116-page opinion below the fold.

In May 2008, the U.S. Fish and Wildlife Service ("FWS" or "the Service") issued its final rule listing the polar bear as a "threatened species" under the Endangered Species Act of 1973. See Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008) (the "Listing Rule"). The Service concluded that the polar bear is likely to become endangered within the foreseeable future because of anticipated impacts to its sea ice habitat from increasing Arctic temperatures, which have been attributed to global greenhouse gas emissions and related atmospheric changes. Numerous plaintiffs have challenged the Listing Rule under the Endangered Species Act ("ESA" or "the Act"), 16 U.S.C. §§ 1531–1544, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551–559, 701–706, claiming that the Service's decision to list the polar bear as a threatened species was arbitrary and capricious and an abuse of agency discretion. Pending before the Court are the parties' cross-motions for summary judgment.

As the briefing in this case makes clear, the question of whether, when, and how to list the polar bear under the ESA is a uniquely challenging one. The three-year effort by FWS to resolve this question required agency decision-makers and experts not only to evaluate a body of science that is both exceedingly complex and rapidly developing, but also to apply that science in a way that enabled them to make reasonable predictions about potential impacts over the next century to a species that spans international boundaries. In this process, the Service considered over 160,000 pages of documents and approximately 670,000 comment submissions from state and federal agencies, foreign governments, Alaska Native Tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, nongovernmental organizations, and private citizens. In addition to relying on its own experts, the agency also
consulted a number of impartial experts in a variety of fields, including climate scientists and polar bear biologists.

In view of these exhaustive administrative proceedings, the Court is keenly aware that this is exactly the kind of decisionmaking process in which its role is strictly circumscribed. Indeed, it is not this Court's role to determine, based on its independent assessment of the scientific evidence, whether the agency could have reached a different conclusion with regard to the listing of the polar bear. Rather, as mandated by the
Supreme Court and by this Circuit, the full extent of the Court's authority in this case is to determine whether the agency's decision-making process and its ultimate decision to list the polar bear as a threatened species satisfy certain minimal standards of rationality based upon the evidence before the agency at that time.

For the reasons set forth below, the Court is persuaded that the Listing Rule survives this highly deferential standard. After careful consideration of the numerous objections to the Listing Rule, the Court finds that plaintiffs have failed to demonstrate that the agency's listing determination rises to the level of irrationality. In the Court's opinion, plaintiffs' challenges amount to nothing more than competing views about policy and science. Some plaintiffs in this case believe that the Service went too far in protecting the polar bear; others contend that the Service did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. However, this Court is not empowered to choose among these competing views. Although plaintiffs have proposed many alternative conclusions that the agency could have
drawn with respect to the status of the polar bear, the Court cannot substitute either the plaintiffs' or its own judgment for that of the agency. Instead, this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. That is particularly true where, as here, the agency is operating at the frontiers of science.

In sum, having carefully considered plaintiffs' motions, the federal defendants' and defendant-intervenors' crossmotions, the oppositions and replies thereto, various supplemental briefs, the supplemental explanation prepared by FWS in response to this Court's November 4, 2010 remand order, arguments of counsel at a motions hearing held on February 23, 2011, the relevant law, the full administrative record, and for the reasons set forth below, the Court finds that the Service's
decision to list the polar bear as a threatened species under the ESA represents a reasoned exercise of the agency's discretion based upon the facts and the best available science as of 2008 when the agency made its listing determination. Accordingly, the Court hereby DENIES plaintiffs' motions for summary judgment and GRANTS the federal defendants' and defendant-intervenors' motions for summary judgment.

Ten D.C. Circuit Opinions

(Jonathan H. Adler)

The U.S. Court of Appeals for the D.C. Circuit issued ten opinions today. I cannot ever recall so many decisions issued in a single day by that court. It's almost as if the judges are trying to get ready for their summer break.

Is Harold Koh the Left's John Yoo?

(Jonathan H. Adler)

The University of Chicago's Eric Posner argues in The New Republic that State Department legal adviser Harold Koh and former Office of Legal Counsel attorney John Yoo are "two peas in a pod." In his view, both are continuing a long-standing executive practice of using the executive's authority to engage in legal interpretations that advance the Administration's policies and constitutional vision. His provocative article begins:

Harold Koh and John Yoo are two peas in a pod, except that Yoo is the right-wing pea and Koh is the left-wing pea. Yoo, a Justice Department lawyer during the Bush administration, interpreted "torture" narrowly in order to advance a constitutional agenda in which executive power has primacy. This interpretation permitted the Bush administration to use harsh interrogation tactics on suspected members of Al Qaeda. Koh, the legal adviser for Obama's State Department, has now interpreted "hostilities" narrowly in order to advance a constitutional vision in which international norms and institutions play a role. Under Koh's interpretation, Obama can keep troops in Libya despite apparently contrary provisions in the War Powers Act.

Many observers assumed that Koh and other lawyers appointed by Obama would repair the damage to the rule of law caused by Bush lawyers like Yoo—not follow in their path. Yet now, both Yoo and Koh have kicked up dust storms among law professors and other commentators who believe that the two lawyers distorted the meaning of a clear statute in an obvious way, and hence in defiance of Congress. These critics, however, are misguided.

Sixth Circuit Strikes Down Michigan Civil Rights Initiative

(Jonathan H. Adler)

In a divided opinion, the U.S. Court of Appeals for the Sixth Circuit struck down Michigan's Proposal 2, aka the "Michigan Civil Rights Initiative." Proposal 2 was a successful ballot initiative that provides that the state, including state educational institutions, may not "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting." Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it "unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities." Judge Gibbons dissented. The decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan is here.

I am quite confident this is not the last we have heard of this case, and will be quite surprised if this decision is ultimately sustained. Given the panel and the holding, I think there is a reasonable likelihood of it going en banc, and if this opinion is not overturned en banc, I would think that this case — or perhaps the similar case challenging the equivalent California initiative — will go to the Supreme Court.

Obama Administration Gives Green Light for Raids on Medical Marijuana Distributors

(Ilya Somin)

Back in October 2009, the Obama Justice Department issued a memo that some interpreted as discouraging federal raids on medical marijuana dispensaries operating in states where medical marijuana is permitted under state law. I pointed out at the time that the memo imposed few if any genuine restrictions on federal prosecution of medical marijuana producers. Certainly, it fell far short of implementing Barack Obama's 2008 campaign promise to stop medical marijuana prosecutions in states where medical marijuana is legal.

Now the Justice Department has issued a new memo to federal prosecutors emphasizing that it has no intention of discouraging federal medical marijuana prosecutions, regardless of state law:

The Department's view of the efficient use of limited federal resources as articulated in the [2009] Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes.....

The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. [emphasis added]

Some will argue that the administration has no choice but to enforce these laws. However, prosecutorial discretion gives the executive the power to decide not to pursue these cases if the president so chooses. Indeed, the federal government can only prosecute a small fraction of the numerous violations of today's overbloated federal criminal law. The average American commits about three federal felonies every day. Every administration must inevitably prioritize some federal laws over others.

There is no legal obstacle preventing the president from keeping his campaign promise. The problem is lack of political will. The hesitation is remarkable in light of the fact that polls show that some 81 percent of the public supports legalization of medical marijuana.

Eight Things to Know About Yesterday's Sixth Circuit Decision

(Randy Barnett)

Volokh readers will remember when two widely-respected conservative Court of Appeals judges, Judge Easterbrook and Judge Posner were on a unanimous Seventh Circuit panel denying both the Due Process and Privileges or Immunities challenge to Chicago's hand-gun ban. One year later, the Due Process challenge was upheld 5–4 in McDonald v. Chicago. My friend and current adversary, Walter Delliger said yesterday that the opinion by Judge Jeff Sutton to uphold the individual mandate "is a complete vindication of the constitutionality of the Affordable Care Act." Not so fast. Sutton's opinion was no surprise to anyone who was in the courtroom in Cincinnati. Nor would a contrary opinion have been surprising. Sutton was scrupulously critical of both sides that day. Indeed, his opinion shares the "on the one hand" and "on the other hand" character of his questioning. And it also bears some resemblance to Judge Easterbrook's opinion in McDonald.

Given that Dellinger's reaction is likely to be commonplace among the Act's supporters, I thought it would be useful to offer a few observations about the Sixth Circuit decision generally and Judge Sutton's opinion in particular. Although each of these points merit further thought and more extensive treatment, it is also useful to present them more succinctly as a list.

1. Yesterday's decision was 2–1. The arguments in favor of the mandate that some find so persuasive were well presented by Judges Martin and Sutton. Yet they still failed to persuade Judge Graham. Unlike defenders of the ACA, no challenger has ever claimed that this case is a slam dunk for unconstitutionality, or that legal arguments supporting the ACA are frivolous. No challenger has ever predicted a unanimous Supreme Court decision. Just as the substance of Judge Martin's opinion could well end up being adopted by a majority of justices, so too could Judge Graham's analysis. (For reasons below, I do not believe the Judge Sutton's opinion based as it is on a "Roach Motel" view of facial challenges is as likely to form the basis of a Supreme Court majority opinion, but elements of it could.) This case remains a very difficult challenge for the courts, and one which the Supreme Court will ultimately decide de novo. I do not believe that any of the justices on either side will be overly influenced by any of the lower court opinions, except as potential road maps to take them where they independently decide they want to go. In short, the Supreme Court justices decisions will be made according to their own jurisprudential commitments, not those of inferior court judges who are subject to different constraints and norms. And this will also be true if one appeals court strikes down the mandate – just as the opinions of two district court judges who held the mandate unconstitutional did not dictate the outcome in the Sixth Circuit.

2. Yesterday's decision affirmed 2–0 the unprecedented nature of this power. Both Judge Sutton and Graham note that the power to impose economic mandates on the people is novel. (So far as I could tell, Judge Martin does not speak to the issue. He certainly cites no clear cut previous examples of such mandates.) Of course, it does not automatically follow from this that it is therefore unconstitutional, as evidenced by this 2–1 decision upholding the mandate. But, it reaffirms that the Court will have to let Congress go where it has not gone before. That continues to create a challenge for the law's defenders, even under a "presumption of constitutionality." As Judge Sutton wrote (citing Printz among other cases): "Legislative novelty typically is not a constitutional virtue. More than once, and quite often in separation-of-powers cases, the Court has said that a '[l]ack of historical precedent can indicate a constitutional infirmity'" in a congressional act."

3. Yesterday's decision rejected the tax power argument 2–0-1. A majority of the panel yesterday rejected the darling theory of the law professoriate (and I recently learned the SEIU) that the "penalty" enforcing the "individual responsibility requirement" or mandate is an exercise of the tax power. And Judge Martin expressly declined to reach the issue. Once again, the tax power theory went nowhere. I won't rehearse all the reasons why the implications of this theory are too radical for any court to accept. But keep in mind that many of the same people who have been telling us that the Commerce Clause theory is a slam dunk, also endorse the tax power theory.

4. The Court rejected the objections to standing 3–0. Some of the same folks who are so confidently opining on the scope of the commerce and tax powers – including the government – were also questioning the claimants' standing to challenge the ACA. The court unanimously rejected their view and reached the merits.

5. Judge Martin accepted the requirement the Congress must regulate activity. Unlike the passage from Judge Sutton quoted by Orin, Judge Martin did not question the activity-inactivity distinction. "In applying this jurisprudence, our first duty is to determine the class of activities that the minimum coverage provision regulates." And "[t]he minimum coverage provision regulates activity that is decidedly economic." Later he writes, "far from regulating inactivity, the provision regulates active participation in the health care market." For his Commerce Clause Analysis, he accepted the government's characterization of the activity reached by the statute:

By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons. First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce. In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.

In short, the majority accepts the "class of activities" framework that I have advanced since December of 2009, and found the "practice of self-insurance" to be the relevant activity. Having been advanced by the government, this theory of the relevant "class of activities" was neither new or surprising. The first step in any Commerce Clause analysis is to define the relevant "class of activities" and the litigants disagree about this definition.

6. The use of "self-insurance" by the majority was problematic. Neither Judge Martin or Sutton spend much time explaining the concept of "self-insurance" upon which their opinions vitally depend. Wikipedia summarizes the conventional technical meaning of this activity: "Self insurance is a risk management method in which a calculated amount of money is set aside to compensate for the potential future loss." In other words, companies "self-insure," when instead of entering a risk pool provided by an "insurance" company, they create their own pool of funds from which to handle future losses. This is a genuine activity. Doing nothing and waiting to pay for something later – perhaps best called "self-financing" – is simply not the same thing. The key about "self-financing" is that it happens when you receive services and are called upon to pay. But this is not the class of activities defined by the statute. In this way, by misusing the term "self-insurance," both judges convert inactivity into a "class of activities." But that is merely semantic not substantive. It would only convince someone who really did not care whether Congress has the power to mandate activity or not. It would not convince anyone concerned about granting this new power to Congress. Judge Martin gives up considerable ground in a footnote, where he concedes: "We use the term self-insurance for ease of discussion. We note, however, that it is actually a misnomer because no insurance is involved, and might be better described as risk retention." "Risk retention" is a somewhat more transparent way to describe doing nothing, but it is still seeking to use semantics to create a "class of activities" from nonactivity.

7. The swing vote depended on a "Roach Motel" theory of facial challenges. According to Judge Sutton's view of facial challenges, the mandate is constitutional as applied to anyone who already has insurance. Having once voluntarily chosen to get insurance, they can be mandated never to stop. Like the Roach Motel, once citizens check into the health insurance market, they can never check out. This implication of Judge Sutton's analysis is a sign of its weakness, and why it won't be adopted the Supreme Court. Ilya and Jonathan have already ably explained some of the substantive difficulties with this approach. But the key is that his view of facial challenges was crucial to his decision, because it allowed him to avoid the hardest issues posed by the mandate: compelling citizens into a market – here the insurance market – who are not currently in that market. (I realize that the government claims the "relevant market" is the health care market, but this rewriting of the statute has other problems.) If Judge Sutton is right about "facial challenges," and Judge Martin and others are right about the unavailability of "as applied challenges" after Raich (as I think they are), then there is really no justiciable way to adjudicate whether Congress has exceeded its Commerce Clause powers. Here is the basic logic:

"Facial" challenges will be denied so long as there are any constitutional applications of the law.

But, so long Congress can reach a "class of activities," the courts will not carve out subclasses in an "as applied" challenge to see if they may beyond Congress's power.

This would be a radical conclusion I doubt the Supreme Court will adopt. By the time it reaches the Supreme Court, Judge Sutton's analysis of facial challenges will have been thoroughly vetted. In the end, the choices for the justices will be between something like Judge Martin's opinion or Judge Graham's. The "center" will not hold.

8. Judge Sutton's Challenge to the Supreme Court. In McDonald, Judge Easterbrook protested that it was not for an "inferior" judge to extrapolate from recent Due Process Clause cases to strike down a handgun ban given Nineteenth Century cases refusing to extend protection of the Second Amendment to the states. Judge Sutton does the reverse. His opinion concedes that this claim of power goes beyond anything the Constitution or Supreme Court has previously upheld. "The Court, for one, has never considered the validity of this type of mandate before, at least under the commerce power. . . . Not only has the Court never crossed this line, neither has Congress. . . ." One might have imagined that, at this point, an inferior court judge might well have stopped and ruled for the challenger. Instead, Judge Sutton engages in extrapolation from "the language and direction of the Court's precedents. . . ." In other words, he engages in just the form of extrapolation that Judge Easterbrook eschewed. His predictive approach to stare decisis closely resembles that which has been articulated here by Orin. To which Judge Graham offered his own prediction:

Notwithstanding Raich, I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so.

Indeed, Judge Sutton issues his own poignant challenge to the Supreme Court:

The Supreme Court can decide that the legend of Wickard has outstripped the facts of Wickard — that a farmer's production only of more than 200 bushels of wheat a year substantially affected interstate commerce. . . . A court of appeals cannot. The Supreme Court can decide that Raich was a case only about the fungibility of marijuana, . . . not a decision that makes broader and more extravagant assertions of legislative power more impervious to challenge. A court of appeals cannot.

Whether or not an inferior court may, the Supreme Court not only can, but must decide these questions. And so it will. About a year from now.

Court to Consider Administrative Compliance Orders

(Jonathan H. Adler)

The Supreme Court accepted cert on two more cases on Tuesday. One of these cases, Sackett v. EPA, could be quite significant for administrative law. The case arises out of an all-too-typical wetlands regulation dispute. The Sacketts own a lot in a residential subdivision upon which they planned to build a home. After they graded the lot, they were received an Administrative Compliance Order (ACO) from the EPA alleging they had violated the Clean Water Act by filling a wetland without a federal permit and ordering them to commence costly restoration, under threat of substantial penalties. The Sackett's sought to challenge the ACO, believing that their land does not constitute jurisdictional wetlands subject to federal regulation, but the Clean Water Act does not provide any basis for doing so absent waiting for the EPA to commence a civil action. According to the EPA, what the Sacketts could have done is applied for the permit they believe they do not need, and if their permit application was denied, then challenge the EPA's jurisdictional determination in federal court. But this is hardly an appealing option, particularly given the substantial costs the permitting process entails. So the Sacketts filed suit in federal court, but the district court and U.S. Court of Appeals for the Ninth Circuit agreed with the EPA that the ACO was not subject to a pre-enforcement challenge.

In agreeing to hear the case, the Supreme Court accepted cert on the following two questions: 1. May petitioners seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U. S. C. §704? 2. If not, does petitioners' inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause? While this case focuses on the Clean Water Act's ACO regime, the cert grant makes clear that it will have broader application to laws that employ similar enforcement mechanisms, including the Clean Air Act and Superfund. In particular, this case could have a significant influence on regulatory enforcement, where traditional notions of Due Process often get short shrift.

Richard Frank and Holly Doremus have more on Sackett at Legal Planet, as do the folks at the Pacific Legal Foundation who brought the case.

The Presumption of Constitutionality Revisited

(Ilya Somin)

In his response to my post on the mandate cases and the presumption of constitutionality, Orin Kerr argues that the presumption applies to all cases where courts consider the constitutionality of congressional legislation.

Orin recognizes that the Supreme Court majority in fact fails to even mention the presumption in many controversial cases where it strikes down federal laws, such as United States v. Lopez and Boumediene v. Bush. I would add to that list such other cases as Reno v. ACLU, New York v. United States, and Printz v. United States — the latter two being major federalism cases. The Court did briefly mention the presumption at the start of its opinion in Morrison v. United States (I corrected my error on that point in an update to my previous post), but then completely ignores it in its actual analysis of the legal issues in the case. Thus, it seems clear that the Court routinely ignores the presumption in cases where it strikes down federal laws.

Orin suggests that the Court may be applying the presumption even in cases where it goes unmentioned. That is theoretically possible, but highly unlikely in reality. If the Court were applying a presumption of constitutionality in closely contested cases such as Lopez, Boumediene, Printz, and New York (all 5–4 or 6–3 decisions that were highly controversial), one would expect the justices to at least mention that fact. Unlike judicial review, the presumption and its application are not uncontested background assumptions that nearly all jurists agree on. Rather, the degree of deference due to Congress is one of the main contested issues in federalism and separation of powers cases, including the ones listed above.

In my previous post, I suggested that the Court chooses not to apply the presumption in situations where the majority believes the challenged statute "gone beyond the bounds of both previous decisions and the text of the Constitution itself." Orin responds that that wasn't true in Boumediene because the statute struck down in that case "was actually just restoring the prior law before the Supreme Court creatively read its statues a few years earlier." Orin's interpretation of the statute may be correct. But it's not the view taken by the Supreme Court majority, which had interpreted the prior law as not allowing the kinds of military tribunals that were explicitly permitted by the statute struck down in Boumediene. Even more importantly, the prior statute was itself a recent innovation arising from the War on Terror. In the Supreme Court majority's view, it was not supported by previous judicial precedent or by longstanding practice. The majority opinion actually refers to what it calls "the lack of a precedent on point."

Finally, Orin suggests that the presumption of constitutionality is merely about "who has the burden of proof," and wrongly interprets me as saying that a burden of proof makes no difference. What I actually said, in the comments to my previous post was this:

If the presumption merely means that those challenging a law must present some proof of some kind that it's unconstitutional, then it makes little difference. Realistically, no court is likely to strike down a law without at least some showing of that type. However, those who argue for the presumption usually imply a significantly higher burden of proof, such as that the law must be upheld unless its unconstitutionality is unambiguously clear.

If Orin believes that the presumption requires only the sort of minimal burden of proof I described in my comment, then the difference between our views has little practical significance. I still think that the presumption doesn't apply at all [in some cases] (as it didn't in Lopez, Printz, Boumediene, etc.). But there is little meaningful difference between not applying it at all, and interpreting it to require some minimal proof of some kind. Realistically, no federal court is likely to strike down a law if the challengers have no argument at all against it. If, on the other hand, Orin would require a more substantial burden, things are different.

UPDATE: I should emphasize that the point is not just that the Court failed to explicitly mention the presumption of constitutionality in the cases I listed. Even more importantly, it also failed to apply the doctrine with or without mentioning it, even though it would clearly have been relevant if it did apply. Nowhere in these opinions is there any indication that the majority was deferring to Congress or presuming that Congress' statute was constitutional.