Friday, March 23, 2012

The lowest of the low

Andrew Koppelman

With all the extensive discussion of the merits (or lack thereof) of the constitutional complaints against the health insurance mandate, it’s worth taking a moment to reflect on what it would mean if the Court struck it down.

Jack Balkin and Sanford Levinson have distinguished two senses in which constitutional law decisions can be political. “High politics,” in which judges promote broad political principles, inevitably influence constitutional law. What is improper, in their view, is the influence of “low politics,” in which judges aim at short term advantage for the political party that they favor. They were writing to critique Bush v. Gore, in which the Court evidently was willing to adopt whatever arguments were necessary in order to give the Presidential election to the Republican candidate. But later writers have tried to justify that decision in more principled terms, most notably Richard Posner, who argued that the Court’s intervention was necessary to protect the country from a long, destructive battle over the Presidency. No such rationalization is likely to be available for a decision invalidating the mandate. It would be, as Milton’s Satan might have put it, “in the lowest deep a lower deep.” It’s hard for the Court to be more nakedly political than it was in Bush v. Gore, but the opportunity is now here.

The Court, if it is inclined to invalidate the mandate, faces a dilemma.

In an earlier post, I noted the weakness of the main brief against the mandate, which was remarkably evasive about the mandate’s obvious constitutionality in light of settled law. I did not, however, discuss the other principal brief, by the NFIB Small Business Legal Center, with an assist from Prof. Randy Barnett.

The NFIB brief is not at all evasive, in the way that Clement’s is, about the radical effects of a decision invalidating the mandate. It declares that Congress can regulate under the commerce power “only where the regulated conduct itself (1) substantially interferes with interstate commerce or its regulation, (2) is either economic in nature or an impediment to the effective execution of a commercial regulatory scheme, and (3) could be regulated without effectively authorizing plenary federal power. None of the mandate’s asserted justifications satisfies these requirements.” (Brief at p. 8)

Of these, 1 and 2 are doing all the work, since 3 can be satisfied by any limitation at all on federal power – and as I and others have noted, that limitation is already provided by United States v. Lopez. 1 and 2 are potent limitations. The only trouble with them is that they are not settled law: they have never been declared in any Supreme Court opinion. The authors are proposing that the Court make new law – law that would call into question the Endangered Species Act, the EPA, and much else. These destructive effects are likely to give the Court pause.

Here is the Court’s dilemma. It can adopt the kind of broad principles that the NFIB brief proposes. But it isn’t that radical: even the conservatives on the Court aren’t inclined to call the modern administrative state into question. Its other option is to avoid those implications by surrounding its holding with the kind of obfuscation that Clement offers, so that no one will be able to figure out whether the case’s holding applies to anything beyond its specific facts. This second option, which is the only realistic one, is remarkably result-oriented: like Bush v. Gore, it adopts principles that it has no intention of adopting in any other case, just to reach a result it likes. Because no broader principles are being adopted, there’s nothing at stake beyond the chance to stick a pin in Obama – in a way that is likely to have a devastating effect on the very large number of people with preexisting conditions who were going to get affordable medical insurance as a consequence of the legislation, and who now won’t. (If the Court is going to be nakedly result-oriented, then the full range of results are relevant.)

Even the narrowest principles that have been proposed to invalidate the mandate aren’t being put forth in good faith. I confidently predict that the same people who today are proclaiming that government can’t require you to buy a product from a nonpublic business, will tomorrow be pushing schemes to privatize Social Security.

A decision invalidating the mandate would be raw partisanship for its own sake, with horrendous collateral damage to people who aren’t even Obama partisans. In that sense, too, this would be the lowest of the low.

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