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.

These rare cases have three traits in common. First, the Court reaches out to decide the merits when it could easily avoid doing so. Second, the opinion issued is exceptionally broad. Third, the Court adopts a new legal theory to invalidate the statute at issue that draws on a basic understanding of liberty or equality. How does the challenge to the individual mandate compare? We won't know until the Court decides (if they uphold the statute, then the opinion won't be preemptive), but the potential for one is there.

1. Deciding Unnecessary Questions: We know that the Court can avoid the merits by holding that the Anti-Tax Injunction Act bars consideration of these lawsuits until at least 2014. Ironically, this was the same jurisdictional hurdle that the Court ignored when it wanted to decide the constitutionality of the income tax statute in Pollock.

2. An Exceptionally Broad Opinion: There is a big difference between an opinion that strikes down the individual mandate and one that invalidates the entire Act (with a non-severability analysis). The Court's opinion could also be viewed as sweeping if it accepts the Spending Clause argument against the Medicaid provisions of the Act, or holds that Congress may not regulate inactivity under any circumstances (as opposed to just saying that it cannot do so in this situation).

3. A New Legal Theory: The argument that Congress may not regulate inactivity is new and does rely in part on a libertarian belief about not being forced to buy something against your will.

One final note: Some preemptive opinions are terrible (Dred Scott), while others are not (Worcester). Thus, using this term to describe the Court's decision on the Affordable Care Act is descriptive rather than normative.


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.

Oh my God yes you're so right. That's why I'm incensed that I have to buy insurance to drive.

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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