Revolution From Above

To grasp just how mendacious and incoherent the constitutional argument against the Affordable Care Act is, consider the plaintiffs’ argument today concerning “severability,” that is, whether, if the insurance mandate is struck down, whether the whole Act must be struck down.

The mandate is so intimately tied up in the whole scheme, argued lawyer Paul Clement, that all of the other provisions — community rating, guaranteed issue, the insurance exchanges, risk adjustment, the works — will also have to go.

Now also recall that the supposed argument here is that the mandate exceeds the federal government’s power to regulate “interstate commerce.”  It is not an argument about personal liberty at all: that would be a substantive due process argument, in which the legislature receives enormous deference from the courts.

No one could possibly deny that if the federal government decided to write rules for all insurance companies concerning, say, community rating, guaranteed issue, insurance exchanges, and risk adjustment, that that would constitute regulation of interstate commerce.  That is the quintessential form of regulation of interstate commerce.  And the plaintiffs today have argued that the individual mandate is necessarily bound up with all of these forms of regulations, which is why it cannot be severed.

So here is the conservative argument: something that is necessary for the regulation of interstate commerce is not part of the power to regulate interstate commerce.

This, in short, is a revolution from above.

If the Act falls, it will not be because the Obama Administration did something wrong.  It will not represent a “crisis of liberalism.”  It will not be because the Democratic Party cannot govern.  It will not be cause for any recriminations or hang-wringing.

It will be because five old men have decided that the Constitution does indeed “enact Mr. Herbert Spencer’s Social Statics,” and have decided to force their reactionary views on the rest of the country.

And that is all you need to know.

Comments

  1. David M says

    There are 5 Republicans on the Supreme Court, and they likely will obey their team orders. Stopping Obama or the Democrats from being able to accomplish anything is much more important to the GOP than health care. I have no doubt there would not even be a lawsuit if the same law had been passed with GOP votes and signed by McCain or Romney, as the law would be a win for their team and therefore constitutional.

  2. Steve Crickmore says

    I don’t believe the ideological and reactionary> fault lines on individual mandates are as clear as this. In 2008, running more as a constitutional lecturer, with what he termed “philosophical differences” to senator Clinton, senator Obama dismissed individual mandates repeatably, on the premise that you can’t “force” Americans to buy health insurance with individual mandates, any more than you can mandate “everyone to buy a house”.

  3. Brett Bellmore says

    Obamacare supporters started out by saying we were insane for thinking the Supreme court might strike it down, now have moved on to saying the Supreme court would be insane/unethical to strike it down. Just can’t wrap your heads around the fact that arguments YOU don’t find persuasive can win, can you? Or maybe you’re just indulging in hissy fits.

    “something that is necessary for the regulation of interstate commerce is not part of the power to regulate interstate commerce.”

    Yes, that’s right, “necessary AND proper”. Two separate requirements. Passing a really stupid law that would destroy a whole industry doesn’t magically give you the power to do something you didn’t previously have the power to do, just because you think it’s a convenient way to save the industry from your own law. And never mind that there are more direct ways to accomplish that salvation which don’t require novel extensions of federal power.

    I think the bottom line here is this: Your being persuaded is not the one, true, objective measure of whether an argument is reasonable.

    And, if Obamacare falls, it will be because five old men decided that you can’t manufacture problems yourself, and use them as an excuse for unprecedented power grabs.

    • Katja says

      It’s proper because it is mathematically equivalent to an entirely constitutional taxing scheme (tax everyone an income-based amount above a certain income level, give an equivalent tax credit to everyone who purchases health insurance), thus “consistent with the letter and spirit of the constitution” under McCulloch.

      You are free to believe that it is a “really stupid law”, but “really stupid” is not the same as “unconstitutional”. We’ve had plenty of stupid laws that were perfectly constitutional.

      • Brett Bellmore says

        Being “mathematically equivalent to” something that would have been constitutional isn’t the same as BEING “constitutional”. Congress has to actually have done the constitutional thing. They have to, for instance, actually have passed a tax, instead of calling it a penalty in the legislation.

        Otherwise, the next time they enact a penalty, and call it a tax, the Court will be perfectly entitled to notice that it’s “mathematically equivalent to” something they’re not entitled to do.

        • Katja says

          You’re not following me here. Under McCulloch, the requirement is that for a provision to be proper under the Necessary and Proper clause, it only has to be “consistent with the letter and spirit of the constitution”.

          If the Necessary and Proper Clause only allowed what the other enumerated powers already allowed (rather than expanding them), it would be superfluous; and every court since the Marshall Court has followed the expansionist interpretation, including hardcore originalists such as Scalia and Thomas. Being constitutional for other reasons has never been a requirement for the Necessary and Proper Clause.

          The whole point of the Necessary and Proper Clause, thus, is to allow for laws to be constitutional without being constitutional under the enumerated powers; and if a provision is equivalent to a constitutional exercise of Congress’s taxing power, then it can hardly not be “consistent with the letter and spirit of the constitution”; in fact, it would be difficult to hew more closely to the McCulloch requirement.

          As to your claim that “[o]therwise, the next time they enact a penalty, and call it a tax, the Court will be perfectly entitled to notice that it’s “mathematically equivalent to” something they’re not entitled to do”, there are two responses.

          First of all, there is an argument that Congress can already do that. I.e., if it walks like a tax, swims like a tax, and quacks like a tax, it is a tax, no matter whether Congress calls it a tax, a penalty, a government revenue enhancement, or a frobozzification (much of the Supreme Court oral argument actually revolved around that discussion, and it was not enough to the justices that it was called a penalty).

          We can’t do that here, because the penalty considered in isolation may not be a tax. My point is that it does not have to be, it only has to be “consistent with the letter and spirit of the constitution”, and we meet that requirement by showing that it’s equivalent to a constitutional taxing scheme.

          Second, the argument I outlined requires the Necessary and Proper Clause. It does not apply to any legislation, but only auxiliary legislation that is necessary to carry other legislation into force that is itself constitutional without the Necessary and Proper Clause [1].

          [1] To be precise, the Necessary and Proper Clause can be applied recursively, but those cases are very rare.

          • says

            In theory, at least, the constitution is supposed to protect people from unjust treatment by their government. If the individual mandate is unconstitutional, then it should follow logically that a slightly-differently-worded law that has precisely the same effect should be unconstitutional as well. Yet everyone thus far appears to have agreed that a tax credit for purchasing insurance (or a surtax for not purchasing it) would be constitutional, even though that and the horrific mandate have lead to precisely the same result for citizen’s wallets and health-insurance status.

            So all I can think is that the argument here is coming from someone who has also said that it’s just fine to execute a known-to-be-innocent person as long as they haven’t proven any formal flaws in their trial.

        • J. Michael Neal says

          If you’ve really reached the point where your argument is that two things that are identical have differing constitutional statuses, then you’ve reached the point of intellectual bankruptcy.

          • Ebenezer Scrooge says

            ‘Fraid not. You are assuming that the Constitution should be interpreted in a consequential fashion. But a lot of law is deontological, and a lot of lawyering consists of deontological engineering. Let me give you an example from Leo Katz. Let’s say that you and your adversary are going to audition for a play tomorrow afternoon. One of you will get the role, and you want it badly. You have a stash of incriminating photos of your adversary cavorting with consenting organisms. Can you legally tell your adversary that you will mail the stash to your adversary’s squeeze if your adversary shows up for the audition? Nope, that’s blackmail. Can you tell your adversary that you have mailed the stash, and it will show up in squeeze’s mailbox around the time of the audition? Yes. That’s not blackmail. Are the two plans of action identical, from a consequential pov? Yep. But the definition of the crime of blackmail is not consequential; it draws a deontological moral distinction between threatening a sleazy-but-barely-legal act and providing information concerning such an act already done.

            Business lawyers love to tell clients that they cannot do what they want to do, but can do something functionally identical. This makes clients very happy, for two reasons: 1.) the client is a consequentialist, so doesn’t care about the different means to the same end; and 2.) the client feels that the lawyers is adding value, not merely obstructing.

          • J. Michael Neal says

            That example does *not* involve identical things at all. The first is an attempt to manipulate the behavior of your rival through threats. The second involves simply punishing the person for being your rival without any ability to influence their behavior through a threat, because you’ve already carried out the threat. The second, as unrealistically written, does offer the rival the opportunity to break the law, by interfering with the mail, to try to avoid it, but when such avoidance requires illegal behavior, it changes the game; the scenario as written is unrealistic, since you don’t get to pick when the mail is delivered and, at least based upon the arrival of my mail, can’t even really predict the timing.

            We can debate whether or not the second is a more morally offensive thing to do and whether or not it should be legal, but that doesn’t mean that they are the same thing.

          • Ebenezer Scrooge says

            Of course they’re not the same thing. They are deontologically very different. But the consequences are exactly the same: you have used your adversary’s fear of revelation to get the job.

            Taxes and mandated insurance premiums are consequentially the same thing. But they are deontologically different, at least in Tony the K’s mind. This is normal legal reasoning. Where I depart from Kennedy is that I can’t see anything unconstitutional with mandated insurance premiums.

          • James Wimberley says

            No, Ebenezer, the consequences are not the same. In the ex-post case the girlfriend gets the photos and your rival’s love-life is ruined. His chances of getting the job are reduced by distraction, but not to zero. In the ex-ante blackmail case, there are four scenarios to consider: he gives in and you don’t mail the photos; he refuses and you mail the photos; he refuses and you don’t mail the photos (no point); he pretends to go along and shops you to the police. Interestingly enough, the expected negative value to his love life averaged across the four scenarios is lower than in the first case. However, your rival has also been threatened; a bad experience, independently of his love-life.
            What is true is that you can’t make a strong consequentialist argument for saying that blackmail is worse than spite in this single artificial case (cf. ticking bombs). There is such an argument in the realistic repeated case. Blackmail is a far more effective form of extortion than spite, and much more dangerous if left unchecked.

      • Maynard Handley says

        Things that are supposedly “mathematically equal” are not so in the real world.

        The great advantage to the insurance industry of the travesty that is the ACA is that it retains the current system of weak individuals having to deal, one on one, with powerful insurance companies. “Mathematically equivalent” variants that make it a whole lot more obvious what is going on — that it make it a whole lot clearer that I am paying taxes to the US government and the US government is handing over money to the insurance companies — give rise to pressure that a strong party, the US government, negotiate on my behalf against the insurance companies. etc etc etc

        If these “mathematically equivalent” schemes were in fact equivalent, we would have had them instead — heck, why not go with the “mathematically superior” scheme of getting rid of the insurance company middleman altogether?

        • Sean says

          I believe that what would be “mathematically equivalent” is not a single-payer system (which is what I think you’re describing), but a tax credit scheme, where the government says, “Anyone who has purchased private insurance receives a tax deduction of [such-and-such amount equivalent to the current penalty],” and no one disputes that that would be perfectly legal. And yet, that would do the same thing as the individual mandate, which is incentivize the public to give their money to a private corporation.

    • Byomtov says

      Just can’t wrap your heads around the fact that arguments YOU don’t find persuasive can win, can you?

      Correct. In this case I can’t. I suppose my problem is that, despite all, I foolishly thought the conservatives on the court had some shred of integrity. We’ll see.

      • Dan Staley says

        I foolishly thought the conservatives on the court had some shred of integrity. We’ll see.

        This is the key, isn’t it? Will it be enough for widespread change? And will the rich fleeing to more hospitable shores change anything in our “flat” world?

      • Brett Bellmore says

        I expect you foolishly think “integrity”=”agreeing with you”. And that is foolish, it not only causes you to think people with other opinions are knaves, it causes you to overlook knaves who know what to say around you.

        I doubt that one side on the Supreme court has appreciably less integrity than the other. Neither side, of course, has all that much integrity; The prospect of an honest man or woman on the Court would be terrifying to our political class. The way they do differ, of course, is in beginning from different premises. Starting with different premises as to what the proper role of a judge is.

        • Byomtov says

          No, Brett, I don’t think those who disagree with me are knaves. To cite one example, I don’t think you are a knave, though we usually disagree sharply.

  4. Ebenezer Scrooge says

    I can’t figure out what Jonathan is getting at.

    Is he arguing that the mandate must be Constitutional? I’m with it. The mandate is about health care, or perhaps health insurance. Both are part of interstate commerce. The mandate regulates this. Match. Set. Game.

    Is he arguing that Clements’ severability argument is irrational? I don’t understand this. The severability argument proceeds from the assumption that the mandate is unconstitutional. If we make this assumption (which is difficult for me to do), the rest of the argument is rational enough. The statute does not contain a severability clause, as most statutes do. ACA arguably won’t be able to function without the mandate. Courts have stricken statutes in the past for exactly this reason.

    • Katja says

      His argument is that the individual mandate cannot both be non-severable and unconstitutional at the same time, because in this particular case, lack of severability implies constitutionality.

      I’m not sure I’m buying it directly without going through the Necessary and Proper Clause first (where it’s really, really hard to argue that the mandate is non-severable and not necessary at the same time), but then Jonathan is a law professor and I’m not. :)

  5. R Johnston says

    If the ACA falls it will be the end of the Court as a legitimate governmental institution. The Court will have rejected the concept of law and negated its own existence.

    • Barry says

      I’m sure that that the GOP SCOTUS justices don’t give a rat’s *ss about that. If they had, Bush v. Gore would have not been what it was.

  6. marcel says

    RJohnston: Why in this case but not when the Court fixed the election results in 2000?

    • R Johnston says

      Bush v Gore was plenty bad of course, but it’s qualitatively different than what it would take to void the ACA. Bush v. Gore, while indefensible and contemptuous of law, really was pretty narrow in the end. It also, contrary to popular belief, didn’t change the result of the election: the alternative to Bush v. Gore was a dispute about which set of Florida electors was legitimate, and that would have ended up decided by the Republican controlled House in favor of Bush. The Republic survived Bush v. Gore in a way that it can’t survive the striking of the ACA.

      There’s no way to reject the ACA without wholesale rejection of the concept of modern government. Rejecting the ACA means rejecting not just the mandate but rejecting the power of the federal government to in any way regulate medical insurance, which in turn means rejecting the entire administrative state. Adverse selection spirals are very real, empirically indisputable, and saying that they can not be regulated is to say that insurance itself can’t be regulated. Striking the ACA is incompatible with the idea that medical insurance is related to commerce. Strike the ACA and lower court judges will immediately begin declaring Social Security, Medicare, and federal highway funding unconstitutional; there’s no way to avoid it. In the end the decision will have to be ignored if the nation is to survive as a nation. Bush v. Gore didn’t have to be and wasn’t ignored; it was terrible law, but it was law, and it wasn’t a revolutionary moment.

      • NCG says

        Practically speaking, you make a solid point. I think though that it would have been much better to have had a political solution to Bush v. Gore, rather than a patched-up legal opinion that no one respects.

        In that case, what should have been most important was to make our voting system be something we could all believe in – the one thing that was sacred. Heck, it would have been better to force the whole thing to be voted again, than to do what they did.

        Legitimacy is not something to toy around with. And what’s scary is, it could all happen again, tomorrow. We aren’t any better off in our systems, and we haven’t built trust either. I very much believe that you have to have fair rules and a common understanding in place *before* anyone votes. We don’t have that. We can’t even agree on the rules for being eligible to vote. It is an ugly, dangerous situation.

        And who is to blame for this? That would be the Supremes.

      • NCG says

        And emotionally, I have to say that I am not sure I would grieve all that much for ACA, though I also think that once the justices sit down with all the briefs, they won’t pull the trigger. (The arguments just aren’t there. And they’d have to know how much damage they’d be doing to the Court.)

        I hope this might give an answer to the question of whether or not it pays off to knuckle under to conservative Dems. All you get is grief.

        • Ravi says

          My depressing thought is that the Court (or, more precisely, the conservative wing of the Court) has a plan to contain the damage: They will demonstrate the Court’s “independence” by turning around and ruling for marriage equality. That will “balance” things out for a lot of people, after all.

  7. Finn says

    John, what are the odds we can get an explanation of why the law is constitutional rather than the descriptions of why the opposing arguments are nonsense? I don’t understand the pro argument because I haven’t really heard it… Maybe I have missed a link?

    • Anderson says

      Finn, Congress banned insurers from excluding persons with pre-existing conditions. I don’t think anyone seriously disputes that’s valid under the Commerce Clause.

      But if I can postpone buying health insurance until I get cancer or whatever, I may choose to do so, saving my money until the evil day arises. That is why insurers had that exclusion in the first place: the whole point of insurance is that premiums from those who don’t need it pay for coverage of those who do need it. You’re not just prepaying your own costs.

      So to make its ban workable, Congress mandated that everyone who can afford to do so have a minimum level of coverage, or else pay a penalty. You can argue whether the Commerce Clause covers that directly, but the simpler argument is the Necessary & Proper Clause, as interpreted over 200 years ago in McCulloch v. Maryland. No one should pretend to have an opinion on the present ACA case without having first read McCulloch. For instance:

      “Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the decree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.”

      It appears that the Roberts Court, unlike the Marshall Court, may indeed pretend to that power. That will be John Roberts’ legacy, should he choose that path.

      • SamChevre says

        Congress banned insurers from excluding persons with pre-existing conditions. I don’t think anyone seriously disputes that’s valid under the Commerce Clause.

        Actually, I do. I would argue that in combination with the community rating requirement, it’s obviously a requirement that one private party give something to another private party. (A taking for a private purpose.)

        • Anderson says

          Okay, but note I said “seriously.” Your notion lacks any legal support; indeed, you would have proved Medicare unconstitutional (hey, lots of people paying Medicare tax will DIE before turning 65, so the feds are taking their money!). The “private party” stuff makes no difference to the analysis.

          • Brett Bellmore says

            The feds taking people’s money is an enumerated power, “taxation”. From a constitutional perspective, the feds ordering you to give your money to a private party is conspicuously NOT an enumerated power.

            It really does matter, constitutionally, whether the money goes through the federal treasury, or not.

            Matters to the politicians, too, or they wouldn’t have invented this stupid scheme.

          • Maynard Handley says

            I disagree with Brett on almost everything (including what I would like to see done if ACA is repealed) but he’s provided a nice succinct summary of the issue here.

          • Anderson says

            Brett, who thinks McCulloch was wrongly decided, omits to notice that the NPC is itself an enumerated power.

        • Ravi says

          But community rating isn’t a requirement for any private party to do anything. All it says is: *If* you offer health insurance (i.e. choose to participate in a commercial, national, regulated market), you must price it in a specific manner (only using age, ZIP code and a few other variables that do not include current or past health status). No more, no less. No insurance company is required to offer health insurance and, in the absence of the mandate, they probably won’t.

          Of course, I now realize that I’m probably talking to someone who feels Heart of Atlanta Motel v. United States was wrongly decided, so I’m probably wasting my time, but this comment is done anyway.

  8. Steve Crickmore says

    The government defends the constitutionality of the individual mandate on the basis of the Commerce Clause of the Constitution, which provides in Article I, Section 8, that Congress shall have the power “to regulate Commerce … among the several States.”"

    No where in Article 1 Section 8 does the constitution give power to congress to compel commerce, to compel an individual enter into a private contract. If you refuse to hire someone based on his race you are contravening the Civil Rights Act of 1964, but that is an activity involved in commerce. If it is so compelling for the national public interest, that most of you seem to argue that everyone must have health insurance, let’s have a single payer public system, where the overhead is four time less per capita than be compelled to be part of the wasteful private health insurance business.

    • J. Michael Neal says

      Yes. That’s why Anderson pointed out that the important clause isn’t Commerce; it’s Necessary and Proper.

      • Anderson says

        I think the CC argument is that, taken as a whole anyway, the U.S. population is already engaged in paying for health care, so the mandate doesn’t compel you to buy anything you’re not already buying — it just regulates how you’re gonna do it.

        That may be a good argument, particularly since it’s not a counter to argue “well but *I* don’t need any healthcare” (see Raich), but it’s less obvious than the N&P Clause, and I like my constitutional arguments as obvious as possible.

        • Dennis says

          No, it does not regulate how you are going to get it. It does regulate how what you get will be paid for.

          If we forget about calling it “insurance” and call it what it is (a health care finance mechanism) we’d all be better off for it.

  9. Bruce Wilder says

    The power of Congress to enact an income tax is explicit. The Commerce Clause arguments seem awfully far afield to me, when the provision at issue is an exercise of Congress’ power to tax.

    • Anderson says

      More bending-over-backwards for the goddamned Republicans: the Dems didn’t want to ask them to vote for a “tax.”

  10. Eric Pawlowsky says

    Not to sound overly pessimistic, but it’s time to start asking Republicans why young adults will no longer be able to remain on their parents’ group health plans.

  11. Maynard Handley says

    “If the Act falls, it will not be because the Obama Administration did something wrong.”

    The act DESERVES to fail because it is founded on a central lie, a lie that, for reasons I do not understand, liberals in the US have gone along with.
    What people want is HEALTHCARE. What this act delivers is INSURANCE.
    What we have seen politically is a whole lot of lying about how the one equals the other, how the one is essential for the other. Any time I, for example, have spoken up asking about the HEALTH issues of the act, I have been given an answer about INSURANCE. That these two are necessarily linked at the hip is BS, as is the obvious case in oh so many countries (including the VA system of the US).

    And so now, oh poetic justice, it is this lie that seems to be what will take down the act in the Supreme Court. An act that took in taxes and had the US use them to pay government-employed doctors would almost certainly be constitutional; but no, we had to go down this Rube Goldberg path that funnels huge amounts of money from me directly to the venal, incompetent, heartless, and pointless insurance industry — and it is this insistence that insurance equals health that the court is attacking!
    Who says the US still isn’t the luckiest nation on earth?

    After all the weeping and wailing are done, now perhaps the liberal factions in the US can give up this romance with the parasites of finance and work towards a DECENT HEALTHCARE act.

    • David M says

      You’re confusing “liberals in the US” wanted with what was necessary to get the support of the most conservative Democrats in the Senate and House.

    • Byomtov says

      There is no such romance. What there is is the realization that ACA is an improvement over the previous system and could, barely, be passed.

      Work as hard as you like towards a single-payer system. I agree it would be preferable. But realize that you are in for a long battle. It’s possible, I suppose, that if ACA is thrown out, that single-payer will be speeded up. But I wouldn’t bet on it.

    • says

      The act DESERVES to fail because it is founded on a central lie, a lie that, for reasons I do not understand, liberals in the US have gone along with.

      I disagree that it is a lie, but regardless, I’ll tell you why I buy into it: I WILL BE ABLE TO PAY FOR MY HEALTH CARE. Whether that’s through the mechanism of private insurance or not, I DON’T CARE. Yes, I agree that single payer would be better. We couldn’t get it, and this is an improvement. Perhaps you live some sort of life where it doesn’t make a difference, but for a lot of us, it does. For me, the problem is a slew of pre-existing conditions that mean that no insurance company would conceivably touch me for an individual policy.

      I’m fortunate that I live in one of the few states that fully funds its high-risk insurance plan and so people can get into it. But I can’t leave Minnesota if I want to have health care. I’m unemployed, but moving somewhere else to look for work is a non-starter. I wouldn’t be able to pay for the health care I need now, let alone if something drastic happens.

      Until we actually have single-payer, I want to at least have SOMETHING that would provide coverage of some sort. For you, it seems to be a matter of principle. For me, it’s a matter of life and death. That has a way of changing your perspective.

  12. Wonks Anonymous says

    If it was a due process argument which applies against states, that would prohibit Romneycare. I have not heard of any judge who says that’s unconstitutional.

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