Wednesday, September 21, 2011

To Hear or Not to Hear

Gerard N. Magliocca

Next week we will learn the Justice Department's position on the certiorari petition now pending before the Supreme Court on the constitutionality of the individual mandate. I want to pose the basic question--Should the Justices exercise their discretion and set this case down for argument during the 2011 Term, or should they wait to do so until after the 2012 election?

Here are some arguments for granting certiorari now. First, the normal practice when there is a circuit split on an important issue of federal law is to take the case. Why should this one be treated any differently? Second, the uncertainty surrounding the health care statute could be partly responsible for our lackluster economy and therefore should be resolved as soon as possible. Third, a decision next year would allow the country to consider the Court's judgment as part of the presidential campaign. (The last two points also weigh in favor of rejecting the Fourth Circuit's holding that the Anti-Tax Injunction Act bars constitutional review of the individual mandate until at least 2014.)

Here are some arguments against taking the case now. First, more circuit court opinions could be helpful to the Justices. Second, the split could be resolved if the Eleventh Circuit grants en banc review and reverses the panel opinion striking down the mandate. Third, a decision taken in an election year may look like a political act that will damage the Court's reputation. Finally, the question might become moot if the Republicans win in 2012 and repeal the individual mandate.

What do you think?


They've got a circuit split, they should take it. No matter how much defenders of the mandate would prefer to improve the odds of Obama getting to nominate another member of the Supreme court...

Lets see. We have a law that is deeply unpopular and was passed by a congressional majority which the electorate rejected at the earliest opportunity. The constitutional challenge is at most tangentially related to the policy debate over the law. In other words, even if the law were rewritten to make it “clearly constitutional” (meaning ok under existing Supreme Court precedent), it wouldn’t significantly change the policy and political debate over the law. But it cannot be rewritten to address this or any other issue because the people who won passage will not give up their gains and the people who opposed passage will not accept the basic legitimacy of the law.

So essentially we are asking the Supreme Court to resolve a stalemate caused by the political branches by deciding an esoteric legal issue that has never arisen before and might not ever arise again, even though deciding that issue probably won’t do anything to end the debate, but will simply lead to a resumption of the political fight with the Court now dragged into the middle.

So . . . no, I don’t think that there is a good reason for the Court to decide this case any sooner than it has to.

The intersection between a probable June 2012 decision if the Court grants cert and the 2012 election season is what make this interesting.

The individual mandate is the most unpopular part of arguably the most unpopular major legislation of our lifetimes. The electoral center shifted against the Dems immediately after they enacted Obamacare over the objections of a plurality to a majority of voters. As a result, the voters fired the Dem House in 2010. An awful economy has made this shift more pronounced and it looks very much like the President and his Senate are going the way of the House in 2012. The court can be forgiven for giving this a pass and allowing the democratic system to resolve the problem.

On the other hand, all it would take is a GOP Senate majority willing to maintain the filibuster and 41 Dems in the Senate willing to defend Obamacare and its individual mandate to frustrate the will of the voters yet again. If this happens, the Court could always address the issue in 2013.

The downsides for the Court in granting cert are obvious.

If the Court strikes down the individual mandate, it will affect the election by allowing the GOP to brand the President and the Dem senators who voted for Obamcare as constitutional outlaws. The largely Dem left legal establishment will accuse the Court of playing politics ala the Bush v. Gore decision.

If instead the Court upholds the individual mandate against their wishes, the voters will react very badly. The polling over the past couple years shows that the American people have lost nearly all faith in their government and do not believe the political class listens to them. When Dem pollster Doug Shoen called the polling results "pre-revolutionary," I do not believe he was being hyperbolic. If a Supreme Court holds that the government has the power to order the people to buy goods and services it desires - something about 70% of the people oppose - the Tea Party will go berserk and a heavy majority of voters will not be far behind them. At the risk of sounding hyperbolic myself, such a ruling could turn 2012 into a realignment election against the progressive government.

Thus, it would appear to me that the Court has every political reason to delay.

Following the comments of the trio from the right - a couple from extreme right - on Gerard's variation on Shakespeare's provocative question, I suggest considering what Finley Peter Dunne's Mr. Dooley might say: "Politics ain't beanbag." The current Court only takes/decides about 80 cases annually. Yes, there is politics involved with this issue. But the Court could take the case and then in timely fashion prior to the 2012 elections decide to send it back for various reasons - technical, of course - so that the Court's ultimate decision might be deferred until after such elections.

Regardless of what happens to the ACA, the issue of health care will not go away. Surely a strong single-payer movement would result as the public likes certain aspects of ACA. Health care is critical to the economy.

But let me digress for just a moment. My next read - hopefully starting later this morning before I embark on my weekly 3-hour, 2 martini lunch, is Barry Freedman and Erin F. Delaney's "Becoming Supreme: The Federal Foundation of Judicial Supremacy" recently published and available via SSRN:

We call all agree that the Constitution, laws, treaties, etc, is supreme, that the Supreme Court has the power of judicial review (although not specified in the Constitution), and that members of the Executive, Legislative and Judicial branches have certain obligations to uphold the Constitution, etc. But the Constitution does not specify that the Court has supremacy over the other branches. So I am interested in what the authors have to say in their paper that runs just over 50 pages single spaced.

Whatever the Court may eventually decide on ACA, there will be the matter of the public's acceptance, in addition to that of the Executive and Congress. Health care is an issue that will not go away.

The strength of the Anti-Tax Injunction Act case, lack of en banc review, the fact that the measure won't kick in for a few years & things might change and the fact the SC already scheduled early term cases so this would be something of a rush all counsel waiting. If anything, hear the injunction act issue first.

I don't know if the electorate actually rejected the legislation at first opportunity. The actual provisions of the law, when people understand them, which often is not the case, are quite popular and if anything some want MORE government involvement. A majority support the law or a law with a public option. If the public doesn't like a specific part, which like it or not was necessary to pass the law, that isn't atypical. The public is fickle like that, political compromises having unpopular aspects.

The public in '10, as is usual in mid-term elections,* voted for the other party. The bad economy led to more success in that area. The idea the swing was because of the ACA is dubious. I also don't know if the mega-issues involved won't arise again. But, I do appreciate mls' bottom line.


* If this is about Scott Brown, I again don't know how people of one state can be "the electorate" and the reasons why he won in particular is a result of various factors, including MA having a health law in place and a lousy opponent. Let's see how he does against Eliz. Warren.


The GOP broke into a lead in the congressional generic during the Obamacare debate leading up to the Christmas Eve Senate vote on the bill drafted in secret.

In an article entitled “Did Controversial Roll Call Votes Doom the Democrats?” at The Monkey Cage blog, Eric McGhee, performed an analysis of Dem votes for TARP, Obamacare and other unpopular Dem enactments and found that a Dem incumbent in a swing district lost about 4% of the voters by supporting each initiative and that the Dems might have been able to hold the House if they refused to enact any of these programs. (Yes, TARP was a Bush/Dem project. You might recall that the House GOP and most of the Senate GOP opposed it).

In the 2010 exit polling. self identified Tea Party supporters were 41% of the voters nationally, which means we were in or close to the majority in most swing districts.

2010 was a policy referendum election. The 2012 election for President and Senate carries over that baggage and adds a double dip recession.

"by deciding an esoteric legal issue that has never arisen before and might not ever arise again, "

Every new usurpation of power by Congress is, by definition, something which has never arisen before. And since the future is not fixed, one which might not ever arise again. And few issues lack political side effects, while people who like the usurpation will always regard the issues involved as being "esoteric".

IOW, boiler plate excuse for the Supreme court to refuse cert whenever Congress usurps more power. Ain't buying it, and I don't think anybody else is, either.

This comment has been removed by the author.

The fight over the individual mandate seems silly since it was historically an idea promoted by the GOP until the public option was definitively off the table.

The single payer option was the most popular part of the reform movement, but was shelved by conservative opposition that pointed to the need for personal responsibility. Now that their personal responsibility provision is clearly unpopular among the electorate, they've retreated from the position using rhetoric about "individual freedom" as their covering fire. It's like playing Uno, but you have to recite a libertarian catchphrase every time you change direction.

What the court decides to do is probably irrelevant; the fight is now between the powerful insurance lobby and the amnesiacs who would like to remove the mandate that their party supported as a compromise alternative to the much more popular single payer option. If the court were to accept the case and declare an individual mandate unconstitutional, that would seem to open the door for the public option to return to the forefront of health care reform discourse.

Our yodeler provides dessert with:

" ... and adds a double dip recession."

The first scoop was provided by the Bush/Cheney 8 years which also contributed most of the second scoop as a result of its failures that have been fanned by the Tea Party in conjunction with the GOP House's goal of accelerating a declining economy solely to get rid of Obama. So instead of an Obama cherry on top of this double dip, we have George W on one scoop and Dick "deficits are not a problem" Cheney on the other.

They should hold the case until the other cases come up on petitions for certiorari. The Thomas More petition doesn't present the tax power question; If the court found no power ito enact the statute under the Commerce Clause, it would leave the statute's validity in question. And the standing issue in Virginia v. Sebelius is interesting and important--probably even cert-worthy.


By all means use Blame Bush in the upcoming election. Dem pollster Stan Greenberg has been trying in vain to tell you guys voters hate this blame shifting. So far, Obama's continuous use of Blame Bush has only managed to alienate a super majority of the Indis who will decide the 2012 election. I am sure those voters are just pining for more of the same blame game.

Remember when the Dems were a real party and when they had a real President?

"The buck stops here" - Pres. Harry Truman

Our yodeler shows his "true colors" by his failure to reference BJ and the Civil Rights laws of the 1960s without having to go back as far as Harry Truman (who did okay in '48).

By the Bybee [expletives deleted], the GOP version of Harry Truman's message is: "THE BUCK STOPS WITH THE DOUGH."


I'll give you credit for finding yet another creative way to play the race card. In any case, the subject was Dem Presidents who told the truth and took responsibility.

I suppose you can make a more recent case for JFK over Truman. Truman had the pithy "The Buck Stops Here" slogan, but then again he concealed from the American people how extensively the USSR had infiltrated FDR and his administrations with NKVD agents. In contrast, JFK admitted when he screwed up after the Bay of Pigs. After JFK, the pickings are mighty thin.

LBJ regularly lied about Vietnam.

Carter blamed the American people for his stagflation, a sure winner with voters.

The paths of truth and Slick Willy rarely if ever crossed.

Obama may top them all, though, mixing blame shifting with nearly pathological lying. The buck stops with Bush, the rich pay less taxes than the middle class, and the stimulus saved or created 2, 3 or even 4 million jobs depending on the speech. And unicorns dance on the White House lawn.

Our yodeler continues to demon-strate [sic] his:

" ... nearly pathological lying"

with his comments here and at other blogs. (Some less kindly than I would delete "nearly.")

And our yodeler's sensitivity suggests the deck of cards he deals from with his venom and hatred for everything Obama in such colorful language.

And let's review Republican Presidents, e.g. Nixon both as VP and President (let me count the ways), Reagan with his faulty memory on some dirty business in Central America and the Middle East, and the cherries on top with Bush/Cheney for 8 years that American will be paying for yet many years to come. (And for a little humor let's chime in Archie Bunker's theme song reminiscence of using a man like Herbert Hoover again. Archie was colorful but not as sensitive as our yodeler.)

The Court should reject a jurisdictional argument because the merits question is important? That cuts at the primary tool of the right wing of the Court since the Burger era. Not likely.
The Court should grant cert because the election year debate over the desirability of Obamacare should not be obscured by constitutional questions? Sounds like John Roberts' characterization of the Dred Scott case. Regardless, the Bachmanistas reject the legitimacy of judges deciding cases any way but theirs.
As the ACA cases have developed in the courts of appeals, there are 3 threads of argument: the tax argument (with its jurisdictional bar issue); the commerce clause argument; and the libertarian argument (which the 11th Circuit majority denied it was making). The unconstitutionalists will present tendentious questions, and the government has abandoned the tax issue, so that leaves it to the Court to write the questions. So the best course for the Court is to grant the 4th and 11th circuit cases, consolidate them and write the questions.

If the Supreme Court believes that a legitimate legal issue is raised (and multiple splits between the courts seem to suggest this is the case with elements of Obamacare), does anyone here believe that the Supremes should defer a decision to avoid influencing an election?

First, 4 Justices are required to issue Cert. Surely there are 4 prepared to do so - and they may come from either the conservative or the liberal side, or a combination. Of course there will be political factors that the Justices will consider in issuing Cert. If Finley Peter Dunne's Mr. Dooley were still pouring (I'd drink to that), he might say that the Court may pre-empt or anticipate the "illiction returns" to augment his "Politics ain't beanbag."

I finished reading the Levinson/Delaney article on "judicial supremacy" earlier referenced by me and it is an excellent read. I must point out that the authors do not rely upon a specific provision in the Constitution to support current day "judicial supremacy" over the Executive and Legislative branches of the federal government. (So what do originalists and textualists have to say about this?)

Relevant to this post on ACA, the authors state the following (at page 148):

"Allowing the Court to choose the cases it hears not only enhances the Court's image as a decider of important issues, but a court might then exercise political savvy in deciding what can be addressed to its advantage, and what must be ducked."

Let me paraphrase the title of this post: "To quack or not to quack."

When the SC had less power over their docket, they were known to repeatedly use dubious reasons to avoid "substantial federal questions," Naim v. Naim being perhaps the most infamous.

CJ Marshall (see, e.g., Prof. Magliocca's book "Andrew Jackson and the Constitution")was an early master of using the cases given to them and "deciding what can be addressed to its advantage."

The government is quite willing to take up the tax argument, if they were required to do so. [gov't brief]

The SC can write the questions (as they did for the gun cases). Too soon to write merits questions though. If they can wait years to deal with other issues, including actual people in custody, deciding something that didn't even kick in yet now is a bit silly.


Actually, you can offer a rather solid textual argument for the supremacy of judicial review.

Art. III, Sec 2 states "the judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution..."

Interpreting the Constitution of any other law is not among any of the enumerated Art. I powers of Congress.

Interpreting the Constitution is not an executive power that the President can exercise.

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Unless that executive branch writes a signing statement, which suddenly makes it okay for the executive branch to interpret the Constitution.


I did not say that the Congress and President could not and should not interpret the Constitution in the exercise of their enumerated powers. The President is sworn under his or her oath to enforce the Constitution and thus decline to enforce unconstitutional legislation enacted by Congress. Instead, I posted that Article III expressly grants the Judiciary the power to rule on constitutional questions and thus grants this branch the final word.

Our yodeler finally recognizes the oath for Congress, the Executive, etc, under Article VI of the Constitution to "support" it. Does "support" involve interpretation and construction of provisions of the Constitution as applied to statutes, etc?

Article III does not include either the term "judicial review" or "judicial supremacy." Nor do any other provisions of the Constitution as amended. Keep in mind that Article III, unlike Article I for Congress, does not include a "necessary and proper" clause regarding its judicial powers. Specifically nothing in the Constitution provides that determinations of the Court in the exercise of the judicial power shall be superior to the other coordinate federal branches.

In addition, the Constitution includes no specific provision for the manner of interpreting and/or construing the Constitution.

So, how does the text of the Constitution provide the answers to these particular matters? If the text fails to provide the answers, that's when interpretation and/or construction comes into play. And since the Constitution does not specify the manner of such interpretation and/or construction, some theory may be appropriate; one such theory is originalism, but not the sole theory.

The Constitution's Supremacy Clause makes it clear that the Constitution is supreme with respect to the States (and their subparts) - vertical supremacy, as described by Friedman/Delaney in their article - as demonstrated by the Supreme Court in the exercise of its judicial powers. But the Supremacy Clause does not specifically state that the Court trumps the coordinate Executive and Legislative branches in this regard - termed "horizontal supremacy" in the article. To the extent there may be "horizontal superiority" from time to time during the course of years since the Constitution, it results from decisions of the Court that are not challenged by either of the other coordinate federal branches.


Article III expressly grants the Judiciary the plenary power to rule on Constitutional questions, while Articles I and II neither expressly nor impliedly provide any analogous power to the elected branches. This is as much a textual slam dunk as the President's plenary power as CiC and Congress' plenary powers over the purse.

While I personally would amend the Constitution to allow a supermajority of Congress to reverse a Supreme Court interpretation of the Constitution, that is no how the Constitution is currently written.

I am surprised I have to argue this to a good progressive like yourself.

Our yodeler's idea of a "textual slam dunk" ignores the history not only of the founders/framers/ratifiers, decisions of the Supreme Court over 200+ years, and the many challenges of judicial review and judicial supremacy that continue to this day. A "textual slam dunk" may be the age requirements for the President, Senators and House members.

Let's just go back to Brown v. Board of Education and the reactions to that unanimous decision. Presently there may be no challenges to that decision. But consider the challenges that took place for a long, long time. And consider the reactions to other Warren Court decisions, followed by reactions to Burger Court decisions, regarding judicial activism. Then of course we have Bush v. Gore in 2000 (5-4). And there is also the Rehnquist Court's activism following the Burger Court. Judicial supremacy has served the purposes of progressives and of conservatives over the years, given time, perhaps because it is "We the People" who accept the concept, despite changes made by the Supreme Court. But judicial supremacy is not a "textual slam dunk." As I noted in an earlier comment, Friedman and Delaney " ... do not rely upon a specific provision in the Constitution to support current day 'judicial supremacy' over the Executive and Legislative branches of the federal government." Their article was only recently published and I await reactions from constitutional scholars. Views may depend upon whose Gore is being am-Bushed.

"The tragedy of William Jennings Bryan: constitutional law and the politics of backlash" by Gerard N. Magliocca was a good read and its length is akin to a long law review article. It's more novella than novel. I'm not sure if I buy it all, but as usual with a good read, the journey is worth it.

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