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.
