Monday, March 26, 2012

I'll Take It To The Supreme Court !!

As almost all of you know, this week will see three days of oral argument on the Constitutionality of provisions of the recently enacted federal law addressing health insurance and elements of health care.

Three days on the Constitutionality of a federal statute is unprecedented.

And if you listen to the oral arguments (the Supreme Court is expediting their release, allowing same-day listening pleasure for the geeks out here) or read the transcript, unprecedented is a word you’ll hear or read a lot.

It is a principle theme in the argument of those challenging the Constitutionality of the Act.

Here are the official issues presented in the case:

Day One: (1) Whether the Patient Protection and Affordable Care Act is beyond Congress’ powers under Article I because it includes a mandate that individuals must obtain health insurance or pay a monetary fine; and (2) Whether the Anti-Injunction Act, 26 U.S.C. §7421(a), bars suits by challengers to the Act.

Day Two: (1) Whether Congress may make federal Medicaid funding contingent upon States providing expanded health care in order to coerce States into accepting conditions that Congress would be otherwise unable to impose directly; and (2) Whether the individual mandate that requires Americans to purchase health insurance, if deemed unconstitutional, may be severed from the rest of
the Patient Protection and Affordable Care Act.

Day Three: Whether the entire Patient Protection and
Affordable Care Act must be invalidated because its mandate requiring individuals to obtain health insurance is non-severable from the remainder of the Act.

In shorter words,
Day One: does the Anti-Injunction Act (which makes a taxpayer wait until a tax has actually been paid before he can bring suit) stop this suit? If it doesn’t, does Congress have the power to make someone buy health insurance?
Day Two: Whether Congress can withhold Medicaid funds unless states provide services required by the Act that Congress can’t order the states to provide. And if the requirement to buy insurance is unconstitutional, does the whole health-insurance law have to be declared unconstitutional, or can they just cut out the requirement and leave the law otherwise intact.
Day Three: More of the same issue of whether you can slice out the insurance requirement without scuttling the law.

Okay, maybe those weren’t fewer words. . . .

So sue me

Anyway, the betting line goes as follows: The Anti-Injunction Act probably won’t preclude this suit; the mandate to buy insurance will be upheld; and

I don’t know what folks are saying about what happens if the mandate is unconstitutional. What happens under the Act, which does not have a “severability” provision (expressly leaving intact the rest of a law if a part is deemed unconstitutional). Everyone agrees the law would be awfully hard to continue to implement if everyone isn’t required to participate.

On the mandate, you can predict this argument

from the challengers: it is unprecedented for Congress to order you to buy something in order to regulate you and what you bought (and otherwise wouldn’t have bought). The mandate doesn’t regulate interstate commerce; it attempts to regulate the absence of interstate commerce. And there is no limiting principle – if Congress can legislate in this area (where the affected persons are doing nothing), Congress can regulate anything – which wouldn’t be consistent with the long-held idea of there being a limit on Congress’ authority that is partially opened by Article I’s enumerated powers.

from the defenders: It isn’t really unprecedented – the Court has upheld many laws that get down into the weeds where people aren’t engaged in interstate commerce. Literally into the weeds – a lady growing reefer for her own use can still be regulated under the Commerce clause, and a guy growing wheat for his own use can still be told to burn his wheat. Plus, somebody whod doesn't buy  health insurance isn't doing nothing -- he's aging, or coughing, or eventually getting sick and dying.   And there is a limiting principle – if it’s truly a type of Commerce that can’t be addressed by a state, but must be addressed nationally as interstate, then it’s within the broad power of the Commerce Clause.

It’s a damned tough argument. The will of the people, through its representatives, enacted a national program to deal with a national problem, and under the Commerce clause can’t achieve its national ends without the mandate. The Court has already decided that the Commerce Clause is a remarkably broad grant of power. And precedent should be respected.

On the other hand, there seem to be no limiting principle, and the social contract will be completely re-written if the Commerce Clause is interpreted to grant unlimited authority over all activity. Housing, transportation, education – even at their most “local,” they affect interstate commerce. And fuck the “eat broccoli” hypothetical – what happens when Congress mandates that each child take a school aptitude test. And that students must attend the college that maximizes their economic potential based on the test. A broad Commerce clause wouldn’t prohibit Congress from doing it.

I know -- sure, it's absurd.  COngress would never do that.

Sure. And an energized electorate faced with some problem – the economic 9/11 – could well fall in love with idea when TV presents it as a solution.

I see the strength of each side’s arguments (which I present badly here). And the precedent is striking in its sweep. That’s why the pundits think the statute’ll be upheld. But since I fear and doubt an unrestricted government, it shouldn’t shock any of you that I’m skeptical of the government’s right to order you to do shit.

Always skeptical.

I say “do shit” so that I lessen any expectation you might have that I remotely know what I’m talking about. . . .


Who Am Us Anyway? said...

For a guy who spent 15 years in a job that required him to read -- or at least skim -- every supremes merits brief in every case granted plenary review, I am pathetically uninformed about this Term. Even by my standards, I am pathetically uninformed.

But I do know enough to know that you did not state the arguments badly. I think "pithy" is the word you were searching for.

So I will come back to this post after I have a chance to listen to the oral args or at least skim the briefs over at the ABA Preview site this weekend.

But without knowing anything beyond your preview of the arguments in this case, I can say one thing about the commerce clause and that is, it was supposed to mean SOMETHING. The founders weren't gods, but when they really focused on something -- and they did really focus on congressional powers -- they brought a lot of IQ and a lot of Purpose to the project. So analytically, it just doesn't fly for me to take a position that says there are -- not just "essentially" but literally -- no meaningful limits on congressional power ...

Lupner said...

Thank you for outlining the basic arguments in a way that makes it easier to understand, for those of us who have trouble understanding all the legal rigamarole.

Would like to add my thumbs-down vote to erasing the limits of congressional power. Can't seem to find the right measure of exclamation to add to that thought, just fill in the blank(s) as you please.

mister muleboy said...

Who -- so you, too, have been cursed. Reading every opinion, skimming merits briefs, combing through transcripts, listening to recordings of arguments -- the pursuits of the mentally ill.

I have the sickness.

I can say one thing about the commerce clause and that is, it was supposed to mean SOMETHING.

It does indeed. But isn't the debate, at least in some small way, between those who believe that the clause: (1) broadly authorizes Congress to address anything that imaginably touches on interstate commerce; versus (2) strictly limits the power of Congress, requiring people actually to engage in interstate commerce before being subject to the yoke of Congress?

And that debate, of course, rings the bell of stare decisis: having concluded in the 30s and early 40s that the Commerce clause was incredibly broad, did we forever abandon the notion of the enumerated powers as limitations, to be viewed in that light.

And I don't actually have to answer how I feel about any of the results -- the divided worldviews are obvious.

Lupner -- I'd like to say that your thumbs up is common (retaining limitation), but I think a large segment of society has bought the idea that the government, if well-run and not manned by evil (the other party), is a benevolent and good means of achieving or doing just about anything.

legal rigamarole:If yesterday's argument proved anything, it's that TVs in the courtroom will either ruin Supreme Court oral arguments, or ruin television producers looking for catchy AND accurate soundbites that don't mislead. The arguments are spoken in an arcane, but living, language -- it's not really English. Even policy debates are really debates about fitting things in to the fabric of decisions and the text of the Constitution and statutes.

mister muleboy said...

As always, I recognize that my blatherings don't quite cut to the nut.

No humour intended.

I learned that my silly example of forcing someone to go to a particular college lacks the colour provided by some states. So I offer these:

The state of Oklahoma, for example, suggests that what Congress has done in adopting the mandate is to treat “a 20-year-old woman in Norman, Oklahoma, engaged in no commerce at all,” as the equivalent for government regulation of “an 18-wheel truck transporting goods on interstate highways.” Missouri’s state attorney general, Chris Koster, argued that, if Congress had power to pass this mandate, it could also have penalized Henry Thoreau for idling away his time at Walden Pond instead of fishing, on the theory that “everyone has to eat.”

This summary appeared on SCOTUSblog, and I commend them for culling the best bits.

mister muleboy said...

To be more serious -- one of the more troubling arguments that I see offered is that Constitutionality should be upheld because of the scope of the problem, and the political inability to craft a different solution.

That argument, carried fully, suggests that if the Constitutional violation affects enough people, it shouldn't be considered a violation. And that if the politicos choose an unconstitutional way to fix a problem because they can't agree on a constitutional solution, the violation should be ignored.

Those arguments are, may I say, bullshit.

The scope argument that isn't, of course, is the one offered by the government -- the scope of the problem is so large that it can't be anything but interstate commerce, and the Constitution was intended to authorize Congress to legislate in such areas.

I'll be quiet now

Who Am Us Anyway? said...

versus (2) strictly limits the power of Congress, requiring people actually to engage in interstate commerce before being subject to the yoke of Congress?

That's right, I think. I think the argument that everything affects interstate commerce such that the clause actually restricts nothing are basically saying, the modern check on congressional power isn't the commerce clause; it's the political process. In other words, yes Congress could require you to purchase broccoli. The commerce clause couldn't stop them -- but the spectre of being thrown out of office in the next election would.

I understand that argument, but since it is akin to saying the clause is surplusage, i find it annoying :-) I also don't have the requisite faith in the wisdom of the electorate.

a ji o ji suno ji said...

well, actually, convention probably demands that I say it's his dad.
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