Bootstrapping

Law and Contemporary Problems

Volumn 75, Issue 3, 2012, Pages 115-144

  Benjamin, Stuart Minor ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 84861841925     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (105)

1. 347 U.S. 497 (1954).
2. 347 U.S. 483 (1954).
3. 339 U.S. 629 (1950).
4. See, e.g., Medellin v. Texas, 552 U.S. 491, 531 (2008) ("[I]f pervasive enough, a history of congressional acquiescence can be treated as a 'gloss on "Executive Power" vested in the President by § 1 of Art. II.'") (quoting Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)).
5. For a discussion of the significance of acquiescence in creating a form of estoppel, see Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. (forthcoming 2012).
6. For a discussion on path dependence, see Mark J. Roe, Chaos and Evolution in Law and Economics, 109 HARV. L. REV. 641, 643-62 (1996).
7. For a discussion on slippery slopes, see generally Eugene Volokh, The Mechanisms of the Slippery Slope, 116 HARV. L. REV. 1026 (2003).
8. Frederick Schauer, Slippery Slopes, 99 HARV. L. REV. 361 (1985).
9. Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 42 U.S.C.).
10. 42 U.S.C.A. § 1395dd (West 2010).
11. See infra notes 17-18 and accompanying text
12. See THE FEDERALIST NO. 51 (James Madison).
13. See Buckley v. Valeo, 424 U.S. 1, 122 (1976) (emphasizing the importance of "encroachment or aggrandizement of one branch at the expense of the other"); N. Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83 (1982) ("The constitutional system of checks and balances is designed to guard against 'encroachment or aggrandizement' by Congress at the expense of the other branches of government.") (quoting Buckley, 424 U.S. at 122); Bowsher v. Synar, 478 U.S. 714, 727 (1986) (emphasizing "[t]he dangers of congressional usurpation of Executive Branch functions").
14. See United States v. Lopez, 514 U.S. 549, 618 (1995) (Breyer, J., dissenting) ("[W]e must ask whether Congress could have had a rational basis for finding a significant (or substantial) connection between gun-related school violence and interstate commerce.").
15. So violating a constitutional norm (like the limits imposed by the Interstate Commerce and Necessary and Proper Clauses) is sufficient but not necessary
16. 26 U.S.C.A. § 5000A(a) (West 2010) ("An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.").
17. See 42 U.S.C.A. § 18091(a)(2)(I) (West 2010) ("[I]f there were no [individual mandate], many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection. ... The [individual mandate] is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.").
18. Mark A. Hall, Commerce Clause Challenges to Health Care Reform, 159 U. PA. L. REV. 1825, 1841 (2011).
19. see also Anthony T. Lo Sasso, Community Rating and Guaranteed Issue in the Individual Health Insurance Market, NIHCM Foundation, Jan. 2011, available at http://nihcm.org/pdf/EVLoSassoFINAL. pdf ("The primary concern with community rating and guaranteed issue is that these regulations can lead to adverse selection, destabilizing the insurance market and potentially causing total market collapse. This scenario is commonly termed an adverse selection death spiral. Aware of these concerns, policymakers included a provision in the ACA mandating all individuals to have health insurance.").
20. Making Health Care Work for American Families: Hearing Before the Subcomm. on Health of the H. Comm. on Energy & Commerce, 111th Cong. 11 (2009) (statement of Uwe Reinhardt, Professor of Economics and Pub. Affairs, Princeton Univ.) ("[C]ommunity-rating and guaranteed issue, coupled with voluntary insurance, tends to lead to a death spiral of individual insurance."); Brief for Petitioners, Dep't of Health & Human Servs., No. 11-398 (U.S. Jan. 6, 2012), 2012 WL 37168, at *18 ("[G]uaranteed-issue and community-rating enacted in isolation create a spiral of higher costs and reduced coverage because individuals can wait to enroll until they are sick.").
21. Adele M. Kirk, Riding the Bull: Experience with Individual Market Reform in Washington, Kentucky, and Massachusetts, 25 J. HEALTH POL. POL'Y & L. 133, 152 (2000) (stating that all but one private insurer left Kentucky after the state limited exclusions based on preexisting conditions).
22. Mark A. Hall, An Evaluation of New York's Reform Law, 25 J. HEALTH POL. POL'Y & L. 71, 91-92 (2000) (after New York enacted legislation containing guaranteed issue and community rating for health insurance without an individual mandate, "[t]here was a dramatic exodus of indemnity insurers from New York's individual market").
23. Randy E. Barnett, Turning Citizens into Subjects: Why the Health Insurance Mandate Is Unconstitutional, 62 MERCER L. REV. 608, 614 (2011).
24. See also Opening/Response Brief of Appellee/Cross-Appellant States, Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011) (Nos. 11-11021, 11-11067), 2011 WL 1944107, at *39-40 ("The government also contends that the individual mandate is incidental to 'the requirement that insurers extend coverage and set premiums without regard to pre-existing medical conditions.' The government insists that this requirement 'would not work without' the individual mandate because the requirement will encourage consumers to refrain from buying insurance until they are injured or sick.... The Constitution does not permit this type of blatant bootstrapping-create a problem and then assert that it is necessary and proper to fix the problem by asserting an authority the Constitution otherwise denies the federal government.") (internal citation omitted).
25. 42 U.S.C. § 1395dd (2006).
26. 42 U.S.C.A. § 1395dd(h) (West 2010) ("A participating hospital may not delay provision of an appropriate medical screening examination... or further medical examination and treatment... in order to inquire about the individual's method of payment or insurance status."). Before the passage of EMTALA, some hospitals provided emergency care regardless of ability to pay and others did not.
27. See Tiana Mayere Lee, An EMTALA Primer: The Impact of Changes in the Emergency Medicine Landscape on EMTALA Compliance and Enforcement, 13 ANNALS HEALTH L. 145, 146-47 (2004). EMTALA created a uniform requirement of basic coverage.
28. See also Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1295 n.101 (11th Cir. 2011), cert. granted sub nom. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 U.S. 603 (Nov. 14, 2011) (No. 11-393); Dep't of Health & Human Servs. v. Florida, 132 U.S. 604 (Nov. 14, 2011) (No. 11-398); Florida v. Dep't of Health & Human Servs., 132 U.S. 604 (Nov. 14, 2011) (No. 11-400) (noting the government's reliance on EMTALA and stating "the plaintiffs point out that the government's contention amounts to a bootstrapping argument. Under the government's theory, Congress can enlarge its own powers under the Commerce Clause by legislating a market externality into existence, and then claiming an extra-constitutional fix is required").
29. Brief of Revere America Foundation as Amicus Curiae in Support of Plaintiffs-Appellees/Cross Appellants, Florida ex rel. Att'y Gen., 648 F.3d 1235 (Nos. 11-11021, 11-11067), 2011 WL 2530512 at *10; see also Brief for the Am. Legislative Exch. Council as Amicus Curiae in Support of Plaintiffs-Appellees, Dep't of Health & Human Servs. v. Florida, No. 11-398 (U.S. filed Feb. 13, 2012), 2012 WL 504620 at *14-15 ("[T]he cost-shifting in this case is largely of Congress's own creation, stemming from the requirement in the Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd, that hospitals provide emergency medical care regardless of ability to pay. Congress cannot bootstrap a radical expansion of its Commerce power simply by legislating cost-shifting measures."); Brief of Amici Curiae Docs4patientcare, the Benjamin Rush Society, and the Pacific Research Institute, Dep't of Health & Human Servs. v. Florida, 648 F.3d 1285 (11th Cir. 2011) (No. 11-11021), 2011 WL 2530507, at *22 (characterizing the argument that EMTALA justifies the individual mandate as "disingenuous bootstrapping" and adding: "The federal government cannot expand its own authority by manufacturing the circumstances of uncompensated care and claiming that such circumstances now affect interstate commerce."); Opening/Response Brief for Appellee, Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011) (Nos. 11-1057, 11-1058), 2011 WL 1115016 at *43-44 ("While it is true that Congress has directly regulated aspects of the health care system, principally by mandating emergency room treatment by hospitals receiving federal funds... the question in this case is whether Congress can command a citizen to purchase insurance solely for the convenience of the government in regulating market distortions caused, at least in part, by previous congressional regulation.").
30. See also Florida ex rel. Att'y Gen., 648 F.3d at 1351 n.14 (Marcus, J., concurring in part and dissenting in part) ("For reasons that remain inexplicable to me, the majority opinion seems to suggest that the individual mandate is a 'bridge too far'-in the words of the district court-not because it conscripts the inactive, but rather for some inchoate reason stated at the highest order of abstraction.").
31. Some bootstrapping opponents make some or all of these arguments in addition to their complaints about bootstrapping, but I am focusing on the bootstrapping arguments specifically
32. See Reply Brief for Appellants, Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011) (No. 10-2388), 2011 WL 1653756 at *16 ("[I]f Congress can force a private citizen to engage in commercial or economic activity under penalty of federal law-whether exercising its authority under the Commerce Clause or the Necessary and Proper Clause-then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers.").
33. Robert A. Levy, The Case Against President Obama's Health Care Reform: A Primer for Nonlawyers, CATO INST., 6-7 (Apr. 25, 2011), http://www.cato.org/pubs/wtpapers/ObamaHealthCareReform-Levy.pdf ("Essentially, the insurance mandate is regulatory bootstrapping of the worst sort. Congress forces someone to engage in commerce, then proclaims that the activity may be regulated under the Commerce Clause. If Congress can do that, it can prescribe all manner of human conduct.").
34. The Constitutionality of the Affordable Care Act: Hearing Before the S. Comm. on the Judiciary, 112th Cong. 7 (2011) (statement of Michael Carvin, Partner, Jones Day) ("[A]llowing Congress to impose an 'individual mandate' on Americans to offset the costs created by Congressional regulation would mean that the Necessary and Proper Clause eviscerates all limits on Congress's enumerated powers."); Memorandum of Amici Curiae, Former United States Attorneys General William Barr, Edwin Meese, and Dick Thornburgh, in Support of Plaintiff's Motion for Summary Judgment at 18, Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010) (No. 3:10cv001880), 2010 WL 4168827 ("If one does not apply the Necessary and Proper Clause according to its meaning, the government could claim virtually any power simply by citing one of the myriad federal laws that-by being carried out-affects the economy, and then claiming that it wishes to force individuals to participate in a certain fashion to adjust for the consequences of those laws."); Opening/Response Brief for Appellee, Virginia ex rel. Cuccinelli, 656 F.3d 253 (4th Cir. 2011) (Nos. 11-1057, 11-1058), 2011 WL 1115016 at *44-45 ("[T]he claim that citizens can be commanded to purchase goods or services from another citizen in order to increase the efficiency of the federal government's regulation of commercial actors goes beyond the negative outer limits of the Commerce Clause, even as aided by the Necessary and Proper Clause, because the claimed power would be unlimited and indistinguishable from a national police power."); Brief for the Am. Legislative Exch. Council, ("The Government's theory in this case reduces to the idea that an individual's failure to purchase health insurance has a negative effect on the interstate market for health insurance, as compared to when individuals uniformly purchase such insurance under Government compulsion. But this bootstrapping rationale is equally true-that is, trivially so-with respect to nearly every individual decision not to participate in commerce: Congress can always conceive of some activity which, if mandated, would substantially affect interstate commerce.... Such a conception of the Commerce Clause is indistinguishable from a plenary federal police power."); Reply Brief for Plaintiffs in Support of Motion for a Preliminary Injunction, Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010) (No. 2:10-cv-11156), 2010 WL 4784262 (arguing that the doctrine of enumerated powers would be eviscerated if Congress could expand its powers by issuing a finding of "essentiality" in a regulatory scheme); Brief of Members of the U.S. Senate and Speaker of the House of Representatives John Boehner as Amici Curiae in Support of Plaintiffs-Appellees, Florida ex rel. Att'y Gen., 648 F.3d 1235 (No. 11-11021), 2011 WL 2530520 at *31 ("The [Necessary and Proper] Clause is not a blanket grant of Congressional power to be invoked by Congress whenever its constitutionally-permissible provisions have bad real-world results that can only be mitigated by otherwise unconstitutional provisions."); see also Florida ex rel. Att'y Gen., 648 F.3d at 1351 (Marcus, J., concurring in part and dissenting in part) ("Perhaps at the heart of the plaintiffs' objection to the mandate-adopted by the majority opinion in conclusion, if not in reasoning-is the notion that allowing the individual mandate to stand will convert Congress' commerce power into a plenary police power, admitting of no limits and knowing of no bounds. The parade of horribles said to follow ineluctably from upholding the individual mandate includes the federal government's ability to compel us to purchase and consume broccoli, buy General Motors vehicles, and exercise three times a week.").
35. Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1298 (N.D. Fla. 2011), aff'd in part, rev'd in part sub nom. Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011), cert. granted sub nom. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (Nov. 14, 2011) (No. 11-393); Dep't of Health & Human Servs. v. Florida, 132 S. C.t 604 (Nov. 14, 2011) (No. 11-398); Florida v. Dep't of Health & Human Servs., 132 S. Ct. 604 (Nov. 14, 2011) (No. 11-400) ("If Congress is allowed to define the scope of its power merely by arguing that a provision is 'necessary' to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the 'perfectly harmless' part of the Constitution that Hamilton assured us it was, and moves that much closer to becoming the 'hideous monster [with] devouring jaws' that he assured us it was not."). Indeed, some opponents have suggested that allowing the bootstrap will produce particularly pernicious forms of aggrandizement. House Republican Leader John Boehner argued in an amicus brief that this bootstrapping could create the wrong incentives for Congress. Brief of House Republican Leader John Boehner as Amicus Curiae in Support of Plaintiffs' Motion for Summary Judgment at 6, Florida ex rel. Bondi, 780 F. Supp. 2d 1256 (No. 3:10-cv-91) ("If adopted by the court, this interpretation of the Necessary and Proper Clause would create incentives for Congress to pass illconceived or unrealistic statutes."). In his opinion, Judge Vinson emphasized this possibility, writing, Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or "necessary" the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. Florida ex rel. Bondi, 780 F. Supp. 2d at 1297; see also Levy, ("Once again, Judge Vinson saw through the sophistry: The mandate is artificially necessary-required only because Congress went down a particular path that left few if any alternatives.").
36. U.S. CONST. art. I, § 8, cl. 18.
37. See McCulloch v. Maryland, 17 U.S. 316 (1819); United States v. Comstock, 130 S. Ct. 1949 (2010); Gonzales v. Raich, 545 U.S. 1 (2006) (Scalia, J., concurring).
38. U.S. CONST. art. II, § 1 ("The executive Power shall be vested in a President of the United States of America."); id. art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.").
39. See, e.g., National Currency Act, ch. 106, 13 Stat. 99 (1864); McFadden Act, ch. 191, 44 Stat. 1244 (1927).
40. 521 U.S. 844 (1997).
41. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) ("The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics.").
42. 521 U.S. 898 (1997).
43. The emphasis on history is particularly notable in the jurisprudence of Justice Scalia, who has emphasized the importance of "universal and long-established American legislative practice" as a relevant consideration in interpreting the First Amendment. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 375-77 (Scalia, J., dissenting).
44. We could try to create different categories of Ys based on how generative they have been of Zs, but that assumes the conclusion that the Zs are permissible and are a useful measuring stick
45. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 402 (1819) (emphasizing that "[t]he bill for incorporating the Bank of the United States... [was] supported by arguments which convinced minds as pure and as intelligent as this country can boast").
46. Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 755 (1999) ("[Marshall] opens his opinion by reminding us that the 1791 bill creating the first bank was supported by 'minds as pure and as intelligent as this country can boast.' The reference here is to the sainted Washington, who added his name to the bill and thus made it law only after satisfying himself of its constitutionality.") (internal citation omitted).
47. John Eastman made a more specific argument analogous to this, focusing on the Supreme Court and the Commerce Clause. John Eastman in the Sacramento Bee: Health Care Reform Challenge? It's the Law, JOHN EASTMAN FOR ATTORNEY GENERAL (Apr. 6, 2010), http://www.eastmanforag.com/news/john-eastman-in-the-sacramento-bee-health-care-reformchallenge-its-the-law ("[T]he Supreme Court has never before allowed Congress to bootstrap its way into Commerce Clause authority by relying on the impact of its own regulation.").
48. Consider EMTALA in this regard. Before EMTALA, some emergency rooms voluntarily treated patients who could not pay, and some federally funded emergency rooms had some treatment obligations.
49. See Maria O'Brien Hylton, The Economics and Politics of Emergency Health Care for the Poor: The Patient Dumping Dilemma, 1992 BYU L. REV. 971, 980 (1992) (discussing 1946 legislation known as the Hill-Burton Act that required hospitals "receiv[ing] federal funds for construction and capital improvements to furnish a 'reasonable' amount of free or reduced-cost care to indigent patients," and the "widespread agreement that this program has been a complete failure with respect to increasing the supply of indigent care").
50. W. Adam Malizio, Note, Moses v. Providence Hospital: The Sixth Circuit Dumps the Federal Regulations of the Patient Anti-Dumping Statute, 27 J. CONTEMP. HEALTH L. & POL'Y 213, 215 (2010) (recounting the failure of the Hill-Burton Act to ensure care and adding that "[i]n an effort to address the problem of patient dumping on a broad scale, Congress passed [EMTALA]").
51. Jennifer M. Smith, Screen, Stabilize, and Ship: EMTALA, U.S. Hospitals, and Undocumented Immigrants (International Patient Dumping), 10 HOUS. J. HEALTH L. & POL'Y 309, 321 (2010) (recounting the "ineffective[ness]" of the Hill-Burton Act and stating that "Congress' enactment of EMTALA was the direct response to the American public's outcry over the inhumane treatment of the poor"). But whatever percentage of emergency rooms already provided uncompensated care, EMTALA changed the legal landscape by compelling free care.
52. One can draw a distinction between bootstraps enabling regulation of action and bootstraps enabling regulation of inaction, but that would be an ad hoc judgment reflecting a desire not to allow this bootstrap (or maybe to stop the continued growth of bootstrapping). That is, the distinction would reflect a distaste for Z, but it would not reflect anything different about the bootstrapping process.
53. Associated Press v. United States, 326 U.S. 1, 20 (1945); see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 663-64 (1994) (quoting some of this language from Associated Press); Leathers v. Medlock, 499 U.S. 439, 459 (1991) (same).
54. I am referring here to a distinction made by many commentators between the decisionmaker's subjective motivation and its objective purposes
55. See, e.g., Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REV. 767, 793-94 (2001) (distinguishing legislators' subjective motives from objective legislative purpose).
56. Ira M. Heyman, The Chief Justice, Racial Segregation and the Friendly Critics, 49 CAL L. REV. 104, 115-16 (1961) (same).
57. Others reject the distinction. See, e.g., John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L.J. 1205, 1217-21 (1970).
58. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 426 n.40 (1996).
59. Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1143 (1986).
60. As my arguments make clear, I do not think anything turns on a distinction between subjective motivation and objective purpose in the bootstrapping context, so those who reject this distinction can ignore this footnote and erase it from their memories (if it is possible to do so, see The Eternal Sunshine of the Spotless Mind (2004))
61. Kenneth A. Shepsle, Congress Is a "They," Not an "It": Legislative Intent as Oxymoron, 12 INT'L REV. L. & ECON. 239, 254 (1992).
62. See also Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 870 (1930) ("The least reflection makes clear that the law maker... does not exist, and only worse confusion follows when in his place there are substituted the members of the legislature as a body. A legislature certainly has no intention whatever in connection with words which some two or three men drafted, which a considerable number rejected, and in regard to which many of the approving majority might have had, and often demonstrably did have, different ideas and beliefs.").
63. Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 547 (1983) ("Because legislatures comprise many members, they do not have 'intents' or 'designs,' hidden yet discoverable. Each member may or may not have a design. The body as a whole, however, has only outcomes."). The Supreme Court is smaller, but the same concern arises about divining its purposes.
64. See Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 94 (2004).
65. Pardon the pun
66. As Joseph Blocher notes in his response to this article, "Congress A might not have sufficient incentive to aggrandize the power of Congress B; the personal and party interests of individual representatives probably outweigh their interests in expanding the power of the institution itself."
67. Joseph Blocher, What We Fret About When We Fret About Bootstrapping, 75 LAW & CONTEMP. PROBS., no. 3, 2012 at 146, 151.
68. See generally Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311 (2006) (arguing that members of Congress are primarily loyal to their party, not to Congress).
69. See infra notes 85-88 and accompanying text
70. Unless we believe that constituents want aggrandizement, in which case the push against aggrandizement is both antidemocratic and doomed to failure
71. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636-40 (1987) (Scalia, J., dissenting). Justice Scalia stated: [A] particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fundraising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted "yes" instead of "no," or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist.
72. 521 U.S. 844 (1997).
73. Radio Act of 1927, ch. 169, 44 Stat. 1162, repealed by Communications Act of 1934, ch. 652, 48 Stat. 1064 (codified as amended at 47 U.S.C. §§ 151-620 (2006)).
74. Ch. 652, 48 Stat. 1064 (codified as amended at 47 U.S.C. §§ 151-620 (2006)).
75. See, e.g., Trinity Methodist Church, S. v. Fed. Radio Comm'n, 62 F.2d 850, 851 (D.C. Cir. 1932) (stating that the First Amendment applies to prior restraints, and that refusing to renew a broadcaster based on his earlier broadcasts does not implicate the First Amendment).
76. 438 U.S. 726 (1978).
77. 521 U.S. 457 (1997).
78. 533 U.S. 405 (2001).
79. The programs at issue in the two cases were very similar. Both required growers to contribute to a program that would fund generic advertising of the product grown. Both programs were mandatory, once a majority of farmers voted to initiate it. But the Supreme Court found one program constitutional and the other unconstitutional. The difference, according to the Court in United Foods, was in the larger regulatory scheme surrounding the two advertising programs: The program sustained in Glickman differs from the one under review in a most fundamental respect. In Glickman the mandated assessments for speech were ancillary to a more comprehensive program restricting marketing autonomy. Here, for all practical purposes, the advertising itself, far from being ancillary, is the principal object of the regulatory scheme. United Foods, 533 U.S. at 411-12. The Sixth Circuit had similarly distinguished the mushroom program. See United Foods v. United States, 197 F.3d 221, 222 (6th Cir. 1999).
80. Glickman, 521 U.S. at 475.
81. United Foods, 533 U.S. at 415-16.
82. This point applies even to major constitutional debates in the first Congress, such as that on the President's ability to remove executive officers. In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court placed great emphasis on this debate and heralded it as "the decision of 1789." But as Sai Prakash has noted about that debate, "[t]he vast majority of Representatives [in the first Congress] understood that Congress could express its views about the Constitution's meaning and that, while the Decision of 1789 would be deserving of some deference, it would not decide the removal question for all time."
83. Saikrishna Prakash, New Light on the Decision of 1789, 91 CORNELL L. REV. 1021, 1075 (2006).
84. See Mark A. Hall, Commerce Clause Challenges to Health Care Reform, 159 U. PA. L. REV. 1825, 1829 (2011) (noting relatedly that "authority under the commerce power to compel purchases or other actions could well be essential to combat a horrifically lethal pandemic").
85. See, e.g., William N. Eskridge, Jr., Vetogates, Chevron, and Preemption, 83 NOTRE DAME L. REV. 1441, 1444-48 (2008) (listing nine different vetogates that legislation must overcome).
86. McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO. L.J. 705, 720 (1992) (noting the many vetogates that can block legislative initiatives).
87. The Court has emphasized the importance of comprehensiveness in other contexts, notably including the Commerce Clause. See, for example, Hodel v. Indiana, 452 U.S. 314, 329 n.17 (1981), stating, A complex regulatory program such as established by the Act can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.
88. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 42 U.S.C.).
89. See Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J. L. & ECON. 132, 133 (1999) (discussing "the president's formal capacity for taking unilateral action and thus for making law on his own").
90. I say "almost as easily" because Presidents have always had an internal executive branch review process for executive orders, and so two orders entail two iterations of that process. But Presidents choose such review and thus can dispense with it, the review is not very onerous, and the President knows at the end of the day that the decisions on all aspects of a given executive order are his alone.
91. See Joseph Kahn, Cheney Refuses to Release Energy Task Force Records, N.Y. TIMES, Aug. 4, 2001, at A10.
92. See Michael Abramowitz & Steven Mufson, Papers Detail Industry's Role in Cheney's Energy Report, WASH. POST, July 18, 2007, at A01.
93. See White House, United States Activities in Libya, at 25 (June 15, 2011), available at http://www.foreignpolicy.com/files/fp_uploaded_documents/110615_United_States_Activities_in_Libya _-_6_15_11.pdf ("U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof.").
94. Charlie Savage & Mark Landler, White House Defends Continuing U.S. Role in Libya Operation, N.Y. TIMES, June 15, 2011, at A16 ("Jack L. Goldsmith, who led the Justice Department's Office of Legal Counsel during the Bush administration, said the Obama theory would set a precedent expanding future presidents' unauthorized war-making powers, especially given the rise of remotecontrolled combat technology. 'The administration's theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution's time limits,' Mr. Goldsmith said.").
95. Consider Nw. Austin Mun. Util. Dist. No. One v. Holder (NAMUDNO), 557 U.S. 193 (2009). I think it is plausible to imagine that at least one of the five Justices most likely to invalidate the Voting Rights Act thought there would be unacceptable costs to the Court if it invalidated it in NAMUDNO, but wanted ultimately to invalidate it. In such circumstances, what might such a Justice do? One possible answer is to bootstrap-to write the NAMUDNO opinion in a way that enables the future invalidation of the Voting Rights Act without the high costs to the Court. If our hypothetical Justice believed both that the majority of which he was a part was durable and that a future Voting Rights Act challenge would be brought, then the risks of this strategy would be fairly low and the benefits significant. Whether or not this was in fact any Justice's intention, I believe that the Court's opinion in NAMUDNO has that effect. It sounds warnings about the Voting Rights Act and urges Congress to revise the act to save the Court from the need to do so. No one expects Congress to revise the Voting Rights Act-given the differing views in Congress and the many barriers to any legislation, it would be a minor miracle if the revisions the Court seeks were enacted. But the lack of a response to the Court's call makes it easy for the Court in the future, when facing a constitutional challenge to the Voting Rights Act, to say that because Congress failed to revise the Act, the Court will invalidate the Act. What would seem illegitimate in one step will seem much less objectionable when done in two. This is a bootstrap that relies on congressional inaction, but it is a safe bet. Meanwhile, the Justices most likely to invalidate the Voting Rights Act knew, at the time NAMUDNO was decided, that their majority was likely to persist for at least five to ten years, either because none of them would retire (the most likely outcome) or because any Justice who did retire would be replaced by someone like-minded (since Justices can time their retirements). It was a high-probability bet, at the time NAMUDNO was decided, that if a majority was ready to invalidate the Voting Rights Act in 2009 but for the seeming inappropriateness of acting precipitously, a majority would be just as ready to invalidate it in 2014 or 2019, at which point the Court could point to years of congressional inaction as a justification. And NAMUDNO was a sufficiently clear hint to litigants that the Justices could reasonably expect future challenges that would provide vehicles for considering the constitutionality of the Voting Rights Act.
96. 5 U.S. 137 (1 Cranch) (1803).
97. 347 U.S. 483 (1954).
98. 347 U.S. 497 (1954).
99. It may be that some critics of simultaneous bootstrapping are actually motivated by a desire to make complex legislation more difficult to enact (and perhaps complex Supreme Court opinions more difficult to create), perhaps on the theory that simultaneous bootstraps are likely not only to be complex but also to contain policy elements that they generally will not favor, or perhaps because they think that states should have more power relative to the federal government. If so, bootstrapping is a proxy for policy results they do not like. In any event, if that is their concern then critics should so state, so that we can then assess that argument on its merits.
100. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915 (2005).
101. 317 U.S. 111 (1942).
102. 514 U.S. 549 (1995).
103. See Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997); United Foods v. United States, 533 U.S. 405 (2001).
104. Apparently, this is not actually true of frogs, but the metaphor has taken root nonetheless
105. See, e.g., Next Time, What Say We Boil a Consultant, FAST COMPANY (Oct. 31, 1995), http://www.fastcompany.com/magazine/01/frog.html (quoting numerous experts who said that a frog would, in fact, jump out of the water).