Obamascare and the Supreme Court

[RightField]

What do you think will happen? Do you understand the case and it's ramifications? What's your preference? Are you amongst the majority in the country who want to get rid of it or are you looking forward to the benefits it will provide you? This is just about the case, not about discovering what's really in the legislation (we're still finding out).

 

[RightField]

From the Wall Street Journal today. It's an interesting article on their perspectives. It's not direct nor concise, but does explore some of the emotions around the case.

The Ineffective Greenhouse A liberal legal legend's ludicrous ObamaCare defense..
By JAMES TARANTO
Wall Street Journal
March 23, 2012

Linda Greenhouse is something of an institution of legal journalism. She became the New York Times's Supreme Court correspondent in 1978. Thirty years later, when she accepted an early-retirement package from the financially stressed newspaper, Legal Times reported that a 7-2 majority of the justices threw a going-away party for her, "complete with cheese, desserts, and prosecco wine."

Greenhouse still writes for the Times, only she's moved to the editorial page's "Opinionator" blog. Last night she weighed in with a revealing post about the ObamaCare cases, in which the high court hears oral arguments next Monday through Wednesday and is expected to issue a ruling at the end of its term in early summer. She opens with a close examination of her own venerable navel:

Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer's thumb on the scale. This rule presents a challenge when one side of a controversy obviously lacks merit. But mainstream journalism has learned to navigate those challenges, choosing evolution over "intelligent design," for example, and treating climate change naysayers as cranks.

Court cases are trickier. It's one thing to engage in prediction that flows from analysis: which side is most likely to win? It's quite another to let readers in on the fact that one side's argument is so manifestly weak that it doesn't deserve to win.

The way to do what Greenhouse wishes to do--let readers in on the "fact" that one side in this litigation "doesn't deserve to win"--is by doing what Greenhouse has done, namely become an opinion writer. A judgment about which side deserves to win a legal case is not a fact but an opinion. Even when it is authoritative, as it will be in this case when a majority of the justices hand down a ruling, it is still an opinion, often accompanied by differing opinions known as dissents and concurrences.

Greenhouse is not a judge, so her opinions are no more authoritative than those of your humble columnist. What's more, on the merits, her opinion on the ObamaCare case is shallow, disingenuous and silly:

I want to unpack the challengers' Commerce Clause argument for what it is: just words.

Basically just one word, in fact: "unprecedented." Did you know that the individual mandate is unprecedented? You will after you read the brief filed by the redoubtable Paul D. Clement, the former solicitor general, on behalf of the 26 states that filed suit to challenge the law. The brief uses the word "unprecedented" 10 times, by my count--I probably missed some--not counting such other formulations of the same thought as "novel" and "first ever." O.K., I get it. I'll even accept it as true: granted that passage of the Affordable Care Act ended decades of deadlock over how to reform the developed world's most irrational health care system. It should have happened much earlier.

Unprecedented is a description, not an analysis. What's unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement. . . .

The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. . . . So there must be some problem with the Affordable Care Act other than "never before."
Although we've elided some of Greenhouse's verbiage, this is a fair representation of her argument, if one can call it that. It boils down to repeatedly sneering at the word "unprecedented" as if the litigants' claim were no more than that ObamaCare's individual mandate is a new development in politics or policy. She simply ignores the legal significance of ObamaCare's lack of precedent.

That significance is great. "The command of precedent has deep roots in Anglo-American legal tradition," one Supreme Court observer has noted. "Lawyers and judges often use the Latin phrase 'stare decisis,' meaning 'to stand by things decided.' " The court has never decided the question posed by ObamaCare: whether the Commerce Clause gives Congress the power to require that individuals purchase a financial instrument from a private company. Since no existing precedent authorizes the individual mandate, the court can strike down the ObamaCare mandate without offending stare decisis.

The Supreme Court observer we quoted in the preceding paragraph was none other than Linda Greenhouse, writing in the Times in 1991. Unless she has forgotten such an elemental legal principle, her mockery of the litigants for noting that ObamaCare is unprecedented is not merely ignorant but intellectually dishonest. She is trying to mislead her readers, and possibly herself, into thinking that the case against ObamaCare is without merit.

To say that the case is not without merit is not to say that it will prevail. Greenhouse writes that she expects the court to uphold ObamaCare "by a wide margin," although she acknowledges that her prediction isn't guaranteed to pan out. Our sense from our own private conversations is that a considerable number of elite conservative lawyers agree with Greenhouse about the likely outcome of the case (if not the merits). It is quite possible that they, and she, will turn out to be right, but we are not at all convinced.

For one thing, the justices who will decide the case surely understand that they will be making new law if they uphold the individual mandate as surely as if they strike it down. Greenhouse unwittingly acknowledges this point even as she tries to deny it:

If [as the court held in Gonzales v. Raich in 2005] the commerce power extends to backyard marijuana growing (as it did to backyard wheat growing in the famous New Deal case of Wickard v. Filburn), the notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.

This is the slippery slope as an affirmative argument. Undeniably the court has--wrongly, in the view of some observers, including this columnist--interpreted the Commerce Clause as granting vast powers to Congress. In Greenhouse's mind, there is no distinction between vast and unlimited. As far as she's concerned, the Congress has the authority to "basically do whatever it wants." Is the Roberts court really prepared to endorse such a radical principle? Color us skeptical.

One reason for our skepticism is political. Wickard was one of a series of New Deal-era cases in which the Supreme Court, under pressure from a popular president at a time of national crisis, greatly (though not infinitely) expanded Congress's power under the Commerce Clause. Raich, which currently defines the outer bound of congressional commerce power, involved the enforcement of federal drug laws, which have wide (if somewhat dwindling) popular support.

By contrast, ObamaCare is widely hated. Greenhouse cites a recent Kaiser Family Foundation survey finding that a majority of Americans would like to see the court overturn the individual mandate. A Gallup poll put the figure at 72%. One theory behind the speculation that the justices will uphold ObamaCare is that they wish to avoid the damage to their authority that might come from a "partisan" ruling à la Bush v. Gore. (This assumes, correctly in our view, that a ruling against ObamaCare will be 5-4, with all Democratic appointees in dissent.)

But if the court is looking to protect its authority among the general public as opposed to within the liberal elite, it would make sense to strike down a law that has always been unpopular. (As legal scholar Daniel Conkle notes, the court has one other alternative: to decide that the Anti-Injunction Act of 1793 renders the constitutional question not yet ripe for litigation.)

There is an assumption among the conservative elite that the court, and in particular Justice Anthony Kennedy, is especially attuned to liberal elite sensitivities. Dahlia Lithwick, Slate's younger, edgier version of Linda Greenhouse, explained and disputed it back in 2005:

"The Greenhouse Effect" is the name of a phenomenon popularized by D.C. Appeals Court Judge Laurence Silberman referring to federal judges whose rulings are guided solely by their need for adulation from legal reporters such as Linda Greenhouse of the New York Times.The idea is that once confirmed, justices become desperate to be invited to the right cocktail parties and conform their views to those of the liberal intelligentsia. Robert Bork recently told the New York Times, "It's hard to pick the right people in the sense of those who won't change, because there aren't that many of them. . . . So you tend to get people who are wishy-washy, or who are unknown, and those people tend to drift to the left in response to elite opinion." Similarly, Max Boot argues that Anthony Kennedy "is no Warren or Brennan, to be sure, but whenever he has a chance to show the cognoscenti that he's a sensitive guy--not like that meany Scalia--Justice Kennedy will grab at it."
The problem with this theory is that it accepts a great conservative fiction: that there is vast, hegemonic liberal control over the media and academia. This may have been somewhat true once, but it's patently untrue today.
At least with respect to the media, we agree with the thrust of that last sentence, though we'd reverse two of the words: This may have been patently true once, but it's somewhat untrue today. Still, it is manifestly true that the liberal intelligentsia does not have as much power as it used to.

To judge by Linda Greenhouse's inane post--in which, as National Review's Ed Whelan notes, she actually cites Nancy Pelosi as an authority on constitutional law!--it doesn't have much intellectual power either.

Spring Fling
Last November PhysOrg.com reported from the frontiers of science on a fascinating study by Emory University psychobiologists:

A lot of people who have gone to the zoo have become the targets of feces thrown by apes or monkeys, and left no doubt wondering about the so-called intellectual capacity of a beast that would resort to such foul play. Now however, researchers studying such behavior have come to the conclusion that throwing feces . . . is actually a sign of high ordered behavior.
Higher primate species can also fling their feces, as the New York Post reports:

Police are seeking at least two Occupy Wall Street demonstrators suspected of dumping buckets full of urine and feces outside JP Morgan Chase and inside an ATM vestibule.

Jordan Brooks Amos, 25, of Philadelphia, was arrested on March 16 after he was caught on a surveillance camera dumping what police believe to be the protesters' own waste, a source said. He is charged with unlawful possession of noxious matter, aggravated unlicensed operation of a motor vehicle and possession of a weapon--a stun gun found inside his car.

In the tape, Amos and at least two accomplices are seen carrying a large bucket full of urine and feces and disposing of it down a staircase near the corner of Nassau and Cedar streets, just outside JP Morgan Chase.
About 20 minutes later, one of the men walks into a Chase bank vestibule at 155 Water St. and dumps the waste right by an ATM machine.

So maybe we were too hard on the "Occupy" guys when we suggested yesterday that they are stupid.

 

[Sean]

Should being made to buy ID to vote be sent to the SCOTUS too?

 

[mercury14]

What do you think will happen? Do you understand the case and it's ramifications? What's your preference? Are you amongst the majority in the country who want to get rid of it or are you looking forward to the benefits it will provide you? This is just about the case, not about discovering what's really in the legislation (we're still finding out).

I'm looking forward to the benefits it will give my patients. The status quo was unacceptable and while the ACA is far from perfect, it's a step in the right direction and will help millions.

 

[RobDownSouth]

I'm looking forward to the benefits it will give my patients. The status quo was unacceptable and while the ACA is far from perfect, it's a step in the right direction and will help millions.

Agreed. The lack of a severability clause in the legislation (a notion promoted initially by the Heritage Org, of all folks!) means that it is very high stakes...if it is upheld, America benefits. If it is overturned, the likely visceral reaction of the American middle class as they realize that we're being forced to return to the "bad old days" of pre-existing condition limitations will cause a voter tsunami that will leave the already-marginalized bitter-old-coot demographic (RightField, AJ, Vetty, Miles, etc) wondering what the hell happened.

 

[mercury14]

Agreed. The lack of a severability clause in the legislation (a notion promoted initially by the Heritage Org, of all folks!) means that it is very high stakes...if it is upheld, America benefits. If it is overturned, the likely visceral reaction of the American middle class as they realize that we're being forced to return to the "bad old days" of pre-existing condition limitations will cause a voter tsunami that will leave the already-marginalized bitter-old-coot demographic (RightField, AJ, Vetty, Miles, etc) wondering what the hell happened.

Those character like to talk about how spending on gas crowds out the rest of the economy. How come they don't ever talk about how spending out-of-pocket on medical bills crowds out the economy?

 

[Drixxx]

What do you think will happen? Do you understand the case and it's ramifications? What's your preference? Are you amongst the majority in the country who want to get rid of it or are you looking forward to the benefits it will provide you? This is just about the case, not about discovering what's really in the legislation (we're still finding out).

Really now? Please link this up because this sounds like pure bullshit.

 

[mercury14]

Really now? Please link this up because this sounds like pure bullshit.

Polls only show that a majority of Americans want to repeal the reforms if you include liberals who prefer it repealed and replaced with something much more extensive. I'm sure there's an outlier poll result somewhere that RF can cherry pick for us though.

 

[unregistered]

 

[mercury14]

I hope it fails because I believe it to be unconstitutional and I believe it will bankrupt the country.

Why do you believe that having 35-40 million uninsured Americans, a figure which is growing every year, will not bankrupt the country?

 

[RobDownSouth]

Why do you believe that having 35-40 million uninsured Americans, a figure which is growing every year, will not bankrupt the country?

He can more easily pretend they don't exist. It's the Republican Way.

 

[unregistered]

 

[Drixxx]

Polls only show that a majority of Americans want to repeal the reforms if you include liberals who prefer it repealed and replaced with something much more extensive. I'm sure there's an outlier poll result somewhere that RF can cherry pick for us though.

I knew this. I just wanted him to back up his bullshit. It's like saying most men are against masturbation when the question was "would you rather masturbate or fuck Britney Spears".

 

[miles]

This week the OMB said it would cost the country 800,000 jobs. This comes after they disclosed it's going to be twice as expensive as we were originally told.

I'm sure there are more surprises on the horizon.

 

[mercury14]

This week the OMB said it would cost the country 800,000 jobs. This comes after they disclosed it's going to be twice as expensive as we were originally told.

I'm sure there are more surprises on the horizon.

No they didn't. You're misrepresenting what they said and leaving out the rest of their comments since they don't back your point.

 

[unregistered]

 

[miles]

They did score it as damned near twice as expensive as the President stated, 1.75 Trillion as opposed to his 900 billion over ten years.

He never claimed to be a mathematician....just everything else.

 

[Colonel Hogan]

My "go to" legal blog took issue with Greenhouse's argument as well. Here is its take. Opponents to the mandate should take note of the discussion of "as applied" constitutional challenges versus "facial" constitutional challenges. Given the harsh realities of the court's makeup and the government's general success at compromising individual liberty for the greater public good, I'm thinking an "as applied" unconstitutional ruling on the individual mandate is the best opponents can hope for, which leaves the door open to further legislative tinkering by the next Congress and beyond.

"As I’ve argued several times before, the Supreme Court’s conservative majority will not uphold the individual mandate if the mandate’s defenders are unable to come up with a limiting principle that will prevent a decision upholding the law from eviscerating any remaining limits on Congress’s power to regulate interstate commerce. (Which is not to say that the majority will necessarily uphold the law if such a limiting principle is articulated).

"I leave it to those who have studied the briefs in detail to discuss whether the government and its amici have come up with such a principle. But with friends like New York Times columnist Linda Greenhouse, they don’t need enemies. Greenhouse:

If the commerce power extends to backyard marijuana growing (as it did to backyard wheat growing in the famous New Deal case of Wickard v. Filburn), the notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.

"Greenhouse’s reasoning is sloppy. First, Wickard v. Filburn didn’t apply to “backyard” wheat growing, the farm in question was a large commercial operation, and the wheat in question was fed to the farm’s cattle, who were sold on the interstate market. But more important, Wickard and Raich were both as-applied challenges, while the challenge to the individual mandate is a facial challenge.

"So what Greenhouse is arguing is that because the Supreme Court has in the past refused to countenance as-applied challenges that sought to exempt local activity from a concededly broader scheme of the regulation of interstate commerce, facial challenges to laws that on the grounds they don’t regulate interstate commerce to begin with are also out of bounds. In other words, Congress can do whatever it wants, at least so long as it identifies an important economic “sector” to which its regulation pertains.

"In the health care area, can Congress in fact require everyone to eat broccoli? Exercise twice a day in government-run health care facilities, with a government-mandated exercise program? Prohibit people from picking wild blueberries for their own consumption? According to Greenhouse, Congress can do any of those things, even though there is no commerce, much less interstate commerce, involved, so long as it can argue that by doing so it’s really trying to regulate the “health care sector.”

"Maybe it’s a good idea to give Congress the power to regulate whatever and however it wants, though I really doubt it. More to the point, I’m quite sure that the conservative majority is not willing to endorse the proposition that the commerce power is really the Congress-Can-Do-Whatever-it-Wants Power.

"Bonus foolishness from Greenhouse: She touts Nancy Pelosi’s infamous “Are you serious?” response to questions about the ACA’s constitutional basis as evidence that the ACA is in fact constitutional, as opposed to what is really is, evidence that Pelosi and her allies treated the idea that the health care law needed to be within Congress’s enumerated powers with thinly-veiled contempt. As I discussed here (with further examples of such contempt), this in turn is a very good reason for the Court not to defer to Congress’ view of the scope of its commerce power, though of course lack of deference doesn’t dictate the outcome one way or the other.

http://volokh.com/2012/03/23/the-congress-can-do-whatever-it-wants-power/

 

[mercury14]

They did score it as damned near twice as expensive as the President stated, 1.75 Trillion as opposed to his 900 billion over ten years.

Tell me what their deficit impact projection for the plan is.

I'll wait.

 

[RobDownSouth]

My "go to" legal blog took issue with Greenhouse's argument as well. Here is its take. Opponents to the mandate should take note of the discussion of "as applied" constitutional challenges versus "facial" constitutional challenges. Given the harsh realities of the court's makeup and the government's general success at compromising individual liberty for the greater public good, I'm thinking an "as applied" unconstitutional ruling on the individual mandate is the best opponents can hope for, which leaves the door open to further legislative tinkering by the next Congress and beyond.

My understanding was that the law was deliberately written so that it could only be held constitutional in its entirety or unconstitutional. This precludes the conservative activist on the Supreme Court from invalidating portions of the act that are politicially unpopular such as the individual mandate.

 

[NeverEndingMe]

What do you think will happen? Do you understand the case and it's ramifications? What's your preference? Are you amongst the majority in the country who want to get rid of it or are you looking forward to the benefits it will provide you? This is just about the case, not about discovering what's really in the legislation (we're still finding out).

I'm hoping that the Supreme Court has some common sense. obama care is a cluster fuck. no matter how much lipstick you put on that pig, its still a pig.

benefits? I get to pay more to support others. fuck that. become a republican and get a job. fire 1/3 of all government workers, kill their pension system, and cut government pay by 40%.

I'm here to fix America

 

[Colonel Hogan]

My understanding was that the law was deliberately written so that it could only be held constitutional in its entirety or unconstitutional. This precludes the conservative activist on the Supreme Court from invalidating portions of the act that are politicially unpopular such as the individual mandate.

Yeah, I stand corrected. I read right over that part of my own C&P that specifically said this case is a "facial challenge."

So, it's all or nothing. Good catch.

 

[ksmybuttons]

My concern is that it doesn't go far enough to have a significant financial impact. Obama gave into pressure to offer a compromise. It should be single payer for basic health care. You want more, you can always buy more.

Health care will always be two tier. If you can afford it, you will always be able to buy more. However, I am tired of paying insurance premiums to cover those people who choose not to have insurance. When they get health care, they do it in the most expensive way possible, they go to a hospital. Every time a hospital has uncompensated care, they raise the cost of the care for everyone else and my insurance company pays.

Pick a hospital in your community and google how much they write off for uncompensated care. Where I live and we had 1.2 billion in uncompensated care in 2011.

And you wonder why your insurance premiums climb? Rationing is not a bad thing. Preventative care, including birth control, is not a bad thing. What keeps us healthy keeps are health care costs down.

 

[Drixxx]

Single payer is coming. One way or another. Whether this law is upheld or not. Once a couple of states go universal the rest will fall like dominoes.

 

[NeverEndingMe]

My concern is that it doesn't go far enough to have a significant financial impact. Obama gave into pressure to offer a compromise. It should be single payer for basic health care. You want more, you can always buy more.

Health care will always be two tier. If you can afford it, you will always be able to buy more. However, I am tired of paying insurance premiums to cover those people who choose not to have insurance. When they get health care, they do it in the most expensive way possible, they go to a hospital. Every time a hospital has uncompensated care, they raise the cost of the care for everyone else and my insurance company pays.

Pick a hospital in your community and google how much they write off for uncompensated care. Where I live and we had 1.2 billion in uncompensated care in 2011.

And you wonder why your insurance premiums climb? Rationing is not a bad thing. Preventative care, including birth control, is not a bad thing. What keeps us healthy keeps are health care costs down.

and health insurance should be free, right!