Legal Commentary

At the risk of being tediously repetitious, I have to take exception to an assertion by Jason Mazzone in today's New York Times. According to Mazzone's op-ed piece, Judge Hudson's distinction between action and inaction in his decision striking down the "minimum essential coverage" rule is "a limit that makes sense of past cases, is steeped in the law?s traditions and allows the court to complete the task it began a century ago." I beg to differ: As I've noted earlier for believing that this action-inaction distinction is, in terms of federalism, a senseless distinction.

Don't get me wrong: I agree that the action/inaction distinction makes plenty of sense as a theory of individual liberty. Forcing people to do stuff generally constrains their liberty more than barring them from doing stuff. But this distinction is completely unrelated to the question any doctrine of enumerated powers must answer, viz., "why should we trust the states more than the feds to impose the challenged regulation?" If one's legal distinction sheds zero light on this question of relative institutional competence, then it is senseless to use the distinction to gloss Article I, section 8's limits. If it is an unduly oppressive burden on liberty for Congress to require consumers to buy health insurance (or a Chrysler car or whatever), then why is it any less of an unduly oppressive burden for the states to do so? If you cannot answer this question, then your action/inaction distinction is unrelated to any theory of federalism.

"So what? Who needs a theory of federalism?" Mazzone might reply: "One only needs five votes to make law, and legal distinctions unrelated to the purposes of the constitution are great at reeling in those votes." That was Chief Justice Rehnquist's M.O. in Lopez, United States v. Morrison, Morrison v. Olson, and South Dakota v. Dole. Rehnquist would write what I call a "fact sandwich" opinion in which he would start with a generalization too abstract to do any serious work, recite some "factors" or distinctions that would distinguish the case at hand from past cases, and then announce a conclusion. There was no effort to attach those factors to the abstract statement of general constitutional "first principles" with which Rehnquist began his so-called analysis. Why bother? He was the Chief and had his five votes: he'd leave the theory to the profs.

Judge Hudson pulled a Rehnquist -- serving up "factors" untethered to constitutional purpose and distinguishing cases with functionally pointless distinctions -- and it galls me to see an academic as smart of Jason Mazzone applauding him for it.

Mazzone praises the action/inaction distinction for distinguishing past cases: As he rightly notes, none of those old laws upheld in past decisions required action, after all. Mazzone's praise reminds me of Rehnquist's famous "precedent slaloms" in Lopez dodging past old cases by noting that none had involved "non-economic activity." In response, I want to scream, "And none of those cases involved a cabinet member named Sebelius. So what? Why is this distinction relevant to federalism -- that is, to the theory that the feds should do some things and subnational governments, other things? Mazzone has no answer to this question: He seems to think that one "makes sense of past decisions" by distinguishing them with concepts borrowed from other unrelated areas of law (torts, criminal law, etc), as if fashioning constitutional rules were a word game and not a sober effort at self-government.

But constitutional law is not -- and should not be -- a verbal game. Just because one's proffered distinctions and factors can survive the shell game of precedent-distinguishing and nose-counting that SCOTUS and its aficionados flatter themselves to call "legal reasoning" does not mean that one has actually fashioned a rule that will promote good governance of a great republic. The ultimate purpose of the enumeration of powers is (to quote the sixth of the Virginia Resolutions that formed the blueprint for Article I, section 8) to give Congress the power "to legislate in all cases for the general interests of the union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation." If one cannot explain how the action/inaction distinction marks a line between areas where the state are and are not "separately incompetent" to act, then one has just piled up more pointless doctrinal verbiage.

Why is this sort of "doctrine" not sufficient if it gains the necessary five votes? Because no nation -- and no majority of the SCOTUS -- will tolerate for long a formal rule that bears no relationship to practical purposes of the Constitution. Sure, Hudson's ramshackle distinction might win five votes from this Court -- but then the next Court, with a couple new members, will distinguish away the so-called doctrine, disgusted with the practical emptiness of the distinctions that the doctrine tried to make law. That's what has happened with the economic/non-economic distinction in Lopez and Morrison: Being functionally senseless, the Court distinguished them into oblivion in Raich.

Unless one can explain why one's rule will match governmental powers with governmental capacity, one has not fashioned a sensible rule that ought to govern the practical affairs of a great republic. Contrary to Mazzone's assertion, one has not even "made sense" of past decisions. Instead, one has just continued to the tradition of empty formalism that has given federalism jurisprudence a bad name.