Where Things Stand
posted by Gerard Magliocca
Time for some special weekend blogging as the health care vote draws near! When the House GOP starts objecting to unanimous consent requests for Democratic motions to “revise and extend remarks,” that’s when the fun will really start.
In a series of posts over the last year, I’ve explained that there is a robust pattern in constitutional politics that recurs every generation:
1. The established party system implodes.
2. There is a realigning election.
3. The new movement introduces landmark legislation that repudiates a central pillar of the prior regime.
4. That legislation faces extraordinarily intense resistance.
5. That resistance is met by procedural innovations to overcome that opposition.
We are now at stage 5 (the combination of deem and pass and reconciliation). After Scott Brown’s election in January, I noted in this post that we were at stage 4. (This post pointed out that we were at Stage 3 over the summer.) I’m drafting an article (that will hopefully be done this summer) that puts the health care debate in context by looking at the similar experience of earlier generations (the Jacksonian example, which involved the Indian Removal Act of 1830 and the Bank Veto, is discussed in my book).
Stage 6 involves the escalation of resistance. Republicans could say, “Well, we fought hard against health care reform but we lost. Now let’s move on to other things.” Don’t bet on it. Instead, they are going to turn the midterm election into a referendum on the Act. That will set the stage the next round of battles as each side tries to interpret the actions of the voters in November.
Stage 7 comes when King Kong (or Mighty Joe Young) gets involved–the Supreme Court. What will the Justices do with this Act? That may be one of the great constitutional cases of our time. You now have two issues–the procedure used to pass the bill in the House and the power of Congress to impose an individual mandate. I think the procedural argument will not go far, but the unusual way in the which the bill passes will taint the legislation (consciously or not) when the Justices take up the substantive issue.
Now you can certainly come up with a good doctrinal argument in support of the individual mandate. As I pointed out in this post, though, doctrine is a poor tool for predicting what will happen in these moments. I’m more impressed by the fact that lots of people think that the individual mandate is unconstitutional, as expressed by the growing number of states that are passing resolutions or (in Idaho) statutes that say as much. This is more telling, I think, about what the Justices will do. I hope to address that question in my draft article as well.
UPDATE: The House Democrats just announced that they will not use “deem and pass.” There will be a separate vote on the Senate bill. That eliminates any viable procedural challenge to the statute in court.
March 20, 2010 at 8:18 am
Posted in: Current Events
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Responses (8)
dave hoffman - March 20, 2010 at 9:22 am
Gerald,
I’ll look forward to the article! But you don’t mean to say – do you? – that any historical repetitions you see are inevitable or natural, do you? To what degree do you rule out contingency as a force here?
As for the meaning of the state petitions, when you say “lots of people,” does it matter how informed the positions are, or is the view evidence of its own strength. (Like w/r/t to the President’s citizenship.)
Gerard Magliocca - March 20, 2010 at 9:38 am
Hi Dave,
Well, it’s a pattern, but there are distinctions from one repetition to the next. In the case of the Supreme Court, sometimes the Court strikes down the landmark statute and sometimes they don’t. So I’ll try to lay out the factors that seem to shape how they decide.
I don’t think any state legislatures went on the record saying that the President is not a citizen. Non-crazy people think the individual mandate is invalid.
dave hoffman - March 20, 2010 at 2:12 pm
Non crazy people think that Lochner was rightly decided. That can’t be the test.
There are many historical patterns. I have doubts that you can extrapolate from past “factors” that shaped past decisions to future events. I’m sure you’ve thought about this tons more than I have…so, how do you deal with this kind of objection generally?
Gerard Magliocca - March 20, 2010 at 3:07 pm
Well, I look at this as similar to establishing cause-in-fact. You lay out the evidence and people either find it persuasive or not. Of course, even if “Every time X and Y occurred in the past Z followed” does not mean that Z will follow the next time X and Y occur. It’s just stating a probability, which, if you like what Holmes said in “The Path of the Law,” is what we lawyers do much of the time.
And just to be clear, I didn’t say that I think that the individual mandate is invalid. I’m just think there is a higher chance that it will be struck down than other people do.
Howard Wasserman - March 20, 2010 at 4:20 pm
Other than the absence of racial subtext, how are the states’ responses to the individual mandate and state insistence that it is invalid different than similar state reactions to the Civil Rights Act of 1964 or other Great Society legislation, all of which the Court upheld? How much does state resistance affect the Court’s constitutional analysis?
led tv stand | Platybus Ben's - March 21, 2010 at 3:36 am
[...] Concurring Opinions » Where Things Stand [...]
Frank - March 23, 2010 at 2:38 pm
From the following commentary, it appears to me that SCOTUS would have to be utterly lawless to declare this bill unconstitutional:
http://www.healthreformwatch.com/2009/08/25/is-it-unconstitutional-to-mandate-health-insurance/
Brett Bellmore - March 23, 2010 at 8:23 pm
No, but they’d have to break from a long stretch of failing to enforce the origination clause. All they’d have to do to strike down the entire bill would be to take notice that it originated in the Senate, not the House. That wouldn’t be “lawless”, quite the opposite. But it would be surprising.
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