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 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
A common criticism of arguments that the individual mandate is beyond Congress's power to enact is that the arguments are "really" concerned with individual liberty. The implication of this criticism is that plaintiffs challenging the mandate are (improperly) using a federalism argument to conceal a liberty argument--an argument based on substantive due process that they could not win. In his dissenting opinion from the 11th Circuit's ruling last Friday, Judge Marcus made the point:
On appeal, the plaintiffs have expressly disclaimed any substantive due process challenge to the individual mandate . . . Nevertheless, it is clear that individual liberty concerns lurk just beneath the surface, inflecting the plaintiffs’ argument throughout, although largely dressed up in Commerce Clause and Necessary and Proper Clause terms.
Judge Marcus then went on to explain why in his view the individual mandate does not violate substantive due process under rational basis review.
There are many ways to poke holes in the arguments that the individual mandate is unconstitutional but calling it a liberty argument is not one of them.
As the majority opinion last Friday helpfully recognized, federalism is about individual liberties (as well as about other things):
While . . . structural limitations are often discussed in terms of federalism, their ultimate goal is the protection of individual liberty. See Bond v. United States, 564 U.S. __, __, 131 S. Ct. 2355, 2363 (2011) (“Federalism secures the freedom of the individual.”); New York v. United States, 505 U.S. at 181, 112 S. Ct. at 2431 (“The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities . . . . To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals.”).
That's an important point. The federalism challenge to the individual mandate does not lose its steam merely because the challenge is ultimately directed at promoting individual liberty. That's what federalism does.
Of course, there are liberties and there are liberties. Just because the plaintiffs might be working towards a liberty goal doesn't mean that their vision of liberty is one the Constitution recognizes and protects.
At the same time, there is no particular reason to think that the "individual liberty" (Bond) or the "protection of individuals" (New York) that federalism serves neatly correspond to the catalog of specific rights that have been recognized under the Due Process Clause (or other provisions of the Bill of Rights). We don't currently have a rigorous jurisprudence of federalism-protected liberty. But that doesn't mean we shouldn't. It would not be too hard to derive some theories and applications of federalism-protected liberty, working both within and beyond the shadow of the Fifth Amendment (and other provisions of the Bill of Rights).
The "gotcha" quality of criticisms that the individual mandate plaintiffs are "really" concerned with liberty is perhaps not surprising. In the way constitutional law is today taught, studied, and practiced, there is an unfortunate (because it is artificial) divide between "structure" and "rights." In many law schools, there are separate first-year courses for constitutional structure and for constitutional rights; in schools where the topics are combined in a single course, there is also often a division between the first half of the course (structure) and the second (rights). (The most disappointing thing a student can tell me at the end of the semester is that he enjoyed learning about individual rights but wasn't at all interested in federalism and separation of powers.) Most, but not all, casebooks also reflect this approach. The division is further reinforced by upper-level classes in the First Amendment and criminal procedure (where structure is rarely mentioned). Likewise, there are scholars who concern themselves with constitutional rights (sometimes just one right!) and others who focus on structures.
Whatever else it proves, the individual mandate litigation is an opportunity to think more carefully and more systematically about how federalism and other structural provisions of the Constitution relate to individual liberties--and vice-versa.