Thursday, March 29, 2012

Topsy-turvy justices?

This week's appalling oral arguments on the ACA in the Supreme Court are all over the internet, so they don't require much comment from me; see the How Appealing link in the sidebar if you want a roundup, and Balkinization is also doing good work.

But this from Jonathan Zasloff is too good not to mention. N.b. emphases his:
To grasp just how mendacious and incoherent the constitutional argument against the Affordable Care Act is, consider the plaintiffs’ argument today concerning “severability,” that is, whether, if the insurance mandate is struck down, whether the whole Act must be struck down.

The mandate is so intimately tied up in the whole scheme, argued lawyer Paul Clement, that all of the other provisions — community rating, guaranteed issue, the insurance exchanges, risk adjustment, the works — will also have to go.

Now also recall that the supposed argument here is that the mandate exceeds the federal government’s power to regulate “interstate commerce.” It is not an argument about personal liberty at all: that would be a substantive due process argument, in which the legislature receives enormous deference from the courts.

No one could possibly deny that if the federal government decided to write rules for all insurance companies concerning, say, community rating, guaranteed issue, insurance exchanges, and risk adjustment, that that would constitute regulation of interstate commerce. That is the quintessential form of regulation of interstate commerce. And the plaintiffs today have argued that the individual mandate is necessarily bound up with all of these forms of regulations, which is why it cannot be severed.

So here is the conservative argument: something that is necessary for the regulation of interstate commerce is not part of the power to regulate interstate commerce.

This, in short, is a revolution from above.

If the Act falls, it will not be because the Obama Administration did something wrong. It will not represent a “crisis of liberalism.” It will not be because the Democratic Party cannot govern. It will not be cause for any recriminations or hand-wringing.

It will be because five old men have decided that the Constitution does indeed “enact Mr. Herbert Spencer’s Social Statics,” and have decided to force their reactionary views on the rest of the country.


  1. But if the mandate is thrown out won't it prove that the folks who wanted the single payer system were right? When I was in college I fanced I know something about constitutional law, after reading this blog I see I don't know squat. I do remember from history when no one paid a lot of attention to the Supreme Court, for instance the Dred Scott ruling did not prevent the Civil War, in fact it was one of the causes.JL

  2. As a policy matter, sure. If Medicare is legal, single-payer is legal. But Obama, ever the moderate, wouldn't push for single-payer; the GOP and the red-state Dems cry "socialism!" whenever you suggest that the wildly popular Medicare program be extended to all.

    (Medicare is pretty imperfect, but perhaps no less so than private insurance.)

    So Congress went with the more conservative, free-market approach touted by Romney, Gingrich, and others: require people to take responsibility and buy insurance. Oops, that's socialism too. Can't win for losing.

    I don't think the votes are going to be there for universal single-payer for another generation at least, tho I hope I'm wrong about that.

  3. I find it incomprehensible that single payer would be legal and the mandate not.

    I find it incomprehensible when those attacking health care reform say that there are arguments about rights, freedom, or the like against the mandate that would not hold against single payer.

  4. Alas, it isn't about the law; it's about how many Republicans are on the Court. Even I was a bit surprised how crudely that point was made.

  5. Anderson - using your logic, isn't it also about how many Democrats are on the Court? Or could it be said, how many 'conservatives' and 'liberals' are on the court? Or 'how many strict constructionists etc.etc.'

    Your first comment above using Gingrich, Romney, etc. fails to consider that their approach was for the states to enact these programs - not the federal government. Like it or not, there is a difference in our system.

    Medicare didn't require me to purchase something; it taxed me whether I benefit or not to pay for something that others received. Same as other taxes I receive, or benefits I receive. ACA doesn't do that.

    No need to 'argue' the ACA here, as it is obvious that minds are already made up - as you (and I) bemoaned in our comments about SCOTUS.

  6. The problem, from my p.o.v. at least, is that the anti-mandate arguments are in fact pretty weak. So it's not so much about the Democratic justices.

    Jon Chait mocks liberals who thought this case was actually going to be decided on the law. That is indeed the kind of error liberals fall into: good faith on both sides, let's just apply the law here, etc. Obama has been particularly prone to this.

    But even true-blue conservatives like Charles Fried and Orin Kerr thought that the mandate, however obnoxious, was obviously constitutional.

    ... Re: the merits, (1) there's no material difference from taxation, as Will Wilkinson points out, and (2) the slam-dunk argument is the NPC, against which the opponents could only struggle to give "proper" a meaning it has never had in 200+ years of con law.

    "Privatized Medicare," as the ACA basically amounts to, is what one would think conservatives would want. Compare Dubya's notion of requiring people to invest in privately-held mutual funds instead of Social Security - I suppose that too was unconstitutional (and not just a bad policy idea)?

  7. Anderson, I don't see how you can say there is no difference from taxation. The legislative history clearly shows that it is not a tax.

    NMC, I don't see how you find it "inconceivable" that the mandate would be unconstitutional while single payer would be legal. The federal government has taxing and spending authority, it doesn't have force-people-to-eat-broccoli power.

    Oh, and Anderson, you are upset that these conservative jurists are "forcing" their views on the rest of the country. Liberal judges have been in that business for a long time, creating law and elaborate policy out of thin air.

  8. Colonel, see the Will Wilkinson link in my 3:24 comment. As for the liberal activists, I'm not entirely sure what your point is: they weren't doing anything wrong?

    NMC's argument, I think, is that if the identical effect can be produced under Theory A or Theory B, then it makes no sense to say that one theory is unconstitutional but the other isn't. I dunno about con law, but courts rule that way all the time: the hearsay wasn't admissible under exception X, but the error was harmless because it was admissible under exception Y.

    Is there harmless-error analysis in con law?

  9. I think Lochner was good law. I think Wickard was bad law. I'm glad some of the justices are willing to put some limit of some sort on the government; the more the better.