The Justices Go The Full Romney

Who knows what the Court will do with the Affordable Care Act.  But these two exchanges, via Lyle Denniston at SCOTUSBlog, seem to sum up the worldview of conservative “jurisprudence:”

Justice Kennedy seemed …. [to argue] that the Court would be seen as exercising judicial activism, not restraint, if it allowed some part of the law to remain intact but that wholly changed what Congress had intended to happen in the health insurance industry.

Near the end of his argument, [Deputy Solicitor General] Kneedler moved to a broader argument, discussing some of the consequences of a decision to nullify all of the Act, including throwing millions of people who had newly obtained insurance off of the rolls.  Many changes in the Medicare program for the elderly also have gone into effect, he added.  But the Chief Justice interrupted to say that all of that occurred on the assumption that the mandate was constitutional, and those developments would not keep the Court from making its own decision about the mandate and the consequences of nullifying it.

Get that?  Oh no!  What’s going to happen to those poor insurance companies?  We can’t let them do that!  But when it comes it what happens to millions of people cut off from health insurance, who cares.  Whatever.

Two different justices.  Two different parts of the argument.  But it speaks volumes about who is important and who is not.  William Graham Sumner would be proud.

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.

13 thoughts on “The Justices Go The Full Romney”

  1. So, all Congress has to do in order to get an unconstitutional law upheld, is forceencourage people to make decisions based on it? How long does the Court get before they’re not allowed to overturn an unconstitutional law? Two weeks?

    1. You’re missing the point, Brett. This is about severability of the mandate, and its effects, assuming the law does get struck down. In short, it’s going to be struck down either way, the only difference is in what way.

      There are three basic options: (1) Strike down the mandate and only the mandate, (2) strike down the mandate and the parts of the law that depend on it, and (3) strike down the PPACA in its entirety.

      Now, we have two justices contemplating rationales for striking down either part or all of the law that do not depend on their constitutionality, but on the effect that has on patients and providers. And Jonathan points out that while they seem to be very concerned as to how it would affect the health care industry, individual patients are SOL (pardon the French).

      In all fairness, I think he’s overstating this; I think that Kennedy is not so much worried about the healthcare industry and its fate, but about any choices as to which parts of the PPACA are to be struck down constituting a non-judicial policy decision.

      1. Dahlia Lithwick in Slate, quoting Kennedy:

        “When you say judicial restraint,” he tells Deputy Solicitor General Edwin Kneedler, “you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than striking the whole.”

        He seems worried about imposing a risk on insurance companies that Congress did not intend, but he could not possibly care less about imposing a risk on, say, the millions of 21-26 year olds who will lose their insurance or the seniors who will see the donut hole open up if they strike down the whole statute.

        1. Ah, I see. I was going by the quote in your original post which seemed to allow for either interpretation.

        2. Uh…couldn’t Congress just amend the law as they deem necessary within the bounds of whatever decision the Court comes to?

          1. This is where not living in a parliamentary system bites us.

            In parliamentary systems, it’s indeed not unusual for the supreme/constitutional courts to essentially send a law that is unconstitutional back to the parliament with “fix plz” instructions (if you’ve been watching the Euromess, that’s what happened in Germany to their ESM law — twice). Parliamentary systems have few, if any, veto points, so that’s not a big deal.

            In our system, with a ton of veto points whose balance of power gets shaken up every other November, it’s not as easy. It takes enormous legislative effort to get a law that has been struck down in its entirety off the ground again. Generally, it’s “back to the drawing board.”

            Thus, the most likely effect if the law is being struck down is that we’ll get a much more intrusive healthcare system in 10-15 years when medical costs have spiraled out of control so much that we need much more serious measures to contain them (not that the PPACA does a great job at containing them, but it’s still much better than the current system and leaves us in a better shape for future revisions), but we won’t get anything before Congress’s hand is forced by necessity.

          2. In a parliamentary system wouldn’t Obama have lost a no-confidence vote shortly after the midterm elections, and no longer be President? A large part of why, if this were sent back to Congress to redraft, we wouldn’t see it again, is just exactly that voting for it the first time around caused the public to dump a fair number of members of the legislature at the earliest available opportunity. In a democracy, that makes the fact that you couldn’t pass Obamacare again a feature, not a bug.

            I’m pretty sure that, in a parliamentary system, if the parliament narrowly passes a law, holds an election, the supporters of the law get trounced and lose their majority, and the courts send the law back for a rewrite, that it’s probably not going to be coming back in any recognizable form.

      2. No, I think you’re missing the point: This is, in part, an argument based on reliance interests; People have already begun shaping their lives based on the passage of this law. People have already benefitted from this law.

        Now, I can understand, (Not agree with, it makes precident superior to the actual constitution, but understand.) the argument that the courts should not overturn longstanding laws because of the disruption overturning them would cause. But this law is not longstanding, it was challenged about as quickly as humanly possible. If this law has been in effect too long to be overturned, then basically no law could be overturned.

        And, yes, overturning it will worsen the position of some people. Upholding it will worsen the position of other people. That’s at best a wash.

        And shouldn’t matter anyway. I mean, what is this, an argument that constitutionality shouldn’t matter if the law is a good idea? I admit that’s the core concept behind living constitutionalism, but you really want to come out and say that?

        Leaving the law intact creates a situation Congress envisioned. Striking it in it’s entirety recreates the status quo ante. Partially striking it down? Creates a situation Congress either didn’t consider, or considered and rejected.

        The bias in cases of complex laws should always be towards non-severability.

  2. Remember in Safford Unified School District v. Redding when Justice Breyer made some weird point about nakedness and changing in gym class. That one were 8-1 against strip-searches of 13 year olds, with only Thomas in dissent. In short, oral arguments are not well correlated with rulings of the Supreme Court.

  3. Justice Kennedy seemed …. [to argue] that the Court would be seen as exercising judicial activism, not restraint…

    Kennedy will be branded a judicial activist if he does and branded an activist if he doesn’t.
    That is both the nature of this case and the nature of the times in which we live.

    So it is lame and vain to premise an argument this way: C-.

    At least Thomas has the continued good sense to keep his mouth shut…
    Rather than remove all doubt: A+

    1. I’m with koreyel on this. Kennedy is a true, Oakeshottian rather than movement conservative. He’s clearly worried not to be a “judicial activist”. He seems to be ruminating here that striking down the mandate is activist either way, severed or not from other provisions. The inference is to let ACA stand, in line with precedent and with deference to the two other branches of government.
      Intrade this morning gives the chance of a reversal at a scary 64.5%. However, unlike with elections, there’s no reason to think bettors are particularly well-informed.

      1. About the only thing I agree with on this blog is James point that you can’t prejudge a SCOTUS decision based on questions raised in oral argument. The questions and hypotheticals are aimed at getting at the best understanding of the issues, not denating them. It is completely incorrect to assume that they represent the thinking of the judge. Having said that, I do think the judges are impressed by the simple fact that the legislation quite purposefully lacked a severability clause, because of the interrelationship of the various components of the law and because Congress wanted to discourage challenges to the law where it passed only by the skin of its teeth and (ab)using the reconciliation process. I would conclude, as the Court might, that invalidation of ANY provision therefore invalidates the whole law. I also reject the premise that lack of severability and the implementation of certain provisions should prevent the Court from determining that the law is unconstitutional, if that is the conclusion it comes to.

      2. How did he vote on Bush v. Gore?

        Also, you are probably correct on this usage, but ‘Oakeshottian’ is a dangerous word to use; people could be forgiven for immediately thinking ‘right-wing pundit’ 🙂

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