Defending the Individual Mandate
Robert Pear has a piece in the Sunday Times about the administration’s defense of the health reform law’s individual insurance mandate. The headline—Changing Stance, Administration Now Defends Insurance Mandate as a Tax—has a bit of a “gotcha” flavor to it, but that’s fair enough. The story itself discusses constitutional challenges under both the taxing power and the commerce power, but it doesn’t leave its readers with a clear sense that these are two separate issues; and it leaves out one obvious but crucial piece of context: the government only needs to win one of the two arguments for the law to be upheld. Congress doesn’t need to act under both the commerce clause and the tax clause to create a valid law. One source of constitutional authority will do. Lack of clarity on that point and conflation of the two constitutional issues may leave readers with the feeling that the law’s challengers and defenders are evenly matched. They’re not.
As I’ve written many times before, the argument that the individual mandate exceeds the commerce power is not frivolous and may even be a close call. The weight of Supreme Court precedents probably favors deference to legislative judgment, but there are opportunities aplenty for the Court to distinguish the issue from prior cases and to articulate a new rule defining the outer bounds of the commerce power.
But while the commerce clause argument gives the mandate’s challengers a leg to stand on, the taxing and spending clause does not. Congress’s power of taxation is limited only by the requirement that any tax laid be conducive to the general welfare; and Congress decides whether a tax is conducive the general welfare. Pear’s article is fine up to this point. But then we get this:
Opponents contend that the ‘minimum coverage provision’ is unconstitutional because it exceeds Congress’s power to regulate commerce.
And that’s followed by Orrin Hatch and various other conservative politicians’ statements about mandates exceeding the commerce power, followed by the administration’s response to the commerce clause arguments. But not another word about the taxing power.
And that’s the problem. The article makes it sound like the administration has the upper hand on the taxing clause (a.k.a., the “general welfare clause”) argument, but the challengers are still in the fight and coming out swinging with their commerce clause argument. But it’s not really like that. Because you can’t answer a general welfare clause argument with a commerce clause argument. And if the government wins on either issue, the fight is over.
What’s more, not only does the article fail to alert readers on that decisive point, it also glides right by this essential observation: that the challengers have no legal argument at all to dispute the validity of the mandate as an exercise of the taxing power.
It’s as if the administration is arguing that Congress can get 2 by adding 1 + 1 or 3 + -1, and the challengers are responding that negative numbers don’t count.
Life Tenure
Matthew Yglesias wants to do away with life tenure for Supreme Court justices:
the practice of giving justices lifetime appointments strikes me as deeply unsound. Concerns you might have about justices being unduly influenced by political or financial considerations could be easily met by giving justices a single, non-renewable term of 9 or 10 or 12 years plus a decent pension.
The problem with the life tenure system is that it allows the idiosyncrasies of the justices (and all federal judges to some degree) to trump institutional norms and enshrines those idiosyncrasies, potentially, for decades. On the other hand, long-serving justices bring a measure of stability and predictability to the Court, both of which are central to the credibility and legitimacy of the rule of law itself. It’s just that we sometimes get the wrong kind of stability and predictability—the kind that preserves bad law. (Though it’s often good, paradoxically, for the courts to preserve bad law—because it’s ultimately the legislature’s job to debug the legal system, and the more the legislature leaves debugging to the courts, the less accountable the legislature will be for failing to iron out kinks in the law.)
A judiciary that’s more committed to institutional consistency than to the ideological cult of the Court, is one that will comport better with the institutional roles of Congress and the president. Judiciary reform could do that, but the big and obvious problem is implementation. The fixed terms that Yglesias envisions are, on their face, patently unconstitutional. But there are ways to achieve judiciary reform without amending the constitution—but they’ll have to wait till tomorrow.
The Meaning of Miranda
Senator John McCain said yesterday that it would be a serious mistake to read Miranda rights to suspected terrorists. McCain’s virtual comrade-in-arms, Senator Joe Lieberman, thinks we should strip suspected American terrorists of their U.S. citizenship so that they would not enjoy the constitutional rights accorded to citizens.
Here’s the thing about Miranda rights: they are not actually bestowed upon the suspect by reading them. They are rights that the suspect already has, just by virtue of being a suspect in a criminal investigation, and they apply whether they are read or not.
What Miranda does is to construct a presumption that statements given to police while the suspect is in custody were not voluntarily made unless the accused has been informed of his right not to give evidence against himself. It is an application of the Fifth Amendment‘s protections against self-incrimination:
[N]or shall any person…be compelled in any criminal case to be a witness against himself….
A couple of points here: First, the Constitution accords this right to any person, not just citizens. Second, whether certain constitutional rights must be accorded to suspected terrorists is not really a matter of executive discretion. It’s a question for the courts. Miranda rights are not “optional.” The Miranda warnings are optional, in a sense, but if law enforcement opts not to give them, the courts may opt to exclude the accused’s statements from evidence. The court may further exclude the “fruits” of investigative leads derived from the accused’s statements, if it appears the statements were made involuntarily. So, while informing the suspect of these rights may make him less forthcoming, failing to Mirandize him makes it substantially more likely that the evidence obtained will be excluded from prosecution and, thus, more likely that the suspected terrorist will not be convicted.
I think there are some arguable points about the merits of Miranda. But it seems like Miranda hawks (or peacocks?) like McCain and Lieberman are really objecting to the underlying rights accorded to the accused, not to the reading of those rights.
The Individual Mandate and the Limits of Commerce
Estimable commentators (Yglesias, Volsky) have been somewhat hasty, I think, in concluding that the general authority of Congress to regulate insurance under the commerce clause also supports its imposition of the individual mandate, which is, in a sense, a regulation of the uninsured. So let’s hash it out again a bit more methodically.
In the Supreme Court’s customary formulation of the scope of the commerce power, Congress may regulate: (1) the “channels” of interstate commerce, (2) people and things (“agents” and “instrumentalities” in the lingo) in interstate commerce, and (3) “activities that substantially affect” interstate commerce.
In its broadest sweep, the commerce power may also reach even (4) noneconomic, local activities, if doing so is necessary and proper to a general scheme of interstate-commerce regulation. Even Justice Scalia, bane of liberals, endorsed this relatively expansive view of the commerce power in Gonzales v. Raich (2005).
In order to regulate anything under the commerce clause, Congress must act in one of these four categories. The individual mandate is a regulation that targets individuals without insurance. Such individuals are not (1) channels of interstate commerce. Nor are they (2) agents or instrumentalities of interstate commerce with respect to health insurance. By definition, the uninsured are people who are not participating in health-insurance markets.
That leaves (3) and (4). Certainly the uninsured substantially affect the insurance markets. And certainly the individual mandate is integral to the PPACA’s comprehensive scheme of health-insurance regulation. But here’s the nub of it. Both (3) and (4) allow Congress to extend its reach to certain “activities”—namely, those that substantially affect commerce and those that must be regulated to give effect to a general scheme of regulating interstate commerce.
Is being uninsured an “activity”? I would have to say no. Buying insurance is an activity. But not buying insurance is how you describe someone who is not engaged in the activity of buying insurance. It’s not just another way of buying insurance. It would be perverse if not doing X were the legal equivalent of doing X.
It seems to me that we should distinguish between an activity (which can be regulated) and a status (which cannot). Lacking insurance is not something you do. It’s a status. And it’s not the kind of status you obtain as a consequence of doing something else—something that can be regulated. So it’s not like being an uninsured driver, where the status requirement applies only after you engage in the activity. (State law auto-insurance mandates are a common, but unfortunate analogy to the federal health-insurance mandate. The states are not limited by the commerce clause and can regulate on the basis of status, as long as they do not violate the Fourteenth Amendment’s equal protection clause.)
Maybe there is some other activity on which to predicate the health-insurance status requirement. But if there is, it’s not obvious. For example, you might suggest that consuming healthcare resources is a regulable activity. And maybe it is, but it’s often not a freely chosen activity. It’s hard to say whether that matters or not for constitutional purposes.
But, to be clear, for practical purposes none of this should matter! The power of Congress to tax and spend to promote the general welfare should be a more than adequate basis for the individual mandate.
Constitutional Challenges Part 2: Health Reform and the Commerce Clause
There is no doubt that the federal government may regulate health insurance under its authority to regulate interstate commerce. And it can regulate not only the interstate aspects of the insurance markets—not only the transactions that cross state lines—but it can also regulate any activities which substantially affect interstate commerce.
Indeed, as the following passage from Justice Scalia’s concurrence in Gonzales v. Raich (2005) suggests, the regulation of commerce may even reach non-economic activity, if doing so would be integral to a comprehensive scheme of regulation of interstate commercial activity:
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.
Igor Volsky cites this passage as evidence that the Affordable Care Act (ACA) is unlikely to be overturned in court, which is true, though not necessarily because of the broad scope of the commerce power. As broad as that power is, it has limits. The arch of major commerce clause caselaw and scholarship has largely been about what counts as economic activity, or what counts as affecting interstate economic activity. But the individual mandate raises an even more basic question: what counts as “activity”?
It seems to me plausible that the Court would say something like this: In order for individuals to be brought within the sphere of federal regulatory authority, those individuals must have taken some relevant, positive action—they must do something—that triggers the application of the regulations to them. Something more than just breathing or walking. Something that requires affirmatively choosing to participate in some aspect of the activity reached by a comprehensive regulatory scheme.
Scalia distinguishes Morrison and Lopez (two major cases from the 1990s which struck down federal statutes as exceeding their authority under the commerce clause) from Raich (which upheld federal regulation of purely intrastate activity) by noting that the laws concerned in Morrison and Lopez were not integral to a comprehensive scheme of regulation. Now, the ACA does not do everything possible to fix our healthcare system, but no one could seriously deny that it takes a comprehensive approach to health-insurance regulation. So it would seem that even Justice Scalia should agree to uphold the individual mandate as an integral policy component that is necessary and proper to a comprehensive scheme of health-insurance regulation under the commerce clause. But an account that turns on the distinction between an activity and the absence of that activity is just the kind of thing Scalia would go for. With relish.
The upshot of a ruling like this would be to require that the individual mandate penalty be triggered by some affirmative activity of the individual, and not merely the individual’s uninsured status. The reasoning would be something like this: The decision to abstain from insurance is not an activity that substantially affects commerce. It is not an activity at all. It does substantially affect commerce, but it is not an activity.
Perhaps an activity requirement could be satisfied by something as simple as receiving medical treatment. Go to the doctor, and you’re subject to the mandate. Or maybe it wouldn’t be so simple. People often do not “choose” out of free volition to get medical care. If free choice is a component of the triggering activity, it might be harder to impose a blanket mandate under the authority of the commerce power.
But that last bit is the key. This limitation would only apply to regulations enacted under the commerce clause. The whole discussion is moot, as I mentioned in the first post, because the individual mandate has a much firmer basis in Congress’s power to tax and spend to promote the general welfare. I’ll do another follow-up on that another time.
Recess Appointments
The White House announced on Saturday that the president will be making 15 recess appointments for various positions, mostly related to trade, labor, and finance. No judges (though NLRB commissioners perform an important adjudicative role), no Dawn Johnsen (would-be head of the DOJ Office of Legal Counsel), and, alas, no Fed governors. These 15 appointments represent just about 7% of the total number of nominees (217) pending before the Senate.
The recess appointments clause raises a few questions of constitutional semantics. The clause states: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Art. II, § 2 (emphasis added). The questions are: (1) does ‘happen’ mean ‘occur’ or ‘exist’? In other words, does the vacancy have to arise while the Senate is in recess, or is it enough that the Senate is in recess and a vacancy exists? And (2) does the term ‘recess’ include relatively short intra-session adjournments in addition to the longer inter-session breaks?
The short and practical answers to those questions are (1) the President can fill any vacancy with a recess appointment, regardless of when the position became vacant; and (2) any adjournment over three days is probably long enough. The Eleventh Circuit Court of Appeals upheld Judge William Pryor’s 2004 recess appointment (to the Eleventh Circuit), made during a 10-day recess, the shortest on record for a judicial appointment. The current Senate recess will be 14 days. See this CRS Report (pdf) for the legal background.
Constitutional Challenges to Healthcare Reform, Part 1
There’s lots of chatter out there about legal challenges to our new health reform law. On Tuesday, before the ink from President Obama’s signature on H.R. 3590 was dry, 13 states’ attorneys general filed suit in the U.S. District Court for the Northern District of Florida, in Pensacola.
As I wrote a while back, there are two categories of possible constitutional challenges to the individual mandate. You can argue that the federal government does not have the power to impose it; and you can argue that the mandate violates individuals’ constitutional rights.
There aren’t many constitutional rights in play here. There is no recognized right to be uninsured. Nor, more generally, is there a right to be let alone. And in situations where the law would impinge on individuals’ rights that are recognized, the available remedy in court is to carve out specific exceptions in the law “as applied” to those individuals, rather than to strike down the law altogether.
The Affordable Care Act (ACA) is quite careful to provide exemptions from the mandate to several categories of people: those with “religious conscience” objections, illegal immigrants, incarcerated persons, people who can’t afford coverage (because a minimal plan would cost more than 8% of household income), earners whose income is below the tax-filing threshold, Indian tribes, people with only short gaps in coverage, and people with other qualifying hardships to be specified by HHS regulations. Due process does guarantee, in some sense, the “fundamental fairness” of the law. With all those exemptions, there just aren’t going to be many people for whom the mandate is fundamentally unfair.
So the real action here is in the argument that Congress has exceeded its constitutional authority. The relevant powers are the power to regulate commerce among the states and the power to levy taxes. Of these, it’s the commerce power that is most vulnerable to challenge. That is, if the ACA’s individual mandate is imposed by Congress under its authority to regulate commerce, there’s a reasonable case to be made that the mandate exceeds that authority. But even if it does, the taxing power is more than adequate authority to impose the mandate.
I’ll say more about the commerce and taxation arguments in part 2. Stay tuned….
Self-Executing Health Reform
Legislative minutiae have again taken center stage in the national drama of health reform. The latest hysteria over something that never seemed to matter before concerns “self-executing rules.” What’s a self-executing rule? Sarah Binder at Monkey Cage explains:
[Self-executing rules] provide that the House—upon adoption of the special rule—is considered or “deemed” to have taken some other action as well. In the case of health care reform, the idea is that the special rule for considering the reconciliation bill would include a “deeming” provision. One form of this deeming provision could provide that when the House votes to approve the special rule for the reconciliation bill , the House is simultaneously considered to have voted for and passed the Senate-passed helath care overhaul. In short, the vote on the temporary rule also provides for passage of the Senate-passed health care bill.
There have been some murmurs questioning the constitutionality of this maneuver. The concern is about violating the bicameralism and presentment provisions of Article I, section 7. You know the drill: both chambers must pass the exact same bill with the exact same language before it is presented to the president for signature or veto.
If a rule tacks one piece of legislation A onto another B, the argument goes, then the vote on the rule effectively merges the two bills into one. If the House passes a “merged” A+B bill, but the Senate has passed only bill A, then the two chambers have not passed the same bill.
David Waldman dispenses with these concerns decisively. The error is in thinking that the two bills would merge—or that the Senate bill (H.R. 3590) would be incorporated by reference into the reconciliation bill. Waldman:
Instead, the rule governing consideration of the reconciliation bill will incorporate a motion to agree to the Senate bill (actually a Senate-amended House bill). Agreeing to such a motion is perfectly routine and perfectly legitimate. The House will be presented with the opportunity to vote up or down on a measure incorporating that motion, and by adopting it will in turn adopt a procedure for agreeing to exactly the same text as the Senate passed, which will be triggered by the House’s recording of a vote in favor of passage of the reconciliation bill. At no point does the House amend or otherwise alter the text of H.R. 3590 as amended by the Senate. The requirements of the Constitution are satisfied.
The term “self-executing” is a bit of a misnomer, really. It has certainly been cause for confusion, willful and otherwise. But it is definitively not the case that the House will pass health reform without voting on it, or without “actually” voting on it, or without a “direct” vote on it. There will be a vote, and it will be an actual and direct vote. It will not be a simple vote, though. That is, it will be two votes in one. There will also be a vote on the rule itself, so in a sense there will be two votes on adopting the Senate bill. But just one that counts.
Romneycare Mandates v. Obamacare Mandates
Romney signs Massachusetts health reform into law
Matt Yglesias knocks Mitt Romney for apparently refusing to deny that the individual mandate would be unconstitutional, even though the Massachusetts health reform that Romney signed into law as governor contained a similar mandate.
Of course, from the standpoint of constitutional law, there’s a big difference between a mandate imposed by the federal government and one imposed by a state. The federal government may exercise only those powers granted by the constitution. The states, on the other hand, exercise plenary power and are presumed to have all powers not expressly prohibited to them by the constitution.
There are two basic kinds of arguments you can make against the constitutionality of the mandate. You can argue that the federal government does not have the power to impose it; or you can argue that the mandate violates individuals’ constitutional rights. The latter type of argument will not depend on whether it is the federal government or a state that is imposing the mandate. If constitutional rights are violated, the law is invalid. Presumably, this is the kind of argument Yglesias had in mind when challenging Romney’s consistency on the issue. It’s perfectly consistent, though, to believe that Massachusetts’ mandate is constitutional but that a federal mandate would not be, if you believe that the federal mandate would exceed congressional authority under Article I.
The Theory of Constitutional Moments
Jack Balkin had an interesting post about the dispute over use of the reconciliation process and the Senate’s vanishing capacity to do important legislative business without it.
[U]sing reconciliation in this case will not fundamentally change the dynamic in the Senate, and it will probably not significantly alter constitutional understandings. We will still have polarized parliamentary style parties in a constitutional system that is not designed for parliamentary government because of its super-majority rules and many different veto points. In an important sense, this is the larger structural problem. The party system has mutated in ways that are inconsistent with existing constitutional mechanisms.
If reconciliation fails, Obama will have to attack the filibuster directly. But even if reconciliation succeeds, the constitutional moment will not have been concluded. The worst, I fear, is yet to come.
Here Balkin is alluding to Bruce Ackerman‘s theory of transformative “constitutional moments,” times of political crisis in which the electorate acts collectively to effect constitutional change through informal, extra-constitutional means. In the current context, Balkin is using the idea to describe a potential confrontation between the President and the Senate over the Senate rules. Those rules live behind the constitutional forcefield of Art. I, § 5, a bulwark for the separation of powers, and an inter-branch confrontation over them could be understood as a constitutional moment akin to FDR taking on the Supreme Court with the court-packing scheme.
I’m not wild about Ackerman’s theory, but I do think it supplies a useful vocabulary in which to frame the historical interplay between politics and constitutional law. The theory is meant to explain the great paradigm shifts in constitutional interpretation that occurred at crucial points in our history: reconstruction, the New Deal, and the civil rights era. For example, under Ackerman’s theory, the constitutional standoff between New Dealers and the Lochner era Supreme Court was resolved by the decisive action of the electorate who sided with the liberals and re-elected FDR with overwhelming support, thereby “ratifying” the New Dealers’ more expansive vision of congressional authority to intervene in the national economy.
The term “constitutional moment” can be useful for historical description—it’s certainly true that there was a kind of jurisprudential paradigm shift in the mid-Thirties, as the Supreme Court broke with old-guard doctrines like the freedom of contract—but I’m not sure Ackerman’s theory achieves much beyond that. In its strongest form, the theory ascribes to these epochal constitutional realignments a force equivalent to that of formal, Article V amendments to the text. An obvious problem here is this: how are you supposed to know when a constitutional transformation has occurred? And how are you supposed to resolve disagreements about the scope of such a transformation? When voters “speak” at the polls, the final tally of their votes does not in any obvious way translate into well-formed propositions of law. There are other criticisms—and plenty of rejoinders to them, I’m sure—but I’ve already taken this detour too far.
I’ll follow up with more thoughts on Balkin’s post later.
UPDATE: Made some needed clarifications suggested by Lee’s comment. Lee is right, of course, that the rules of congressional procedure involved in the filibuster and in the budget reconciliation process are not derived in any way from the Constitution. The point here though is not that these specific political disputes are about constitutional issues, but that they implicate the balance of powers among the branches in a constitutionally significant way. Changes above should clarify that.
Size Is Not Our Problem
Ezra Klein disagrees with Kurt Andersen’s suggestion that the problem with Congress is that the ratio of constituents to reps is too large and somehow leads to an excess of anti-government populism, particularly in the Senate.
The framers worried about democratic government working in a country as large as this one, and it’s possible that we’ve finally reached the unmanageable tipping point they feared: Maybe our republic’s constitutional operating system simply can’t scale up to deal satisfactorily with a heterogeneous population of 310 million. When the Constitution was written and the Senate created, there were around 4 million people in America, or about one senator for every 150,000 people. For Congress to be as representative as it was in 1789, we’d need to elect 2,000 senators and 5,000 House members. And so I wonder, as I watch Senate leaders irresponsibly playing to the noisiest, angriest parts of the peanut gallery, if the current, possibly suicidal spectacle of anti-government “populism” in Washington isn’t connected to our bloated people-to-Congresspeople ratios. As the institution grows ever more unrepresentative, more numerically elite, members of Congress may feel irresistible pressure to act like wild and crazy small-d democrats.
(Emphasis added.) Ezra ably dispenses with Andersen’s odd take on senatorial temperament. But Andersen’s ultimate suggestion here is that the problem with American democracy is that America is too big for the constitutional design. And that thesis fares no better.
Some of the framers did worry about effectively governing a country so large. But a crucial argument of the Federalist Papers (No. 10, by Madison) was that the greater size and diversity of the country would actually increase the stability of the government by decreasing the sway of factions and local interests over the general government. The size and heterogeneity of the nation were in fact integral elements of the intended design. The one concern about the scalability of the design was the danger that reps would become too detached from the varied experiences of their constituencies when those constituencies become too large for any one representative to know and understand.
As for our own experiences, it’s really hard to make much sense of the notion that the dysfunctions of Congress are the result of a defective scale of representation. It is not the size of the country that causes congressional failure to enact legislation that suits majority preferences. It is malapportionment and supermajority rule in the Senate. The former is not a departure from the framers’ design, but the realization of it. And the latter is a consequence of the Senate’s own rules. Those rules may be crazy, but they’re not small-d democratic.
The Great Colonial Kickback
Ezra Klein makes a good point about the Cornhusker Kickback, the deal which would provide the state of Nebraska extra funding for Medicaid expansion in the Senate health reform bill. That deal isn’t evidence that the Senate is broken. On the contrary, it’s evidence that the Senate is working just as designed.
It’s a peculiar thing—a kind of Sartrean bad faith, if you ask me—that people get so worked up over a few little deals favoring one state or another, or even a whole bunch of deals, yet don’t seem to recognize or show any concern about the deep, structural inequity built into the constitutional design of the national legislature1 : its bias toward the less populous states and against the more populous ones.
That bias is real and has measurable effects on federal spending in the states. Research by Brown University economist Brian Knight (pdf) has demonstrated a strong relationship between per capita federal spending in a state and the per capita size of the state’s congressional delegation. Simply put, federal spending favors the less populous states.
The 2008 Census data represented on the map below (compiled here) provides a telling illustration. (But note that this is just a snapshot and doesn’t independently prove the thesis.)2 In a state-by-state ranking of per capita federal spending, the top 25 states are home to 91.5 million people; the bottom 25 represent 211.9 million people. The top 10 states include Wyoming (50th in population), Alaska (47), Vermont (49), North Dakota (48), Montana (44), and Maine (40). The bottom 10 states include Florida (4th in population), Georgia (9), Texas (2), and Illinois (5). And it looks like 2004 data tell much the same story.
Per capita federal spending in the states — from datamasher.org
Also puzzling to me is all the indignation we’ve seen over “back-room deals.” I can understand fretting over deals that are made in secret and that affect the legislation in undisclosed ways to bestow undeserved benefits on powerful interest groups. It really is essential that we know, or have a chance to know, what are representatives are voting on before they vote on it. But I don’t really see the problem with a deal made between legislators, the product of which is drawn up in black-and-white language that, um, everybody knows about.
“Back-room dealmaking” is seen as symptomatic of a kind of moral degradation of the public sphere. Yet we celebrate the Constitution’s exaltation of the arbitrary geography of statehood as a Great Compromise. Which reminds me: you know what else was a back-room deal? The Constitution of the United States of America.
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