an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Over at the Volokh Conspiracy, Orin Kerr notes that many of those behind the constitutional challenge to the individual mandate in the Affordable Care Act (ACA) claim that if the Court upholds the mandate, there will no longer be any constitutional limits whatsoever on federal power. In response, Orin proposes that to ensure consistency, those who have made such arguments should pledge now that if the mandate is upheld, they “will never again argue that there are any limits on federal power.” (Orin also proposes a parallel pledge for those on the other side of the issue, but as I’ll show below, the key point is that those opposed to the ACA have already demonstrated the principled bankruptcy of their position.)
It’s a cute idea, even though the proposition to which Orin would have the ACA opponents pledge would be entirely false. There are in fact plenty of limits on federal power entirely consistent with upholding the individual mandate. The Solicitor General’s reply brief makes this plain (see especially pp. 6-7 and 14-15), as does Marty Lederman’s recent post here at Balkinization (see especially Part IV.c and elsewhere).
Still, there’s a certain attraction to Orin’s idea. People should be held accountable for their Chicken Little arguments. On that score, the driving forces behind the challenge to the individual mandate have long since forfeited claims to credibility. Consider in particular the past arguments of Randy Barnett, who more than anyone is the intellectual godfather of the anti-ACA movement:
1. In 2004, Randy argued in his book, Restoring the Lost Constitution: The Presumption of Liberty that the Supreme Court’s decisions of the previous seventy years had brought us to a place where, “with some exceptions, the Necessary and Proper Clause has no justiciable meaning, . . . the Tenth Amendment has no justiciable meaning, [and] the Commerce Clause has no justiciable meaning.” P. 354. This was before the Court decided Gonzales v. Raich.
2. Then in his brief representing the respondents in Gonzales v. Raich, Barnett argued that if the Court were to accept the Government’s argument in favor of the federal prohibition on the possession of controlled substances like marijuana, “it would put an end to any judicially-enforceable limit on the reach of the Commerce Clause power.” P. 22; see also id. p. 12 (characterizing the case as one that called upon the Court “to reaffirm once again that the Commerce Clause places effective limits on the power of the central government”).
As we all know, the Court upheld the constitutionality of the provision at issue in Raich. If intellectual consistency were any constraint, one would expect many of those behind the constitutional challenge to the ACA’s individual mandate to have left the scene. After all, according to them, the Court has long since rejected “any judicially-enforceable limit[s] on the reach of the Commerce Clause power” (emphasis added). What could these opponents possibly have to argue about?
The Court makes its own decisions, of course, and those representing the case against the ACA include some who have not shown themselves to be unprincipled, serial alarmists.
Still, at a minimum, it will be well for the Court to appreciate that many of those now arguing that upholding the ACA’s individual mandate entails abandoning the notion of any limits on Congress’s power are repeat offenders. They are rehashing their same old, long-since rejected, mantra. Ultimately, these folks are manifestly not concerned with helping the Court but are instead interested in using alarmist rhetoric to advance a very different project: returning Congress’s regulatory power to its pre-New Deal, and perhaps even pre-McCulloch v. Maryland, state. They are free to make those arguments, of course. But let’s recognize them for what they are.