Here is my latest column for Justia's Verdict, in which I counter Stanford law professor Michael McConnell’s critique of the arguments of liberal law professors who defend the constitutionality of Obamacare.

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Any week now, the Supreme Court will hand down its ruling in the Affordable Care Act (ACA, also known as Obamacare) challenge. The Court will likely address, among other things, the key question whether Congress has the constitutional authority to enact the so-called “mandate” provision, requiring individuals to procure minimum healthcare coverage or instead pay money into the federal treasury. It’s not surprising that analysts and commentators are gearing up for the momentous decision.

What is surprising, however, is the content of some of the commentary. In my column today, I offer reaction to an Op-Ed piece External Link Stanford law professor and former federal appellate judge Michael McConnell published in the Wall Street Journal (WSJ) on May 24. I welcome Professor McConnell’s voice in the Obamacare debate—I have long admired his overall body of work and was openly and actively supportive of his nomination for the federal appellate bench External Link at a time when he was criticized by many on the Left. And I agree with some of what he says in his WSJ Op-Ed. But I am also quite troubled by many other points he makes or implies.

What Professor McConnell Argues

It bears noting at the outset that Professor McConnell does not say he thinks the challengers to Obamacare are constitutionally correct—that the mandate exceeds Congress’ constitutional powers. (My brother, Yale law professor Akhil Amar, noted in Slate a few months ago External Link that most conservative constitutional scholars have not expressed agreement with the challengers’ position—an observation that accords with my own sense.) Instead, Professor McConnell finds the “health-care case [to be] hard,” and says that the challengers’ argument “may [reflect] a correct reading of the Constitution, or not, but it must be taken seriously.”

I’m not sure I find the case as hard as Professor McConnell does, but I certainly don’t disagree with him that the challenge must be taken seriously. Indeed, I and many others who have written scholarship and other commentary on the case have done so because we do take the matters raised therein seriously. All of that is why I am troubled by what Professor McConnell goes on to say.

Professor McConnell writes to chastise “liberal law professors . . . [who] claim[] that it would be ‘hypocritical’ and ‘partisan’ of [conservative Justices] to invalidate legislation passed by Congress when they generally oppose ‘judicial activism.’ It appears the professors’ idea of sound jurisprudence is that their favored justices are free to invalidate statutes that offend their sensibilities whether or not the words of the Constitution have anything to say on the matter, as in the case of same-sex marriage or partial-birth abortion, and even if the Constitution seems to endorse it, as in capital punishment. But if conservative justices have the temerity to enforce actual limits on government power stated in Article I, Section 8—over liberal dissents—then they are acting as shameless partisans.”

Professor McConnell asserts that “[i]f liberal supporters of the health-care law were as confident of the merits of their position as they claim to be, they would offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans.”

Professor McConnell also says that “[i]t seems unlikely this one-sided definition of ‘activism’ will persuade anyone. Judicial review might be aggressive and it might be deferential, but there cannot be one set of rules for liberal justices and another set for conservatives.”

The First Flaw in McConnell’s Argument: A Straw Man Concerning the Supposed Absence of Textual, Historical, Structural, and Doctrinal Arguments in Favor of the Mandate

It’s hard to know precisely whom Professor McConnell has in mind when he excoriates “liberal law professors;” many of us among the group of analysts who think Obamacare is constitutional have not spent our time simply hurling names at those with whom we disagree. But even as to those professors who have been most stridently critical of the conservative Justices, Professor McConnell’s analysis misses the mark.

First off, his criticism is based on a straw man (forgive the gendered term, but “straw person” is too awkward). “Liberal law professors,” or at least the ones I see and hear, don’t ground their allegations of hypocrisy and partisanship with respect to the possibility of high Court invalidation of Obamacare on a claim that conservative justices have generally embraced a deferential form of judicial review, and that striking down Obamacare would be inconsistent with such professed deference. (Conservative Justices have not been, and have not said they should be, necessarily deferential to elected branches in exercising judicial review.)

Instead, folks who say that a ruling by the conservative Justices striking down Obamacare would be hypocritical and perhaps partisan say so precisely because arguments (to use McConnell’s words) “based on text, history, structure and precedent”—the very tools conservatives traditionally contend should be used in constitutional interpretation—cut in favor of, not against, the constitutionality of Obamacare.

Professor McConnell asserts that “liberal supporters of the health-care law” should “offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans” (emphasis added). But supporters of the mandate have indeed offered those arguments, and it is precisely because those arguments seem to have been ignored by many conservative Justices at oral argument that some defenders of Obamacare have cried hypocrisy and partisanship.

I am genuinely puzzled as to why Professor McConnell feels that there have been no textual, historical, structural and precedential defenses of Obamacare. I, my brother Akhil, and many other scholars have written numerous law review articles laying out just such arguments.

Take the constitutional text. The question here is whether any words in Article I give Congress the power to impose healthcare-coverage procurement mandates. As many of us have pointed out, certainly no one doubts the Congressional power to mandate the military draft, militia service, jury service, census participation, etc. And nothing in the constitutional text under which these activities are permissibly mandated explains why affirmative conduct can be required in those realms, but not under the Commerce Clause, which gives Congress the power to “regulate” commerce “among the several States.”

By comparison, Article I permits Congress to “raise and support” Armies, but there is nothing in the text of this clause that indicates why mandatory military service is permissible. “Raise and support” could textually be read to mean “create incentives to voluntarily generate.” But the Supreme Court had little trouble holding in 1925 that this clause, combined with the Necessary and Proper Clause, permitted Congress to mandate military service—in other words, to regulate inactivity and require affirmative activity—because the Court reasonably concluded that Congress should not be dependent on the inclinations of potentially reluctant individuals to accomplish Article I’s enumerated objectives.

More generally, the word “regulate” (used in the Commerce Clause) does not foreclose the compulsion of activity, including the compulsion of commercial activity. “Regulate,” as defined in language dictionaries, means, among other things, to “direct.” Moreover, when we turn to the Constitution itself as a possible dictionary, we see that it uses the word “regulate” at least sometimes in ways that include a power to mandate activity.

The militia in which Congress can compel membership, for example, is referred to as one that is “well[-]regulated,” in the Second Amendment.

Congress’ power in Article I to “regulate the [v]alue” of money would seem to permit Congress, under certain circumstances, to require individuals to exchange their currency for something else that Congress reasonably believes would provide stability to the monetary system of the country.

Congress’ power to adopt rules for the “[r]egulation” of the land and naval forces undeniably allows Congress to mandate activity on the part of otherwise disinclined men and women in the armed forces, when such mandates are reasonably helpful to the national defense.

Congress’ power to undertake “[r]egulation[ ]” of the Supreme Court’s appellate jurisdiction is what gives Congress the power to create such jurisdiction in the first place—”regulate” as used there includes the power to create and control. And there is much more. In short, to say no arguments about text have been made by Obamacare supporters is simply to ignore the scholarly discourse.

The same is true for historical, structural and precedential arguments. As to history, the record makes clear that the Commerce Clause was designed to allow Congress to deal with interstate economic externalities. No one could really doubt that the healthcare and healthcare insurance markets involve true interstate commercial problems. After all, insurance and healthcare providers are usually national, or at least regional, operations; folks who cross state lines get sick and must be cared for away from home regularly; and people are often unable to relocate to another state for fear of losing their employer-based insurance coverage. Nor is it disputed that Congress’ enactment of the individual mandate provision was sincerely motivated by, and closely related to, the regulation of these interstate markets and interstate spillover effects. Professor McConnell says that these observations about the health care market are not “grounded in any principle based in constitutional text, history or theory,” but that assertion itself ignores the very history behind, and the theory underlying, the Constitution—history and theory that Professor McConnell rightly recognizes as central.

History also debunks the notion that mandates to purchase are, as a general rule, constitutionally novel or out-of-bounds. For example, the Militia Act of 1792 required able-bodied men to become Federal militia members, and to arrive ready to serve. Men were required to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack. Even if novelty were a basis, in and of itself, on which to object to an exercise of Congressional power—and it is not—mandates to procure are not novel, but rather go back to the founding.

Professor McConnell is also wrong to suggest that no structural arguments defending the mandate have been made. When one looks at the entire structure of the Constitution and compares the already-recognized bans on mandates—the Third Amendment’s prohibition of the quartering of troops in private homes during peacetime, the Fifth Amendment’s protections against government mandating self-incrimination and the surrender of property without just compensation, the First Amendment’s protection against mandating that individuals be vessels for government speech, and the so-called anti-commandeering federalism principle prohibiting Congress from mandating that state governments exercise their regulatory power on behalf of federal goals—a pattern emerges: Congress generally cannot merely use individuals or states as the instruments, or tools, of its own objectives.

But when individuals (or states) are, by contrast, acting as free riders, and thus contributing to the problem—rather than being just handy tools to fix a problem created by others—then mandates are much more constitutionally permissible. This explains why the federal government can mandate taxes, and jury and military service, among other things, even if the individuals so mandated are contributing to problems only passively. Military defense, government spending (on roads and other infrastructure), and a system of criminal and civil justice requiring juries are, broadly speaking, “public goods” in the sense that people benefit from them and have an incentive to be free riders unless they are mandated to contribute. The free riding is itself a big part of the problem that Congress is trying to solve when it imposes mandates in these areas. So long as the mandate is “congruent and proportional” (to borrow a phrase from another federalism context) to the free-rider problem that the very existence of the individuals being mandated is creating, then the mandate seems less objectionable.

This explains why, for example, the quartering of troops is different from the draft. Placing a narrow, focused, and selective mandate on a few homeowners to bear the costs of a military that everyone benefits from is not a proportionate response to a free-rider problem in the way that a random and broad-based draft that seeks sacrifice from thousands, if not millions, of people is.

When viewed through this structural prism, the healthcare mandate would seem to fall on the permissible side of any implicit constitutional line safeguarding against instrumentalization. Obamacare’s mandate is, in substantial part, a response to the free-rider problem—a problem that itself is exacerbated by other undoubtedly permissible elements of the healthcare reform package. The individuals subject to the mandate would—if they were free from the mandate—become part of the problem, rather than merely being a convenient part of a solution to problems created by other folks.

Finally, again contrary to what Professor McConnell suggests, believers in Obamacare’s constitutional validity have made many arguments based on precedent, especially to answer the “slippery slope” problems that seem to worry Professor McConnell and some of the conservative Justices. Professor McConnell writes, “defenders of the health-care mandate are unable to identify any line between what they say Congress can do and what it cannot.” Nonsense.

As many of us have pointed out, some of the important limiting principles come from Gonzalez v. Raich , where the Court permitted a federal ban on the possession of all marijuana, no matter how small the amount or how local the use. That result too, created slippery slope problems, but the Court made clear that even as the federal government might sometimes ban the possession of things, the government’s power in this regard is not unlimited. As Justice Scalia observed in his concurring opinion in Raich, the possession of marijuana in particular can be punished because such punishments are necessary to carry out a comprehensive regulatory scheme—the Controlled Substances Act—that governs a robust and interstate market in drugs. Without that comprehensive regulatory scheme respecting an interstate market as an anchor, and a clear tie-line connecting the ban on possession to the regulation of the interstate market in illicit drugs, the ban on marijuana possession would have exceeded Congress’ Commerce Clause power.

Of course, such an argument cuts in favor of, not against, the individual mandate in the healthcare reform law. The Affordable Care Act is itself a comprehensive regulatory scheme governing interstate commerce and interstate spillover effects, and the individual mandate plays an important role in furthering central pieces of that regulatory framework.

The Bigger Problems With Professor McConnell’s Argument Come From What Some Might Read Him to Be Suggesting

Professor McConnell’s mistaken suggestion that Obamacare’s defenders make no arguments based on text, history, structure and past precedent is troubling to be sure. But there’s another flavor to his criticism that leaves an even worse taste in my mouth: He might be read as suggesting that if liberal law professors support reading the Constitution to protect same-sex marriage, partial-birth abortion and abolition of the death penalty, then they are estopped from complaining about “aggressive” (his word) judicial review to support conservative ends.

Professor McConnell never quite says it that way—and I hope that he wouldn’t embrace this position–but many people might glean this to be his implication because, absent such an implication, I’m not sure why he mentions in his Op-Ed liberal constitutional stances concerning same-sex marriage, partial-birth abortion and, capital punishment, and the free-form constitutional interpretive modes they involve.

Perhaps he’s saying simply that liberal law professors are themselves hypocritical and partisan to insist that conservative Justices in the Obamacare case exercise judicial review in a restrained way, when the liberal profs do not themselves believe in restraint in other areas of constitutional law. Maybe that’s true (or maybe liberal law professors have a theory as to why the individual-liberties aspects of the Constitution require different interpretive modes than do federalism questions—I personally might not find such a distinction altogether persuasive). But the point that some liberal law professors might be partisans and hypocrites hardly seems like a point worth making. Liberal law professors don’t decide cases. They don’t make law. There’s a reason (many reasons, actually) why we don’t give them any real, immediate, decisionmaking power.

But Justices do have tremendous authority we have delegated to them, and they should exercise it in a way that is free from hypocrisy and partisanship. And if liberal law professors accurately point out hypocrisy on the part of Justices who purport to care about text, history, structure and precedent, these professors will have performed a useful function, even if the professors themselves are guilty of even more intellectual dishonesty than the Justices whom they lambaste. So the hypocrisy of law profs really wouldn’t bear on whether their criticism of the Court—the subject of Professor McConnell’s Op-Ed—is appropriate or not.

Even if the hypocrisy, partisanship and lawlessness were being practiced by other members of the Court, that should not, I would hope, cause Justices to abandon their own interpretive principles. So, for example, if Justice Kennedy thought that Justice Breyer’s dispositive vote to strike down Nebraska’s ban on partial-birth abortion (one of Professor McConnell’s examples) in Stenberg v. Carhart was completely inconsistent with the conception of responsible judicial review that Justice Breyer has espoused in a series of books written for the broader American public (and one could argue that there is some tension there), Justice Kennedy should not, as a general matter, change his own approach to judicial review.

When Professor McConnell says that “there cannot be one set of rules for liberal justices and another set for conservatives,” I pray he does not mean that conservative jurists can and should abandon their aversion to judicial activism (however defined) because they see liberal jurists acting in unrestrained and unprincipled ways.

There might be some specific doctrinal areas where a Justice might think that wrong-headed or hypocritical rulings by earlier Courts or other Justices have created a sub-optimal body of law, such that the Justice might have to decide a particular present or future case in a way that is different from how s/he ordinarily would have preferred (stare decisis, or deference to past precedent, is one example of the effect that earlier methodological or substantive mistakes can have on future outcomes). But generally speaking, “retaliatory activism”—by which I mean the abandonment of a Justice’s own principles because other Justices are not playing fair—is a dangerous and inadvisable game. It is also something that contributes to the popular and unhealthy perception that the Court is no different from and no better than the overtly political branches of government in DC.

So to the extent that anyone understands the essay from Professor McConnell—a venerable conservative jurist and scholar who was often thought to be on Republican Supreme Court short-lists a decade ago—as suggesting that conservative Justices are to be forgiven for hypocrisy or partisanship because liberals engage in it (or vice-versa), I would urge a different reading of his words.

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Obamacare and the Misguided Criticism of “Liberal Law Professors” Who Defend It