December 15, 2010

Liberals in denial: The Orin Kerr Affair

"[I]t is intercourse." — Chief Justice John Marshall
Yesterday liberals went bananas, pursuant to a post by Prof. Orin Kerr at the Volokh Conspiracy, in which Kerr accused U.S. District Judge Henry E. Hudson, the author of Monday's PPACA opinion, of making a "significant error." Brian Beutler at TPM therefore called Hudson an "amateur," and MSNBC's Keith Olbermann made Hudson his "worst person in the world." Many others bowed to Kerr's apparent authority, including the inexplicably popular Madison blogger Ann Althouse.

None of them bothered to check Kerr's work before pounding out their screeds. But what should have been immediately obvious to anyone who had read the opinion — including Kerr — was that the passage Kerr was criticizing was not part of the judge's "ruling" but rather that portion of the opinion that was reiterating the arguments of the two parties, in this instance a claim made by VA's AG Ken Cuccinelli.

The following comment appears below this excellent rebuttal to Kerr:
Hudson got it right and Kerr got it wrong, and embarrassingly so for a law professor. The [necessary and proper] clause does not establish [its own] substantive legislative authority. The substantive constitutional hook must come from a separate constitutional authority, in this case the interstate commerce clause. This much Kerr seems to get right.

Kerr’s analysis seems to imply that the N&P clause can render constitutional a specific statutory section that is otherwise unconstitutional because the section is part of a larger legislative scheme. This is incorrect.

In this case, the challenge is specifically that the individual mandate provision of Obamacare is unconstitutional. The S.Ct.'s analysis in Gonzales, Lopez, and Morrison* demonstrates that the specific statutory provision(s) being challenged are subject to scrutiny by the Court. The mere fact that a specific statutory section is part of a larger legislative framework is not sufficient to support the constitutionality of that specific provision.

In layman's terms, the mere fact that Congress possesses the power to regulate the broad field of health care under the commerce clause is not sufficient to rebut a challenge to the specific statutory section that requires individuals to obtain insurance. Congress must establish that it has authority to legislate the specific provision.

The absence of economic activity cannot be regulated by Congress under the [interstate commerce clause], regardless of whether the absence of economic activity is part of a larger legislative scheme. It is unconstitutional for Congress to impose an individual mandate to purchase insurance or otherwise engage in economic activity. Unconstitutional acts of Congress cannot be rendered constitutional by virtue of the N&P clause.

Hudson's opinion could perhaps have been more explicit on this point, but it is hardly necessary.
Comment by Aged Attorney — 12/14/2010 @ 5:38 pm

Good stuff.

* Gonzales v. Raich (at issue: growing medical marijuana) stands for an expansive view of Congress's interstate commerce power, while U.S. v. Lopez (gun-free school zones) and U.S. v. Morrison (1994's Violence Against Women Act) both stand for a more restrictive application. These three Supreme Court cases (and a handful of others) provide much of the doctrinal grist for both supporters and opponents of the PPACA's individual insurance mandate.

All three cases, however, are addressed to deliberate activities.

eta: Think Progress issues a thoroughly ad hominem objection.

We're aware Henry Hudson is a Republican. As is John E. Jones III.


gnarlytrombone said...

Is Hudson's opinion organized unusually? There seems to be a great deal of fumbling over which opinions are his.

illusory tenant said...

Not particularly. What the fumblers need to do is review the parties' briefs and assess the accuracy of Hudson's rehearsals of their arguments. It seems to me that there is such a competition among commentators (whose ranks have grown exponentially and include many uninformed ones, such as Beutler, in this case) to be out front that carelessness often rules the day.

gnarlytrombone said...

Yup. I really do appreciate the perfessers (and you) bothering to lawblog to the layfolk (and I really miss Marty Lederman). But Kerr shouldn't have lobbed a grenade like that on coffee break.

William Tyroler said...

Excellent post. I second gnarly @ 11:40.

illusory tenant said...

Counselor! LTNS.

Anonymous said...

I don't want to admit that I am too dumb to follow what is being argued here--but I guess I am. While I love your blog, I wish you might throw in a bit more plain english for those of us readers who wish we knew more about the law and wanted to better understand your perspective. Don't forget us. We read you, too.


illusory tenant said...

Patrick, many thanks. Guilty as charged, in the above case. There are a lot of moving parts to this controversy, each of which requires a lot of background explanation and hopefully I'll have a chance to break some of them down over the next little while.

The short version here is: Article I, Section 8 of the Constitution enumerates a list of specific powers granted Congress, including the power to "regulate commerce ... among the several States." That's the Interstate Commerce Clause. Then at the very end of the list, there's the power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers." That's the Necessary and Proper Clause and as Aged Attorney says, the N&P isn't a separate grant of power over and above the enumerated powers.

It can't be necessary and proper to carry into Execution an unconstitutional law.

In other words, if Congress can't regulate "commercial inactivity" -- not purchasing insurance -- to begin with, that is, if the insurance mandate is unconstitutional under the Commerce Clause, the Necessary and Proper Clause by itself can't make it constitutional, otherwise there would be no limit to Congress's power, and that would defeat the whole purpose of the Constitution, which erected a federal government of limited and enumerated powers. The mandate may be "necessary," which is ultimately what the federal government is arguing, but it's not "proper" because it still violates the Commerce Clause.

Anyway, more to come, and thanks again.