One more reason why Justice Scalia is an oxymoron

From the Associated Press (h/t Sullivan):

“If the government can do that, what else can it do?” asked Justice Antonin Scalia, referring to the individual mandate portion of the Patient Protection and Affordable Care Act. He then questioned whether Congress could also require individuals to buy vegetables, such as broccoli.

There is a straightforward answer to that question: the government can do anything that does not “shock the conscience” unless it is prohibited by another clearer provision of the Constitution.  That is the basic answer for any substantive due process question.  Now, Scalia hates substantive due process because it is so formless.  That’s why — he claims — he thinks that there is no right to privacy in the Constitution.  But now, suddenly, he is just so very, very concerned about unenumerated rights.

Note that this has absolutely nothing to do with federalism or the scope of the Commerce Clause.  This is a garden-variety substantive due process case dressed up as a federalism case.  Scalia’s question demonstrates that he understands this.  He just doesn’t care.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

37 thoughts on “One more reason why Justice Scalia is an oxymoron”

  1. There is a straightforward answer to that question: the government can do anything that does not “shock the conscience” unless it is prohibited by another clearer provision of the Constitution.

    This is in my opinion exactly backward to the actual intent of the constitution, which is that the (federal) government may do those things that are specifically permitted.

    Rochin is a case about the limits on State governments, which aren’t necessarily limited to enumerated powers.

    1. Sam, that’s a fair point, but as I understnad Scalia’s question, it is about the government in general. Think of it this way: he wouldn’t need to ask this question in a Commerce Clause/federalism context because we already know that answer: Lopez and Williams. Upholding the mandate here wouldn’t in any way call those cases into question. Moreover, in Raich, Scalia himself said that the fedes can regulate intrastate commerce if it has interstate effects. So again, he already knows the answer.

      At least you are willing to say that you want to repeal the New Deal. So is Thomas. I think that that is horrific on both political and legal grounds, but I appreciate the intellectual honesty. Scalia has none.

      1. At least you are willing to say that you want to repeal the New Deal

        This is not quite accurate (although reasonable from what I’ve said).

        I want to repeal the jurisprudence that made the New Deal possible without an amended Constitution. I’d be in favor of such amendments and of the policies they allow in a significant number of cases.

        1. what Constitutional amendment would suffice to allow the New Deal, in your view?

          1. A complete answer would require time and research, but basically my expectation would be some explicit additions to the list of enumerated powers. (Similar to the 16th amendment.)

          2. All the other amendments are three or four sentences.
            I’m looking for a general grant, rather than enumerated list. Making things strictly enumerated guides us to an inflexible constitution, which is insufficient for our changing world.

          3. But I want the Constitution to be inflexible outside the Amendment process.

            That’s the whole point of my objection; I want the flexibility to be “the states and people, if they agree, can delegate powers to the federal government.”

          4. SamChevre: That’s the whole point of my objection; I want the flexibility to be “the states and people, if they agree, can delegate powers to the federal government.”

            Then you end up with one of two things (or a combination thereof):

            (1) Something like the constitution of Switzerland, which is littered with a Smörgåsbord of amendments that delegate power to the federal government, enacted over decades whenever they realized something was still missing.

            (2) The federal government wielding its power of the purse as a cudgel to force the states into compliance.

      2. Jonathan, though I never thought I’d be writing these words, but Sam is right. At least, he’s right on the basic constitutional theory, and you are wrong. The federal government can do X if the federal constitution gives it the authority to do X*, otherwise not.

        Sam’s also right that it’s different for states. State governments can do pretty much anything they like, subject to the (in many cases very considerable) restraints imposed by their own constitutions and, of course, by the federal constitution. State law can also be trumped by federal statute. Every state can, and does, make laws governing the activities that my livelihood is concerned with; but federal law tells the states that, in those instances in which these activities fall within the governance of federal law (which is in almost all instances), then state laws can put a sock in it.

        You are, however, right about the jurisprudence (and Sam is wrong; or, to be more charitable, his interpretations are outside the mainstream of current legal thinking). Drafting a solid majority opinion upholding ACA should be something the Court’s junior-most clerk could do before her first coffee break without breaking a sweat. Instead, we are treated to the spectacle of wondering whether Kennedy will permit a 5-4 decision to uphold or will instead join the Court’s four GOP operatives to strike the statute down (or gut it by voiding the mandate) in a jesuitical nonsense of an opinion that makes Bush v. Gore seem intellectually honest by comparison. (To be fair: there’s an outside chance that Roberts too might prove a wild card here. I am morally certain, though, that Scalia, Thomas and Alito will do what their party put them on the Court to do.)

        * Note that I write “gives authority” rather than “says”. An action of the government can fall within an enumerated power without being explicitly mentioned in the constitution. The entire system would collapse were this not the case. If American constitutional jurisprudence were Judaism, vulgar textualists would be its Karaites**. (Some may disagree with that assessment. I expect they are outraged at the existence of the United States Air Force.)

        ** Few textualists want to disband the USAF, of course. But that is because I am being unfair to the Karaites. As a rule textualists are not so much analogues of the obscure but interesting sect as they are mere cranks, hacks and/or hypocrites.

        1. Defence academic Henry Farrell has in fact seriously proposed abolishing the USAF. Not out to constitutional originalism (militias armed with muskets!) but because it no longer has a distinct mission.
          Such changes are the answer to the broccoli question. Congress and the President can together do a huge number of stupid things: they can declare war on Liechtenstein, abolish the US Navy, build a manned base on the moon, deregulate the banks – wait … The subset of actions which are both stupid and unconstitutional is small. Trying to squeeze the larger set into into the smaller is dumb.

    2. This is in my opinion exactly backward to the actual intent of the constitution, which is that the (federal) government may do those things that are specifically permitted.

      Reading what the people who wrote and approved the Constitution had to say, none of us has any clear idea which if you is correct, because there wasn’t any clear consensus of opinion among them. During the debate on the 10th Amendment, an attempt to add the word “expressly,” as in, ““the powers not expressly delegated by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people,” was rejected, and Madison argued against it on the basis that doing so would either hobble the federal government or require the Constitution to become so bogged down in minutiae and it was necessary to permit it powers that were implied by the Constitution but not specifically laid out. As soon as you admit that, there is going to be a huge amount of subjective interpretation necessary.

    3. Except Congress’s interstate commerce power is enumerated and plenary. The only question is whether self insurance is interstate commerce. The question is not whether there’s some limiting principle constraining Congress’s plenary power to regulate interstate commerce retardedly, because there is none (subject to the 5th Amendment and others).

      1. And limited to commerce, which is interstate. Which is a heck of a lot more limited than post New Deal jurisprudence allows.

        1. Enough with re-litigating the New Deal. It’s been over for 3 generations now. You want to go after Medicare and Social Security? Make my day. My problem with the Democrats is that every election should be about this issue 24/7. The Republicans were against Social Security. They were against Medicare. And they’re still against them and want to take them away. I’m happy to run on that. And it has the virtue of being true.

          That Gore didn’t ram GW Bush’s “What do they think Social Security is? Some kind of Fed-rul program?” right down his throat from the time he said it until the election is why he lost (and probably why he didn’t have what it takes to be President).

          1. No, NOT enough with re-litigating the New deal. NEVER enough with re-litigating the New deal. If you can get the courts to make ‘living’ changes in the Constitution in one direction, we can get it to make ‘living’ changes right back. What’s sauce for the goose is sauce for the gander.

            Just because you wish all your victories were carved in stone, and all your opponents’ victories written on the wind, doesn’t make it so. It sure as hell doesn’t place any obligation on your opponents to not press their cases.

          2. As I said, go for it. Democrats just need to make sure that conservatives, and Republicans in general, own this position in the public’s mind. Every single election.

          3. Sure. If you accept premises that you claim to oppose, you should feel free to litigate it as much as you want. It’s doing so with a straight face while continuing to make such claims that open you to ridicule.

        2. post New Deal jurisprudence is a lot closer to the spirit of the Marshall Court’s understanding of the commerce clause than Lochner era jurisprudence is.

  2. “”No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns” wrote Finley Peter Dunne (1867-1936) in 1901, through his comic character Mr. Dooley.” – I found this at Big Apple site. Given that there is a pretty big plurality against the ACA, and public opinion does not seem to be meliorating, why would the Court not follow its inclinations? There seems to be a reasonable Constitutional argument for going either way.

    1. Actually, this Supreme Court has been known to make the election returns.

    2. What big plurality against the ACA?

      One recent poll* says:

      “two years after passage, the ACA is not yet ‘real’ for most Americans–six in ten say they don’t have enough information to understand how the law will impact them, and two thirds say the law has not yet affected their family in either a positive or negative way.

      This same poll says:
      “public opinion on [ACA] remains evenly split (41 percent favorable, 40 percent unfavorable)”

      The AP’s recent poll (of 1000 people) says that 35% are for and 50% are against it, but given that most people don’t even know what it is, and 15% remain undecided (probably because they know that they don’t know what it is), this seems a useless metric.

      When people were asked about specific portions of the ACA, the mandate was the ONLY portion that had more people against it than for it, even when pooling Democrats, Republicans and Independents** and when various aspects were defined for the respondents, they generally became more favorable.

      There may be a plurality against the mandate (that is generally poorly understood) but there is a huge plurality in favor of the other provisions of ACA, so I think you’ve overreached in your assessment.


      ** table on page one of

      1. Also keep in mind that a significant number of those who dislike the ACA do so because they don’t think it goes far enough rather than that it goes too far. The existence of this set of people has very different implications than those that are usually posited from the existence of opposition.

  3. I’m sure I have at least twice recommended that people take a look at Luther Martin’s oral argument in M’Cullough v Maryland. Maybe Roberts CJ and Kennedy J might want to ruminate a little more about what Marshall, CJ, who had been floor leader of the VA ratification fight, thought the thing meant.

  4. Jonathan, Jonathan, Jonathan…

    From Ian Ayers book “The Supercruchers”:

    Analysing historical data from 628 cases previously decided by the nine Supreme Court justices at the time, and taking into account six factors, including the circuit court of origin and the ideological direction of that lower court’s ruling, Martin and Quinn developed simple flowcharts that best predicted the votes of the individual justices. For example, they predicted that if a lower court decision was considered “liberal”, Justice Sandra Day O’Connor would vote to reverse it. If the decision was deemed “conservative”, on the other hand, and came from the 2nd, 3rd or Washington DC circuit courts or the Federal circuit, she would vote to affirm.

    It is all ideology all the time. Always has been always will be.
    Scalia is as predictable as daybreak and as ideologically honest as an atomic clock.
    The idea of the Supreme Court being peopled with big judicious thinkers nobly weighing point and counterpoint?
    Pure advertising bullshit.

    Jonathan, Jonathan, Jonathan…
    You are native born, but if it helps here are my ultimate words of advice to someone new to America: Nothing works as advertised. Nothing!

  5. I remember when, at some point, Scalia used the term “kulturkampf” in an opinion, I believe as part of an argument that the courts shouldn’t get involved in large unresolved cultural struggles in society.

    At that moment I saw in my mind’s eye the title of his future autobiography: Mein Kulturkampf.

    Unfair, probably. But the guy is fascinating in this respect: He doesn’t think he’s a hack, he thinks he’s a principled “theorist”, G-d help us. Which is probably a hallmark of all authoritarian “thinkers” on the right as well as the left. (My debased version of Isaiah Berlin.)

  6. Scalia is what I believe in Britain is called a clever scholarship boy. He doesn’t judge, he performs, and he performs to impress a select audience. He is clever. His performance in Heller is a tour de force, an in-your-face to the practice of history and to judicial reasoning, so mendacious in its use of evidence and in its logic that 400 pages would be needed just to begin to dissect it. But it seemed to please his sponsors.

    1. I get the point but the phrase is, I suspect, historically a lot worse than mere snobbery in its connotation.

      Let’s just say he performs, most of all, to impress himself.

  7. Without an effective medical system, our economy would fall apart as workers were laid low by disease or other malady, and our ability to defend ourselves militarily would crumble.

    If we’re all forced to help buy missiles and guns and the goods and services to staff M.A.S.H. units, why can’t we all be required to help fund our medical defense capabilities here on the home front?

  8. Your right to health insurance ends at my right to be uninsured and pass my medical costs on to you. Yadda yadda yadda. Freedom!

  9. Yes, indeed, you crystallized exactly what I was thinking. If you can force someone to . . . . fill in the blanks. We force people (only men so far) to fight and if necessary die, we are now forcing women to undergo unwanted medical procedures, and Justice Scalia would force them to give birth. And that’s just the start. By this standard, objecting to making someone to shell out a few bucks for the benefit of geting lifetime health care seems, well, it seems stupid, and the objection has absolutely nothing to do with the commerce clause.

    1. Substitute “wheat” for “broccoli”, and this has been settled law for 85 years. Scalia is most of all a man who enjoys wielding power over others.

      1. No, it hasn’t. Filburn wasn’t fined for refusing to buy wheat. Nobody was compelled to buy wheat. Wickard v. Filburn was enough of a constitutional obscenity, you don’t have to make it even worse than it was.

  10. The following statement by Justice Scalia in the second day of oral argument makes it clear that he (i) doesn’t understand the economics of health insurance and/or (ii) if he does understand the economics, he will simply make believe that he doesn’t understand it.

    He said: JUSTICE SCALIA: These [young] people not stupid. They’re going to buy insurance later. They’re young and need the money now.

    The point that should have been made about health insurance is that health insurers will, by a variety of mechanisms, make it difficult, if not impossible, to “buy insurance later,” that is, when your personal risk factors make it “financially advantageous” to be insured. In actual operation, there will never be a time when it is “financially advantageous” to be insured if the insurance market works as is presently the case, since, the insurance companies will always be gaming the system, either by raising rates or acting to exclude those at greater risk of making claims.

    Perhaps the reason that Justice Scalia takes this position is that he disagrees with the new-fangled theory of Kenneth Arrow that “virtually all the special features of [the insurance], in fact, stem from the prevalence of uncertainty.” That was, of course, an observation that Arrow made in 1963, a point in time that is far too recent to be accepted by Justice Scalia. See here:

    1. Mark Tushnet raised a similar point about insurance at Jack Balkin’s site:

      Particularly in the first hour, a fair number of the questions indicate a basic misunderstanding about how insurance works, as a payment based on actuarial calculations of risks and realized costs over some defined population, rather than as a prepayment of actual realized costs determined on an individual basis. The “over some defined population” point is important, indeed central, but lots of the questions seemed to me not to understand it.

  11. But, Jonathan, one clear problem that we are running into of late is the question of variation in what shocks a particular person’s conscience. For every person who is shocked that someone in their right mind would allow a person to die for simple lack of funds to cure or treat a medical condition, there is another person who is shocked that a woman might know that her missed period could eventually result in a baby and choose to have an abortion anyway. For every woman who is shocked that her desire to obtain medications her doctor has prescribed for her has become a subject of national debate, there is a person who is shocked that she should expect the health insurance she pays for to cover hormonal birth control in the same way that it would cover antibiotics.

    And that is to say nothing of those who find it shocking that they should be expected to pay even a fraction of a penny for a social good that they do not directly use, approve of, and benefit from.

    I suspect that for any position you could hold and reasonably think is neutral and self-evident, there is someone out there who could find it shocking, either for its content or for the simple fact that someone they don’t like has put it forward. It seems to me that any appeal to a universal value is untenable at this current historical moment and we need to address that fact explicitly.

  12. And, what about the precedent of the The Militia Act of 1792? Men had to buy guns and ammo – forced purchase from private vendors! (ie, not like getting GI rifle etc.) From Wikipedia:
    “Second Militia Act of 1792

    The second Act, passed May 8, 1792, provided for the organization of the state militias. It conscripted every “free able-bodied white male citizen” between the ages of 18 and 45 into a local militia company overseen by the state. Militia members were to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack.[4] Some occupations were exempt, such as congressmen, stagecoach drivers, and ferryboatmen. Otherwise, men were required to report for training twice a year, usually in the Spring and Fall.”

    Heh, notice the exemption for congressmen – things never change … Why aren’t defenders of ACA pushing this more, or are opponents simply impervious to charges of hypocrisy about precedent?

  13. Note also, a “requirement” is different if it effectively means you pay more taxes instead of the legal distinction and opprobrium of “breaking the law” with consequences to one’s “record” and reputation etc. This cannot be evaded by attackers of ACA, it is a key point in its defense.

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