August 13, 2011

Oh, look! A liberal is talking about whether something can be "squared with the Constitution."

Normally, law folk of the liberal persuasion mock those who think constitutional interpretation can be done like that. But here's Ian Millhiser at Think Progress writing under the headline "The Eleventh Circuit’s Affordable Care Act Decision Cannot Be Squared With The Constitution."

Millhiser quotes the majority's characterization of its task:
In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from private companies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far-reaching implications for our federalist structure.
Rather than acknowledging the sophistication of the judges' approach to legal analysis, Millhiser says:
This is one way to evaluate whether a law is constitutional, but a better way is to ask whether the law can be squared with text of the Constitution. 
He proceeds to quote the text of the Commerce Clause. (Of course, he doesn't stop there, but goes on to claim that there's virtually no limit to what Congress can do in the name of regulating commerce as long as "it does not violate another textual provision of the Constitution." Note the use of the word "textual," as if he would limit those other constraints to what is written in particular text. The obvious hypo: Could Congress ban abortion using its commerce power? Millhiser? Millhiser? Millhiser? Millhiser?)

47 comments:

DADvocate said...

For liberals the Constitution is an obstacle to be overcome, not a guiding light. How can we get around the Constitution to carry out our agenda? That's the crucial question for a liberal.

virgil xenophon said...

Oxen, Gored: 1 each.

Chase said...

Could Congress ban abortion using its commerce power? Millhiser? Millhiser? Millhiser? Millhiser?)

IF the Supreme Court approves the Individual Mandate, do you believe for one second that a Democrat President and Democrats in Congress would not use that ruling to impose absolutely anything they want?

This is not the stuff of far right conspiracy nuts anymore - this is one Supreme Court vote away from reality.

If anyone wants to scoff at such an idea - Democrats controlling and ordering Americans to absolutely do anything Democrats desire - please explain what will constrain them if the Individual Mandate is approved (found "Constitutional") by the Supreme Court.




Zero.

John Bragg said...

Abortion is easily within the commerce clause. Unwanted babies grow up to have higher crime rates, which has a negative effect on interstate commerce, according to the Violence Against Women Act anyway.

John Bragg said...

"please explain what will constrain them if the Individual Mandate is approved (found "Constitutional") by the Supreme Court."

They will be constrained only by the lawmaking process, the necessity of getting 218 Congressmen and 60 Senators and a President to agree.

Until a fifth justice wakes up on a different side of the bed on a different day.

edutcher said...

You don 't understand. The Constitution is a Living Document.

It means whatever the Lefties say it does in order to advance their agenda.

caseym54 said...

So, can they now force me to "donate" 10% of my income to charity (and penalize me if I don't)? Not as a tax-and-transfer, but as a mandate? Can they also prevent me from choosing a religious charity?

And if this is upheld, does this change?

virgil xenophon said...

And of course what this discussion on this subj really spotlights is the extent to which not only has the SCOTUS become the functional equivalent of a 'super legislature" but the extent to which for all practical purposes almost all aspects of American collective civic and individual personal life is subject to the whims of a single unelected-appointed-for-life man: the functional equivalent of a total autocrat. (although Kennedy would never dream of thinking of himself that way--which is perhaps the scariest thought of all..)

Ann Althouse said...

"Abortion is easily within the commerce clause..."

Abortion is easily within the commerce clause doctrine because it is a commercial activity with a substantial effect on interstate commerce.

Why do people forget that providing medical services is a commercial activity?

Hagar said...

Perhaps some folks need to be reminded that there are reasons that go back a long time in history and reflect a lot of experience, why the Constitution says what it says.

This haggling about the text as such, does not make all that much sense.

Fr Martin Fox said...

Insofar as providing abortions is an activity subject to the commerce clause, the conflict would be with the unenumerated privacy right.

So between a clearly granted power given Congress, something arising from penumbrae produced by emanations, which prevails? Which ought to prevail?

Is it possible the mandate is struck down as a violation of a privacy right?

Is it possible future abortion restrictions are upheld, in part, on the precedent set if/when the Supreme Court upholds the mandate?

Fr Martin Fox said...

Another question:

Insofar as the wording of the commerce clause has failed--from the point of view of those of us who think the feds have long ago overstepped its bounds...

Then how should it be worded? Wouldn't that be a useful constitutional amendment?

Or should it simply be repealed?

n.n said...
This comment has been removed by the author.
hoop said...

People may not tend to pay attention to the commerce end of medical service, but I think that's because we tend to see health as a part of society outside the commerce aspect.

In its own way, it's like mandatory gun ownership in colonial and early state laws. Yes, gun sales were commerce, but the point of the laws was for state defense and commerce was a rather minor concern, if a concern at all.

Going a bit further, the same could apply to anything. Death sentences technically affect commerce as well, even for something so simple as interstate sales of equipment for carrying out the penalty. It's not as high-dollar as parts of the medical industry, but that's an issue of threshold.

And much of medicine does encroach on morality and ethics, which is ultimately the basis for a legal system. So it's not surprising that many medical issues would be debated over their moral aspects rather than their commercial aspects. Abortion, for example, may be commercial by practice, but I think that settling it on its noncommercial issues is far more important. I don't think you can settle for a commerce clause solution to abortion unless you've already decided that the moral question is less important, which typically implies you've already decided that abortion is morally acceptable.

(And I'm really trying to avoid the abortion debate. Nobody will change opinions here. Just saying that I don't think the commercial aspect is particularly weighty. Though it does exist.)

A Conservative Teacher said...

He is a modern-day liberal, which means that he only understands power and using it, and only understands his way of doing things. Throwing logic, other approaches, diversity, and fairness at these modern-day liberals, and they just rant and rage and just get all pissed off.

n.n said...

Maybe the 13th Amendment would be pertinent to the issue of abortion, which is both a deprivation of liberty and an act of involuntary exploitation.

Of course, its relevance would depend on when dignity is assigned to the new human life. The only non-arbitrary and objective assignment would occur at conception. When the process of human development begins, then without incursions and barring any anomalies would complete, followed by the emergence of a new and independent human life from the mother's womb.

I guess the assignment of dignity will remain a matter for philosophical discussion and personal faith.

As for the individual mandate to subsidize medical services, or any act of involuntary exploitation (including taxation), the 13th Amendment is also relevant.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

While taxation is not slavery, excessive (or progressive) involuntary exploitation is effectively involuntary servitude.

At the very least, we should not obfuscate the issue by couching it in expressions with emotional appeal. If we are to respect individual dignity, it would be appropriate to discuss these issues plainly.

William Teach said...

I'm always amused when a liberal quotes the constitution, yet still gets it wrong. The commerce clause gives Los federales the ability to regulate interstate commerce (and commerce between the US, states, and international commerce), ie, commerce between states. There must actually be commerce occurring to regulate it. Yet, Congress has mandated that one cannot purchase health insurance across state lines. So, no interstate commerce occurs.

Furthermore, regulating is not even close to.mandating the purchase.

Daleep said...

No the Congress cannot ban abortion using the commerce clause because it is not in the textual but the sexual penumbra of the constitution.

clint said...

"Could Congress ban abortion using its commerce power?"

Of course not.

That clearly violates the textual provision that says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

Or is it the textual provision that says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

I forget.

But it's obviously right there in the text.

OldGrouchyCranky said...

Another much more frightening effect of SCOTUS finding in favor of Obama and his Obamacare piece of crap is that in reality, SCOTUS would be saying that the Constitution is a meaningless document. Nothing would prevent any government act of any kind then, so why bother to object to anything Congress passed? The implications to that are huge; Actually the end of US!

Terror in the streets probably as a result.

Paul said...

To liberals the Constitution is a 'living document' when they want and a rock solid 'textual content' when they want. And conservatives can go sit at the back of the bus.

And you see what we get from that kind of double-think.

MikeinAppalachia said...

The evolution of the 14th Amendment, ignoring the clear text and the legislative discussion at the time of passage, is just one of the examples of "textual when I want, living when I want" policy.

Anna said...

Speaking of liberals and the constitution:

Obama rips U.S. Constitution
Faults Supreme Court for not mandating 'redistribution of wealth'

Seven years before Barack Obama's "spread the wealth" comment to Joe the Plumber became a GOP campaign theme, the Democratic presidential candidate said in a radio interview the U.S. has suffered from a fundamentally flawed Constitution that does not mandate or allow for redistribution of wealth.

In a newly unearthed tape, Obama is heard telling Chicago's public station WBEZ-FM in 2001 that "redistributive change" is needed, pointing to what he regarded as a failure of the U.S. Supreme Court under Chief Justice Earl Warren in its rulings on civil rights issues in the 1960s.

The Warren court, he said, failed to "break free from the essential constraints" in the U.S. Constitution and launch a major redistribution of wealth. But Obama, then an Illinois state lawmaker, said the legislative branch of government, rather than the courts, probably was the ideal avenue for accomplishing that goal.

In the 2001 interview, Obama said:

"If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be OK

"But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can't do to you. Says what the federal government can't do to you, but doesn't say what the federal government or state government must do on your behalf.

"And that hasn't shifted and one of the, I think, tragedies of the civil rights movement was because the civil rights movement became so court-focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that."

The change sought by Obama, however, simply couldn't be accomplished through court action, the Democrat said in the 2001 interview.

"The court's not very good at it," he said. "I'm not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn’t structured that way."

"You start getting into all sorts of separation of powers issues, the court … engaging in a process that essentially is administrative," he said.

The audio is available here:

http://www.youtube.com/watch?v=iivL4c_3pck&feature=player_embedded

http://www.wnd.com/?pageId=79225

richard mcenroe said...

Funny thing, I've read the commerce clause too. Where does it say Congress has the power to force us to engage in commerce we don't want to engage in?

Daryl said...

Liberal jurisprudence is not complicated:

1 - there is no conceptual limit to the areas government can get involved in (the commerce clause means government can do anything)

2 - BUT there are limits based on personal liberty (1st amendment rights, 4thA rights like abortion, 5thA rights, etc.)

To say that the commerce clause allows the government to create whatever taxes it likes, and impose obligations like buying health insurance, is not a problem for most liberals. They're down with taxing powers and generally don't consider them to violate individual rights (unless, for example, you levied a special tax on abortion or a special tax on hiring defense attorneys)

The liberals are wrong about the scope of federal government power, under our constitution, being limited solely by individual rights. But that doesn't mean their support for Obamacare is inconsistent with support for abortion.

Surely you, a law professor, knew this already.

So to answer your hypo: to liberals, congress has power to regulate abortion under the commerce clause, but that power is limited insofar as it can't be used to inconvenience people seeking abortions. (The Supreme Court has ruled that some inconveniences are acceptable, but to liberals, no inconveniences are acceptable)

SH said...

I keep saying, the health care act violates my rights to privacy and free association.

They claim they are regulating an industry but we all know it is a transparent lie.. they’re regulating us citizens so they can redistribute healthcare and/or take it out of the general economy (where you can choose what to buy and from whom with your own money)…

ThomasD said...

Fr Fox, why would privacy matter at all? Performing an abortion certainly is a medical practice, and medicine certainly is commerce. How could any regulation of medical practice exist at all if it were an unwarranted invasion of privacy?

Hoop, as for laws mandating firearm ownership and militia participation (they were typically one and the same) it is important to remember these were State laws, and (among other things) all pre-date the 14th Amendment.

nevadabob said...

"The obvious hypo: Could Congress ban abortion using its commerce power?"

You're kind of a moron, Ann.

You think the law is to be logical and consistent? Despite all the evidence presented to you throughout your life?

You ignore the evidence. You would be a horrible judge.

A good judge considers the evidence presented befor her and renders a judgement based on the evidence put before her.

I'd suggest that you start doing that.

Soon, you will begin to understand the Democrat Party that you have been a member of all your life (and still are.)

And you will realize who the enemy is.

It is you.

SH said...

clint said...

"Of course not.

That clearly violates the textual provision that says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

Or is it the textual provision that says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...""

Then how did they just put themselves in the middle of my healthcare choices?

MikeR said...

Just saw Orin Kerr post on Volokh that the decision did _not_ accept the activity/inactivity distinction. It just said that allowing the Commerce Clause to include this would (somehow) violate the limitations of the federal government. Or something like that; maybe someone will clarify.

What do you-all think? Is it possible that the Supreme Court will go as far as undoing the current understanding of the Commerce Clause, given that that does seem to be outside its simple understanding?

iqvoice said...

If a Democrat Congress can force us to buy health insurance, then I reckon a future Congress could force us to to buy a rifle, a handgun, $50 per month at the local range, and Ann Coulter's latest book.

The Dems are fools if they think this won't come back to bite them in the ass.

nevadabob said...

The Dems are fools if they think this won't come back to shoot them in the ass.

FIFY

The Ghost said...

"So, can they now force me to "donate" 10% of my income to charity?"

That would be a significant improvement on the current methodology for addressing public interests with tax money.

Michael said...

I don't think Congress could stop abortion, that's a sacred right.

What they surely could do, as the new masters of your body and health condition, is order you to have one,

Augustine said...

The commerce clause decisions going back to the initial creeping expansion of federal power have never made any sense in the context of a federalist system. It skews the nature of the relationship between the Federal and State governments. I remember as a young law student trying to attach some rational thesis to the string of cases interpreting the commerce clause and thinking I was stupid and missing some obvious truth because I couldn't come up with one. I know now that my instincts were correct - there is no rational thesis. The cases were a pure federal power grab at the behest of Roosevelt. There is no other intellectual cohesive explanation for these cases.

Chef Mojo said...

What they surely could do, as the new masters of your body and health condition, is order you to have one.

Well, I'm sure Tom Friedman would be down with that...

TTB said...

"I don't think Congress could stop abortion...
What they surely could do...is order you to have one"

Drat! You beat me to it. Choosing not to have an abortion is an economic decision. It affects the interstate market for medical services and for the goods which are used in providing those services.

Even a purely non-commercial, purely intra-state abortion affects interstate commerce. Just like growing wheat for your own family's use or for feeding to your cattle, which may or may not later move in interstate commerce. Just like growing pot for non-commercial intrastate medical use.

Using the Commerce Clause to force you to have an abortion is the far more interesting issue. Just ask the Chinese.

Chaz said...

Dear Ann Althouse.... it's time I explained the left to you in a nutshell: they only desire power. They do not respect the constitution nor the notion of personal god-given liberties.

Their only principles are thus:

[1] anything that allows them to lay claim to and hold onto power is 'good'.

[2] anything that obstructs their ability to claim more power or hold on to what power they have is 'evil'.

To understand these two principles is to understand the left in it's entirety. They are the distillation and logical end of the 'us vs them' mentality.

To say or think otherwise is to fool yourself and others.

Mike said...

Of course Congress could ban abortion based on the Commerce Clause. After all, dead fetuses that do not grow up to be producers/consumers have a material impact on interstate commerce.

So could Congress override the 1st Amendment based on this kind of Commerce Clause interpretation? I don't see why not, since uncontrolled speech has a considerable effect on interstate commerce.

"That's some catch, that Catch-22"

Fred said...

I think the law should be pulled out of my butt, and not the butt of Anthony Kennedy.

What makes Anthony Kennedy's asshole so damn special?

Erik said...

"They will be constrained only by the lawmaking process, the necessity of getting 218 Congressmen and 60 Senators and a President to agree.

Until a fifth justice wakes up on a different side of the bed on a different day."

And here I was thinking we were a nation governed by law, not by men. So much for that. I'm not a hyperbolic person by nature, but this sort of thing is fundamentally unnerving.

Western political stability owes a great debt to the principle of the rule of law. Progressives do not know that with which they fuck when they so easily toss out the single most important development in Western political philosophy.

The limited democracy we have is only saved from mob rule by that piece of paper over in the National Archives and the esteem in which the American people hold it.

Kirk Parker said...

"Abortion is easily within the commerce clause doctrine because it is a commercial activity with a substantial effect on interstate commerce... Why do people forget that providing medical services is a commercial activity?"

No more readily than they forget the huge chasm between current CC doctrine and what the CC actual says (hint: the words and the concept "substantial effect on" are entire absent.)

William Teach is apparently not "people", though (sorry, buddy), since his 12:58pm comment totally gets is: that is a legitimate use of Congressional authority under the CC.

Jim in Texas said...

Hmmmm, wouldn't establish a "one child policy" similar to China's be more "humane"?

Any reason why Congress can't do that?

Doug said...

Here's a hypo: Can Congress use the Commerce provision to bad breast feeding, sine, in a very real and basic sense, it is the activity of production, distribution and consumption. And breastfeeding mothers are denying formula producers a rightful share of their market.

If Congress has the right under the Commerce Clause to require citizens to purchase a product (health insurance) then they have the right to deny citizens the privilege of using other products not on the market (mothers milk). After all, isn't that what Wickard v. Filburn was about?

Doug said...

Here's a hypo: Can Congress use the Commerce provision to ban breast feeding, since, in a very real and basic sense, it is the activity of production, distribution and consumption. And breastfeeding mothers are denying formula producers a rightful share of their market.

If Congress has the right under the Commerce Clause to require citizens to purchase a product (health insurance) then they have the right to deny citizens the privilege of using other products not on the market (mothers milk). After all, isn't that what Wickard v. Filburn was about?

Mike said...

It seems providing an abortion is definitely a commercial activity. Perhaps prohibiting doctors from offering abortions is permitted. It's hard to imagine how that is any more an infringement on privacy than say prohibiting a doctor from performing a procedure or prescribing a drug that is not approved by the FDA.

Sigivald said...

Does he forget that the text references "commerce [...] among the several states"?

The text itself says nothing at all about any of the complete hand-waving crap about secondary effects, "substantial interests", penumbras, or other insipid bullshit that's ruined the Commerce Clause over the past decades.

(I mean, Raich? That decision simply cannot be justified by the text of the Commerce Clause.

Nor can he expect me to buy, with a straight face, that a mandate to purchase something in my state of residence is somehow "regulation of commerce among the several states".

He can frankly go to Hell for even trying that one.

...

I seem to have lost patience with his sort, I note.

Oh, well.)