Is it too late to obey the Constitution? Some answers for Prof. Magliocca
Professor Gerard Magliocca asks some brief questions about our Origination Clause challenge to the Affordable Care Act. First, he asks, how much should it matter that the Supreme Court has never invalidated a law for violating the Origination Clause, and second, to what degree should “reliance interests” affect the Court’s decision? If by the time the Court decides the case, it would “cause too much chaos” to hold the law invalid, would it still be the right thing to do?
Of course, it’s true that the Supreme Court hasn’t held a law unconstitutional under the Origination Clause. But there are a large number of important questions the Supreme Court has never decided before, for one reason or another. Before the Heller case, the Court had never squarely addressed the Second Amendment. And as Justice Scalia noted in Bond yesterday, it has never decided whether Congress can expand its authority by passing a treaty that requires it to do certain things it couldn’t otherwise do—even though this is a question that has occupied some of the brightest legal minds for generations. So the absence of precedent isn’t as unusual as it might seem.
Between 1788 and 1803, the Supreme Court never held anything to be unconstitutional. And after 1803, it was 54 years before the Court struck down another federal law. It wasn’t until 1907—120 years after the Constitution was written—that the Court took its first case regarding freedom of the press, and although the Fourteenth Amendment was ratified in 1868, it wasn’t until 1925 that the Court first barred states from infringing on free speech. And in NFIB v. Sebelius, the Supreme Court for the first time ever held that a federal law exceeded Congress’s power under the Spending Clause.
The Origination Clause is actually not a blank slate matter. The Court has heard several Origination Clause cases. Munoz-Flores, the most important precedent regarding the Clause, was decided as recently as 1990. In that case, Justice Thurgood Marshall emphasized that the Court could not be “absolve[d]” of its “responsibility to consider constitutional challenges to congressional enactments,” including challenges brought under the Origination Clause. And he rejected Justice Stevens’ argument that because the Constitution does not specify what happens if Congress refuses to obey it, the courts should therefore look the other way. “None of the Constitution’s commands explicitly sets out a remedy for its violation,” he noted. “Nevertheless, the principle that the courts will strike down a law when Congress has passed it in violation of such a command has been well settled for almost two centuries.” To say the Court can do nothing since the Constitution doesn’t specify the consequences of Congress breaking the rules would be to say “that no remedy is available for a violation of the Origination Clause.” This the Court would not accept because “[t]o survive this Court’s scrutiny, the ‘law’ must comply with all relevant constitutional limits. A law passed in violation of the Origination Clause [should] thus be no more immune from judicial scrutiny because it was passed by both Houses and signed by the President than…a law passed in violation of the First Amendment.” The same principle should apply even if the Court has never before struck down a law under that Clause. The Constitution does not become any less “the supreme Law of the Land” from desuetude.
As to “causing chaos,” that seems like an exaggeration. In fact, the NFIB decision has caused more “chaos” than a ruling in our favor would cause. That decision transformed the Individual Mandate and the required Medicaid expansion into “voluntary” provisions, which radically altered the economic and political incentives involved. By shifting the Act’s foundations, that decision promoted a collapse that has only been postponed (averted?) by the President’s recent decisions delaying implementation and granting regulatory exceptions and ad hoc exemptions. Now, even the hardships caused by the Act itself are considered grounds for being exempted from the Act! And the President’s choice to ignore violations of the Employer Mandate are actually going to result in more chaos and confusion down the road, as insurance companies try to figure out what they’re on the hook for. Given all the existing and forthcoming chaos, it’s hard to see how enforcing the Constitution in our case would really cause more harm.
I’m not saying reliance interests never matter. But the Court has allowed reliance to trump the Constitution’s actual language only in cases where the reliance is long-standing, and here it hasn’t been—the ACA isn’t even fully implemented yet, and won’t be by the time this case reaches the Supreme Court. And reliance issues matter more in cases that deal with substantive limits on government power, on which rights and expectations can be strongly based—for example, in Casey. But the Origination Clause is a procedural rule, not a substantive limit on what Congress can do. So if, indeed, the ACA is what the voters want, and a decision in our favor would create intolerable “chaos,” then Congress should have no trouble going back and passing it again in the constitutionally prescribed way. The Act’s supporters don’t want that, obviously, because they know Obamacare has never been supported by the American people, and it grows more unpopular every day. Had Congress chosen to follow the constitutional rules, it would never have passed the ACA in the first place. But isn’t that all the less reason for finding a “reliance interest”?
Finally, Prof. Magliocca says “my understanding of the Chief Justice’s holding in NFIB v. Sebelius is that five Republican Justices should not invalidate the signature law of the Democratic Party over the objections of four Democratic Justices.” I don’t recall reading that in the NFIB decision at all. In fact, that decision purported to be an interpretation of the Constitution, a law that binds all, regardless of political party. However cynical one might be about the Court’s political pragmatism, it has never been the rule that the “objections” of a minority of justices—least of all, their personal policy views—should be grounds for the Court choosing to uphold or strike down a law. Rather, the judiciary’s role is to determine whether a statute follows or violates the Constitution. If we were ever to come to the point where the Court decided its cases on the basis of political party alone, and then by deferring to the minority instead of the majority, we would live not under a government of laws, but of men. At that point, we might as well disband the Court and do whatever the loudest minority of voters tells us to do.
Now, my questions for Prof. Magliocca: You seem to be suggesting that constitutional provisions that haven’t been enforced by the judiciary for a long period of time lose their force as a result. Do you really believe this? If not, why not? If so, is the judiciary’s failure to enforce it the only criterion, or does Congress’s or the President’s failure to exercise a constitutional power also lead to its evaporation? And do you really believe that the holding of NFIB was that the majority of justices should allow what they think to be an unconstitutional law to remain on the books, notwithstanding their oaths of office, simply because the minority considers it their party’s “signature accomplishment”? If so, what is your view of Lawrence v. Texas? Or Roe v. Wade? Or desegregation? Should the majority have yielded to an impassioned minority in these cases, as well?
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