Wednesday, August 25, 2010

A small disagreement with Barnett as to what is "unprecedented"

In his post today at the Volokh Conspiracy, which responds to Gerald Magliocca's post at Concurring Opinions, Randy Barnett makes the following point (quoting a Wall Street Journal article in which Barnett is quoted):

"Such a mandate is unprecedented: 'This is the first time in American history that Congress has claimed to use its power over interstate commerce to mandate, or require, that every person enter into a commercial relationship with a private company,' Mr. Barnett notes. 'As a judicial matter, it’s also unprecedented. There’s never been a court case which said Congress can do this.'"

Fair enough. I have not combed the Statutes at Large or the United States Reports personally to verify that these statements are uncontrovertably true. But I have no reason to doubt Professor Barnett on either point. He is an esteemed professor at Georgetown, very smart, and well versed in these fields of constitutional law. Further, he is a personal acquaintance of mine, whom I have always found to be thoughtful and open-minded.

But the next move Barnett makes in his argument, I think, is subject to question. Specifically, he pivots from the "unprecedented" nature of the ACA's insurance mandate to make the following argument:

"[D]ue to the now-concededly unprecedented nature of this claim of power, ANY constitutional theory adopted by the Supreme Court will be a novel one. Any doctrine UPHOLDING Congress’s power to impose a mandate either as an exercise of its Commerce Power or as a necessary and proper means to regulating interstate commerce will be new. For this reason, defenders of the mandate cannot complain about the novelty of a theory opposing the constitutionality of the mandate because ALL theories about so unprecedented an exercise of power will necessarily be new and novel."

Here, I think, we have a subtle sleight of hand, at least in one important sense.

To say that Congress has never before used its commerce power (as augmented by the Necessary and Proper Clause) to require individuals to engage in a commercial transaction with a private party is not to say that a new constitutional theory is necessary to uphold that particular use of the power. Rather, it is perfectly plausible to argue that it is merely a new ("unprecedented") application of a well-established (even deeply entrenched) constitutional theory: that Congress can regulate any conduct (whether described as activity or inactivity) when doing so is necessary (in Congress's view, so long as that view is reasonable) to the effective operation of a broader regulatory scheme, which scheme plainly regulates an interstate commercial market (in this case, the market for health insurance). That "constitutional theory" dates at least to Wickard v. Filburn, and perhaps much further back. It is not novel, even if the particular application of the theory as manifested in ACA section 1501 might be.

My larger point is that that what counts as a "theory" and what counts as an "application" of that theory is in the eye of the beholder. I understand Barnett's perspective, and I think it is a completely viable argument. Arguing that a new constitutional theory--an unprecedented "extension" of Congress's enumerated powers--is necessary to uphold the minimum coverage provision--is certainly a helpful frame to those arguing that the Act is unconstitutional.

But unlike the claim that Congress has never enacted a statute requiring individuals to purchase something in a private market (which I'm willing to assume is true), the claim that "a novel theory of constitutional law" is necessary to uphold the Act is unfalsifiable. And those who think 1501 is constitutional, in conceding the former, have not conceded the latter. They are different points. 

In short, what qualifies as an unprecedented extension of Congress's enumerated powers, as opposed to a straightforward application of existing law to a somewhat novel factual setting, depends entirely on who you ask. These are qualitative judgments, not provable facts. And, in this particular case, I think both perspectives are defensible.