PENNumbra Debates and Responses

Debate: A Healthy Debate: The Constitutionality of an Individual Mandate

David B. Rivkin, Jr. & Lee A. Casey & Jack Balkin

Health care reform has been and continues to be one of the highest priorities in the Obama Administration�s domestic agenda. The proposals for reform played a major role in the debates leading up to President Obama�s election and dominate the Administration�s, and Congress�s, current domestic activities. While most policymakers seemingly agree that reform is necessary, there is much disagreement about the particulars of the appropriate reform. One of the more contested features is the so-called individual mandate�a federal requirement that every American possess a certain level of health insurance.

In A Healthy Debate, David Rivkin and Lee Casey debate Professor Jack Balkin over the constitutionality of such a mandate. In their Opening Statement, Rivkin and Casey argue that if Congress has the power to reform the health care system, it must be found in the Commerce Clause. After examining the limitations that the Court has set out in its modern Commerce Clause jurisprudence, Rivkin and Casey conclude that the mandate is even less defensible that the laws struck down in United States v. Morrison or United States v. Lopez. And it is no answer to claim that the power to implement the mandate can be found in the Taxing and Spending Clause. Even under that clause, Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.

Response: Panel Effects, Whistleblowing Theory, and the Role of Legal Doctrine

Derek J. Linkous & Emerson H. Tiller

In Panel Effects, Whistleblowing Theory, and the Role of Legal Doctrine, Derek Linkous and Professor Emerson Tiller argue that Kim erroneously rejects the Whistleblowing Theory (WT) of circuit panel decisionmaking�a theory emphasizing the role of legal doctrine in constraining ideological decisionmaking by a panel majority. In their response, Linkous and Tiller show how ignoring the strategic and deliberative roles of legal doctrine call into question the explanatory power of Kim�s strategic alignment hypothesis. After laying out the basic premises of WT and explaining WT�s application to both strategic and deliberative models of panel effects, Linkous and Tiller correct two assumptions that lead Kim to reject WT. From there, they address how doctrinal disobedience can be measured empirically by scholars when a legal doctrine (such as a standard) does not command particular outcomes in every case�a concern that led Kim to reject empirical work on WT. While Linkous and Tiller recognize that developing a coding scheme for doctrine is hard work, they argue that failing to even try prevents Kim from addressing a key piece of the panel effects puzzle�the role of legal doctrine.

Response: Psychology, Strategy, and Behavioral Equivalence

Stefanie A. Lindquist & Wendy L. Martinek

In Psychology, Strategy, and Behavioral Equivalence, Professor Stefanie Lindquist and Dr. Wendy Martinek recognize that Kim has created an innovate empirical model to test for circuit and Supreme Court effects on panel decisionmaking at the United States Courts of Appeals. They recommend caution, however, in interpreting these results as evidence of strategic behavior since alternative explanations�including the effects of deliberation and circuit court precedent�could also account for the findings presented. Indeed, there is no basis for favoring a strategic theory over a deliberative one. Behavioral equivalence is, unfortunately, often a confounding problem in studies of strategic decision making on appellate courts. Lindquist and Martinek maintain their belief from earlier studies that while strategic behavior may take place on some courts, under some conditions, the strongest influence on federal appellate courts are from judges seeking consensus to promote the efficient administration of justice and to minimize error.