Vermeule in TNR: Constitutional conventions

In light of the late-June Supreme Court decision on the constitutionality of the Patient Protection and Affordable Care Act, Harvard Law School Professor Adrian Vermeule ’93 recently reviewed Michael J. Gerhardt’s “The Power of Precedent” (Oxford University Press) for The New Republic’s online review ‘The Book.’ According to Vermeule, Gerhardt’s book is a “learned overview” of the role of past decisions in today’s legal system.

Writes Vermeule: “Gerhardt’s book was published before the health care decision came down, but the debates that he canvasses are and always will be with us.”

Vermeule’s latest book is “The System of the Constitution” (Oxford University Press, November 2011) in which he explores how individuals and larger institutions together shape the constitutional order. (See related story). He is also the author, with Eric A. Posner ’91, of “The Executive Unbound: After the Madisonian Republic” (Oxford University Press, February 2011). A scholar of administrative law and constitutional law and theory, Vermeule has taught at Harvard Law since 2005, and was appointed John H. Watson, Jr. professor of law in 2008.

Vermeule is a regular contributor to TNR.com.

Constitutional conventions

by Adrian Vermeule

IN THE RECENT decision of the Supreme Court on the constitutionality of the Affordable Care Act, National Federation of Independent Business v. Sebelius, the opinions cited a myriad of precedents, or past decisions of the Supreme Court. Every Justice who wrote claimed that his or her position was consistent with, even dictated by, the precedents. This is an annual sight in Washington toward the end of June when the decisions on politically charged cases are delivered: as surely as the swallows return to Capistrano, so too the Justices turn to precedent to justify their decisions.

But the ritual creates a number of puzzles. What of the claims on both sides that the other’s position was unprecedented? In the health care case, five Justices would have invalidated the Act’s individual mandate as beyond Congress’s power to regulate interstate commerce (although a different majority actually upheld the Act on a different ground, as a constitutionally permissible tax). Those five Justices said that congressional regulation of “inactivity”—a congressional mandate that “inactive” citizens, who rely on emergency care, must purchase health insurance—was unprecedented and therefore suspect. On the other hand, four Justices said that the very distinction between activity and inactivity drawn by the five was itself unprecedented, lacking any basis in the Court’s previous decisions. Could both sides have been right? If so, is it because they were referring to different types of “precedent”?

Michael Gerhardt has produced a learned overview of contemporary debates in legal theory and political science over the role of precedent, or past official decisions, in the legal system. Gerhardt’s book was published before the health care decision came down, but the debates that he canvasses are and always will be with us. Do precedents constrain judges? Even if they constrain lower-court judges in run-of-the-mill cases, do they constrain the Justices, especially in the politically fraught cases decided toward the end of June? What of “precedents” created by non-judicial officials through their own decisions—do the same questions apply, or should we think about them in a different way altogether? … Read the full article on TNR.com »