Stare Decisis

Discussing Judge Vinson's ruling on the health bill, Orin Kerr writes:

If you are an originalist, [. . . i]f you’re a libertarian [Judge Vinson's ruling] is [. . .] very appealing [. . .]. But there’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent. See, e.g, Winslow v. F.E.R.C., 587 F.3d 1133. 1135 (D.C. Cir. 2009) (Kavanaugh, J.) (“Vertical stare decisis — both in letter and in spirit — is a critical aspect of our hierarchical Judiciary headed by ‘one supreme Court.’”) (citing U.S. Const. art. III, § 1). [. . . T]he judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning.

[. . . Y]ou have to confront the doctrinal test that the U.S. Supreme Court offered in a majority opinion just a few months ago in United States v. Comstock:

[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

[W]hen the Supreme Court says that this is what “we look to see” when determining if a power falls within the Constitution, then that is a doctrinal test to which a trial judge is bound under the principle of stare decisis.

More . . .

In theory, stare decisis applies the Supreme Court as well (PDF):

“Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification.”10

“Special justification” can be one or more of several different considerations, and how strong a justification the Court requires can vary with the importance of the precedent as well as with the importance the Court attaches to overruling it. The decision whether to adhere to a constitutional decision “is a complex and difficult one . . . that must account for a variety of often competing considerations.”11 In reexamining a constitutional precedent, the Court looks to “a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.”12 The Court has looked to the following general considerations in overruling precedent.

[We] may ask whether the rule has proven to be intolerable simply in defying practical workability, Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965); whether the rule is subject to the kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, e.g., United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924); whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989); or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification, e.g., Burnet, supra, at 412 (Brandeis, J. dissenting).13

The silent overrule is the preferred method of the Roberts Supreme Court. That said, ruling the Affordable Care Act unconstitutional without overruling precedents looks like it will be a heavy lift for the Roberts Court. And I am not at all sure they would even want to do it.

Time will tell.

Speaking for me only

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    If the Republicans's (none / 0) (#1)
    by andgarden on Wed Feb 02, 2011 at 10:18:02 AM EST
    wanted to back their rhetorical claim about liberty with a legal foundation that Kennedy might be inclined to vote for, they should make an explicit 5th Amendment SDP argument.

    But we know why they won't.

    From my perspective, the Republicans are quite clearly asking the courts to invent a right (i.e., the gap that BTD pointed out yesterday in Vinson's Necessary and Proper analysis). They are hoisted by their own petards.

    Whoops, extra possessive FTW (none / 0) (#2)
    by andgarden on Wed Feb 02, 2011 at 10:21:37 AM EST
    I find Kerr's post somewhat (none / 0) (#3)
    by Maryb2004 on Wed Feb 02, 2011 at 10:31:22 AM EST
    humorous, not because of its content but because it was written in response to Jonathan Adler.  Taken on its own it's an informative explanation of the hierarchy of the federal court system and the role of stare decisis written in Kerr's usual pleasant tone of "ok, I'll take this slowly and speak in words of one syllable so all you non-lawyers can understand what I'm saying."

    But, taken as a response to Adler, it's tone makes me laugh.

    I think Mr. Costello, who wrote the (none / 0) (#5)
    by oculus on Wed Feb 02, 2011 at 01:29:19 PM EST
    CRS link, hasn't ever worked at an appellate court.  

    Just saw that Orin Kerr (none / 0) (#6)
    by Maryb2004 on Wed Feb 02, 2011 at 02:04:06 PM EST
    is Appellate Lawyer of the Month which should show that he knows something about District Court error.  

    The problem, you're asking for (none / 0) (#4)
    by Radix on Wed Feb 02, 2011 at 12:27:23 PM EST
    consistency from idealogs,it's not something which concerns them.

    United States v. Comstock (none / 0) (#7)
    by 1980Ford on Wed Feb 02, 2011 at 03:34:45 PM EST
    Judge Vinson's argument regarding Necessary and (none / 0) (#8)
    by kramartini on Wed Feb 02, 2011 at 04:07:51 PM EST
    Proper is that the individual mandate is not "proper" because it "cannot by reconciled with limited government of enumerated powers."

    His argument is that if the individual mandate is upheld, then there is no longer any effective limitation of Federal power and we will no longer have a government of enumerated powers.

    The "rational relationship" test is irrelevant.

    It's irrelevant to whom? (none / 0) (#9)
    by Big Tent Democrat on Wed Feb 02, 2011 at 05:24:33 PM EST
    Not according to the longstanding precedents of the Supreme Court.

    Which is the point of this post. District court judges do not get to ignore precedent.


    I am simply re-stating Vinson's point, (none / 0) (#11)
    by kramartini on Wed Feb 02, 2011 at 06:31:07 PM EST
    which is that, even if we accept that the individual mandate is "rationally related" to a legitimate exercise of the commerce power, the analysis does not end there.

    The "rationally related" means of exercising the power must not be forbidden by the constitution.

    Vinson's argument is that if one believes, as he does, that allowing Congress to regulate "inactivity" would leave nothing excluded from Congress's purview and would transform a Federal government from one of enumerated powers to one of unlimited powers, then it is not "proper".


    There is simply no basis (none / 0) (#15)
    by andgarden on Wed Feb 02, 2011 at 06:41:29 PM EST
    for that assertion. Just a bunch of cotton candy about liberty.

    If you want to argue for substantive due process, you need to actually make that argument. Not just imply it in unrelated nonsense about Federalism.


    No cotton candy here. (none / 0) (#17)
    by kramartini on Wed Feb 02, 2011 at 06:54:30 PM EST
    I am not arguing about individual liberty at all.

    Vinson's opinion in no way would restrict any state from passing an individual mandate, just the Federal government.


    This is argument by assertion (none / 0) (#10)
    by andgarden on Wed Feb 02, 2011 at 05:33:20 PM EST
    and provably false; the claim that "there is no longer any effective limitation" on Federal power would write the Fifth Amendment out of the Constitution, at minimum. There is not a single Justice on the Supreme Court who could credibly accept that proposition (PDF).

    How about: :no longer any powers (none / 0) (#12)
    by kramartini on Wed Feb 02, 2011 at 06:35:46 PM EST
    exclusively reserved to the states"?

    The individual mandate (none / 0) (#14)
    by andgarden on Wed Feb 02, 2011 at 06:40:22 PM EST
    is orthogonal to state power.

    Orthogonal? (none / 0) (#16)
    by kramartini on Wed Feb 02, 2011 at 06:51:53 PM EST
    A very good way to express your view.

    However, it is incorrect. If Federal and state power were orthogonal in the area of the individual mandate, than the expansion of Federal power would not limit state power and vice versa (just like changing the value on the x-axis does not affect values on the y-axis in a Cartesian coordinate system).

    That is not the case here.

    If the Federal government passes an individual mandate, and the state passes a conflicting one, the state would lose as the Federal law would be supreme.

    Since passage of the Federal mandate limits state power in this regard, it is not orthogonal to state power.


    But that's not a relevant impact (none / 0) (#18)
    by andgarden on Wed Feb 02, 2011 at 09:06:31 PM EST
    for the purpose of drawing a line. That Federal law is supreme is textually quite clear. Why should it be a problem in this arena?

    Ipse dixit is not a principled basis for a district court to draw a line. It is no reason at all.  


    How does the 5th Amendment limit (none / 0) (#13)
    by kramartini on Wed Feb 02, 2011 at 06:37:30 PM EST
    Federal power vis-a-vis the states?