Understanding the ACA Arguments

Thu Mar 29 13:33:56 PDT 2012

I'm with Dan on this one.  Steve's position implies that a judge is  entitled to think there is only one right answer to complex constitutional questions and that anyone who disagrees is simply wrong.  Deference in this case admits that the reasonable people can disagree and that Congress is owed some respect, even if we disagree with its conclusion.  It's different, of course, if we have reason to believe that Congress simply never seriously debated the issues at hand or, like the infamous Arlen Specter, collectively said "sure this is unconstitutional, but my political ambitions dictate voting for it in the hope that the Court will strike it down."

Consider the conclusion of Thomas Jefferson's memorandum to George Washington on the constitutionality of the Bank of the United States (and whether, therefore, he has a duty to veto it).  Jefferson did believe the Bank was unconstitutional, but he concluded the memo as follows:

It must be added, however, that unless the President's mind on a view of everything which is urged for and against this bill, is tolerably clear that it is unauthorized by the Constitution; if the pro and the con hang so even as to balance his judgment, a just respect for the wisdom of the legislature would naturally decide the balance in favor of their opinion. It is chiefly for the cases where they are clearly misled by error, ambition, or interest, that the Constitution has placed a check in the negative of the President.

sandy

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Thursday, March 29, 2012 2:17 PM
To: Steven Jamar
Cc: CONLAWPROFS professors
Subject: RE: Understanding the ACA Arguments

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<mailto: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<mailto:conkle at indiana.edu>
************************************************

From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [mailto:conlawprof-bounces at lists.ucla.edu]<mailto:[mailto:conlawprof-bounces at lists.ucla.edu]> On Behalf Of Miguel Schor
Sent: Thursday, March 29, 2012 2:06 PM
To: Scarberry, Mark
Cc: Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
Subject: Re: Understanding the ACA Arguments

To argue deference the political branches is not to argue that judicial review is illegitimate.  What I don't understand (and this is a sincere question) is why those who fear that upholding the mandate will then allow Congress to enact an eat your broccoli law think that political checks and balances do not do any work in our constitutional system (or that paying attention to this somehow delegitimizes judicial review).  Congress of course is not going to enact a law requiring all citizens to eat broccoli.  More to the point, setting ambition against ambition is a crucial limiting "principle" in its own right.  There are many, many examples of constitutions around the globe that are merely parchment barriers and one thing they all lack is a workable system of political checks and balances.

Mae,

Does your approach suggest that judicial review is illegitimate?

I understand Justice Scalia said in oral argument that political processes failed in this case (with regard to the mandate). I suppose he meant that the mandate is rather clearly beyond Congress's power, and thus that we can't trust the political process, at least on the front end, to constrain Congress from exceeding its powers.

For those who think the mandate does clearly exceed Congress's power, the next election may provide evidence for or against the proposition that the political processes eventually work (on the back end) to constrain Congress. That is, the election may do so if the Court punts on the issue and thus does not decide the validity of the mandate.

Past history provides little reason, I think, to believe that the political processes work in this way, either on the front end or the back end.

Some list members still will think that the mandate exceeds Congress's power even if the Court upholds it. For them, the election may provide evidence for or against the view that the political process eventually will bring us back to a reasonable understanding of the limits on government power under the Constitution even when the Court gets it wrong.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [mailto:conlawprof-bounces at lists.ucla.edu]<mailto:[mailto:conlawprof-bounces at lists.ucla.edu]> On Behalf Of Mae Kuykendall
Sent: Wednesday, March 28, 2012 9:15 AM
To: David A Nordquest; Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
Subject: Re: Understanding the ACA Arguments

I sent the following comment to a colleague this morning, which may be reinforced by our receipt of an email from a philosophy professor.

To wit:  I think the idea the Court has to find a limiting principle is silly.  The political process produces limiting principles to spare.  Government is not a philosophical seminar.

>>> "Nordquest, David A" <NORDQUES001 at gannon.edu<mailto:NORDQUES001 at gannon.edu>> 3/28/2012 11:53 AM >>>
Professor Duncan wrote:  'I like the original analogy better as demonstrating for my students how inactivity ("I don't want to buy health insurance") is treated as activity ("but someday in the near or far future you will go to an emergency room, so we will treat that as present activity") under Obamacare. I know: X is Y for the purposes of Z. The analogy demonstrates that move in a manner the students can grasp.'
This shows further how pro-ACA arguments tend toward monism.  All acts and non-acts together form one market and, as Professor Duncan suggests, acts or non-acts at any time count for all times.  Everything is one!
David Nordquest,
Assistant Professor of Philosophy,
Gannon University
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--
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/

"I have the audacity to believe that peoples everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality and freedom for their spirits."

Martin Luther King, Jr., (1964, on accepting the Nobel Peace Prize)

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