I’m not sure what the point is of Prof. Orin Kerr’s analogy of the Individual Mandate cases with Golan v. Holder, unless it be to appear clever. But that appearance evaporates when looked upon directly.
First, it’s entirely possible to believe—as I do—that the Supreme Court decided Golan incorrectly, and that in fact the Copyright Clause does not, when rightly interpreted, give Congress the power it exercised in that case, and also to believe that the Commerce Clause does not give Congress the power to force people to buy insurance, as it has done with the Individual Mandate. What’s more, it’s possible to conclude one way in one case and the other way in the other case—to interpret the Copyright Clause as allowing what happened in Golan, but the Commerce Clause as not authorizing the Individual Mandate, or vice-versa. So the fact that the plaintiffs in Golan argued that Congress went too far with its unprecedented extension of copyright, but failed to convince a majority of Supreme Court justices, is really irrelevant to the Individual Mandate case. Superficial resemblances in the litigation postures of the two cases are—well, frankly, silly. One might as well say “in both cases, the judges wore robes! So there!”
Second, as I recall it, Prof. Kerr has often attacked the statement that the Individual Mandate is unprecedented. So what? is his basic theme. If the point of his analogy to Golan is that the novelty of a Congressional action isn’t dispositive of its constitutionality, he’s fighting a straw man. Nobody of whom I’m aware on the anti- side in the Individual Mandate cases has ever said that the Mandate is unconstitutional simply because it’s never been done before. But surely the fact that something like this has never been done before is probative, no? Moreover, in the Golan decision, the Court is at pains to show that what Congress did with the copyright statute is not, in fact, unprecedented (pp. 15-19). Indeed, this may be the strongest argument in favor of the majority’s decision in that case! Thus Golan actually strengthens the true position of the Mandate’s opponents, when they argue that the novelty of the Mandate is one indicator that Congress has gone too far. Not dispositive, no—just about any Supreme Court case challenging the constitutionality of a law is going to involve something novel, given the principle of stare decisis, right?—but indicative.
Now, I can see one way in which a person might find Prof. Kerr’s hinting clever (he so often hints, rather than coming out and actually saying something) is if one adopted the positivist view that the Constitution is simply whatever a majority of the Supreme Court says it is. As we’ve seen before, that is, in fact, Prof. Kerr’s view, although it is logically incoherent. If one thinks this, then Golan, like every other majority decision, must be rightly decided, and only a madman would argue both that it is wrong and that a decision upholding the Mandate is wrong. If the constitutionality of a law is determined solely by the decision of the Supreme Court majority, then the novelty of a Congressional enactment is not at all probative of its constitutionality, since the decision of a majority of justices is the exclusive, sufficient, and necessary, source of a statute’s constitutionality. One who believes this would, indeed, find in the Golan decision a clever analogy that demonstrates the silliness of arguing that the Mandate is unconstitutional. Why, look, you’d say, here the plaintiffs argued that a federal law was unconstitutional, and they lost. And their arguments were just like yours, because they said that the unprecedented new statute went beyond Congress’ constitutional powers for various reasons. And they lost, because constitutionality is whatever the judges say it is. Therefore, you will lose too, because you make those tedious legal arguments, just like the Golan plaintiffs did!
That’s it. That’s the sum and substance of this analogy. And it seems to me to fall flat.
Update: Welcome Volokh Conspiracy readers. You may be interested in my new article, In Defense of Substantive Due Process, where I criticize at greater length the "realist" views of Prof. Kerr and others.
Update: Prof. Kerr responds here, and I answer here.
