This is our second daily Community post.  The new topic for today addresses SCOTUSblog and legal blogging more broadly.  We want your thoughts on our site and how to improve it, as well as on what role legal blogging plays in improving the law and legal scholarship.

Yesterday’s topic on the health care litigation remains open.

The next upcoming topics involve the Maples ineffective assistance of counsel case; the Supreme Court’s patent jurisprudence; and originalism.

One revision to the Community system that we’re working on is the ability to sort a topic by the most recent comments.  There is so much good quality in there that it can get hard to follow each of the threads.

We always want to use these posts to highlight great comments.  Here are the five we picked for Day One.  Note that we thought there was amazing content all around, and our choices were also driven by the need to include a variety of perspectives on the many issues implicated by the cases:

Dawn Johnsen:  At the risk of sounding like a broken record (pardon the dated allusion), the case for Congress’s commerce clause authority to enact the ACA is simple and strong. The Supreme Court should treat it as such. The Court need not wrestle with the outer limits of the authority, or precisely how it will protect us from a government that may one day try to force-feed us all broccoli. The Justices should put an end to the harmful obfuscation that has developed around the commerce issue with a straightforward ruling reaffirming Congress’ plenary authority and upholding the Act. On a matter of this import and general interest, the Court should strive for a clear and direct ruling that can be understood by the American people. Any dissenting Justice who would strike down the Act—there should be no more than one on the merits (the Anti-Injunction Act question is far more difficult)—should be equally direct and acknowledge the radical nature of his approach.


David Kopel: The Court should re-affirm Gibbons v. Ogden, which followed the original understanding of the interstate commerce clause: “commerce” means mercantile exchange, plus some closely-related subjects, such as navigation. Among the subjects which are not interstate commerce, according to Gibbons, are “health laws of every description.” The Court should then over-rule South-Eastern Underwriters (1944), which broke from long-established precedent, and declared that even purely intrastate insurance was interstate commerce. Because South-Eastern claimed to be following original meaning, the modern Court should simply point out that none of the original sources cited by the South-Eastern opinion remotely support the contention that all forms of insurance are “commerce.”

Finally, Congress should explain that the Necessary and Proper clause underscores the unconstitutionality of the mandate. As McCulloch v. Maryland demonstrated, the original meaning of the clause affirms the Congress may exercise powers which are incidental to an enumerated power. The power to compel a private person to engage in commerce with a private company is not an incident of, or lesser than, the power to regulate voluntary interstate commerce. Further, government-created monopolies were, in the Founding Era, a paradigmatic example of improper government action. Therefore, it is not constitutionally “proper” to force citizens to spend their money on a government-favored Big Insurance oligopoly.


Gene Magidenko:  The congressional taxing power is a tricky issue in the case of the individual mandate, although I have doubts that it can be sustained under the Taxing and Spending Clause.

The primary inquiry is whether the mandate can be classified as a tax, and the response is probably not. It is true that the mandate is nominally imposed through the Internal Revenue Code. However, as Judge Sutton discussed at length in his concurrence in Thomas More Law Center v. Obama, the mandate does not function as a tax. Indeed, the “penalty” for not complying with the individual mandate is not a tax penalty (in the sense of a punishment for some tax deficiency, for example), but a fine.

It is also telling that in its findings under Section 1501 of PPACA, Congress expressly cited to the Commerce Clause – and not the Taxing and Spending Clause – as the source of its authority to impose the mandate. Calling the individual mandate a tax is tenuous. The battle over the constitutionality of PPACA will likely be fought under the Commerce Clause.

But let us assume for argument’s sake that the mandate were deemed a tax. Recent commentary suggests that the old line between revenue-raising and regulatory taxes no longer applies. However, most of the cases since 1936 addressing the distinction dealt with it in the Tax Anti-Injunction Act context. One can make a compelling argument that the term “tax” as used in the AIA is not necessarily the same as that used in the Constitution.

It might therefore be too soon to sound the death knell for US v. Butler. There, the Court held that where a purported tax aims to regulate – rather than simply raise revenue – it is allowable only where Congress has the ability to otherwise directly regulate the conduct it seeks to indirectly discourage by taxation. This distinction makes sense, and the Court has never overturned Butler.

Why should Congress be able to regulate indirectly by taxation where it cannot regulate directly under an enumerated power? If this distinction is still vital – and I think it should be – then the individual mandate will almost certainly be classified as regulatory. After all Congress itself acknowledged that it derived its power to enact the mandate from its ability to regulate interstate commerce. And so again we return to the Commerce Clause.


Philip Thoennes:  The idea of commerce as direct exchange was clearly set aside by the Supreme Court in Wickard v Filburn, along with conventional notions of production and consumption. Indeed, doesn’t the mitigation of risk in an insurance market constitute exchange (direct or otherwise), especially considering the sheer number of participants and dollars that constitute our health care market? (Some) of the Circuit Courts have easily reached this conclusion. Consider if the Court had gone the other way in Wickard, allowing farmers to opt-out of Congressionally mandated commodity quotas. Now imagine a farmer, or group of farmers, reentering the market due to supply or demand considerations, likely continuing and exacerbating interstate price fluctuations that Congress sought to control in the first place. The same logic may be applied to the Affordable Care Act, in recognizing that anything less than universal participation in the health insurance market will thwart the effectiveness of the rest of the Act (thus falling under the Necessary and Proper mantle, as well).

The health care market already displays near universal membership, and Congress is well within its limits in applying its Commerce Clause power to the fundamentally commercial health insurance market in order to achieve this same level of participation in the interest of reform. This is so, regardless of one’s political persuasion re government size and spending.


Adam Winkler:  Predicting the future is an especially hazardous task. The only reliable things to get from tea leaves is tea. Yet half the fun of being a Supreme Court Watcher is arguing over how the Justices will rule in the latest hot-button case. With the healthcare cases on a certain path to Supreme Court review, our attention turns to sorting out the potential votes. The task, however, is made difficult by the unpredictability of the Justices themselves. Although some of the votes are easy to guess — is there a single person in America who thinks Justice Thomas will vote to uphold the insurance mandate? Or that Ginsburg will vote to invalidate it? — the sad truth is that with judges, like investment advisors, past performance does not guarantee future results. They aren’t reluctant to distinguish away even the most on-point precedent.

I’d be very surprised if the decision was anything but 5-4. Some constitutional law types I know keep telling me that Roberts is an open vote. Ever since he was nominated, some have been trying convince themselves that he could be a relative moderate. In light of his 6-year record on the most controversial cases, this seems somewhat fanciful to me. Scalia will feel no obligation to follow his Raich concurrence — you remember, Congress has “every power needed to make that regulation effective.” That leaves us with Kennedy, and he’s impervious to tea leaves. A libertarian at heart, he’ll lean towards striking the law down. A believer in the important role of the federal government in solving collective action problems that beset the states, he’ll also bend a bit the other way. So how will he vote in the end? I’d say he’d vote to …..

Sorry, I switched to coffee.


Posted in Community

Recommended Citation: Kali Borkoski, Today in the Community: October 4, 2011, SCOTUSblog (Oct. 4, 2011, 9:35 AM),