May 2, 2013

Does Obamacare violate due process of law?

By Does Obamacare violate due process of law?

My friend, Prof. Don Boudreaux, sent this letter to the editor of the Christian Science Monitor in response to my column about how Obamacare violates the Origination Clause. He suggests that since Congress passed the bill without knowing what it contained, it also violates the due process clause. “In what universe is due process of law served when legislators vote for legislation that they have not read?”

Prof. Boudreaux’s letter seems to be a little lighthearted, but while I wouldn’t try such an argument in court, it’s not unreasonable as a theoretical matter. As I explain in this article, due process of law prohibits the government from depriving people of life, liberty, or property in an arbitrary or unauthorized way. A legislator who enacts bills without knowledge or concern about their contents could be characterized as acting arbitrarily—but the question would not be whether or not the legislator had read the bill; it would be whether the bill itself is rational. Our focus in constitutional law isn’t (or shouldn’t be) on the subjective mental state of the legislator, but on the legislation that’s produced. It’s possible that a lazy or indifferent legislator might enact legislation that’s perfectly rational—perhaps it’s written by his staff or something. Such legislation would then satisfy the due process clause, notwithstanding the poor political leadership. On the other hand, even an attentive legislator can violate due process of law by enacting laws that are senseless in application. As Justice Louis Brandeis wrote, a law that’s reasonable at one point in time can be rendered irrational—in violation of the due process clause—due to changes in technology and circumstances.

Still, legislation that deprives people of liberty for unknown reasons, or reasons that no legislator can remember, can for that reason violate due process of law. Some years ago, a federal court in Washington, D.C., struck down a law prohibiting shoe-shine stands. Nobody really knew for sure why that law had been passed; it may have been a vestige of segregation, but there was no strong evidence either way. The court found that the law was therefore arbitrary, in violation of the due process clause.

There are also cases in which courts have found that pre-determined legislation is arbitrary. In Redevelopment Agency v. Norm’s Slauson, for instance, the California Court of Appeal held that the city violated the law when it prejudged whether or not a neighborhood was “blighted” and in need of redevelopment:

the hearing which led to the adoption of the resolution of necessity was a sham and the Agency’s policy making board simply “rubber stamped” a predetermined result. By the time the Agency actually conducted a hearing to determine the “necessity” for taking the property in question, it had, by virtue of its contract with the developer and issuance of revenue bonds, irrevocably committed itself to take the property in question, regardless of any evidence that might be presented at that hearing. All the while the owner had been misled, if not deceived, as to what fate was going to befall his property. That hearing was thus affected not by just a gross abuse of discretion but by the prior elimination of any discretion whatsoever. The effect of that abuse was, if not to nullify, to deprive the resolution of any conclusive effect on the three critical issues involved.

Of course, that wasn’t a due process case, but it indicates that legislative negligence can sometimes eliminate the lawful character of their enactments.

There are many reasons why a due process argument against Obamacare would not work. For one thing, some courts have made clear that where a law violates both the Due Process Clause and some other, more specific constitutional provision, a plaintiff must argue only the latter. For another, the concept of due process of law has long been under attack by judges and legal theorists of all political stripes. And even worse, courts have applied the lenient “rational basis” test to issues like this. Wrongheaded as Obamacare is, it is not so irrational as to fall below that threshold. And, of course, courts are loath to draw lines about how much legislative consideration or deliberation is appropriate. As a consequence, a due process argument against Obamacare would have no realistic chance of success. But Prof. Boudreaux’s deeper point—that lawmakers betray their constitutional oath when they fritter away individual liberty without taking such questions seriously—is spot-on.

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