The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In his email list to which I subscribe, Ed Whelan prefaces his posts today (here and here) responding to mine of last week like this: "I have a great deal of respect for law professor Randy Barnett, and I'm surprised to find us on opposite sides of this issue." Before I respond to his latest, I want to emphasize that the feeling is mutual: Although we sometimes disagree about important matters, I have the utmost respect for Ed's principles, intelligence and legal acumen. I intend nothing in this or my previous posts to suggest the contrary. I thank him for his thoughtful response to my 2 posts last week (here and here). As a result of this exchange, I think I have a better idea about what exactly we disagree, and even a better idea of what I think about these matters, which can get very complicated very fast.
I continue to consider myself a departmentalist who does not believe in judicial supremacy. Rightly understood, judicial equality is not supremacy. The Constitution does not mean whatever the Court says it means. The Court's powers over the other branches is limited, and these constitutional actors have an independent duty to uphold the Constitution even where their opinions differ from that of the Court. I won't reiterate here all the ways the branches may properly do so that I mentioned in my previous posts. But I will add that I agree that the Supreme Court may only decide "cases and controversies" that are within its proper jurisdiction, which is another limitation on its powers vis-a-vis the other branches.
In this post, I am going to try to keep things simple. My question for Ed and others who have weighed into this debate is this: What is the positive law of the land after a Supreme Court holding that a statute is unconstitutional? To avoid unnecessary complexity, I am limiting myself to the holdings of the Supreme Court. The Supreme Court's holdings on questions of federal constitutional law are uniquely binding on all inferior federal courts, and all state courts. But only the Supreme Court's holdings bind lower courts, not its dicta. (If my limitation ends up making a substantive difference we can return it another time.)
I am not concerned with metaphysical questions of whether a statute held unconstitutional has been "stricken" from the U.S Code such that a later change of mind by the Court could not "revive" it. It is OK with me if it remains there to be revived, unlike a law that has been repealed by Congress. I care about whether it is still the law of the land in the interim between it being held unconstitutional and a later holding by the Court that it is constitutional.
In his post, Ed distinguishes between the "practical legal effect" and the "formal legal effect" of a Supreme Court holding that a law is unconstitutional. I think this distinction may be useful, but I think it cuts in a different direction than he does. Ed writes:
Under my position against judicial supremacy, a Supreme Court ruling that rests on a determination that a law is unconstitutional instead has, as a general rule, the practical effect of nullifying the offending law, of preventing its continued enforcement. That practical legal effect flows from the reality that the ruling operates as governing precedent for the lower courts. So any governmental official who tried to enforce a law that the Supreme Court had deemed to be unconstitutional would ordinarily expect to face swift and certain defeat in court. In other words, although the Court's ruling doesn't require the governmental official not to continue to enforce the law, it would ordinarily be highly imprudent for the official to continue to enforce it.
I found this passage to be very helpful in illuminating the difference in our approaches. For me, the important question is not whether the co-equals of the Congress and the President are "bound" to obey the Supreme Court's decision. My concern is whether We the People, each and every one, who are not parties to the lawsuit are bound by the statute that has been adjudicated as unconstitutional.
Whether or not citizens are bound to obey the positive law is a very complicated question. But I think it is uncontroversial that citizens are not bound to obey a command that is not part of the positive law. So the precise question is this: under our Constitution, is a statute that has been properly adjudicated to be unconstitutional still the positive law of the United States (regardless of whether it remains in the U.S. Code for possible later revival)? I think the answer to this question is either "yes" or "no." Consider the alternatives.
My position about judicial equality is that the answer to this question is "no." Once properly adjudicated to be unconstitutional, a statute is no longer the positive law of the United States and citizens need not obey it. Had the individual insurance "requirement" of the ACA as originally written been held to be unconstitutional, no citizen—not just the parties before the Court—would have been required to buy insurance. Indeed, even under the "saving construction" adopted by Chief Justice Roberts, no citizen—not just a party the lawsuit—is acting illegally by failing to either buy insurance, or pay the "penalty" cum tax. All can agree that the positive law of the ACA was changed by the Court (which is one reason why some of us think its reasoning was improper). But I think it was changed for everyone, not just the parties.
But if a Supreme Court holding that the individual insurance mandate and its penalty was unconstitutional entails that it is no longer the law of the land, then there is no longer a law that the President may faithfully execute. While it may be as a practical matter that the Supreme Court cannot compel the President to obey the law and cease enforcing it against other citizens who were not parties to the lawsuit unless and until it considers another "case or controversy," the President would still be acting unlawfully in enforcing the ACA as written, and another citizen would not be acting illegally by failing to buy insurance. (What remedies may exist in our legal system for this unlawful executive behavior is a separate issue.) By the same token, if a state properly challenges the constitutionality of a federal statute-as 26 states did in their challenge to the ACA-such a ruling would legally protect all other states who were not parties to the lawsuit. Each of the other 26 states would not subsequently have to bring its own lawsuit.
Now consider the alternative answer: After the Supreme Court holds that the individual insurance "requirement" and "penalty" are both unconstitutional, the individual mandate remains the positive law of the United States and the executive can continue assessing the penalty, if . . . what? If the President believes that the Court was wrong about the Constitution? If the President and Congress believe the Court was wrong about the Constitution? From the point of view of the sovereign People, what are they supposed to do now under the law? Buy insurance or not? (Under the law of the land, do the other 24 states still face the penalty for not expanding their Medicare eligibility even after NFIB v. Sebelius)
How exactly is this going to work? Is the President supposed to issue a formal declaration of disagreement with the Court? Does Congress need to enact a joint resolution of constitutional disagreement? Without some such formality, how else will the individual citizen know whether or not he or she has a legal obligation to buy insurance? Needless to say, the Constitution provides for no such formalities, which is just one of many good reasons to conclude that the President or Congress (or both) cannot nullify or override a constitutional decision of the third co-equal branch of government that a law is "null and void" as a matter of positive law.
Notice how much simpler it is simply to adopt judicial equality: if in a properly presented case, the Supreme Court holds that a law is unconstitutional, then it is "null and void" as a matter of positive law. That decision by the Supreme Court puts the citizenry (which includes legislators and executive branch officials) on notice that a statute is no longer the "law of the land" and its requirements may safely be ignored unless and until its legal effect is "revived" in the future by another properly plead case.
I realize that I could still be missing something about Ed's position, and I invite his response if he thinks we are still talking past each other. But, it now seems to me likely that the principal difference between us that has led to this disagreement is this: When considering the effect of a Supreme Court decision that "sets aside" a law because it is unconstitutional and therefore "null and void," (to employ the expressions used repeatedly by the framers and ratifiers):
- Whereas Ed and others are primarily (or even exclusively) concerned with the legal effect of such a decision on the executive branch or on Congress,
- I am primarily concerned with the effect of such a ruling on the legal duty of We the People, each and every one, to obey a statute.
Or, in the words of John Marshall (with whom I sometimes do agree) in McCulloch v. Maryland:
Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.
Under our Constitution, every citizen comprising We the People is entitled safely to rely on that official judgment by the judiciary.