In the wake of the Fifth Circuit's decision in Texas v. United States, Professor Nicholas Bagley has attacked the majority opinion as "indefensible," "balderdash," and "an embarrassment, both to the Republican-appointed judges who put their names on it and to the federal judiciary as a whole." Had he stopped there, I probably wouldn't be taking the time to write this post. Instead, though, he proceeded to attack Judges Elrod and Engelhardt--the two Fifth Circuit judges in the majority--personally, calling them "breathtaking[ly]" "arrogan[t]," "coward[ly]," "daft," and "activists to their core." And all this from just two pieces he wrote for the Atlantic.

Trouble is, his "expert analysis" of the opinion is misleading and, in my humble view, mistaken in several respects. In this post and a couple to follow, I'll be discussing a few of them. Before I dig in, though, let me clarify a few things :

  1. I admire and respect Professor Bagley. He's a leading scholar in an area of law I love, and his law review articles, etc. are fantastic. I pay attention to him because he's smart and insightful. That's why his coverage of the Fifth Circuit's ACA opinion disappointed me so much. In my view, it's beneath him.
  2. Professor Bagley knows more about the ACA than I do. A lot more. He's an expert and knows the law inside out like the back of his hand. That's why I strongly suspect that the mistakes I highlight below aren't accidents.  
  3. I'm discussing Professor Bagley's views here because they've gotten so much press. In fairness to him, though, he's far from alone in his views. I think that's unfortunate, but it's also reality.
  4. You might think that I'm only calling Professor Bagley out because I clerked for Judge Elrod and am therefore biased in her favor. Before you write me off, though, remember that I just wrote a lengthy post criticizing the majority opinion she authored in this very case. I obviously have no problem disagreeing with Judge Elrod when I think she's wrong. I didn't when I was clerking for her, and I don't now.

With that, let's get down to cases, shall we? I think I'll start with Professor Bagley's argument that the Judges Elrod and Engelhardt's "arrogance is breathtaking." I'll quote the argument in full so you know I'm not being tricky:

But the core of the case is the Fifth Circuit’s conclusion that the zero-dollar individual mandate imposes a coercive command. “It is an individual mandate, not an individual suggestion.” Before the penalty was eliminated, the court reasoned, people had a choice about whether to buy insurance. But when Congress eliminated the penalty, it must have meant to subject people to government compulsion. The law is “only cognizable as a command.”
That’s balderdash. Eliminating the penalty was Congress’s way of giving people the freedom to drop their health insurance if they wanted to. Congress didn’t mean to force them to do anything.
I’m not just saying that. When the Supreme Court interpreted the Affordable Care Act back in 2012, it held that the individual mandate gives people “a lawful choice.” That wasn’t a tentative, provisional conclusion. According to the Supreme Court, that’s what Congress meant when it used the word shall.
That conclusion is still the law of the land, and it’s binding on the lower courts—even courts that really hate Obamacare. Whether the mandate is still a tax for constitutional purposes makes no difference. The law’s meaning—that it gives people a choice—stays the same, even if the constitutional terrain shifts. Otherwise, the Supreme Court has written, “every statute” would be rendered “a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case.”
In its zeal to take down the Affordable Care Act, however, the Fifth Circuit sidestepped the pesky legal niceties that normally restrain activist judges. The arrogance is breathtaking.

I have several issues with this argument, but let me begin with what, in my view, is the core of the problem with his approach: It's been too long since he's read Nicholas Quinn Rosenkranz's brilliant article, The Subjects of the Constitution.  There, Rosenkranz insists that in a case like this one involving a challenge to the constitutionality of a statue, the first question should always be who has violated the Constitution? And the second question should be when? The plaintiffs in Texas v. US are never very clear about either question, nor are most commentators. Take Professor Bagley. He insists that because NFIB holds that the 2010 Congress didn't exceed its constitutional authority in passing the previous iteration of section 5000A, the 2017 Congress couldn't have exceeded its constitutional authority through the TCJA's amendment to section 5000A. Professor Rosenkranz poses a challenge to that view: Focusing on the 2017 Congress's enactment of the TCJA, tell us precisely which source of constitutional authority permitted that act. Pointing to what the Supreme Court said about the previous act of a different Congress simply won't cut it. Again, I'm not saying it can't be justified, I'm just saying that it's not so clear that the arguments we've heard can do the trick. With that introduction to the big picture, let's take a look at some of the details.

First, Professor Bagley accuses the majority of saying that "when Congress eliminated the penalty, it must have meant to subject people to government compulsion," but I've read the opinion pretty carefully a few times, and I can't find that--or anything close to it--anywhere in there. Indeed, in a previous piece, Professor Bagley chided these same judges as "Know-Nothing" textualists precisely because they don't interpret statutes by seeking out what Congress subjectively "meant" to do.

Second, NFIB did not interpret the word "shall" in the individual mandate to create a choice as Professor Bagley says. It interpreted the mandate when read in conjunction with the penalty to create a lawful choice. Professor Bagley admits, as he must, that the Chief Justice acknowledged that "[t]he most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals 'shall' maintain health insurance." It was only because "the Commerce Clause does not give Congress that power," that the Chief Justice found it "necessary" to reach the taxing power question. And it was "only because [the Court] ha[d] a legal duty to construe [the] statute to save it, if fairly possible," he explained, "that § 5000A c[ould] be interpreted as a tax." As if to remove any doubt on this point, the Chief Justice added: "Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction."

Third, Professor Bagley is even more off base when he claims that "[w]hether the mandate is still a tax for constitutional purposes makes no difference." The "difference" is so obvious that I feel silly spelling it out, but here we go: Imagine two worlds, X and Y. In World X, the "mandate is still a tax," whereas in World Y, the "mandate is [not] still a tax." The difference between them is this: In World X, NFIB would put the mandate's constitutionality beyond doubt; in World Y, by contrast, the mandate may still be constitutional, but obviously not because it is still a tax. As a result, people who hope to defend the mandate's constitutionality after the enactment of the TCJA--people like, for instance, Professor Bagley–need a new argument. [To be clear, I'm not saying such an argument is impossible to make. In fact, I offered a couple of candidate arguments of my own in my last post.]

Fourth, Professor Bagley says that "[t]he law’s meaning—that it gives people a choice—stays the same, even if the constitutional terrain shifts." I don't even know what that sentence means. Perhaps he means that NFIB's interpretation of the mandate (5000A(a)) must remain fixed no matter how Congress changes other parts of the statute. That's obviously not true, though. To pick just one example, imagine that Congress raised the penalty to infinity. Would the law's meaning for constitutional purposes stay the same then? It would still give people a choice, but it would also undeniably be unconstitutional. Indeed, Chief Justice Roberts made that very point in NFIB:

Congress's ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority. See, e.g., United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477 (1936); Drexel Furniture, 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817. *573 More often and more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures. See Kahriger, 345 U.S., at 27–31, 73 S.Ct. 510 (collecting cases). We have nonetheless maintained that “ ‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’ ” **2600 Kurth Ranch, 511 U.S., at 779, 114 S.Ct. 1937 (quoting Drexel Furniture, supra, at 38, 42 S.Ct. 449).
We have already explained that the shared responsibility payment's practical characteristics pass muster as a tax under our narrowest interpretations of the taxing power. Supra, at 2595 – 2596. Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. It remains true, however, that the “ ‘power to tax is not the power to destroy while this Court sits.’ ” Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342, 364, 69 S.Ct. 561, 93 L.Ed. 721 (1949) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223, 48 S.Ct. 451, 72 L.Ed. 857 (1928) (Holmes, J., dissenting)).

Perhaps Professor Bagley means that if the mandate-plus-penalty arrangement gave people a lawful choice then surely lowering the penalty only gave them a freer choice. True enough. But again, when it comes to Congress's authority under the Constitution, the precise nature of the choice matters. See the passage from the Chief Justice's opinion just quoted.

In short, subsequent amendments to the ACA's language absolutely can displace NFIB's "lawful choice" interpretation. The question here is whether Congress has authority to make the choice completely free. Perhaps it does, but what's the source of that authority? As Professor Bagley himself acknowledges, with the penalty zeroed out, the mandate "d[oes]n't look like a tax anymore." And there is an equally troubling problem with the commerce clause: If the 2017 Congress passed the TCJA under its commerce power, then it does have the power to compel people to buy insurance. The Chief Justice emphasized this point in NFIB:

[A]lthough the breadth of Congress's power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes. By contrast, Congress's authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.

That's enough for one night. I've got a lot more to say, though, so please stay tuned.

A Response to Nicholas Bagley
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