The Commerce Clause, Ctd
After reading my earlier post, Jonathan Chait was good enough to respond. Here is how he begins:
The legal merits of Hudson’s ruling, which seem to be totally daft, are themselves piggybacked upon a policy argument which is itself highly unpersuasive at best. The political argument, endorsed by Friedersdorf, maintains that the individual mandate represents some dramatic new imposition of Congressional power. Congress’s power may have grown over the years, the argument holds, but the individual mandate represents some new frontier of intrusiveness. It is forbidding an activity (or inactivity) that is more personal and less intertwined with the economy as a whole than almost any previous regulation. It is not dramatically different than a law requiring people to eat broccoli.
Actually, I am endorsing a somewhat different argument, and I apologize if I misstated my position or was less than clear about it. It isn’t that I think the individual mandate is an imposition of Congressional power more dramatic than anything seen before. It is merely one example of the longstanding Congressional tendency to justify all manner of things – gun free school zones, legislation to prevent violence against women, the ability to grow marijuana in my backyard, etc. – under the banner of the commerce clause. Where I come down on these cases has nothing to do with policy arguments: on the merits, some seem like good ideas to me, and others seem like bad ideas, but none strike me as attempts to regulate interstate commerce unless that task is so broad that it imposes no meaningful limit on the scope of federal power. (Speaking of which, I’d still like to see Chait and Kevin Drum answer Radley Balko’s question.)
Chait writes:
Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.
I actually agree that the individual mandate doesn’t constitute an obvious high water mark when it comes to legislation passed under the umbrella of the commerce clause. But surely Chait understands how constitutional challenges work. Most people who care about the principle at stake don’t get to choose the partisan blowhards on the same side of the issue, let alone the case that someone with standing files, that winds its way through the courts, that results in a favorable ruling, and that has a chance of making it to the Supreme Court. The individual mandate may not constitute a high water mark as legislation, but if it ends up being a SCOTUS test case, the majority opinion that results might well entrench a precedent that goes farther than any before it, and determines the future of the commerce clause for generations. To me, Linda Greenhouse is right: the issue at stake is whether the Rehnquist Court’s jurisprudence is going to be killed in infancy or mature into a more expansive body of law.
Noah Millman also responded to my earlier post.
He writes:
…it is unquestionably within the power of Congress to tax, and the mandate could have been structured as a tax-plus-voucher scheme that would have had exactly identical effects. Does that mean that the law is constitutional? If not, then the reason is entirely some notion of precedent – that if this form of the law is Constitutional then other mandates that could not obviously be structured as a tax (“From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old!”) would also be acceptable. If that’s the argument that’s being made, then why are we arguing about the health insurance mandate as such being a threat to freedom?
First of all, the judicial precedent in this case won’t necessarily apply only to future commerce clause cases that involve mandates. Second, people are talking about the mandate as a threat to freedom for all sorts of reasons, many of them nonsensical. There are two arguments that I regard as plausible. One is that the mandate is particularly troubling because it requires payments to powerful corporations that spent millions of dollars lobbying the very people who wrote and passed health care reform. Call it the wonko-industrial complex. What if it gets out of control?! But that isn’t my position. It’s the second argument that I am making: it’s the jurisprudential precedent and the implications for the commerce clause and federalism generally that matter.
That argument can be taken too far, as when Mike Farmer writes:
Why wouldn’t a decision to uphold the mandate signal decisively that we are no longer free? If government can basically regulate any area of our lives, isn’t this justification for strong language and a clear delineation between freedom and tyranny?
A precedent that theoretically allows something bad to happen is not equivalent to living under the bad thing itself! People living under tyranny is something we have seen in this world. It looks like present day North Korea, The Soviet Union, East Germany, the American South during slavery, the Cubans under Fidel Castro, etc. It doesn’t look like the United States post-mandate, nor does it look like Denmark or France or other liberal democracies where citizens enjoy more freedom than the vast majority of people in human history. And I find it hard to believe that Mike Farmer thinks he is no longer free.
But the health insurance mandate is a “threat to freedom” in the limited sense that the precedent it’ll set if upheld by the courts further weakens federalism, which is a check on the power of our national government, and one among several ways that the Framers chose to safeguard our freedom. Other free countries rely on different mechanisms, many of them successfully. We’ve got the Constitution, and I am inclined to prefer adhering to it closely even when it makes designing policy initiatives somewhat less convenient.
Millman writes:
If there’s a question, it’s a question of Federalism: is the mandate in question something that the Federal government can impose, or can it only be imposed by the states. The usual way we’d answer that question is by looking at whether the object of regulation – health insurance – is, in fact, part of interstate commerce, which it very plainly is.
That isn’t the way I’d approach the question. Though marijuana is part of interstate commerce, I do not think the commerce clause gives government the power to prevent me from growing the stuff in my yard. Weddings are part of interstate commerce: a friend of mine read bridal magazines published in New York, had a dress that was made out of state, a photographer that crossed state lines to attend, dozens of guests that bought airplane flights to be there, and foodstuffs that surely came from farms near and far. Is the federal government empowered to mandate that everyone purchase wedding insurance in case something goes wrong on the big day? I submit that they are not so empowered. (I cannot at this moment articulate my own preferred commerce clause test. Probably there is someone at The Volokh Conspiracy that has already done so?).
Millman writes:
…we have a Bill of Rights is precisely that the anti-Federalists worried that there was no restriction on Federal power built into the original Constitution. But that doesn’t make the Constitution meaningless, because the Constitution also outlines the separation of powers – what the respective roles of the President, the Congress and the Judiciary are, and how they interact.
Two points in rebuttal:
1) The tenth amendment implies that the pre-Bill of Rights constitution establishes a federal government of enumerated powers.
2) The separation of powers, properly understood, must encompass federalism, which separates power between the federal government, the states and the people.
I don’t think that the activity-inactivity distinction is going to survive, even if Judge Hudson’s decision is affirmed on appeal. After all, almost any kind of activity can be re-characterized as a type of inactivity. For example, in Wickard, was the statute in question commanding activity or inactivity? It’s not at all clear.
The operative question, it seems, is whether the activity or inactivity has a substantial effect on interstate commerce. Of course, “substantial” does not mean “a lot”. Courts have generally interpreted it to mean “more than a scintilla”. But see Lopez.
— Bob · Dec 17, 03:34 PM · #
I left a response at my site — http://bonzai.squarespace.com/blog/2010/12/17/conor-friedersdorfs-response-a-whimper.html
— mike farmer · Dec 17, 03:39 PM · #
Speaking of which, I’d still like to see Chait and Kevin Drum answer Radley Balko’s question.
I think you’ve already seen them answer that question. You’ve seen them answer it many dozens of times in their work when they have advocated against action by the federal government. That answers Balko’s question. I don’t even read Chait or Drum regularly, but I know very well that I’ve read times when they’ve advocated against the federal government taking a particular action. That means that, in fact, they do think there should be limits on the federal government.
Again, you can refute this whole thing with a fact that has been understood for thousands of years: slippery slope arguments are fallacious. The argument is “well, if you allow X, you’ll have to allow Y.” No, you won’t. I think the federal government can impose a mandate on health insurance. I don’t think it can do all the things libertarians are trolling on about. And merely with those two statements I have undone their entire argument.
This is another example of the addiction to metacommentary on the Internet. Balko doesn’t like Obamacare. You don’t like Obamacare. Drum and Chait do. Fair enough; that’s democracy. But rather than stick to the issue at hand, you try to make some sweeping constitutional claims to get to overriding health care reform. It’s just like abortion; some people want to outlaw it, some don’t. But the people who do can’t just say that they want to outlaw it. They have to develop this narrative where Roe v Wade is this uniquely disenfranchising, anti-constitutional decision. But that’s a function of where you stand on the issue of abortion, not on this second-order consideration of what the Supreme Court can and can’t do.
The tenth amendment implies that the pre-Bill of Rights constitution establishes a federal government of enumerated powers.
The second amendment implies that only a well-regulated militia has the right to bear arms. Your position on both is a function of your views on federalism and on gun control, not constitutionality.
— Freddie · Dec 17, 03:52 PM · #
“Again, you can refute this whole thing with a fact that has been understood for thousands of years: slippery slope arguments are fallacious. The argument is “well, if you allow X, you’ll have to allow Y.” No, you won’t. I think the federal government can impose a mandate on health insurance. I don’t think it can do all the things libertarians are trolling on about. And merely with those two statements I have undone their entire argument.”
You are a funny man, Freddie. Gradualism is historically documented — so much so that it makes you look as if you’ve never read history. We are in the process now — you don’t have to worry about what might happen — it is happening. There, I’ve undone your entire argument. Although the structures built from the healthcare and finance laws are so high and wide that once regulations finished over the structure, the fall won’t be so gradual.
— mike farmer · Dec 17, 04:54 PM · #
Freddie,
Did it ever occur to you that Balko might actually not like Obamacare AND think it really is unconstitutional? Why always question motives? You also haven’t refuted any arguments up above — all you did was make some assertions. Now explain why those assertions make sense in the context of the meaning of the Constitution and the history of Constitutional law. And what the heck do you mean by this:
“But the people who do can’t just say that they want to outlaw it. They have to develop this narrative where Roe v Wade is this uniquely disenfranchising, anti-constitutional decision.”
You realize how ridiculous that statements is for someone like me who would love to outlaw abortion but, um, I can’t because of Roe v Wade. So in fact the law is uniquely “disenfranchising” (and anti-constitutional to boot).
Finally, your last paragraph is totally incoherent as well. Figuring out the meaning of the entire text “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” is what constitional analysis is all about and by stating that the “second amendment implies X” you are jumping the gun, no pun intended, on the entire analysis.
As I said before, you drive me totally and completely nuts, which is exactly why I’m sending you a long email about Christ’s poverty, heretics, Frederick II (a different Frederick than the one Adso knows), and Thomas Aquinas. I’m surprised we haven’t had a serious discussion over at “A Rose for Winter” about the central theological issue that the First Day is preoccupied with: whether or not you accept “as a matter of faith and doctrine the poverty of Christ, who, if he owned something with his apostles, possessed it only as usus facti.”
I love Advent!
— Jeff Singer · Dec 17, 05:15 PM · #
The very facts that government created a healthcare system which necessitated reform, then necessitated a mandate to buy insurance in order for the reform to work, which will be challenged and if thrown out will necessitate a single payer system, ought to tell you eveything you need to know. Gradually, because as Obama says it’s a long run game, we go from market to State — and the cause is so far removed in time from effect no one follows the trail to the original cause..
— mike farmer · Dec 17, 05:23 PM · #
Anyway, do you think that an America populated by over 50% minorities, specifically black and Hispanic minorities would have given us the internet/web/blogs for you to both be posting your nonsense here? Quick, name all the wonderful contributions (besides food) that Hispanics have made to American culture? Heck, name all the wonderful contributions to world culture from all of Latin America? [Off the top of my head I would say Octavio Paz, Mario Vargas Llosa, the economist Hernando de Soto, and maybe Shakira — just kidding about her).
Hispanic out-of-wedlock births are over 50% (you already know blacks are over 70%). Hispanic gangs and violence are a growing problem and educational achievement, just as for blacks, significantly lags whites. Do you think this heralds exciting new vistas for an ennobling American culture?
— Jeff Singer · Dec 17, 06:07 PM · #
I was going to respond to Jeff Singer— I never question Balko’s motives, or came close— and then he reminded me that he’s a racist troll. Nice bedfellows, guys!
— Freddie · Dec 17, 07:06 PM · #
Freddie,
Your ability to make glib, sweeping judgments about why people act the way they do is truly impressive. As for abortion, plenty of liberal legal theorists have written that Roe was as a terrible decision despite their support for abortion rights. Laurence Tribe, John Hart Ely, Edward Lazarus, and more. Lazarus, who clerked for Blackmun, wrote in 2002 that the decision “borders on the indefensible.” And Benjamin Wittes, who is pro-choice, makes exactly the argument you accuse pro-lifers of cynically holding here:
http://www.theatlantic.com/magazine/archive/2005/01/letting-go-of-i-roe-i/3695/
— Tim O'Rourke · Dec 17, 07:38 PM · #
Freddie,
Here is what I want to focus on regarding what you say about Balko:
“This is another example of the addiction to metacommentary on the Internet. Balko doesn’t like Obamacare. You don’t like Obamacare. Drum and Chait do. Fair enough; that’s democracy. But rather than stick to the issue at hand, you try to make some sweeping constitutional claims to get to overriding health care reform.”
To me (and I admit I might be misreading you), this statement suggested that you think Balko really wants to attack Obamacare and is using the constitutional claims as a cover. In turn, I’m suggesting that maybe he really is worried about the constitutional issues, just like he says he is.
Chet,
You are still the man and you are probably right — I should have included Borges in my list:
http://denisdutton.com/jorge_luis_borges_interview.htm
— Jeff Singer · Dec 17, 07:54 PM · #
Thanks for the reminder of why I usually don’t open the comments section on even sane conservative blogs, Jeff.
— Luis · Dec 17, 08:04 PM · #
“Nice bedfellows, guys!”
What does this mean?
— mike farmer · Dec 17, 08:10 PM · #
To me (and I admit I might be misreading you), this statement suggested that you think Balko really wants to attack Obamacare and is using the constitutional claims as a cover.
I don’t doubt that Balko thinks the constitutional argument against Obamacare is valid. But his post is not about the constitutional claim. It is about whether believe there should be no constraints on the federal government. And that’s dishonest, because he knows very well many issues where most liberals think the federal government should be constrained— such as, for example, the criminalization of marijuana.
A separate issue is that I think that certain conservative bloggers find to their horror that there are people who don’t agree with them on issues of controversy, and for some reason, can’t handle the persistence of that disagreement, and so try to change the subject to arguing marginalia. Which I think is counterproductive.
A separate issue is the issue of arguments of bad faith, which is particularly an issue for Conor’s interests here. Because he is, like many many people on the Internet, someone who is very critical of accusations of bad faith. That you can never argue bad faith on the Internet fairly is taken as holy writ. The problem is, many people argue in bad faith, and the permanent and uncompromising assumption of good faith on the Internet renders those people invulnerable.
But that’s not really relevant, despite people yelling at me about it in this post, because I’m not accusing anyone of bad faith. Reading comprehension— catch it!
Your ability to make glib, sweeping judgments about why people act the way they do is truly impressive.
I have many any judgments about why people act the way they do here, actually.
— Freddie · Dec 17, 08:29 PM · #
If the mandate is unconstitutional, then I don’t see how it’s possible for the government to function:
1. Medicare forces you to pay for other people’s health insurance, and no one has ever successfully made the case that Medicare is unconstitutional. So if Medicare is constitutional, can someone explain how could it be unconstitutional to force you to pay for your OWN health insurance?
2. If the mandate is unconstitutional, I don’t understand how it is constitutional for the government to tax people and provide services in return: taxes are a compulsory deprivation of income, which the government returns to you by providing some service or benefit, whether you want it or not. The mandate is also a compulsory deprivation of income, which you get returned as a service or benefit (health insurance), whether you want it or not. taxes compel you, by force of law, to pay for services you may or may not want. The individual mandate is not different in this respect: you are being compelled, by force of law, to pay for services you may or may not want. I really don’t see the distinction, in terms of constitutionality.
So I ask: what is the difference between forcing people to give away money through taxes in return for compulsory services, and forcing people to give away money through an individual mandate, in return for compulsory services? If the individual mandate is unconstitutional, I don’t see how forcing people to pay for government services through taxes possibly could be.
— craig · Dec 17, 08:56 PM · #
Freddie,
Thanks for the follow-up. But isn’t answering the question “whether believe [sic] there should be no constraints on the federal government” impossible without a theory of what the constitution says (and therefore allows the federal government to do via the commerce clause)? In other words, of course Balko understands that liberals (and libertarians) don’t want the federal government involved in X, Y, and Z — but the question is not whether they want the federal government involved but whether or not IN THEORY, under the constitution, the federal government could get involved. So when you use a phrase like “should be constrained”, that’s not relevant to the question of constitutionality (at least as I understand it) — the question is whether or not the federal government is in fact constrained.
— Jeff Singer · Dec 17, 09:14 PM · #
Luis,
Just so you know, I’m being stalked by some guy on this website who insists on publishing that (second) comment of mine no matter what the topic. So although I stand by that comment in the context in which it was made, it obviously seems crazy every time it pops up on a post that has nothing to do with immigration, race, culture, etc.
By the way, don’t you have the same problem with liberal blogs? Or do you find their comments generally “sane”.
— Jeff Singer · Dec 17, 09:19 PM · #
I struggle everyday to be a better person.
— Jeff Singer · Dec 17, 09:25 PM · #
I was wondering about that.
— Freddie · Dec 17, 09:43 PM · #
Generally:
1) The liberal position, as I understand liberals like Chait and Freddie, is that since basically all human activity or inactiviy at least impacts commerce, the federal government effectively has the same power to regulate conduct as the states. Limits on federal power arise primarily from the Bill of Rights. For example, if the feds want to outlaw someone growing and consuming marijuana on their own property, then they can, just like the states can, unless that exercise of power impacts on something in the bill of rights, like the right to privacy.
2) The conservative position is that the “police power” (the general power to regulate people’s conduct) is limited to the states, that the feds can only exercise powers within their enumerated powers, and that the feds should only be granted a certain amount of latitude to dodge those limits through creative use of their existing powers. If someone is going to pass a law requiring people to eat broccoli, it should be the states, since then it’s a little harder for the majority to tyrannize the minority, since the minority can at least vote with their feet.
Neither position is really sophistry, they’re just an honest disagreement about how we intepret the Constitution and why.
— J Mann · Dec 17, 10:01 PM · #
Craig, you are right. If government can forcefully take our money, forcing us to buy insurance is not all that different. Do you feel good about this? The problem from my perspective is not what the government can do, but what it should be restricted from doing. The 16th Amendment was supposed to be temporary — look what has happened since. We’re forced to finance wars among many other things we’re forced to finance and support by our labor, whether we find these things abhorable or not, so it’s not just paying for services and benefits. When it’s decided for us that government is the Great Provider, then we are simply beasts of burden supporting the whims of the Rulers. But this is too hysterical — it’s better to look at it as government doing what is best for us, and because it’s expensive, we must pay and wait for further instructions.
— mike farmer · Dec 17, 10:09 PM · #
Attention, Great Provider: mike farmer has the sunglasses!
— - Human Collaborator #B4480-WS05 · Dec 17, 10:59 PM · #
Nice to meet you #B4480-WS05. Are you connected biologically to #B4580-WS05 stationed in the northern quadrant of Sector 2?
— mike farmer · Dec 17, 11:12 PM · #
For the record, my stalker (who I think is Chet) is very clever and witty.
— Jeff Singer · Dec 17, 11:14 PM · #
As an academic matter I care about just how far the commerce clause can go. Because any proper reading of the constitution requires that the commerce clause not be all powerful.
On the other, practical, hand, I don’t give a fuck because the commerce clause is necessarily limited by the due process clause no matter how expansive I think the commerce clause is by itself.
— Console · Dec 19, 04:46 AM · #
“I don’t give a fuck because the commerce clause is necessarily limited by the due process clause no matter how expansive I think the commerce clause is by itself.”
What we need are constitutional amendments to clarify and limit the commerce and general welfare clauses — these loopholes have been violated to the point that too much depends on the rule of men/women, when the rule of law should be clear enough.
— mike farmer · Dec 19, 04:51 PM · #
How would the passage of a constitutional amendment not reflect the “rule of men/women?” Wouldn’t a decision to “clarify” the commerce clause through amendment necessarily require a decision by men/women to interpret/alter the existing clause? Your distinction between the rule of law and the rule of human beings is weird.
Also, doesn’t the current process of using the courts to challenge the recent health care legislation reflect a perfectly robust and legal effort to clarify the commerce clause’s limitations?
— Deb · Dec 19, 07:08 PM · #
Right on both counts, Deb.
— Freddie · Dec 20, 12:28 AM · #
Deb, you and Freddie are either being cute, or you are ignorant of the difference. Amendments would clarify the limitations of the clauses orginally intended, instead of relying on interpretation of clauses, which are just ambiguous enough to be interpretated by stretching the intent, by different men and women at different times in different circumstances — to the point of giving carte blanch regulation.
— mike farmer · Dec 20, 01:28 AM · #
Of course, you will likely prefer the current practice of loose interpretation until a very conservative court stretches the meaning of the clauses to regulate something which you find authoritarian, unjust and unconstitutional.
— mike farmer · Dec 20, 01:31 AM · #
One more thing —
“Wouldn’t a decision to “clarify” the commerce clause through amendment necessarily require a decision by men/women to interpret/alter the existing clause?”
Yes, it would require them to clarify according to the original intent of the clauses, thereby setting the proper limitations intended by the Founders — if you read their writings, you will understand they never meant for partial ambiguity, which could be taken by some as an opportunity to expand government power, to negate the limitations they clearly intended. But, alas, people have done so — so, as Jefferson said would be necessary, we should clarify periodically as time goes by. You can’t deny that the clauses have been stretched to expand State power, you can only rationalize the stretching because you find value in expanded State power.
— mike farmer · Dec 20, 01:40 AM · #
mike,
On one level, isn’t the creation of a separation of powers— and the Supreme Court specifically— an acknowledgment by the framers of Constitutional gray areas?
Also, don’t constitutional amendments typically address matters where the framers’ intentions are insufficient or entirely absent, rather than matters that just need some clarification with recourse to legal precedent, ratification debates, Federalist papers, whatever? In the latter case, amendments are unwarranted— the courts should suffice to sort out the phrasings or intentions.
Finally, why are you confident that an amendment would clear the legal fog? Look no further than the first two amendments. They have required repeated court scrutiny.
— Deb · Dec 20, 04:30 AM · #
Why does anyone care about Jon Chait’s legal opinions? He doesn’t have any particular qualifications to judge a legal decision, and he lacks the intellectual humility necessary to do it without qualifications.
— J Mann · Dec 20, 04:24 PM · #
Deb, It’s obvious that if they are not clarified through amendments, they will be used to continue the expansion of State power — a person either wants that or they do not want that — I do not want that.
— mike farmer · Dec 20, 05:49 PM · #
Could any constitutional amendment get passed in our current political climate? As long as were proposing amendments I’d like to have the senates rules codified according simple democratic principals.
— cw · Dec 21, 04:30 AM · #
@Freddie:
“Most liberals” have consequential and/or deontological objections to marijuana criminalization rather Constitutional. Or if Constitution-based, the objections presume the nontextual primacy of some principle, whose source is usually humanism, liberalism, or some other unexamined weltanschauung.
FWIW, it seems that most liberals believe the criminalization of marijuana is Constitutional and a bad idea. Or, if unConstitutional, by virtue of some inchoate, implied principle of privacy or autonomy or whathaveyou rather than a sturdy, four-corner analysis of our founding document.
So yours is a bad example of liberals believing in enumerated/limited powers because the only limits acknowledged in their opposition to marijuana criminalization are those limits imposed by right thinking and good sense—i.e., the limits are not Constitutional at all.
— KVS · Dec 21, 09:18 PM · #
To end: if the federal government is indeed limited, there are many actual and potential bad laws that are Constitutional, and many actual and potential good laws that are unConstitutional. Both sides tend to opportunistically ignore this fact.
— KVS · Dec 21, 09:22 PM · #