Tuesday, June 03, 2014

Dorf on Koppelman on Dorf on Koppelman on the Affordable Care Act Case

by Michael Dorf

In a recent paper in the Texas Law Review, Andy Koppelman responds to my review (in that same journal) of his book, The Tough Luck Constitution. At the risk of perpetuating what might seem like an infinite loop of commentary and counter-commentary, here I want to respond to one substantive point in Koppelman's paper and then make a broader point about the nature of our disagreement.

In his book, Koppelman contends that the arguments that were made against the constitutionality of the Affordable Care Act (ACA) in National Fed. of Indep. Business v. Sebelius (the ACA Case) were not just bad, but: 1) tainted by a very unattractive philosophy of "tough luck libertarianism"; and 2) from a professional standpoint, frivolous.

In my review (which I summarized on DoL here), with respect to 1), I agreed with Koppelman's normative assessment of tough luck libertarianism, but I contended that it played less of a role in persuading the conservative Justices to vote to invalidate the ACA (or in the case of CJ Roberts, to vote to uphold it but find that the Commerce Clause, even as supplemented by the Necessary and Proper Clause, was insufficient to sustain it), than two other factors: federalism and what I called "non-partisan framing"--the tendency of judges to see partisan issues in non-partisan terms, thus blinding them to their own biases. Koppelman's new paper thoughtfully responds to my contentions, although I remain more or less where I was when I wrote the review. I don't have anything to add on this first set of issues.

With respect to 2), my review noted that I too once regarded the argument that the ACA was beyond the power of Congress under the Commerce Clause as supplemented by the Necessary & Proper Clause (CC+N&PC) as frivolous, but having watched the litigation play out I had revised my view. I continue to think that the argument is wrong, just not frivolously wrong.

My review explained that the Supreme Court makes up all sorts of doctrines--to implement federalism norms and other constitutional norms--and that despite its made-up-ness, the act/omission distinction that underlies the argument against the ACA's validity under the CC+N&PC is not categorically more benighted than other such doctrines. I cited as three other examples the Court's doctrine of state sovereign immunity, its doctrine forbidding Congress to "commandeer" state legislative or executive officials, and the distinction between "economic" and "noneconomic" activity under the Commerce Clause.

Koppelman thinks that in grading the work of the Court's conservatives "on a curve" (my phrase), I engaged in "the soft bigotry of low expectations" (his phrase, referencing a catch-phrase written by speechwriter Michael Gerson for former President G.W. Bush). He responds to my comparison of the act/omission distinction in the ACA Case to those other federalism doctrines as follows: "The other federalism doctrines . . . at least bear some relation to the underlying concern for state autonomy or the meaning of 'commerce.' . . . But this one is unmoored from any value in the constitutional text, and it does not significantly limit the commerce power."

(Unsurprisingly), I'm not persuaded. Contra Koppelman, the act/omission distinction does bear some relation to the meaning of commerce. The power to regulate commerce, the conservatives say in the ACA Case, is the power to regulate existing commerce. Maybe they're wrong about that on historical grounds; and even if they're right, they still must get around the N&P Clause. But Koppelman is just wrong to say that the conservatives' argument about the CC is "unmoored" from the constitutional text.

Ah, but Koppelman doesn't exactly say that the conservatives' argument in the ACA Case is unmoored from the text; he says it's unmoored from any value in the constitutional text. Is he right about that?

Again, no. Here's a value in the constitutional text, in particular, in the Tenth Amendment: The federal government is a government of enumerated powers only, and thus the Court cannot accept a reading of the CC (or any other affirmative power) that lacks a limiting principle. That proposition is at the heart of the four-Justice dissent. Again, they could be wrong. Indeed, I agree with Koppelman that they're wrong. But that doesn't render their position "unmoored".

The conservatives read the limits on federal power as ultimately serving (among other things) libertarian ends. They did so long before the ACA Case.  For example, in the first anti-commanderring case, New York v. United States, the majority stated that "the Constitution divides authority between federal and state governments for the protection of individuals." Or as CJ Roberts wrote yesterday in his majority opinion in Bond v. United States, quoting a 2011 opinion by Justice Kennedy in the same case, "[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power." (More about Bond tomorrow in my Verdict column.)

The conservatives think that the enumeration of powers itself is a textual device for preserving liberty. Koppelman and I think that they shouldn't adopt a test that directly seeks to implement a libertarian principle, but one can hardly say that in doing so they are implementing some value that is foreign to traditional understandings of enumeration in Art. I, Sec. 8. See, e.g., Madison's Letter to Jefferson of Oct. 17, 1788 ("I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted.")

As for Koppelman's contention that the conservatives' CC rule in the ACA Case "does not significantly limit the commerce power," he's right, but that's also true of the state sovereign immunity doctrine--which can usually be evaded by suits for injunctive relief under the Ex Parte Young exception--and the requirement that Congress regulate "economic" activity--which can usually be evaded by the inclusion in a federal statute of a jurisdictional element or via equivalent regulation under the Spending Clause. To the extent that the (also unfortunate) holding of seven Justices with respect to the Medicaid expansion in the ACA Case limits the ability of Congress to use the Spending Power, that holding applies no less to the economic/noneconomic distinction of Lopez and Morrison than to the act/omission distinction of the ACA Case.

In critiquing Koppelman's response to my lumping together of the conservatives' position in the ACA Case with their position in other federalism cases, I don't want to overstate our differences. Our disagreement about whether the argument against the ACA's validity under the CC+N&PC is merely wrong (my view) or frivolously wrong (his view) is narrow. It's a little like arguing over whether a particular cockroach is the most disgusting bug under the sink; even if not, it's still disgusting. Nonetheless, our disagreement has an important ramification.

I think it is useful for constitutional liberals (like Koppelman and me) to try to figure out why we we did not anticipate that the ACA would come so close to being struck down, lest we repeat the mistake. For Koppelman, the answer is that the conservatives accepted a frivolously bad argument. He doesn't know why and doesn't seem to care. He writes in his response paper:
I am not offering a “causal account” of the result in the case. My claim is that causation moves in the other direction: in order to reach the conclusions they did (and you will have to figure out for yourself why they wanted them), the judges found it necessary to introduce Tough Luck Libertarianism into constitutional law.
Koppelman's lack of curiosity regarding the Justices' motives is itself curious. Koppelman thinks that four Republican Justices relied on a frivolous argument in order to vote to strike down the signature legislative achievement of a Democratic President in the midst of a heated re-election campaign focused on that legislation. Koppelman should be outraged at those Justices. He should be calling for their impeachment or, if he (correctly) regards that prospect as politically impossible, he should be loudly questioning their integrity. The closest he comes to doing so is saying this (in his response piece): "If the judges were unaware of the politically convenient character of their reasoning, it is likely that this unawareness was the object of the will, consented to as such."

As for myself, the surprise I experienced at the near-success of the legal case against the ACA was of a piece with the surprise I experienced at the result in Bush v. Gore. But having now taught constitutional law for 22 years, I can't say that the arguments with which I disagreed in those cases were especially bad. What was different about the cases was the political stakes. The lesson I draw from these cases along with all of the other rulings that I regard as resting on bad arguments is that simple-minded legal realism has a great deal to be said for it, especially in the Supreme Court.

Constitutional law isn't all politics. After the ruling in the ACA Case, I said it was "only" about 70% politics, in cases with a clear political valence. But that leaves a great deal of wiggle room for Justices to give expression to their values in their decisions.

In the end, then, perhaps the difference between Koppelman and me is that he is (much) more of a legal formalist than I am. He apparently thinks that in most cases the formal legal materials--constitutional provisions, statutes, precedents, etc.--play a larger role in determining Supreme Court outcomes than I think that they do. Needless to say, I think that I'm right, and the evidence that there is supports me. The methodology of the "attitudinal" political science studying Supreme Court decision making (e.g., here) is hardly perfect, but if anything, it tends to show that my 70% figure overstates the determinative role of formal legal materials.


Justin said...

1) Can we all agree that the purpose of the commerce clause was federalism, rather than to enforce a particular economic policy?

2) Can we also all agree that state-law mandates do not violate any constitutional principle?

If so, what FEDERALISM concern does the individual mandate violate?

IOW, I agree with Koppelman, unless we're really arguing over the definition of frivolous.

Joe said...

I'm unsure what we are "agreeing" with per the first comment. "Federalism" is so vague really.

The basic point to me there is determining what goes in what sphere. I think it patently obvious (guess not obvious enough) ACA covers ground properly in the federal field and don't need to overturn it to have some "limiting principle."

But, well, that has been talked to death. Anyway, I do think a "particular economic policy" was a factor in the Commerce Clause. The clause is by nature largely economic (at least; "commerce" can have a larger definition though as Balkin and Amar noted). So, some sort of economic policy probably is being enforced.

I don't think that gets us that far though. As to state law mandates, I agree as a general matter they don't violate a constitutional principle. Apparently, "we" all can't agree with that. I can think of specific mandates that might. See, e.g., 1A.

Finally, let's assume the premises. Again, where does that take us? The CC is about federalism. Certain mandates for sake of argument might invade the proper line. blah blah blah

On a certain level of generality, yes, the five who think the CC doesn't allow the individual insurance rule here ("mandate" might very well be too loosely applied here) aren't "frivolous." But, I'll grant the broad premises.

Their case is still muy weak. Even if some mandates are unconstitutional etc., this law is very clearly w/i the power in question. The other side is rather wrong here. We are stuck with it now though. It by definition is not frivolous on some level. Sadly.

Bob Hockett said...

On what we mean by 'federalism' here, it might be worth bearing in mind that many, if not most, of those who call themselves 'Federalists' today hold positions more akin to those held by the folk who were called 'Anti-Federalists' at the time of the Constitution's drafting and ratification. 'Federalism concerns' today seems essentially to mean concerns over too much rather than too little federal authority. Had Hamilton or Madison (before taking his reactionary turn near the end of the 18th century)used the term or some cognate expression, they would have been registering concerns about federal impotence and sub-federal state excess.

Ben Alpers said...

My view of these things is certainly colored by: 1) the fact that IANAL; and 2) my general view that c. 90% of everything is politics (and that number is probably even higher when dealing with the operations of the state, including the judiciary). Or to put #2 differently, I'm even less of a legal formalist than you are, Mike.

But I guess I'm a bit hung up on the definition of "frivolous" and on the relationship of frivolousness to what I think is the really interesting question here: why did liberal legal scholars like you underestimate the possibility of the plaintiffs in the ACA Case succeeding before the Supreme Court?

At times I thought you were using “frivolous” to mean “trivially unlikely to succeed before the Court” (i.e. that the two issues in the last paragraph were essentially identical). But a moment’s reflection suggested to me that this couldn’t be the case. If it were, then the issue of the frivolousness of the arguments would be resolved by their acceptance by four or five Justices (depending on how you count). But you do not think the issue is so resolved. Even in light of the outcome of the ACA Cases, you consider frivolousness to be an open question.

So clearly frivolousness has something to do with the intrinsic quality of an argument, not merely its ability to succeed. But if frivolousness is a question of quality, why should a consideration of frivolousness (or non-frivolousness) help us understand why liberals underestimated the possible success of these arguments? Aren’t you then simply assuming that what makes an argument win (or almost win) is its quality? What happened to your 70%?

As I think I’ve written about over on the USIH Blog, my guess is that the best explanation for liberals’ underestimation of the possible effectiveness of the plaintiffs’ arguments against the ACA will be found in a careful exploration of liberal Constitutional understandings (i.e. what liberal scholars believe about how the Court works), rather than in a further exploration of conservative ones. (And perhaps the desire to locate the success of plaintiffs’ arguments in something having to do with their intrinsic quality is a further expression of these liberal Constitutional understandings.)

Joe said...

I don't even know, btw, if "the" basic point is how I should have phrased it. Probably could be said to be more than one.

As to "liberal" assurances here, to be fair, even Randy Barnett gave the Medicaid argument a low chance of passing. OTOH, Charles Fried actually thought that -- not the CC argument -- was a real concern.

"Frivolous" and "chance of winning" are two different things, of course. One factor here was that there was a belief that at least one (more likely Kennedy) justice would decide the law was too big to fail. Other than maybe RFRA, the current federalism movement in SCOTUS has not struck down major legislation in any substantial part.

Orin Kerr has called this "symbolic federalism."

Michael C. Dorf said...

Ben: The Segal/Spaeth book I linked to gives the politics component as in excess of 70%. I rounded down to take account of the potential flaws in their coding.

Now, on the conceptual point, you are right that Andy and I are using "frivolous" to mean something other than "extremely unlikely to persuade the Court." I guess we're using it to mean something like this: "A frivolous argument in a case is one that, without regard to the identity, charateristics, or ideology of any particular judge, appears to be very unpersuasive in light of the extant legal materials, including precedents." So, someone could (as Koppelman did) regard the argument that Congress lacked the mandate power under the Commerce Clause as frivolous until 5 Justices accepted it; at that point, it became non-frivolous because the opinions accepting the argument became part of the new extant legal materials.

Ben Alpers said...

Thanks for the answer, Mike!

I suppose I'm not entirely convinced that it is meaningful to talk about the persuasiveness of any legal argument "without regard to the identity, charateristics, or ideology of any particular judge." Persuasiveness involves a person (or people) being persuaded, and those people are always particular individuals with those particular characteristics etc.

Moreover, in the instance of any case coming before the Supreme Court, we are talking about a small number of individuals whose identity, characteristics, and ideologies are all well known. So even if it were somehow possible to consider persuasiveness absent these things, why would that have been an important thing to do when analyzing the likelihood of the plaintiffs' prevailing in the ACA Case?

Cicy said...

what I called "non-partisan framing"--the tendency of judges to see partisan issues in non-partisan terms, thus blinding them to their own biases. Koppelman's new paper thoughtfully responds to my contentions, although I remain more or less where I was when I wrote the review. I don't have anything to add on this first set of issues.http://fifacoinshome.com/

Cicy said...

they still must get around the N&P Clause. But Koppelman is just wrong to say that the conservatives' argument about the CC is "unmoored" from the constitutional text.http://fifacoinshome.com/

喜洋洋 said...


奇堡比 said...


喜洋洋 said...


meads said...

I agree with Professor Koppelman that the arguments against the individual mandate were frivolous as a matter of Constitutional law as understood under McCullough , the New Deal cases including Wilburn and even under Morrison and Lopez. The argument that individuals self insuring and free- loading when they will and do get sick is not an economic activity is so unrealistic as not to be credible. Thus, their activity is no different than growing wheat or marijuana for self consumption. No one has a constitutional right to free- load and the Government asking that you pay for your inevitable use of the health care system is not an infringement on a constitutional right. For if it was, Massachusetts law would also be unconstitutional. In addition, it is clear that the Federal Govt had the power under the N&P Clause as understood by Hamilton, Madison , Washington and John Marshall. As Professor Koppelman stated , paraphrasing Madison's Virginia Plan, the purpose of the Federal Article 1 power is to legislate where the States are incompetent to address a National issue.Health Care is clearly a National issue effecting all Americans and the American National economy. The idea that the ACA infringes on Federalism is wrong. The ACA is exactly the kind of issue the Federal Govt is empowered by the Constituion to deal with. Having dispensed with these arguments, the others cited by Roberts are Beyond frivolous, we are left with only the personal biases of the Judges to vote as Republican not as Judges. I agree that 4 of the Republican judges should be impeached for a total lack of understanding the text, structure and history of the Commerce Clause and the NPC.

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