Understanding the ACA Arguments

Wed Mar 28 13:19:01 PDT 2012

The puzzle for me, Rebecca, is why you are "one of the biggest fans out
there of popular constitutionalism."  Wasn't the oral argument yesterday a
perfect illustration of how "popular constitutionalism" might work?  If the
Congress can process "popular constitutionalism" when it enforces the 14th
A under section 5, why can't the Court do the same thing when it considers
what appears to some as a matter of first impression under the Commerce
Clause?  On this issue, it was not difficult to discern what Tea Party
constitutionalists thought about the ACA.

On Wed, Mar 28, 2012 at 4:09 PM, Zietlow, Rebecca E. <
REBECCA.ZIETLOW at utoledo.edu> wrote:

> I like Lori's analogy comparing prohibiting to requiring.  I haven't heard
> much said about that.
>
> Back to Sandy's point, I agree that Kenenedy's comment does not seem to
> have anything to do with constitutional law.  He's not the only one.  I
> admit to feeling kind of like the inspector in Casablanca and feeling
> somewhat shocked at both the Justice's questions and the commentary about
> the oral argument this week.  Though this case seems to me (and many of us)
> a dead bang winner for the government based on precedents such as Wickard,
> Heart of Atlanta, and especially Raich (especially Scalia's concurrence in
> Raich) now appears to be a close call, maybe even a likely loss for the
> government.
>
> How did this happen?  Even if this case is close, that is a huge victory
> for the popular constitutionalism of the right, making distinctions that
> resonate strongly in political terms but weakly in terms of established
> constitutional precedent.  In the questioning, the Justices echoed the
> political rhetoric.  Broccoli was apparently mentioned 8 times in the oral
> argument over the individual mandate.  Look, I'm one of the biggest fans
> out there of popular constitutionalism, but I still am concerned when I see
> the Court  appearing so blatantly political.
>
> Am I the only one who will be disturbed if this landmark statute supported
> by Democrats is struck down on a partisan 5-4 vote with Republican
> appointed justices echoing the Tea Party in their opinions?  I hope I'm
> wrong, but this case is starting to look to me like Justice Roberts' Bush
> v. Gore.
>
> Rebecca E. Zietlow
> Charles W. Fornoff Professor of Law and Values
> University of Toledo College of Law
> (419) 530-2872
> http://www.nyupress.org/books/Enforcing_Equality-products_id-4830.html
> http://ssrn.com/author=291341
> http://works.bepress.com/rebecca_zietlow/
> http://www.essentiallycontestedamerica.org
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:
> conlawprof-bounces at lists.ucla.edu] On Behalf Of Lori Ringhand
> Sent: Wednesday, March 28, 2012 3:16 PM
> To: conlawprof at lists.ucla.edu
> Subject: Re: Understanding the ACA Arguments
>
> I admit to being surprised that the defenders of the Act respond to the
> activity/inactivity distinction under the rubric of "commerce" rather than
> that of "regulate". In other words: a refusal to buy insurance may not
> itself be an act of commerce, but the buying and selling of insurance
> surely is, and one can regulate that buying and selling (can, in other
> words, regulate commerce) by either requiring or prohibiting it. Either one
> - requiring or prohibiting - is a regulation of a quintessentially
> commercial act. Converting the object of regulation away the commodity to
> the individual advances the substantive due process/liberty position, but
> doesn't make much sense in the commerce clause realm.
>
> lr
>
> On 3/28/2012 2:31 PM, Ira Lupu wrote:
> > Following up on Sandy's comment -- I was very surprised that SG
> > Verrilli did not counter the Kennedy assertion re: ACA "changing the
> > relationship of the federal government to the individual in a very
> > fundamental way" with a reference to selective service registration.
> > All 18 year old men in the U.S. are under such a mandate to register
> > (and can, if Congress so acts, be drafted and have their bodies
> > shipped overseas to defend all of us). Of course, that is at times
> > necessary and proper to the raising of armies, a different Art. I
> > power, but what difference does that make? The Court does not demand
> > of Congress some greater than usual justification for draft
> > registration or conscription, so why should it do when the
> > conscription is to participate in a market, under circumstances in
> > which the "conscripts" all present the danger of negative
> > externalities (they suddenly are ill or injured, and demand medical
> > care, subsidized by others)?
> >
> > On Wed, Mar 28, 2012 at 1:45 PM, Sanford Levinson
> > <SLevinson at law.utexas.edu <mailto:SLevinson at law.utexas.edu>> wrote:
> >
> >     Kennedy said:
> >
> >     The reason this is concerning is because it requires the
> >     individual to do an affirmative act. In the law of torts, our
> >     tradition, our law, has been that you don't have the duty to
> >     rescue someone if that person is in danger. The blind man is
> >     walking in front of a car and you do not have a duty to stop him
> >     absent some relation between you. And there is some severe moral
> >     criticisms of that rule but that's generally the rule. And here,
> >     the government is saying that the federal government has a duty to
> >     tell the individual citizen that it must act, and that is
> >     different from what we have in previous cases, and that changes
> >     the relationship of the federal government to the individual in a
> >     very fundamental way.
> >
> >     Please explain to me the constitutional relevance of this. Is
> >     Kennedy suggesting, as in /Lochner/, that common law norms are in
> >     fact constitutionalized and that legislatures are without power to
> >     change them? I know this is David Bernstein's and Richard
> >     Epstein's view, but is Kennedy suggesting that they are in fact
> >     correct? Does Kennedy believe it is unconstitutional for /any
> >     /government to pass a "good Samaritan law" or only for the
> >     national government to do so? Why would this be the case, since,
> >     by definition, in that instance, one has conceded that such a law
> >     is a legitimate exercise of the state police power (and not, for
> >     example, invalidated because the Constitution, correctly
> >     understood, compels states to be radically libertarian)? Also,
> >     where in the world does he get the notion that anyone is arguing
> >     that "the federal government has a duty to tell the individual
> >     citizen that it [sic] must act," as against a power to do so when
> >     Congress believes it is necessary and proper to do so in order to
> >     achieve an end that is licensed by the Constitution. If this were
> >     part of an answer on a final exam, what comment would we write in
> >     the margin and how would it affect the final grade. Let me suggest
> >     that this paragraph would not count in his favor, nor would I
> >     offer to write the student a recommendation if the rest of the
> >     exam is as dubiously argued as this paragraph.
> >
> >     sandy
> >
> >
> >     _______________________________________________
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> >
> >
> >
> > --
> > Ira C. Lupu
> > F. Elwood & Eleanor Davis Professor of Law George Washington
> > University Law School
> > 2000 H St., NW
> > Washington, DC 20052
> > (202)994-7053
> > My SSRN papers are here:
> > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
> >
> >
> > _______________________________________________
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> --
> Lori Ringhand
> Professor of Law
> University of Georgia School of Law
> 225 Herty Drive
> Athens, GA 30602
>
>
>
> _______________________________________________
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> _______________________________________________
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-- 
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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