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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, April 20, 2013

The Tough Luck Constitution

I was not sure if it paid to read yet another summary of the ACA cases, especially since the basic logic of this small volume can be found in various blog posts or articles written by the author.

This is not to disrespect the author (see here, where he both defends Dawn Johnsen* and references to me a compelling 13A argument he makes as to abortion rights).  An earlier book (less geared to the general public, but still not overly academic) on historical practice as to interstate comity as to marriages provided a cautious approach to SSM (this was six years ago, but it holds true for me) that appeals. Another book rejecting the premise of Boy Scouts of America v. Dale to me sounds ill advised, but at Amazon even an opponent of its premise found it well written.

Koppelman at one point noted that the book is geared to the general reader, of which on this subject perhaps I am not totally representative given the amount of reading and such done on this and other related topics. Still, always appreciate a good brisk summary, noting elsewhere that Mill (who I was shamed to read in full when noting this) said some good stuff in On Liberty, but darn it was a trudge to read in that classic literature speak of his. Managed to read some classic works (read and enjoyed the works of Jane Austen a couple years back) but still.

The book was enjoyable as a sort of collection of essays.  The general sentiment, shared by Jack Balkin, is that the Founders understood Art. 1 to be a list of things that the federal government had the power to do because the states were unable to do so.  This reflects the principle of "subsidiary," something Justice Breyer also supported in his two books. The committee that wrote it was instructed to be guided by this principle (see linked essay):
legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.
The basic result is that, yes Virginia, the ACA  is not only constitutional, but it is in effect loyal to "originalist" principles. This appalls some since if originalism (shudder) can support so-called "living constitutionalism," what the heck won't fit under its tenets?  The blame is not on Jack Balkin et. al., friends, but the plastic nature of originalism itself.  Anyway, history is too important to be left to conservatives.  My belief that ACA is clearly constitutional is suggested by various things I wrote for the last few years here and elsewhere (Slate, Volokh Conspiracy, etc.). Partially, it is a matter (see link) that I think there is a broad power and responsibility there, but partially since I think even within the limits (artificial often) demanded by some, there are clear reasons to think so. 

Anyway, I think the book is fine enough but have two complaints. First, the subsidiary principle is great, but what it basically does it provide guidance on rightful application of powers enumerated or logically arising from such enumerations. This covers a lot of ground, surely, but it is not the same as if the above federalism dictum was the only thing there. There are specific things chosen for enumeration and this serves as a check.  This underlines the falsity that ACA leads to "no limits."  Second, other than the subsidiary or national interest principle there are other limits and this was not really clearly underlined enough.  The issue here is clearly a matter of interstate commerce.  More importantly, there are various limits such as the Bill of Rights. For some reason, this "limit" was not noted.

Still, do check the book out, it's a quick read (around 150 pages, smallish at that) though the last bit was a rather striking thing to leave out.  The title by the way is the belief that there is limited federal power (and state power really, given the implications of the arguments), which lead to a dark view that certain people will suffer, but "tough luck," since it's necessary for liberty overall.  Such people like Randy Barnett see the New Deal as the moment when the Constitution died or something, apparently thinking the best of times was the Gilded Age or something.

One more thing.  I still think that even given the premises of the opponents, ACA stands up.  Realistically, no one is really "inactive." As the book notes, the Roberts opinion cheats a bit and requires that the person has to be active in the "health care" market.  In other words, it is not even that the person is "inactive," or "just breathing," to cite tiresome cant of some opponents (said with a sneer).  This is a curious thing. Apparently, even if you are active (sic) in various ways that directly and indirectly (but enough to substantially affect) take part in interstate commerce, the federal government can not regulate your actions in this fashion unless the regulation involves the specific sort of commerce you are involved in.  At least, pursuant to the phony rules set forth.

Fairly recently, and this is normal enough, I had a cleaning project to do for a family member. Took a bus to her home, a bus that must be integrated pursuant to federal law because it involves interstate commerce.  Fed her cats, using food bought a a supermarket that also must meet various federal regulations again largely pursuant to the Commerce Clause.   Later, I did a bit more shopping to buy supplies in various stores (stores where I was, shudder, forced to associate with people because they were public accommodations that had to follow an "all comer" policy), following an "el," that is an elevated subway train also involved in travel that involved interstate travel in various ways.  You get the idea.  I use this example to show that even putting aside employment (again, don't count for Roberts, since it isn't the health market), the average person will be involved in interstate commerce regularly. 

Health care played an important part in all of these things, including the nature of the employees available to work, the health of those passed (especially in a populated urban city like mine) and the overall costs involved, given it is 1/6 of the national economy.  (See Akhil Amar here on the many ways the Constitution touches upon these issues. One thing that stands out for me is the bankruptcy power, given how important health care costs factor into that).  If Mr. Wickard could be caught up into the matrix here, so to speak, how in the hell - I find opposition here specious - am I and others "inactive" for purposes of the Commerce Clause?  Add the various political and constitutional limits,** this really shouldn't have been hard.

But, it was, huh?


* I continue to believe that the filibustering of Dawn Johnsen is one of the most distressing aspects of the first term.  Her appointment to head the OLC served as a symbol that a new start had to occur there, to (per an op-ed she wrote) "[r]estoring leadership and integrity to the Office of Legal Counsel."  There is just only so much that one person can do, but her background and ethical principles suggested the importance of the appointment, one which some in the Administration very much might have not been totally unhappy failed given she might have made things difficult in certain cases.  I feel somewhat similar about the gun bills.

** I think there are like five: (1) political [having lived it, the idea it was "rammed thru" is risible] (2) subsidiary principle (3) economic (see U.S. v. Lopez / Morrison)  (4) textual limits (Bill of Rights etc.) (5) structural limits (no commandeering of states etc.).  Also, there has to be a basic rational basis that it involves "interstate commerce" or is "necessary and proper" (the latter including things like 4/5) for same.  Even if you take a concern for active/inactive, ACA would meet for me a "rational basis with teeth" test, especially since the means is limited and economic in nature.

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