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Tag: "constitutional law"

Article 1 Did Not Enact Mr. Paul Ryan’s War on the New Deal

[ 30 ] April 6, 2012 |

In attempting to rebut Koppleman’s point that the argument against the ACA has striking parallels with Hammer v. Dagenhart, amidst a bunch of other howlers Althouse inadvertently reaffirms his point:

But hospitals must treat emergency patients. It really is a problem that some people use this service and fail to pay their bills. But even if you assume the Commerce Clause empowers Congress to solve that market dysfunction — patients consuming a service they can’t pay for — the individual mandate requires a purchase of insurance that covers vastly more services than these required emergency hospital visits.

It seems to me that younger, healthier individuals are being swept in to accumulate an immense fund that will be used to cover the expenses of older, sicker folks. It’s the exploitation of the young, ironically. But Koppelman doesn’t want you think precisely about what the legislation does, and who’s really being required to pay for what. He’d like to roll you up into a big ball of emotion where you visualize poor little children….

While the acknowledgement of a collective action problem is one small step for Althouse, the policy argument here is still wrong. Had Congress merely required young people to purchase catastrophic insurance, this would address the free rider problem that makes arguments that people are being “forced” to enter the healthcare market a joke. But it wouldn’t be remotely adequate to address the adverse selection problem that would result if the insurance pool for most medical services didn’t contain the young and healthy and insurance companies weren’t allowed to discriminate against pre-existing conditions. In addition, Althouse seems to have joined one of the strangest Republican ideas to have emerged from the Tea Party era, the War On the Concept of Insurance. Why do we allow people to get into car accidents “exploit” those who don’t? Why do we allow people whose houses burn down “exploit” those whose houses don’t? Except that as applied to health care this argument is even dumber because while most people’s houses don’t burn down most people get old and everybody dies. The typical young person will only end up being “exploited” by universal insurance (or Medicare) if Althouse’s allies in Congress and the Supreme Court succeed in destroying the safety net (plans that always, it’s worth nothing, exclude Althouse’s demographic from the immense pain she would happily inflict on future generations. Now that’s exploitation.)

But leaving aside the merits of these policy arguments, they’re completely misplaced as applied to a commerce clause/necessary and proper clause case. Even if we assume that Althouse is right that the mandate should be narrower given Congress objectives — which of course she isn’t — it’s beside the point. As has been well-settled (a few utterly discredited anomalies like Dagenhart aside) for nearly 200 years that “any means adapted to the end, any means which tended directly to the execution of the Constitutional powers of the Government, were in themselves Constitutional.” As Toobin recently pointed out, the majority opinion in Heart of Atlanta upholding the Civil Rights Act is also directly on point:

It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed — what means are to be employed — is within the sound and exclusive discretion of the Congress. It is subject only to one caveat — that the means chosen by it must be reasonably adapted to the end permitted by the Constitution.

Althouse, in other words, seems to be smuggling a narrow tailoring requirement from fundamental rights or equal protection doctrines into a federal powers case, but this is completely inappropriate even if we ignore the fact that it’s wrong on its own terms. Congress needs only have ends that are rationally related to these means, and the ACA passes this minimal requirement at least as easily as the Civil Rights Act. Which, of course, is the point: like Dagenhart, the most prominent argument against the ACA doesn’t really have anything to do with state sovereignty; it’s a “liberty of contract” argument in a bad disguise. And (especially to people like Althouse who wouldn’t follow the libertarian premises where they logically lead and hold the Civil Rights Act and Social Security unconstitutional) it’s “liberty of contract” in the worst Dagenhart sense, meaning “the Supreme Court should randomly strike down some laws I don’t like based on really, really bad policy arguments.” For the Court to exhume Lochner like this would be outrageous.

…I agree with a commenter that Holbo’s classic Dead Right review remains the definitive analysis of the War on the Concept of Insurance.


The Key Precedent for the Anti-ACA Argument

[ 33 ] April 5, 2012 |

Andrew Koppelman is correct that Hammer v. Dagenhart would be the most obvious precedent for a Supreme Court decision striking down the ACA:

Both then and now, challengers to the statutes had to propose that the Supreme Court invent new constitutional rules in order to strike them down. At the time it considered the issue in 1918, there was nothing in the Supreme Court’s case law that suggested any limit on Congress’s authority over what crossed state lines. On the contrary, the Court had upheld bans on interstate transportation of lottery tickets, contaminated food and drugs, prostitutes, and alcoholic beverages.

That’s why the Supreme Court’s invalidation of the law in 1918 astounded even those who had most strenuously opposed enactment. Hammer v. Dagenhart declared—in tones reminiscent of the Broccoli Objection to Obamacare—that if it upheld the law “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” Justice Oliver Wendell Holmes, dissenting, wondered how it could make sense for congressional regulation to be “permissible as against strong drink but not as against the product of ruined lives.” The Court responded that unlike all the contraband that it had permitted Congress to block, the products of child labor “are of themselves harmless.” This meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce.


What the Court actually accomplished in 1918 was to thwart democracy and consign large numbers of children to the textile mills for more than two decades. Health care is another context in which the fear of federal power creates a serious risk of ravaging the lives of large numbers of actual people. If the law is upheld, no one is going to be forced to buy broccoli. But if the law is struck down, large numbers of people will die of preventable or treatable diseases, or be bankrupted by medical expenses.

Of course, some Tea Partiers are indeed proud to say that the shoe made with child labor fits.

Another key reason the analogy works is that Hammer was really a “liberty of contract” case in disguise, like arguments against the ACA. The Supreme Court’s inconsistent application of commerce clause restrictions during this area made it clear that they objected to the ends, not the means, of the bans on shipping goods made with child labor. If they approved of the ends, the use of federal power was fine. In both cases, “state sovereignty” is not the real animating issue.

Strip Search Sammy Comes Through For Authoritarianism

[ 84 ] April 3, 2012 |

Our liberty-loving Supreme Court has once again decided to use the Federalist Society Constitution, the one with the word “suckers” in it that omits the Fourth Amendment. You can now be subjected to a not merely warrantless but suspicionless strip-search for being guilty of a minor traffic offense.

The opinions bring to mind Scalia, back when he seemed to be willing for enforce the Fourth Amendment once in a while, critiquing another Kennedy assault on the Bill of Rights: “all this contains much that is obviously true, and much that is relevant; unfortunately, what is obviously true is not relevant, and what is relevant is not obviously true.”   Except that this would be too generous to Kennedy, since the justifications offered by Kennedy, Roberts, and Alito as far as I can tell contain nothing that is relevant.    For example, as Liptak notes, Breyer explains the kind of menaces to society who can now be humilated:

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

But wait — Kennedy has a response!

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

Well, first of all, so what? Did McVeigh have a semiautomatic rifle stored in his rectum? Would any there have been any threat to public safety if he couldn’t be strip-searched? But leaving that aside, the strip searches authorized by the Court weren’t done by the side of the road (although we may be headed in that direction soon.) Presumably, McVeigh was detained because after being pulled over for driving without license plates the authorities found that he was the suspect in a mass terrorist killing. So what this has to do with people detained for minor nonviolent offenses I haven’t the slightest idea. As I say at the linked post, the arguments offered by the majority opinions are all pretty much at this level of bare assertion and non-sequitur.

Needless to say, this case is even more infuriating when you consider last week’s oral argument. It should be obvious that the Supreme Court owes much less deference to the arbitrary actions of local officials than it does to legislation passed by the United States Congress, but the conservatives on this Supreme Court get it exactly backwards.

…UPDATE: “the kind of logic that can turn a democracy into a police state.” More from Balko and Digby.

Kindergarten Libertariansim, With Prof. Althouse

[ 298 ] April 2, 2012 |

Adam Litpak had a good article noting that Verrilli’s oral argument appealed to Kennedy with the freedom-enhancing qualities of the Affordable Care Act. This motivated Ann Althouse, who didn’t seem to even understand the argument, to respond like a member of their junior high school’s Ayn Rand club participating as their team’s third-stringers at the forensics meet:

“Liberty” is a high abstraction. What is it about the liberty of compulsion to buy an expensive health insurance policy that Justice Kennedy is supposed to find appealing? Just because someone loves liberty doesn’t mean they’re going to love everything you slap a “liberty” label on!

Obviously, as a complacent reactionary who benefits from the security of taxpayer-funded health insurance Althouse can’t grasp why universal health care might be freedom-enhancing, but it’s not at all complicated:

  • First of all, Althouse seems to assume that everyone who is uninsured wouldn’t want affordable insurance if they could get it, as if many people don’t have health insurance because of pre-existing conditions or because it’s not affordable for ordinary workers under the status quo.
  • Once we move past this silly assumption, it’s not difficult to see the point the SG was making.   Universal health care has freedom-enhancing properties in a lot of ways: it allows you to move, or engage in entrepreneurial activities, without losing the employer-based coverage that is the only practical means of obtaining insurance for those who aren’t poor or extremely wealthy.  Mobility, particularly in American constitutionalism, has always been a treasured liberty.  Bankruptcy is, to put it mildly, detrimental to liberty in all kinds of ways.   Beyond that, whether you want to call the security that comes from health coverage freedom-enhancing is a matter of taste, but this security is certainly more valuable to most people that the “freedom” of knowing that you can be bankrupted by an accident or unforeseen illness.
  • The even bigger problem here is that the rugged individualists who go without health insurance are not making a “choice” to be free of state constraint and state-provided benefits.  They are, in fact, making a choice to stick the taxpayers with the bill if they have a medical emergency. Even a moderately sophisticated libertarian understands that the “freedom” to free ride is no freedom at all.   Perhaps Althouse, like the judicial idol she defended so feebly,  would prefer a libertarian dystopia in which people who aren’t lucky enough to have taxpayer-funded health insurance are just left to die from accidents or treatable illnesses.   But whatever they would like the policy baseline to be, what matters both for public policy and for the question of whether the mandate is a necessary and proper part of a concededly constitutional regulatory framework is what the policy baseline under federal, state, and common law actually is.  Kennedy actually showed some signs of understanding this, one of the few bright spots to come from the three days of depressingly inept work by he and his Republican colleagues.

Sometimes A Devastating Defeat Is Just a Devastating Defeat

[ 141 ] March 30, 2012 |

Given the amount of pushback, I decided to make my argument about legitimacy and the ACA at much greater length. A lot of people seem to think that this particular politically controversial decision with substantial elite support will somehow be different than the many other politically controversial decision with substantial elite support the Supreme Court has made. I don’t see it:

It is true that a decision striking down the ACA would inevitably be 5-4, which many legal observers believe would decrease the legitimacy of the decision. The problem here is that evidence that the vote lineup influences public or elite support for judicial opinions is scant. Consider the most divisive Supreme Court decisions in recent history. Miranda v. Arizona was 5-4, but that’s the exception. Brown v. Board and Cooper v. Aaron—both of which the directly affected states and their representatives not only bitterly opposed but refused to implement—were of course unanimous. Engel v. Vitale—the 1962 school prayer case that generated more hate mail than any case in the Warren Court era and also had serious implantation problems—had a mild solo dissent. Roe v. Wade was 7-2. It’s substantive results—not the number of dissents—that determines the reaction to Supreme Court decisions.

One potential counter to this is that a decision striking down the ACA would be different, it would be a 5-4 decision that would break down along strict partisan lines. By showing the Court to be nakedly political, it might undermine the Court in a way that previous rulings have not. My response to that would be simple: Kelo v. New London. The fact that the opinion was written by one Republican nominee and joined by two others didn’t stop it from being fiercely criticized by Republicans and sparking a legislative reaction in many states. And this makes sense when you think about it. In essence, the argument that the partisan breakdown changes things assumes an audience sophisticated enough to be aware of recurrent ideological vote patterns on the Supreme Court but unsophisticated enough to think that the Court is nonetheless apolitical if these ideological divisions map onto 1950s party coalitions rather than 2010s party coalitions. I’m not sure how big this audience is, but I’m confident that it could comfortably fit in a single-occupancy freshman dorm room. No conservative Republicans think of John Paul Stevens or David Souter as being on their team no matter who appointed them.

This is not to say that the Court can do anything it wants and remain its standing with elites and the public. A decision completely lacking in elite or popular support might have this effect. Unfortunately, this scenario wouldn’t describe a decision striking down the ACA. Such a decision would have the strong support of the political party that controls the House of Representatives and 48 seats in the Senate, and if current polling holds up would have the support of a majority of the public as well.

I also think some people are way too optimistic about the policy that would emerge should the Court just strike down the mandate, but…well, read the whole etc.

The Slippery Slope Argument Against the ACA: Unserious

[ 52 ] March 30, 2012 |

Akhil Reed Amar is making sense:

I start with the Constitution here. It’s the power to regulate interstate commerce. Is this a regulation? Yes. It’s just a regulation like regulating a well-regulated militia with a mandate. Is this interstate? Yes. And I’ve given you reasons why. Third, is it commercial? Yes, it’s purely about who is paying.

EK: In terms of liberty, I think what Barnett and other opponents of the mandate are arguing is that this is a slippery slope. First you’re saying I have to buy health insurance. Then you’re saying I have to eat broccoli.

ARA: The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

On their economic ignorance, see Krugman.

Legitimacy and the ACA

[ 221 ] March 30, 2012 |

Jon Cohn has a good post about a subject that’s on a lot of minds given the hostile reception the ACA received at the Supreme Court this week:  judicial legitimacy.  It’s worth unpacking the different things this might mean.   Certainly, from the standpoint of my personal normative evaluation, I agree with Jon that a decision striking down the ACA would not be legitimate.  If you’re going to strike down the centerpiece legislation of an incumbent administration, you’d better have better arguments than were on display over the last three days.  (I especially like the point that “if the justices strike down the Affordable Care Act, they would be stopping Congress and the President from achieving a constitutional goal via constitutional means just because they didn’t use constitutional phrasing to describe it.”)

Another element of the question, however, is whether a decision striking down the ACA would significantly effect the legitimacy of the Court among the general public.   My guess is that it would not.   Certainly, I doubt that the 5-4 margin would matter, and nor do I think the fact that the ideological fault lines of the court now map precisely onto partisan divides means much.    I think Sandy Levinson is fundamentally right here:

So, when the five Republican conservatives decide how to vote, will they genuinely have to worry about a significant “backlash” against the Court in the country at large? The answer is almost definitely not. After all, the Republican base would praise the decision as “just what the Constitution means.” Another percentage would say something like “I ‘m not sure I agree with the decision, but, hey, I’m not a lawyer, and we hire the Supreme Court to tell us what the Constitution means, and even if they sometimes make mistakes, the country is blessed to have such an institution, and we should all accept its conclusion and move on.” Even partisan Democrats are likely only to fulminate, but how many will say, “You know, I think that Oliver Wendell Holmes and Mark Tushnet have gotten it right, and we should simply eliminate the very power of judicial review, at least with regard to any federal legislation. After all, we can always vote the congressional scoundrels out, but we don’t have that possibility with the politicians in robes who constitute the Supreme Court”?

Really, striking down the ACA isn’t even testing the far reaches of the Court’s power. The Court would have substantial support in Congress and, at least as of now, would appear to have the support of the majority of the public. I wish it weren’t so, but I don’t think the Court would face any significant loss of public legitimacy should they strike down the ACA.

ACA Argument Postmortem

[ 97 ] March 28, 2012 |

After going back and forth for a year I ended up being somewhat more pessimistic than a lot of liberal observers before the argument, so I perhaps wasn’t as shaken as they were. (I agree with Jon Cohn did the oral argument did not at all make it clear that Kennedy will vote to strike the ACA, although it made clear that he was seriously entertaining the possibility.) So I’m about where I was — it comes down to Kennedy, and I don’t see how anyone can claim to know what he’ll do. But I do think that some pundits, especially on the political side, misunderstood the role precedent will play in the case:

First of all, I think (particularly among political writers) there’s an important misunderstanding. Even if we concede that the ACA is unquestionably constitutional under the Court’s precedents—something that I don’t think is strictly accurate, although they strongly point in that direction—it’s important to remember that the Supreme Court is not bound by its own precedents. Lower courts are, and for that reason some of the District Court opinions striking down the ACA were embarrassingly feeble. But the Supreme Court does not violate any legal practice by limiting or overruling its own precedents. The law allows enough discretion for the Court to use its powers unwisely in this case, and it might. It is true that even if it is legally permitted to do so, the Supreme Court is very reluctant to overrule major precedents. Even after four decades of Republican-dominated Supreme Courts, the major precedents of the Warren and early Burger Courts remain good law. There is no question in my mind that if the argument being made against the ACA required the Supreme Court to overrule Wickard v. Filburn and return the country to a pre-New Deal conception of the Commerce Clause, it would not do so. But the genius of the argument concocted by the ACA’s opponents is that it does not require the Court to explicitly overrule any existing precedent. I think that the distinction between “activity” and “inactivity” is utterly nonsensical as applied to the healthcare market, and Steven Breyer did a good job of explaining why at yesterday’s oral argument. But it provides a way for the Court to strike down this particular bill without threatening the fundamental structure of the New Deal.

So nothing prevents the Court from striking the law if they want to, and a majority might want to. Hopefully Kennedy will step back from the brink.

Meanwhile, if you want to get into the weeds of the oral arguments, I probably don’t need to tell you this but Lithwick has been brilliant (day one, day two.)

So We Agree!

[ 124 ] March 28, 2012 |

Paul Clement is so good that he started his argument today with a devastating rebuttal of his own argument that the mandate is unconstitutional:

If the individual mandate is unconstitutional, then the rest of the Act cannot stand. As Congress found and the Federal Government concedes, the community-rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate. Congress found that the individual mandate was essential to their operation.

And not only can guaranteed-issue and community-rating not stand, not operate in the manner that Congress intended, they would actually counteract Congress’s basic goal of providing patient protection but also affordable care.

Absolutely correct! In other words, the mandate is a necessary and proper part of a regulatory framework all parties concede is constitutional, and hence should be upheld. I’m glad we’ve reached a consensus here.

The Broccoli Menace

[ 72 ] March 28, 2012 |

While I’m waiting for my other piece on yesterday’s argument, since it’s relevant again I thought I’d dip into my nostalgia file and link to my piece about why the slippery slope arguments against the ACA are really dumb. Namely, 1)there’s a lot of traction on that slope, and 2)in any case the fact that the government could do a dumb thing with a given power isn’t actually an argument that the power is unconstitutional because it applies to every valid power.

By the way, it seems odd that a required purchase of broccoli is the most frightening reductio ad absurdum they can come up with for the ad hoc arguments against a policy nobody but the most radical libertarians thought was unconstitutional four years ago. I think the anti-New Dealers are ignoring Belle Waring’s dictum that wishes are totally free. If you’re going to come up with a SCARY exercise of government power that has no chance of ever happening, can’t you do better than the forced purchase of a reasonably tasty, very nutritious food? How about, “the government might force you to buy every movie Tom Shadyac and Michael Bay have ever directed in every available format and check to make sure that you watch them!” Or “the government could force you to buy a an expensive annotated edition of the Complete Works of Jonah Goldberg and make you read it!” Hell, I’d start to wonder if maybe getting rid of the Articles of Confederation was a mistake myself…

The Limiting Principle

[ 84 ] March 27, 2012 |

Some thoughts about day 2.

The key to Kennedy’s vote, evidently, is whether he can be convinced that there’s a limiting principle. Kennedy, unlike the other conservatives, does seem to understand that the health care market is different:

But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.

That’s my concern in the case.

But despite this, it’s clear elsewhere that he also feels the pull of the broccoli mandate crap. It’s hard to say which way he’ll go.

I also agree with Adam that if this was debate judging the ACA would be utterly doomed; despite starting with the stronger hand Verrilli was completely overmatched. He was puzzlingly weak even facing predictable questions with obviously better answers. Carvin wasn’t terribly good either, but Clement was about as good as you can be given the arguments he had to work with. Fortunately, it’s not a debate and oral argument will matter only modestly if at all, but Verrilli sure didn’t help.

Specious Argument Theater, With Nino Scalia

[ 145 ] March 27, 2012 |

Much more later about today’s argument, but I’d like to address this particular slippery slope hypothetical from Scalia, responding to the government’s argument about the necessity of the mandate to the plainly constitutional regulatory framework established by the rest of the act:

General Verrilli, you -you could say that about buying a car. If — if people don’t buy cars, the price that those who do buy cars pay will have to be higher. So you could say in order to bring the price down, you are hurting these other people by not buying a car.

I’m sure most of you have spotted the problem here, but there’s an obvious difference: the taxpayers aren’t obligated to buy you a care if you need one. You can choose to not participate in the market for cars; you can’t choose to not to participate in the market for health care because emergency rooms have to treat you.

Not that I think the slippery slope argument would prove much of anything even if the analogy was valid, but it’s not.

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