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.