Joel Alicea

Ilya Somin and Ed Whelan have criticized my Public Discourse article on the healthcare decision, which discusses dueling conceptions of judicial restraint within the conservative legal movement. I’m grateful to both of them for their critiques and will try to respond to some of their comments.

Somin claims that I “argue that the individual mandate case represents a sea change in conservative attitudes to judicial review.” Against this, Somin contends that “there is a lot more continuity in both liberal and conservative attitudes towards judicial review than [Alicea and Orin Kerr] suggest” and that the conservative argument for “stronger judicial enforcement of constitutional limits on federal power….long predates Obamacare.

Specifically, Somin takes issue with my characterization of then-Justice Rehnquist’s role in the conservative legal movement’s founding during the 1970s. I note that Rehnquist was a proponent of an older view of judicial restraint, a view that emphasized deference to legislative majorities and set a high bar for unconstitutionality before striking down statutes. Somin cites many examples of Rehnquist acting to enforce limits on federal power, such as the so-called Federalism Revolution of the 1990s. In short, Somin writes, “[T]here is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.”

I do not disagree with much of what Somin says. How could one dispute that judicial conservatives have long objected to the expansion of federal power and favored a judicial response to this accretion of authority? No one with a passing familiarity of American constitutional history could contest these points, and I did not do so in my essay

It is equally undeniable that Chief Justice Rehnquist was willing to enforce limits on federal power, especially during the federalism cases of the 1990s. My claim was not that Rehnquist was averse to patrolling the boundaries of federal power. Even a Justice with a far more modest view of the judicial role than Rehnquist will encounter statutes that he or she thinks are clearly unconstitutional.

Nor did I argue that Rehnquist’s view of judicial restraint remained constant throughout his tenure on the Court. I wrote only about his role at the founding of the conservative legal movement in the 1970s, long before the Federalism Revolution of the 1990s. That is not to say that Rehnquist’s views changed dramatically from the 1970s through the 1990s, but I confined my observations of the Justice to his role at the beginning of the movement.

I do think that Rehnquist expressed a modest view of the judicial role during the 1970s, as his 1976 lecture on the “Notion of a Living Constitution” shows. That lecture repeatedly emphasizes the role of legislative majorities in our constitutional system and the comparatively minor domain of the federal judiciary. True, in his discussion of Chief Justice Marshall and judicial review, Rehnquist makes clear he thinks the judiciary has a responsibility to strike down unconstitutional laws, but the sense one gets from the lecture is that he has a less aggressive conception of judging in mind than Keith Whittington described in Constitutional Interpretation or than Randy Barnett has argued for in recent years.

Even if I were mistaken in describing Rehnquist’s jurisprudence, that would not undermine my point that the older view of judicial restraint was once dominant in the conservative legal movement. Read More »

I published an article today at The Public Discourse arguing that NFIB v. Sebelius highlights “two visions of judicial restraint, and two eras of the conservative legal movement.” I’ve excerpted a portion below, and you can find the full article here.

At the sprightly age of 57 and less than seven years into his term as chief justice, John Roberts looks like a man whom time has left behind. The reaction among legal conservatives to the Roberts opinion in National Federation of Independent Businesses v. Sebelius (the healthcare case) has been brutal. Many have accused the chief justice of exchanging the black robes of the jurist for the trappings of the politician. The chief justice is said to have “blinked” and “failed [his] most basic responsibility.” Noted originalist scholar Mike Rappaport strongly implied that Roberts is “both a knave and a fool.” The cataloguing could go on.

As much as these reactions reveal about differing views on a hotly contested question of constitutional law, they are at least as interesting because of what they say about the state of the conservative legal movement. Read More »

One aspect of the Court’s decision that hasn’t gotten as much play is its holding that the mandate-turned-tax is not a direct tax for purposes of Article I, section 9, clause 4. The Court relied on its holding in Hylton v. United States (1796), which upheld the constitutionality of a federal tax on carriages. Central to that decision was whether the carriage tax was a direct tax or an indirect tax, but included in that question was whether the tax was an excise tax.

Since the Court has shown renewed interest in Hylton and the original meaning of the taxation power, readers might find useful a forthcoming article I am publishing with my co-author and noted originalist scholar, Dr. Donald Drakeman, in the Pennsylvania Journal of Constitutional Law. The article is called “The Limits of New Originalism.” It looks at the Hylton case in detail and examines the original meaning of the excise tax, all as a way of making a broader point about originalist constitutional theory. Read More »

Over at Balkinization, Mark Tushnet makes this point about the precedential value of Chief Justice Roberts’ opinion in NFIB v. Sebelius:

There is a “canon” of statutory construction known as the “constitutional avoidance” canon. It comes in two versions, now labeled the “classical” version and the “modern” one. On the modern version, a judge faced with a statute that, most naturally read, raises difficult constitutional questions, should adopt instead a construction—if one is fairly available—that does not raise such questions. On the modern version, then, the Chief Justice didn’t have to address the Commerce Clause question; all he needed to do was to note that the question was difficult and that construing the statute to impose a tax was an available reading.

The classical version is different. On that version, the canon of constitutional avoidance comes into play only when the statute, given its most natural reading, would in fact be unconstitutional. Only if it would be unconstitutional can the judge search for an alternate, available construction that would make the statute constitutional.

The Chief Justice appears to have used the classical version of the canon of constitutional avoidance in NFIB.

This is precisely the argument I made in my first post on this issue earlier this week. Many continue to point to the avoidance canon as a knock-down reason why Roberts’ opinion isn’t binding, but the truth is that there are two versions of the avoidance canon. Roberts chose one that made his analysis of the Commerce and Necessary and Proper Clauses the holding of the Court—and nothing required him to do otherwise.

UPDATE:  A friend of mine sent me the best argument I’ve heard yet about why the Commerce and N&P Clause portions of the Chief Justice’s opinion are dicta. Read More »

My previous post brings us to the most puzzling part of this stare decisis question: why didn’t the joint dissenters concur with the analysis in Chief Justice Roberts’ opinion relating to the Commerce and N&P Clauses? After all, if the Chief Justice’s views on the two clauses were necessary to his majority opinion and were not dicta, then the dissenters had every reason to join that part of his opinion to make clear that it was a holding of the Court.

Moreover, having reviewed the opinions, I think the joint dissenters and the Chief Justice make almost identical arguments about the two clauses. Sure, there are slight differences in emphasis and even in persuasiveness, but there is nothing in the Chief Justice’s opinion that should have given pause to the joint dissenters (or vice-versa). Chief Justice Roberts seems to agree, since he saw fit to include his “accord” signal in the passage discussed above.

Should the dissenters’ decision not to join that portion of the Chief Justice’s opinion affect its precedential value, given that they came to exactly the same conclusion using almost identical reasoning?

I think the answer would have to be no. Objectively, the Chief Justice and the joint dissenters are in agreement as to the result and the reasoning. If Noah Feldman’s book on the FDR Justices teaches us anything, it’s that the actions of the Justices are not always guided by high principle and a sound view of the law; they can also be driven by personal animosities and petty grievances. I am not at all suggesting that that is what occurred here; I am simply arguing that it would make no sense to permit a Justice’s styling of his or her opinion to determine what the law is.

Consider this hypothetical: a Justice concurs only in the judgment of a five-member majority decision because he misunderstood the reasoning of the plurality opinion. His concurring opinion actually follows the exact same reasoning as the plurality opinion, but he doesn’t realize this. Would we really say that the reasoning of the plurality doesn’t control future cases, despite the fact that all five Justices agree on that reasoning? A Justice’s mistake (or any other subjective reason) is no basis for throwing out what is objectively the state of the law.

This argument cuts the other way as well. Just because Chief Justice Roberts says the Commerce and N&P Clause discussion was integral to his opinion does not mean that it was. Whether the Chief Justice’s opinion is dicta is an objective inquiry.

So the real question, it seems to me, is whether one thinks that the Commerce and N&P Clause analysis was—as an objective matter—necessary to Chief Justice Roberts’ opinion. Read More »

Perhaps the greatest source of confusion coming out of Thursday’s healthcare ruling is whether the Court held that the Commerce and Necessary and Proper Clauses do not authorize the individual mandate. Five Justices agreed that the mandate could not stand on those two clauses, but because the mandate was ultimately upheld under the taxing power, some have suggested that the discussion of the Commerce and N&P Clauses was unnecessary to resolve the legal issues in the case and is therefore dicta.

Larry Solum and Deborah Pearlstein both note that on page 44 of his slip opinion, Chief Justice Roberts went out of his way to communicate that his Commerce and N&P Clause discussion—which was not joined by any other Justice—was necessary to the legal reasoning of his majority opinion:

But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

I would add that, although none of the joint dissenters concurred in the section of the Chief Justice’s opinion dealing with the Commerce and N&P Clauses, the Chief Justice was eager to show that he and the dissenters were on the same page. Note the citation at the end of this passage on page 30:

Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and proper” component of the insurance re­forms. The commerce power thus does not authorize the mandate. Accord, post, at 4–16 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting).

All of this makes it a lot more difficult to dismiss the Roberts-dissenters’ view as dicta, as Solum acknowledges. Read More »