Thursday, June 28, 2012

The weird politicized and legally conservative Obamacare ruling (plus dicta)

Well, that was unexpected.  Supreme Court - actually, John Roberts -  rules Obamacare is legal not based on the Commerce Clause but based on the government's power to tax.  Roberts actually ruled the law is not a valid exercise of the Commerce Clause.

The weird and politicized aspect is that there's relatively little evidence in favor and some evidence against the idea that Congress was using its power to tax as a basis for Obamacare.  I think Roberts wanted to reach the outcome that he got on the Commerce Clause without causing the most disruptive overturning of a Congressional law since the Great Depression.  He got what he wanted, a limitation on the Commerce Clause.  Compare that to the SWANCC case I mentioned earlier, where there was plenty of evidence that Congress relied on the Commerce Clause and the Court majority ignored that so they could get the result they wanted without dealing with commerce issues.

The ruling on Commerce Clause advances legal conservatives position, even though the tax outcome leaves Obamacare intact.  The Medicare ruling is even more legally conservative - the power of federal government to spend money as it wishes for the public welfare has been almost unconstrained outside of First Amendment issues, but now its ability to move states in the direction it wants, with its own money, is facing a limit.

Surfing around the legal blogs, they're starting to notice that the "holding" on the Commerce Clause is actually dicta - reasoning that wasn't necessary to reach the conclusion made by the Court majority, and therefore just a statement that is no binding precedent on lower courts.  These are statements that Court actually shouldn't even make but if they do, we can ignore them in theory.  In practice, it's pretty clear where a majority of the current Supreme Court would go on this issue, so a lower court would hesitate to ignore it.

Given this tiny amount of restraint though, I guess the justices shouldn't be elected.  They're playing court politics, not politics politics.

UPDATE:  Nice post at SCOTUSblog on the Medicare issue.  Because it was a plurality but not a majority opinion, that means the plurality opinion isn't binding on future cases.  And what's up with Kagan and Breyer joining Roberts in his nonsense that the feds can't decide when to stop spending money?  This is an incredible door to judicial activism - they imply that a smaller penalty would be okay, but we'll never know what's okay except by countless lawsuits that will have to be relitigated for any new law involving funding of the states by the feds.

On the good side, and per the comments discussion, the implication here is that if a law looks like a tax, even if it otherwise suggests that it isn't a tax, then for purposes of determining whether it's constitutionally permissible it is to be considered a tax.  That goes a half-step beyond what courts usually say when they say they will search for an interpretation of a law that allows it to be constitutionally valid.


John said...

The chief justice of SCOTUS, INC., fulfilled his function admirably, he preserved the massive insurance industry gift that is the ACA.

Brian, a legal opinion. If Medicare for all (e.g., HR 676), had passed, in place of ACA, would it have provided as obvious a legal weakness for legal challenge as did "the mandate"?

John Puma

dbostrom said...

Thanks for the explanation on "dicta" Brian.

What's your opinion on Roberts' assertion that the Court has an obligation to find a way to constitutionality for a law even if the authors' original intentions end up left by the wayside?

Brian said...

John - I can't see any constitutional problem in a Medicare for All system, unless someone managed to screw up the specifics.

Db - Roberts is right as a normal matter. There's a contrary argument in this one case that Congress wasn't using its taxing power, but you wouldn't normally encounter that situation. He's actually set up a new precedent here that can help save future laws. I'm not sure if he thought that through, or just decided it was worth it/the right decision. I've been thinking about updating with exactly that issue.

Hank Roberts said...

> a new precedent here that
> can help save future laws

Which public health and environmental protections were enacted relying on the prior interpretation of the Commerce Clause, that are now subject to challenge?

And what else now gets tagged with the dread "Tax" label for the first time? Is everything the government does now more likely to be called a tax?

Woe to the condors, for example:,0,3235512.story

dbostrom said...

Hank: And what else now gets tagged with the dread "Tax" label for the first time?

That term needs to be rehabilitated after several decades' pummeling by Club for Growth and others.

Colorado Governor Hickenlooper’s reply to question regarding conservative complaints about limited availability of federal resources in combating fires: ”Were these the same conservatives that were so worried about the Obama administration spending too much money, or were these different conservatives?”

I suspect the conservatives in question are the ones that expect to dine on free lunch, itinerant individualists who wish to be given a helping hand when times get tough.

If by "country" we mean a collection of citizens working together to help build a sum greater than the parts, "patriots" are people willing to pay for their project-- ready and willing taxpayers, proud of whatever role they can play be it small or hopefully large.

In my humble opinion. :-)

dbostrom said...

BTW, does anybody believe the timing of today's contempt citation of Holder was not political public relations tactics? Some coincidence...

Brian said...

Hank - there's been some speculation that the Endangered Species Act is vulnerable to a Commerce Clause challenge. Had they said that ACA was a constitutional use of Commerce Clause, that would've saved the ESA. This "inactivity" ruling doesn't directly threaten the ESA, but it does leave the question open.

dbostrom said...

Forgot: thank you, Brian!

Anonymous said...

The minority opinion is interesting. In one section they consider two laws:

A: All who do not purchase health insurance must pay a penalty.
B: All who do not grow wheat must pay a penalty.

They reject A on the grounds that B clearly goes to far and it's a slippery slope from A to B.

In another section they say that Congress is within its powers to impose

AA: All pay a tax, except those who purchase health insurance.

Now A and AA are functionally equivalent, yet the implication is that they would have accepted AA, when

BB: All pay a tax, except those who grow wheat

is functionally equivalent to the already rejected B and the slippery slope from AA to BB is isomorphic to the slippery slope from A to B.

Does anybody really believe Alito, Scalia and Thomas really would have accepted AA?


Rattus Norvegicus said...

In other news, our favorite whipping boyz have this to say about the decision. But please, consider the source....

J Bowers said...

"our favorite whipping boyz have this to say about the decision."

Sweet :D Could someone put their dummies back in their prams, please?

J Bowers said...

Arizona Immigration, EPA, Healthcare.

Obama 3 - 0 Romney

Martin Vermeer said...

Anonymous MO, I think it is about a reasonable relationship between the penalty/tax, and the damage that non-compliance/undesired behavior would cause to the rest of society.

If someone doesn't get health insurance, he may end up in the emergency ward on the tax payers' expense. Making him pay for that in tax seems reasonable (if the level of the tax is not evidently punitive). I cannot imagine any such situation for not growing wheat.

Rattus Norvegicus said...

Or eating broccoli!

dhogaza said...

Brian - "Hank - there's been some speculation that the Endangered Species Act is vulnerable to a Commerce Clause challenge. Had they said that ACA was a constitutional use of Commerce Clause, that would've saved the ESA. This "inactivity" ruling doesn't directly threaten the ESA, but it does leave the question open."

On the flip side, if the ACA had been deemed unconstitutional because of the CC, some conservative organizations had previously crowed that they *would* use such a ruling to challenge the ESA.

And some believe that five justices would greet such a suit with wide-open arms, with the outright overturning of the law being a possible outcome.

Now things are a lot more fuzzy as to whether or not there will be a frontal assault on the ESA, IMO.

Hank Roberts said...

Brian said...

dhogaza - if it hadn't been for the tax issue, then ACA would've been struck down (or at least the mandate would've been). There's no tax issue in the ESA.

OTOH,a Commerce Clause challenge to the ESA would have to be on a case-by-case basis for each species, not a facial challenge to the whole law. I think.

Anonymous said...

Hank: Thanks. I wasn't familiar with the context.

Martin: Do you think Justices Alito, Scalia and Thompson would have found the equivalent tax-and-credit version of the mandate constitutional?


Anonymous said...

I meant Clarence Thomas, not the long-dead Smith Thompson.

I think the dissent is being disingenuous in implying that they would have accepted the tax-and-credit version of the individual mandate.

I also think Team Obama got a no-call on an obvious hold from Head Referee Roberts.

Martin Vermeer said...

MO: you seem to believe the probable answer is "no". I am not familiar with these judges' history, but let me give a devil's advocate argument for "yes". It is true that A to B is isomorphic to AA to BB. But the unacceptability of B is due to applying coercion -- with the implication of criminalization, or at least censure -- in response to an activity that decent, socially responsible citizens could engage in without even giving it a second thought. It is this 'badness' that makes the slippery slope ending in B 'bad'.

BB on the other hand would perhaps be a weird thing to do for a rational legislator, but it's not 'bad' in that same way. People are paying taxes for all kinds of activities that are not even socially frowned upon, like earning money :-)

Anonymous said...

Martin: The dissent makes the case for 'yes' much as you have, and in some depth. It is worth reading.

I still suspect the answer is 'no' because after acknowledging that Scalia's broccoli argument is specious, and apparently acknowledging that the government has the authority to solve the health care problem, the dissent still ends up ridiculing the notion in the same paragraph.

And “a vegetable-purchase mandate” (or a car-purchase mandate) is not “likely to have a substantial effect on the health-care costs” borne by other Americans. Ante, at 29. Those differences make a very good argument by the dissent’s own lights, since they show that the failure to purchase health insurance, unlike the failure to purchase cars or broccoli, creates a national, social-welfare problem that is (in the dissent’s view) included among the unenumerated “problems” that the Constitution authorizes the Federal Government to solve. But those differences do not show that the failure to enter the health-insurance market, unlike the failure to buy cars and broccoli, is an activity that Congress can “regulate.” (Of course one day the failure of some of the public to purchase American cars may endanger the existence of domestic automobile manufacturers; or the failure of some to eat broccoli may be found to deprive them of a newly discovered cancer fighting chemical which only that food contains, producing health-care costs that are a burden on the rest of us—in which case, under the theory of JUSTICE GINSBURG’s dissent, moving against those inactivities will also come within the Federal Government’s unenumerated problem solving powers.)


Martin Vermeer said...

Hmm, I don't see the ridicule. I see a sense of humor, unusual in a legal document perhaps, and exploring the logical consequences of an argument that I remember with some fondness from my sci-fi reading days :-)

dhogaza said...

Hank ... interestingly, Wickard v. Filburn has been used to uphold the federal government's pursuit those who grow medical marijuana legally under their state's laws.

"Gonzales v. Raich is the case that gives pro-mandate advocates their best hope. In that case, a 6-3 majority including Justices Stevens, Kennedy, Souter, Ginsburg, Breyer, and Scalia, ruled that Angel Raich violated federal law when she grew marijuana in her California home for medical use. (Medical marijuana is legal in California, and Raich’s physician stated that it was medically necessary in Raich’s case to alleviate excruciating pain.)

This case was quite similar, in the Court’s eyes, to Wickard. The Court noted a “parallel concern making it appropriate to include marijuana grown for home consumption in the [Controlled Substances Act] is the likelihood that the high demand in the interstate market will draw such marijuana into that market.”"

Brian said...

So for home grown marijuana, Commerce Clause was triggered by the possibility that it might affect the market. The near certainty that every single individual will participate in the health market doesn't matter though.

Hank Roberts said...

I'm beginning to hear mention in radio shows that the Roberts (no relation) decision may well give the anti-government people a powerful tool by overturning the historical precedent on the Commerce Clause -- at least for the future, and perhaps to change existing law.