Friday, June 29, 2012

Will Sandy Levinson Teach NFIB v. Sebelius to Eastern Europeans?

[as-of-yet un-proof-read]

The Supreme Court's decision in the Affordable Care Act cases came down today. While I haven't had a chance to read the 100+ pages of opinions, anyone familiar with the case already knew what the opinions would contain, it was merely a question of which arguments would command a majority and which would command a minority — and so I'm going to give some initial thoughts on Chief Justice Roberts's decision despite not yet having read it.

One of the first things I am reminded of is an article by Professor Levinson entitled "Why I do not Teach Marbury (Except to Eastern Europeans) and Why You Shouldn't Either."

The gist of the article is that Marbury v. Madison, as traditionally taught, is not a terribly effective case. The case is said to have established the power of judicial review, but in fact, that power was assumed in the Federalist papers and had already been asserted by other courts. Furthermore, the actual legal analysis in Marbury is exceedingly specious — though not in a way that a first-year law student is likely to have the context to understand or identify. For these reasons, Professor Levinson teaches his students using legal controversies that actually demonstrate difficult and contested principles of constitutional law.

But Levinson gives a caveat. He teaches Marbury when he lectures to students in newly emerging Eastern European democracies. The reason is that Marbury comes at the culmination of an interlocking set of constitutional crises that rocked the young American nation. Difficult conceptual and philosophical questions about the relationship between the common law and the federal republic became politically charged and polarized along party lines, famously resulting in the passage of the Alien and Sedition Acts by the Federalist-controlled Congress.

The conflict was effectively resolved when the Federalists were ushered out of power in a landslide election, but this only generated further issues. The young republic lacked an unwritten norm of alternation of power between parties and the concept of a loyal opposition party — indeed it lacked even a model to look to for such a norm. Having been defeated, but not yet removed from power, the lame-duck Congress passed a new judicial act, creating numerous new federal judgeships, which it stocked with Federalist supporters — the so-called Midnight Judges Act. The lame-duck Congress was also tasked with choosing Jefferson or Burr, who had tied in the electoral college, to be the next President; and they toyed with leaving it unresolved, so that Adams, or, in a twist, perhaps even Chief Justice John Marshall, might act as President. The retaliation by the rival Jeffersonians was severe. They attempted to impeach Justice Chase, and they repealed the Midnight Judges Act, ousting many Federalist-appointed judges who should have enjoyed life tenure. It was against this backdrop that Court was asked to order the Secretary of State to deliver a commission to a Marbury, who had been appointed to a judgeship by the same lame-duck Congress.

Professor Levinson teaches the case to Eastern Europeans, he says, because they can understand the context of this story better. It is a story about the dilemma faced by a judge in a young transitional regime. Marshall concocts a tenuous legal rationale for declaring that the Court has the power to invalidate laws and to order executive officials to do things while simultaneously avoiding doing so in the case at hand. He hands Jefferson a political victory in order to secure a beneficial precedent and legitimacy for his institution.

Certainly today's Court faces nothing so dramatic, but it is plausible that similar (though diminished) pressures still exist, and that they may manifest in similar effects. I note that the outcome of the Affordable Care Act cases awards a political victory to progressives, but, at least given that fact, establishes precedents that are remarkably friendly to conservatives, even though the rationale for addressing those issues is a bit of a stretch.

So entertain a thought experiment with me: is there a parallel to be drawn between Chief Justice Marshall's famously "creative" opinion and today's decision by the present Chief Justice?

In terms of policy, the outcome of the Affordable Care Act cases is a setback for conservatives. Conservatives had two goals in this litigation: they wanted limits placed on federal power, but they also wanted to see constitutionally-sound aspects of the Affordable Care Act struck down as a by-product of announcing those limits.

There was never any question that something very similar to the Affordable Care Act could have been passed without being vulnerable to a constitutional challenge, and that conservatives would still have objected to it on policy grounds. If significant portions of the law had been struck down along with the constitutionally-vulnerable provisions, Congress would not have been judicially constrained from re-enacting the Affordable Care Act, but the political will to pass it would have been gone. Purely in terms of substantive health care policy, then, this decision is a win for progressives and a loss for conservatives.

In terms of legal precedent, the outcome of the case is considerably better for conservatives. Given that the individual mandate was upheld, the actual holdings of the case are the best that can be imagined. Indeed, on the whole, conservatives might find the actual holdings to be better than had been expected even if the Court had struck down the mandate.

First, a majority of the Court endorsed the challengers' theory on the limits of Congressional power under Commerce and Necessary and Proper Clauses. This is highly significant for two reasons: first, because it was always a difficult argument to advance, and second, because it represents the culmination of a significant shift in our understanding of the limits on enumerated powers.

There are essentially two ways of looking at the Court's expansive New Deal-era precedents concerning the limits of enumerated powers. One view is that these precedents are either faithful to the underlying principles of constitutional law, or that precedents simply are constitutional law. In this view, future cases should apply the spirit of these New Deal precedents, the result of which is that the federal government has effectively unlimited power. The second view is that these precedents are not faithful to the underlying principles of constitutional law, but have become too settled to overturn. In this view, future cases should be apply the letter of these New Deal precedents, the result of which is that the federal government can keep doing things it has already done, but that when the Court can draw a line between what it has previously allowed and what Congress wants to do, it should cabin its old and incorrect precedents and refuse to allow the expansion of federal power.

The difficulty for the challengers in this case was that it required the Court to accept both that the second view was correct, and that the line that they proposed to draw between the mandate and previously sanctioned exercises of federal power was a reasonable, workable line. Before this case, no one knew whether there were even five Justices who accepted that the view that the New Deal precedents should be cabined. And even if there were five, they would all need to be convinced that the challengers' proposed line-drawing should be accepted. And the word I mean really is "should," not "must." This type of cabining of erroneous precedent is fundamentally a matter of judicial prudence, not textual interpretation. One cannot really claim that it is mandated by the Constitution, since the Constitution is (understandably) silent on the issue of when it should or should not be trumped by erroneous precedent.

That five Justices found the mandate to fall outside the commerce power is unprecedented confirmation that a majority of the Court really does view the New Deal precedents as wrongly decided, and really does approach Enumerated Power issues with the aim of cabining those precedents. The Court, in Lopez, and in Morrison, has given indications of this before, when the Justices limited the "substantial effects" doctrine to economic matters. But in each of those cases it was possible to conceive of the results as mere interpretations of the previous doctrine. Furthermore, in Raich, the Court was asked to carve exceptions into its existing precedents, and it refused. This case, then, represents the first time the Court has unambiguously held an act of Congress to be outside the Commerce power simply because the Court could draw an intelligible line cabining the Court's prior precedents.

Second, a large majority of the Court struck down a provision of the Affordable Care Act which would have forced States to participate in an expansion of Medicaid or else forego funding for both the expansion to the program and the existing program. Many observers thought that the State challengers would lose badly on this issue, and the fact that they did not should be welcome news for conservatives. The Court has long said that there is some theoretical limit to what Congress can do to use its power over the purse to coerce States into enacting federal policy, but that limit has seemed very elusive. The high mark for any limit was Justice O'Connor's lone dissent in South Dakota v. Dole, which would have found that the program at issue failed under the Court's test. Not only has the test been seen as toothless, the challengers actually need the Court to expand upon that test in order to prevail.

That the challengers in this case did succeed is a major development. A theoretical limit that has never applied is easy to dismiss or manipulate. A limit which has been applied is much harder to turn into a nullity. It is quite possible that, having been applied, this doctrine will grow into a real limit on federal power over the States. This issue is less glamorous that the individual mandate, but on a practical level, it is much more important, because federal coercion on the States is frequent, significant, and often invisible.

Third, it is not meaningless that the mandate was upheld as an exercise of the taxing power, rather than the spending power. When Congress must admit that it is engaging in taxation (which it must now do if it passes similar laws) it will be subject to significant political constraints in the form of public aversion to taxation. That aversion may even bear fruit in this election now that Republicans will be able to force Democrats to defend the law as a tax.

The Court's holding will also have consequences for the study of law. Conservatives have argued both that existing precedents interpreting the Tax Clauses are overly permissive, and that even under these erroneous precedents, the individual mandate is not a tax. Though they are now little-studied, the Court has actually issued quite a number of decisions on the limits of Congress's taxing power. These decisions came during the last era in which the Court was still imposing significant limitations of Congress's power under the Commerce Clause, and they have lain largely dormant during the era in which the Court has applied a broad vision of the commerce power.

Because there are more of these precedents, the holding in this case has less power as a precedent. Accept for a moment the premise that under existing precedents the individual mandate really is not a tax, and that if all the Justices were truthful, a majority of them would agree to this. Because there are many Tax Clause precedents, that hypothetical majority could plausibly strike down similar laws in the future simply by appealing to the other precedents. The same could not be said of Commerce Clause jurisprudence. There are very few cases striking down laws as exceeding the Commerce power, and they are each very different cases, so every new precedent counts for a lot. In short, if a Justice felt politically compelled to achieve a particular result, but wanted to minimize the precedential impact of the decision, the Taxing power, and not the Commerce power, would be the way to do it.

At the same time, the invocation of the taxation power to uphold a piece of federal legislation will draw a greater spotlight to the Court's taxation power cases. Currently, most 1L Con Law classes either entirely omit discussion of these cases, or else relegate them to a few paragraphs of background reading. The attitude is that they will simply never be relevant, and so the result is that students never learn the history of the expansion of the taxation power during the first half of the twentieth century.

The same could once be said of the expansion of the commerce power during roughly the same era. The limits of the power were never litigated, and so it was enough to say that everyone assumed there basically were no limits to the power. That changed when the Court struck down the laws at issue in Lopez and Morrison. Students now grapple with understanding the expansion of the commerce power, and that means they are exposed to many a case whose reasoning withers under scrutiny. Even students who are not conservatives now accept that there is something wrong with this, and that shift in the legal culture probably facilitates the shift in thinking about the Commerce Clause that has occurred on the Court and with the public.

The fact that the Tax Clauses have become relevant again should mean that students will start to study the taxation power precedents. It will take time, of course, but if more cases hinge on the limits of the taxation power, then the legal academy will have no choice but to include them in the curriculum. It is not implausible to think that shining a light on these cases may lead to a reaction against them, which could give energy to efforts to cabin or contract these precedents.

It isn't possible to know why the Chief Justice voted to uphold the individual mandate, or to know why he chose to uphold it through the taxing power. Nor is it possible to know whether the other four Justices who joined that reasoning would have rested their arguments upon that ground if there had not been a fifth vote to uphold it. Those who believe the taxation power argument is a strong one are unlikely to be convinced by theories about an ulterior motive. But it must be said that the taxation clause argument was unexpected. The lower courts did not take the argument seriously, and most observers believed the Justices were skeptical of it at oral arguments. And if the premise is granted that there is a reason, other than legal merits, why the Chief Justice voted to uphold the mandate, there are reasons readily available.

Whenever the Court decides high-profile political issues, it faces some pressure to avoid the appearance of making its decisions based upon politics. The Chief Justice, particularly, may have been worried that a decision to strike down a signature piece of Democratic legislation, upon a vote of five Republican appointees against four Democratic appointees, would have damaged the legitimacy of the Court.

The Chief Justice may also have felt that such a party-line vote would lead to a fragile precedent, which would be viewed as nakedly political, and thus easily abandoned by future Justices. It need not go unremarked that Roberts did not need to opine that the mandate could not be upheld under the Commerce Clause in a decision upholding it on another ground. But it may be that Roberts wanted reach this holding and felt that a newly recognized limit on the Commerce Clause doctrine would be better protected by a decision which ultimately upheld the mandate.

In other words, the Chief Justice, like another Chief Justice before him, may have upheld an action of the political branches in an attempt to more fully assert the ability to impose limits on the political branches in the future.

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