Originalism and the "Individual Mandate": Rounding Out the Government's Case for Constitutionality

Dan T. Coenen*

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Introduction

From all appearances, the Supreme Court now is examining whether the new health care act’s minimum coverage provision—often referred to as the "individual mandate"—comports with the grants of power made to Congress by the Commerce Clause and Necessary and Proper Clause. The Court is considering this question against the backdrop of submissions made by the Solicitor General supporting the law and by a group of respondents vigorously attacking the law’s constitutionality. In a separate and more elaborate paper, I suggest that the two sides took dramatically different strategic approaches to the case.[1] The Solicitor General emphasized how the minimum coverage provision was of practical importance to Congress’s comprehensive effort to make health insurance policies broadly affordable on equal terms. Among other things, he argued that the provision guards against the risk that individuals would game the system by strategically waiting until they were ill to buy policies at a favorable, nondiscriminatory price. Although the government relied in part on McCulloch v. Maryland[2] to support the constitutionality of the minimum coverage provision, its argument was overwhelmingly based on modern precedents and pragmatic considerations.[3]

In striking contrast, the respondents rushed to occupy the originalist high ground. Time after time, in both their briefs and oral arguments, they drew attention to The Federalist, the "great Chief Justice," Hamilton, Madison, "the framing generation," "the founding," and "the Framers."[4] Counsel for the respondents took care to direct the Justices’ attention to the "text of the Constitution" and the purportedly "unprecedented" character of the minimum coverage provision.[5] They also sought to draw on the Framers’ original purposes by arguing that invalidation of the minimum coverage provision would vindicate "individual freedom," while ensuring that the federal government would not come to possess "plenary power."[6]

In my earlier work, I argued that these contrasting strategies raised a serious risk for the Solicitor General’s defense of the minimum coverage provision by creating the impression that the respondents held a much stronger hand than the government with regard to originalist lines of reasoning.[7] I also observed that the government in fact had—notwithstanding the picture painted by its non-originalist strategy—a powerful set of originalist arguments it could have made to the Court.[8] In this Essay, I seek to identify the central arguments that the Solicitor General might have offered but did not advance, while also focusing on key questions presented by the Justices at oral argument.

Gifts, Offices, and Corruption

Zephyr Teachout*

Editor's Note: This Essay is Part II of an exchange between Professors Seth Barrett Tillman and Zephyr Teachout on public corruption, policy, and the scope of the constitutional anti-corruption principle. Part I of the exchange is available here. Parts III and IV of the exchange are forthcoming September 2012. For questions or comments about the exchange, or to enquire about submitting a contribution, please contact the Senior Colloquy Editor.

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I. Four Disputes and One Agreement

When the Americans set up their new, independent government, they brought an original attitude towards offices and gifts which separated them from Europe. Gifts, which were part of European diplomatic culture, were recast as corrupt influences. And offices were viewed with fear of their corrupting power, given the examples of Europe. The "corner-stone" of the new Constitution, according to one delegate, was the provision designed to prevent lucrative offices from being sold and traded for political power.[1] This Essay, a response to Seth Barrett Tillman's challenge to my previous writing on founding era anxiety about corruption, is a partial exploration of the scope of the clauses relating to gifts and office holding.

Tillman[2] and I disagree about four significant things, but we agree about one even more significant thing. First, we disagree about how to interpret the changes in the Foreign Emoluments Clause from the Articles of Confederation to the Constitution. Second, we disagree about the precision with which the words "office under/of the United States" were used in the Constitution. Third, we disagree about how important these disputes are for contemporary constitutional doctrine. Fourth, we disagree about the degree of obsession with corruption exhibited by the men who wrote the original American Constitution. The bulk of this response will be to explain some of my thoughts on these disagreements.

A Modest Memoir: Justice Stevens's Supreme Court Life

Laura Krugman Ray*

Editor's Note: This book review is a Colloquy companion piece to the forthcoming Northwestern University Law Review Volume 106, Issue 2, which celebrates Northwestern Law alumnus and former Supreme Court Justice John Paul Stevens's life and career.

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The title of Justice John Paul Stevens's new book, Five Chiefs: A Supreme Court Memoir, tells us several things about the author before we have read a single page. By deflecting attention from the author to his subject, the title makes clear that this book will not be a celebration or even an exploration of Stevens's long tenure on the Court. And by designating the book a memoir rather than an autobiography, the title also cautions us not to expect a detailed account of the author's path to the Court. Instead, the modesty of the title prepares us for the modesty of the author, whose focus will be on the ways in which five Chief Justices ran their Courts. Stevens himself will be at the forefront only when needed to illuminate their successes and flag their occasional errors. Even this project is treated with self-deprecatory irony: the epigraph, borrowed from Lincoln's Gettysburg Address, announces that "[t]he world will little note, nor long remember, what we say here . . . ."[1] This is, in short, a book about the Court itself rather than about the author.

Citizens United and the Scope of Professor Teachout's Anti-Corruption Principle

Seth Barrett Tillman *

Editor's Note: This Essay is Part I of an exchange between Professors Seth Barrett Tillman and Zephyr Teachout on public corruption, policy, and the scope of the constitutional anti-corruption principle. Professor Teachout's response is forthcoming on the Colloquy this spring, and Parts III and IV of the exchange are forthcoming September 2012. For questions or comments about the exchange, or to enquire about submitting a contribution, please contact the Senior Colloquy Editor.

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Actually stable laws require a stable vocabulary . . . . Thus the magistrates of a state have a duty to see that names are not irresponsibly changed. —Richard M. Weaver, Ideas Have Consequences (1948) **   The Constitution was intended to provide structural encouragements to keep the logic and language of society as a whole from becoming corrupt, representing a technical and moral response to what they saw as a technical and moral problem. —Zephyr Teachout, The Anti-Corruption Principle (2009) ***

 

I. Why This Colloquy?

The test of great scholarship is whether it changes the way people think and the way people live. That is also true for legal academic scholarship. But, for legal academics, perhaps the greatest sign of scholarly achievement is judicial reliance upon our craftsmanship. By any measure, Professor Teachout's 2009 Cornell Law Review publication, The Anti-Corruption Principle,[1] is a success. In 2010, one short year after publication, The Anti-Corruption Principle was relied upon by Justice Stevens in his Citizens United v. Federal Elections Commission dissent,[2] just as it was cited, disapprovingly, by Justice Scalia in his concurrence.[3] If that was not enough of an accomplishment, The Anti-Corruption Principle has also been cited in practitioners' Supreme Court briefs, in other federal and state appellate and trial court briefs, and in more than thirty academic articles.[4] Finally, The Anti-Corruption Principle has entered the public discourse: George Will excoriated Teachout's article in his nationally syndicated column.[5] Now that is an achievement.

Justifying Diversity in the Federal Judiciary

Carl Tobias*

Editor's Note: This Essay is a response to Nancy Scherer, Diversifying the Federal Bench: Is Universal Legitimacy for the U.S. Justice System Possible? , 105 NW. U. L. Rev. 587 (2011).

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Introduction

Professor Nancy Scherer has offered a proposal to maximize diversity and legitimacy in the federal judiciary, a profound enigma that vexes judicial selection.[1] This is important because the selection process involves the very core of law and politics:[2] the President chooses nominees whom the Senate approves; once confirmed, these judges resolve controversial political issues.[3] Scherer proceeds by first examining rationales for and against a court-appointment strategy that would enhance diversity. She observes that both champions and critics of diversity share the goal of increased judicial legitimacy, although they obviously differ on how best to achieve it. Scherer then suggests a new solution, predicated on this common ground, to resolve the disagreement—urging diversity advocates to articulate the concrete benefits that expanding diversity can afford majorities and to collect and synthesize empirical information confirming these advantages.

This Essay descriptively and critically reviews Scherer's article. Although her account provides valuable insights into increasing diversity and legitimacy, it understates the crucial influence of politics. Indeed, the growing politicization of the selection process, which implicates the debate over diversity, could seriously undermine judicial legitimacy. However, President Barack Obama's approach to judicial appointments elucidates the issue and could point the way forward. This Essay thus scrutinizes Obama's judicial selection effort, which confirms many ideas that Scherer espouses while showing how political deficiencies in the modern selection process erode diversity and legitimacy, and perhaps Scherer's provocative solution. This response ultimately discusses some promising measures beyond Scherer's recommendation that could enhance diversity and legitimacy in light of the threat that politicization poses.

Why Congress Did Not Think About the Constitution When Enacting the Affordable Care Act

Neal Devins*

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Introduction

Over the next few months, the Supreme Court will spend far more time thinking about the constitutionality of the Patient Protection and Affordable Care Act (ACA)[1] than Congress did when enacting the ACA.  Lawmakers largely ignored the Constitution; congressional hearings never considered whether the Supreme Court would uphold the statute nor did lawmakers engage in constitutional fact-finding.  Instead, consistent with the conclusions in my recent Northwestern University Law Review article, Party Polarization and Congressional Committee Consideration of Constitutional Questions ("Party Polarization"),[2] lawmakers were far more invested in advancing the partisan aims of their party than sorting out the constitutional implications of the signature legislative accomplishment of the 111th Congress.

In this Essay, I will provide a descriptive account of Congress's general disinterest in the Constitution when enacting the ACA.  In so doing, this Essay will serve as a case study that bolsters the claims and evidence in my Party Polarization article.  This Essay is but one in a series on party polarization and committee behavior regarding the Constitution.  In a forthcoming essay that will appear in the print pages of the Northwestern University Law Review, I will extend this Essay's case study to make broader claims about the impact of party polarization on Congress's interest in federalism, including congressional fact-finding on bills which implicate constitutional federalism.

Do the Right Thing: Understanding the Interest-Convergence Thesis

Stephen M. Feldman*

Editor's Note: This Essay is a response to Justin Driver, Rethinking the Interest-Convergence Thesis , 105 NW. U. L. Rev. 149 (2011).

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Introduction

Professor Derrick Bell was one of the most influential constitutional scholars of the last fifty years. He helped create a genre of legal scholarship—critical race theory—and pioneered storytelling as a scholarly method. His insights spurred civil rights scholars as well as thinkers in other fields. One of his most important legacies—he died on October 5, 2011—is the interest-convergence thesis, which asserts that, historically, African Americans gained social justice primarily when their interests converged with the interests of the white majority.[1] Many scholars not only accept the validity of Bell's thesis but also extend its application to other contexts.[2]

In a recently published article, Rethinking the Interest-Convergence Thesis, Professor Justin Driver calls this legacy into question.[3] After acknowledging the prominence of Bell's scholarship in general, and the significance of the interest-convergence thesis in particular, Driver vigorously criticizes the thesis. He argues that it suffers from "four analytical flaws":[4]

The Bin Laden Exception

Erik Luna*

Editor's Note: This Essay is part of a Colloquy Exchange between Professors Alexander Reinert and Erik Luna on the Fourth Amendment concerns of the new, invasive airport security measures. Read Professor Reinert's contribution, Revisiting "Special Needs" Theory Via Airport Searches, here

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Introduction

On the evening of May 1, 2011, the American people learned that the world's most wanted criminal—Osama bin Laden—had been killed in Pakistan during a covert operation by an elite U.S. military team.[1]  The news triggered spontaneous gatherings and revelry across the country.  For the millennium's new generation, bin Laden had been the embodiment of evil—a real-life boogeyman—and, for some, "the first person I was ever taught to hate."[2]  Many young Americans will not be able to recall life without a deep-seated fear of the terrorist leader and the organization he founded,[3] all against a national backdrop of the so-called "war on terror."  Bin Laden's death thus signaled the "end of an era" and progress "toward a safer, less violent world."[4]

After emotions settled, however, thoughts turned to the ultimate impact of the operation that closed "the Bin Laden decade."[5]  The al Qaeda leader "really did a number on all of us," wrote New York Times columnist Thomas Friedman.[6]  "Who will tell the people how deep the hole is that Bin Laden helped each of us dig over the last decade—and who will tell the people how hard and how necessary it will be to climb out?"[7]  The question appears ripe in light of recent statements by top officials.  Defense Secretary Leon Panetta claimed that the United States was "within reach of strategically defeating Al Qaeda."[8]  Shortly thereafter, President Barack Obama announced that "Al Qaeda is under more pressure than at any time since 9/11" and that "more than half of al Qaeda's leadership" had been taken out.[9]

The time has come to begin a post-mortem examination, so to speak, of the damage wrought upon the United States and its people during the decade of bin Laden.  Some, like Friedman, have looked to the international consequences, including the perpetually troubled relationship among Arab states, Israel, and the United States, which was undoubtedly worsened by 9/11 and its aftershock.  This colloquy contemplates an area of domestic concern that represents perhaps the most palpable effect of terrorism on the American citizenry: travel by plane.  In his contribution, Professor Alexander Reinert provides thoughtful analysis of Fourth Amendment doctrine as applied to airport security.[10]  Here, I hope to complement his piece by offering some context on terrorism, with the goal of prompting discussion as to whether bin Laden's legacy will include yet another instance of constitutional exceptionalism.

Revisiting "Special Needs" Theory Via Airport Searches

Alexander A. Reinert*

Editor's Note: This Essay is part of a Colloquy Exchange between Professors Alexander Reinert and Erik Luna on the Fourth Amendment concerns of the new, invasive airport security measures. Read Professor Luna's contribution, The Bin Laden Exception, here

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Introduction

Imagine for a moment occupying your spare time by reading random appellate opinions in the Federal Reporter, and coming across the following passages in decisions addressing the Fourth Amendment limitations on airport searches:

When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.[1] The airport search is a direct reaction to the wave of airplane hijackings . . . , at which time popular feelings of fear and anger, and ultimately rage, called out for some program to safeguard air flights, and understandably so.  Airplane hijacking is a particularly frightening crime.  Many hijackers have been psychotic or political fanatics, for whom death holds no fear and little consequence . . . .  Today, the general methodology of the airport search has become more or less routine.[2] The danger [of airplane hijacking] is so well known, the governmental interest so overwhelming, and the invasion of privacy so minimal, that the warrant requirement is excused by exigent national circumstances.[3]

Surely you would be forgiven for thinking you were reading about the security measures recently put in place by the Transportation Security Administration (TSA): specifically, the TSA's installation of scanners that are capable of creating highly controversial images of random travelers as well as the "enhanced" pat frisks applied to passengers in certain circumstances.  But the language quoted above is from a different era entirely—the period beginning in the late 1960s when federal appellate courts heard a slew of constitutional challenges to new security measures imposed by airlines and the Federal Aviation Administration (FAA) in the wake of a sharp increase in politically-motivated "skyjackings."  My goal in this Essay is to examine the controversy surrounding the TSA's new airport search regime by reference to the Fourth Amendment jurisprudence developed in response to the first instantiation of mass airport searches.

Getting at Recess Appointments

Just weeks ago, President Obama announced that he would use a recess appointment to make Richard Cordray the director of the Bureau of Consumer Financial Protection.  Cordray had been nominated to the post months earlier, but Senate Republicans blocked his confirmation based on opposition to the agency’s structure and power.  President Obama went forward with the recess appointment despite the fact that the Senate was holding pro forma sessions and thus not officially in recess.  The constitutionality of the President’s decision immediately came under scrutiny, culminating in the release of a Department of Justice memo justifying the appointment.

Similar issues were the subject of a prior Colloquy exchange between Professors Tillman and Kalt. Because that exchange is particularly relevant in light of recent events, we have posted it here for interested readers.