Fwd: Understanding the ACA Arguments

[Steven Jamar]

Begin forwarded message:

> From: Steven Jamar <stevenjamar at gmail.com>
> Date: March 29, 2012 3:23:13 PM EDT
> Cc: CONLAWPROFS professors <Conlawprof at lists.ucla.edu>
> Subject: Re: Understanding the ACA Arguments
> 
> I think if the court believes that a law is unconstitutional, it cannot, after Marbury v Madison, defer to the judgment of others.
> 
> However, that assumes a setting in which the justice is so certain that Congress exceeded its power that he or she cannot be persuaded that it is a close question and that on close questions the court should defer to the other branches' collective determinations.
> 
> So, perhaps we are saying the same thing if we map out the predicates carefully enough.  There is a chasm between "I doubt the constitutionality" (in which case deference would be ok in my judgment) and "I judge this action to be unconstitutional" (in which case the judge should vote against constitutionality).
> 
> Steve
> 
> 
> On Mar 29, 2012, at 3:16 PM, Conkle, Daniel O. wrote:
> 
>> I’m not entirely sure that this is right, Steve.  Suppose, as a member of Congress who takes my constitutional oath seriously, I believe that the individual mandate is beyond the reach of congressional power.  But suppose now I’ve been appointed to the Supreme Court, and the issue comes before me as a justice.  (Put aside the issue of recusal.)  Am I obliged as a Justice to rule the law unconstitutional?  Or might I properly defer to the presumed constitutional judgment of the majorities in Congress who passed the law?
>>  
>> Dan 
>> ************************************************ 
>> Daniel O. Conkle 
>> Robert H. McKinney Professor of Law 
>> Indiana University Maurer School of Law 
>> Bloomington, Indiana  47405 
>> (812) 855-4331 
>> fax (812) 855-0555 
>> e-mail conkle at indiana.edu 
>> ************************************************
>>  
>>  
>> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
>> Sent: Thursday, March 29, 2012 3:03 PM
>> Cc: CONLAWPROFS professors
>> Subject: Re: Understanding the ACA Arguments
>>  
>> I don't think that deference to Congress is like stare decisis (well, perhaps a bit like it in the way Dan mentions, but mostly not).  If a justice believes the Congressional to be unwise or otherwise wrong but within Congressional power, that is the end of it.  But if the justice believes that Congress exceeded its power, then the wisdom of lack there of law simply doesn't enter into the issue and deference should not be given.
>>  
>> Here, the court should defer to Congress and the political branches because Congress has the power to pass such a law for all the reasons others have mentioned repeatedly.
>>  
>>  
>> On Mar 29, 2012, at 2:53 PM, Conkle, Daniel O. wrote:
>> 
>> 
>> I wonder whether any of the current justices is truly deferential to the political branches in the current context.  In particular, is there any justice who (a) believes that, as a matter of independent inquiry, the individual mandate (or the Medicaid expansion) exceeds the reach of Congress’s constitutional power, properly understood, but (b) is willing nonetheless to defer to Congress despite its erroneous (in the justice’s view) conclusion to the contrary?
>>  
>> (Isn’t deference to Congress in this setting a bit like stare decisis?  If a justice agrees with a particular result as a matter of independent inquiry, precedent doesn’t matter.  Stare decisis only matters if the justice disagrees with the result but is willing to follow the precedent anyway. )
>>  
>> Dan Conkle 
>> ************************************************ 
>> Daniel O. Conkle 
>> Robert H. McKinney Professor of Law 
>> Indiana University Maurer School of Law 
>> Bloomington, Indiana  47405 
>> (812) 855-4331 
>> fax (812) 855-0555 
>> e-mail conkle at indiana.edu 
>> ************************************************
>>  
>>  

-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/


"A life directed chiefly toward the fulfillment of personal desires sooner or later always leads to bitter disappointment."

Albert Einstein




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