What Did We Learn Over the Holidays?
1. If the system works, Janet Napolitano will never be on the Supreme Court.
2. Terrorists suffer from the same irrational focus on airplanes as the rest of us. Part of the fun of teaching Torts is getting students to think about risk by pointing out that driving is more dangerous than flying, and then asking them why most people don’t think that’s true. (Plane crashes are large one-time events, car crashes are low-level and frequent; plane crashes remove control from the accident victim, people feel safer driving themselves even if they are bad at it; more people are used to driving than flying, etc.)
Terrorists apparently think that attacking planes is better than bombing trains, buses, or subways, even though airports have lots of security and those other modes of transportation don’t. Now that could be a rational response to an irrational risk assessment (“If they think planes are really critical, who are we to argue with them?”) but I suspect that it actually reflects a basic misconception about the costs and benefits involved. (The train bombings in Spain, for example, were pretty successful from Al-Qaeda’s perspective and probably easier to pull off. That hasn’t been repeated here.)
3. The debate about the constitutionality of the individual health care mandate is starting to take shape. One school of thought is looking at recent Commerce Clause or taxing power cases to determine what the Court will do. Another is using its favorite method of interpretation and asking what the result should be.
I submit that both of these approaches are wrong. A better framework would look at the initial phase of each constitutional generation (i.e., party realignment), identify a critical statute that defined that regime, and then see how the Court handled the inevitable challenge. Here is a partial list:
1. The repeal of the Judiciary Act of 1801 (addressed indirectly by Marbury v. Madison).
2. The Indian Removal Act of 1830 (addressed indirectly by Worcester v. Georgia).
3. The Partial Repeal of the 1867 Habeas Corpus Act of 1867 (addressed in McCardle).
4. The Income Tax of 1894 (addressed by Pollock).
5. The National Industrial Recovery Act of 1933 (addressed by Schechter Poultry).
I would submit that in these “preemptive cases,” doctrine was a poor guide to how the Justices ruled. Nor is there is a consistent interpretive theory behind them. The most important factor was the popularity of the relevant congressional action at the time the Court heard the case. (I’ll try to spell this out more clearly in a subsequent post.) I don’t think this bodes well for the health care mandate, though who knows what people will think of it in 2012.
UPDATE: Hope to see some of you in New Orleans!