Thursday, May 20, 2010

Federalism Versus Politics

By Mike Dorf

In my latest FindLaw column, I explain why Monday's Supreme Court decision in United States v. Comstock portends upholding of the individual mandate, if and when a challenge to the federal health care reform legislation reaches the Supreme Court.  Comstock upholds the power of Congress to authorize civil commitment of federal prisoners found to be sexually dangerous (e.g., child molesters), even after their sentences for federal crimes have run.  I explain that the reasoning of Comstock appears to make the individual mandate an even easier case for sustaining federal power.  Nonetheless, I warn that it's not always possible to predict Supreme Court outcomes based on doctrinal analysis of prior cases.  (Think Bush v. Gore.)  Here I want to explore the possibility of a different--more political--explanation for the decision in Comstock and other federalism cases: At least some Justices abandon their views about the scope of federal power when doing so serves their (presumed) substantive policy preferences.  I shall call this the "politics hypothesis."

I'll use as my (admittedly tiny) database the following cases either accepting or rejecting a federalism challenge:

U.S. v. Lopez -- invalidating the Gun Free School Zones Act
U.S. v. Morrison -- invalidating the civil remedy provision of the Violence Against Women Act
Nevada v. Hibbs -- upholding the Family and Medical Leave Act
Gonzales v. Raich -- upholding the application of the federal Controlled Substances Act to marijuana that was locally grown for local consumption.
U.S. v. Comstock

Let's begin with an arresting fact: None of the liberals appears to vote politically in any of these cases: Justices Stevens, Souter, Ginsburg, Breyer, and now Sotomayor (albeit in only one case) vote to sustain federal power in each case, including cases such as Raich, in which they presumably would, on policy grounds, oppose the extension of the federal marijuana prohibition to medical marijuana that is legal under state law.

Note too that Justice Thomas has a perfect record as voting to reject federal power in each of these cases, ruling out the possibility that he is voting politically.  That leaves us with a relatively small number of votes to explain: Cases in which one or more generally conservative Justices who sometimes vote to limit federal power instead vote to sustain federal power.

Let's begin with Hibbs.  It has been suggested that Justice O'Connor voted to sustain federal power in that case because she saw it as a women's equality case, and on such issues, her policy preference runs pro-regulation.  But this seems hard to square with the fact that O'Connor voted with the majority in Morrison, which was even more clearly a women's rights case.  One still-political hypothesis is that Morrison pre-dated Bush v. Gore, after which O'Connor moved left.  But then how do we account for O'Connor's dissenting in Raich, indicating she was sticking with her federalism preferences even at what she would regard as a cost of voting for the challenger to a marijuana law?  If O'Connor's Hibbs vote was political, it was uncharacteristically so.

The same analysis more or less applies to Rehnquist's vote to sustain federal power in Hibbs.  By some accounts, Rehnquist came to appreciate the need for a law like the FMLA when, to help out his daughter, he picked up his grandchildren from school.  Perhaps, but as with O'Connor, it's hard to imagine that, as a policy matter, Rehnquist was for legalizing medical marijuana--and so politics alone would have had him in the majority in Raich; yet he dissented.

Speaking of Raich, it could be invoked as evidence that Justices Scalia and Kennedy, in joining in the decision to sustain federal power, were simply giving vent to their tough-on-drugs preferences.  But the story doesn't work so well for Scalia, in light of his willingness to dissent in Comstock.  Surely he's equally tough on child molesters.

The politics hypothesis thus looks plausible only for Justice Kennedy and possibly for CJ Roberts and Justice Alito based on their votes to uphold the law in Comstock--though it's hard to say much about Roberts and Alito based on just one case.  And even Kennedy's voting pattern is hardly decisive in this regard.  I suspect that he had policy sympathy for the substantive goals of the laws he voted to invalidate in Morrison and Hibbs, but that his federalism druthers simply prevailed.  Moreover, a pretty good doctrinal argument can be made for reconciling all of his votes in these cases.  And add to that the fact that, with O'Connor, Kennedy was never fully gung ho on rolling back federal power (see his concurrence in Lopez), and it's not surprising that he would "swing" on the close cases, even completely ignoring politics.

Bottom Line: The voting pattern provides little to no evidence for the proposition that the Court's federalism decisions are "just politics."  At most, it provides some inconclusive evidence for the influence of politics on Justice Kennedy and even less for CJ Roberts and Justice Alito. For a related argument, readers may wish to look at my 2007 essay for a federalism symposium at St. John's Law School.  Here I'll simply quote the abstract:

Empirical research indicates that factors such as an individual Justice’s general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments—independent of whether the particular outcome in any given case is “liberal” or “conservative”— can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which “conservative” Justices voted to invalidate a strict federal drug provision in light of California’s legalization of medical marijuana and “liberal” Justices voted to uphold the federal law. Proponents of a strongly legal realist view of the Court might argue that views about federalism are themselves ideological, or that Justices who commit themselves to defending or opposing states’ rights do so because of a calculation about the likely long-term consequences of such a position. But they do so only by draining the realist enterprise of its descriptive and normative power, because, as this Essay argues, genuine principles about federalism are distinctly legal, even if formed on the basis of long-term calculations about the likely effects of various views about federalism. Taking federalism as a point of departure, this Essay describes and justifies a method by which Justices choose the legal principles that bind them.


egarber said...

A few things about your Findlaw piece:

As I understand it, your main point is that:

1.Comstock stands for the rule that certain activity can be regulated under the commerce clause, provided that it significantly relates (my term) to other activities clearly within the authority.

2. Applied to mandates, that means the individual requirement bears a natural relationship to the handling of pre-existing conditions, the latter of which is plainly allowed.

Or as you say:

"Thus, Congress had a reasonable basis for including the individual mandate in the health care legislation as a means of effectuating the prohibition on refusing or dropping coverage for pre-existing conditions."

Question 1: Does that mean you are pulling back from the conclusion that mandates on their own fall within commerce authority? Or are you simply saying Comstock fortifies the general commerce clause justification?

Question 2 (unrelated): Do you think Lopez was correctly decided?


Gnash said...

Why is it hard to imagine that O'Connor and Rehnquist were, as a matter of personal politics, in favor of legalizing medical marijuana? Many staunch conservatives went much further than that (e.g., William F. Buckley). And I would think conservatives from the West are generally more open to marijuana legalization that those from the South or Midwest.

Michael C. Dorf said...

As to Eric's questions:

1) The latter. The mandate could by itself be warranted as a regulation of (non)activity that affects interstate commerce or under the taxing power, but it also fits in this other way.

2) I don't have a strong view about Lopez. When I teach the case, I point out to my students that the majority and the dissent have problems: For the majority, the problem is the arbitrariness of the line drawn between "economic" and "non-economic" activity, and the fact that every other line attempted in the past has eventually collapsed. The dissent's problem is its inability to say that there is anything that's not regulable as interstate commerce, thus making a mockery of the notion of a govt of limited powers. I regard the dissent's problem as more serious, so I tend to be somewhat closer to the majority. I would also be happy with a rule that said that Commerce Clause challenges are not justiciable, a position advocated more or less by the late Herbert Wechsler.

Bullfighter: Rehnquist and O'Connor were both in the majority in U.S. v. Oakland Cannabis Buyers' Cooperative, even as Stevens (joined by Souter and Ginsburg) wrote a concurrence in the judgment that was much more sympathetic to the possibility of an individual raising a necessity defense. O'Connor's concurrence in the judgment in Empl Div v. Smith also showed her as buying into the drug war. I agree that Westerners often have a libertarian streak; I just don't see it in the record of the late Chief and O'Connor on drugs.

Publius the Clown said...

"I would also be happy with a rule that said that Commerce Clause challenges are not justiciable."

Why? Wouldn't this also "mak[e] a mockery of the notion of a govt of limited powers?" Letting Congress decide the scope of its own powers would be letting the fox guard the henhouse.

Michael C. Dorf said...

Not at all, Publius. My objection to the dissenting position in Lopez is that it is not a plausible reading of the enumerated powers to say that one such power covers everything. THAT objection would not apply to a non-justiciable Commerce Clause. Instead, the judgment about what's not enumerated would be left to Congress. Now, you say that Congress, if given such responsibility, would abuse it. But Herb Wechsler argued persuasively that political factors--what he called "the political safeguards of federalism"--are a much more powerful limit on over-federalization than is judicial review. Jesse Choper wrote a book to the same effect. And Larry Kramer updated the argument by pointing to the role of state and national political parties in giving the states checking power in Congress.

egarber said...

<And Larry Kramer updated the argument by pointing to the role of state and national political parties in giving the states checking power in Congress

And we should take it further by repealing the 17th Amendment :). I'm kidding of course, but there's a hook here somewhere into that tea party position.

Publius the Clown said...

Hi again, Professor Dorf--To be clear, I agree with you that your objection to the Lopez dissent is not conceptually inconsistent with a rule that the Commerce Clause is not justiciable. My point was simply that an analogous argument could be made against that rule, as you inferred.

I see no reason to hold that the scope of Congress's enumerated powers is not justiciable, any more than I see any reason to hold that the Bill of Rights are not justiciable. Both are limits on the power of government, and, as such, both require an independent judiciary to enforce them.

The existence of statutes such as the one struck down in Lopez shows that there are insufficient political checks in place to prevent over-federalization.

Michael C. Dorf said...

Publius: Justice Powell says what you say in footnote 8 of his dissent in Garcia v. San Antonio Transit Auth: "One can hardly imagine this Court saying that, because Congress is composed of individuals, individual rights guaranteed by the Bill of Rights are amply protected by the political process. Yet the position adopted today is indistinguishable in principle. The Tenth Amendment also is an essential part of the Bill of Rights." But it's not a fair criticism. The majority in Garcia--which invokes a "political safeguards" argument for something close to a non-justiciability conclusion--offers structural reasons to think that state interests will be protected in Congress in a way that individual rights won't.

As to whether the GFSZA shows Congress doesn't care about federalism, it can be--and has been--argued that the very willingness of the Court to police these boundaries leads Congress not to take them seriously. As I said, I'm not committed to the non-justiciability view; I think Lopez is less bad than the dissenting view; I just think that the non-justiciability view has a roughly equally acceptable mix of pluses and minuses.

Publius the Clown said...

You're right, as a structural matter, that states and individuals are situated differently vis-a-vis the federal government, so it's an exaggeration to say that the Bill of Rights and the limits to enumerated powers are completely "indistinguishable in principle." I acknowledge (and don't think my previous statements were inconsistent with the idea) that some structural safeguards exist, and that in that respect there's a distinction with the Bill of Rights scenario; I just don't think that the safeguards are adequate, or that the distinction is dispositive.

To elaborate on a point in my earlier comment: Lopez is instructive because the GFSZA could only have been upheld under a rule like the dissent's, which (as you suggest) was so broad as to be unlimited. If Congress is enacting laws that it could only make with unlimited powers, then it's violating the Constitution's enumerated-powers structure. So my argument is not that Congress might abuse its power; it's that it has abused its power, and it follows that the political safeguards that exist are inadequate.

I suppose that a counterargument would be that Congress would be more careful if it knew that it was its own policeman, which gets to your argument that the Court's willingness to police the boundaries may make Congress careless. Two responses: first, the GFSZA was already a brazen disregard of Congress's limitations, but Congress passed it in 1990, when the Court hadn't invalidated a congressional act on the basis of those limitations for fifty-five years.

Second, this argument really does apply equally in principle to the Bill of Rights. If it could be shown that the Court's willingness to enforce the First Amendment made Congress more likely to disregard it, would it follow that the First Amendment should be non-justiciable? Revoking the power of judicial review on such a relatively shaky premise would be foolhardy when a constitutional limitation is at stake, whether that limitation is an individual right or a structural boundary. Better to have the courts police an unruly Congress than to have Congress gradually realize it can do whatever it wants.

Anyway, I know you're playing devil's advocate here to some extent--but that's all the more reason to try to convince you that my side is right!

Coach Bags & Chanel Handbags said...

Even if one thinks that it's okay for the government to order everyone to see the doctor, an order to exercise does appear to go to far. It looks a lot like conscription, which, if justified in wartime, is still extraordinary. Further, it is not clear how a mandatory exercise regime could possibly be enforced absent something like Orwellian surveillance.

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