Did John Roberts listen to the better angels of his nature?

Orin Kerr tells an interesting, albeit speculative, story.

Update This post is obsolete.

Orin Kerr tells a rather plausible – though, as he frankly says, speculative – story: that John Roberts’s original vote against Obamacare was purely political – a mix of partisan and factual factional loyalty and payback for Obama’s vote against his confirmation – but that he became convinced that striking down the law would be inconsistent his confirmation-hearing “judging as umpiring” stance.

John Roberts and the last temptation

If Chief Justice Roberts wanted to protect the Court from being regarded as political, he should have been less transparently political in his motivation.

The consensus among those entitled to express an expert opinion – a class that does not include me – appears to be that Chief Justice Roberts not only wanted and intended to strike down the individual mandate but actually voted to do so before changing his mind.

I have seen no one claim that this resulted from Justice Roberts’s sudden appreciation of the merits of the “if it looks like a duck” argument that the mandate should be construed as a tax. His motive is universally assumed to have been institutional: to prevent the hardening of the perception that the Supreme Court is simply the least democratic and transparent of three political branches of government.

If that is the case, it seems to me that he outsmarted himself. If the Court is to be respected as a court, then it must appear that its members are  practicing jurisprudence and not mere politics: that they decide cases according to the law, rather than simply taking positions on issues. But does anyone believe that about what Justice Roberts did today? No one that I know of.

So in trying to avoid the perception that the Republican majority on the court acts purely politically, the Chief Justice made it obvious that he was acting purely politically. Even if you think that upholding the mandate was the right deed, doing it so transparently for the wrong reason vitiated its intended benefit.

I think the technical term is “own goal.” And no, it doesn’t make me happy. Judicial review is one of the great American constitutional innovations, and the last thing the country needs right now is to have one more major institution fall into public contempt.

The Roberts decision: an esoteric reading

John Roberts actually understands that health care ain’t broccoli, but had ideological reasons for pretending he didn’t.

A friend with professional interest in health care policy and a political stance somewhat to the right of the RBC center of gravity – and who predicted that the Supreme Court would rule the ACA constitutional – writes:

Although my prediction that Roberts would vote to uphold proved correct, he outsmarted me. It’s so obvious now in retrospect, but it didn’t occur to me that he would uphold the individual mandate on taxation grounds while rejecting the standard interstate commerce justification. Brilliant. He managed to support the health care policy outcome he wanted (strengthening private insurance coverage), enhance his own reputation, and avoid criticism of the court without giving ground on constitutional interpretation.

Roberts understands that healthcare is different from broccoli. If you read his decision from an esoteric rather than exoteric perspective, I think you’ll hear him saying, “Of course the decision to go uninsured has commercial effects that are broad enough to justify Congressional regulation. But I’m not confident I can accept that argument in this case without setting a precedent that would be used to try expand Congressional authority in ways I want to avoid.”

Steve Teles on the decision

Today’s decision is both eminently reasonable and utterly consistent with conservatism.

Steve Teles points out that today’s decision is both eminently reasonable and utterly consistent with conservatism. He doesn’t point out that only one of the five “conservatives” on the Court elected to take the conservative position. It’s an old rule of constitutional law that if there are multiple interpretations of a statute, and one of them would render the statute constitutional, the court should adopt that interpretation. But none of the Chief Justice’s Red Team colleague wanted to pay attention to that rule.

Health care market inactivity, unicorns, and perpetual motion machines

If you were born in a hospital, you’ve already been “active” in the market for health care.

Ilya Somin quotes, approvingly, this bit of pseudo-reasoning from Chief Justice Roberts:

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product,on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.

Only a robot can be “inactive” in the market for health care. If you were born in a hospital, or with the aid of a midwife, you have already been a consumer of health care. If you have a heart attack or a stroke or a psychotic episode, you will consume health care whether you want to or not, and settled law requires that it be provided to you even if you can’t pay.

Going without health insurance means deciding to stick the rest of us with the tab when you receive health care you can’t pay for. And that, Justice Scalia, is the difference between health insurance and broccoli.

Governor Romney – whose evil twin is now running for President – explains:

In our relief that Justice Roberts decided not to rock the boat, we shouldn’t forget that the entire case was based on nonsense.

Life without parole for juveniles

The practice the Court struck down today was based on a now-discredited bit of social science. Who says so? The man who came up with the idea in the first place.

I’ve never studied any of the esoteric disciplines – such as Kabbalah or Con Law – so I have no idea whether today’s decision about mandatory life-without-parole for juveniles – the one that sparked a hissy-fit from Justice Alito – is good law or not. But to give you some idea how absolutely uncontroversial it is as policy, James Q. Wilson and John DiIulio both signed an amicus to the effect that the laws in question were passed under the influence of the “juvenile super-predator” idea, which has been conclusively discredited empirically. If those names aren’t familiar, DiIulio invented the term “juvenile super-predator.”

As Jonathan points out, the Court majority didn’t say that no one could be locked up forever for a crime committed as a minor, merely that a law requiring such a sentence based on the charge at conviction alone without any individualized consideration was pointlessly cruel.

Footnote I’ve disagreed with both of them, but Jim Wilson had, and John DiIulio has, real class. Not many of us would be willing to say out loud, in a document going to the highest court in the land, “That idea I came up with? It was wrong.”

ACA and federalism: a bleg

Would state-level individual mandate patches to ACA be constitutional?

Intrade gives the odds for SCOTUS ruling the individual mandate unconstitutional at 77% today. I’m glad I didn”t put any money behind my rash prediction for upholding, though it may still be borne out.

That is, a federal individual mandate. Is there any constitutional bar on the states reintroducing it to patch ACA, assuming the SCOTUS Republican caucus don’t have the nerve to trash the whole law?

My foreigner’s take on the situation is no.

Suppose the Pirate Communist Party takes control of Vermont. Its 95.2% share of the vote has been called suspicious by the WSJ, but it was certified by Diebold’s electronic voting machines, and they can’t be wrong, can they. The new VPCP régime has acted energetically in its first week and

  • nationalised all industrial and commercial enterprises with over $10m turnover, and set up workers’ soviets to run them 
  • abolished intellectual property
  • required all residents to buy a set amount of broccoli and maple syrup, the new “healthy Vermonter breakfast”
  • changed the name of the state to the “Vermont People’s Republic”.

Is any of this unconstitutional? The second conflicts with one of the enumerated powers of the federal Congress, and is dubious. But the others? The broccoli and maple syrup statute has been carefully worded so as not to intrude into the citizens’ fundamental right to privacy – they are compelled to buy the stuff, not eat it. The nationalisation was non-discriminatory and no restrictions have been placed on interstate trade.

Back in the dismal real world, with the prospect of a worse disaster than my Vermont fantasy, the survival of Romneycare in Massachusetts is very strong evidence that there’s no legal bar to a state-level health insurance mandate.

So if the mandate loses federally in SCOTUS, what’s to stop the 15 Democratic-controlled state legislatures  from adopting an individual mandate patch to ACA? And since the law would rapidly become unworkable without it, would there not be strong pressure on Republican state houses to follow suit?

Point of order, Mr. Speaker!

If you think the individual mandate is beyond the enumerated powers of the Congress, where do you get off voting for a federal criminal law against sex-selective abortion?

Under which of the enumerated powers of the Congress may it impose criminal sanctions on physicians for the otherwise lawful practice of medicine based on the intentions of their patients?

Anyone who claims that the individual mandate is unconstitutional but a Congressional ban on sex-selective abortion is constitutional must be either a fool or a con artist. That includes the vast majority of the House Republicans, who voted both to challenge the mandate and to pass the sex-selective abortion ban.

Fearless prediction: No substantial right-leaning pundit will complain.

North Carolina Passes Amendment One

I am a proud North Carolinian, who has lived in this state for 40 of my 44 years (I was born on an Air Force Base in Mississippi, and did a post-doc in England). I am not surprised that Amendment 1 has passed tonight, since polls have shown this was going to occur for some time. However, as it has occurred, it makes me feel not angry, but sad, in the “we can do better than this” sense.

It is also the first time I have seen my kids be interested in politics, and my 11th grader especially has been passionately opposed to Amendment 1, and she is disappointed. It is hard to see her first interest in politics end in disappointment, but that is a part of life.

Continue reading “North Carolina Passes Amendment One”

Department of “Wish I said that,” Ronald Dworkin edition

Ronald Dworkin on the constitutional politics of health reform.

Ronald Dworkin has an important essay in the New York Review of Books. Read the whole thing here. Here’s a key passage:

If the Court does declare the act unconstitutional, it would have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair, and politically workable remedy—not because that national remedy would violate anyone’s rights, or limit anyone’s liberty in ways a state government could not, or be otherwise unfair, but for the sole reason that in the Court’s opinion our constitution is a strict and arbitrary document that denies our national legislature the power to enact the only politically possible national program. If that opinion were right, we would have to accept that our eighteenth- century constitution is not the enduring marvel of statesmanship we suppose but an anachronistic, crippling burden we cannot escape, a straitjacket that makes it impossible for us to achieve a just national society.

I wish I had written that.