Monday, July 9, 2012

The Supremes Perform "Obamacare"

Chief Justice John Roberts

Justice Ruth Bader Ginsburg

And what a performance it was! Roberts versus Ginsburg plus Kagan, Sotomayor, & Breyer versus the Three Amigos plus Kennedy! 

Not being much of a Supreme Court expert, as an attorney I still feel the urge to jump in with my views on the Health Care (Obamacare) decision, National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012). You can find it here. At least I have read it, which is more than can be said for many pontificators especially those who get their talking points from Fox News or silly little bites of cuteness on Facebook. I’ve even skimmed through the Act myself. But as a federal attorney, I’m used to that sort of thing.

First of all, it is a very complex and interesting alignment of Justices explaining, perhaps, why some of the initial reports were confused on the mandate being upheld. Chief Justice Roberts wrote the majority opinion sort of on his own. He was joined by Justices Breyer and Kagan and in a Concurrence from Justices Ginsburg with Justice Sotomayor upholding the individual mandate, specifically; the penalty for not purchasing insurance, under Congress’s general taxing authority. The anonymously written dissent of Kennedy, Scalia, Thomas, and Alito, joined with the Chief Justice in striking down the individual mandate under the Commerce Clause, but as it was upheld by five Justices under the taxing authority, the mandate survives. The expansion of Medicaid was defeated for complexities I won’t go into. Justice Thomas wrote his own little two-page dissent reiterating his view that the Commerce Clause is being interpreted too broadly in modern times.

It is most interesting that Chief Justice Roberts created a majority to uphold Obamacare at least on Congress’s taxing authority. Contrary to the partisan rhetoric from the crowd on the right, the whole complex concept of Health Care Reform in the Act is not considered a tax. Roberts is very clear that it is only the penalty for not purchasing health insurance that is a tax as it is administered through the IRS as a penalty on individual income tax. The mandate itself is not a tax, only the penalty for not complying. If you already have health insurance like all those who work for the great and mighty federal contractors like those President Eisenhower warned us about, there is no need to worry about a tax.

It is the fact that Roberts created a majority to uphold the Act that is most interesting. There are reports that he switched his position [h/t Bentley!]. It may be, and this is pure speculation on my part, that he is happy to create non-traditional coalitions among the Justices rather than the partisan four conservatives against four liberals with Kennedy being the swing vote. It was an interesting coalition on the Arizona Immigration law just like on Obamacare.. I wonder if the Chief Justice might even have had a meeting with Justice Kennedy to trade some votes. Any meeting with Scalia, Thomas, and Alito would have been much colder. And maybe Roberts was just trying to make up for blowing the President’s Oath of Office from the Constitution in his First Inaugural.

Back to the decision itself, there is confirmation for my proposition that you can mine the Founders to support whatever conclusion you want to draw. Both Roberts and Ginsburg do it. Roberts even calls on the famous quip of Benjamin Franklin that nothing is certain than death and taxes* missing the irony that so many who don’t have health insurance may have the certainty of death much more forcefully than those who have health insurance coverage. It would be nice, though, if we could all forestall the Grim Reaper a little by being able to engage in the market of health insurance to promote good health and address potential physical calamity that could happen to any one of us, at any moment.

Roberts’s opinion with regard to the Commerce Clause reads like he has Ginsburg on his tail as he keeps trying to dismiss her in footnotes. She does the same with him in direct language as a concurrence on the taxing authority and disputing the Chief Justice’s interpretation of the Commerce Clause. I just find her to make more sense. Not only is she able to find a sure foundation for her judicial philosophy in the Founders, she recognizes that U.S. History, including Constitutional History did not end with the administration of John Adams as Justice Scalia would have us believe. She also dispenses with the broccoli argument.

The broccoli thing has become a touchstone for the Right. The idea being that if the government can make us buy health insurance to keep us healthy, then there is no limit which could include a mandate to purchase broccoli to make us healthy. My argument is that any broccoli mandate is unlikely because it would be a silly exercise. Any such mandate would have to be enacted by the will of the people through their elected representatives in Congress. Obamacare made it just barely after all. (Well, maybe I should withdraw that argument as Congress does a lot of silly things some even worse than Obamacare or broccoli mandates.)

Justice Ginsburg helps me out with much better logic. She says that the purchase of broccoli does not have a direct impact on improved health unlike the direct impact of having health insurance does on the interstate health care market as all need medical care at some point in time. She says that the mere purchase of broccoli does not meet the direct purpose of good health because there is no guarantee that the purchase of broccoli will be put to that purpose. The purchase does not guarantee that the purchase will eat it. They could also use it in a counterproductive way by deep frying instead of steaming. In my mind, maybe the extreme case is that the government could mandate force-feeding, but so far it is only southern states who generally force physical bodily intrusion on women with regard to reproductive activities. (Dare I say, “vaginal probes?”)

Ginsburg also argues that it is the Chief Justice who is creating a new standard of law that really isn’t that new as it goes back to the Court’s overly technical decisions up through the first part of the 20th Century when the Court limited the Commerce Clause to the benefit of the moneyed interests. The Court eventually broadened its interpretation to allow for a more expansive reading of the Commerce Clause to deal with the reality and complexities of a more robust and modern economy. Ginsburg references the Court’s eventual approval of much of the New Deal legislation. I suppose some Conservatives think the Court, certainly FDR, and maybe the progress of society in general were all in serious error and they would be perfectly happy to return to those idealized days before modern economies. But is it possible to go back to that society when women didn’t vote, child labor was the norm, and Jim Crow still ruled? Maybe it could work philosophically, but not in any historical or present day reality. I wouldn’t be so concerned except that it seems to me that the same conservative/libertarian philosophy was opposed to the Civil Rights Act of 1964 in my lifetime.

The Three Amigos plus Kennedy in their anonymously authored dissent argued well – so it was probably with heavy input from Kennedy. We can’t forget that he is a conservative at heart. I could never be a judge as I tend to be swayed by the last argument I hear. They were making a lot of sense until they revealed themselves as stuck on “states’ rights” doctrine sparsely clothed in the terms of constitutional federalism. While I said I wouldn’t go into the mire of the Medicare portion of the decision, it was there that I figured out why Ginsburg was saying what she did to counter these guys. They argued that the states would have a heavy tax burden to pay if they dropped out of Medicare and had to subsidize the rest of the states staying in the program. The problem with that, as Ginsburg noted, is that states don’t pay taxes -- people do.

The essence of their argument, and a good expression of the conservative view of structural federalism being more important than individual freedoms (don’t forget the historical facts of constitutional slavery and segregation!), is summarized here:

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it. Joint Dissent at 65.
You can make your own judgment and choices. For me, I much prefer the Bill of Rights and Civil War Amendments over structural federalism. I think I’m with Brother Joseph on this one. The rest of you can have Romney and the modern Republican Party.

*According to this website, the quote Roberts cites was originally in French:
“Notre constitution nouvelle est actuellement établie, tout paraît nous promettre qu’elle sera durable; mais, dans ce monde, il n’y a rien d’assure que la mort et les impôts.” 
And it was somewhat of a repeated theme with Franklin that may not have even originated with him - making it somewhat of an 18th Century cliché rather than an expression of the profound wisdom of the Founders.


  1. Mandates resemble dictatorship. When we force people to do something we are seeking self serving principles....choice is the foundation of the constitution. Take it away and all else crumbles....signs of the times!

    1. I respectfully disagree, Mr. or Ms. Anonymous. My reasons are adequately set out throughout this blog.


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