Tuesday, November 15, 2011
Preemptive Opinions and the Affordable Care Act
Gerard N. Magliocca
One issue that I have explored in my scholarship is the idea of a "preemptive opinion." What is a preemptive opinion? It's a Supreme Court decision that comes during a transition between constitutional generations and crafts new doctrine designed to thwart the agenda of the ascending popular movement. Three examples are Worcester v. Georgia in 1832, which attacked Andrew Jackson's policy toward Native Americans, Dred Scott v. Sandford in 1857, which declared the Republican Party's position on slavery in the territories unconstitutional, and Pollock v. Farmers' Loan and Trust Co. in 1895, which struck down the federal income tax sponsored by William Jennings Bryan.
One interesting aspect of this case is that some supporters, including the Obama Administration, are pressing for a decision on the merits, even though it (arguably) can be avoided. I'm not sure how that played out in all the other cases, though know in the second, there was mainstream support to having the courts settle the question.
I am having a difficult time seeing how an opinion which holds that the power to regulate commerce does not include compelling Americans to engage in commerce of the government's choice can be considered in any way overbroad. The alternative is to remove all limitations on Congress' police power contained not only in the CC, but also Article I. That alternative would be truly radical.
jpk references what is generally a state matter, but two things makes the point useful even in this context.
(1) The feds have for some time required insurance or other things for certain businesses or individuals under the CC w/o having unlimited power. (2) State requirements to have car insurance by themselves doesn't mean unlimited power over intrastate commercial matters.
This matter was also covered by me in the last thread. The issue here is "preemptive opinion." Even if Bart is right, the question is unnecessary if the ATA bar is in place. Throwing the baby out with the bathwater (e.g., a tanning tax, to cite a trivial matter) by tossing the whole law is also not necessary to further Bart's understanding of CC.
Even some opponents admit they put forth a "new" theory here [proud of it too], but convincing yourself you aren't doing that is a standard judicial trope. So, it is harder to show #3.
Given the election that followed the adoption of this law, the "preemptive decision" in this case would be the one that upheld it, and drove the last nail in to the coffin enumerated powers doctrine has been put in since the New Deal.
The only thing preemptive here is the effort to legitimize any outcome except one favorable to the left.
The Constitution permits the states a general police power unless it is expressly prohibited by that document or conflicts with Congress' exercise of an enumerated power. That would by definition include intrastate commerce.
Bart appears to miss my point.
The point that just because a certain state is allowed to require people to purchase car insurance, that in itself doesn't prove it has carte blanche power over intrastate power. The same applies here. As I discussed in detail in another thread, the requirement here leaves open quite a few limits.
Also, states are not merely restrained by "expressly prohibited" limits found in the Constitution. The word "expressly" in particular is not found in the 10A, in contrast to a provision in the Articles of Confederation.
Implicit restraints are included. But, whatever, lots has been said showing how the CC and the tax power justifies this legislation, as "expressly" addressed by Art. 1, sec. 8. Your narrow application of the text that contra Brett's implication is rejected by many on the right is duly noted.
Also, the feds can regulate intrastate commerce when "the legislative power of the Union can reach them" including when N/P to carry forth some enumerated power. Gibbons v. Ogden. There is often some overlap.
Yeah, to buttress Joe's point, it's very easy to find that the mandate is necessary and proper to the insurance regulations in the ACA without holding more generally that any mandate is a regulation of commerce.
(Of course, I don't buy the activity / inactivity distinction at all, and think it's perfectly clear that mandates are regulations of commerce. But if the Court decided they wanted a limit, "only mandates that are necessary to comprehensive schemes of regulations" is a limit and prevents the dreaded hypothetical broccoli mandate.)
It's good to hear that our laws don't prevent us from doing smart and decent things that civilized nations accomplish.
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