Author: Gerard Magliocca


Why did you decide to go to law school?

There is an intense conversation going on about the cost of legal education as compared to its benefits. The New York Times is doing a series of articles, Paul Campos at Colorado is offering his views, and Brian Tamanaha is posting a lot on this topic over at Balkinization.  Almost all of this discussion, however, focuses on the law schools or on lenders of student debt.

I’m struck by this fact.  Applications to law school are not going down much (or at all) notwithstanding the sharp increases in tuition and the decline of the job market.  Demand for legal education seems relatively inelastic. So I’d like the students who read the blog to answer this question–why did you decide to go to law school given the current economic conditions?  The floor is open.


Food for Thought

I am writing the portion of the Bingham biography that discusses his marriage (he was married just once–from 1844 until his wife’s death in 1891).  They had seven children, only two of whom lived to be adults.  This rate of child mortality was tragic but not uncommon in the nineteenth century, even among the wealthy.

The good ol’ days they were not.


Please Crucify Me on a Cross of Gold

Here’s a random thought.  The Populists of the 1890s strongly supported inflationary policies–the abolition of the gold standard in favor of bimetallism (gold and silver).  The Populists of the 2010s strongly support deflationary policies–cutting spending and limiting the Federal Reserve’s power to increase the money supply through extraordinary measures.  Not sure whether there is any deeper meaning to this–it just struck me as interesting.

Blogging will be light to nonexistent until after Labor Day.  I’m back working on the Bingham book (I’m up to 1842) and need to prepare some talks that I’ll be giving this semester.



A One-Way Ticket

One of the arguments made in favor of the activity/inactivity distinction in the individual mandate litigation is that adopting this approach will not call into question the rest of the Supreme Court’s Commerce Clause jurisprudence or undermine any other federal statutes.  The only federal statute that has ever attempted to regulate inaction under the commerce power is the Affordable Care Act, so this is that only law that would run afoul of the principle.

This is what makes me skeptical about the distinction.  While the inactivity/activity distinction sounds neutral, it’s designed to knock out one law and one law only.  Courts often deride “one-way” tickets as result-oriented, and I’m not sure why the same isn’t true in this case.  The situation would be different if there was an established argument for drawing the inactivity/activity line before the enactment of the individual mandate.  As far as I know, though, nobody thought of this until last year (or maybe 2009).

I now promise to refrain from any further individual mandate posts until: (a) the Fourth Circuit issues its opinion, or (b) the Supreme Court grants cert.


State Constitutional Balanced Budget Provisions

Here is question that popped up in the paper that I’m currently drafting.  Suppose that a state has a balanced budget rule in its constitution.  And then an unbalanced budget is enacted.  What happens?  In other words, are there any state courts that have intervened to stop spending or raise taxes in that scenario?  Or is it just that politicians who violate the constitutional requirement get criticized by voters or other politicians?


One more thing . . .

A key part of my analysis of the individual mandate’s constitutionality, as expressed in this paper that has not yet been published, is that there is no sound federalism argument for reading Congress’s power narrowly in the health care context (as opposed to things like education or family law) because health care is not a traditional state concern as that phrase is used in Lopez and Morrison.  Medicare proves that proposition to my mind, although you can cite plenty of other authority as well.

The Eleventh Circuit’s contrary conclusion on this point cannot withstand scrutiny.  Frankly, that portion of the opinion reads like something that an advocate would say.  (“I know that I have to say that health care is a traditional state concern to come under the precedents, so here’s my best shot.”).

Here’s another problem.  On Page 113, the Court frames one of the questions as “whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles.”  The key word here is “meaningful.”  I submit that there is nothing in the case law that says that the limits on the commerce power must be meaningful (whatever that means).  Limited means not unlimited.  Lopez and Morrison already state limits to the Commerce Clause.  Unfortunately for critics of the individual mandate, the boundaries that they describe (non-economic vs. economic) do not prohibit what Congress enacted last year.

Now I do think that a lower federal court could write a perfectly defensible opinion striking down the individual mandate that goes something like this:  (1) all of the Supreme Court’s Commerce Clause precedents involve activity; (2) this statute does not; and therefore (3) we cannot uphold this.  In the case of the Supreme Court, they could say “We will not expand our Commerce Clause cases to include inactivity.  We’ve gone this far and will go no farther.”

The problem for the Supreme Court is that there is no reason to create this distinction (well, except that it kicks the Obama Administration in the teeth). A clear line is great, but this is not a “rules-of-the-road” situation. There must be some rationale for establishing the line.  And I still don’t know what that is.  There is no individual liberty interest because the states can regulate inactivity.  There is no states’-rights interest because health care is already regulated to the hilt by the federal government.  What other justification is there?

My bottom line is that I think the individual mandate should be repealed, but it’s not unconstitutional.


If you think politics is tough now . . .

Consider Robert Ingersoll’s attack on Samuel J. Tilden, the Democratic presidential nominee in 1876:

“Samuel J. Tilden is an attorney.  He never gave birth to an elevated, noble sentiment in his life.  He is a kind of legal spider, watching in a web of technicalities for victims.  He is a compound of cunning and heartlessness–of beak and claw and fang. . . . He is a corporation wrecker.  He is a demurrer filed by the Confederate congress.  He waits on the shores of bankruptcy to clutch the drowning by the throat.  He has never married.  The Democratic party has satisfied the longings of his heart. He has looked upon love as weakness. He has courted men because women cannot vote.”



Gimme a Break

The majority of the Eleventh Circuit rests its judgment in part on the conclusion that health care is a traditional area of state regulation.  They cite the McCarren-Ferguson Act as support for this idea, along with dicta in cases that mention “health” as part of the state police powers.

I submit that this portion of the opinion is absurd.  How this idea can be squared with Medicare–a wholesale federal takeover of health care for senior citizens–is beyond me.  Read pp. 147-157 of the opinion and see what you think.

UPDATE:  There also appears to be no discussion of the relevance of M’Culloch v. Maryland for this case, except for a footnote (128) that just says that Congress does not have unlimited means of enforcement.

UPDATE #2:  To help you out, the discussion of the individual mandate starts at around Page 100.