In light of the bruising that Solicitor General Donald Verrilli took during this week's oral arguments, no one can blame Obamacare's supporters for trying to offer (belatedly) winning answers that the government’s attorney lacked. Two of the early entrants are law professors Akhil Amar and Jeffrey Rosen. But their efforts do not improve much on the government's offering.
Amar argues that Verrilli should have invoked the Militia Acts of 1792, which included a "mandate" requiring citizens to keep firearms at the ready. Anticipating the rejoinder that the Militia Acts and Obamacare were enacted pursuant to separate provisions of the Constitution, Amar replies, "It’s hard to see why that matters. If a mandate is a permissible regulation of a well-regulated militia" -- quoting the Second Amendment's opening words -- then "it is an equally permissible regulation of interstate commerce."
But Amar is looking at the wrong section of the Constitution. The Militia Acts were not a "regulation" passed under the Second Amendment; they were enacted pursuant to Article I, Section 8 of the Constitution, which gives the federal government the "power to ... provide for calling forth the Militia" and "to provide for the organizing, arming, and disciplining the Militia." In other words, the Constitution gives Congress the power not just to "regulate" the militia— on par with its power to "regulate" interstate commerce—but to affirmatively command the assembly and equipping of the militia. If the Constitution gave Congress the power to "call forth" interstate commerce, then Obamacare's individual mandate would not be in dispute.
Elsewhere, Jeffrey Rosen asserts that one "simple" argument would have won the day for the government: Namely, that health care subsidization inherently cannot be handled on a state-by-state basis, because any state that attempts to subsidize health care for the poor will only "end up attracting uninsured people from other states seeking to take advantage of its benefits." This, he posits, is the sort of "limiting principle" that would satisfy Justice Kennedy's apparent concern that affirming the mandate would open the door to mandates in myriad other federal programs.
Even assuming that Rosen's argument has a factual foundation—that is, that people will uproot themselves and move to new states simply on account of a welfare subsidy in another state—his remedy goes far beyond what needs to be done to avoid the interstate spillovers that he fears. Congress could appropriate funds subsidizing states' own subsidization of health benefits for new residents. Rosen's solution simply does not speak to the question frustrating the justices—that is, the introduction of a new "mandate" power under the Commerce Clause raises the specter unlimited federal power. Indeed, it is difficult to see how Rosen's proposal improves upon Justice Kennedy's own suggestion that markets in health insurance and health care may be inherently unique in terms of the external costs that some persons can impose upon others.
Finally, as the debate continues through the weekend, we can expect Obamacare's supporters to complain that the justices spent not enough time talking about the Constitution's "text." Slate's Dahlia Lithwick, already the Roberts Court’s most reliably acerbic critic (excepting Linda Greenhouse, whose lifetime achievement earns her emeritus status, just to give the rest of the field a chance), was beating this drum in an online chat with readers: "Technically they [i.e., the Justices] are really just meant to look at the law and the Constitution and NOT their personal feelings about whether the poor should be covered. That said, I didn’t see much talk of law either. It was pretty inchoate policy talk, more a Poly Sci seminar than Con Law at times."
Lithwick's coverage of this week's arguments has been colorful, to say the least. (Ramesh Ponnuru reviewed some of her mischaracterizations of the arguments this week, before observing—correctly—"Naturally, all of this is insane.") Still, even taking Lithwick at face value, it's hard to tell what legal arguments she was looking for. She certainly can't blame the justices spending too little time on prior precedents, given that the Supreme Court has never before decided a case in which Congress tried to impose a universal "mandate" through the Commerce Clause.
But in any event, Lithwick's criticism is particularly ironic to those of us who remember Laurence Tribe's recent book, The Invisible Constitution—or, more specifically, Lithwick's review of Tribe's book. Tribe argued that much constitutional law is found not in the express text of the Constitution, or in the Supreme Court cases applying those words, but rather in the unstated values undergirding the text—or the principles so widely accepted that history presented no occasion for litigants to fight over them. They are "invisible" only because they are so well founded that there has been little need to point them out.
Tribe's argument might well be used to support liberal notions of a "living Constitution," but it is not an inherently liberal argument; far from it. Indeed, the same reasoning supported the Supreme Court's decision in Alden v. Maine (1996), which held that the Constitution does not abrogate a state's "sovereign immunity" against lawsuits brought by the state's own citizens.
True, the Eleventh Amendment expressly provides such immunity against suits brought against a state by citizens of other states. But as the Court explained—in yet another majority opinion written by Justice Kennedy, incidentally—that state sovereign immunity was not simply a product of the Eleventh Amendment's text. "Rather, as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today ... except as altered by the plan of the Convention or certain constitutional Amendments."
In other words, the Constitution—from its very beginning—did not displace certain fundamental principles of law and liberty. And the fact that a structural principle has gone unchallenged in court for decades, if not centuries, should be evidence (but not conclusive evidence) in favor of its receiving express judicial protection. Sometimes the Constitution and precedents say it best when they say nothing at all.
Lithwick embraced this theory in 2008, when Tribe's book gave her another opportunity to complain about the Roberts Court—"a kick in the shin to 'textualism' and 'originalism,'" as she put it. In fact, she encouraged her readers—just weeks after President Obama's election, not coincidentally—to take Tribe's book as "a blueprint for reimagining the national constitutional conversation with fuller information about its complexities and internal tensions," an opportunity "to take the time to figure out what the founding document does rather than nitpicking about what it says."
That is precisely what the justices did this week and will continue to do in weeks to come, as they draft, circulate, and edit their opinions. In the meantime, Lithwick ought to give it a shot, too.
Adam J. White is a lawyer in Washington, D.C.