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Monday, July 19, 2010

Randy Barnett Wants Us to Know that His Commerce Clause Argument is not Frivolous

JB

Over at Volokh Conspiracy, Randy Barnett is delighted by Robert Pear's recent New York Times article about the government's defense of the individual mandate under the Taxing Power.

Pear notes that the government is not only arguing that the individual mandate is a constitutional exercise of the Commerce Power; it is also arguing that the individual mandate (which is an amendment to the Internal Revenue Code) is a tax and therefore within Congress's powers under the General Welfare Clause. Because the individual mandate is a tax, the state attorney generals challenging the act in federal court must comply with the Tax Anti-Injunction Act, which prohibits persons from challenging collection of a tax through seeking injunctive relief but requires instead that they sue for a tax refund after the tax has already been collected.

Randy believes that the Justice Department's strategy proves three things. First, the government is running scared. Second, raising a taxing power defense means that the government must now think that its Commerce Clause defense is vulnerable. Third, Randy believes that all this is proof that Randy's argument that the individual mandate is not within Congress' Commerce powers is not frivolous.

Let us take these one at a time. First, does the fact that the Justice Department has raised more than one theory show that the government has suddenly become worried that the statute is unprecedented and unconstitutional? No it does not. Randy, who is an experienced litigator, knows that a good lawyer raises every possible legal theory he can on behalf of his client and seeks to win in the quickest and most efficient way. The tax argument is a simple, straightforward way of demonstrating the constitutionality of the individual mandate. It also has the additional advantage of knocking out the Florida challenge without even having to proceed to the constitutional question. Under the Tax Anti-Injunction Act, once the court is convinced that plaintiffs are trying to enjoin collection of a tax, it dismisses the case, and requires taxpayers to proceed through administrative appeals and litigation for tax refunds.

Second, is Randy correct that "If the Commerce Clause claim of power were a slam dunk, as previously alleged, would there be any need now to change or supplement that theory?" Of course there would be. As just noted, good lawyers raise every theory that could assist their client in winning the case. Having an additional theory, or two, or three, or four, does not suggest that the government now doubts its Commerce Clause argument. It suggests only that the government lawyers are conscientious lawyers who actually want to win their case. Can we blame them for this?

Indeed, the government lawyers have offered two theories-- Commerce Power and Taxing Power-- in order to demonstrate how strong their case really is. After all, it is hornbook law that a statute is constitutional if it falls within any of Congress's powers. (Here we assume that the act does not violate any individual right, but that has not been alleged in the Florida litigation). Since the Justice Department has two very strong arguments for constitutionality, and the plaintiffs must win on both arguments, it will be difficult for them to prevail. Knowing this, the court may well choose the tax argument on which to base the opinion because the test under Helvering v. Davis is is extremely straightforward. Step One: Could Congress reasonably have concluded that this tax promotes the general welfare? If the answer is yes, the case is over.

Given that the Justice Department lawyers actually want to win the case, it is hardly surprising that they would raise both the Tax and Commerce Clause issues. What would be truly surprising is that they would not raise both issues.

Challengers to the individual mandate, by contrast, have always wanted to focus on the commerce power argument. They have wanted to make the case about the commerce power as opposed to the taxing power, and to relegate the taxing power argument to a sideshow which ultimately reduces to the Commerce Clause argument. Doing so makes strategic sense. It is harder to pick two locks than one. Or to use a different metaphor, opponents of the individual mandate don't want to have to fight a two-front war.

But there is absolutely no reason that the Justice Department has to litigate the case on these terms. Since the Justice Department lawyers are competent, they realize that as long as the plaintiffs must fight on two fronts, and win two arguments, it will be very difficult for them to prevail. So the Justice Department is doing what good lawyers do. They are raising multiple theories to uphold the statute.

Randy emphasizes that Congress made findings of fact demonstrating that it was invoking the Commerce Power, and no findings specifically invoking the Taxing Power. This is certainly true, but it proves nothing. It was wise for Congress to specifically invoke its commerce power and to make detailed findings of fact because of recent Commerce Clause cases like Lopez, Morrison and Raich. However, when Congress amends the Internal Revenue Code, it doesn't have to make any findings of fact or state that it is exercising its taxing power. Adding provisions to the Internal Revenue Code is presumptively a use of the taxing power. The test of Helvering v. Davis is whether Congress could have reasonably concluded that the tax promotes the General Welfare. A court must ask if there are any facts known or that Congress might reasonably have assumed that would make its conclusion reasonable. One does not need any additional findings of fact to satisfy this test. Randy's suggestion that once Congress has stated its intention to use the Commerce Power the government is somehow estopped from invoking any other power to justify the statute is spurious. After all, Randy himself concedes that "when Congress does not invoke a specific power for a claim of power, the Supreme Court will look for a basis on which to sustain the measure." If Congress mentions only one power, it hardly follows that it doesn't want the statute upheld under any other theory.

Third, and finally, does the use of two theories rather than one to uphold the statute mean that Randy's Commerce Clause argument is proved not to be frivolous? No. Randy's argument might be frivolous or it might not be; but, to repeat the point once again, good lawyers make every argument that might allow their client to win. The fact that the Justice Department has made both arguments says nothing about which arguments it contests are frivolous. What it says to me is that the Justice Department wants to win the case and does not want to litigate the case on the terms most favorable to Randy Barnett.

But is Randy's argument frivolous? Well, if by "frivolous" we mean that no reasonable person could seriously advocate the argument, I do not think the argument is frivolous if only because Randy advocates it and he is not only a reasonable person, but a leading constitutional theorist.

However, it is possible that reasonable people, including prominent constitutional theorists, may sometimes make arguments that courts would consider frivolous, and make them for a larger purpose: as part of a legal and political campaign to reshape popular and professional understandings of what is possible in constitutional argument. And this brings me to an important point about "frivolous" legal argument, especially in constitutional law.

Constitutional doctrines change in part because people persuade others that positions that were once considered off-the-wall are now plausible. A constitutional right of same-sex couples to marry was once thought frivolous twenty years ago; now it is being taken seriously throughout the country, so seriously that many states have amended their constitutions to prevent their state supreme courts from considering the issue under their state constitutions. The issue is now currently being litigated in the federal courts in California and a case striking down section 3 of the Defense of Marriage Act was just concluded in Massachusetts, which Andy Koppelman and I have covered extensively on this blog. (Remember that even if a claim ultimately loses on appeal, this does not mean that it is frivolous.)

What is frivolous today may become plausible tomorrow, if enough people get behind the argument. The arguments made by the Bush campaign in Bush v. Gore were off the wall in November 2000; before the election most election law lawyers would have considered them sure losers. However, the Bush campaign and many very well connected lawyers and political pundits got behind these arguments, and by December 12, 2000, these arguments had become the law of the land.

Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.

Randy is part of a large group of conservative and libertarian lawyers, politicians, and activists who want to change the public's mind about the powers of the federal government. They want the public and the courts to rethink the assumptions of the activist state that came with the New Deal. They want to restrain the growth of the federal government and push it back, because they believe that this is more faithful to the Constitution as they understand it.

Randy and his allies are trying to change people's minds through op-eds, speeches, protests, and litigation. They are trying to move things from "off the wall" to "on the wall." And this is not the first time people have tried to do this. All social and political movements that seek to change the Constitution in practice do something like this, although the exact strategies and methods may differ. Attempting this is part of the process of constitutional change. It is an aspect of of living constitutionalism. (This is one of the greatest ironies of modern conservative orignalism-- it is a perfect example of how living constitutionalism actually works in practice.).

If Randy and his allies are successful in changing public and professional opinion, then they will move these ideas from off the wall to on the wall. They will make arguments that were once considered frivolous serious arguments, and possibly even winning arguments. They may not succeed. But if they do succeed, they will have changed the practical meaning of the Constitution, and changed it a great deal. In this sense I can report my own view that Randy's arguments, if accepted, would work a significant change in existing law. Far be it from me to call that change frivolous. It would be very profound indeed.

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