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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
The Washington Independent thinks South Carolina Senator Jim DeMint is being inconsistent when he says that we must keep Medicare and Social Security "regardless of constitutionality."
Asked whether states should use the 10th Amendment to prevent health care reform from taking effect, he replied that an assertion of states’ rights was “probably the only way we’re going to stop this reckless spending.” He continued, “There’s no constitutional authority for the government to actually do [the reform proposed by Democrats], but whether the courts take it up is a different matter.”
The rules change, however, when it comes to Medicare.
DeMint expressed doubts as to the legality of Medicare under the Constitution, but said, “Regardless of constitutionality, it is a promise that we have to keep. … I think Medicare and Social Security have to be protected.”
On one level what DeMint is saying makes perfect sense. Nobody thinks the courts will hold either Medicare or Social Security unconstitutional. In fact, the Court famously held one part of the Social Security Act constitutional in 1937. It is quite another thing, however, whether conscientious legislators who have doubts about the constitutionality of certain provisions should vote for them. Since, like all members of Congress, DeMint has sworn an oath to defend the Constitution, he presumably has a duty not to vote for bills that feature unconstitutional provisions and he has the obligation to convince his colleagues not to vote for them either, regardless of whether the courts would uphold them.
So far, so good. But what are we to make of DeMint's view that (1) he believes that Medicare might be unconstitutional but (2) we must continue it (and Social Security) anyway? There are at least three possibilities here.
(1) Long standing precedent is part of the Constitution. I would have opposed the constitutionality of both programs if we were writing on a clean slate, but since courts have held programs like this constitutional, we have to accept this. But these precedents don't extend to Obama's health care reforms so I can oppose them on constitutional grounds.
(2) It's not my job. The courts decide whether something is constitutional, and if they think it is, then regardless of whether it really is constitutional, we keep it. And since it's politically disadvantageous to say you oppose Medicare and Social Security these days, I can easily accept them. However, Obama's proposal hasn't become law yet so I can certainly oppose it on policy grounds.
(3) Go and sin no more. Too much reliance has been placed on unconstitutional programs, so we cannot really repeal them. But Obama's health care reform is new and there's no reliance on it, so I can oppose it on constitutional grounds.
Position (1) is implausible because the same precedents that justify Medicare and Social Security also justify Obama's reforms. (Also DeMint surely doesn't think that all long standing precedents are part of the Constitution-- just ask him about Roe v. Wade). Position (2) is implausible because DeMint seems to want to make constitutional arguments at the drop of a hat regardless of what courts think.
Thus it's likely that the best version of his argument is (3). DeMint wants to prevent any future legislation that significantly alters the federal state balance. All of which leads me to wonder whether DeMint supports or has supported other legislation that would significantly increase federal power (here I put aside the obvious gimmes in the national security area like the Patriot Act, the Military Commissions Act, the FISA Amendments Act, and so on).
For example, does DeMint currently support national tort reform that would take traditional responsibilities for accident law away from the states? Perhaps more to the point, would he sign on to a Republican-sponsored health care reform bill if it also included very large tax deductions for wealthy Americans? And does he believe the states have the right to interpose themselves under the 10th amendment to prevent either of those pieces of legislation?