Liberals in denial: The law professors

Prof. Akhil Reed Amar, who has written two superb books on the Constitution, compares Florida Judge Clyde Roger Vinson to the 19th-century Supreme Court Chief Justice Roger Taney, the author of Dred Scott v. Sanford, which affirmed the notion of his fellow human beings as property and arguably precipitated the U.S. Civil War.

Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress' sweeping tax powers.

Except Judge Vinson's most recent order is confined to the narrow question of whether Congress is properly exercising its powers under the Interstate Commerce Clause. The administration had previously argued that the mandate was a tax, and in fact Judge Vinson rejected that argument back in October,* as have even those district courts which have otherwise sided with the Obama administration.

Prof. Amar — and, indeed, the administration — might wish to resuscitate it, but doing so doesn't address the Commerce Clause question, as the latter is not where Congress's power to impose taxes resides. So this is some goalpost-shifting by Prof. Amar and therefore not an appropriate ground to attack Judge Vinson's ruling.

And, in the New York Review of Books, Georgetown's David Cole refers to the Necessary and Proper Clause as "[t]hat catch-all provision" which "authorizes Congress to enact laws that, while not expressly authorized by the Constitution’s specific enumerated powers, are 'necessary and proper' to the exercise of those powers."

First of all, if the Necessary and Proper Clause really is a "catch-all provision" — emphasis on "all" — then Judge Vinson is exactly correct, in that viewing it as such would render Congress's legislative powers not just "virtually" unlimited, but actually unlimited in practice.

But obviously there are limits to Congress's authority — see, for further evidence of those limits, the Bill of Rights — and bold assertions of the said "catch-all provision" do not alter that fact.

Secondly, Congress's authority to impose the mandate must first be discovered within Congress's enumerated powers before any other necessary and proper acts may be justified to carry it into execution. The N&P Clause is not a separate grant of legislative power, but rather is present to facilitate bringing those enumerated powers to effect: if there's no enumerated power, then there's no propriety.**

Prof. Cole also "goes there," observing of a prior decision issuing from a federal district court in Virginia that similarly found the insurance mandate to be beyond Congress's authority:

Judge Hudson and the Virginia attorney-general are situated squarely within a tradition—but it’s an ugly tradition. Proponents of slavery and segregation, and opponents of progressive labor and consumer laws, similarly invoked States' rights not because they cared about the rights of States, but as an instrumental legal cover for what they really sought to defend—the rights to own slaves, to subordinate African-Americans, and to exploit workers and consumers.

Jeez, Louise. He sounds a lot like the Madison Capital Times.

Anyway, even the staunchest admirers of Judge Vinson's handiwork shouldn't get too excited about these recent rulings, as the Supreme Court engages the relevant questions presented to it de novo ("anew, afresh") which means the SCOTUS needn't pay any heed to those lower courts' holdings while it conducts its own independent review.

Likewise, Vinson's and Hudson's detractors should keep their powder dry as well, particularly when they're accusing federal judges and State attorneys-general of behaving like slaveowners, as it detracts considerably from whatever legitimate objections they may have.

(Or, as I'm inclined to suspect, substitutes for the lack thereof.)

Special Series: Liberals in denial

* "My earlier ruling [dismissing] the defendants' tax argument is incorporated into this order and, significantly, has the effect of focusing the issue of the individual mandate on whether it is authorized by the Commerce Clause." — Vinson, Jan. 31, footnote 4.

The dismissal of that argument was the most problematic blow to Obamacare thus far, in your correspondent's own humble estimation.

** Even where there's necessity.

Liberals in denial: Andrew Cohen

In The Atlantic, "one of the nation's leading legal analysts" manages to complete his leading analysis without once mentioning the newly discovered power of Congress to regulate your commerce-thoughts.

I would have imagined* that significant.

Instead, analyst Andrew Cohen dwells — apparently approvingly — on Judge Gladys Kessler's inappropriate policy views: Kessler suggests, says Cohen, that "those who do not purchase health insurance are making irresponsible choices that eventually harm others."

It would be one thing if Judge Kessler's admonitory musings were obiter dicta; that is, extrajudicial asides offered separate and apart from the substance of the ruling itself. The problem is they are integral to her reasoning: how else could she arrive at the conclusion that the federal legislative power includes for the regulation of personal decisions taking place wholly in the province of the mind.

Judge Kessler is speaking, Andrew Cohen believes, to all who "refuse to buy health insurance in the name of federalism and the 10th Amendment." I don't know if that's why they "refuse" to buy health insurance, but at least they found something in the Constitution which mitigates against the view that "commerce among the several States" means "among the several states of human consciousness."

That's the same Andrew Cohen, incidentally, who sought to preempt the expected effect of Judge Clyde Roger Vinson's January 31 order invalidating the PPACA in its entirety by dismissing it brusquely as "a stray decision by a conservative trial judge." But today he's enamored with this wildly injudicious exercise of authority by a liberal one.

If this decision is allowed to stand, I'll eat my tricorne cheese-hat.

* This imagining subject to federal regulation.

More: Liberals in denial.

The continuing saga of liberals in denial

Latest in a series.

Federal lawyers are bracing themselves, it says here, for adverse rulings in several courts over the controversial individual insurance mandate provision contained in 2010's health care reform act.

It seems to me they are well advised to be so braced.

While many newly empowered Republican lawmakers have vowed to repeal the health care law in Congress, a more immediate threat may rest in the federal courts in cases brought by Republican officials in dozens of states.

Been saying that for more than a year now.

An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.

Ye gods.

Without that language — which leads ultimately to a determination of whether the entire Act might survive once a single provision as operationally crucial as the individual insurance mandate is found unconstitutional — it's left for the courts to decide. Although any judicial orders of the trial level court — which is where the legal challenges are now ensconced — barring the enforcement of the law will most likely be postponed pending a higher court's decision.

And that higher court will most probably be the U.S. Supreme Court, and that Court is not likely to rule until such time as smack dab in the middle of the 2012 presidential and Congressional campaigns.

Woe betide somebody (See, e.g., "Obamacare" vs. "Romneycare").

A worse oversight than the lack of that specific language obtains from Congress's failure to convincingly articulate that its authority to enact the insurance mandate derives from something other than its power to "regulate Commerce ... among the several States."

As noted at this space earlier, the federales sustained a body blow when a district court in Florida, decidedly unimpressed by arguments that the mandate was not a regulation of interstate commerce but rather a tax, criticized the administration for cobbling together an ex post facto defense of the law, one which the law itself doesn't appear to have contemplated. So long as the legal challenges remain focused on the Commerce Clause, which is where its critics prefer the focus to remain, the mandate is in much greater danger of invalidation.

A White House official said that in the meantime "the litigation is really not having an impact" on the pace of putting the law into effect: "I talk weekly to officials in States that have sued us, and in States that have not. I cannot tell the difference between them."

If one of them is Wisconsin's attorney general J.B. Van Hollen, it's no wonder you can't tell the difference, because both Van Hollen and the governor-elect have been chomping at the bit to join the litigation.

Doubtless there is skepticism even within those States which will not join the litigation. There has to be, given both the unprecedented interpretation of the Commerce Clause that will be required to sustain the mandate's viability and the current make-up of the Court.

Assuredly, Congress and the president would have been on firmer ground implementing wholesale a single-payer system. A nightmare Supreme Court ruling may be what "compromise" gets them instead.

No point to Van Hollen joining HCR suits now

Sort-of-newsy item:

Wisconsin governor-elect Scott Walker has said he would let AG Van Hollen go ahead with the health care challenge.

The current governor should have let Van Hollen go ahead months ago but at this juncture, Van Hollen's joining one or more of the suits is largely shambolic, as much of the work has already been done.

The most important of the challenges, State of Florida v. DHHS, is shortly headed for the 11th Circuit Court of Appeals in Atlanta.

It's important because the district court resoundingly rejected the federal government's ex post facto rationalization that the so-called individual insurance mandate is authorized by Congress's power to tax. It seems to me not unfair to speculate that the feds devised the argument because there is such scant legal support for the proposition that the Interstate Commerce Clause — which empowers Congress to "regulate Commerce ... among the several States" — authorizes Congress to compel by coercive penalty the bringing into existence of the very commerce Congress might then regulate.

That tactic appears precluded by the plain text of the Constitution.

If the district court's ruling invalidating the tax power argument survives its appeal, then the individual mandate is in serious trouble. And even if the 11th Circuit does reinstate the validity of the federal government's power-to-tax argument, the Supreme Court as currently comprised — where this case is inevitably destined — will not be sympathetic to either the taxing or commerce power justifications.

Suspicion

Another significant challenge is contained in Virginia v. Sebelius, whose litigation is similarly well underway. The plaintiff's principal lawyer, Virginia AG Ken Cuccinelli, was recently observed dictating to Fox News's Greta Van Susteren what sounded suspiciously like a verbatim rehearsal of a blog post that appeared at this location nearly one year ago, so I have a hard time disagreeing with him.

So far the only court that has provided a positive result for defenders of the individual insurance mandate is one in Michigan, but that decision relied on an untenably selective reading of Gonzales v. Raich, the Supreme Court's most recent set of pronouncements on the (yes, "evolving") meaning of the Interstate Commerce Clause.

While it will be argued that Raich defines the Commerce Clause so broadly such that it leads in the direction required to support the validity of the individual mandate, at least in that case there was commerce already in existence — marijuana plants growing in a Californian's apartment, which are presumed to have value in commerce — over which the federal regulatory powers extended, no matter how attenuated was the regulated object from the regulation.

So I wouldn't expect the Michigan decision to stand.

Notorious

And if Scalia gets a crack at its interpretation of Raich — whose majority opinion Scalia did not join but rather wrote separately to agree with its result according to what he claimed was his "more nuanced" understanding — I would expect him to react violently.

And then there is the rejuvenatedly notorious Clarence Thomas, who will take the opportunity to reverse nearly every Commerce Clause decision since and including 1819's McCullough v. Maryland.*

Whatever the ultimate disposition in the ongoing set of cases, Van Hollen's ceremonial participation will have little effect either way.

Attorney General Van Hollen's energies will be better spent joining Obama and his press secretary in defending Congress's enumerated power to order the president to declare a "national day of prayer" annually in America because clearly, that legislative authorization is discoverable throughout Article I, Section 8 of the Constitution.

Besides, it's an actual State of Wisconsin case and we're still waiting for the 7th Circuit Court of Appeals to schedule the oral arguments.

* Justice Thomas wouldn't care much for this Beloit high schooler's t-shirt either, and moreover would likely condone the local authorities' taking the young man out back and having him birched.

See also: Liberals in denial.

Liberals in denial: A ray of hope

There's no denying that a Supreme Court ruling against the law is a very real possibility. — The WaPo's Greg Sargent

Series: Liberals in denial

Edited to add:

:facepalm:

Obamacare: Liberals in denial

Liberals in denial.

I'm just sayin'. Brace yourselves for Thursday.

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.

Liberals in denial, continued

Van Hollen also was wrong to seek to join other attorneys general in a lawsuit over the individual mandate in the new federal health care law. Van Hollen claims the legislation "was a clear case of federal overreach" for requiring citizens to buy health insurance. We'd say it's Van Hollen who is overreaching.

— Milwaukee Journal-Sentinel editorial.

The truth is, Van Hollen's been spot on the money so far. And the AG can expect more vindication forthcoming from Virginia by year's end.

HCR is in trouble, and not from Ron Johnson's silly cries of "repeal." Congress may regulate commerce, but it seems doubtful Congress may coerce into existence the commerce it's empowered to regulate.

And if the federales' taxing power argument keeps failing as hard as it did in Florida, then that coercion into existence is all it's got left.

It may be necessary, but is it proper? It's got to be both.

Liberals in denial, continued again

The most common argument against the mandate is that in giving Congress the power to regulate interstate commerce, the founders didn't create the authority for the federal government to regulate inaction. In other words, they say citizens can't be compelled to participate in interstate commerce, such as buying health insurance. Most legal scholars disagree with this interpretation ... — TPM

Sounds suspiciously like wishful thinking* to me.

* Perhaps even magical thinking.

Incidentally, here is Georgetown law professor Randy Barnett's very recent paper (h/t David Ziemer) on the individual mandate, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional. It's comprehensive, fairly devastating, and has already been cited approvingly by the district court in Florida by way of rejecting the federal government's taxing power argument.

Read it and weep, I'm afraid.

Liberals in denial ongoing some more

Greg Sargent reports on negative reaction to a friend of the court brief filed by a number of U.S. Senators in State of Florida v. DHHS:

Under the [Wickard v. Filburn] decision, Seidman points out, Congress was allowed to compel people to stop producing their own wheat and buy it on the interstate market. Seidman argues that under this precedent, the individual mandate is constitutional, because health reform does the same.

Compelling to stop is distinguishable from compelling to start. Stopping something assumes there was some thing happening that needed to be stopped, whereas compelling to start something acknowledges that there was no thing happening to begin with.

This remains at the crux of the argument: activity vs. inactivity, and Wickard v. Filburn offers no such obvious solution to that dilemma, whether the Commerce Clause empowers the regulation of inactivity.

Seidman points to Medicare Advantage, and notes that it's supported by taxation which, of course, is compelled by the Federal government. Under Medicare Advantage, this money is used by the Federal government to purchase health insurance. "We require people to give money to the Federal government, which then gives it to insurance companies," he says.

The taxing power argument already failed in the district court.*

Next!

* Seidman's example would work in support of a single-payer system.

Liberals in denial update

The Atlantic's Andrew Cohen calls today's expected ruling in State of Florida v. DHHS "a stray decision by a conservative trial judge."

Don't overreact when the judge brutalizes the law, advises Cohen, while he suggests that as many as seven U.S. Supreme Court Justices could be sympathetic to the Obama administration's unprecedented expansion of Congress's power to regulate interstate commerce.

A candy colored clown they call the sandman
Tiptoes to my room every night .....

Liberals in denial now just flat out hallucinating

Or 'tweaking' as the kids might say

The liberal Beltway pundits' reaction to this afternoon's order* of the United States District Court for the Northern District of Florida has been uniformly ridiculous. Here are a couple of special gems.

This is the Interstate Commerce Clause:

The Congress shall have Power To ... regulate commerce with foreign nations, and among the several States ...

This is the Think Progress Wonk Room:**

The [interstate commerce] clause as written gives Congress the power to regulate economic decisions ...

As you can see with your own eyes that's pure, unsupported fantasy.

Astonishingly, this claim appears on the immediate heels of Wonk Room's complaint that the inherent question of what counts as commercial activity and what doesn't — and, therefore, what it is that's subject to regulation — is a red herring because "the actual text of the Constitution makes no mention of such a difference."

And then goes and makes up this stuff about "economic decisions."

This is the Necessary and Proper Clause:

The Congress shall have Power To ... make all laws which shall be necessary and proper for carrying into execution the foregoing powers ...

This is the Washington Post's Greg Sargent, quoting Louis Seidman, a Georgetown University law professor:

[Seidman] argued that the Constitution's "necessary and proper clause" explicitly provides for the regulation of anything that "has an effect" on interstate markets.

Ye gods. Thank heavens for the roundball programs.

Among those foregoing powers is the power to regulate interstate commerce so first, you have to find that power. Otherwise there's nothing to carry into execution. What a brute force non sequitur.

There is obviously no such "explicit provision" there, or anywhere.

Finally from TPM, this strangely persistent myth:

Legal experts across the spectrum largely held that a Constitutional challenge was futile.

Then they were not much of an expert, lemme tell ya.

* .pdf; 78 pgs. digested & mocked by liberal pundits in seconds flat.

** Bonus: Vinson cops to borrowing verbiage from hate group

Liberals in denial

Professor Timothy Jost of Washington and Lee University stressed that already the judge has thrown out the plaintiff's claim that the mandate is an unconstitutional tax (the judge ruled that it's not a tax at all) ...

TPM

That was a defense of the individual mandate that the court threw out, and a pretty significant one at that. I like this headline too:

Parts of healthcare suit may proceed — UPI

Understatement of the year.

And you can barely even locate the story at the New York Times.

Obama acknowledges the inevitable

Reuters reports that the President has acknowledged what for many others has appeared inevitable for more than a year-and-a-half:

"If the Supreme Court follows existing precedent, existing law, [the PPACA individual insurance mandate] should be upheld without a problem," Obama said in Minnesota during a town hall discussion. "If the Supreme Court does not follow existing law and precedent, then we'll have to manage that when it happens."

Hopefully "managing that" will not include accusing the Supreme Court of not following existing law and precedent, as those accusations would be wildly incorrect. In any case the Supreme Court is not bound to follow existing law or precedent, the former if it's unconstitutional and the latter because it just doesn't have to. What it is bound to follow is the text of the Constitution, where Obama apparently believes "regulat[ing] commerce ... among the several States" means regulating the behavior of individual citizens who aren't even participating in the commerce.*

The mandate is good policy and makes perfect economic and rational sense. Unfortunately it's bad law and exceeds Congress's regulatory authority. Not to mention violating a first principle of American constitutional government: that the federal legislative department is designed with cognizable limits. It was a big mistake to rely on the Interstate Commerce Clause to justify this policy. But somehow somebody or other decided this was a gamble with decent odds.

The scenario unfolding toward the conclusion of the U.S. Supreme Court's next term in late June, 2012 — which more and more people are beginning to perceive, including even some liberals — presents Obama's worst nightmare, of which he has owned the majority share of credit:

Obama has championed the individual mandate as a major accomplishment of his presidency.

He might want to stop doing that if he hasn't already.

Meanwhile, liberal denial remains firmly entrenched:

Orin Kerr, a George Washington University law professor, predicted Chief Justice Roberts and Justice Kennedy both would likely end up voting to uphold the individual insurance mandate.

And he's got to be hallucinating.

* All it takes is "mental activity," according to this court.

Liberals in abject denial quote of the day

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional.

— TPM's Josh Marshall

The hell they didn't.

Loophole Wallace bests Wisconsin business group

Fox News's Chris Wallace, touted as the network's most reputable newsman, told "Fox & Friends" this morning that the Supremacy Clause of the U.S. Constitution is "a technicality." Fox's Wallace surpassed the previous record held by Wisconsin Manufacturers & Commerce, which called the Sixth Amendment a technicality.

Face it, the whole thing's a technicality, and gets bent to suit policy preferences every day by liberals and conservatives alike. The difference is, the conservatives are in complete, certifiable denial.