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.
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.
I have some thoughts at CIF about why the challengers to the ACA simultaneously argue that the mandate isn’t a regulation of interstate commerce and is so essential to a concededly constitutionalism regulation of interstate commerce that it can’t be severed:
Why would Clement advance this self-refuting argument? It tells us two things. First of all, there is a hidden libertarian agenda behind the modest-seeming argument that the mandate and only the mandate is unconstitutional. It’s no coincidence that one of the prime movers behind the constitutional challenge to the ACA – the esteemed Georgetown Law professor, Randy Barnett – is a radical libertarian who considers most of the modern regulatory state unconstitutional. The argument against the mandate is, at bottom, a libertarian one – comparable to pre-New Deal arguments that minimum wage laws and federal pensions are unconstitutional. It is necessary to conceal this to have any chance of getting five votes at the court, but the severance argument gives away the show.
There are also political reasons for opponents of the ACA to argue that the mandate cannot be severed from the rest of the statute. American political institutions, with their high number of veto points, very strongly privilege the status quo. Striking down the whole ACA would revert us to the status quo ante, in which the privileged interests favored by Republicans would make major changes to the American healthcare system nearly impossible.
Just striking down the mandate while leaving provisions such as the ban on discrimination based on pre-existing conditions, however, would create a status quo in which insurance companies would be desperate for change because they would be faced with a vicious circle in which healthy people fled the system, leading to ever-higher costs for everyone else. Nobody can predict what kind of fix Congress would create – it would depend on subsequent elections – but the challengers of the ACA could be faced with only a half-win or even a Pyrrhic victory. So, they would prefer that the act be struck down in its entirety.
The argument is really Lochner in disguise, which can also be seen in the recycled Glenn Beck Scalia and Alito favored us with throughout the oral argument.
One more point is that I would be cautious about excessive optimism should the mandate and only the mandate be struck down. Barring an unusual Democratic landslide or huge transformations in American politics the fix would be far more likely to be a half-assed, weaker, less equitable version of the ACA than single-payer. But the outcome would almost certainly be better than if the bill was struck down in its entirety.
Even if the ACA narrowly survives, David Frum is in for a rude awakening:
Even though the Solicitor General reportedly choked today, that doesn’t change the fact that the conservatives on the Court have spent most of their intellectual lives railing against judicial activism.
Well, this is technically true; conservatives on the court (and much more so off the court) do spend a lot of time railing against “judicial activism.” What the conservatives on the Court absolutely don’t do is oppose “judicial activism” in practice. And in this case, Scalia is virtually certain to vote to strike the law down.
One thing that the oral arguments in this case should accomplish is to make clear that when the Academy of the Overrated opens Scalia will get in on the first ballot. The performance of both Scalia and Alito throughout the oral arguments was an embarrassment — a succession of cranky and ignorant right-wing policy pronouncements and irrelevant hypotheticals with no pretense of engaging with the case law. Scalia’s attempt to invent a category of legislation that could be “necessary” but not “proper” — apparently because there might be alternative legislation that would be closer to the policy preferences Scalia got from listening to a third-rate winger talk show — was particularly special. If the Court wants to overrule McCulloch v. Maryland it really should do so explicitly…
UPDATE: ”On Tuesday, [Scalia] pursued the absurd “broccoli” analogy to the point where he sounded like a micro-rated evening-drive talk-show host from a dust-clotted station in southern Oklahoma.”
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.)
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.
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…
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.
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.
Since I was skeptical about whether the Court was seriously considering using a jurisdictional ruling to dodge the constitutional issue ex ante, the oral arguments yesterday certainly did nothing to dissuade me.
Looking around, this seems to be the consensus. Had a lower court not bought the anti-injunction argument, I doubt the Court would have even asked for the question to be briefed.
Looking forward to tomorrow, Sarah Kliff’s primer is very useful.
The hot argument based on today’s argument is likely to be the idea that the Supreme Court will just duck the question of the ACA’s constitutionality using a jurisdictional dodge. It’s possible, but I actually don’t think it’s very likely. How I read history differently is that I see the courts ducking cases where a ruling would lack significant political support, not ducking “politically divisive” cases per se. To cite another example, the Court invented a (legally erroneous) reason to duck an interracial marriage case in the mid 50s, for example, because they didn’t want to uphold bans on interracial marriage but striking it down would have been enormously unpopular, and not just in the Jim Crow states. In this case, conversely, the Court would have more than sufficient political and public support if they vote to strike down the ACA; they have no reason to duck the case unless they want to on the merits anyway.
I have a piece on the latest “sovereign immunity” atrocity up.
One additional note: in a footnote, Ginsburg reiterated (correctly) that Congress should be able to abrogate “sovereign immunity” in such cases for any reason it sees fit. Sotomayor and Kagan, however, didn’t join the footnote. It’s not the biggest deal in the world — if the votes were otherwise there to overrule this bad line of precedent they might do so anyway — but there’s no reason to acquiesce.