Randy Barnett, the intellectual godfather of the challenge to the Affordable Care Act, has uploaded his forthcoming Dunwody Distinguished Lecture, titled “Who Won the Obamacare Case (and Why Did so Many Law Professors Miss the Boat)?” Randy and I have discussed some of the themes in this article at length earlier. Any student of the case should read this piece in its entirety.
The most interesting section is the last part, which considers the state of the New Deal settlement following NFIB.
I believe most law professors missed the boat in this case because they have never properly understood the New Federalism of the Rehnquist Court. They all share what my Georgetown colleague Larry Solum has called the same “constitutional gestalt” about the meaning of the so-called New Deal settlement.40 To oversimplify, they think the New Deal and Warren Court’s rulings established that the Commerce and Necessary and Proper Clauses give Congress a power to regulate the national economy at its discretion, subject only the express prohibitions in the Constitution and perhaps some selected unenumerated rights.
But law professors have missed the possibility of an alternate interpretation of the New Deal Settlement that comprises a third constitutional gestalt – the gestalt that informed our whole litigation strategy. It is this: For better or worse, all the powers that were approved by the New Deal and Warren Courts are now to be taken as constitutional. But any claim of additional new powers still needs to be justified. Put another way, the expansion of congressional power authorized by the New Deal and Warren Courts established a new high water mark of constitutional power. Going any higher than this requires special justification.
This gestalt can be summarized as “this far and no farther” – provided “no farther” is not taken as an absolute but merely as establishing a baseline beyond which serious justification is needed.45 As Chief Justice Rehnquist observed in Morrison, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where the activity is economic in nature.”46 This is why the general acceptance of our claim that the individual insurance mandate was “unprecedented” was so crucial to the unexpected legal success we enjoyed. Accepting our claim that the mandate was unprecedented placed the burden of justification on the government.
Which brings me to a second tenet of the constitutional gestalt of the New Federalism: Any purported justification that would lead to an unlimited reading of Congress’s Article I, Section 8 powers would improperly contradict what Chief Justice Rehnquist called the “first principles” of our constitutional law.47 This is why the claim that “health care is a national problem” and other similar rationales offered by the government and by many law professors fell on five deaf ears. All these rationales, if accepted, would lead to a national police power qualified only by the Bill of Rights (as are state police powers). And this was contrary to the constitutional gestalt of the Rehnquist Court’s New Federalism.48
Barnett concludes by noting the relationship between “this far and no further” and originalism’s gravitational pull (an idea that Barnett shared with me in November).
Assuming you accept this description of the Rehnquist Court’s constitutional gestalt, however, you may well object: Why this far and no farther? Why draw the line at this point? Isn’t this arbitrary? Besides, where is all this in the Constitution? Here is where the growth of originalism since the 1980s enters the picture. Unlike the Heller case which was argued and decided on originalist grounds,49 in our challenge to the ACA we made no originalist claims whatsoever. But the original meaning of the Constitution still played a role because it lies behind the Rehnquist Court’s New Federalism exerting a gravitational force that we can seenow extends to the Roberts Court too. By “gravitational force,” I am not making a Dworkinian claim about the analytic force or pull of legal reasoning, but instead making a socio-cultural claim about the influence of originalist interpretation on even nonoriginalist doctrinal construction.50 But the ideas are similar.
In Back to the Future of Originalism, I explain Barnett’s theory of “this far and no farther” based on his talk at the 2012 Federalist Society Convention, and elaborate on the relationship between The New Deal Settlement and Originalism. Heller, as well as McDonald, could be argued primarily on originalist grounds because the court was working on a precedential blank slate, whereas in Federalism Cases, the New Deal settlement precedents are ensconced. There is no room for originalist arguments.
Perhaps the best examples in the first category are District of Columbia v. Heller and McDonald v. Chicago. In these cases, the Court was largely writing on a blank slate—precedential open fields, as opposed to deep in the thicket. The Court was in no way bound by any sort of New Deal compromise, as the precedential slate was clear. Thus, the Court was free to receive, and did apply originalist arguments. In fact, both the majority and dissent in Heller and McDonald advanced originalist arguments.
For decades, until Lopez and Morrison and other Rehnquist-era precedents, the Supreme Court was steadfastly locked in the second zone of the New Deal vision of Federalism. To paraphrase Larry Solum, that gestalt had crystalized. However, originalism’s gravitational pull would crack that chrysalis.
The tug of originalism, ever so slight, has been the force that has helped to break federalism free from its New Deal-imposed chrysalis.
Originalist scholarship began to emerge in the 1970s and 1980s that showed that the Court had departed from the original understanding of the Constitution in the New Deal cases, particularly with respect to federalism and structural protections of individual liberty. This scholarship exerted a pull on the Court’s jurisprudence, ever so subtle at first, but soon enough that the law, like a star being attracted to a planet, began to wobble.
Progressives observed this wobble, worried, and hoped that the Constitution would remain in the sole-orbit of the New Deal. Cases like New York v. United States, United States v. Lopez, Printz v. United States, United States v. Morrison, Seminole Tribe v. Florida and others are collectively dubbed part of the “New Federalism,” have proven otherwise.
Importantly, none of these cases were argued in terms of restoring the original meaning of the Constitution. The advocates did not need to. It was sufficient for the Justices to know that errors were made, those errors would not be fixed—in Justice Scalia’s words, they were “water over the dam.” However, with this understanding, Court should go no further from the Constitution’s original meaning without a sufficient justification from the government. In each case, the government failed to meet that burden, and the Court would go this far, but no further.
Further, the manner in which the government litigated the case strongly supports your theory that it went beyond the New Deal Settlement. Specifically, unlike Raich, the government could not simply cite Wickard. They tried to do this in the lower courts, and failed. Rather, the government assumed the burden of justifying why this extension from the New Deal settlement was constitutional.
Was this a case where the government was able to easily argue that the ACA was covered by the New Deal precedents like Wickard? Well they tried, but failed, as most judges, even those that ruled in favor of the government, acknowledged that this case was different, in at least one or more respects. Academics who stated that this was an open-and-shut case soon had to change their tune and refine their arguments when its failings were highlighted.
Instead, the government, tried to justify why this law was constitutional, beyond simply citing Wickard and Raich. They did this by focusing on the importance of regulating the costs of the health care market, and stressing how Congress had the power to address this national problem. In other words, the government’s behavior acknowledged that this law was going beyond what Congress had done before, and the United States was attempting to justify this departure.
This is the modus operandi for governmental litigation under the New Federalism: this far, but no farther, without a sufficient justification. As much as the government would hate to admit it, this case was not an open-and-shut case of simply applying existing precedents. The United States’ unwillingness to identify a limiting principle in terms of Lopez, Morrison, and Raich is evidence of that fact. The government’s decision to not rely on existing precedents was due to a fear that Lopez and Morrison proved “too capacious,” and “wouldn’t seem robust enough of a limiting principle under these circumstances.” In other words, the Court’s precedents did not resolve this matter, and the government assumed the burden of going further. NFIB fits squarely (roundly?) within the third ring of federalism.
NFIB’s implications extend far beyond the commerce clause, necessary and proper clause, and the taxing power.