Reed O’Connor has been quite an interesting federal district court judge in Texas, and this last week, in Texas v. U.S., he managed to stir ripples in our politics and law as he moved, in effect, to strike down Obamacare. The Republican Congress had not repealed the Affordable Care Act (aka Obamacare), but it did succeed in removing the penalty for failing to buy medical insurance. But as Judge O’Connor concluded, that “mandate” had been utterly essential to the whole scheme of Obamacare. Forcing younger, healthier people to buy health insurance offered the means of funding insurance for people with “pre-existing conditions.” With that central pin removed, the scheme of Obamacare collapses. And after all, it was only because that penalty was construed as a “tax” by Chief Justice Roberts that he was able to supply the fifth vote to sustain Obamacare in 2012, in NFIB v. Sibelius. Roberts had already argued that the federal government could not claim authority under the Commerce Clause to install this scheme of mandated purchases. As Roberts said, “The Framers gave Congress the power to regulate commerce, not to compel it.” Judge O’Connor simply pointed out that, with the tax removed, the Chief Justice’s opinion would now establish why the ACA, in its current state, is unconstitutional.
The decision has stirred controversy, and even some opposition within conservative circles. I was a bit surprised when I was alerted by friends that, at a critical point, late in his opinion, Judge O’Connor quoted a passage from my book First Things. It was a passage containing one of the simplest, most elementary points about the binding power of the law. My first reaction was to wonder why such an elementary point was worth making explicit. But the judge cited the line at a critical bridge in his opinion, and so it’s worth recalling the line and just how the judge made use of it.
Judge O’Connor was trying to explain a key point: that even though the tax was removed, the underlying authority to mandate the purchase of medical insurance remained in the law. And so, as the Judge wrote, “Despite the Intervenor Defendants logical gymnastics, the undisputed evidence in this case suggests the Individual Mandate fixes an obligation. The Individual Plaintiffs assert they feel compelled to comply with the law. This should come as no surprise. “It is the attribute of law, of course, that it binds; it states a rule that will be regarded as compulsory for all who come within its jurisdiction.” HADLEY ARKES, FIRST THINGS: AN INQUIRY INTO THE FIRST PRINCIPLE OF MORALS AND JUSTICE (1986). Law therefore has an enormous influence on social norms and individual conduct in society. That is the point.”
What I found curious and striking in the judge’s recall of this passage is that it accords with a comparable reaction we’ve encountered in our own seminars with young lawyers under the banner of the James Wilson Institute: A very simple point suddenly brings into sight many further things, even things that slipped past the recognition of people long schooled in the law.
The incident here may only confirm again a point made by the late Leo Strauss: that it is quite all right to begin on the surface of things because the surface of things often leads to the heart of things. What was locked away in that simple point about the logic of law may suddenly come into view when we offer, in contrast, this counter-example: Let us suppose that in 1964, in place of a momentous Act, the Congress had issued a declaration in this vein:
The Congress thinks it quite wrong for people to discriminate on the basis of race when dealing with clients and customers in businesses that are open to transactions with the public. And that may be especially the case when the transactions reach far enough to touch interstate commerce. And so we urge all people in this country who share this understanding to bring their conduct in accord with these maxims of just treatment.
Whatever we could say about such sentiments, offered in a lofty tone, it should be clear that what is proclaimed here is not a law. It does not bind, which means that it does not commit people who do not share the sentiments in the proclamation. If we let the recognition settle, we grasp the fuller force: that law works by closing down personal choice and freedom, and replacing them with a public obligation. And that is the hard, logical fact that has moved every serious writer in political philosophy, over the generations, to ask, How can that state of affairs be justified. What makes it rightful or just for some men to be in the position of issuing edicts with the force of law to bind men in that way?
Rousseau made the point most simply and memorably:
Strength is a physical attribute, and I fail to see how any moral sanction can attach to its effects. To yield to the strong is an act of necessity, not of will. At most it is the result of a dictate of prudence. How, then, can it become a duty? ….[T]o admit that Might makes Right is to reverse the process of effect and cause. The mighty man who defeats his rival become heir to his right. … And since the Mightiest is always right, it merely remains for us to become possessed of Might. But what validity can there be in a Right which ceases to exist when Might changes hands?
Rousseau captures an understanding so anchored in common sense that it is grasped by ordinary folk and even school boys. The youngster who is set upon and beaten up does not persuade himself that the stronger boys who overpowered him had to be right, because they had succeeded. And so, as Rousseau saw at once, power cannot be the source of its own justification. The fact that some men succeed in seizing and holding power cannot establish the “justification” for that power.
But to ask whether that state of affairs is ‘justified’ is to ask what makes a law rightful and justified even when it is imposed on people who strongly object to it. To take that question seriously is to do nothing less than make the decisive “moral turn”: It marks a critical turning away from the notion that Might makes right, that power justifies itself. Justice Holmes thought that the right of the majority to govern the minority arose from the brute fact that the majority had the power to overcome the minority. In other words, stripped of Holmes’s stylish prose: Might makes Right.
Of course, Holmes had famously offered the hope that “every word of moral significance could be banished from the law altogether.” As the scholar James Herget observed, “by the last quarter of the nineteenth century, the leading jurists had practically turned all responsibility for questions of morality over to the nonlawyers … Moralists were not interested in law, and lawyers were not interested in morality.”
And yet, the need for “justification” springs naturally from that simple point that Judge O’Connor thought was worth making anew: that the law does work to bind and commit. The irony, then, is that it has taken nothing less than a systemic education to remove, from lawyers, the moral recognition that arises as a matter of common sense for any ordinary person, with ordinary reflexes. It is only in our own time that lawyers trained in the best law schools will see moral concerns as somehow “extrinsic” or outside the domain of law. They will ask, “What does morality have to do with the law,” and they might as well ask, “Can I order the coffee without using syntax?” They somehow never see that those moral concerns are woven into the natural reactions that spring into play as soon as we recognize the commanding logic of law to bind and commit. Judge O’Connor had the wit to make that simple point again, and with that move he might have wrought better than he knew.