Wednesday, February 09, 2011

Tribe, the Health Care Mandate, and Legal Realism

By Mike Dorf

Larry Tribe's op-ed in yesterday's NY Times makes two core points.  First, he lays out the main arguments for why the individual mandate of the Patient Protection and Affordable Care Act should be understood as satisfying the existing Commerce Clause or, alternatively, Taxing power, precedents.  There's nothing especially new here but Tribe pulls the arguments together elegantly and succinctly.  It probably goes without saying that I agree with him.

Second and more interestingly, Tribe takes issue with those pundits and commentators who have been predicting that a challenge to the law will be close in the Supreme Court.  Putting aside Justice Thomas, who has repeatedly stated that he rejects the modern congressional powers doctrine in toto, Tribe concludes by predicting "that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb."  In a similar vein, earlier in the piece, Tribe says: "To imagine Justice Scalia would abandon [his broad] understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity."  

We might ask whether Tribe is really predicting something like an 8-1 vote to uphold the law or is simply trying to work the refs.  By framing the question as constitutional duty versus politics, Tribe plants in the minds of the public and the Court the notion that the only principled way to rule here is to uphold the law.  If Tribe is indeed working the refs, I've got nothing against the tactic, but I don't think it's likely to work.  There are enough conservative groups out there saying that the mandate is invalid that the conservative justices have a ready-made counter-framing: They'll say it's the liberals who want an unprecedented expansion of federal power, and the conservatives who are trying to hold the line.  Besides, at the end of the day, Justice Scalia doesn't really care if liberal law professors think he has acted in an unprincipled way.

Surely Tribe knows that flattering/shaming the conservatives is unlikely to work, if they are inclined to vote to strike down the mandate.  Thus, perhaps we should take what he says at face value.  For Tribe, the case law is simply too one-sided, and the Virginia and Florida district court rulings so egregiously wrong, that it's impossible to imagine the Supreme Court ultimately affirming them.  He writes:
The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.
Alas, I think this gets matters backwards.  One of the things that made Bush v. Gore so shocking was that the conservative majority overrode their ordinary jurisprudential preferences for states' rights and narrow readings of equal protection in order to rule for Bush.  Precisely because Bush v. Gore was not a novel issue, it seemed inexplicable as anything other than an instance of partisan political druthers overriding jurisprudential druthers. But on health care, political druthers align with jurisprudential druthers.  Conservatives who generally favor reining in federal power would be doing just that in invalidating the mandate.

Tribe must realize all of this, of course, and so he explains how (except for Justice Thomas) even the conservatives on the Rehnquist and Roberts Courts have taken positions that require the upholding of the mandate.  Again, I agree as a matter of doctrinal analysis, but for purposes of predicting the outcome in the Supreme Court, the question is not whether the activity/inactivity distinction is sensible or required by the prior cases; the question is whether there is enough wiggle room in the doctrine so that five justices who are inclined to think the mandate should be invalidated will be attracted to the distinction.

Tribe thinks there isn't any wiggle room.  That's also what I thought in the fall of 2009, when opponents of the then-pending legislation floated the no-power-to-regulate-inactivity argument in earnest.  But I have lately begun to think that their argument is not completely off the wall.  To be clear, I haven't been at all persuaded by the arguments of the lawyers challenging the mandate or the academics offering them cover. I continue to think that a doctrine that distinguishes between activity and inactivity is unfaithful to the modern Commerce Clause jurisprudence.  Moreover, I also think that the Justice Dep't and  Tribe are right that any sensible use of such a distinction would put the decision not to purchase health insurance in any particular year on the activity side of the line.  And I think the taxing power basis for sustaining the mandate is very strong under the case law.  But I am no longer confident that the case will be a slam dunk in the Supreme Court.  In other words, even though my reading of current doctrine makes the inactivity argument completely off the wall, the Supreme Court has the power to move the wall (a metaphor I borrow from a law review article by Jack Balkan some years ago).

Now that two district court judges have bought the argument against the mandate, it has a patina of respectability.  Sure, the "activity requirement" is made up, but no more made up than other federalism doctrines favored by conservatives, like the rule against federal "commandeering" of state legislative and executive officials or the attribution of principles of state sovereign immunity to the 10th Amendment, the 11th Amendment, and the structure of the Constitution.  And of course, the door swings both ways.  To conservatives, doctrines recognizing rights to contraception, abortion, and homosexual sodomy are just made up.

I'll be delighted if Tribe turns out to be right and I turn out to be wrong.  But I'm not going to bet against a 5-4 ruling.  It's one thing to say that those with whom you fundamentally disagree would be imposing their policy preferences in the name of the Constitution were they to rule in accordance with their views rather than yours.  It's quite another thing to think that they therefore won't do just that.  Or, to put the point more philosophically, I suppose that I am more of a legal realist than Tribe.


Mortimer Brezny said...

I think Tribe's point is that the conservative Justices we have are not so cynical as to damage the Court's legitimacy and their own legacies just to thwart the President. They may be cynical, but they are less cynical than that.

Michael C. Dorf said...

MB: I agree that this is Tribe's larger point--and I agree with it. However, to make it in this context he assumes that the conservatives would perceive a vote to invalidate the mandate as damaging the Court's legitimacy and political. I think that assumption may be wrong, simply because the activity/inactivity line has gained credibility from the sheer number of people making arguments for it.

AF said...

Professor Dorf: Are you saying that the "inactivity" argument is "not completely off the wall" or simply that it has "gained credibility from the sheer number of people making arguments for it"?

It strikes me that it's very important to make that distinction, at least at this stage of the debate. I agree with you that many people are making the "inactivity" argument, but I don't see how that makes the argument any stronger (legally speaking) than it was before so many people were making it.

I don't think you mean to suggest otherwise. I don't take you to be revising your previous view that based on existing doctrine, the mandate is not only constitutional, but there is no reasonable basis to conclude otherwise. Rather, I understand you to be predicting that the Supreme Court, which of course is free to disregard existing doctrine, is more likely to do so now that so many people are supporting the health-care challenges.

But I'm concerned that your post can be read (particularly by those with axes to grind) as conceding that the "inactivity" argument is one on which reasonable people can disagree based on existing doctrine and that the doctrine contains enough "wiggle room" that a valid argument can be made that the individual mandate is unconstitutional (even though you ultimately disagree with the argument).

If that is not your view, I think it would be helpful to clarify.

Michael C. Dorf said...

AF: I completely agree with your characterization of my view. I still regard the inactivity argument as "off the wall." But as Jack Balkan once wrote a propos of Bush v. Gore, sometimes arguments that are off the wall become the wall. I've edited the main post to make this clear. Thanks!

Joe said...

I think Tribe is trying to add his establishment voice to others who suggest overturning the mandate and/or law is a gigantic step that is not truly loyal to what nearly all of the justices said already.

Framing the move this way for justices who might be open to but not conclusive on striking down the law might have some bite particularly given some argue that Roberts and Alito (maybe more one over the other) are pragmatic sorts that care about that sort of thing/image.

Kennedy is also seen as someone who can be influenced by what is the conventional wisdom. As a "swing" justice, he might care about keeping from going too far. He has made noises in this direction in this very area. "We didn't go too far here."

Scalia is less likely to be influenced by such things.

AF said...

Professor Dorf, thanks for the clarification and of course I agree with you that factors other than the strength of the legal arguments affect the case's likelihood of success.

In fact, that was precisely the reason for my concern: one of the exogenous factors that can affect success is how the argument is viewed by those not predisposed to agree with it, particularly by experts in constitutional law like yourself. I am worried that in a tiny way, your statement that the argument is not "off the wall" could actually contribute to its success.

esegall said...

I think you are not quite legal realist enough. Let me ask the question this way. Do you think any of the Justices will approach this issue by reviewing prior positive law seriously and then coming up with what they think is the best "fit." We already know how the moderates will vote and that would be true even if, for example, Raich came out the other way, and there were 5 more cases invalidating laws as beyond the commerce clause in the last 10 ten years. And, my guess is the best predictor of what Roberts and Alito will do is to see how many insurance companies and/or
the Chamber of Commerce file amicus briefs and on which side (I certainly wouldn't bet against the Chamber of Commerce these days). In any event, will doctrine matter? I wouldn't think so here anymore than affirmative action cases (where original intent is ignored), abortion cases (where precedent is ignored) or 11th Amendment cases (where clear text is ignored). Sorry for the cynical tone but I believe it is warranted (about the Court not your post).

Crispian said...

Ah, interesting to see a similar observation made by you and Allahpundit (on the conservative site Hotair), though he less charitably wrote: "It’s transparent narrative-building for liberal bien-pensants, a way of moving the Overton window so that any unfavorable ruling, notwithstanding the legal novelty of the mandate or the reasoning of the majority opinion, must be illegitimate."

I agree with you that Tribe presented his argument powerfully and succinctly. I still find the argument overly formulaic and superficial and I think his argument was powerful because he presented it in those terms.

You are right that "activity" has not been strictly required by the logic of precedent. But it was always present and an assumed underpinning of any regulation. I appreciate that you now recognize the argument is not totally off the wall. I still don't understand the fervor of those educated in the law who dismiss the alternative arguments. There is no analogous law in our history which has regulated non-activity.

I agree the case will likely be a 5-4 decision. And I suspect it will turn on the ability to fashion a principle which realistically limits government authority if the government can simply require the people to do something...if part of a scheme which is arguably interstate and arguably economic. Obviously in this case, regulation of health insurance is easily held to be economic and interstate. But as we know from Wickard and Raich, those elements are construed liberally. As far as I have seen, proponents of the mandate don't have much of an answer for how government power would be limited. The response is simply that a regulation won't be upheld if another clause specifically forbids it.

That this argument turns the Constitution on its head by nullifying the principle codified in the 10th Amendment is irrelevant to proponents. The 10th Amendment doesn't fit into the formula, they say. It had its shot, we considered it, but it just doesn't have "teeth." Insofar as that description of the 10th Amendment is accurate, that doesn't merit turning it into a nullity.

JP Andreas, Pres. A.C.L.P. said...

As an ardent and well read (albeit fairly new) blogger on legal/political matters who also tries to be open to contrary viewpoints, (even though I may be coming from the other perspective), I, as Crispian, at first found your post refreshingly open-minded and was ready to offer up kudos to Michael for even being willing to admit that conservative "inactivity" arguments are not necessarily so "off the wall" as Obamacare's proponents portray them.
However, I find your so quickly backing down and allowing your seemingly "open" perspective to be (re?)characterized by AF as essentially an insincere power play by the law's opponents whom are subsequently deprived of having "any legitimate basis" for their legal views on this extremely controversial legislation a sad commentary on, in the most charitable view, an elitist and increasingly cynical modern liberal intelligentsia or, less charitably, an outright attack on the motives and integrity of the law's opponents. In my view, neither is particularly helpful to the current debate or morale of a country grappling with such important and weighty matters and serves just to further divide the body politic.
Now I'll be the first to admit that perhaps I just haven't read enough of the posts on here to know whether my initial assesment of non-partisan openness on your part is correct, but it now seems at least plausible to me that your post was more likely just a softer sort of the demonization of those with different viewpoints and the "politics of personal destruction" that we so often see deployed by the progessive left against their opponents every time they are afraid they are losing the public debate.
Accordingly, and as a conservative-leaning independent originalist myself, I find it troubling, to say the least. However, even were I to view things as an impartial observer of the political process as I most often try to, I would have to conclude that such tactics are part of the problem in America, not the solution.
In that light, I find the clever argument put forward by AF, (and to a much greater implied extent, Tribe), that the law's opponents are either clueless and/or as disingenuous as they in attempting to shame/manipulate the court via the political process at once both demeaning and every bit conniving as AF seems to imply originalist opponents of the law are. Indeed, to the extent you express wholehearted agreement with AF's "clarified" relegation of the "inactivity" health argument to mere political "posturing" you undermine, at least in the eyes of Independent originalists like myself, the very credibility you at first seemed to have. Will it cause me to stop reading? Probably not. It will, however, cause me to more carefully examine my future assumptions, (as well as yours), and be less trusting that there are those who are truly intent on "problem solving" from a non-partisan perspective. And that to me, is a very sad state of affairs.

jp andreas

Michael C. Dorf said...

J.P. Andreas: I find your comment largely baffling. I didn't say anything at all about the motives or good faith of people advancing the inactivity point. I simply said that as an interpretation of extant constitutional doctrine, I find it to be not only wrong, but clearly wrong--even as I acknowledged that someone who sees things very differently would think otherwise.

JP Andreas, Pres. A.C.L.P. said...

Dear Mr. Dorf,

That makes two of us then! My comment actually said very little about what YOU said but focused on what AF said, which in your response to him you stated you "completely agree[d]" with. But so there is no confusion let's look at what AF said, with my interpretation in brackets:

AF:"I don't take you to be revising your previous view that based on existing doctrine, the mandate is not only constitutional, but there is no reasonable basis to conclude otherwise. [implies unflatteringly that those who oppose obamacare don't really do so on any principled legal basis but merely want to "win"] Rather, I understand you to be predicting that the Supreme Court, which of course is free to disregard existing doctrine, [implies that if the court agrees that Obamacare is unconstitutional the court won't be doing so on legal principles but rather 'political' considerations] is more likely to do so now that so many people are supporting the health-care challenges. Rather, I understand you to be predicting that the Supreme Court, which of course is free to disregard existing doctrine, is more likely to do so now that so many people are supporting the health-care challenges." [implies again, that any opposition to Obamacare, rather than being on any principled, legal basis, is mere politics].

Moreover, you yourself clearly seem to subscribe to this view by saying in your initial post, "It's one thing to say that those with whom you fundamentally disagree would be imposing their policy preferences in the name of the Constitution were they to rule in accordance with their views rather than yours..." [which I interpret again as another way of saying that all that matters to originalists challenging Obamacare is the outcome, or for lack of a better term, politics by other means]. Indeed, isn't this what your comment /analogy regarding Bush v. Gore refers to?
Am I wrong that you clearly
and naturally ascribe to the relativist legal mindset of those who believe in a "living" and moldable constitution? (which Constitutional originalists like myself do not for reasons as are too complex to go into here, but cf. )
In any case however, again, my main "beef" was with Lawrence Tribe's article and the speed at which you abandoned your seeming charity towards the contrary view of originalists like myself re: Obamacare's legality at the drop of a hat (or comment) by AF.
I do of course realize that from the liberal perspective the law is merely politics by other means, (and if you truly are a moderate and/or that's not your belief then you should understand my exception to such characterizations). But for the record, to originalists there is no higher insult to our integrity, (indeed, I should think the inferences made should be universally understood as offensive as it ascribes to conservatives/originalists motives that are based less than on our-- I would say correct-- actual view of the law, (else why would Tribe's strategy of appealling to the vanity and in a sense "pride" of moderate/ conservative High Court members ostensible desire to be seen as moderate and "bucking the expected" have any hope of succeeding?) Of course, if I misunderstood your comments I am open to correction.
But while you're at it maybe you can please clear up which position you reallydo believe in?
Do you believe of Constitutional originalists, as you first indicated in your initial post, that "their argument is not completely off the wall?" Or do you believe in the opinion you express six sentences later that, "my reading of current doctrine makes the inactivity argument completely off the wall..." Because, at least on this, both I and AF agree on your ambiguity.

Jp Andreas

Michael C. Dorf said...

JP Andreas:

I said in the original post that I originally thought and continued to think that there was no "sensible" way to read the doctrine and accept the inactivity argument. I also said that as a result of constant repetition, the argument was no longer "off the wall." AF asked whether I meant that I had been at all persuaded by the people making the inactivity argument, and I said no--that AF was completely right in reading me as losing confidence in my predictive powers, not in my own understanding of the doctrine. I do not regard my post and subsequent comments as contradictory, but I shall redouble my efforts to write clearly.

With respect, I think your discussion of originalism in this context is a non sequitur. I was talking about the case law. Nobody on the Court other than Justice Thomas is prepared to abandon the last 73 years of case law and return to the pre-McCulloch original understanding of the Commerce Clause.

You also say that "from the liberal perspective the law is merely politics by other means." That view, sometimes called "critical legal studies," is not "the liberal perspective." It takes aim at liberal, no less than conservative views of the law. You might want to look at the Introductory chapter to my book, No Litmus Test: Law Versus Politics in the Twenty-First Century, for my analysis of the claim that the law is radically indeterminate.

Finally, I agree with you that comments on a blog do not do justice to the debate over constitutional interpretation. Please feel free to consult one or more of my academic books or articles on the subject if you're interested in my views on these matters.

Thanks for reading and commenting.

JP Andreas, Pres. A.C.L.P. said...

There's nothing more amusing than the intolerance of the allegedly "tolerant!" Do you always delete the comments of those who you can't reply to with better arguments? Guess not so much a place for open, true exchange of differing viewpoints after all. That's ok, I can always post the whole thing on my blog if you delete it again :) REPOST FOLLOWS:

Prof Dorf,

Thank you for your "clarification." I will look forward to more clear exposition on such matters in future posts.

However, I regret to inform you that you misread me (again!).

Indeed, you clearly mistake my OWN assertion of opinion under the First Amendment for a misunderstanding of this or that field of "critical" legal studies, (which I did not mean to claim adherence to contrary to your assumption).

Rather, my comments about liberalism were meant exactly as written; to express my PERSONAL view that liberals, with their general suspicion of authority and rejection of the idea of any fixed, immovable meaning of the Constitution vis a vis the original intentions of the Founders, must necessarily devolve to a mere Nichean 'will to power' among competing groups of society striving for 'control' of the levers of the judiciary and government, (even if these views are internally in contradiction. Indeed, if one does not "trust" authority why would they then rationally trust in a theory of interpretation that would allow that same authority the freedom to "change" the meaning of the Constitution at will?)

I realize that such an emphasis on psychology and social science theory may be beyond the purview of this blog's expertise; nonetheless I wished to throw that observation in the mix as I perceived the arguments put forth by Tribe which you cited, (and of which AF seemingly approved of), along the same lines.

Indeed, AF's comments, as well as certain of yours citing Tribe's attempt to influence high court members clearly delved into the ostensible "motives" and thought-processes of particular justices in counting them as being susceptible to being persuaded for (or against) upholding the Affordable Health Care Act.

Moreover, I took your reference to Bush v Gore as well as your open musings that the Court could perhaps be "pushed" to invalidation of the Act by the "increasing numbers" of those opposed to it as giving tacit approval to this view.

Of course, as one who believes that the Constitution indeed has a "fixed" meaning in a similar fashion to the views of justice Antonin Scalia, (who I have had the privilege to meet btw), I find this view just as heretical to proper interpretation of the Constitution as you undoubtedly find the arguments in support of invalidation of Obamacare.

However, your previous comment expressing that you personally find the constitutional interpretation of supporters of invalidation "not only wrong, but clearly wrong--even as I acknowledged that someone who sees things very differently would think otherwise" I find as equally baffling as I apparently have proved to be to you (see your previous comment in response to my initial post).

Indeed, such a statement says little more than make the circular assertion that "those who feel differently feel differently," and says absolutely NOTHING in the way of substantive response to the merits of my arguments, (or your views of constitutional interpretation for that matter).

It is akin to saying, of two people who disagree on whether the color black as opposed to white is a nicer color, (assuming there were only two colors from which to choose), that they "disagree on their respectively favorite colors because one likes black and one likes white."

If this is all interpretation of our Constitution and Supreme law of the land turns on, God help us all.

Jp Andreas

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