Matt Carberry (kingpin248) wrote,
Matt Carberry

A few thoughts on something that happened last week.

I was up earlier than usual last Thursday, awaiting the opinion of the Supreme Court in three cases consolidated under the name National Federation of Independent Business v. Sebelius - better known as the Affordable Care Act or "Obamacare" ruling. (Link is to the PDF of the decision at the Court's website.) I even had my Reason T-shirt on for the occasion. I had the misfortune of being tuned to CNN a few minutes after 10 a.m., so I was briefly led down what I believe to be a primrose path. Simultaneously, I was following SCOTUSblog's coverage, and they got all the way through the case's syllabus before Kate Bolduan and whoever was in Wolf Blitzer's ear did.

That decision is 193 pages long, split into three major opinions (with a single paragraph from Justice Thomas thrown in for good measure). Over the course of last Thursday, I read all three. I was as surprised as everybody else to see that the Chief Justice, and not Justice Kennedy, was the vote that swung the outcome. There's a lot to say about what he wrote. If I could use one word to describe Roberts's ruling, it would be "slick." He joined with the conservative justices on the question of Congressional power to regulate interstate commerce, but he still found the individual mandate constitutional under the power to tax. By way of Mother Jones, "reaction" from the "Rebel Alliance" was swift (see image at right). But that confused me. If it's a tax, doesn't the Anti-Injunction Act bar the suit from being decided until the tax comes into effect? Here, apparently, is where some trickeration comes into play - the kind of thing they must teach only at Harvard, as opposed to Cornell or Hofstra. It's not a tax when analyzed against another statute, but it can be read as one when analyzed against the Constitution! Chief Justice Roberts looks like he's taking lessons from another man of justice - Odo, the shapeshifter from Star Trek: Deep Space Nine.

Reaction from the things I read was quick and generally negative as to the outcome - but not uniformly negative as to the route the Chief Justice used to get there. Inside of three hours after the decision came down, the Cato Institute's blog had a garden variety "parade of horribles," a recitation of the age-old truth that politicians may be sneaky and get away with it, and a solid exposition of how this is the exact opposite of the restraint the Chief Justice claims it is. (The four dissenters said as much, and Ilya Shapiro hit that point again on Monday, in light of the CBS News story detailing how Roberts might have shifted his train of thought.) Nick Gillespie, editor in chief of and, tells us in video form that this changes nothing. Reason also ran two differing columns from The Freeman's Sheldon Richman (the taxing power was always the big one) and the Chicago Tribune's Steve Chapman (it's still a win for limited government). And Randy Barnett, who basically wrote the book on the "inactivity can't be reached under the Commerce Clause" argument, called it a "strange constitutional win" in the Washington Examiner.

One silver lining that many are taking from this, including Chapman and Barnett, is the limitation on Congressional power under the Spending Clause to attach conditions to the funds that the Federal Treasury disburses to the States. Seven Justices said that the loss of all Medicaid funding can't be used as a stick to induce the States to expand coverage to everyone making less than 133% of the poverty line. The Court didn't say exactly where the line between nudging and coercion is, other than somewhere between withholding 5 percent of highway funds and this. Perhaps, like Justice Stewart so many years ago, the Court simply knew an impingement on the sovereignty of the States when they saw it. Michael Cannon, Cato's lead scholar on health care, is saying that this might really give the States some power over how the law gets implemented, along with a provision in the law (which the IRS is trying to circumvent by rule) that the employer mandate doesn't operate as expected in states that don't create health insurance "exchanges" (and let the feds come in and do it for them). It might be interesting to watch how that plays out across the country. I say "watch" because given the political dynamic of my home state, it's unlikely that there will be conflict between Albany and Washington on the Medicaid expansion.

Let me pivot back to Chief Justice Roberts's opinion. The fact that the taxing power sustained the mandate leads me, as hard as it is to swallow, to agree with Justice Ginsburg on something. In footnote 12 of her opinion (on page 37), "[she sees] no reason to undertake a Commerce Clause analysis that is not outcome determinative." What the Chief Justice's opinion seems to amount to is that the United States can make you pay money for failing to do something that it desires, but that it can't throw you in jail or otherwise sanction you. Since no such sanctions appear in the ACA as presently in force, this reads like something resembling an "advisory opinion" - and the Court traditionally doesn't engage in such things (nor is it empowered to, according to Article III).

For over a decade now, I've been a big believer in the necessity of limited government at all levels. The farther from the people governed, the more stringent those limits must be. The opinions that comprise this decision have much to commend them in that regard. Well, two of the three main opinions do. Justices Ginsburg and Sotomayor - and to a lesser extent, Breyer and Kagan - really do believe our national economic life is Congress's bitch, so to speak. But the other two opinions are decidedly at odds with that. Both need to be quoted at length. First, Justices Scalia, Kennedy, Thomas, and Alito:
The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today's decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.
I reproduce those words because I could have not have produced anything better myself. The Chief Justice, on another hand, believes there's a better way to impress this upon Americans:
Our permissive reading of [the Congressional] powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders...Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
A couple of thoughts on that. First, the words of the Chief Justice are eerily reminiscent of those of New York's Chief Judge three years ago, as his court cleared the way for the construction of the arena where the Brooklyn Nets will begin play this fall:
It may be that the bar has now been set too low — that what will now pass as "blight," as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses. But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts.
The people of New York are unlikely to elect a Legislature that will substantially curtail the scope of eminent domain. But nationally, the story might be different. In the current Congress, the Republicans have their highest numerical strength in the House since the late 1940's, and the Democrats lost more seats two years ago than in 1994. In a large part of the country, especially in the so-called "flyover states," people understand that this battle was about the scope of government power, not what's in the Obamacare "goodie bag" (and recall that the President was very quick to mention that bag's contents in his speech on Thursday afternoon).

The President and the House Minority Leader (she of "we have to pass the bill so you can find out what's in it" fame) won a major victory last week, but it was only a battle. The outcome of that battle doesn't change the fact that they're fighting a two-front war. A challenge to the IRS provision of subsidies to federal exchanges seems quite likely to succeed. There's another case out there taking on the Independent Payment Advisory Board, which is so riddled with defects that Cato recently did an entire paper on that single aspect of the ACA. Of course, as Chief Justice Roberts alluded to in practically calling the American people out, the major battle will play out in just under eighteen weeks. It might help the Republicans if they weren't poised to nominate the Presidential candidate who has the least credibility on health care reform. But if they can message better, and they and their allies can spend their Citizens United-approved dollars more effectively, they should be able to win the seats they need to win.

Until then, Reason has the answer to the question it posed on the cover of its July issue. Over a picture of a sprout of broccoli against a white background, they ask "can the government make you buy this?" It now seems the answer is: no, but like Don Vito Corleone, the IRS can make you an offer you can't refuse.

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