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The Dog That Didnít Bark: Another Bad Day for Conservative Jurisprudence

by Hadley Arkes
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The word had been getting around for a few weeks before the Supreme Court came out yesterday with that decision so jarring for some us in National Federation of Independent Businesses v. Sebelius: The word was going about that certain conservative members of the Supreme Court, sighted at gatherings of friends, were looking dispirited, discouraged, perhaps even depressed. With a Court remarkably free of "leaks," we feared that we were reading too much into body language. But as it turned out, the body language spoke the truth. Some lawyers had been doing double-takes over John Roberts's move this week to join the liberal wing in the case on Arizona and illegal immigrants. One veteran of the Supreme Court bench thought his move was "inexplicable." We feared that it might be the prelude to something worse. And so, we were bracing ourselves.

In the conservative blogs there has been a trend of rising anger toward John Roberts. And yet, Roberts was drawing out of the classic texts of judicial restraint: He invoked Justice Story to argue that the Court should try to find a plausible way of sustaining the constitutionality of any act of Congress, rather than flying too readily to strike it down. A few conservative commentators even expressed gratitude for those first 30 pages, where Roberts set in place so carefully the principles that would claim to limit the reach of the federal government. If anything, Roberts offered an account even crisper, more luminous, than the argument offered by the dissent in explaining why the Commerce Clause could not supply a ground of authority for the federal government in commanding people to buy a product, in this case medical insurance. "The Framers gave Congress," he said, "the power to regulate commerce, not to compel it. ... The individual mandate [to purchase medical insurance] forces individuals into commerce precisely because they elected to refrain from commercial activity." The Congress could not simply create the very commerce that the government may regulate.

But the consolation or even cheering on this point has been unwarranted, for Roberts proceeded in the rest of his opinion to make a near nullity of the limitation he had written so carefully to put in place. The Administration had insisted that the Patient Protection and Affordable Care Act (aka ObamaCare) did not raise taxes. And yet Roberts was able to engineer this sustaining of ObamaCare by holding that the penalties contained in the Act, the penalties for individuals and businesses not purchasing insurance, did indeed form a tax, not a penalty. The magical virtue of a "tax" in this case was that it wafted the federal government beyond all of those limitations supposedly found in the notion of limited and enumerated powers. It was rather like Peter Pan, relieved of all tethers, flying high over London. After all, the taxing power had been used to encourage people to buy homes, even though it was never clear as to what clause in the Constitution could authorize the federal government to encourage or discourage the sale of private homes. This isn't exactly like the Homestead Act, selling public lands to private owners. Nor was it strictly necessary to use the taxing power only for revenue: Congress had levied taxes in the past to discourage the import of slaves, but also the import of products from abroad competing with products made in America.

Still, in making his argument on taxes, Roberts had to face that principle expressed by Justice Story: that what we may not do directly, we may not do indirectly. If it is wrong to kill Jones, it is wrong to hire someone else to kill Jones. If the federal government may not compel people to buy medical insurance, why may it use the taxing system as a way of forcing them to do what the government has no power to command?

Roberts recognized that this problem was complicated further by the way in which the Obama Administration got around the Anti-injunction Act. (That Act seeks to prevent people from tying up the raising of revenue through the prospect of ongoing litigation. It bars plaintiffs from seeking injunctions to bar the enforcement of the tax.) To the surprise of all, the government was willing to take a pass on barring the suit on that ground. The Administration admitted that the penalty for not buying medical insurance was indeed a penalty, not a tax. The dissent rightly made much of this point. The Chief Justice sought to get around that argument by noting that "it is up to Congress whether to apply the Anti-Injunction Act to any particular statute." But whether Congress applied it here or not—whether it was willing to admit that it was imposing a tax—the question of whether a congressional act is constitutional should not depend on whether "Congress used the wrong labels."

But in this case there were denials all around that this was a tax; the fines had all the trappings, rather, of a penalty. As the dissenters noted in the sharpest language they delivered to the Chief Justice:

What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.

It would be a version of cheap "legal realism" simply to say here that ObamaCare was "sold" to the public as something other than a tax, but that functionally, operationally, it really was a tax. To say that the measure was "sold" to the public is a way of reducing to the plane of the vulgar something that has no small moral standing in the life of a republic: the bill had been "justified" to the public as something not a tax. The plain fact was that the managers did not think they could win the assent of the public and show how the measure was "justified" if it were really seen as a tax imposed on the public. This was not merely a matter, as the Chief Justice said, of using "the wrong labels." This business of labeling may be merely a matter of public relations only if we no longer take seriously that we are dealing with a government based on "the consent of the governed." If we do take that notion seriously, we understand that there should be at least some serious effort to give reasons, to explain what makes it "justified" or "just" to impose a policy on the public with the force of law.

In the meantime it is worth noting, in the style of Sherlock Holmes, The Dog that Was Not Barking Today: "Originalism." That notion is treated as a touchstone by so many conservative lawyers, even though it has a variety of meanings fading away with each refinement. The "originalism" of Justice Thomas is not the "originalism" of Justice Scalia. It is telling that the perspective of "originalism" found no expression in the opinions yesterday, except in the two-page dissent of Clarence Thomas. And from all we can see, it offered little guidance for the conservative judges as they confronted a momentous case that could alter the regime itself. I count myself with Clarence Thomas, John Eastman and Richard Epstein in holding to what may be a strong "originalist" position on the Commerce Clause. I'd be quite willing to scale back the Commerce Clause to something closer to its original meaning, before it was expanded beyond coherence after 1937. But the conservative judges over the years, in conservative fashion, sought to unsettle as little as possible in our law, and so they were content to confirm the main lines of that jurisprudence. Up to the time of the oral argument, there was a serious puzzle as to whether even Justice Scalia would decorously back away. There was a serious worry that he could say, in effect: "The jurisprudence of the Commerce Clause is in place, and you will have to defeat ObamaCare politically. Don't come to us, the judges, to do your political work."

Justice Scalia has remarked that the strength of "originalism" was that no alternative made good sense. Whether that is true or not, it might well be said that when the chips are down, on cases of real consequence, originalism seems to make no difference.

The largely untold story here is that the conservative judges and lawyers found themselves caught in the grooves of a jurisprudence that they themselves have helped to confirm over the years. In a series of articles and talks, this year and earlier, this writer had been making the case for an argument that breaks away from these grooves of the Commerce Clause. (See "Obamacare and Natural Rights," First Things [December 2011].) The hallmark of the Commerce Clause since the New Deal has been the classic case of Wickard v. Filburn (1942). Roscoe Filburn, a farmer in Ohio, had set aside a portion of the wheat on his farm for the domestic consumption of his own family. The urbane Justice Robert Jackson "explained" that this action, innocent enough, may have little consequence, but if everyone did that, there would be a vast aggregate effect that would have the most notable impact on the federal policy in managing agriculture. In a talk at the law school at Harvard a few months ago I pointed out how the same argument could be brought to bear precisely on the matter of abortion, and the argument would run in this way:

That singular, private abortion may be yours and yours alone, but when it helps to form an aggregate of 1.3-1.5 million abortions every year, it is having the most pronounced effect on the interstate market for baby food, diapers, bassinets, tuitions in schools, weddings, to say nothing of 1.3 million new taxpayers coming on every year to help fund social security and the system of welfare.

It is quite arguable that this argument fits not only plausibly, but compellingly, under the frame of the arguments we've heard under the Commerce Clause and Wickard v. Filburn. But of course we know that this argument would not stand a chance of succeeding. I think I could safely speculate as to what my lately discovered friend, Professor Tribe, would say when faced with this kind of an argument: The policy that restricts abortion would run counter to a principle that must be firmly embedded in the logic of the Constitution as nearly a first principle of personal freedom. My hunch is that he would offer an argument that transcends the argument moving in the familiar grooves of the Commerce Clause. And that sense of things seemed to be confirmed in a discussion a month or so ago when Paul Clement put the question as to why, under ObamaCare, people could not be compelled to buy (and eat) broccoli. Professor Neal Kaytal responded that a mandate of that kind would run counter to the deep premises of "privacy" and personal freedom contained in the Constitution. In other words, the liberal reflex is to move, without strain or shame, to an argument based on the deeper premises of constitutional rights or the deeper axioms of personal freedom.

But that is precisely the argument that conservative lawyers and judges have recoiled from making. And they hold back because they have come to see arguments based on natural right as the affectation of liberal judges, soaring beyond the tethers of the text and the Constitution. But with that recoil they confirm for the Left a monopoly on the claim to make the deeper moral argument. And yet their own natural reactions run precisely to the sense of personal freedom that is violated under ObamaCare. For the conservatives, the gravest problem in ObamaCare was that it portends a vast enlargement in the reach and powers of the State. A sixth of the economy would be brought under the control of the government, reaching matters of life and death in a momentous new way. Governments routinely have to deal with matters of war and peace, with decisions that would risk the lives of its citizens. But what has been engaged now are schemes for the rationing of health care under the monopoly powers of the government. The generous provision of care to the poor would come along with controls that could deny to ordinary people the medical care they would regard as necessary to the preservation of their own lives—and perhaps even deny that treatment when they are willing to pay for it themselves.

But to cast the argument over ObamaCare as an argument over "natural rights" would mark a break away from the grooves of the argument over the Commerce Clause. In the cause of accuracy in advertising, this is the argument we've been seeking to sound again as we have been putting in place the new Claremont Center for the Jurisprudence of Natural Law. We would try to move the argument slowly away from the lines that have been set in place from the time of the New Deal. We would try to bring it back to lines that came more easily and, we might say, more naturally to conservative judges not all that long ago: arguments based in the axioms of rights, or natural rights. And so part of our project, deepened by this crisis over ObamaCare, is to restore among conservative lawyers and judges a mode of argument they once used to know.

In the meantime, though, Obama now "owns" this jerry-built scheme bearing his name. As with everything else in his life, he lives at the expense of other people. The tab, as ever, will be picked up by others, and the public should be given a precise sense of what that tax bill will now be. Do you like the fact that your children will be covered up to the age of 26? Fine, and the bill for that service will be as much as it would have been if you had chosen to buy that premium package. Or did you expect someone else to be paying for it? The Romney crew should be putting in its ads those employers who are holding back from adding the 50th employee precisely because they don't want the "penalty"—er, rather, the "tax," that comes along, with a new ensemble of regulations. There was a certain fear that, if the Court swept away ObamaCare, many Catholics and Evangelicals, concerned about the mandates over abortion and contraception, could be lulled into the notion that the crisis had passed. But they are rightly alerted. The crisis over religious freedom will be removed now only if Obama and his works are removed.

Some of our friends have taken this consolation in the decision: John Roberts made it emphatically clear that the Commerce Clause found a hard limit—whatever else it is, it could not be the source of an authority to compel people to engage in commerce. But that holding does not figure to have much practical effect on any case likely to come, and it will do nothing to scale back the reach of a Commerce Clause already distended. Our urbane friends, I'm afraid, are telling fairy tales to themselves. And on the matter of constitutionalism, the truth comes closer now to the life described by a friend of mine, a professor who argued before the courts. I asked him once about the constitutional ground of a case he was arguing, and he replied that he really didn't know. He said that he threw into the mix any constitutional clause that would be remotely relevant, or even irrelevant—perhaps even the clause on issuing Letters of Marque and Reprisal. And he would let the judges decide what to use.

The Court seems to have left us then with that state of affairs, and so among the curious unions coming out this case is the juridical marriage of John Roberts and Nancy Pelosi. In that line now widely quoted, Pelosi was asked about the constitutional authority of the Court in passing ObamaCare, and she replied "Are you serious?" The Court has now supplied the completion of her thought: Our job is to pass the bill; the judges will figure out the constitutional ground.

Mark Twain famously said of Wagner's music that "it isn't as bad as it sounds." But the work of the Court this day is far worse than it sounds, and its effects will ripple well beyond our age.

Hadley Arkes is the Senior Fellow of the Claremont Institute's Center for Constitutional Jurisprudence