Akhil Amar: Refusing to Let Congress Force People to Buy Healthcare is Like Refusing to Let Congress Ban Slavery (Update: Lincoln and the Definition of Liberty in the Dictionary of the Wolf)
[Guest post by Aaron Worthing; if you have tips, please send them here.]
Update: Look at the end of the post for some Lincoln quoty goodness on the definition of liberty.
Professor Akhil Amar, who teaches Constitutional Law, had a piece over the weekend in the LA Times attacking Judge Vinson’s opinion striking down Obamacare, and while other competent people have torn into this POS editorial (here, here and here), I thought I would go after him, too. He starts right off personally insulting the judge, explaining that as he read the opinion:
One thing was immediately clear: My students understand the Constitution better than the judge.
Well, Akhil, I know many of your former students and I can say this. Most of them understand the constitution better than you do and Supreme Court precedent, I might add. He goes on:
As every first-year law student learns, lower court judges must heed Supreme Court precedents.
Except of course the idea of Congress forcing you to enter into a contract with a private company under the Commerce clause—or the Commerce clause combined with the Necessary and Proper clause—is literally unprecedented. Congress has literally never tried to do it and thus the courts have literally never ruled on the issue before Obamacare came along.
The central issue in the Obamacare case is how much power the Constitution gives Congress, and the landmark Supreme Court opinion on this topic is the 1819 classic, McCulloch vs. Maryland.
Except of course, every first year student also knows that technically the only precedent set is bound to the specific facts of the case. In other words, McCulloch v. Maryland only stands for the proposition that a state cannot tax a Federal bank. The rest of it is obiter dictum, or dictum for short. That means extraneous stuff that isn’t binding in the future, but might still be considered persuasive.
Of course the courts would be wise to follow that dictum, and they do, but for someone asserting that the judge was making a rookie mistake, maybe you shouldn’t make one yourself, Professor.
But in fact if you read Vinson’s opinion, he did follow McCulloch, by name. But you see Judge Vinson took a different principle from McCulloch than Amar did. Vinson recognized that this meant that the Necessary and Proper Clause only justified laws that were the means by which the powers of congress were executed. By comparison Sebelius and company argued that it could also be used to mitigate the damage done by other congressional laws.
To see how dangerous this interpretation is, imagine that this was at any point in our history before 1859. Imagine Congress passed a series of regulations and liabilities upon doctors that was so onerous that they began to quit the profession entirely. So then Congress passes a law forcing those doctors to re-assume their old professions and occasionally conscripting citizens into the medical profession to replace those doctors who became too old to treat patients or died. According to Sebelius’ theory of the constitution, this involuntary servitude would be fully constitutional and would only present a constitutional problem after the Thirteenth Amendment was ratified. Vinson wisely rejected that radical approach.
But Amar takes a wholly different meaning from McCulloch:
Justice John Marshall famously countered that the Constitution gives Congress implied as well as express powers. Marshall said that unelected judges should generally defer to elected members of Congress so long as a law plausibly falls within Congress’ basic mission….
In 34 years as chief justice, Marshall never struck down an act of Congress as beyond the scope of federal power. The modern Supreme Court has followed Marshall’s lead. Since 1937, only two relevant cases — U.S. vs. Lopez in 1995 and U.S. vs. Morrison in 2000 — have held that federal laws transgressed the limited powers conferred on Congress by the framers.
Got that? Congress can do whatever it wants, so long as it sounds plausible.
Which is not only bad constitutional law, but that is bad history. Marshall never struck down a single act of Congress as beyond Federal Power? Well, apparently he never heard of a small case called Marbury v. Madison. And in modern times there have been federal anti-birth control statutes that have been struck down, federal segregation in the District of Columbia that was found to go beyond Congress’ power, a federal anti-flag-burning law that went beyond their power, as well as many examples of the federal government violating the establishment clause in the eyes of the Supreme Court. Amar seems to think that judicial review doesn’t even exist, or barely does. In fact it has existed for longer than McCulloch.
And is deference such a good thing, anyway? In Citizens United, the Federal Election Commission suppressed all advertisements of a movie entitled Hillary, the Movie–a movie about a Presidential candidate by a company that apparently did nothing but make political documentaries. I have yet to meet a single person—whether a supporter or opponent of the decision—who felt that this action by the FEC was correct. When I point out those facts to those who denounce the ruling in Citizens United they say, “well, that was wrong, but…” And I believe Mr. Korematsu and a few thousand Japanese Americans wished the Supreme Court was a little less deferential. It is stunning to see a Professor of Constitutional Law argue against judicial review.
Neither of the laws at issue in these cases [Lopez and Morrison] plausibly fell within the Constitution’s grant of congressional power to regulate “commerce among the several states” — a phrase that includes all interstate transactions, such as a national market in goods or services or a situation in which people, pollution, water or wildlife cross state lines.
By contrast, Obamacare regulates a healthcare industry that obviously spans state lines, involving billions of dollars and millions of patients flowing from state to state.
Notice the sleight of hand, though. He first talks about the healthcare industry, which assuredly does span state lines. But the mandate itself is not regulating anything that crosses state lines. Sitting on your couch is not interstate commerce. But he does his level best to claim it is:
When uninsured Connecticut residents fall sick on holiday in California and get free emergency room services, California taxpayers, California hospitals and California insurance policyholders foot the bill. This is an interstate issue, and Congress has power to regulate it.
But if the possibility of people going from one state to another and needing local services makes something interstate commerce, then Lopez and Morrison were wrongly decided. After all, Lopez concerned itself with the Gun-Free Schools Act, creating a gun free zone around every school. Now if a person travels from one state to another with a gun, goes near a school and shoots a student, and that student goes to a California hospital, then “California hospitals and California insurance policyholders foot the bill,” right? Meanwhile, U.S. v. Morrison concerned the Violence Against Women Act, and in particular, an alleged gang rape. So if a man crosses state lines to rape a woman, then my gosh, she might also have to go to a local hospital, etc. Or for that matter, if a woman is driving cross country, stops at a hotel and that night is raped in her hotel room by local jerks, and she has to ask the local hospital to treat her, and for the local police to arrest her attackers, the local courts to try them, and the local prisons to confine them if convicted, then that state foots the bill, too, right? So by Amar’s logic, the Gun-Free Schools Act and the Violence Against Women Act were actually constitutional. So much for Amar’s professed respect for the obiter dictum of the Supreme Court.
Sadly, he goes on:
Breathing is an action, and so is going to an emergency room on taxpayers’ nickel when you have trouble breathing.
Again, if true means that Lopez and Morrison were wrongly decided. He plunges forward:
Nor is there anything improper about requiring people to buy or obtain a private product. In 1792, George Washington signed into law a militia act that did just that, obliging Americans to equip themselves with muskets, bayonets, cartridges, the works.
Mmm, yes, Akhil, as part of the right to raise and arm armies. Which is a slightly different subject and a different congressional power. But he flies forward undaunted:
[Judge] Vinson says this mandate cannot be upheld under Congress’ sweeping tax powers. Wrong again. A basic purpose of the founders was to create sweeping federal tax power, power that was emphatically reinforced by the 1913 Income Tax Amendment.
Actually, he didn’t say that. What he said was that Congress was not invoking its taxation power. As such he did not even rule on the issue of whether the taxing power could be invoked to justify this, although he generally stated that Congress’s power to tax is more expansive than its power to create penalties suggesting that perhaps if it had been a tax it would have been upheld.
Bluntly, Akhil, a first year law student would have recognized that. Which suggests to me that even if Amar did read the most recent opinion from Vinson, he didn’t read the first one.
If Congress can tax me, and can use my tax dollars to buy a health insurance policy for me, why can’t it tell me to get a policy myself (or pay extra taxes)? Vinson offers no cogent answer to this basic logical point.
Well, that might have something to do with the fact we are not talking about the taxation power, Akhil. But it’s cute to see you try to bootstrap the expansion of federal taxation power into the power to control your entire life and death.
Meanwhile, Vinson asks the more basic question Amar ignores: if Congress can do this, what can’t they do?
Alas, Amar continues:
He also mangles American history and constitutional structure. In a clumsy wave to today’s ”tea party” groups, he rhetorically asks whether Americans who fought a tax on imported tea in the 1770s would have authorized Congress in the 1780s to mandate tea purchases. Huh?
Surely Congress was authorized to do the very thing that Parliament could not — tax imported tea.
Ah, so once again, Amar is one of many liberals who have decided that the Boston Tea Party is the sole property of conservatives—that no one is allowed to invoke our revolutionary heritage without appearing partisan.
Further, he ignores half of the complaint—that Britain had granted to the East India Tea Company a monopoly on tea. Once again, one gets the feeling he has not actually read what he claims to have read.
Ah, but I was saving the titular lameness of Akhil’s cruddy little editorial for the end, when he goes all Godwin’s law* on this:
In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.
History has not been kind to that judge. Roger Vinson, meet Roger Taney.
Oh, sure, Akhil, he is just like Roger Taney of the Dred Scott decision. Aside from the fact that Vinson was affirming individual freedom from a tyranny over our lives and deaths, while Taney was busy affirming tyranny over a particular race’s lives and deaths. Aside from that, the two men are practically twins!
I mean if anyone sounded like Taney, it would be the people currently arguing for the government to have unlimited power over us, Professor. To quote Charles Lane:
if, in the name of that noble goal, you construe Congress’s power to regulate interstate commerce so broadly as to encompass individual choices that have never previously been thought of as commercial, much less interstate, there would be nothing left of the commerce clause’s restraints on Congress’s power. And then, the argument goes, Congress would be free to impose far more intrusive mandates. Judge Vinson suggested that Congress “could require that people buy and consume broccoli at regular intervals,” and that is hardly the most absurd or mischievous imaginable consequence.
Amar wants to interpret the constitution so that it can destroy individual freedom. And he has the chutzpah to compare those who oppose this to advocates of slavery. No one does Orwell like the left.
And Akhil Amar should be ashamed of this bit of hackery.
* Yes, I know that Godwin’s law technically is about invoking Nazism. But you have to admit that invoking slavery is in the same realm of lameness, and hyperbole.
Update: Some commenters at Volokh correctly point out that the Southern slaveholder would have claimed that Dred Scott was a victory for individual freedom—the freedom to hold others in bondage. That is correct to a point and recalls one of my favorite lines from Lincoln:
The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one.
And here it is in context, in case Lincoln was being too subtle, discussing Maryland’s gradual emancipation laws:
The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatable things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatable names—liberty and tyranny.
The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails to—day among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty. Recently, as it seems, the people of Maryland have been doing something to define liberty; and thanks to them that, in what they have done, the wolf’s dictionary, has been repudiated.
So yes, the wolf and the sheep would disagree on what constitutes liberty. But Lincoln was no moral relativist. He believed that the dictionary of the wolf should rightly be repudiated. He knew what liberty was.
[Posted and authored by Aaron Worthing.]