Political Animal


April 09, 2012 6:06 PM Spurious Exception To a Spurious Doctrine

By Ed Kilgore

I don’t know if Ben Smith’s anonymous “conservative lawyer” quoted at BuzzFeed today is a reliable source, but his argument for what a 5-4 majority of the Supreme Court might do to invalidate ObamaCare is hair-raisingly plausible:

“The court is going to find a spurious exception to a spurious doctrine,” he said. Then he offered a version of the rationale the Supreme Court majority will, he predicts, use to overturn not just the mandate, but the entire bill:
“You have built an imaginary mansion, with thousands of rooms, on the foundation of Wickard v. Filburn — the 1942 ruling that broadened the understanding of how the Commerce Clause could be used to regulate economic activity.
“We aren’t being asked to radically revise the Commerce Clause and throw out seven decades of law, and we won’t. But we know the founders never intended the Commerce Clause to allow the Federal Government to regulate everything on the planet. So we are going to accept Randy Barnett’s basically spurious exception to that basically spurious idea, and throw out the Affordable Care Act on the grounds that the Commerce Clause regulates “activity” (which we don’t really believe), but not “inactivity” (because, why not draw the line somewhere?).
“This is to say: You have built a fantasy mansion on the Commerce Clause. You can hardly blame us if, in one wing of this mansion, down a dusty corridor, we build a fantasy room called “inactivity,” lock the door, and don’t let you in.

Under this construction, of course, the Court wouldn’t admit what it was actually doing, but would embrace the “spurious exception” in order to avoid a direct reversal of the “spurious doctrine.” But it would definitely burrow into the foundations of the “fantasy mansion” in a way that would make it relatively easy for a future, more radically conservative Court—say, the kind that might exist after eight years of a Romney administration—to “throw out seven decades of law,” and with it, the underpinnings of seven decades of social progress, including such minor items as the Civil Rights Act of 1964.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • Citizen Alan on April 09, 2012 6:27 PM:

    I've always considered the contempt conservatives have for Wickard v. Filburn as proof of how fundamentally hostile to 20th century America they are. You can have a nation whose government is virtually incapable of regulating intrastate business activity in any meaningful way, but don't expect it to be a First World nation or even a nation you'd want to live in. I hope the "anonymous lawyer" is ready for E Coli in his hamburger, petroleum in his drinking water, and more crime on his streets (people will have to do something to make ends meet once the minimum wage is abolished).

  • jpeckjr on April 09, 2012 6:52 PM:

    Maybe this would be an opportunity for states to create a different kind of "competitive advantage" for attracting businesses and create jobs.

    "Our state provides single-payer universal health care coverage for your employees. No more having to negotiate with health insurance companies or pay a share of premiums. Yes, taxes are higher than in a neighboring state, but not as high as those premiums. Plus, in that neighboring state, they made health insurance illegal as a way of being competitive. In our state, you'll have fewer sick days because your people will be healthier and happier knowing they can go to a doctor when they need to. Besides, we have better restaurants for your executives to eat in."

    Just a thought.

  • danimal on April 09, 2012 6:57 PM:

    Unless the "anonymous lawyer" is one of the 5 conservative jurists on the Supreme Court, I really don't know that this news story means a damn thing.

  • Dan on April 09, 2012 7:05 PM:

    Odd how they pick "free riding health care consumers" as the place to draw what hey admit is an imaginary line, when Raisch provided the much better "not economic at all" line.

  • howard on April 09, 2012 7:49 PM:

    there's no doubt in my mind that thomas and scalia consider the last 70 years of commerce clause jurisprudence unfounded, and i'm fairly certain that alito feels the same way.

    but i'm less convinced that roberts does - he's a friend of plutocrats, not conservative jurisprudence - and i'm pretty convinced that kennedy really does not want to throw out 70 years of precedent and open up all kinds of things to relitigation.

    so i'm still betting 6-3 to uphold.

  • Neil Bates on April 09, 2012 10:03 PM:

    I thought the big distinction for ACA was, it was just differentially taxing the inactivity instead of criminalizing it (meaning, making not doing it violation of law with what that implies administratively and per "reputation" etc), so it wasn't the same thing anyway. Whatever happened to that? And, how about that Militia Act of late 1700s requiring men to buy and maintain guns and ammo? Are the defenders of ACA doing their best?

  • pjcamp on April 09, 2012 10:18 PM:

    If you can't compel activity, can you have a draft? Or jury duty?

  • chikin on April 09, 2012 10:24 PM:

    If the ACA is overturned on Commerce Clause grounds, I anxious await the brief where the question is "Given the Court's holding in _National Federation of Independent Business, et al. v. Kathleen Sebelius, Secretary of Health and Human Services, et al._, should the Court reconsider its decision in _Gonzales v. Raich_?"

  • paul on April 10, 2012 8:11 AM:

    Hmm. Is failing to serve people at a restaurant or a store or a hotel/motel considered activity or inactivity?

  • DisgustedWithItAll on April 10, 2012 9:15 AM:

    It is going to be overturned. That is all you have to know. And the indirect cause is because for 30+ years Democrats/liberals/progressives have not found the fortitude and spine to fight back against the viciousness of the right. This is what cowardice brings. And then they're going to kill the New Deal and the Great Society while liberals/progressives sit back and make "clever" arguments and insults.

    When you're in a war, you have to know it. Liberals can't even fathom the idea. They believe they're in a debate.

  • cmdicely on April 10, 2012 12:17 PM:

    I donít know if Ben Smithís anonymous "conservative lawyer" quoted at BuzzFeed today is a reliable source

    If he's not a member of the Supreme Court, a clerk to one, then no. And if he was, he'd be identified as such, rather than a "conservative lawyer".

    but his argument for what a 5-4 majority of the Supreme Court might do to invalidate ObamaCare is hair-raisingly plausible

    It's not really particularly plausible, because the Supreme Court has fairly consistently ruled that Congress has the authority to mandate activity (and thus, prohibit inactivit) in the domains in which it has authority under Article I. There's no textual or historical support to hang a special inactivity exception to the Commerce clause on, so rather than creating a narrow special exception with limited impact in Commerce clause jurisprudence, what this would do is blow a giant gaping whole in the whole structure of the jurisprudence of Article I powers. A far less anonymous conservative law professor addressed this a while back -- as relayed by Greg Sargent.

    Now, the Supreme Court could possibly rule anyway imaginable, on any grounds imaginable, regardless of precedent, the text of the Constitution, or anything else. But there is nothing on earth that makes this particularly scenario especially plausible. Its just yet another instance of people with no special knowledge trying to make themselves feel important by shopping their fortune-telling to a media hungry to report on an issue of intense controversy when there is no real substantial news to report on the issue.

    And you falling for it for, like, the hundredth time.

  • Crissa on April 11, 2012 3:55 AM:

    I'm not sure what would happen to the court if they rule a one time exception. We'd hobble along, but we wouldn't know anything about what laws were and weren't constitutional. It'd be pretty much chaos in the courts.

    But we'd basically be where conservatives want - insanity of they-say-so-ism.