Randy Barnett has some thoughts about the Senate Judiciary Committee on the constitutionality of the health care law. (Which we've already talked about here, here, and here.)
Randy says:
If anything, press coverage generally reflected the view that both sides made strong arguments, and that only the Supreme Court could settle the matter. Indeed, my impression is that the hearings served to advance the credibility of the challenges.
Randy "was particularly struck by the cordiality and collegiality shown to all the witnesses by Senator Durbin."
Not only did he genially greet each one of us beforehand and thank us individually afterwards, he paid close attention to everything each of us said, and what each fellow Senator said, for more than two hours of the hearing.
He listened, he really, really listened!
Now, that's nice, but, really, the hearing, from Durbin's perspective, was probably the Theater of Listening. If the courts are going to uphold the law, it will be because they decide that the appropriate judicial role is deference to Congress's decision that it has power under the Constitution to pass the law. Looking terribly interested in the details of the legal arguments creates the impression that you deserve deference.
Look! I'm living up to my independent role of determining that the law I'm drafting and voting for is constitutional.
Of course, having the hearing after the law is passed (and after the threat from the courts has materialized) doesn't really inspire the confidence that is needed to justify judicial deference to Congress.
But that's all the more reason to do good theater.
That's Randy Barnett — talking about the constitutional challenges to the health care law — quoted in Politico's ominously titled article "Right takes refuge in Constitution."
By the way, last Wednesday, I attended a Federalist Society-sponsored panel discussion here in Madison about this topic. One of the speakers was Wisconsin Attorney General J.B. Van Hollen, who has just taken steps to join the Florida lawsuit challenging the law. Also on the panel were Jon Richards, a state legislator who supports the law, and Ilya Somin, the George Mason law professor who has written that the lawsuits are at least not frivolous.
Scrambling to find 2 of the last few seats, Meade and I sat at a table which seemed to be full of lawyers who supported health care reform. One lawyer haughtily informed me that whatever law professors might think about the Constitution, it's really all politics, and this health care reform represents a big, important political effort and that's why it's going to be upheld in the courts. I said, if it's all politics, then what of all the politics pushing back against the law? What about the polls that show most people are against it and what about the last election? If you're going to say politics determines the outcome, then don't you have to take that politics into account too? The lawyer looked either alarmed or angry, because I, a law professor, didn't simply assert that the Constitution matters, which would have made it easy for him to irritatingly chuckle about naivete. But right then, the panel started, saving him from having to try to wriggle off my skewer.
Van Hollen kicked off the discussion with assertions that he joined the lawsuit not because he's opposed to the health care statute, but because of the rule of law. The litigation is important to test the scope of congressional power. We have a system of a balance of powers, which he likened to a "teeter-totter." The states have to take their position on the other side of the teeter totter or things aren't going to work very well. The idea is to push back against federal power and to give the courts the opportunity to clarify the law. Van Hollen speaks like the well-polished politician he is.
Richards was having none of this abstract rule-of-law business. Economic realities should trump legal jargon, he said. He portrayed constitutional law as a matter of technical conceptions that shouldn't be allowed to stop government from doing the things that need to be done. He focused on the policy reasons for supporting the law and the argument that the law is constitutional flowed naturally from his support of the law. As for lawsuits: "Lawsuits are a real distraction."
Somin said the rule of law is "technical conceptions" — which was the punchline of the day, in my view. He gave a measured presentation, explaining the case law in a professorly style, and assessing the odds that the Supreme Court would overturn the individual mandate. (He said the 4 liberals would stick together and uphold it, that the conservatives were a more "fractious" bunch, so although Scalia, Thomas, and Alito would vote against it, he doesn't know what Roberts and Kennedy will do.)
Here's my page of notes from the Somin part of the panel:
After that, there were some questions from the audience. One questioner, trying to get his mind around the notion that the failure to buy insurance is inactivity and arguably therefore not "economic activity" within the meaning of the Commerce Clause case law, said "If you look at a human being as a going concern...." — which I thought was pretty funny. Yes, the government sees us as little businesses, as we sit here ostensibly doing nothing: our hearts pump blood, our gut digests food, and our brain cells spark with resistance to the purchase of products the government knows we should be buying.
(I'm just starting to listen. I'll pick some clips out and add them below. Here's the NYT article on Randy's proposed constitutional amendment — which would empower the legislatures of 2/3 of the states to repeal any federal law.
ADDED: Randy talks about the repeal amendment here, and Sandy dumps on it here.
Dana Milbank notes "the unfortunate echo of nullification," but nullification was the idea that individual states could disregard federal law they opposed. The Repeal Amendment would institute an orderly structural safeguard as part of the Constitution, a check on federal power that requires a supermajority vote of the states.
The amendment process, after all, is part of the Constitution. The Framers had no illusions that they were creating perfection, and believed in the sovereignty of the people and in the power of the people to revise the Constitution as needed, through the process they created. The idea that the text of the Constitution should be revised only through judicial reinterpretation is a modern conceit, and one that does no honor to the Framers at all.
Since the Repeal Amendment, proposed by Randy Barnett, can easily be portrayed as an effort to return to something closer to the balance of power provided for in the original Constitution, it is pretty silly to portray yourself as brimming with respect for the Founders when what you really support is the shift of power to the national government that occurred over the long stretch of time, a shift that the courts have allowed to take place.
You know what else is silly? This, from Milbank:
Lest you think this is a hair-brained scheme by one Republican lawmaker, consider that the Repeal Amendment... has won the endorsement of the man who will be the next House majority leader, Rep. Eric Cantor (R-Va.).
Folk etymology is the term for the creation of new words by mistake or misunderstanding or mispronunciation....In today's language, "Hare-brained" is often giddily and irresponsibly misspelled "Hairbrained," perhaps on the notion that the hair is near the brain.
Folk etymology... hmmm. There's also folk constitutional interpretation, isn't there? Or is folk the wrong word when it's journalists purveying the bogus constitutional wisdom?
The big problem is not just that the Court ruled that Congress had the power to detain “sexually dangerous” federal prisoners who have already completed their sentences. By itself, this is a relatively minor policy (except, of course, for the people detained). The really dangerous element of the majority opinion is that it adopts the highly deferential “rational basis” test for assessing assertions of power under the Necessary and Proper Clause, holding that “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”
Though "the statute involved here is somewhat peculiar," so that it might be distinguished in future cases, Eugene Volokh says that the Chief Justice's joining the majority suggests that the Court has lost its taste for striking down federal laws on the ground that they exceed Congress's enumerated powers.
To be sure, the facts of this case are unusual, because the law here applies only to people who had already been convicted of federal crimes. But the majority’s rationale seems quite broad; it concludes that federal power challenges should be upheld so long as they are “rationally related to the implementation of a constitutionally enumerated power” — that’s the famously extremely deferential “rational basis” test....
Comstock involved whether ample connection existed between the law incarcerating sexual predators after their federal criminal sentence had been completed and an enumerated power....
With the challenges to the individual mandate, however, Congress is explicitly asserting that the individual mandate is “necessary and proper” to execute its power under the Commerce Clause. Moreover, the argument for “necessity” is reasonably straight-forward: it is necessary to compel all uninsured persons into the insurance pool to pay for the increased costs being imposed on insurance companies by the Act. Under the Court’s normal deferential approach, finding “necessity” won’t be hard.
The problem with the mandate is whether it is a “proper” means to achieve a constitutional end. ...
In Comstock, nothing about the incarceration of sexually dangerous persons was alleged to be an “improper” means of pursuing an enumerated end. The issue was whether or not the statute was enacted pursuant to an enumerated power....
