Judicial conservatism and the Obamacare cases

On the whole, conservatives have greeted the Chief Justice’s opinion in NFIB v. Sebelius with either of two responses: Apoplectic accusations of unbridled heresy, or warm approbation for persuading the liberal justices to go along with an opinion limiting the commerce clause’s reach. Neither reaction makes sense. The second is easy enough to dismiss: The liberal justices did not sign the parts of the Roberts opinion that would limit the commerce clause. The first requires a little more explanation. 1 Part I of this post faults the overreaction of conservatives to Roberts’ opinion; part II suggests what I believe to be a more serious critique.



For more than a century and a half, our legal tradition has placed a thumb on the interpretative scale: When the Supreme Court faces a constitutional challenge to a statute, it must ask whether the statute, without violence to the fair meaning of the words used, may be construed so as to bring it “into harmony with the provisions of the Constitution.” 2  This “settled” 3 and “cardinal” 4 rule, which “‘has for so long been applied by this Court that it is beyond debate'” 5—Professor Adrian Vermeule has traced it to a case predating Marbury v. Madison 6— holds it to be “elementary [that] when the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid,” it is the court’s “plain duty to adopt that construction which will save the statute from constitutional infirmity.” 7 It is not necessary that the alternative construction have been the legislature’s intent (if such a thing existed); it is not necessary that the alternative construction be the most sensible reading of the statute, still less the one that the court would adopt if there was no doubt that either construction were constitutional and thus no thumb on the scale. It need only be “plausible” 8 or “fairly possible.” 9

Only three terms ago, Roberts performed essentially the same trick as his Sebelius opinion, joined by seven justices. (The eighth didn’t question the construction; Justice Thomas thought it nugatory because he concluded that it wouldn’t actually avoid the question.) In Northwest Austin Municipal Utility District No. 1 v. Holder, 10 it was widely-tipped that the court might have to strike down a part of the Voting Rights Act. 11 The court avoided that grizzly business by construing the act’s authorization for bailouts by “State or political subdivision[s]” to cover the plaintiff, notwithstanding a statutory definition that might arguably have excluded it. 12

To be sure, the avoidance canon has limits. The text “must be genuinely susceptible to two constructions after, and not before, its complexities are unraveled. Only then is the statutory construction that avoids the constitutional question a ‘fair’ one.” 13 While “it is the duty of a court in considering the validity of an act to give it such reasonable construction as can be reached to bring it within the [Constitution,] … it is very clear that amendment may not be substituted for construction, and that a court may not exercise legislative functions to save the law from conflict with constitutional limitation.” 14 These limits guard against the canon being used to justify “wholesale judicial dismemberment of congressional enactments,” 15 or as a kind of judicial line-item veto. 16 It is not necessary that a construction be entirely implausible or impossible to be outside of what the canon allows; while the court “will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute or judicially rewriting it.” 17 And when an interpretation “strain[s]” the text in order to “make [the] law conform to a constitutional limitation,” suspicions may arise that the court has strayed into the making of a new law rather than the enforcement of the old one. 18


The Roberts opinion’s train of thought is simple to follow. Obamacare’s individual mandate was intended and most naturally reads as a mandate adopted under the commerce power. It is therefore unconstitutional. The traditional rule explained above thus requires a second inquiry: Is there another way to read the mandate so as to bring it “into harmony with the provisions of the Constitution”? The Chief Justice concludes that the answer is yes: The mandate functions as a conditional tax increase; because that is constitutionally-valid, the mandate can be read as a tax and therefore must be. The joint dissent, by contrast, having likewise concluded that the mandate is unconstitutional under the commerce power, concludes that precedent “establish[es] a clear line between a tax and a penalty,” and so “there is simply no way, ‘without doing violence to the fair meaning of the words used,’ to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.” 19

So: Under prevailing traditions of judicial construction, the court is obligated to bend statutes to save them from unconstitutionality, but it is forbidden to bend them too far. Does Roberts get too much mileage from the canon, or do the dissenters get too little?

I tend to agree with the joint dissent. But as the foregoing discussion shows, the question is far from simple, and reasonable minds can differ on the outcome. Existing doctrine supplies a standard, not a test, still less a clear resolution. The outpouring of hostility—much of it from laymen who have little or no familiarity with the foregoing—therefore seems very overheated and unbecoming. And coming from conservatives, it is unfathomable; the Roberts opinion rests on a traditional rule of jurisprudence which is in turn designed to enforce the traditional understanding of the proper role of the courts under our Constitution. 20 Conservatism is and may be understood to be many things, but it is never the renouncement of tradition. Indeed, one might plausibly argue that to the extent the Chief’s opinion employs a stronger form of the canon than recent precedents suggest, Roberts is reaching more deeply into the traditional rule, because, as Justice Thomas has previously recognized, the canon is today weaker than it once was:

The modern canon of avoidance is a doctrine under which courts construe ambiguous statutes to avoid constitutional doubts, but this doctrine has its origins in a very different form of the canon. Traditionally, the avoidance canon was not a doctrine under which courts read statutes to avoid mere constitutional doubts. Instead, it commanded courts, when faced with two plausible constructions of a statute–one constitutional and the other unconstitutional–to choose the constitutional reading. 21

There are a number of criticisms one could mount of the Roberts opinion, especially if one happens to be a liberal, but it is hard to fault it as “not being conservative.” Such a complaint bespeaks a lack of familiarity with the relevant law and, quite frankly, the intellectual traditions of conservative thought.


There is, however, a serious conservative criticism of the Roberts opinion: What it holds back from federal power with the left hand, it gives back with the other.


Rejecting the administration’s commerce clause theory, Roberts observes that while economists might not distinguish between activity and inactivity, “the distinction between doing something and doing nothing would not have been lost on the Framers, who were practical statesmen, not metaphysical philosophers.” 22 Quite so. I think that the framers would also have been lost by the distinction between “the government may not direct a man to do X” and “the government has such broad power to tax that it may make the choice not to do X so unappealing, so practically difficult, that every rational man will be compelled to do X,” which is the upshot of Roberts’ analysis. Because we know that the Constitution frames a limited government, and that the power to tax is the power to coerce, 23 we intuit that there must be some kind of limit on the tax power. 24 We may confidently assert that the framers would have been astonished by cases like Sebelius and South Dakota v. Dole. 25

But the framers’ astonishment is not a self-effecting limit on the taxing power. Their intent (if there were such a thing as a unified intent 26), is not controlling; still less the feelings that they would have expressed on the point had it occurred to them. What is controlling is the original meaning of the ratified or duly-enacted text—the semantic content as it would have been understood at the time of adoption by a reasonable person well-versed in the Anglo-American legal tradition. 27 That meaning is not airtight. Had the framers of the Constitution been given a Muad’dib-esque prescience as to the sixteenth and seventeenth amendments and cases such as Dole, there is little doubt that they would have imposed textual limits on the tax power to preclude that power from swallowing their carefully-constructed restrictions on federal power. 28 But they weren’t, and they didn’t.

The question, then, becomes this: What is the response of jurists, and especially conservative jurists, to this dangerous lacuna? In the absence of an explicit, discrete textual limit on the power, should the courts remedy the lack of explicit textual limits by imposing doctrinal limits of one kind or another? 29


I should first say a few words to clarify—although I fear that they may muddy—the meaning of “conservative jurist.” There are a variety of approaches to law subsumed under the broad heading “conservative.”

Liberals are apt say that judicial conservatives are “strict constructionists,” which would seem like a calumny were it not for the insistence of some conservative laymen (not coincidentally including many of the Chief’s critics) on using the term. Still, strict construction is a conservative judicial philosophy, and a strict constructionist, I suppose, would have to take the view that because the text doesn’t impose such limits, there are no such limits. (No judicially-enforceable limits, that is; there is the political limit of the ballot box, and that is the rejoinder of liberals quoad federalism in cases such as Garcia v. San Antonio Metro, 30 but I am skeptical of it. 31)

Nevertheless, many judicial philosophies may fairly be called “conservative,” either in a procedural sense or a substantive sense. Minimalism is a proceduralist conservative judicial philosophy, albeit a flawed one. A strong and consistent adherence to stare decisis is a proceduralist conservative judicial philosophy, albeit a flawed one. “Judicial restraint” would be too, if anyone could figure out what it meant. Construing the Constitution in a way that gives the benefit of the doubt to the interests of law enforcement is a substantive (i.e. politically) conservative position, and so is insisting on vigorous application of Constitutional rights when there is no doubt as to their meaning. And, yes they’re flawed, too.

While recognizing that it has no exclusive claim on the label “legal conservatism,” the most prevalent species of it today is the one that isn’t flawed—the one that Judge Frank Easterbrook has termed “legalism,” a heady and pleasant brew of textualism, originalism, legal process, and various other things that make Judge Richard Posner choke. 32 That is what I mean when I describe myself as a legal conservative, and I think it’s the one that is most often meant when those who know of what they speak talk about conservative judges.


Some months ago, I suggested to Dahlia Lithwick that the (to her) inexplicable willingness of conservative judges to embrace the activity/inactivity distinction pressed in the Obamacare cases was an attempt to escape the morton’s fork that legalists face today. The dilemma is this: The new deal settlement, taken to its illogical conclusion, would arguably lead to unlimited federal power, which is unacceptable, but for a variety of reasons, the judges want to avoid revisiting those cases. What to do?

One answer is to raise doctrinal fences that protect the constitutional structure, even if those limits might be questionable as a matter of “strict textualism,” if there is such a thing. Clear statement rules, sovereign immunity, and the anticommandeering doctrine are three examples of such fences. 33 The activity/inactivity distinction is another one. I find the arguments that such a distinction is embedded into the the text to be persuasive, as the Chief Justice and the joint dissenters explain in Sebelius, but think that I would embrace such a limit even if it was not.

How can I say that as a conservative, as a self-proclaimed textualist? As we have seen above, a legal conservative is not necessarily a strict constructionist. Most of us aren’t. A legal text should not be construed strictly; it should be construed reasonably, 34 recognizing that it subsumes and preserves all of the linguistic and traditional presuppositions that were fired into it. To recognize that a wall is made of bricks does not deny that on a deeper level it is made of sand, clay, and lime, and vice versa. Textualism by no means requires us to treat a wall as a collection of individual bricks. We are no more required to pretend that words, punctuation, and grammar do not assemble into clauses than to pretend that clauses do not assemble into articles, and those into a unified whole. This was the import of my qualification above: Rather than the absence of textual limits, I referred to the absence of explicit and discrete textual limits. There is no federalism clause in the Constitution, for example, 35 but that no more makes federalism atextual than the failure of War and Peace to declare that you are reading a book makes it a banana. We might call this the textualism the “whole text rule”: The lack of a single textual brick does not mean that there is no pertinent text; the wall itself is a text. 36

And that wall is constraining even when the besiegers find a hole in the brickwork. As noted above (at risk of mixing the metaphor), the text is not airtight. Then-Judge Robert Bork put it well:

The important thing, the ultimate consideration, is the constitutional freedom that is given into our keeping. A judge who refuses to see new threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty. That duty, I repeat, is to ensure that the powers and freedoms the framers specified are made effective in today’s circumstances. The evolution of doctrine to accomplish that end contravenes no postulate of judicial restraint. The evolution I suggest does not constitute a major change in doctrine but is, as will be shown, entirely consistent with the implications of Supreme Court precedents. 37

This does not mean, of course, that the Constitution “evolves,” only that as progressives try new strategies to breach the keep, new defensive strategies may need to be employed to maintain the integrity of the whole structure. Generally-speaking, Bork noted, “doctrine is merely the judge-made superstructure that implements basic constitutional principles.” 38 In this sense, the suggestion of judicial erection of doctrinal fences is hardly a novelty; aside from the fences already mentioned, the exclusionary rule  springs to mind. 39 I think that when Congress seeks to overreach, as it has in this case, 40—when Congress seeks to go beyond the traditional functions of the federal government, or of any government, or to interfere with or displace the States’ freedom to structure operations in areas of their traditional governmental functions 41—the courts should impose doctrinal fences that constrain open-ended Constitutional texts such that no one provision may swallow the overall scheme, much as we impose doctrinal limits to prevent the general scheme obviating specific guarantees quoad individual rights. 42. Those who equate judicial conservatism with strict construction will not recognize this as a conservative paradigm, but to the extent that it is simply a gloss on legalism and is literally conservative of the constitution, I think it can be so called.

With the foregoing in mind, I can say that what’s primarily “wrong” with the Roberts opinion, from my point of view, is that having minted a new doctrinal fence to constrain the commerce power, it fails to mint what would essentially be a new doctrinal fence to constrain the tax power. And in that sense, even if one thinks he’s wrong, it’s hard to fault him for not being “conservative.”

*  *  *

Professor Rick Garnett, writing in the Chicago Tribune, has summed up the bottom line:

[A] majority of the justices rejected the sweeping arguments for congressional authority that most of the act’s defenders uncritically, sometimes even smugly, took for granted. The mandate stands, but the received wisdom that Congress is the sole judge of the reach of its own regulatory powers might not. …

. . . .

[O]ur Constitution has a lot more to say about how decisions are made than about which decisions are made. The question that matters, for courts, under our Constitution, is more often “who decides?” than what should be decided. Our Constitution is more than a list of rights. It is a framework for decision-making and problem-solving, one that aims to protect freedom and “promote the general welfare” by separating, dividing, channeling and constraining government power. As the chief justice reminded us, the court, Congress and all of us have a responsibility to safeguard the “structure of government established by the Constitution” and that structure is one in which federal power over states and individuals alike is limited.

I think that’s exactly right. Still, it’s not unfair to say that Professor Randy Barnett was the engine room for the litigation, so I shall give him the last word. The final paragraph quoted below suggests another way out of the morton’s fork that I mentioned above:

Had we not contested this power grab, Congress’s regulatory powers would have been rendered limitless. They are not. On that point, we prevailed completely. Indeed, the case has put us ahead of where we were before Obamacare. The Supreme Court has definitively ruled that the commerce, necessary and proper clause, and spending power have limits; that the mandate to purchase private health insurance, as well as the threat to withhold Medicaid funding unless states agree to expand their coverage, exceeded these limits; and the court will enforce these limits.
. . . .

[W]hile the court has previously invalidated statutes that exceeded the commerce clause, not since the New Deal had it rejected a law for exceeding the spending power of Congress — until [Sebelius]. The court invalidated the part of the Affordable Care Act that empowered the Department of Health and Human Services to coerce the states by withholding Medicaid funding for existing programs unless the states accepted new coverage requirements. All of this represents a fundamental departure from how most law professors viewed constitutional law before Thursday.

. . . .

During the New Deal era, Americans acquiesced to an enormous expansion of federal power that they were promised would end the Great Depression. And the Supreme Court eventually expanded its interpretation of federal power accordingly. In contrast, during the Great Recession, millions of Americans were appalled by government bailouts, the horrific increases in spending and debt, and the intrusion into their lives that is coming with Obamacare. They responded by demanding a return to the Constitution’s constraints on federal power. This fall, they can demand that the next president nominate justices with the fortitude to return Congress to the original meaning of the powers provided to it by the Constitution.



  1. Customarily, Motu Proprio does not feature political and legal topics, which are in the province of the Stubborn Facts blog. See 1 MPA 1, 2 (2012). But SF is temporarily unavailable, and I therefore plead proprietor’s rights.
  2. Grenada County Supervisors v. Brogden,112 U.S. 261, 268 (1884); accord Newland v. Marsh, 19 Ill. 376, 384 (1857).
  3. Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J., concurring).
  4. Knights Templars v. Jarman, 187 U.S. 197, 205 (1902); NLRB v. Jones & Laughlin Steel, 301 U.S. 1, 30 (1937).
  5. Almendarez-Torres v. United States, 523 U.S. 224, 250 (1997) (Scalia, J., dissenting) (quoting DeBartolo v. Fla. GCBCTC, 485 U.S. 568, 575 (1988)).
  6. See Vermeule, Saving Constructions, 85 Geo. L.J. 1945, 1948 (1997) (citing Mossman v. Higginson, 4 Dall. 12 (1800)).
  7. United States v. Delaware & Hudson Co., 213 U.S. 366, 407 (1909); accord, e.g., Crowell v. Benson, 285 U.S. 22, 62 (1932); Jones v. United States, 526 U.S. 227, 239 (1998).
  8. Clark v. Martinez, 543 U.S. 371 (2005); see Philip Frickey, Faithful Interpretation, 73 Wash. U. L. Q. 1085, 1088 (1995) (“if the most likely conventional usage of statutory words would violate the Constitution, under traditional dogma the interpreter should prefer a different interpretation, at least so long as the saving construction is also plausible from the perspective of conventional usage”).
  9. United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916).
  10. 129 S.Ct. 2504 (2009) (“NAMUDNO“).
  11. See, e.g., Rick Hasen, Sordid Business: Will the Supreme Court kill the Voting Rights Act? (Apr. 27, 2009); Lyle Denniston, Is Section 5’s future shaky? (June 22, 2009);  Adam Liptak, Justices retain oversight by U.S. on voting (June 22, 2009) (“Most election law specialists had expected the court to rule on whether a core provision of the law was constitutional, and many were betting the answer would be no.”)).
  12. Cf. NAMUDNO, supra, at 2517 (Thomas, J., dissenting) (“The doctrine of constitutional avoidance factors heavily in the Court’s conclusion that appellant is eligible for bailout as a “political subdivision” under §4(a) of the VRA.”)
  13. Almendarez-Torres, supra, at 238.
  14. Yu Cong Eng v. Trinidad, 271 U.S. 500, 518 (1926).
  15. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 509 (1979) (Brennan, J., dissenting).
  16. Cf. Tom Campbell, Severability of Statutes, 62 Hastings L.J. 1495 (2011)
  17. CFTC v. Schor, 478 U.S. 833, 841 (1986) (internal quotation marks and alteration deleted).
  18. Yu Cong Eng, supra, at 519-20.
  19. NFIB v. Sebelius, no. 11-393 (S. Ct., June 28, 2012), joint dissent at 18 (quoting Brogden, supra, at 269)
  20. See supra, nn.15-16 and accompanying text; cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring).
  21. Clark, supra, at 395 (Thomas, J., dissenting).
  22. Sebelius, supra, at 24 (internal quotation marks deleted).
  23. Cf. M’Culloch v. Maryland, 4 Wheat. 316, 431 (1819).
  24. But cf. id., at 427. See also Robert Cooter & Neil Siegel, Not the Power to Destroy: A Theory of the Tax Power for a Court that Limits the Commerce Power, forthcoming, Virginia L. Rev. 2012; available at SSRN (March 10, 2012)
  25. 483 U.S. 203 (1987).
  26. Legal conservatives have long denied it. “Intent is elusive for a natural person, fictive for a collective body.” Frank Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol. 61, 68 (1994); accord, e.g., Antonin Scalia, A Matter of Interpretation 38 (1998).
  27. See, e.g., Michael Stokes Paulsen, A Government of Adequate Powers, 31 Harv. J. L. & P.P. 991 (2008); Robert Bork, The Tempting of America 144 (1990) (“Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time”); SF: The Limits of the Recess Appointment Power n.5 (April 2010), reprinted at Simon Dodd, Overthinking It 231, 251 n.5 (forthcoming 2012).
  28. Cf. Arizona v. United States, no. 11-182 (S. Ct., June 25, 2012), Scalia dissent at 21-22
  29. Cf. Panhandle Oil Co. v. Mississippi ex Rel. Knox – 277 U.S. 218, 223 (1928) (Holmes, J., dissenting) (“The power to tax is not the power to destroy while this Court sits.”)
  30. 469 U.S. 528 (1985).
  31. See, e.g., Open letter to congressional candidates in Dodd, supra, at __; cf., in other contexts, Clinton v. City of New York, 524 U.S. 417, 451-52 (1998) (Kennedy, J., concurring) (a concession of power is not unconcerning because it is voluntary); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 662 (1993) (voluntary cessation of challenged conduct does not moot a case because the actor is free to resume his conduct after dismissal of the suit).
  32. See, e.g., District of Columbia v. Heller, 554 U.S. 570 (2008); State ex rel. Kalal v. Dane County Circuit Court, 271 Wis. 2d 633 (Wis. 2004) (Sykes, J.); United States v. Virginia – 518 U.S. 515, 568 (1996) (Scalia, J., dissenting); Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting); In re Sinclair, 870 F.2d 1340 (1989) (Easterbrook, J.); Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir.1984) (Bork, J.); Tel-oren v. Libya, 726 F.2d 774, __ ff. (D.C. Cir. 1984) (Bork, J., concurring); Roe v. Wade – 410 U.S. 113, 171 (1973) (Rehnquist, J., dissenting); Adamson v. California, 332 U.S. 46, 68 ff. (1947) (Black, J., dissenting).
  33. See, e.g., respectively, Wyeth v. Levine, 555 U.S. 555 (2009), and Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985); Seminole Tribe v. Florida, 517 U.S. 44 (1996) and Alden v. Maine, 527 U.S. 706 (1999); New York v. United States, 505 U.S. 144 (1992) and Printz v. United States, 521 U.S. 898 (1997); see also, e.g., John Manning, Clear Statement Rules and the Constitution, 110 Columbia L. Rev. 399 (2010).
  34. Scalia, supra, at 23.
  35. See Michael Stokes Paulsen, A Government of Adequate Powers, 31 Harv. J. of L. & P.P. 991, 992 (2010)
  36. That is the point of a case like New York, supra, and the real point, despite Justice Scalia’s attempt to rest it on a more explicit textual footing than the last, see Ralph Rossum, Text and Tradition: Antonin Scalia’s Jurisprudence 104 ff. (2006), of Printz.
  37. Ollman v. Evans, 750 F.2d 970, __ (D.C. Cir. 1984) (en banc) (Bork, J., concurring).
  38. Id., at __.
  39. See Roger Roots, The Originalist Case for the Fourth Amendment Exclusionary Rule, 45 Goz. L. Rev. 1 (2010).
  40. Cf. Fry v. United States, 421 U.S. 542, 549 ff. (1975) (Rehnquist, J., dissenting)
  41. See National League of Cities v. Usery, 426 U.S. 833, 852 (1976), overruled by Garcia, supra, 469 U.S. 528.
  42. Cf. Dronenburg, supra, at __ (“it is sometimes necessary to protect actions or associations not guaranteed by the Constitution in order to protect an activity that is”).

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