Guardians of Our Liberties

In an oral argument before the Supreme Court on Tuesday March 27 in the case Dept. of Human Services Et Al. v. Florida Et Al. about the Constitutionality of the individual health-insurance mandate, Justice Anthony Kennedy made the following statement expressing deep skepticism that the power claimed by the Obama administration to compel individuals to purchase health insurance against their will is a power compatible with our traditional understanding of the relationship embodied in the common law and our jurisprudence between an individual citizen and his or her government.

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

Following Justice Kennedy’s pronouncement, the Justices and the lawyers kept referring to the existence or the non-existence of a “limiting principle” that would prevent the government, if its power to impose an individual mandate were granted, from exercising an unlimited power over the economic decisions of individuals under the “commerce clause.”  By all accounts, Chief Justice Roberts, and Justices Scalia and Alito expressed similar concerns to those of Justice Kennedy.  Justice Thomas, as is his wont, remained silent during the oral argument, but he has already written skeptically about the extent to which the “commerce clause” has been used in earlier cases to justify government regulation of private economic activity.

A few days later in the case Florence v. Board of Chosen Freeholders of County of Burlington Et Al., Justice Kennedy, writing for a majority (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) of the Court, upheld the power of jail officials to strip search detainees arrested for any offense at their own discretion, regardless of whether there was probable cause to suspect the detainee of having contraband on his person.  According to press reports, a nun arrested at an anti-war protest was subjected to a strip search under the discretionary authority approved by Justice Kennedy and his four learned colleagues.  Here is an excerpt chosen more or less randomly from Justice Kennedy’s opinion.

Petitioner’s proposal―that new detainees not arrested for serious crimes or for offenses involving weapons or drugs be exempt from invasive searches unless they give officers a particular reason to suspect them of hiding contraband―is unworkable. The seriousness of an offense is a poor predictor of who has contraband, and it would be difficult to determine whether individual detainees fall within the proposed exemption. Even persons arrested for a minor offense may be coerced by others into concealing contraband. Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility.

It also may be difficult to classify inmates by their current and prior offenses before the intake search. Jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity. The officers conducting an initial search often do not have access to criminal history records. And those records can be inaccurate or incomplete. Even with accurate information, officers would encounter serious implementation difficulties. They would be required to determine quickly whether any underlying offenses were serious enough to authorize the more invasive search protocol. Other possible classifications based on characteristics of individual detainees also might prove to be unworkable or even give rise to charges of discriminatory application. To avoid liability, officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population. While the restrictions petitioner suggests would limit the intrusion on the privacy of some detainees, it would be at the risk of increased danger to everyone in the facility, including the less serious offenders. The Fourth and Fourteenth Amendments do not require adoption of the proposed framework.

One can’t help but wonder what limiting principle these five honorable justices would articulate in circumscribing the authority to conduct a “reasonable search and seizure” under the Fourth Amendment to the Constitution.  But I really don’t want to go there.

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19 Responses to “Guardians of Our Liberties”


  1. 1 Julian Janssen April 4, 2012 at 1:30 pm

    Honestly, I don’t quite get the distinction between requiring health insurance, which is obviously a violation of people’s freedom to be sick and die in peace, and requirements that companies comply with OSHA, environmental standards, minimum wages and working hours, or that employers are to affirmatively not discriminate against persons on the basis of race. Why must companies take an affirmative action to ensure that they don’t kill their employees? Okay, fine we’re talking about what might be construed as actions to prevent harms to OTHERS, but where does it say in the constitution that the government may not require things that protect people from themselves? Here’s another thought: why does the federal government have the power to prohibit drugs when they might be taken in the privacy of one’s home, without negatively affecting everyone else? No, I’m not advocating legalization, just wondering what the distinction is in all this.

  2. 2 Marcus Nunes April 4, 2012 at 1:52 pm

    Sounds pretty much like the “stimulus” dabate within our profession!

  3. 3 Benjamin Cole April 5, 2012 at 9:53 am

    Let’s see. the USDA can compel a wheat farmer to grow a certain amount of crop, and no more, even for the farmer’s private use. The Feds can ban some crops from market, such as undersized grapefruits.
    The US Government can say I am a terrorist, and then kill me without trial or any notification before or after to anyone.
    If I burn a US flag to protest this, I can be thrown in jail.
    If I grow even a small amount of weed, and smoke it on my own land, the federal government can throw me in jail.
    If I “moonshine” the Feds can throw me in jail.
    But mandating I buy health insurance they cannot do.
    The Feds can tax me or draft me for war.
    Local government can do almost anything–zone your land, re-zone your land, tax your land, seize your land, regulate installation of electrical and plumbing fixtures etc, ban you from whole professions without a license, ban push-cart vendors, ban prostitution between consenting adults, ban sale of alcohol etc etc etc.

    Okay. But the Supreme Court is striking down mandated health care.

    That said, the Obama team probably made a tactical mistake. Obviously, the Feds have the power to tax. They should have somehow taxed, and then allowed anyone into a health care system.

    Better yet, explained the the American public that other spend about half what we do on health care with roughly the same results. The Obama team never made that clear.

  4. 4 David Glasner April 5, 2012 at 11:55 am

    Julian, The distinction is an arcane one based on the notion that there is a difference between telling someone engaged in an activity how he must engage in it and telling someone he must engage in the activity. Most sensible people don’t think the distinction is a very compelling one, but opponents of Obama’s health care plan seem to have settled upon it as the principle upon which they want to base their case.

    Marcus, Not sure I see the similarity unless it is the obvious insincerity of the arguments that some people are making on behalf of a position that they are taking to advance a political agenda.

    Benjamin, There are all kinds of inconsistencies at work here. But when a Supreme Court Justice (and his four amigos) gets all worked up about the fundamental change in the relationship between the individual and the government that would result from the individual mandate to purchase health insurance, which can be avoided by paying a fine, and then the same justice and the same four amigos cavalierly gives their approval to jail officials to strip search anyone arrested for any offense without any probable cause, that tells me that something has gone very, very wrong with this court. I was reluctant to bring this up on my blog, but some things are just too outrageous to observe in silence.

  5. 5 Wonks Anonymous April 5, 2012 at 3:03 pm

    The states have general police powers, the federal government has explicitly enumerated powers under the constitution (with most of its actions in practice being justified by the commerce clause). State governments do not need limiting principles.

  6. 6 Benjamin Cole April 5, 2012 at 3:05 pm

    David-

    I concur with you. There seems no principle, or rhyme or reason, to Supreme Court decisions since 2000, only partisan sentiments (including Bush v Gore).

    I wonder if a court appointed by the Democratic Party would do any better, or just also fall into different partisan sentiments.

    But regardless of partisan sentiment, to say I can be executed without trial or even a hearing as my government suspects I am a terrorist, or that I can be be detained and then strip-searched at any time by local authorities without reason, seems to go beyond any sane person’s political sentiments.

    This court is packed with right-wing quislings.

  7. 7 Julian Janssen April 5, 2012 at 4:05 pm

    If anyone is interested, I just put up a new blog post, “Tax Deductions and Economic Equity: Campaign Contributions”.

    http://socialmacro.blogspot.com/2012/04/tax-deductions-and-economic-equity.html

  8. 8 David Glasner April 5, 2012 at 7:37 pm

    Wonks Anonymous, State governments do not need limiting principles to engage in a variety of activities. But when they run into the Fourth Amendment prohibition against unreasonable searches and seizures (extended to the states via the Fourteenth Amendment), their powers are limited by the terms of the Fourth Amendment, or at least used to be until five justices of the Supreme Court decided that jail officials can ignore at their own discretion. This is nearly as odious as the Supreme Court’s infamous Korematsu decision of 1944 in which the government’s national security powers were allowed to trump the Constitutional rights of American citizens of Japanese descent.

    Benjamin, The hypocrisy is just breathtaking.

    Julian, Good point; I hope you get some good responses.

  9. 9 PrometheeFeu April 6, 2012 at 12:00 am

    While I really don’t like this latest decision, it was basically inevitable. The Court had already decided that as long as there is probable cause, you can be arrested, even if the offense would not give rise to a prison sentence. (Since that’s the standard set forth in the 4th amendment which was written in a time when there weren’t quite that many laws to break) From the point you are arrested, it only makes sense that you should be considered potentially dangerous (most people do when you start coercing them) and so safety measures must be available. The way to fix this, is to introduce a proportionality standard in the 8th amendment, extend it to the 4th amendment and then people won’t go to jail (and therefore get strip searched) for forgetting their seatbelt.

    @David Glasner:

    “The distinction is an arcane one based on the notion that there is a difference between telling someone engaged in an activity how he must engage in it and telling someone he must engage in the activity. Most sensible people don’t think the distinction is a very compelling one, but opponents of Obama’s health care plan seem to have settled upon it as the principle upon which they want to base their case.”

    That distinction is important because it serves a liberty interest. If Congress can only tell me how I must do things, but not what I must do, I can get out of the way of Congressional action by not engaging in certain activities. But if Congress can tell me what to do just by virtue of my being alive, I can hardly get out of the way. Also, that’s what the Constitution appears to say. The Commerce clause gives Congress the power to regulate Commerce. The word regulate generally means to shape or limit, but not to create. So really, my staying at home not doing anything can hardly constitute Commerce and therefore that is out of the reach of the Commerce clause.

    @Julian Janseen:

    “I don’t quite get the distinction between requiring health insurance, which is obviously a violation of people’s freedom to be sick and die in peace”

    Even if you believe that the purchase of insurance is a good thing, Congress has also set minimums as to what kind of insurance one must buy. And as it turns out, for many people who are currently uninsured, the plans they must buy are a very bad deal. A catastrophic-coverage-only plan for instance is not allowed even if as a relatively young and healthy person, any other kind of plan is largely a waste of my money.

    “Here’s another thought: why does the federal government have the power to prohibit drugs when they might be taken in the privacy of one’s home, without negatively affecting everyone else?”

    This was decided in Gonzales v Raich. Basically, the government can do that because they can’t think of a way to ban interstate commerce of drugs without banning them entirely. I don’t like it, but hey, that’s the Commerce clause for you. Highly expansive, but never expansive enough when you support Congress doing something.

  10. 10 Wonks Anonymous April 6, 2012 at 2:47 pm

    The Supreme Court does sometimes split along different lines than the liberal vs conservative ones. But those tend to be cases the general public doesn’t care about as much, perhaps because of the low political salience.

  11. 11 David Glasner April 6, 2012 at 3:05 pm

    PrometheeFeu, Good point. But four justices somehow found their way to dissent from this outrageous ruling. If the majority had shown as much concern about preserving the fundamental relationship between citizens and the government as they professed to in considering the individual mandate, they would not have fell into line quite as willingly as they did.
    Someone arrested unjustly, as the appellant in the case decided on, was not given the opportunity not to be strip searched by not j-walking or whatever other infraction might result in an arrest.

    By the way, does anyone dispute that Congress could have simply nationalized the health industry and financed everything out of taxes. That’s why it’s an arcane distinction that the court would be relying on to nullify the individual mandate.

    Wonks Anonymous, Yes, that’s true, but the breakdown on the court is becoming increasingly predictable, and increasingly driven by ideology/politics.

  12. 12 W. Peden April 6, 2012 at 6:38 pm

    Julian Janssen,

    “but where does it say in the constitution that the government may not require things that protect people from themselves?”

    That’s the wrong question to ask, since all that is not permitted is forbidden for the federal government-

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    – i.e. unless a power is explicitly given to the federal government, it doesn’t have it.

    However, the current interpretation of the Commerce Clause basically entails that the federal government has unlimited power to enact any legislation that can go through both houses of Congress, as anything which can affect commerce can be regulated and anything can affect commerce. There was once the idea that this could be limited to “substantially affecting interstate commerce” even growing a little marijuana for personal use now comes under definition of “substantially affecting interstate commerce”, the Commerce Clause basically means that the federal government has the power to regulate commerce full stop.

    Therefore, any dispassionate analysis must conclude that Obamacare falls well within the powers of the federal government.

    David Glasner,

    “The distinction is an arcane one based on the notion that there is a difference between telling someone engaged in an activity how he must engage in it and telling someone he must engage in the activity.”

    I thought that the distinction was supposed to be between punishing someone through a fine and punishing someone through a tax, which is a plainly academic distinction.

    The distinction between participation and regulation is clearly a very good one: it’s one thing for the government to regulate smoking and another thing for the government to mandate it!

  13. 13 Steve April 6, 2012 at 11:08 pm

    As a libertarian leaning person I oppose both strip searches and health mandates.

    I’d feel better about police searches if they followed TSA protocols, with pat-downs and body scanners. If it’s ok for air travelers, it’s ok for arrested folks.

    As for health mandates its a stretch to call it unconstitutional, but it is a rather invasive transfer payment. Why is it “inadequate coverage” if a healthy young person chooses to buy an affordable high-deductible plan? Why should these people have to fund health care when it can and should be funded by making employer side health care a taxable benefit? (throw in the private jets too!) Yes, it seems that the mandate should be construed a tax (although then the Supreme Court couldn’t rule until 2015), but its an awfully nefarious tax.

  14. 14 Julian Janssen April 7, 2012 at 2:19 am

    @W. Peden,

    Well, I’m not sure why the commerce clause is not considered grounds enough to allow a national mandate for health insurance. The whole “debate” seems very odd. I rather detest the fact that the Democrats didn’t just enact universal single payer or a reasonable facsimile thereof. I mean they didn’t even get Senator Olympia Snowe to go along with them, so why did they feel they had to create a “compromise” healthcare plan?

  15. 15 PrometheeFeu April 7, 2012 at 3:10 am

    @David Glasner:

    “By the way, does anyone dispute that Congress could have simply nationalized the health industry and financed everything out of taxes. That’s why it’s an arcane distinction that the court would be relying on to nullify the individual mandate.”

    It’s not an arcane distinction because nationalization is politically unfeasible. The Court is only one of the checks on government power. Elections are another.

  16. 16 PrometheeFeu April 7, 2012 at 3:25 am

    @David Glasner:

    I forgot to answer your question on the jaywalking case. I may have overstated the case in favor of the majority opinion. I should probably have said that there was a strong case for the reasons I mentioned above.

    As for the issue of an illegitimate arrest, I don’t think that matters because of the Court’s tradition to hand out immunities like candy. Basically, the reasoning goes like this: the police officer knows the arrest he made was improper. But the jail does not. So how can a jail know who to strip-search and who not to strip search? Well, the only real option is to strip search all or none. Since none creates a danger, all is the only real option. You then work backwards to saying: since the prison can’t be held responsible for what is in effect the action of the police officer, it in this case did not act impromerly

  17. 17 W. Peden April 7, 2012 at 7:51 am

    Julian Janssen,

    I think that the Commerce Clause confuses some people (including some very well-educated judges) because they think that it limits federal regulation to interstate commerce. It doesn’t: as it is now interpreted, it grants the federal government to regulate ALL commerce.

    Of course, it would have been easier to just amend the constitution to say “The federal government will have the power to amend all commerce” but that would entail a tough political fight; case-by-case reinterpretation avoided the need for a process of ratification through congress and the states. Roe versus Wade was the same type of thing: rather than amend the constitution to give a right to privacy such that federal abortion laws would be allowed, such a right was read into the constitution.

  18. 18 David Glasner April 9, 2012 at 9:31 am

    W. Peden, Yes, but the general welfare clause is generally thought to give the federal government power to tax and spend for the general welfare. So the question is whether the penalty imposed on people not purchasing insurance can be construed as within the general welfare clause.
    I meant that the distinction is arcane because the government could indisputably achieve the same result by other means. So there is no substantive constitutional issue here, but a pretextual issue raised by saying you can’t get to this result by this means even though you could have gotten there by other means. And by any standard, the means chosen are less intrusive than the other means that would not have been constitutionally objectionable.

    Steve, You raise a good point about alternative means of doing the search. I also share your reservations about the individual mandate, though the constitutional objection to it seems to me rather forced given existing precedents. I am not advocating an individual mandate, but I was appalled that Justice Kennedy could wax eloquent about not altering the traditional relationship between the government and the individual and then without the slightest hesitation okay the routine strip search of any person arrested for any reason.

    PrometheeFeu, I don’t understand how does the Court’s implicit estimation of the political feasibility of a single-payer system affect its understanding of the Constitutionality of the individual mandate. The only problem with your reasoning in defense of the court’s decision is that it allows the individual citizen of whom Justice Kennedy was so solicitous in his questioning of the solicitor general in the oral argument about the individual mandate to have his fourth amendment right to be secure against unreasonable search outrageously violated. That is the same sort of reasoning the Court infamously relied on in the Korematsu case to justify the internment of Japanese American citizens in World War II.

  19. 19 Wonks Anonymous April 10, 2012 at 10:35 am

    I’d actually like to see metrics on whether the court has become increasingly predictable. I think they might be hearing fewer cases nowadays.


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About Me

David Glasner
Washington, DC

I am an economist at the Federal Trade Commission. Nothing that you read on this blog necessarily reflects the views of the FTC or the individual commissioners. Although I work at the FTC as an antitrust economist, most of my research and writing has been on monetary economics and policy and the history of monetary theory. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey's unduly neglected contributions to the attention of a wider audience.

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