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This You Must Do

Plaintiff-respondents’ briefs in the “individual mandate” portion of the Obamacare litigation, here (link no longer available) and here (link no longer available), rely heavily on a distinction between regulating a commercial transaction and compelling it: the Commerce Clause, they say, authorizes Congress to do the former but not the latter. The government and its friends object that that distinction does not come from the Commerce Clause; the plaintiffs made it up. One can think of potent responses—among them, the reply that a contestable limit to the commerce power is still a lot more plausible, constitutionally speaking, than the government’s theory of a commerce power with no limit. The larger point, though, is that the plaintiffs’ distinction—and, more broadly, the agitation against the mandate—has real resonance even and perhaps especially with folks who aren’t terribly interested in constitutional nuances. Constant official assurances to the effect that the mandate is unique, and limited, and meant to make all the good Obamacare things (like guaranteed issue) work haven’t dispelled the public’s sense that a bridge is being crossed here.

There’s a potent vindication of that sense in a famous article by Lon L. Fuller entitled “Positivism and Fidelity to Law: A Reply to Professor Hart,” 71 Harvard Law Review  630 (1958). At the end of a devastating critique of Hart’s Legal Positivism, Fuller asks why positivism is so hostile to “purposive” interpretation of legal texts. Fuller views this posture as a response (albeit an “inept” response) to what he calls the real, growing, and crucial “problem of the impressed purpose”—that is, laws (or purposive mis-interpretations of laws) that compel private performance in accordance with social objectives and, in the process, threaten human freedom and dignity in a way in which mere prohibitions do not. Naturally, Fuller starts with examples involving speech and matters of conscience. He mentions the employers’ statutory duty to bargain “in good faith.” He mentions the flag salute cases and, remarkably, the “perversity” of Nazi laws coercing “Heil Hitlers!” Then comes this (p. 672):

Questions of [impressed purpose] are undoubtedly becoming more acute as the state assumes a more active role with respect to economic activity. No economic activity can be organized exclusively by “don’ts.” By its nature economic production requires co-operative effort. In the economic field there is special reason, therefore, to fear that “This you may not do” will be transformed into “This you must do—but willingly.”

“We all know,” Fuller continues, the most effective means of effecting this change: informal administrative proceedings “in which the negative threat of a statute’s sanctions may be used by its administrators to induce what they regard, in all good conscience, as ‘the proper attitude.’”

This is the world of Secretary Sebelius, whose recent pregnancy rule reflects a supreme confidence that anybody can be bullied. It is the world of the health insurance lobbyists at whose behest the individual mandate was written into Obamacare: yielding willingly to low-level tyranny is their business model. The point of public opposition to the rule and the mandate is the same: “This we won’t take—at least not willingly.”

Reader Discussion

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on February 26, 2012 at 00:47:16 am

Every once in a while, I read something that makes me go back and actually look at the Constitution, which is no fun and which more advanced minds would argue is simple minded and blinds one to the higher truth.

So the following puzzled me:

Plaintiff-respondents’ briefs ... rely heavily on a distinction between regulating a commercial transaction and compelling it ... The government and its friends object that that distinction does not come from the Commerce Clause; the plaintiffs made it up.

I went back to Constitution, like I said, and I found the following:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

So the distinction between regulation and other modes of action is relevant, and the Constitution does not say:

"To do whatever their little hearts desire about Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

I know, I know. No truly great mind thinks about what the Constitution actually says. They take their lead from Jerry Garcia:

Red and white, blue suede shoes
I'm Uncle Sam, how do you do
Gimme five, still alive
Ain't no luck, I learned to duck

Check my pulse, it don't change
Stay seventy two, come shine or rain
Wave the flag, pop the bag
Rock the boat, skin the goat

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Walter Sobchak
on March 05, 2012 at 21:44:26 pm

Liberal jurisprudence is not ctmclipaoed:1 - there is no conceptual limit to the areas government can get involved in (the commerce clause means government can do anything)2 - BUT there are limits based on personal liberty (1st amendment rights, 4thA rights like abortion, 5thA rights, etc.)To say that the commerce clause allows the government to create whatever taxes it likes, and impose obligations like buying health insurance, is not a problem for most liberals. They're down with taxing powers and generally don't consider them to violate individual rights (unless, for example, you levied a special tax on abortion or a special tax on hiring defense attorneys)The liberals are wrong about the scope of federal government power, under our constitution, being limited solely by individual rights. But that doesn't mean their support for Obamacare is inconsistent with support for abortion.Surely you, a law professor, knew this already.So to answer your hypo: to liberals, congress has power to regulate abortion under the commerce clause, but that power is limited insofar as it can't be used to inconvenience people seeking abortions. (The Supreme Court has ruled that some inconveniences are acceptable, but to liberals, no inconveniences are acceptable)

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Mann
on March 06, 2012 at 09:13:58 am

Kirk, for our town we do have land use and zoning antulrgioes that would prevent big box development. Plus our topography is challenging (fortunately). HOWEVER, if Walmart really wanted to move in, they can legally make the case that our antulrgioes violate their rights (as a person) and if needed would be backed up by the state through the corporate charter it made with Walmart. The struggle with the Walmart issue in our neighboring city Monroe is that the public is only allowed to argue about the traffic, since that is the one regulation on the city books that needs compliance. But as long as they show a traffic plan that can be approved they can move in. The current system is structured so that we as concerned citizens can only protest on limited issues that do not encapsulate the broader problems with such proposals. THAT is why local jurisdictions need to pass ordinances to ensure self-governance to prevent state preemption and the power of corporate rights. Ultimately, we need to work on new constitutional law that recognizes the rights of nature and community rights to sustainability (of clean air, water and social justice) that PREEMPTS state and corporate power. Thanks for your interest.

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Ryan

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