“Under God” and Health Care
Let’s see if I can stir the pot with this one. To my mind two purposes of legal reasoning are: (1) to expose gaps between the stated reason for an action and the real reason; and (2) to expose gaps between what the law requires and popular sentiment (or the preferences of judges). Let’s look at two examples.
Recently, a divided panel of the Ninth Circuit held that the inclusion of the words “Under God” in the Pledge of Allegiance does not violate the Establishment Clause. I think it’s fair to say that most people (if you took a poll) agree with this holding, as indicated by the broad condemnation of a contrary decision by that court a few years ago (vacated on other grounds by the Supreme Court). Nevertheless, there is a pretty good argument (laid out by Judge Reinhardt’s dissent) that the Establishment Clause bars the inclusion of these words (at least as applied to the recitation of the pledge by school children).
Likewise, there are a lot of people who believe that the individual health care mandate in the Act signed today is unconstitutional. (Leave aside for a moment the question of how many–surely it’s not as many as those who support “Under God,” which may explain why the Court will not strike the health care mandate down.) On the other hand, the Court’s precedents on the Commerce Clause, the Direct Tax Clause, and the Tenth Amendment are strongly supportive of the validity of this statute.
Both situations raise the question of how lawyers should approach a question where the doctrine points one way but popular opinion goes the other way. (Sometimes, of course, the problem goes the other way around. A statute is really popular and clearly contrary to the cases.) One answer is obvious–follow the doctrine. Another possibility is to say that a principle has reached its limit–this far and no farther–and let the desired outcome stand. This may require twists and turns to explain why a line should be drawn in one place rather than another, but that does not necessarily mean it’s wrong to do so. No legal rule, after all, is absolute. A third possibility is to avoid deciding the issue, which is essentially what the Supreme Court did in the first pledge case by holding that there was no standing. Finally, you could use the hard case to condemn the entire line of precedent (“If they compel us to say X, then they must be wrong.”)
This is why saying that “the precedents are clear” is not a sufficient answer in high-profile constitutional cases. Exceptions can always be made if public opinion is strong enough or if the Justices feel that they must take a stand against what they see as revolutionary change. The question is when does this happen and when does it not. That’s what I’ll write up this summer, though my work on “preemptive opinions” already addresses this issue. Will the challenge to the individual mandate join Worcester v. Georgia, Dred Scott, Pollock, and Schechter Poultry (preemptive opinions in past generational collisions), or will the Court add its stamp of approval, as happened in Stuart v. Laird, Ex Parte McCardle, The Gold Clause Cases, or Heart of Atlanta Motel? (I may do a separate post on The Gold Clause Cases, as that is an interesting story in itself.)
BTW, this will be my last post about the health care act for a while, as I (and probably you) are getting tired of this debate.