June 28, 2012
After the harsh interrogation of the Administration's lawyers at the hearings in March, most legal experts assumed that the Supreme Court would throw out most or even all of the the Patient Protection and Affordable Care Act of 2010, otherwise known as simply "ACA" or "Obamacare." The four conservative and one moderate justices wanted to know what limiting principle could be applied to the broadened application of the Constitution's Commerce Clause, which the Obama administration and most Democrats had cited as legal justification. (Of course, some Democrats such as Nancy Pelosi openly scoffed at the very notion that the Constitution limited the powers of Congress.) On the surface, today's ruling appeared to vindicate President Obama's all-or-nothing pursuit of his health care goals, but a closer reading of the ruling may contain the seeds of the ACA's ultimate demise.
The big shock, as the news of the decision spread shortly after 10:00 this morning, was that Chief Justice John Roberts had joined the four liberal justices in writing the majority opinion. Many folks on the Right were instantly outraged by this apparent "betrayal" of conservative principles. (To which I would sardonically reply, Roberts was nominated by a president who extolled "compassionate conservatism," and this ruling is simply the logical result of that.) My initial take, on Facebook, was a cautious one:
I think everyone knows that I am dismayed beyond measure by today's Supreme Court ruling, but I am going to refrain from any knee jerk reaction. To me the most important thing is preserving the Constitution (or what is left of it) and the principles of freedom that underlie it. That task should NOT be a matter of partisan politics, and I deeply resent those people (you know you are) who have in recent days and weeks been impugning the integrity of Supreme Court justices as being partisan hacks of the Right. The very legitimacy of our government hangs in the balance, and we all need to chill out and think through this calmly.
As the day progressed, the number of scenarios to explain the apparent change of mind multiplied rapidly, with some hinting at blackmail, etc. Some people have surmised that Roberts switched his vote at the last minute, possibly under duress, or more likely as a clever way to put his imprint on the decision. For example, at the Volokh Conspiracy David Bernstein notes that "the dissent reads like a majority opinion"; also see whitehouse12.com (hat tip to Zanette Hahn), for example. Indeed, since Roberts as Chief Justice had the prerogative to write the opinion, he was able to insert a number of limiting stipulations.
The following excerpts from the ruling (SOURCE: supremecourt.gov) make it clear that the Court did not grant Congress power to compel people to purchase any particular good or service, and quite the contrary, imposes significant new limitations on Congress. So, what looks like a defeat in the courtroom for the cause of individual liberty may set the stage for ultimate victory, on the political battlefield.
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.
Our deference in matters of policy cannot, however, become abdication in matters of law. ... And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. [p. 6]
The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits. [p. 15]*
The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. [p. 20]
The proximity and degree of connection between the mandate and the subsequent commercial activity is too lacking to justify an exception of the sort urged by the Government. The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to "regulate Commerce." [p. 27]
Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. [p. 29]
It is of course true that the Act describes the payment as a "penalty," not a "tax." But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12-13, it does not determine whether the payment may be viewed as an exercise of Congress's taxing power. [p. 33]
Indeed, it is estimated that four million people each year will choose to pay the IRS rather than buy insurance. ... That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance. [p. 38]
The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. [p. 44]
That pretty much sums up the key rationale for upholding the mandate. In short, it may be ill-advised or even dumb, but as long as it's a tax, it's within constitutional bounds. Invalidating once and for all the legal arguments based on the Commerce Clause or the Necessary and Proper Clause could be regarded as a partial victory for Georgetown professor, Randy Barnett (author of an excellent book, Restoring the Lost Constitution), who wrote some anti-ACA analyses. See thedailybeast.com. I'll have more to say once I have read the opinion more closely, and once I have heard from other experts and/or pundits.
* Contrary to what I heard on Facebook, the Court did consider the implications of the Anti-Injunction Act, which could be construed as prohibiting any legal challenge to a tax that had not yet been collected.
I was watching Washington's WUSA-TV9 during the noon hour, when J.C. Heyward was talking with Prof. Paul Rothstein of Georgetown University. Another He seems to think that John Roberts' vote to uphold Obamacare was based on moral sensitivity and fairness, as if constitutional issues such as limitations on government power were irrelevant. I find it hard to believe that a distinguished legal expert would put such a high emphasis on ethos and pathos and such a low emphasis on logos.
Facebook friend Andrew Murphy, a moderate conservative, believes that we might as well accept the inevitability of a single-payer system. (See hurryupharry.org.) My response, a couple days ago:
That's very true, Obamacare was almost certainly never intended to be anything other than a transition phase toward a single-payer system. It probably will create an upward cost spiral and shortages of certain services and medicines. There will be a backlash from the Right, and Obama himself may lose in November, but as long as the core of the new system is allowed to stand, it sets in motion economic forces that will be impossible to reverse over the long term. The problem is that single-payer American style would by its very nature become a micro-managed bureaucratic hell, with politicians of all stripes insisting on new coverages, etc. to get votes. It doesn't have to be that way.
Along those same lines, as I wrote on Facebook several weeks ago:
Whether Pres. Obama really believes that we will be able to keep our existing health coverage under his system, the truth is that it sets the stage for ever-increasing government regulation of medical care, which will end up making very personal, private decisions (such as birth control) a matter of public policy. Unless Obamacare is repealed and/or ruled unconstitutional, EVERYTHING will become political!
That was in response to a link to endobamacarenow.com. Later, I followed up with more specifics as to the merits of the law, as opposed to its legal rationale:
I object to both the mandate itself and to the current practice of insuring pretty much all forms of health care, emergency as well as non-emergency. By definition, insurance is supposed to be for extreme contingencies whose cost might exceed one's own savings. When insurance is used to help pay for routine treatments, all sorts of market distortions (especially cost hikes) result. The main reason for excessive insurance in the status quo is that health care benefits from employers are exempt from income taxes, a massive (and in my view unjustifiable) implicit subsidy to the salaried (middle) class. Any true reform would address that glaring defect, about which very few people are even remotely aware. To the credit of the ACA, employers are required to put the value of their contributions to health care premiums on the W-2 forms, but the IRS delayed implementation of that, which is why it's not on our 2011 W-2s. Whether ACA is ruled unconstitutional or not, I would hope that W-2 forms do include those contributions so that people know what their full compensation is.
When the U.S. Supreme Court heard arguments for and against the constitutionality of Obamacare, supporters and opponents of the law gathered in Washington to express their sentiments. One group was mobilized by Americans for Prosperity, which staged another "Hands Off My Health Care Rally." I attended a small-scale rally in Waynesboro in 2009. Since March, there has been growing pressure on the Court not to undo the massive piece of legislation, accompanied by hints of sinister malfeasance on the part of certain "right wing" justices.
For example, Bruce Bartlett recently scorned Justice Antonin Scalia for flip-flopping on the applicability of the Constitution's Commerce Clause, as defined in Wickard v. Filburn (1942) ruling; see talkingpointsmemo.com. Scalia once asserted that even marijuana grown at home for one's own personal use is inherently interrelated with the interstate market, and therefore subject to Federal regulation and control. I agree that Scalia seems to have changed logical gears on that.
Earlier this week, Bartlett called attention to an article ("La Loi C'est Moi," The Law Is Me) by The Atlantic Monthly editor James Fallows, who argued, "The Roberts majority is barreling ahead without regard for the norms [of judicial nonpartisanship], and it is taking the court's legitimacy with it." I replied on Facebook:
James Fallows used to be one of my heroes, on reforming the Defense Dept., budget issues, etc., but my confidence in him is waning. "It was out of loyalty to the system that Al Gore stepped aside after Bush v. Gore." That's not how I remember it. Regarding his dread of "a plainly partisan ruling about the health care law," why is it so hard to take seriously the constitutional argument, and the proper role of the Supreme Court? From Marbury v. Madison (1803), "It is emphatically the province and duty of the Judicial Department to say what the law is." When democratic majorities pass laws that violate constitutional norms, the courts are bound to stop such abuses, thereby protecting minority interests and the very nature of our republican form of (limited) government. The alternative is a hellish series of pendulum swings as various factions seek to outmaneuver each other in a bid for total control.
For more on the liberal attack on the Court by Fallows and others, see washingtonexaminer.com. They observe that Rep. Keith Ellison, D-Minn., recently said that a ruling against the ACA would show that the court is "a wholly owned subsidiary of the right wing." My general feeling is that politicizing the Supreme Court is dangerous to our republic, and should be avoided wherever possible. I can't help but wonder if Roberts feared that he had to vote against his conscious in order to appease the left-liberal establishment, clinging to the hope of more broadly-accepted institutional "legitimacy."
Just to add some levity to this grave situation, NBC-29 observed on Facebook: "The Supreme Court's health care ruling may be a victory for President Barack Obama, but health advocates say the real winners are the millions of uninsured." My response: "What about health opponents? Shouldn't both sides be heard?" For you folks in Rio Linda, I was poking fun at the rhetorical presumptuousness by which statists claim the moral high ground in this debate.
Finally, one of my Facebook friends sounded the trumpet for states rights, raising the possibility of "succession." [sic] South Carolina was the first state to succeed in 1861, right?