Politics & Policy

Sebelius and the Election

Constitutionalists can seize a golden opportunity to revitalize our republican culture.

In NFIB v. Sebelius, handed down last month, the Supreme Court upheld the Patient Protection and Affordable Care Act (“Obamacare”) against several constitutional challenges. Constitutionalists — partisans of limited, constitutional government — now face a critical decision: Should they acquiesce in the Sebelius decision and move on to campaign against Obamacare exclusively on policy grounds? Or should they continue to make constitutional criticisms of Obamacare — and broaden those charges by making the Sebelius decision part of their indictment? Definitely the latter.


The Supreme Court took Sebelius in order to consider two important federalism questions. In one issue, not relevant here, Obamacare opponents challenged provisions expanding state requirements in relation to Medicaid. What is relevant here is that they also challenged the “individual mandate,” codified in 26 U.S.C. § 5000A. This provision imposes what the statute calls a “requirement” (effective 2014) that every U.S. citizen purchase adequate health-care coverage; anyone who fails to do so will incur what the statute calls a “penalty” of $750 (subject to inflation adjustments and exemptions).

The Court upheld the individual mandate. In a concurring opinion written by Justice Ginsburg, the Court’s four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) made clear they would have preferred to uphold the mandate as an exercise of Congress’s powers to regulate interstate commerce. The Court’s conservative wing (in this case, Justices Scalia, Kennedy, Thomas, and Alito) dissented. They also treated the mandate as a commercial regulation, but they argued that the mandate exceeds the scope of Congress’s powers, both under the Commerce Clause and under the Necessary and Proper Clause.

#ad#Chief Justice Roberts delivered the judgment of the Court — and surprised many by upholding the mandate. Roberts (correctly) agreed with the dissenters that the mandate “cannot be sustained under a clause authorizing Congress to ‘regulate Commerce.’” After all, Congress does not really “regulate Commerce” as Article I requires when (in Roberts’s words) it “forces individuals into commerce precisely because they elected to refrain from commercial activity.” That reasoning should have led Roberts to find the mandate unconstitutional. Indeed, by some accounts, he did initially vote to hold the mandate unconstitutional. After the initial vote, however, he switched sides and wrote an opinion upholding the mandate as a constitutional exercise of Congress’s powers to tax.

To justify the mandate as a tax, Roberts made two major legal errors. First, he misread § 5000A when he classified it as a tax, and not a regulatory “requirement” backed up by a “penalty.” This misinterpretation was deliberate. Roberts expressly refused to say whether the tax reading was the “most natural interpretation” of § 5000A; he only said that the tax reading was “fairly possible.” Roberts applied such a weak interpretation of § 5000A because he wanted to avoid striking down the mandate if he could. Here, however, Roberts did not live up to a promise he had made during his confirmation hearings: to decide cases like an umpire. A good umpire would not apply one strike zone for batters from a small-market team and another for the New York Yankees. By the same token, the constitutional “judicial power” isn’t exercised as it ought to be when a judge departs from ordinary principles of statutory interpretation in order to conserve powers that the U.S. government has claimed for itself.

Even if the mandate had been drafted as a “tax,” it still should have been declared unconstitutional. The Constitution sorts taxes into income taxes, “indirect” taxes (like a duty on imports), and “direct” taxes (like a tax on real estate or a head tax). A tax on not doing something — here, not buying insurance — is best classified as a fancy variation on a head tax — a direct tax. But under Article I, a direct tax is unconstitutional unless levied state by state, in proportion to each state’s population at the most recent census. Since the $750 penalty isn’t apportioned on such a basis, it couldn’t have been constitutional even if it had been a tax. Roberts addressed this argument, but extremely quickly and unpersuasively.


On the one hand, these two errors make Sebelius a weak decision. The tax holding deserves to be overruled, and Roberts’s misconstruction of § 5000A should be made a poster example of how not to interpret an act of Congress.

Even so, constitutionalists must decide whether to make these legal issues their business for the immediate future, while the country ramps up for the 2012 election and an effort to repeal Obamacare in 2013. President Obama definitely wants to move on. Immediately after Sebelius was handed down, White House Chief of Staff Jack Lew said, “When the Supreme Court rules, we have a final answer.”

Republicans are not sure how to react. Many have assumed that it is time to turn the page on constitutional arguments and switch to policy-based arguments against the mandate and Obamacare generally. Others find it expedient to respect Chief Justice Roberts’s opinion, because it helps them hoist President Obama with his own petard. In 2009, Obama swore that the individual mandate was “absolutely not” a tax but a regulation. Now, Mitt Romney says that “the Supreme Court has the final word, and their final word is that Obamacare is a tax. So it’s a tax.” Citing Sebelius, Romney and other Republican leaders are now charging every congressman who voted for Obamacare with supporting a huge tax increase. Yet some members of Congress have not accepted the Sebelius decision as the “final word” on the individual mandate’s constitutionality. In a speech in favor of repealing Obamacare, California congressman Tom McClintock argued: “the Supreme Court is not the highest court in the land. That position is reserved to the rightful owners of the Constitution, the sovereign American people, through the votes they cast every two years.”

#page# Congressman McClintock is right — both on the constitutional law and on the politics of Sebelius. He and other constitutionalists should keep repeating the constitutional case against the individual mandate. Rather than being demoralized by Sebelius, they should use it to reinforce their case.


To be sure, there are strong policy arguments against Obamacare. It threatens to make American health care worse, more expensive, and harder to get. But it can’t hurt to continue making the constitutional arguments as well. And it could help — far more than conventional Beltway wisdom supposes.

Conventional wisdom holds that the constitutional arguments against Obamacare are too abstract to reach most voters, who care only about their pocketbooks and the quality of their health care. This wisdom is right to an extent. Yet if voters could be moved only by pocketbook interests, republican self-government would be impossible. As Federalist No. 55 observed, “As there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust” in politics, “so there are other qualities in human nature, which justify a certain portion of esteem and confidence.” In No. 49, The Federalist identified one of those estimable qualities: the “veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.” Although most American citizens may not understand every detail of the Constitution, many still revere it and can be moved by it to political action far more generous than political economists would predict.

#ad#The architects of administrative-entitlements liberalism appreciated this fact. For example, take Frank Goodnow, professor of administrative law and first president of the American Political Science Association. In 1911, he wrote Social Reform and the Constitution, a treatise designed to help progressive administrative-entitlements legislation survive constitutional challenges in courts that took structural constitutional law seriously. Goodnow spoke for an emerging consensus among social scientists and progressive reformers “regarding the postulation of fundamental political principles of universal application” — that is, the principles of the Declaration of Independence — “as the statement of mere useless opprobrious theory.” “For one reason or another,” he complained, “the people of the United States came soon to regard with an almost superstitious reverence the document into which this general scheme of government was incorporated.” To marginalize that reverence, Goodnow proposed that “the courts, upon which devolves the duty of examining such attempts from the viewpoint of their constitutional propriety, recognize that legislative bodies possess wide discretion under the constitution.”

In short, Goodnow proposed a specialization: Courts would specialize in developing clever doctrines that made it legitimate for “legislative bodies [to] possess wide discretion under the constitution”; elected representatives would specialize in using that discretion to create new progressive entitlement programs. Supporters of Obamacare are playing from the same script now. Ever since Obamacare was proposed, constitutional scholars at elite law schools have been insisting that the individual mandate is a constitutional no-brainer. And once Sebelius pronounced Obamacare constitutional, its supporters then tried to use the decision to silence all opposition — in Lew’s words, “the thing that the American people want is for the divisive debate on health care to stop.”

Yet reverence for the Constitution remains a powerful mover in American politics — even though it has been almost 80 years since President Franklin Roosevelt seemed to cement Goodnow’s administrative-entitlements program into American politics. In 2009 and 2010, in town-hall meetings about health care, constituents angrily held up pocket-sized copies of the Constitution and asked where Congress got authority to regulate health care. In October 2009, when asked the same question, then-Speaker Nancy Pelosi answered, “Are you serious? Are you serious?” In November 2010, the Democrats lost more seats in the House of Representatives than any majority party had in more than 70 years. The contrast between tea-party constitutionalism and Pelosi constitutionalism fueled the 2010 midterms.

Polling confirms as much. In 98 Rasmussen polls conducted between Obamacare’s enactment and the Supreme Court’s Sebelius decision, at least a plurality favored repeal in all 98; of these, majorities favored repeal in 96, and double-digit majorities favored repeal in 95. Although public opinion has been shaped by many factors, one is the public-relations damage done by several lower federal courts’ having found the individual mandate unconstitutional. For example, in a February 2012 poll (after lower courts had declared the mandate unconstitutional, but before the Supreme Court had heard oral argument), 72 percent of the respondents agreed that Obamacare is unconstitutional.

In this context, Sebelius should not demoralize constitutionalists. Far from it. Now that two years of constitutional litigation have taught the American people that the mandate is unconstitutional, it shouldn’t be hard to convince them to trust their own instincts over those of the Supreme Court. Chief Justice Roberts’s vote switch certainly helps. Talk-show hosts, bloggers, and opinion writers can explain clearly enough why a statute that speaks of a “requirement” and a “penalty” can’t be a tax — and why Roberts’s interpretation of § 5000A is, as Charles Krauthammer put it, a “dodge, and a flimsy one at that.” And for tea-party members, the case’s tax holding adds insult to Obamacare’s original injury. Between the dissent and Chief Justice Roberts’s opinion, Sebelius held that the individual mandate was unconstitutional if it was what Obama swore it was — a regulation. To find it constitutional, the Court had to reclassify the mandate to be what the president swore it was not — a tax. Whatever Chief Justice Roberts intended by his tax ruling, in effect that ruling saved the individual mandate with a bait and switch.  If constitutionalists can explain that bait and switch, it will be easy for them to remind voters why they were so angry in 2010.


Legally, though, can elected officials reopen the constitutional issues supposedly settled in Sebelius? Here, Governor Romney concedes too much, and Congressman McClintock is right on the money. The U.S. Constitution creates, and American politics operate under, a regime of constitutional interpretive equality — or, for short, “departmentalism.” Each department of the U.S. government has the authority to interpret the Constitution as reasonably necessary in order to exercise the powers the Constitution assigns to it. So if Congress disagrees with the Court about what the Constitution means in application to a particular dispute, each has the authority to insist on its own interpretation, as long as the interpretation is reasonable and made in exercise of that department’s own constitutional powers.

#page#Some Americans believe that the Constitution entrusts the Supreme Court with final interpretive authority. Yet the Constitution says no such thing. The Constitution does not expressly assign the power of constitutional interpretation to any of the three departments of the U.S. government. Interpreted reasonably, the Constitution’s text strongly implies that the Supreme Court may review the constitutionality of acts of Congress, in the course of adjudicating cases properly within its Article III jurisdiction. Yet every argument that implies constitutional review by courts implies with just as much force constitutional review by the president and Congress. For example, the strongest argument for judicial review is that the Constitution is a written charter. It makes no sense to establish a written Constitution as fundamental law if the legislature can then ignore the Constitution’s limits with impunity. But the 113th Congress may use that same argument to repeal Obamacare, if it thinks that the 111th Congress wrote a law that exceeds Congress’s powers under the Constitution. And the 113th Congress can use the exact same argument to decline to exercise the powers the Supreme Court claimed for it in Sebelius.

 #ad# Departmentalism has a bad name in many quarters because it is associated with the antebellum doctrine of nullification, and with resistance by Southern politicians to Brown v. Board of Education and to desegregation generally during the 1950s and 1960s. Yet many of our greatest political leaders used departmentalism in watershed political disputes. Thomas Jefferson and James Madison believed that the 1798 Alien and Sedition Acts exceeded Congress’s enumerated powers and violated the First Amendment; they made the 1800 election a referendum on the acts’ constitutionality. Jefferson’s Democratic-Republicans and, later, Andrew Jackson’s Democrats maintained that the national bank exceeded Congress’s enumerated powers; Jackson cited departmentalism to justify vetoing a reauthorization of the Second Bank of the United States. Most famously, when the Supreme Court claimed in Dred Scott v. Sandford that Congress lacked power to restrict slavery in territories under federal jurisdiction, Abraham Lincoln and the Republican party made the 1860 national elections a referendum on Dred Scott.

Some worry that departmentalism is a recipe for anarchy. In practice, though, things work out fine. Officials in all three departments usually respect and follow constitutional interpretations by the Supreme Court. That respect makes sense in most cases, when the stakes are low. Lincoln conceded as much. In his first Inaugural Address, Lincoln acknowledged not only that judicial decisions “must be binding in any case, upon the parties to a suit,” but that “they are also entitled to very high respect and consideration, in all parallel cases, by all other departments of the government.” But watershed political disputes raise issues that ordinary judicial reasoning simply cannot handle. And ultimately, in a republican government, the Constitution’s meaning must be the people’s responsibility, unless the country is prepared to submit meekly to decisions like Dred Scott. As Lincoln put it, “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.”

To be sure, political and legal life were very different in the 19th century. But if constitutionalists want to restore constitutionalism in the United States, they must transplant some of the spirited independence typical of 19th-century American political practice. Obamacare represents an effort, by special interests with huge stakes in health care and by modern-day Goodnows, to centralize in Washington, D.C., control over health-care decisions made throughout the United States. Those special interests and administrators want the American people to defer to the Supreme Court’s expertise in constitutional law, so that the people won’t threaten the expertise the special interests and administrators want to apply to administer health-care policy. Constitutionalists want the people to make their own health-care decisions, and to rule themselves. To check the ambitions of special interests and would-be administrators, it helps to have a very big grassroots constituency (as Andrew Jackson did) that opposes efforts by the federal government to expand its own power. And if and when the Supreme Court purports to settle constitutional questions, it helps to have elected leaders with enough spine to stand up to the Court and say, as Jackson did of McCulloch v. Maryland, “The authority of the Supreme Court must not . . . be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”


So what should constitutionalists do in the wake of Sebelius? Keep up policy-based criticisms of Obamacare, but don’t abandon constitutional criticisms. In addition, at least some elected representatives should keep up what Representative McClintock has started: citing Sebelius as further proof that Obamacare is unconstitutional.

#page#Of course, if members of Congress criticize Sebelius, at least a few Obamacare supporters may (unfairly) accuse them of threatening the Supreme Court. This criticism has more force when the Supreme Court has issued a well-reasoned opinion. Constitutionalists shouldn’t worry about that in this case, because the chief justice’s vote-switching and the Court opinion’s tax and statutory holdings are all easy targets. The criticism also has more force when the Court says Congress lacks a power under the Constitution and Congress then exercises the power anyway. Lincoln and the Civil War Congress faced that criticism when they abolished slavery in Washington, D.C., and in federal territories in flat defiance of language in Dred Scott saying they couldn’t. Yet Congress is on extremely safe ground when it refuses to exercise, or when it repeals a previous exercise of, powers the Supreme Court says it has. Thus, it was easy for Jackson to defy McCulloch; all he needed to do was criticize the case in a message vetoing the reauthorization of the Second Bank, and make sure the veto wasn’t overridden. From this perspective, Sebelius and the Affordable Care Act present an easy case, like McCulloch and the Second Bank. The 113th Congress won’t be seen as attacking the Court — not if constitutionalists forge a mandate claiming that the Sebelius decision is forbidden fruit and that Obamacare is unconstitutional.

 #ad# How might they forge such a mandate? I have three pieces of advice. First, constitutionalists should persuade Republican leaders to make no more concessions to Sebelius as the “final” word on the constitutionality of § 5000A. Representative McClintock is absolutely right: “the Supreme Court is not the highest court in the land. That position is reserved to the rightful owners of the Constitution, the sovereign American people, through the votes they cast every two years.”

Second, constitutionalists should persuade the Republican party to adopt planks regarding the Sebelius decision in its 2012 party platform. The Republican party has adopted thoughtful planks on the Constitution and the judiciary for other watershed elections, like the 1860, 1912, and 1936 elections. Four planks seem appropriate after Sebelius.

The first of these planks should proclaim that the Republican party respects Sebelius as the federal judiciary’s current stated position on the constitutionality of § 5000A. Critics may try to tar principled opposition to Sebelius with the brush of nullification and segregation; a plank like this should inoculate Republicans against such unfair associations. Second, consistent with Chief Justice Roberts’s opinion and with the dissenters’ opinion in Sebelius, a plank should proclaim party policy to be that it is beyond Congress’s powers under the Commerce Clause and the Necessary and Proper Clause to mandate that individuals purchase health insurance against their will. Third, contrary to Chief Justice Roberts’s Court opinion, a plank should proclaim party policy to be that Sebelius’s holding on Congress’s tax powers is erroneous, deserves to be overruled, and should not be followed by Congress or the president. Last, a plank should declare that the federal judiciary’s responsibility is to determine what the law is in cases properly before it — and that a court exceeds the scope of its “judicial power” if it misconstrues an act of Congress to avoid constitutional questions fairly raised by the act’s obvious meaning.

My third piece of advice is that Representative McClintock and other congressmen and candidates should keep repeating the constitutionalist case against the individual mandate. The case against the mandate should not be made exclusively on constitutional grounds. Not every congressman needs to address the constitutional issues to make them resonate. But the candidates and representatives who can make the constitutional arguments as fluently as Representative McClintock should keep doing so. There will be legislative votes, debates, and campaign ads about health care. In these and other places, constitutionalists should keep hammering home the case against the individual mandate — and now too against Sebelius.

If arguments like these are picked up, they will help Republicans win the 2012 elections, and they will give constitutionalists a much stronger mandate to repeal Obamacare in 2013. In the longer term, if Obamacare is repealed after a vigorous constitutional debate, constitutionalists will have taken a huge step toward revitalizing America’s republican culture. Ultimately, the American people, not the federal courts, are responsible for making sure that their elected officials follow the Constitution.

– Eric R. Claeys is professor of law at George Mason University, where he has helped develop a course on the historical foundations of American constitutionalism.

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