When it became uncool to discriminate against African-Americans and women, conservatives deployed a fallback position: that if discrimination is to be illegal, legislatures, not “unelected activist judges,” should make those decisions. Since then, rancor against the law, and especially the law as a tool of social change, has become a regular weapon in the conservative arsenal of freedom, deployed in modern times against the judiciary’s halting half-steps towards protecting other unpopular minorities –e.g., gays — from an irrationally hateful majority.
Perhaps unsurprisingly, this is the latest conservative principle to fall victim to the movement’s struggle to reinvent itself, and forge a new direction, while in exile. When they lost the fight against meaningful healthcare reform, right-wing attorneys general wasted no time appealing to the courts to overturn the law, in seeming violation of any notion of judicial restraint. The Supreme Court hasn’t invalidated a major federal regulatory regime in nearly 80 years — and the Patient Protection and Affordable Care Act isn’t a close enough call to break that trend. Time has only made it worse: while the attorneys general at least once had a good faith argument against the constitutionality of healthcare reform, the latest round of briefing in Ken Cuccinelli’s case barely makes those points before degenerating into something resembling a Tea Party Patriots pamphlet — complete with ahistorical recitations of foundational history. And that’s just the beginning of their troubles.
Cuccinelli attempts to characterize the federal courts’ prudential and constitutional limitations on lawsuits — mootness, standing, and other jurisdictional barriers to suit — as assaults on a state’s right to sue the sovereign (PDF page 12). But far from an aggrandizement of federal power, doctrines like standing are limitations on federal power, which prevent federal courts from hearing a case whose resolution would require the issuance of an advisory opinion — i.e., substantive lawmaking not incidental to resolution of a discrete case or controversy. See Antonin Scalia, “The Doctrine of Standing as an Essential Element of the Separation of Powers,” 17 Suffolk University Law Review 881 (1983). Limitations on standing may on a case-by-case basis benefit the federal government, but they exist for the opposite purpose.
He goes on to blatantly mischaracterize the case’s main issue, by comparing the instant challenge to cases where, upon presentation of a justiciable controversy, the Supreme Court struck down laws posing a conflict between the states and the federal government. But if his cases stand for that general point, the cited authorities — McCullough v. Maryland and New York v. U.S. — substantially undercut his larger conclusion. McCullough reaffirmed federal hegemony over the states by invalidating Maryland’s attempt to destroy a comprehensive federal regulatory regime (sound familiar?); and New York v. U.S. simply stated that the federal government can’t force state officers to enact its policies. Because these citations do nothing to support his standing argument, and substantially undercut the later Commerce Clause argument, query whether they indicate bad lawyering or simply an attempt at deception.
It is to to the Commerce Clause argument that we now turn. While that argument began with some superficial air of plausibility, it takes a similar turn for the absurd, as Cuccinelli’s crack legal team appears to argue (I think — the relevant section is not a model of clarity) that a congressional regulation of commerce must itself qualify as commerce:
[Commerce’s] hallmarks are spontaneity and voluntary activity; not a command to buy something.
While that’s a way of getting around the Founding generation’s broad understanding of “commerce” — which the brief acknowledges and incorporates — that’s not what the Commerce Clause requires. The Commerce Clause requires that Congress regulate commerce. It doesn’t matter if the individual mandate isn’t itself a commercial activity; only that it regulates a commercial activity, which Cuccinelli appears to concede. It’s all very strange.
The remainder of the brief either treats Lochner v. New York as governing law — which it emphatically is not (one searches the brief in vain for citation to one of the many cases overruling it) — or as a desirable state of things.
With respect to citizens, the reach of the Commerce Clause was limited by the Fifth Amendment which, prior to 1938, was held to protect economic liberty through substantive due process.
That hasn’t been the way of things since West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), and Lochner isn’t a more accurate representation of the Founders’ intent just because it’s older. That’s not how originalism works. Whether Cuccinelli’s arguing that Parrish was wrong, or that it doesn’t control, the argument depends on a fantasy, and for its failure to cite Parrish or comparable cases, is made dishonestly.
Plus, LEXIS citations to unpublished cases? Please. We all use Lexis for initial research and internal discussion, but where at all necessary, professionals cite to WestLaw in briefs. That’s just how it’s done.
Some of these failings can be explained by ineptitude — but not all of them. The rest just make clear that this litigation was conceived, and is now being executed, in bad faith, made only more shocking by conservatism’s supposed distaste for such exercises. Progressives routinely push the boundaries of the law, but we do it by acknowledging those boundaries’ existence, and showing how the past compels a novel future. We don’t bastardize originalism to reanimate dead case law, and we don’t glide over or mischaracterize away contrary authority. Seriously, disbar the whole team.