Posted by: captainfalcon | December 24, 2010

A Further Thought on “Virginia v. Sebelius”

I stand by my earlier post’s analysis of current Supreme Court doctrine, but my criticism of Judge Hudson begged too many questions. Whether Judge Hudson is censurable for his mis-“synthesis” of Supreme Court doctrine depends, in part, on whether it is appropriate for federal district judges to issue performative opinions – opinions aimed at making new law instead of applying current law.

There are strong democratic reasons – assuming Congress is a democratic body – for preferring that federal district judges apply the law instead of make it. Unlike Supreme Court justices – who, everybody’s contrary representations notwithstanding, are appointed in large part based on the Senate’s perception of their judicial lawmaking abilities – federal district judges are not appointed to be lawmakers. Because they have not been entrusted with legislative powers by our democratic processes, it is undemocratic for them to aim their opinions at making new laws.

On the other hand, there are consequentialist considerations in favor of lawmaking efforts at the district level (even if Hudson’s particular effort isn’t desirable). Federal district judges tend to be well-educated, which arguably correlates positively with the policies they prefer being wise. So federal district judges will tend to promote good policies, which is a powerful reason for endorsing their making new laws.

Note, though, that this is all pretty academic. My hunch is that federal district judges aren’t often in the position of being likely to influence the final, national, form of a given federal law.



  1. The only question your earlier post raised for me is whether he truly was citing the lack of prior cases in which this has come up as evidence that a precedent had been established. As you noted, if that was his intention (and I suspect it was), he was grossly mistaken – a crystal clear logical fallacy. And regardless of the benefits of his making that decision, judges making such clearly incorrect statements can (and should) rightly be criticized.

    That said, there is a more generous (too generous?) interpretation of his decision. It could be that Hudson was establishing that existing precedents were all informed and shaped by the fact that cases all involved “action.” Therefore, it is unwise to blindly extend those precedents; thus it calls for more direct statutory and Constitutional interpretation. While I don’t find that a very compelling argument, at least it is logically valid.

  2. I think your interpretation, while possible, is a bit too generous. Judge Hudson makes two sorties in addition to that I quoted last post in his attempt to establish that the Court’s jurisprudence only extends the commerce clause to voluntary actions (which is the gloss he puts on “activities”).

    His first sortie actually does more harm to his cause than good: “In both [Wickard and Gonzales] the activity under review was the product of a self-directed affirmative move to cultivate and consume wheat or marijuana” (p. 21 in the linked opinion). Like the passage I quoted last post, Judge Hudson here infers that the Court has embraced an activity/inactivity distinction from the happenstance that its two parameter-setting commerce-clause cases involved “self-directed affirmative [conduct].” But he inadvertently goes further — by explaining that “the activity under review was the product of a self-directed affirmative move” he admits the possibility that activity might not have been the product of volition. In other words, he admits the possibility that “activity,” as the Supreme Court uses the term, doesn’t necessarily extend only to volitional acts (contrary to what one would expect if the Court were trying to incorporate an activity/inactivity distinction into its jurisprudence). This is a recognition of the fact that “activity” is used because it is a natural placeholder for “the states people get into that have an [aggregate] impact on interstate commerce.”

    Second, Judge Hudson appears to find Perez v. United States, 402 U.S. 146 (1971) particularly persuasive that Congress’s regulatory power under the commerce clause is limited to “activity” (in the volitional sense) that has an effect on interstate commerce. He writes, “Pertinent to the immediate case, the Court in Perez stated that Congress has the power to regulate activities that substantially affect interstate commerce” (p. 21). It’s true that that’s what the Court stated in dicta – indeed, it seems to be in Perez that “activities” makes its first appearance, and subsequent cases have just glommed onto the Perez formulation because it gives a functional overview of the pertinent doctrine – but the Perez Court did not define “activities.” It did not discuss the term at all because its concern – the perennial one – was with whether “that which was regulated” (…for want of a better phrase – it is quite difficult to find a term for “conduct” that doesn’t connote volitional action) was too local – “purely intrastate,” as Perez has it – to have an effect on interstate commerce.

    So if Judge Hudson thinks he detects that existing doctrine has been “informed and shaped by the fact that [previous commerce clause] cases all involved ‘action'” it’s almost as damning as if he made the erroneous inference my previous post predicates of him. There’s simply no evidence in the case law he cites that the Supreme Court ever even implicitly decided that commerce clause regulation must be directed only at volitional acts. Instead, it is always the “localness” of the behavior in question that’s front and center … except in Judge Hudson’s opinion.

  3. […] of the folly I predicated of Judge Hudson here, and which MM, optimistic and charitable as ever, resisted attributing to him. I’d also note that I’ve rarely seen so many dubious sleights of […]

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