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Congress Has Its Own Limiting Principle

posted by Bob Lawless

This is supposed to be a blog about credit and bankruptcy, but I can't help myself in making a short comment about one aspect of the oral argument and discussion from yesterday's challenge to the individual mandate. Credit Slips purists should note that many bankruptcy filers have lots of medical debt, so the topics are not completely unrelated.

There has been a lot of discussion about the search for the so-called "limiting principle." If Congress can make you buy health insurance, could it make you buy burial insurance or (gasp) buy broccoli to eat? If the Supreme Court does not protect us, what is to stop Congress from passing all sorts of dumb laws like these?

The same crowd who is aghast at the possibility of having people purchase health insurance are also the same crowd who always reminded us (or at least used to remind us) that it is not the Court's job to stop Congress from enacting dumb laws. Congress has its own limiting principle. It's called the ballot box.

Jamal Greene over at Slate makes a similar point. And, if you're still looking for a limiting principle, Charles Fried, Reagan's solicitor general, offers one in an interview with the Washington Post's Greg Sargent.


The problem with your and the Slate argument is that they posit quite explicitly that the Constitution has no limit on what the federal government can put into law. The only limit on federal power is the majority will in a periodic expression thereof. And that does not fit with any empirical account of the development of the Constitution. It is not just a majoritarian mechanism. There would be little need for many of its provisions if it meant to institute a regime of "whoever gets a majority can impose what they want". Indeed, there would be no role for judicial review of any kind under that principle. And what would the US look like with no judicial review?

My reading of Constitutional history is that significant framers, Madison in particular, intended quite active judicial review and quite meaningful limits on majoritarianism.

Fried can offer what principle he wants. It's an opinion. His opinion is, for better or worse, not one that counts. Candidly, I studied under him long ago and was un-dazzled by the exposure, and the analysis he offers seems arbitrary line-drawing to me. Health insurance and health care are generally not delivered across state lines.

My view is that a law mandating citizens to purchase goods and services from a particular industry is unprecedented and not within the federal government's power. I also think the Griswold line of cases supports a 9th Amendment personal autonomy override in this context of whatever Congressional power might exist.

The policy wisdom based on statistical probabilities across the general population is besides the point in Constitutional interpretation of power and rights. I don't view this as a "dumb" law but a wrong law. (I do think it was a dumb act, politically, for Democrats, of whom I am one and tried to make that point to my friends in Congress at the time). There are plenty of Constitutional mechanisms by which Congress could arrange for national health needs to be met: simply collecting taxes and using them to pay for a national health service is the most obvious. Setting up the "public option" is another. Third, the mandate can be struck down and the rest of the law left in place and the issue becomes what rates the insurers get to charge to obtain a reasonable return, which will go up. Fourth, limits can be created on the duty to insure, or the duty to treat, people who game ths system. Sometime a while back Ezra Klein listed 10 or so other alternatives to the individual mandate.

So I don't think one can say (although it's not explicit in your post) this is just right wingers being mean. There are plenty of legitimate ways to deliver the desired policy result without creating a precedent for unlimited governmental power.

I have to agree with mt here. To say that the ballot box is the only necessary "limiting principle" is to attack the whole notion of judicial review.

Further, I don't think that judicial review was an arbitrary invention of John Matshall's. It seems to me it was implicit in the original COTUS. Look to the language of the "supremacy clause" in particular here.

There is another important limiting principle at work in the health care debate. It also happens to also be the secret check and balance not mentioned the constitution: government incompetence.

'm inclined to agree with the argument that there are better ways to do this than the individual mandate, but this doesn't strike me as a hard Constitutional issue. There seems to be little argument that the tax and transfer power would enable the government to achieve the same results, and I don't see much point in waging the formalist battle here. But for the Circuit split, the case really isn't cert worthy.

The ballot box is the basic limiting principle excepting cases in which vulnerable, protected classes are involved--classes that might not be adequately protected via the ballot box. And the Supreme Court of all entities should be cognizant of this--the Justices were each appointed by a successive and shifting alignment of Administration and the Senate.

Any way this case is decided, it will likely cause serious harm to the Court's already ragged reputation. Conservatives have never forgiven the Court for Roe v. Wade nor liberals for Bush v. Gore. However decided, this case will be seen by part of the population as another example of the Court stepping in to decide a political question.

This is NOT a democracy, rather a democratic republic. Therefore, the ballot box is not the only limiting principle. The Constituiton was constructed in a way to precisely limit the powers of each branch of the federal government and to have checks on each. If the democrats had just gone with a single payer system funded by tax increases (puke), it would have been constitutional. I wouldn't like it, but it would not be sitting in pole position for Supreme Court smackdown. Congress can tax and spend all they wish (under powers granted in the Constitution) and at that point, the public only has recourse via the ballot box.

I understand Professor Levitan's argument some thought. I think that when he writes "The ballot box is the basic limiting principle excepting cases in which vulnerable, protected classes are involved--classes that might not be adequately protected via the ballot box." that doesn't tell the whole story. The First Amendment, the takings clause, presumption of innocence, etc. etc. are all Constitutional protections that don't protect members of select classes, they protect individuals, regardless of whether they claim to belong to a "vulnerable" class. Everyone is potentially "vulnerable" in the face of government power in the modern era, with drones and ridiculous surveillance and the kinds of weapons the government has at its disposal. The Griswold family of cases protects individuals, not a class. Like any litigant opposing government action, Griswold could have been told, go out and mobilize the electorate to repeal the ban on condoms if you don't like it. I don't view Griswold as bad law because it limited legislative power. I view it as an important limit on government in a nation where the people are supposed to be sovereign and thus there are supposed to be limits on government. It does come down to that and we will all be better off as competent citizens if the Court asserts that kind of limit. That, imo, is exactly what the Court was set up to do. It really is the first regulatory agency of the United States, its job being to regulate government power.

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