Your Restrained, Non-Activist Conservative Jurisprudence

From Jon Cohn’s report:

Alito seemed particularly concerned that, because of the mandate, young, healthy people would have to pay more for their insurance, because they would effectively be subsidizing the sick. In a direct response to the government’s argument that the law’s minimum coverage requirement is “necessary and proper,” Scalia responded that it was clearly necessary but not proper – and that government could avoid the problems of the insurance market by simply not requiring insurance companies to cover people regardless of pre-existing condition, as the law will do.

Note that neither of these are legal arguments in the way that they have been understood for the last eighty years.  This is basically Alito and Scalia saying that it isn’t constitutional to have social insurance.  We should cut the garbage: these guys are hacks, pure and simple.

 I’m actually a little surprised that anyone thought that either of these guys would vote to uphold. 

 

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

90 thoughts on “Your Restrained, Non-Activist Conservative Jurisprudence”

  1. I have to say that I’m curious how Alito squares away his concern with the presumed constitutionality of Medicare, which is financed via a scheme where de facto has the young subsidize the old and sick (even more so than under the individual mandate, because the young pay 100% and get nothing and the old pay nothing and get 100%).

    1. … even more so than under the individual mandate, because the young pay 100% and get nothing…

      Hospitals are full of young uninsured people who have suffered accidents. That’s one of the reason motorcycles are joked about as donorcycles.

      1. You may not have understood that Katja was talking about the dedicated payroll tax for Medicare; workers pay it, but the vast majority of workers aren’t old enough to be receiving benefits; many will die before being old enough. Many, quite possibly most, people who are old enough to receive Medicare are not working and so not paying payroll tax.

    2. Katja, evidently you don’t understand how Medicare works.

      To get benefits you must pay a hefty portion of your salary into the system for a minimum of ten years. And once you qualify for benefits you must pay about a hundred bucks a month, minimum, as well as extras for a supplement for deductible coverage and drug coverage (perhaps $200-300 a month additional.

      1. Actually, I do understand Medicare, at least in theory.

        Yes, you do have to pay FICA taxes — while you’re young. That’s the point I’m making. Under the PPACA and the individual mandate, young, healthy people are net-payers (statistically) and old, sick people are net-beneficiaries; most people consider that a feature (since eventually everyone would get old and pay exceptionally high premiums); Justice Alito seems to think it’s a bug. Medicare makes this relationship far more extreme in that young people receive none of the benefits and pay for (almost) all of them (unless eligible because of disability).

        As to payments once you received Medicare benefits, only Part B requires a premium, and is strictly speaking optional (though, for obvious reasons, most people will take it), so not mandated. Coinsurance, co-pay, and deductibles go to providers, not to the Medicare pool.

        This is something I’ve been thinking about a fair bit recently; I’m currently living in Scotland with my English husband. We have been thinking about moving back to America in the long term, and so we’ve been comparing the relative benefits of retiring in America vs. retiring in the UK (modulo totalization agreements).

          1. I don’t understand your point. What you say is true, but what are you arguing. Under the ACA individuals pay for their coverage also. We might even say that when they pay “too much” at a young age theyt are buying the privilege of paying “too little” at a later age. Other than being less extreme, how does this differ from Medicare?

          2. You misunderstand. I am describing the consequences of applying Justice Alito’s reasoning [1] to Medicare, not my own position.

            Personally, I think that the Medicare system is quite fair. Your beef is with the aforementioned Supreme Court justice.

            [1] Page 10.

    3. The old have already paid their 100% and continue to pay monthly premiums, deductibles and copays.

  2. This is basically Alito and Scalia saying that it isn’t constitutional to have social insurance.

    I would read it rather differently; this is Alito and Scalia saying it isn’t constitutional to have social insurance funded by a mandatory private purchase/. It seems that “tax, and spend on social insurance” would pass their idea of constitutional muster.

    (That said, I’d be very happy to see jurisprudence overturn everything since the “Switch in Time.”)

    1. Really? You want all jurisprudence since the Court stopped trying to destroy FDR overturned?

      I’m going to grant you the benefit of the doubt, and assume you mean all jurisprudence deriving from that ideological shift, not merely all jurisprudence post-dating it (not tar you with opposing Brown v Board, for example), but to be helpful might you amplify which post-stitch rulings you mean – not so much by name, as I for one wouldn’t likely know the names, but by content?

      1. If I had to choose between “keep it all” and “throw it all out”, I’d prefer “throw it all out.”

        Obviously, there are some decisions since that are correct–but I think that the power balance between the states, the federal government, and the citizens pre-switch was close to the Constitution’s (as amended to that point) limits, and what we have now isn’t.

        If that relationship should change, amending the Constitution (which requires and effective consensus) would be the way to get there. (Brown, and pretty much no other case, is an exception, as Plessy very clearly was contrary to the intention of the 14th Amendment.)

        1. I still don’t think this really explains your position, and I really would disagree with your feeling Brown was unique in its virtue. What about Miranda? It may be hard to spot these days, with the pro-corporate pro-authoritarian wing of the Court in ascendance, but for a time (largely after the Stitch – largely in the 50s and 60s, I think) the Court was a hugely important defender of individual rights and civil liberties.

    2. “I would read it rather differently; this is Alito and Scalia saying it isn’t constitutional to have social insurance funded by a mandatory private purchase/. It seems that “tax, and spend on social insurance” would pass their idea of constitutional muster.”

      Essentially, yes. What we see here is the test phase of a new dodge to move social welfare programs off budget, by mandating that private firms implement them, and then mandating that individuals purchase the private firms’ goods at the resulting inflated prices. Rather than taxing to put money in the general fund, and then spending out of that fund to run the program.

      The aim being that the private firms ultimately get the blame for all the resulting expenses, instead of the politicians.

      By the sort of reasoning which makes the mandate legitimate, the federal government could decide, as a matter of regulating interstate commerce in food, to order all grocery stores to provide free food to the poor. And then make home gardens illegal so that everybody would have to buy their food at grocery stores despite the considerably higher prices.

      The federal government could order home builders, (They use materials which have traveled in interstate commerce.) to build free housing for the poor, and then mandate that those of us who aren’t poor move periodically, so that we have to buy houses in the inflated market.

      By this reasoning, there’s virtually nothing the federal government couldn’t move off budget. This isn’t about regulating commerce, and what’s necessary to accomplish it.

      This is about hiding government spending by making sure the money never passes through the government’s hands.

      1. Brett,

        Are you seriously arguing in favor of a single-payer government-run health care finance system? Really?

        1. No, I’m seriously arguing that this is something even worse than a single payer government financed health care system: The government ordering somebody else to provide one, under the pretense of regulating commerce. And then ordering everybody to be that somebody’s customer, so they don’t go bankrupt under the load.

          If the government wants everybody to have health care, it can damned well put it on the budget, and take the flack for the level of taxation needed to pay for it. Instead of saying, “Hey, you over there! Yes, you! Run a welfare program for us!

          1. If the government wants everybody to have health care auto insurance, it can damned well put it on the budget, and take the flack for the level of taxation needed to pay for it. Instead of saying, “Hey, you over there! Yes, you! Run a welfare program for us!“

          2. The federal government, which is the one we’re talking about here, does not require everybody to have auto insurance.

          3. And what do you think of the conservative plan to get schools, police, fire fighters, etc., off the books and into the private sector?

          4. The federal government, which is the one we’re talking about here, does not require everybody to have auto insurance.

            That may make a difference legally, but your argument seemed to be a moral one. I see no difference morally.

    3. It fails, for instance, to be necessary, because the government could, for instance, order insurance companies to give out free insurance, and then pick up the bill itself. This would be a comparatively uncontroversial exercise of the spending power, rather than a controversial mandate. Why didn’t they make this obvious move, staying within powers that would undoubtedly be upheld?

      Because they didn’t want the cost to show up in the budget. That’s the only reason. And if they get away with it, a whole lot of things are going to get mandated, and not show up on the budget. Federal “spending”, properly defined, will swell enormously, but in as nontransparent a way as possible.

      1. Because they didn’t want the cost to show up in the budget. That’s the only reason. And if they get away with it, a whole lot of things are going to get mandated, and not show up on the budget.

        For a minute there I thought it was 2003 and you were arguing against the way the Iraq war was budgeted. Then I woke up.

      2. Are you really arguing that it’s not necessary because there are other ways to achieve the goal? That doesn’t make much sense. Under that logic if there were two ways to do something neither would be constitutional because there would always be an alternative. The question is not whether the mandate is “controversial,” (which it only became when it was adopted by Obama after being promoted by conservatives) but whether it is constitutional.

        1. First of all, I’d deny that ordering a private company to provide it’s product below cost to some of it’s customers is in any way a legitimate regulation of interstate commerce. I’d say that even if I viewed the excuses used to expand federal regulation beyond actual commerce that’s actually interstate as legit.

          Second, an unprecedented extension of federal power is in no sense “necessary”, violently improper, when it’s simply a dodge to avoid the government having to pay for something it wants people to get.

          I’m going to ask again: How, if you accept this mandate, could the government not have the power to order grocery stores to give food away to the poor, and then mandate that the non-poor buy their groceries there at inflated prices to keep them in business?

          It’s a neat trick, passing a regulation which will bankrupt an industry, and then using that as an excuse to mandate the public buy that industry’s product. But it fails to be necessary and proper, unless you read the N&P to mean “convenient and eh, who cares?”

          1. name one case that holds any of these apparent legal principles you speak of to be law. oh yeah, that’s right, they are just made-up talking points.

          2. “How, if you accept this mandate, could the government not have the power to order grocery stores to give food away to the poor, and then mandate that the non-poor buy their groceries there at inflated prices to keep them in business?”

            You have just perfectly described the CURRENT system and its illegitimacy! This is exactly what happens now:

            Under current law, “[HOSPITALS are ordered] to give [CARE] away to the poor, and then mandate that the non-poor [PAY] inflated prices to keep them in business”!

            The mandate would in fact order that EVERYONE pay for their own medical care rather than allowing some to freeload off of the rest of us when they get sick–a world of difference, and why the mandate is so important.

          3. Brett Bellmore: “How, if you accept this mandate, could the government not have the power to order grocery stores to give food away to the poor, and then mandate that the non-poor buy their groceries there at inflated prices to keep them in business?”

            That would violate at the very least the takings clause and may also raise substantive due process concerns (depending on how it is enforced, possibly also procedural due process concerns).

            The healthcare mandate doesn’t violate the takings clause because you do get just recompense for buying insurance (namely, the benefits of having insurance).

  3. They would probably be against public water systems too.

    Just to continue going through the looking glass for a mo, I wonder if, since it can be illegal to kill yourself actively, is there a duty to seek medical care for yourself, say, if you’re hemorrhaging? And if so, wouldn’t a health care tax/penalty/whatever be the same as a user fee? I mean realistically, are there any people who don’t go to the doctor for serious injuries?

    I love America, but we are not very bright here.

  4. Their reasoning is simple and convincing, I think: while the insurance companies want the mandate, this is trivial compared to the desire of the entire Republican Party to damage Obama, especially in an election year. Therefore the law is unconstitutional.

  5. Alito seemed particularly concerned that, because of the mandate, young, healthy people would have to pay more for their insurance, because they would effectively be subsidizing the sick.

    This is simple-minded, for any number of reasons. One could say that they will be subsidized in turn as they age.

    In more detail, another way to put Alito’s complaint is that young people will pay more than the expected value of their health care costs over the premium period, while older people pay less. But so what? Young people are in fact getting more than health insurance. They are also getting the option to continue buying insurance at normal rates even if they become quite sick. Further, the “pay more now, less later” approach is a sensible way to finance health insurance. Few people in their late 50’s to early 60’s can afford to pay actuarially correct rates narrowly calculated over a short period like a year. Health insurance is a lifetime product, and thinking about in the same vein as fire insurance, say, is a mistake.

  6. By Alito’s standard, no one under the age of 40 or so should buy health insurance, because statistically speaking, they’re too healthy. Of course, this is absurd on its face, because young people succumb to all manner of illness and injury, and who then should pay those inevitable costs?

    It all comes down to what form of “taxation” do we choose for covering those presently uninsured:

    – Do we want to continue having the rest of us pay for the illnesses/hospitalizations of the uninsured in addition to our own, or

    – Do we want the entire society to pay for everyone’s medical costs?

    Of course those with lower risks would selfishly want to opt out of paying anything at all and then let the rest of us pay their freight if need be, but how is this fair in any way? And, are they so benighted to believe they will never be the old ones?

    That said, I think, sadly, that calling all toasters is correct: This court has no interest in supporting anything that Obama supports, regardless of the merits.

    1. You’re overlooking the ACA’s requirement for Community Rating, which makes the rates different people pay more similar than they might otherwise be. Absent that, young people don’t necessarily subsidize older people. Of course, it’s not just young versus old: the insurance companies would be very happy to charge different rates based on all sorts of criteria: age, genetic risk, weight, lifestyle, etcetera.

      And don’t get me started on Rescission …

      1. Oh come on. Start on Rescission. It’s the holy grail of health insurance. Get someone to pay for health insurance for thirty years and as soon as they get sick pull out some unrelated undisclosed disqualifier and poof, you’re on your own Jack. It’s a racket that would make a mobster blush.

        1. You’re right — what we have now is a racket. When people get old, Medicare takes over paying for their healthcare, after the insurers made profits off them for years.

          This whole thing is a shell game, except I’m not sure the Supremes know that.

          These opponents are arguing against the very concept of a society.

          1. > This whole thing is a shell game, except I’m not sure the Supremes know that.

            Oh, I’m sure the Supremes know that this whole thing is a shell game. The question on the table is whether or not they care. Some people think they should, others think they shouldn’t and we’ll find out soon enough.

  7. kathleen: “This court has no interest in supporting anything that Obama supports, regardless of the merits.”

    I don’t think this is the case. I count Justices Breyer, Ginsburg, Kagan, and Sotomayor (i.e., the progressive bloc) firmly in the pro-PPACA camp.

    Justices Alito and Scalia are just as firmly against the individual mandate. I believe we can safely assume that Justice Thomas is against it based on previous opinions.

    I suspect that Chief Justice Roberts is against it, but am not 100% certain. Some claim that if Justice Kennedy supports the individual mandate, he may join the winning side to get to write the opinion, but that would imply that he’s not just calling balls and strikes, so that’s plainly impossible.

    Justices Alito and Scalia also seem to be inclined to rule against severability of the individual mandate so far (meaning that the PPACA would be struck down in its entirety along with the individual mandate, though we may get more out of tomorrow’s hearing). And I’d guess that Justice Thomas would probably burn the law in effigy if he could.

    Justice Kennedy, however, seemed to be asking pretty intelligent, probing questions. If I had to guess, I’d say that he is thinking very hard about whether the individual mandate is permissible under the Necessary and Proper Clause (or sees, unexpectedly, a substantive due process concern). He is certainly not tipping his hand either way.

    1. So it all comes down to one voter.

      Our entire set of laws depends on how one singular supreme court justice votes. Why do we have elections again?

    2. I hope you are correct, Katja, and that I’m just overly jaded.

      I would really like anyone to explain to my why our current system is not untenable, why the greater society is expected to simply step forward without question and pay off the expenses of those who choose not to purchase health insurance.

      Obviously all of us would “prefer” to keep the money spent on insurance premiums in our own pockets (as extra salary in the case of those who have employer-provided health insurance), and this would result in a significant increase in my standard of living too. But why should I have the option of dumping that expense onto others?

      Perhaps people could be given a choice: buy health insurance, or sign a refusal to accept any health care in excess of a set dollar amount that they put on deposit for their own care.

      I have yet to hear of any other alternative being offered that would remedy the current system, other than the mandate in “Obamacare” (a moniker he is right to claim as a positive) or some form of single-payer that’s presently off the table.

      1. To be clear, I wasn’t really impressed by the level of jurisprudence on display (in particular, the “let’s start from first principles and ignore the boring case law and precedent” parts). I’m just saying that I don’t consider the decision to be a foregone conclusion.

        You can find more detailed critiques at Jack Balkin’s site.

  8. A lot of the argument from the liberals was along the lines of “Well, isn’t health care really expensive and hard to predict?” Alito’s argument doesn’t strike me as obviously less “legal”.

    1. To defend Megan before others attack her:
      Supreme Court justices (and appellate judges as well) often think about the real-world consequences of what they do. They often perform explicit economic analysis, even in their opinions. Posner is no outlier here, and this practice is not limited to the right wing. “Legal realism” started out as a vaguely left-oid thing, but everybody is a realist these days, to some extent.

      And now to get in the first attack on Megan:
      Alito’s argument may be no less legal than the others’, but it isn’t very convincing, unless one adopts a radical individualism that denies that the law can take externalities or informational asymmetries into account. The individual market for health insurance has collapsed because of the informational asymmetries implicit in adverse selection.

        1. No, I am unable to grasp the point. It’s not an attack, it’s a request for clarification.

      1. But that is not the argument that Zasloff is making. He seems to be making the argument that Alito and Scalia are being “activist” because they’re discussing real-world consequences. But the liberal judges, if anything, leaned much more heavily on “policy” type arguments, and yet strangely, Zasloff does not find this inappropriate.

    2. Right, Megan, but it doesn’t have to be. A statute doesn’t have to make a legal argument: trying to overturn a statute based on some sort of constitutional infirmity does. Unless, of course, you are Sam Alito or Megan McArdle, in which case social insurance is constitutionally suspect. According to Alito and probably you, the Constitution DOES enact Mr. Herbert Spencer’s Social Statics. William Graham Sumner would be proud as well.

      1. More Megan defense. The Constitutional test for due process is a straight cost-benefit analysis. Mathews v. Eldridge. Consequentialist analysis also figures into many criminal rights cases. Alito’s argument was lame IMO, but not inappropriate.

        1. I don’t think so. Remember that Mathews is PROCEDURAL due process, not substantive. Substantive due process comes from cases like Deshaney, or, for that matter, Roe or Griswold.

      2. But Alito didn’t say social insurance was suspect, and I’ve certainly never argued that it was unconstitutional. Your response is ridiculous, and sort of puzzling, given the content and tone of my original point. I listened to the testimony yesterday; what you are saying indicates that you have not, because you are alleging things that none of the justices, or attorneys, ever claimed. (IIRC Clement specifically said that single payer would be constitutional, for example, and none of the conservatives disagreed–nor should they; given Medicare, that would be an idiotic position to take.)

        Furthermore, it’s non-responsive, since we’re not talking about the statute; we’re talking about liberals on the court, who were trying to defend the constitutionality of the mandate. They mostly made arguments/asked questions about things like the cost of uncompensated emergency room care; they often weren’t articulating legal principles, or even asking Clement/Carvin to make such arguments. They were functionally arguing that this was a desirable policy, which is not the same thing as a constitutionally permissable policy. In fact, I found it disappointing how much of the questioning from both sides focused on the wisdom of the policy; the judges clearly know next to nothing about health care policy, which meant that they focused mostly on side issues like uncompensated ER visits which are not the problem ObamaCare is designed to fix.

        Finally, I believe that most doctrine strongly suggests that Congress does have the obligation to consider constituionality in drafting legislation. But I could be wrong.

        1. From a living constitutionalist position, arguing policy IS arguing constitutionality: Nothing that’s good policy can really be definitively unconstitutional, because the Constitution is held to just mean whatever would be a good idea. Although there are, temporarily, good ideas it’s still imprudent to assert are constitutional, I suppose.

        2. You listened to the testimony yesterday? When did SCOTUS begin hearing testimony in cases in which its jurisdiction is appellate? Did anyone cross-examine?

    3. As Jonathan points out below, you seem to be confusing arguments about policy with legal arguments.

      Supreme Court Justices aren’t supposed to worry about whether a policy is a good idea or not, or at least that’s what conservatives always say, and how they claim “their” judges act, in contrast to those wildly undisciplined activist liberals.

      Alito doesn’t like the ACA payment scheme? Too bad. The government makes all of us pay for things we’d rather not buy. Why it’s a big deal that we pay an insurance company rather than the government directly is not at all clear.

      1. My point is that if you dislike conservatives doing it, you should also dislike the liberals, who arguably did even more of it, and certainly did a lot of their own freelance speculation on things like the crushing cost of uncompensated emergency room care, a problem that ObamaCare probably won’t do much to fix, and also really wasn’t designed to fix. Personally, I found it annoying from both sides. But I’m not outraged by one side, and fine-dandy with the other.

        1. If the Court strikes down the individual mandate while upholding the rest of the law, then you’re right: the ACA won’t do much about the uncompensated care problem. On the other hand, if the formerly uninsured show up in emergency rooms with policies in tow, then hospitals will be compensated through a cross-subsidized risk pool managed by insurance companies.

          Healthcare is not broccoli.

    4. A lot of the argument from the liberals was along the lines of “Well, isn’t health care really expensive and hard to predict?”

      No, it’s far simpler: who is going to pay for the inevitable injuries and illnesses of those who prefer not to pay for it themselves? If no one is to pay, where should we leave them to die?

      Alito’s argument ignores the fact that the status quo is less fair than the mandate would be, and also ignores the fact that plenty of those young people will inevitably require health care: they’re more likely to engage in risky behavior, they’re in their reproductive years, and they’re more likely to incur a serious illness than they realize.

      Alito’s argument also ignores the fact that in our current smaller employer insurance pools, the younger workers cost less individually but cost more in terms of dependent coverage. My married-with-children co-workers receive 3x the health insurance premiums that I do as part of their compensation packages, for doing the same work: why does he have no problem with that?

      It is not possible for any system to be fair to every individual. All we can do is act to minimize the unfairness, and the mandate does that.

      1. The Supreme court isn’t tasked with achieving fairness. They’re tasked with upholding the Constitution. If the mandate isn’t constitutional, that’s it’s fairer than the status quo is perfectly irrelvant.

        Why the mandate? Because forcing insurers to cover pre-existing conditions would bankrupt them, if people were given any choice about having insurance. But many potential regulations of industry would cause covered industries to go under; Suppose that, regulating air travel as interstate commerce, the government required carriers to allow anyone to board a plane without a ticket? Would the fact that enacting such a regulation would bankrupt airlines authorize the federal government to order everyone to buy plane tickets, even if they currently had no plans to fly?

        The basis on which this is claimed to be N&P just proves too much: Craft a regulation to bankrupt any industry, and you can force people to buy it’s products to prevent the bankruptcy.

        The question here is, can Congress itself create a problem, and claim new power as the only way to fix it?

        1. There is no equivalence between mandating the purchase of medical insurance and mandating the purchase of plane ticket: insurance is to cover an inevitable expense over which someone has no choice of causing to be incurred (although presently, if they “can’t” pay that expense, those of us who are insured are stuck paying for it), while a plane ticket will always be optional. (That I in fact do pay for others to fly through my tax dollars, even though I do not fly, is a whole ‘nother matter…)

          The language of the Constitution is broad and includes interstate commerce and general welfare clauses, which could cover such a nationwide mandate; both of which could arguably apply. With all laws, legislative intent matters, and in this case, the intent was to relieve the unfairness of the current system that forces many of us to pay extra to cover the many people who could buy insurance but choose not to, as well as to improve health outcomes, arguably a national defense issue since good health improves the strength of the nation.

          The Supreme Court may not “be tasked with achieving fairness” but I think they typically do examine their cases with an eye to the actual outcome and what repercussions their decision to overturn a law will have.

          Why does no one dispute the “new power” Congress claimed when the demanded that hospitals treat all patients regardless of ability to pay, and which results in higher health care costs to those of us who do pay? That seems the more unconstitutional act, and causes greater financial harm, if that’s all we care about.

          Fairness is a fundamental concept in law, illustrated by the fact that to be binding, contracts must have some benefit to both sides (“consideration”), and I can only hope that the concept of fairness is always a factor in such decisions as the one currently faced by the Supreme Court.

          1. “Why does no one dispute the “new power” Congress claimed when the demanded that hospitals treat all patients regardless of ability to pay, and which results in higher health care costs to those of us who do pay? That seems the more unconstitutional act, and causes greater financial harm, if that’s all we care about.”

            Because they didn’t claim any such power. They conditioned receiving medicaid payments on having such a policy. Rather like the federal government can’t set a national speed limit, but does tell states what speed limits they may set if they expect to get highway funds. Hospitals which don’t accept medicaid don’t have to treat all patients without regard to ability to pay.

            The Court has made noises in the past about at some point ruling this kind of work around unconstitutional, if it becomes too extreme. Perhaps the new Medicaid rules will be the occasion to take that step, as they’re leading a number of states to challenge the practice.

    5. It is ‘less legal’, Megan. The individual mandate coupled with an underwriting prohibition is necessary to overcome adverse selection. Scalia argues “…that government could avoid the problems of the insurance market by simply not requiring insurance companies to cover people regardless of pre-existing conditions”. In other words: Don’t reform the health care market by trying to overcome adverse selection. He’s questioning the methods, not the legal merits of the methods themselves. Sounds like a case of, dare I say it?, legislating from the bench.

      1. Megan is hit and run. No way she will take your argument seriously, or give a responsive rebuttal.

      2. Actually, having listened to the arguments, I’d say Scalia was exploring whether the government can do something improper because it is necessary to accomplish something proper. Which seems like a legal-type argument, one that included some policy specifics.

        1. No, the argument is over whether it’s proper to force someone to buy a product from a private company. You may disagree, but you can’t just magically make the argument go away by waving your hands and screaming hack–certainly not while pretending that the liberal justices are just voting the law, no ideology here!

        2. Scalia seems to be following a line of reasoning that favors a fairly expansive reading of “impropriety” (possibly as a consequence of this amicus brief [1]).

          The problem that the conservative justices have in striking down the law is that the individual mandate is inarguably necessary under the Necessary and Proper Clause (Scala admits as much at one point). So, if it were also proper, that would all but ensure its constitutionality (since noone disputes that Congress has the power to enact the rest of the PPACA under the Commerce Clause).

          That necessitates a fairly narrow reading of what “proper” means, narrower than the traditional interpretation has been. At the very least, it seems to be considerably narrower than the McCulloch test, whose virtues Scalia agreed with only a couple of years ago in United States v. Comstock (in a dissent written by Thomas that he joined).

          The “it’s improper” argument is also completely separate from the part of the oral argument that Eric Pawlowsky cites; that passage relates to necessity, and when it comes to what is necessary, Congress has very broad discretion under McCulloch, requiring the law to only meet a rational means-end test.

          [1] I’m not too impressed by the brief; it seems to require too weak a rational means-end test (e.g., in the kidney donation mandate, where the rational relation is an entirely secondary effect, not at all “plainly adapted to the end”, as in McCulloch) in order to expand the meaning of “necessary” in order to then argue the impropriety of scary measures that could only be obtained under this very broad reading. A begging-the-question type fallacy, in a way.

          1. Since the “traditional” reading of “proper”, since the switch in time anyway, has been, “Eh, whatever.”, I can only cheer.

        3. No Megan — the question is why it is IMPROPER. There is a presumed constitutionality of federal laws. The mandate is designed to prevent adverse selection problems that arise from health care regulation. Scalia doesn’t like that, so he calls it “improper.” That’s just not a legal argument. In order for it to be a legal argument, you have to say WHY it is improper. Not part of the regulation of interstate commerce? It’s part of regulating one-sixth of the US economy. Violating someone’s liberty? That would be a substantive due process challenge, which this is not. So Scalia is saying it’s “improper” because he’s against the policy. That is not a legal argument.

  9. BHO might win this mess, but he gave away the store to do it, while queering the likelihood of ever fixing the clusterf*ck that is the Great American Health Care System. This was one time when incremental meant worse than the alternative. The only reason he was marginally better than Hillary was the Public Option that he ran on. Somewhat OT, but regarding the argument we have seen elsewhere about the mandatory purchase car insurance from a for-profit insurance company, it’s a complete non-starter, because you do not have to own a car. And if you do drive someone else’s vehicle, they are the responsible party regarding insurance.

    1. But what about the broccoli argument? And the cell phone argument?

      (And these are from our legal “leading lights”??? Who even needs law school to make a case against them?)

      1. Make a case against whom? Obama or the Supreme Court? Didn’t go to law school but I have been politically sentient, more or less (stop snickering), since junior high in the late 1960s, and I can read. It isn’t too difficult to make a compelling case against either or both. I can only imagine the broccoli and cell phone arguments, so I’ll leave them to you, kathleen. When it comes to the current administration, Casey Stengel’s comment about his 1962 Mets comes to mind. Repeatedly. And no, no one in the West Wing seems to be able to play this game.

    2. regarding the argument we have seen elsewhere about the mandatory purchase car insurance from a for-profit insurance company, it’s a complete non-starter, because you do not have to own a car. And if you do drive someone else’s vehicle, they are the responsible party regarding insurance.

      It is, of course, a non-starter as a legal argument, which I wasn’t making. I was making an analogy, admittedly imperfect, as all analogies go. The relevance is that states do not force the purchase of auto insurance — you either buy insurance, post a bond equivalent to minimum mandatory insurance coverage, or you pay a fine for driving without insurance. Similarly, with the health insurance mandate — you either buy it or pay a fine, your choice.

      1. “The relevance is that states do not force the purchase of auto insurance — you either buy insurance, post a bond equivalent to minimum mandatory insurance coverage, or you pay a fine for driving without insurance.”

        Or choose not own a vehicle or not drive the one you own on a public roadway. There is no corresponding escape from the health insurance mandate.

        1. “There is no corresponding escape from the health insurance mandate.”

          That is because there is no circumstance in which a citizen does not “own” a body that will need care at some point.

          Car insurance is to protect others from the financial harm your car may cause to others.

          ACA mandate is to protect others from the financial harm your body’s need for health care may cause to others.

          There is no escaping the fact that everyone will need medical care at some point, often very expensive medical care that they cannot afford without benefit of insurance. Expecting the rest of us to pick up their costs at that point is the greater burden, when contrasted with the mandate that each provide in advance for their own costs.

          1. “There is no escaping the fact that everyone will need medical care at some point,…”

            The fact is that people escape needing medical care all the time. For example, inadvertently riding you motorcycle headlong into an oncoming semi-truck can be a very effect way of avoiding ever needing medical care.

          2. CharlesWT: “The fact is that people escape needing medical care all the time.”

            If you want to be that nitpicky …

            I’m not sure if you’re aware of this, but American hospitals and doctors treat mother and baby as separate (in)patients. After delivery, there will be a bill for the mother and a separate bill for your baby. Therefore, you generally enter the healthcare system for the first time the moment you are born. It is pretty hard to avoid this, unless you have a mother who is extremely careless.

            Now, there are obviously still some circumstances where you can be born and make it through your first day of life without ever seeing a doctor. But Congress can reasonably be expected to not be concerned with these extremely rare outliers when passing a general law.

            I do have to admit, at times I wonder about Supreme Court justices that seem to have a problem with a penalty or individual mandate for healthcare for those not actually participating in a healthcare scheme, but appear to be fine with executing those who have not actually participated in a crime (under an actual innocence defense).

          3. CharlesWT:

            Wrong. The dead cyclist is still likely to receive several expensive medical-related services we all pay for. Fire, Police, and Ambulance services will all likely be involved. There may be an attempt to revive the victim. It will be necessary for a medical doctor to declare death. His body will likely be transported to a nearby hospital by ambulance for that purpose, and may be temporarily stored in their morgue. His estate will likely receive bills for some of these services which medical insurance would cover.

            The far more common situation is the one where a driver pays all her adult lifetime for auto insurance and never once has the occasion to use it.

  10. FWIW, my guess is that Kennedy will join the four liberals because he’s a conservative in the old-fashioned Tory sense of temperamental moderation and dislike of revolutions right and left; and Roberts will join the majority because that way he gets to write the opinion, throwing out the challenge on the narrowest possible grounds. The liberals will write “broccoli be damned” concurring opinions, but they won’t make precedents. Roberts, as a very political animal, may also fear the likely backlash from throwing ACA out, a possible rerun of FDR’s victory over a reactionary Court. And why deprive Romney of his main campaign plank?

    1. I honestly don’t know. I’m guessing, too, that Anthony Kennedy will vote to uphold, but I wouldn’t bet a lot of money on it. The one thing that surprised me today is how willing he seemed to be, if the individual mandate were to be struck down, to strike down the PPACA in its entirety.

      What I mostly fear, to be honest, is not the effect on the PPACA as such (even if it were struck down entirely, health insurance will have to be reformed in the coming years unless you want America go bankrupt, so it will happen eventually [1]). What I fear most is the effect that striking down the PPACA in its entirety would have on our democracy.

      [1] Yes, I know, that’s cold comfort to people who need healthcare today. I’m not saying I’d like that outcome, I’m saying that it may not be the worst part.

  11. The silence from the right about so-called “judicial activism” is deafening. Not even the barest acknowledgment that the Supreme Court is being asked to strike down a law passed (with a supermajority) by the elected branches of government. As a liberal, I’m not troubled by this. But the complete absence of any acknowledgment from the right (combined with Citizens United, etc.) just highlights how the focus on judicial activism has been completely and utterly selective over the past several decades.

  12. “Judicial activism” has always been a remarkably stupid phrase. We want judges to be active in properly upholding the Constitution, just as much as we want them to be passive in not inventing things that aren’t in it. I think the term was invented by some establishment “conservative” who just wanted judicial review to go away. An idiot, IOW.

    Now it’s liberals who want judicial review to go away for a while. My opinion is unaltered.

    1. Judicial activism is in the eye of the beholder. If I were a strict constructionist–which I’m not–and ACA gets overturned, I would be pleased by the outcome and distraught over the reasoning that produced it.

    2. I agree entirely with the first paragraph. “Judicial activism” is a remarkably stupid phrase. And conservatives are the ones almost exclusively using it, not just in the past, but all the time (e.g. opposing judicial appointments, etc.). While you may not find the term helpful, you can’t deny that it has played a huge part in conservative rhetoric over the past many years. Yet this phrase has all but disappeared from conservative commentary on this case.

      I disagree with the second paragraph. Yes, you may hear occasional mutterings, but most of the liberal opposition to striking the ACA down is based on an argument that such a result would be erroneous, not that it is improper “judicial activism.” So no, I don’t think the hypocrisy runs both ways.

    1. That is my take entirely, especially after listening to the objection that a given insured may never need a heart or liver transplant so why should they pay for someone who does–it boggles the mind that they apparently (by their statements) have less understanding of pooled risk and actuarial rating systems than I do in my thoroughly amateur way.

      Add in the absurd analogy made between the ACA mandate and forcing someone to purchase broccoli and my head only spins faster: do they really not understand that we are all forced to pay for other people’s insurance now?

      Whatever the cause, such ignorance at their level is simply breathtaking.

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