11/19/2014 04:24 pm ET Updated Jan 19, 2015

What Grubergate Teaches Us About the Need for Judicial Engagement


Jonathan Gruber is unlikely to get invited out to lunch in Washington anytime soon. An MIT economist and self-identified "architect" of the Affordable Care Act, paid handsomely for advising the Obama Administration during the crafting of the law, Gruber has incensed the law's critics with recently uncovered statements about how it was necessary to exploit the "stupidity of the American voter" in order to secure the ACA's passage. Even supporters of the ACA are scrambling to distance themselves from him.

But Gruber's tale of legislative treachery is not an exceptional one. The simple fact of the matter is that the government cannot be trusted uncritically. And yet, when the government defends its actions in court, judges all too often take the government at its word, rather than performing their constitutional duty to seek truth. "Grubergate" is a timely reminder of the importance of careful, conscientious truth-seeking in all cases.

Can government be trusted? No one familiar with American history would answer "yes, always." Further, a well-respected discipline known as public-choice economics has demonstrated that lawmaking does not measure up to the romanticized ideal taught in civics class; instead, it is clear that many laws and regulations are written by lawyers and lobbyists at the behest of entrenched special interests with little incentive to be honest with the public or pursue constitutionally legitimate ends.

So it should surprise no one that when the government's actions are challenged in court, the government's lawyers sometimes seek to mislead and conceal the government's true ends. Judges have a choice. They can make a genuine effort to seek out the government's true ends and make the government prove its case with record evidence, or they can accept the government's claims at face value, perhaps with a wink and a nod. The significance of this choice can be seen by comparing two cases litigated by the Institute for Justice this year, Edwards v. District of Columbia and Kagan v. City of New Orleans, both involving tour guide licensing schemes that essentially made it illegal to talk for a living without paying the government money and passing a history exam.

In Edwards, the District of Columbia Court of Appeals performed its truth-seeking function. The court carefully scrutinized the District of Columbia's efforts to justify its restrictions on tour guides' speech on the grounds of consumer protection. While the city recited a "plethora of harms" associated with hypothetically seedy tour guides, the court found no evidence in the record that those harms actually existed or that the licensing scheme "actually further[ed] the district's interest in preventing the stated harms." The court held that the licensing scheme violated the First Amendment.

In Kagan, by contrast, the Fifth Circuit Court of Appeals made no effort to determine whether New Orleans' licensing scheme actually furthered a legitimate end. It took at face value the government's stated aims of "promot[ing] and protect[ing] visitors." The court did not inquire into whether, as a matter of fact, the government's speech restrictions advanced the cause of consumer protection or were even designed to do so. And it upheld the law, stamping a blatant example of economic protectionism with a judicial seal of approval.

In order to ensure that the government exercises only legitimate powers, judges must engage in a genuine effort to determine the government's true ends, as the court did in Edwards. Judges cannot simply take the government at its word, as the court did in Kagan. Nor do they have any excuse for accepting the government's pursuit of illegitimate ends as a brute fact of American political life. Judges take an oath to uphold the Constitution. Having done so, they cannot plead, "Who am I to judge?"

Gruber's comments have been cited by critics of the ACA as evidence of a uniquely mendacious political gambit. But it would be a mistake to view this as an isolated incident. Judges in every case ought to evaluate the government's arguments in a way that is sensitive to the ugly reality of legislative sausage-making rather than adopting the unwarranted assumption that we have found angels in the form of politicians and bureaucrats to govern us. Judges are smart enough to know better, and are bound by the Constitution to act accordingly.