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ACA Argument Postmortem


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.)

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  • norbizness

    If it’s a contentious issue, why don’t we just assume that it starts off 4-4, that oral arguments don’t matter, and that I guess we’ll just wait to see where Kennedy comes down? I realize this primarily invalidates legal scholarship with respect to these cases, but that’s not the legal scholars’ fault.

    • For all of the criticism directed at Earl Warren as Chief Justice, the court’s incredibly controversial decision in Brown v. Board was what… a 9:0 decision. Because Warren recognized the importance of unanimity on a case that would have a profound impact on American life, and worked extremely hard to reach an opinion that could be joined by all of the court’s justices.

      This is a similar moment for John Roberts. Is he the type of Chief Justice who can wheedle, deal, cajole, and compromise in order to achieve a unanimous, or close to unanimous decision, winning the votes of justices who disagree with the ideology of the ACA but can nonetheless join the constitutional analysis that either upholds or overturns its core provisions? Is he the type who sees five votes as a victory, why try for more? Or is he incapable of building consensus?

      Whatever happens, the number of justices joining the majority opinion will be a measure of Roberts’ effectiveness as Chief Justice. If the court overturns the ACA on the newly minted theory that “mandates are unconstitutional”, this could be the most important case of his career – the one that defines his tenure and profoundly affects future Commerce Clause litigation as pretty much every new piece of legislation is characterized as a “mandate”. (“This isn’t a law that protects the market by preventing Filburn from exceeding limits on wheat production – it’s an unconstitutional mandate that he buy his feed grain from other farmers.”)

      If Roberts gets seven or eight votes for the majority, whatever the outcome, he will have proved that he is an effective Chief Justice. Unanimity would make him a miracle worker. On the other hand, if he gets a 5:4 split he’ll look ineffective – not that we should judge the man to be mediocre or ineffective from one opinion, but he does understand the importance of this opinion. If the court fragments into a confusing plurality, ouch.

  • wengler

    If this is the way the Supreme Court does things we are going to have to pack the hell out of it or impeach some of its members to get anything done over the next 30 years.

    They get to decide who they want to be President and now what sort of healthcare system we get. The oligarchy wears black robes.

    • Anonymous

      The Reagan Revolution continues!

      Suck it. Suck it long, suck it hard.

      • John

        You haven’t won anything yet. Save the gloating for the final decision.

    • Murc

      If this is the way the Supreme Court does things

      This is the way they’ve ALWAYS done things.

      I’ve said it before and I’ll say it again; the Supreme Court is a lawmaking body, and like any lawmaking body it primarily (not 100%, but primarily) operates according to its policy preferences.

      • wengler

        Yet it doesn’t have to be one. Weak political actors give it that right.

    • Incontinentia Buttocks

      What the Dems could have done was filibustered Alito and Roberts’ nominations.

      But they didn’t.

      • Richard

        Alito was filibustered but there were enough votes to invoke cloture. Obama voted to filibuster. Of course, a united Democratic party could have prevented the nomination by not invoking cloture but Bush would eventually have gotten someone just as conservative.

        • Furious Jorge

          Just as conservative, probably.

          But what about smarter? That seems pretty likely just by default.

          • Richard

            Roberts is as smart as they come. Alito not so much

        • calling all toasters

          Plus Mrs. Alito cried when some mean ol’ Senator asked Sammy a question. I know that this was important because it dominated the news for two days.

    • howard

      given scalia’s increasingly evident willingness to bring his political opinions into the discussion, i’d love to see an impeach scalia movement, which could get some moderate traction in progressive circles (and wouldn’t go any further, but then again, the crazies didn’t really expect to impeach earl warren, they just wanted future chief justices like roberts).

  • Xenos

    If Scalia authors an opinion that overturns Raich, but does not really overturn Raich, because this is such an unusual situation that it can never come up again, and therefore the decision has no precedential value as well as failing to overturn the Scalia authored opinions it disagrees with… can we impeach him already?

  • L2P

    I think 6-3. I still think Roberts doesn’t want to spend the rest of his career seeing his name on an opinion cited by every drug dealer in America claiming the Controlled Substance Act is unconstitutional. I already have two briefs on my desk from Medical Marijuana Dispensaries claiming, essentially, that the CSA is forcing them to take mandatory actions and therefore the CSA was enacted outside of the Congress’s authority.

    Pretty clever arguments, too.

    • catclub

      and yet everything is political, so _their_ case will be rejected for something like lack of standing, or the anti-injunction act, and never see the light of day.

      just to name two that could have been applied if the justices wanted to.

      I would be happy to be wrong.

    • Scott Lemieux

      Except that they would just cite Raich and uphold the CSA even if they took the case, so I don’t really see this as much basis for optimism.

      • Jesse Levine

        Based on the oral argument, what do you think the decision on severability will be?

        • Scott Lemieux

          No idea.

    • howard

      i thought 6-3 coming in and i still think that; i don’t believe, in the end, that kennedy hates existing commerce clause jurisprudence like the 4 do, and i agree with all of those who think that therefore roberts will want to write the decision.

      i also think we’ll see a separate opinion from kennedy, a partial concurrence from breyer-ginsburg, and a strong separate concurrence from sotomayor with kagan joining in.

      • joe from Lowell

        I thought 5-4, one way or the other, and nothing that has happened has changed my mind.

        It’s Anthony Kennedy’s world, and it has been since O’Conner retired. And who ever knows what he’s going to do?

        • It’s Anthony Kennedy’s world

          Jesus, man, are you trying to make my cats orphans?

          • joe from Lowell

            Take heart: his retirement in the second Obama term will allow the appointment of yet another moderate-liberal. While this will only move the court incrementally to the left, that slight movement will be just enough to put it past a tipping point, into an officially (if very slightly) left-of-center court.

        • John

          It’s either 5-4 to strike, or 6-3 to uphold, and I’d still lean towards the latter. Roberts was clearly leaving his options open, and I don’t see why he wouldn’t want to write the opinion, either way.

          • joe from Lowell

            You make an excellent point about writing the opinion. If he’s going to lose, Roberts will want to contain the “damage.”

          • timb

            When I though Scalia was not Rush Limbaugh, but was Antonin Scalia I thought the vote would be 7-2.

            Somehow, despite the fact that it destroyed my belief in the Court, I forget how cynical Bush v Gore was

    • Davis X. Machina

      Are they taking in to consideration the ‘Yes, but drugs!”, exception carved out in “Bong Hits for Jesus”?

  • mark f

    I had the day off and had to drive around a bunch. I heard a Heritage guy on conservative talk explaining that healthcare is too contentious for the courts to decide, so SCOTUS should do the democratic thing and strike it down so Congress can craft solutions to these problems.

    These people are shameless.

    • joe from Lowell

      But remember, mark, the Heritage Foundation loves this plan, and offered it in good faith. Why, oh why do these sellout neolibs support a plan that reflects the most deeply-held values of the Heritage Foundation?

      • Holden Pattern

        The Heritage Foundation paper was written more than twenty years ago. Twenty fucking years. Really, Joe, you’re pretending to know that deceptive evil was in the hearts of the health care people at the Heritage Foundation 20+ years ago because it allows you to hippie-bash.

        GHWB was a viable presidential candidate in 1988 (in fact, he won, we might recall), and he favored the individual mandate. In 1993, 25 REPUBLICAN Senators sponsored a bill which included an individual mandate . Of course, I’m sure all of that was one long red herring — eleven-dimensional chess by the Republicans of that time. If it was eleven-dimensional chess, it worked on the Dems, because the Dems adopted the Republican plan to require individuals to prop up the health insurance rentiers. And today, of course, the Republicans are much further right, so are their think tanks, and so are the Dems.

        [ Sources here: http://www.dailykos.com/story/2012/03/27/1078152/-Republicans-Supported-an-Individual-Mandate-Until-Obama-Did- ]

        The pathetic thing is that you continue to want people to CLAP LOUDER for this dog’s breakfast when it was in fact always a Republican market-based plan that further entrenches the health insurance rentiers, and our politics are so completely rotten that this is the best we can do — this is the leftward bound of permitted discourse on this topic — and not only that, but we’re expected to APPLAUD for it. Well, I might accept that it’s the best we can do, and I do think it could actually work in some ways, if it’s properly implemented, the regulatory apparatuses aren’t captured, etc. etc. But I can’t cheer for it.

        But I fault the Dems for not really trying to change the political conversation over the long term (not that most of the Dem leadership really wants to — the money lies in the other direction).

        • joe from Lowell


          Good night, Gracie.

          I’m just going to have to live with the very slight possibility something of any value whatsoever appeared after this term, and I missed it.

          • timb

            Too bad, because he made several excellent points.

  • Murc


    People keep forgetting that the Court can, and will, unilaterally enact seismic shifts in American law.

    The various New Deal and Civil Rights era cases upended an American legal order that had held sway for longer than we’ve been living in the current one. It can happen again, and this might be the time it does. Plessy was good precedent for a real long time to.

  • R Johnston

    At some point the Court ceases to be a legitimate institution and properly finds itself ignored. An opinion declaring the ACA unconstitutional is almost certainly that point as there is no coherent legal principle that leads to that conclusion without also completely invalidating the entirety of the modern administrative state, and a Court that calls the administrative state unconstitutional is far too childish and ridiculous to be listened to.

    A Supreme Court that acts as a revolutionary council and ignores the basic requirements of a modern government can’t be allowed actual power.

    • mpowell

      I would have to agree with this. The most significant thing about this case is not that it would overturn established precedent to overturn the ACA. Overturning precedent is something that SCOTUS should do when it feels that it is truly necessary. The most significant thing is that there is no logically coherent way to overturn the ACA while maintaining a whole set of law that you can be assured this court will not see fit to overturn. As Scott has already pointed out, the very same rational for striking the mandate is in opposition to the argument that if you have to strike the mandate, you have to strike the pre-existing exclusion clause.

      If SCOTUS overturns the ACA it will have abandoned even a pro forma attachment to the law to do so. Which was also the case in Bush v Gore. I would say that this is likely to lead to the discrediting of SCOTUS, but the problem with our political system is that there is no principle of democratic legitimacy undergirding the enterprise that enough of the revelant actors are willing to support. What this really demonstrates is that a constitution is no guarantee of a democracy. We are essentially in the same situation as England with a little more lag built in for safety. If our elites do not respect democratic legitimacy, our government stops being a democracy.

      • Scott Lemieux

        This would create problems for the Court if there was any requirement that their precedents be coherent.

        • mpowell

          My point is that the only way for there ever to be any problems for the court regardless of what they do is if the elites in our society actually start holding them responsible. Which just isn’t going to happen with our current political culture.

        • Jesse Levine

          The Court used to pay at least lip service to stare decisis, and it also used to take cases as they came to the Court, not reach out for new ways to attack laws the Five don’t like (see Citizens United). Coherence is out of the picture.

        • timb

          Brings you one step closer to “Mr. Marshall has made his decision. Let’s see him enforce it.”

          The Court spent the intervening decades carefully guarding against the idea that people see them as the final arbiters of what is and what is not Constitutional. Seeing them as extensions of Congressmen/women does not help the Court’s legitmacy

    • Incontinentia Buttocks

      At some point the Court ceases to be a legitimate institution and properly finds itself ignored.

      By saying that for a couple decades about the Warren Court and its legacy (and putting a lot of time, money, and organizing behind that view), conservatives built the federal jucidiary we have today.

      Long since time for progressives to grab a mop and stop settling for anything but full pushback from our presidents and senators.

      • Holden Pattern

        By saying that for a couple decades about the Warren Court and its legacy (and putting a lot of time, money, and organizing behind that view), conservatives built the federal jucidiary we have today.

        Long since time for progressives to grab a mop and stop settling for anything but full pushback from our presidents and senators.

        Money talks. The big money doesn’t want that to happen, so it won’t.

    • joe from Lowell

      I disagree, Mr. Johnson.

      Legitimacy is a political concept, and in a democratic system, its legitimacy is decided upon by the People. They can wipe their butts with anything remotely resembling adherence to intellectual, procedural, and legal respectability, and unless the public is outraged by something they do, they cannot be ignored without dire consequences.

    • Tcaalaw

      At some point the Court ceases to be a legitimate institution and properly finds itself ignored.

      Andrew Jackson thanks you for your support and would like to give you a complimentary 40 acre plot of land only slightly soaked with Cherokee blood.

      • timb

        You cite that like it’s HIS idea. Losing the legitimacy of the Court is the COURT’s fault, not the people who recognize it for what it is.

  • pc

    What bothers me so much is that they’re going to strike the entire law down while claiming that there was a valid way to enact it under their own view. Yet, the reason Congress didn’t go that route is that it seemed clear from Raich that it didn’t need to (it looked even more clear in Comstock). Wasn’t Congress entitled to rely on Raich in drafting the law?

    To me, the decision in this case may be much worse than just preventing health reform for another generation — maybe it provides the foundation to hold Medicare, Medicaid, or Social Security unconstitutional

    • dan

      The Supreme Court does this all the time — suddenly announce that Congress had to meet a standard never before enunciated, and then invalidate the statute for not meeting that standard. Morrison is a good example. Not will the court point the way as to how universal coverage can be done in the future — the next attempt will undoubtedly provoke a new set of never-before-and-never-since standards used to invalidate it. And just because Medicare, Medicaid and Social Security would be endangered by a logical application of the new precedent to those laws doesn’t mean that there will be any actual danger do long as those laws are sufficiently entrenched.

      • Honorable ……BOB

        Roe v Wade?

        Wasn’t that a new standard out of whole cloth?

        • Eric

          No. But thanks for playing!

          • You would think that Boob would at least know that he is supposed to be pissed off at Griswold. A quality troll would know that.

  • joe from Lowell

    There is something I don’t understand. If the mandate is held to be unconstitutional, but the regulations about dropping coverage and preexisting conditions are not part of that finding, why would any of the dire warnings – as true at they may be – about what the consequence of those regulations without a mandate would be, justify striking them down?

    Without the mandate, those regulations cause the insurance companies to lose a lot of money, and they’d probably just not provide anyone else with health insurance. Of what constitutional relevance is this? It would be terrible policy, both in terms of what it would do to the industry, and in terms of failing to achieve the Act’s stated goals…but from a constitutional perspective, so what? Congress is allowed to pass lousy policies.

    • Anonymous

      Blah blah blah…Roberts, Alito, Thomas and Scalia can do what they want, when they want.

      And there’s nothing Obama or little liberal pissants can do about it.

      Suck. On. It.

      • joe from Lowell

        Roberts, Alito, Thomas and Scalia can do what they want, when they want.

        Except add up to five, Dr. Hawking. Oops.

        While your corrupt nihilism accurately captures the “reasoning” of the four justices you mention, Kennedy is a different matter, and will likely rule according to an actual jurisprudential thought process, albeit a conservative one.

        • John

          I don’t think that’s quite right. Kennedy is a horrible hack, and doesn’t deserve any respect as being likely to rule “according to an actual jurispudential thought process.” If he was going to rule on such a basis, he wouldn’t have been asking nonsensical questions about limiting principles, and if he was worthy of respect, he wouldn’t have cast the deciding vote in Bush v. Gore. I think his decision (and probably Roberts’s, too) will be made on the basis of political calculations. I just suspect that those political calculations will not be the same ones that Scalia, Alito, Thomas, and the 26 state attorneys-general are working with.

          • Ben

            Might as well add “the poor dears will feel bad later if we let them get abortions” to that parade of horribles

      • efgoldman


    • Karate Bearfighter

      This goes to the issue argued today — severability. If Congress enacts a comprehensive regulatory scheme and the Court strikes down part of that scheme, the Court has to look at whether the remaining portion would have been enacted by the legislature in the absence of the unconstitutional provision. The rationale is that Congress can choose to enact lousy policy, but the Court should not create lousy policy by selectively editing statutes. Instead, the Court should return us to the status quo ante and tell Congress to craft a statute that accomplishes its original policy goal.

      There is a presumption in favor of severability, but given Congress’ clear intent to retain private insurers as a central feature of our system, the Court will have to strike down portions of the ACA that would bankrupt the insurance industry in the absence of a mandate.

    • JCC

      Congress is allowed to pass lousy policies, but courts — when invalidating parts of laws — can’t or shouldn’t create lousy policies that Congress *wouldn’t* have passed.

      Without a mandate, but with the restriction on blocking pre-existing conditions, insurance companies will go out of business OR raise rates significantly (eg, 3x). Would Congress intend (have intended) that? That’s the question the court has to answer.

      Severability clauses are designed to answer just that. “We’re the people who wrote this law, and this is what we want you to do with it if something happens.” (Think of it as a living will.) Congress took *out* the severability clause, so the court has to guess.

      No doubt, the taking out of the clause will be taken into account.

  • Anonymous

    Its over, dipshits.

    The law is going down.

    Suck it.

    • efgoldman


  • Anonymous

    And those of you who think you can actually impeach Scala or Alto or Thomas or Roberts?

    Bwahahahah! They’re going to be on the court a good, loooooooooong time, and live to a ripe, old age with great healthcare insuring they’ll be promoting the Reagan Revolution for decades.

    • efgoldman


  • Anonymous

    Remind me again, how did Kennedy vote on Bush v. Gore?

    We always win in the end. The Reagan Revolution is deeply, deeply embedded in the current courts system and there’s jack shit you can do about it. It will be like that for the next 40, 50 years no matter how many Democrats you elect.

    How do you like them apples?

    • And yet gays can still get married, and every year, old stupid white people become a smaller and smaller percentage of the population.

      How do you like that apple?

      • Of course, Anonymous Coward’s response would be to ban voting for anyone who’s not a straight white property owner.

        The GOP does quite reliably hate America.

        • Holden Pattern

          Of course, Anonymous Coward’s response would be to ban voting for anyone who’s not a straight white property owner.

          They’re working on it. And SCOTUS will uphold those bans. It will take generations to undo the hatefulness and venality of Republican leadership and the fecklessness and venality of the Dem leadership.

    • joe from Lowell

      Except you don’t even believe this, or you would have included Kennedy in your list. Rather telling omission there, and one that makes your performance look more than a little forced.

      • Anonymous

        Kennedy is fool’s gold for desperate liberals who know this law is going to come crashing the fuck down.

        • fool’s gold for desperate liberals

          Properly capitalized, this makes a good album name. Crappy band name, though.

          • joe from Lowell

            You know what would be a good band name?

            The Pwnership Society.

            Fools Gold for Desperate Liberals, by the Pwnership Society.

            • past contingent

              For years I have loved the phrase “the Pwnership Society” as critical deconstruction of W-bandwagon rhetoric. I only wish I had something so biting to take apart the religious dog-whistle of the euphemism “bring them to justice”–which still makes my blood run cold.

    • efgoldman


  • While this was a pretty helpful post since I was failing to understand how healthcare was not interstate commerce and thus within Congresses power to regulate… but you’re saying they can just make up this activity/inactivity distinction and that’s that. Encouraging!

    • Davis X. Machina

      … but you’re saying they can just make up this activity/inactivity distinction and that’s that.

      We’ve all done it, back in high school chemistry. You draw your curves, and then plot your points on them. Saves time, doesn’t dirty any glassware, the result is a neat lab report, that gets high grades, and you’re first to the caf for lunch.

      Beats standing in line….

  • efgoldman

    One thing that occurred to me just now, hiding way down in the weeds:
    Nino, particularly, has to bell aware of all the hoo-hah, for the last month, about contraception coverage.
    Do you thin for a minute, that he hasn’t noted, in his Opus Dei lizard brain, that invalidating ACA takes down all of its underlying directions, without requiring The Court to address that matter directly?
    Just sayin’.

    • efgoldman

      …and may we PLEASE have an edit button…

    • thalarctos

      aware of all the hoo-hah

      I see what you did there.

  • BradP

    All this ACA stuff makes me feel like I’m watching the crew of the Titanic argue over the arrangement of the deck chairs.

  • Lee

    My main concern is this. The Pre-ACA healthcare system was broken and did not work, tens of millions of Americans were left without access to healthcare. Even those with health insurance would postpone seeing a doctor as much as possible. At the same time, I’m in the campt that believes that the ACA was probably the best possible reform that could past Congress. Medicare for All certainly can’t for a myriad reasons. If the ACA is struck down, what happens next? There is no evidence that even if the healthcare system implodes that the opponents of rational healthcare systems would be hit with the clue stick.

    • Steve LaBonne

      What happens next is that more and more people die for lack of health care. Along the way it will even become legal to completely deny them care in emergency rooms after the hospitals lobby for that right with the argument that they’ll go bankrupt otherwise.

      What happens after THAT, God only knows.

  • scott

    I disagree with the quoted material that the Court avoids wrangling over the New Deal conception of government power with a distinction between activity and inactivity. As taught in law school, that was one of the dodges that the Supreme Court, before “the switch in time that saved nine,” used to strike down New Deal legislation in its early stages. My law school professors told me that this was an argument dead and buried in the 30’s, and if we’re revisiting it that carries a definite whiff of the kooky Constitution in Exile theory that conservatives want to use to take us back to the paradose that existed before the New Deal.

    • wengler

      They worked very hard for a very long time to get to this point.

      And it got a lot easier when they got to appoint who would appoint them.

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