Claeys Publishes Essay on Healthcare Mandate and Limits of Judicial Conservatism

Professor Eric Claeys has published a 7000-word public-opinion essay for the journal National Affairs titled "Obamacare and the Limits of Judicial Conservatism."

Claeys states that the individual mandate at the heart of the Patient Protection and Affordable Care Act of 2010 establishes a variety of new entitlements, cost controls, and regulations over the health sector and raises constitutional concerns due to its scope and the authority it claims for the federal government. At the same time, he rejects arguments that the mandate is constitutional and warns that a Supreme Court decision might be unpredictable, given that conservative judges are often pulled in different directions by competing attachments to "originalism" and to "judicial restraint."

"In trying to persuade the country to elect a coalition determined to repeal Obamacare, the law's opponents should ask: How can Obamacare claim to 'regulate' interstate 'commerce' when the act mandates that citizens purchase a service they do not want to buy? How can Obamacare claim to be 'proper' under the necessary and proper clause when it bloats and constipates the national government? And how is it 'proper' to divert regulation of health care and insurance from the state and local governments that are more accountable and responsive to the American people?" Claeys recommends.

Obamacare and the Limits of Judicial Conservatism, National Affairs, Issue Number 8~Summer 2011. By Eric R. Claeys.

"To be sure, as Judge Hudson's and Judge Vinson's opinions showed, judges need not assault the New Deal frontally to find the individual mandate unconstitutional. And politically, because Obamacare is almost as unpopular now as pre-1937 constitutional federalism was in 1936, a ruling voiding the individual mandate would run with the grain of popular opinion, not against it.

"All the same, conservatives on the Supreme Court may worry about protecting the Court's political capital long after the public has forgotten about Obamacare. When Justice Scalia respects precedent, defers to Congress, or refrains from construing indeterminate text, he does so at least in part to preserve the Court's standing in relation to Congress and the president. In Lane, he found it 'ill advised' for the Court 'to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government.' In the 1995 case Plaut v. Spendthrift Farm, he indicated that he prefers 'high walls and clear distinctions' in structural constitutional law because 'low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.' Depending on how he reads the relevant precedents and the term 'proper,' Scalia (or Alito, or Roberts) may decide that the theory followed by Judges Hudson and Vinson yields walls too low and distinctions too vague. Even if a ruling against the mandate did not provoke a crisis or a political backlash from Obamacare supporters in the short term, these conservatives might worry about its effects on interdepartmental relations over the long term.

"Opponents of Obamacare may dislike this possibility, but it would be unreasonable for them to blame any judge who shows judicial restraint in relation to Obamacare. After all, even restrained conservatives have a far greater interest in conserving the Constitution than do the legislators and the president who enacted Obamacare. The most constructive thing opponents of Obamacare can do is to persuade the American people to elect more public officials who want to conserve the Constitution, too."

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