March 29, 2012

Some Observations On Michael Kinsley’s Column On ObamaCare’s Constitutionality

Now I always liked Michael Kinsley back in the day as he slugged it out with Pat Buchanan on CNN. I even found myself agreeing with him from time to time. His latest column, (H/T RedState) runs off the rails. Let’s take a look at how as we give it a good fisking.

Supreme Court justices, like anyone else, sometimes change their minds.

True, there is stare decisis, the principle that they shouldn’t change their minds too often. Reason: If you expect citizens and the government to obey the law, they need to know what the law is and will be. Also, it’s only fair to treat people in similar situations similarly.

But stare decisis is not a hard-and-fast rule. There have been some famous changes of heart and/or mind, such as Brown v. Board of Education (1954), which reversed Plessy v. Ferguson (1896) and declared racial segregation unconstitutional. Then there’s Lawrence v. Texas (2003), which overturned Bowers v. Hardwick (1986) and invalidated laws against homosexual sodomy. It is generally considered that in both of these cases, the court got it right the second time.

Now let’s think about this. As Kinsley points out, stare decisis is not an absolute principle. Courts can and do get it wrong, and it is arguably more important to get it right (bring our nation’s jurisprudence into alignment with the Constitution) than it is to remain consistent (stick with a flawed line of decisions because they were decided). Where Kinsley and I would agree is that overruling a precedent should be rare.

But I would like to point out that Kinsley gets it wrong in his assessment of Brown and Lawrence. In 1954, it was not generally conceded that the Supreme Court got the decision correct – look at the campaign of massive resistance that followed. And as for Lawrence, we are still fighting the battle on issues like gay marriage. With Brown, it took years for the decision to become accepted – and with Lawrence, the full implications of the decision are still being mapped out. Besides, a later argument made by Kinsley undermines his own argument here.

If the court ultimately rules that President Barack Obama’s health-care reform law is unconstitutional, it will be a reversal even bigger than Brown and Lawrence. And there will be no comforting consensus that the court has finally got it right.

Now I find it hard to accept either of those two assertions. First, I don’t think that a ruling against the not-yet-fully-implemented ObamaCare statute would be a bigger deal than the undoing of a century of segregationist policies – and given that it took the remainder of the 1950s and much of the 1960s for the consensus to form around Brown, I don’t see where the lack of consensus on this one will be terribly harmful.

Ever since Wickard v. Filburn (1942), with only a couple of minor exceptions, the courts have upheld the use of federal power under the Commerce Clause, which gives the federal government the authority to “regulate commerce.” Even the 1964 Civil Rights Act is considered constitutional as a regulation of commerce.

Now let’s be honest – there are some real problems with Wickard. Indeed, I recall reading Wickard as a graduate student and thinking the decision was absolutely nuts. But setting aside the argument over the merits of the decision in Wickard, Kinsley runs into the problem that the exceptions have not been minor. And what they have established is that the Commerce Clause is as much a limitation of Congressional power as it is a grant of federal power.

Now, maybe the court has been wrong all this time. Maybe the federal government’s authority under the Commerce Clause is much narrower. Maybe that authority doesn’t extend to requiring individual citizens to have health insurance or pay a fine. But if so, it is not only the future of Obamacare that will suddenly be shaky. Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act. It includes laws protecting the environment and consumers.

Basically anything the government does that has ever been justified by the Commerce Clause will be open to challenge. For the sake of their own sanity and summer recesses, the justices ought to proceed cautiously.

Now I agree that the justices should proceed cautiously before overtuning an entire seven decades of Commerce Clause jurisprudence. But the reality is that such a decision is not necessary. It is quite clear that the Court could establish a limiting principle – drawn from preexisting precedent – that would indicate that this particular legislation is a step too far. After all, the current legislation does not regulate commerce that is voluntarily engaged in by Americans; it forces Americans to engage in commerce as a condition of being alive. That would seem to be a bridge too far – and would not necessitate the overturning of cases in support of such things like the Civil Rights Act (which could likely stand based upon powers granted by the Fourteenth Amendment to guarantee the states respect the rights of all citizens, which would clearly necessitate undoing the effects of state-mandated).

Conservatives also ought to pause and consider all the lectures they have delivered over the past half-century about the need for judicial restraint. Whether authorized under the Commerce Clause or not, all of these laws -- including Obamacare -- were enacted by the democratically elected institutions of government. For the Supreme Court to call them all into question would be a power grab far beyond anything the court has attempted during the long era of conservative griping on this point.

And the suggestion I offer above is a restrained course of action. But Kinsley does two things in this paragraph that ought to concern us all. First, he argues that there really should not be any limitation whatsoever on the power of the federal government to regulate our lives – even if there is no grant of such power in the Constitution. That is a recipe for authoritarianism.

Beyond that, liberals like Kinsley (indeed, liberals including Kinsley) have never taken such a tack before in demanding that the enactments of “democratically elected institutions of government” be so blindly deferred to by the courts. Indeed, the two decisions cited above – Brown and Lawrence – both involved the overturning of laws enacted by “democratically elected institutions of government”. What’s more, even if the courts had systematically undermined the pro-segregation Plessy v. Ferguson decision with several decades of decisions nibbling at the corners which had rendered it a dead letter by 1954, the decision in Lawrence overturned the sort of laws that had been consistently viewed as within the authority of legislatures to pass since the earliest days of the American Republic (and even before its founding). Indeed, Kinsley would find himself arguing against most of the major decisions of the Warren Court if he truly believed what he argues here.

Whenever liberals argue stare decisis, conservatives understandably get suspicious. In theory, it’s a pretty conservative doctrine. It says, things as they are should stay as they are. In practice, conservatives complain, it works like a ratchet: Liberals, when they’re in control, invent new rights, and then conservatives, under stare decisis, are supposed to do nothing about them when their turn comes. But the fact that courts have been upholding legislation under the Commerce Clause for seven decades with virtually no debate does make it seem unlikely that the whole thing has been a giant constitutional misunderstanding.

Of course, Kinsley invents a strawman here. Nobody (at least virtually nobody) is arguing for the overturn of seven decades of Commerce Clause jurisprudence. Nobody of any stature is arguing that the Court should hold that the Commerce Clause is a dead letter and that Congress has virtually no power to regulate interstate commerce. But when a statute like is at work here stretches the limits of the Elastic Clause to its breaking point, it is appropriate for the judicial side of the system of checks and balances to kick in.

In 1993, the first year of the Clinton administration, Hillary Clinton was assigned by her husband, Bill, to design a health-care reform plan. The centerpiece of the plan she came up with was an employer mandate. That is, there was a requirement that employers provide health insurance to their employees or pay a fine.

The opposition to Hillarycare from Republicans was ferocious, just like their opposition to Obamacare more recently -- and in the Clinton case, the opposition was successful. They threw everything they had at her. They got a judge to rule (later reversed) that her plan was illegal because it had been partly designed in private meetings.

One argument they did not make was that Hillarycare exceeded the government’s powers under the Commerce Clause of the Constitution. (Search the New York Times for all of 1993 and 1994. There is just one buried and dismissive reference to the possibility of a Commerce Clause challenge in an article about half a dozen possible legal strategies for challenging Hillarycare.) Is it possible that requiring people to buy their own insurance is unconstitutional but requiring owners of companies to buy other people’s insurance for them would have been perfectly OK?

Here is Kinsley engaging in a little bit of sleight-of-hand. He jumps into his time machine and takes us back to the 1990s, and proceeds to attack conservatives for not dealing with the constitutionality issue then. The thin is, there was no need to deal with constitutional questions at the time. The litigation on the issue had to do with open meetings, public records, and other issues related to a commission that was to design legislation, not over a statute that had been enacted into law. Indeed, HillaryCare was defeated in the Senate in 1994, and the GOP landslide that November guaranteed that the proposal would not even be considered in the future. The constitutional question was not ripe for consideration.

During the decades it took for the court to come to its senses about segregation and sexual privacy, there were always lots of people on both sides of the arguments. By contrast, as Dahlia Lithwick points out in Slate, the notion that health-care reform with an individual mandate might be unconstitutional was virtually never heard of until the bill passed and the Vast Right-Wing Conspiracy went to work. Professor Randy Barnett, the intellectual father of the Commerce Clause argument, didn’t really start churning out scholarship on the subject until 2011. During the whole debate over Obamacare, it seems, nobody noticed that it was unconstitutional. Now every conservative politician and pundit finds it not just unconstitutional but obviously so.

Well, that isn’t quite true. But even in 2010, there was not an actual law to challenge. The focus was on keeping the law from being passed. Besides, there really wasn’t a bill to examine during the process – we were told by Speaker Nancy Pelosi that the bill would have to be voted on and passed before anyone would actually know what was really in it. In the end, the bill passed by the slimmest of margins – and over the vocal objections of the American people, who as in 1994 responded to the unpopular legislation by punishing its supporters in the November congressional elections. And once there was an actual statute in place, it was possible for the legal challenges to begin – legal challenges which included, in part, constitutional challenges.

Which leads us to this non-sequitur conclusion.

It was during the Hillarycare debate that Stuart Butler of the conservative Heritage Foundation first proposed a health- care plan based on the individual mandate. Butler says today: “I’ve altered my views on many things. The individual mandate in health care is one of them.” There’s no stare decisis at the Heritage Foundation, apparently.

I'm sympathetic with Butler here -- if you had asked me 25 or 30 years ago what I thought about healthcare, you would have gotten advocacy of something akin to Britain's NHS. After all, I had been raised in a military family and had never known what it was to pay to see a doctor or get a prescription. Only after i got out on my own and discovered what it meant to have medical care not provided on an assembly line did I understand why that model was inferior. And as i saw such care eliminated for even military families because of the high cost to the government, I recognized the problem that providing such care would be in terms of cost containment.

Similarly, the Heritage Foundation is not a court – it is a think-tank. Over the last two decades there has been additional scholarship produced and additional ideas put forward. It is therefore no surprise that some who may at one time have considered some sort of individual mandate a good idea might have, over time, have come to recognize the problems with such a plan from both a policy and constitutional point of views. While Kinsley wants to discredit opponents based upon the anecdote regarding a single man working for a single entity, his effort fails. What he instead shows is that those with active intellects can change their policy prescriptions over time – and that they are not prisoners of a static ideology like Michael Kinsley.

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