Notes From Babel

Precedent and the “Unprecedented” Individual Mandate

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Randy Barnett defends his claim that Obamacare’s individual mandate is an “unprecedented,” and what that is likely to mean in the challenge of the mandate’s constitutionality under the Commerce Clause. The “unprecedented” argument will have particular import addressed to Justice Kennedy, who while conservative-leaning at times, does not adhere to originalism or any other articulable model of jurisprudence.  Precedent means a lot to Kennedy. See his opinion in Planned Parenthood v. Casey, including a long love letter to the doctrine of stare decisis, e.g.:

Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance.  Moreover, the country’s loss of confidence in the Judiciary would be underscored by condemnation for the Court’s failure to keep faith with those who support the decision at a cost to themselves.

On the other hand, at other times precedent means very little to Kennedy.  See his opinion in Lawrence v. Texas, overruling Bowers v. Hardwick just 17 years earlier:

In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions…. To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers….

Whatever consolation the vagaries of the European Court of Human Rights provide to “those who support the [Bowers] decision,” surely it does not rise to the level of “only the most convincing justification under accepted standards of precedent,” which Kennedy in Casey deemed would be necessary to overturn precedent.  Surely the fluctuations in the cultural currents of foreign lands could not be believed would prevent “the country’s loss of confidence in the Judiciary.”

As Justice Scalia sharply noted in his dissent, “To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey’s extraordinary deference to precedent for the result-oriented expedient that it is.”

Nonetheless, Kennedy must still be taken at face value when he expresses his concern for “the Court’s legitimacy” when abandoning earlier precedent.  Thus, if there’s no precedent for upholding the individual mandate, that’s will make it a bit harder for Kennedy to uphold the individual mandate for its novelty in constitutional jurisprudence.  Whether he can get the rest of the way to finding that it violates the Commerce Clause may depend largely on the state of his digestion.

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Written by Tim Kowal

August 26, 2010 at 11:48 pm

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