Friday, March 30, 2012

Supreme Court Kremlinology

Andrew Koppelman

So what did this week’s oral arguments in the Supreme Court tell us about the constitutionality of the Affordable Care Act?  There are two ways of predicting what the Supreme Court will do.  One is legal analysis.  You read the Court’s decisions, see what broad principles the judges have endorsed, and then apply those principles to the case before you.  But there is a second approach, which I’ll call Kremlinology, after the old practice of analysts trying to guess what the Central Committee of the Soviet Union was up to.  This attempts to piece together any evidence one can find of the whims of those in power, in order to intelligently guess how that power will be used.

One needs to keep that distinction in mind when one reads CNN legal analyst Jeffrey Toobin’s now-notorious statement Tuesday on CNN:   “This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong.  I think this law is in grave, grave trouble.”

Some ACA opponents have taken this as vindication of their constitutional claims, showing that those claims were right all along.  But, of course, they show no such thing.

The rest of this post is on, here.

Thursday, March 29, 2012

The "legitimacy" of the Supreme Court--or, as an empirical matter, can the Court pretty much do whatever five of its members want?

Sandy Levinson

The University of Texas Law School is hosting a two-day conference on "Countermajoritarianism and the Court" tomorrow and Saturday, sparked in part by an article in the recent Supreme Court Review by Rick Pildes suggesting that the "countermajoritarian difficulty" is alive and well, as witnessed most prominently in Citizens United, opposed by roughly 80% of the public. And, of course, there is much discussion of this with regard to the potential that five conservative Republican justices will vote to undo the most significant piece of domestic welfare legislation passed in the last 45 years. But a fascinating paper to be presented by Washington University of St. Louis professor James Gibson, "Public Reverence for the United States Supreme Court: Is the Court Invincible" (available through the web site hyperlinked above), suggests that the fact that a given decision, including undoing the Affordable Care Act, would arguably be countermajoritarian is near-irrelevant, for the following reason: The key question is whether a majority of the public believes the Supreme Court is legitimate, which means, among other things, having the authority to make binding decisions as to what the Constitution means. The answer, based on copious survey data, is yes. Relatively few Americans are willing to denounce the basic legitimacy of the Court--in the way, say, that I regularly denounce the legitimacy of the indefensibly apportioned United States Senate. There are many reasons for this, ranging from civic education that venerates both the Constitution and the institution that ostensibly has responsiblity for instantiating it, to the fact that the Court makes liberal as well as conservative decisions. So, for example, political liberals who have been obsessed with "Saving Roe" are inclined to promote "respect for the Court" even in the teeth of Bush v. Gore. As Gibson has shown elsewhere, the Court suffered remarkably little, if any, from the power-play that was Bush v. Gore.

So, when the five Republican conservatives decide how to vote, will they genuinely have to worry about a significant "backlash" against the Court in the country at large? The answer is almost definitely not. After all, the Republican base would praise the decision as "just what the Constitution means." Another percentage would say something like "I 'm not sure I agree with the decision, but, hey, I'm not a lawyer, and we hire the Supreme Court to tell us what the Constitution means, and even if they sometimes make mistakes, the country is blessed to have such an institution, and we should all accept its conclusion and move on." Even partisan Democrats are likely only to fulminate, but how many will say, "You know, I think that Oliver Wendell Holmes and Mark Tushnet have gotten it right, and we should simply eliminate the very power of judicial review, at least with regard to any federal legislation. After all, we can always vote the congressional scoundrels out, but we don't have that possibility with the politicians in robes who constitute the Supreme Court"?

It would be foolhardy in the extreme to expect Barack Obama to emulate an earlier predecessor, Teddy Roosevelt, by running a presidential campaign that includes court-bashing measures. Even FDR, as historians have pointed out, deliberately refrained from going after the Court in the 1936 election and waited until afterward to embark on his politically disastrous Court-packing plan.

So we should recognize that we live in what Ran Hirschl has called a "juristocracy," where we depend only on the justices own sense of self-restraint (and their ability to get 5 votes) to rein in their particular desires to reshape the country.

The only comments I'm interested in frankly, are about whether a decision to invalidate the ACA will lead any of you who support the legislation (so I really don't want to hear from Mr. DePalma on this one, since he's not the audience) to withdraw "legitimacy" from the Court and support some radical transformation or whether you'll simply say (something like), "well, Scalia and his gang can't live forever, and I look forward to the day when our side will get another judge or two, and then I look forward to their remodeling the country in ways that I prefer." (Indeed, perhaps Anthony Kennedy is already looking foward to casting the fifth vote in favor of same-sex marriage, which will lead political liberals to hug the Court and bless its supremacy.)

Incidentally, I've just posted a presentation of my new book Framed at the blog site of the American Constitution Society that, as you might expect, suggests that political progressives need to think more about the entire Constitution and not only the litigated one, advice that I think is highly relevant with regard to contemplating the future, with or without the Affordable Care Act (which no sane person can believe is/should be the last word on getting control of ever-higher medical expenses that can indeed bankrupt the entire society).

To Destroy, and Not to Save: The Conservatives’ Bid to Strike Down the Entire Affordable Care Act

David Gans

Severability is a doctrine of judicial restraint dating all the way back to the beginnings of judicial review that counsels that a court must try to save, not destroy, a legislative enactment by severing any unconstitutional provisions or applications rather than invalidating the statute as a whole, so long as the remainder is fully operative as law and coheres with the intent of Congress. As Chief Justice John Marshall observed almost two centuries ago, “[i]f any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the Constitution of the United States . . . .” But yesterday morning, during oral argument, a number of the Court’s conservative Justices seemed poised to invoke the doctrine of severability to strike down the entire Affordable Care Act, turning judicial restraint on its head.

During the argument, Justice Antonin Scalia – long admired by conservatives as a champion of judicial restraint – was the most vocal of the Justices in supporting Paul Clement’s argument that the Court should strike down the entire Affordable Care Act, including hundreds of provisions that no one argues are beyond the constitutional power of Congress and bear no possible relation to the individual mandate. Throughout the argument, Justice Scalia argued that “if you take the heart of the statute, the statute’s gone,” and hence, if the individual mandate falls, so too does the entire Affordable Care Act, even unrelated provisions designed, for example, to provide black lung benefits, health services for Native Americans, and to promote breastfeeding. Justice Scalia’s argument was based less on applying severability law as developed by the Court – which as Justice Ruth Bader Ginsburg pointed out called for the Court to act as “salvage job” not a “wrecking operation” – but on Justice Scalia’s own intuitions about political process theory. Scalia suggested that Congress would be better off with a clean slate, even if that meant invalidating a long list of democratically enacted provisions that unquestionably fell within Congress’ constitutional powers, since otherwise, in Scalia’s view, legislative inertia would make it too difficult for Congress to respond to a ruling invalidating the individual mandate. In Scalia’s hands, severability doctrine requires the court to destroy, not save, statutes, reversing the received wisdom about severability dating all the way back to the Marshall Court. No wonder Justice Elena Kagan called Scalia’s approach a “revolution in our severability law.”

Justice Antony Kennedy agreed, to a considerable extent, with Justice Scalia’s argument, suggesting that saving as much of the statute as possible was not an act of judicial restraint. “We would be exercising the judicial power if one Act was – one provision was stricken and the others remained to impose a risk on insurance companies that Congress never intended. . . . That, it seems to me can be argued at least to be a more extreme exercise of judicial power than . . . striking the whole.” Justice Alito, too, worried about the plight of insurance companies if the Court were to strike the individual mandate and sever the rest (as if it were more important for the Court to preserve the lobbying bargain struck by AHIP than the law passed by Congress) . Meanwhile, Chief Justice Roberts argued that since the Act serves both the goal of patient protection and affordable care, the conventional severability inquiry, which dictates saving statutes to advance the statute’s basic purpose, breaks down. Judicial restraint in the hands of the Court’s conservatives facing a statute they do not like means striking down as much as possible, rather than saving statutes that are clearly within Congress’ constitutional power.

To find any Supreme Court cases that support this basic approach to severability, one has to go back, far back to the dark days of the Lochner era, when a narrow majority of the Supreme Court used a cramped understanding of Congress’ Commerce Clause and Tax and Spending powers together with severability doctrine to strike down congressional efforts to end the depression and relieve the human suffering experienced during the Great Depression. In cases like the Court's 1936 ruling in Carter v. Carter Coal, which invalidated by a 5-4 vote the New Deal Congress’ effort to regulate the coal industry, the Court seized on severability to destroy, not save, otherwise constitutional statutes that conflicted with the Justices’ laissez-faire preferences. In language reminiscent of yesterday’s proceedings, the conservatives of the Lochner-era argued that the comprehensive regulatory statutes pushed by FDR and enacted by the New Deal Congress had to fall as a whole; the parts were designed to work together and hence too inter-connected to permit severability of the constitutional provisions. Since then, the Court has repudiated this basic approach time and again, emphasizing that the guiding principle of severability doctrine is to save and not to destroy. As Justice Sonia Sotomayor explained during yesterday’s argument, the law’s presumption is strongly in favor of severability because of basic principles of democratic governance that demands that court stay out of the business of lawmaking.

The Court’s conservatives now find themselves on the edge of a precipice. If the conservative Justices follow the path of the Lochner-era Court by first second-guessing Congress’ express constitutional powers to regulate interstate commerce, tax, and spend money in the general welfare and second by invoking severability doctrine to strike down the entire Affordable Care Act, what principled justification could they possibly give to their American people for their judicial activism and disregard for our nation’s basic constitutional and democratic structure? One thing is certain – after Citizens United, the institutional legitimacy of the Supreme Court, not to mention the legacy of John Roberts and Anthony Kennedy is very much on the line. The whole world is watching, and the question now is whether the conservatives on the Court will heed or break from our established constitutional traditions.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at Constitutional Accountability Center. This post is cross-posted at Text and History.

The Shadow of the Filibuster

Gerard N. Magliocca

One issue that came up in the arguments yesterday was the role of the filibuster in increasing legislative inertia. Current cloture practice, which is totally inconsistent with how the Senate operated for most of our history, complicates the Court's consideration of the Affordable Care Act case and is pushing the Justices toward a more radical opinion. How so?

1. It undermines the argument that political remedies can protect federalism.

Nobody thinks that Republicans can get sixty seats in the Senate. As a result (unless you come up with a very creative view of the reconciliation process), the Affordable Care Act functionally cannot be repealed by Congress. Without the filibuster, the argument for judicial deference would be more persuasive for those Justices who are concerned about the individual mandate.

2. It makes the severability argument more implausible.

The Justices probably do not believe that Congress can quickly replace the individual mandate with another funding mechanism before 60 votes cannot be found for an alternative. Since leaving the rest of the ACA intact without the individual mandate would be a disaster, throwing out the entire Act looks more attractive.

Justice Kennedy suggested that he was more interested in the actual Congress than in the hypothetical Congress, and the chief difference between them is that you need a supermajority to act in the Senate.

About that Case

Deborah Pearlstein

The Latin maxim Scalia might have more helpfully invoked is the one the Brits like to call Occam’s Razor – the idea that the simplest explanation is usually the right one. I fear we all (that is, all of us who thought or hoped the Court would recognize this as an easy case) might share some blame for making this mistake. So we should thank folks like President Reagan’s former Solicitor General Charles Fried, who yesterday came more quickly to the point:

“[T]he power of Congress is to regulate interstate commerce.… [H]ealth care is interstate commerce. Is this a regulation of it? Yes. End of story.”

Lest I lose my law professor bona fides by leaving it at that, and/or otherwise disappoint my 1L con law students, maybe better just to recall how our national/ legal conversation drifted so far from this, it would seem, self-evident conclusion, to the contrary one.

The opponents of the ACA had two basic arguments about why the law isn’t an exercise of the power to “regulate commerce.” (1) Because the law is a regulation of health insurance, not health care, and the power to “regulate” doesn’t include the power to make someone buy something they don’t want to buy; (2) If Congress can do this, it has A LOT of power to regulate commerce, indeed, so much power that it’s basically unlimited. And that’s not what the framers had in mind when they gave the federal government some, not all, the power in the world. Let’s take them in turns.

The power to “regulate.” The ACA is a law about the entire health care system and then some, from insurance industry regulations to a requirement that chain restaurants display the caloric content of meals to the imposition of a 10% tax on indoor tanning services. It’s one of the health insurance pieces of the law that’s particularly troubling plaintiffs. But that insurance piece is, as the Court (Scalia included) put it in Lopez and Raich, when they were explaining that various kinds of even non-economic activity (i.e. activity where no one is buying or selling anything) could still be regulated under the Commerce Clause, “an essential part of a larger regulation of economic activity.”

But wait, say the plaintiffs, the failure to buy health insurance isn’t just a non-economic activity, it’s non-economic inactivity; the Court’s never said that’s ok before. Here, it becomes clear that what makes this case complicated is not the complexity of government’s argument in the first instance (on that, see above), but rather the time it takes to list the many reasons how and why plaintiffs’ arguments are wrong. So here are a few of them on the inactivity point: (1) Text. The Constitution gives Congress the power to “regulate.” The dictionaries (that Scalia likes so much) say that word means to “make rules.” The word doesn’t imply anything about whether the rules have to be prohibitions or commands. On the contrary, it implies both are fine. (2) Case law. The Court’s cases about the Commerce Clause all say regulation is ok as long as whatever’s being regulated has a “substantial effect” on interstate commerce. Those cases likewise don’t care (or suggest they care) whether the effect is a result of actions taken (like growing wheat) or actions not taken (like failing to buy wheat on the open market). (3) Existential. What’s the difference between activity and inactivity? Am I sitting right now, or am I not standing? Are the uninsured (negatively) not buying insurance, or are they (affirmatively) self-insuring? Hint: The answer is always both. (4) Factual. This distinction only arises at all if you buy the idea that the law is a regulation of health insurance alone, not the entire health care market, in which everyone participates. The only question is how and when they do. Congress is regulating how and when, not whether. (5) Truthful. Yes, Congress can make people do things they don’t want to do. That is what power is.

The limits. The plaintiffs are right: there must be some limits to Congress’ power. The Constitution wouldn’t have gone to the trouble of listing particular powers if it wanted Congress to have all the power in the world. Thing is, there are plenty of limits on Congress’ Commerce Clause power – before, during and after this case. My blogging colleagues below have done a lovely job on these, and I would quibble only with their erudition. That is to say, they’re quite right, but you don’t need that much insurance market theory to understand why. I’ll just recall a few, from the Supreme Court’s own cases over the years. (1) The rest of the Constitution. Congress can’t do anything that’s otherwise unconstitutional. It can’t pass a law regulating commerce that violates your free speech rights, or religious rights, or your due process rights, or your fundamental liberty interests. I’m pretty sure that’d take care of the broccoli forced-feeding problem all by itself. (2) Rationality. Any law Congress passes to “regulate commerce” has to have some rational relationship to that end. Think that’s no limit at all? I’d love to hear someone advance the argument that everything Congress does is rational. I can imagine irrational laws. This just isn’t one of them.

(3) Elections. It seems somehow quaint in the face of Justice Kennedy’s conception of judicial modesty expressed in oral arguments this week to suggest that The People can limit how much power Congress exercises by voting the members thereof in or out of office. Indeed, the single reason I’ve been able to discern for plaintiffs’ insistence that the selfsame health insurance regulation could be passed under the tax power, but not the commerce power, is that in a democracy, we should call a fish a fish. That is, plaintiffs say, sure Congress has the power to pass this law under its tax power. But it tried to pull a fast one over on the voters by sneaking it in disguised as a regulation of commerce, and only if voters know precisely what Congress is doing can democratic checks be effective. So go back, plaintiffs say, add 3 additional letters to the title of the offending provision (t-a-x), re-enact it, and we’ll call it a day. Thing is, this isn’t the kind of case where it seems like we especially need the Court to check the fairness and openness of the democratic process. This law doesn’t affect some discrete or insular minority; 96% of Americans will see a doctor sometime in the next 5 years. This isn’t some obscure provision attached as a rider to some random funding authorization bill. You’ve had to have been living under a rock, buried in sand, listening to your ipod at full volume for the past 4, if not 20 years, to have missed the debate about this law in this country. The plaintiffs could tell exactly what was in it. They just didn’t like it. Thing is, they lost. The good news for them is, they’ll have another crack at getting rid of the ACA in November, still well before the parts they dislike take effect. This is exactly not the case where democracy has failed. It’s working great. The Court need not worry for a moment about having to beat the voters to the punch.

Economic Ignorance in the ACA Arguments

Mark Tushnet

1. Insurance is not a Christmas-Club scheme for prudent saving in advance of anticipated expenses. (Justice Ginsburg was clearly being driven crazy by questions that treated insurance as a Christmas-Club scheme.)

2. Not all markets -- even markets with price controls -- are subject to moral hazard/adverse selection. (And -- a point about constitutional law -- imposing price controls on a market is, in all the cases of interest, a clearly constitutional exercise of the power to regulate interstate commerce. If doing so creates a moral hazard/adverse selection problem, addressing that problem would satisfy the "necessity" standard applied heretofore. Then either (a) there's no independent "proper" constraint on congressional power, or (b) as long as not all markets with price controls are subject to moral hazard/adverse selection problems, there's an obvious "limiting principle" at hand.

As Brad Long would say, that is all.

There is a Great Disturbance in the Force

Gerard N. Magliocca

You know that things are going poorly for the Obama Administration when the Solicitor General is being mocked on YouTube. I thought I would add two points about where this runaway train may be heading.

First, there is a chance (small though it may be), that this could end up like NAMUNDO. After the oral argument in that case, it looked like there were five votes to knock out the key provision of the Voting Rights Act. But the Court blinked. The same thing could happen here, since the Anti-Tax Injunction Act gives the Justices an escape route. The difference, of course, is the the VRA has broad bipartisan support and the Affordable Care Act does not.

Let's assume, though, that the Court does invalidate the Act. What would the political implications of this opinion be? When the Court struck down the federal income tax statute in 1895 under similar circumstances, the chief beneficiary was the sponsor of the unconstitutional bill, William Jennings Bryan. In this case, I wonder how such a decision might affect Mitt Romney's prospects if he is still short of a majority of delegates at the end of June. I would not presume to guess, for the precedents show that when the Court starts lobbing constitutional hand grenades into the presidential campaign, all bets are off.

Perhaps giving gratuitous offense...

Mark Tushnet

Has Justice Scalia jumped the shark?

Before offering some reasons to think so, I want to emphasize that jumping the shark doesn’t mean that the show has become absolutely the worst thing on TV, but only that it’s gone into irreversible decline. So, for example, in my view Justice Scalia offered the most coherent version of the challenge to the individual mandate in his presentation of the “necessary and proper” argument, invoking an “implicit … evident principle in the Constitution.”

I’ll get back to the ACA arguments, but my “jump the shark” question was actually provoked by reading Justice Scalia’s dissent in Vartelas v. Holder, where he writes, “Ignorance, of course, is no excuse (ignorantia legis neminem excusat).” I can understand translating an obscure Latin phrase into English, but what on earth was he thinking when he translated a perfectly understandable English phrase into the Latin from which, I’ll concede, it was derived? It suggested to me that he’s lost control of his cleverness, or – put another way – that he’s interested in displaying his cleverness for its own sake (or for his own sake).

Now, to Justice Scalia’s performance in the ACA arguments: For my money, the “Jack Benny” exchange in the Medicaid expansion argument is simply embarrassing, another example of Justice Scalia losing control of his own cleverness – to the point where the Chief Justice had to step in and say, “That’s enough frivolity for a while,” but only after Justice Scalia realized that he had gotten completely off track with his own intervention (he was playing around with “your life” and “your wife,” but at the very end, after the Chief Justice tried to get him to stop with, “Let’s leave the wife out of this,” Justice Scalia said, “I’m talking about my life,” which completely undermines the point, such as it was, that he was trying to make).

In the severability argument, I was struck by where the “clever” Eighth Amendment argument went. Justice Scalia asked, “What happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that? [Laughter] Or do you expect us to – to give this function to our law clerks?” A bit later Justice Kagan picked up on the “law clerk” reference: “For some people, we look only at the text. It should be easy for Justice Scalia’s clerks.” The transcript notes “Laughter” here as well. What’s interesting to me is Justice Scalia’s offended response: “I don’t care whether it’s easy for my clerks. I care whether it’s easy for me. [Laughter.]” A person in greater control would have let the sting pass.

The final notable feature of Justice Scalia’s interventions in the argument – again, I’m not saying that these were pervasive, only that they occurred often enough to be noteworthy – is that he repeatedly went for sound-bites reproducing common conservative talk-radio lines. In the mandate argument, after the Chief Justice and Justice Alito had formulated serious questions about the reach of the government’s arguments (for Roberts the cell-phone question, for Alito the burial insurance one, each of which gets in different ways at the “moral hazard/adverse selection” issue at the heart of the government’s argument), Justice Scalia lowered the level of the discussion by asking the “broccoli” question, which was at that point quite silly (and then reverted to the point, no better when repeated, asking about mandatory car purchases). In the severability argument Justice Scalia felt compelled to introduce a serious question by invoking “the corn husker kickback,” a provision not included in the statute (and, to make the question coherent, he had to introduce a nonexistent “constitutional proscription of venality”). Again, it’s trivially easy to come up with an example from the statute that raises the same question (Justice Breyer did it at, as usual, great length). And, finally, he went for “The President said it wasn’t a tax” line – to which the Solicitor General had the good sense not to invoke Abraham Lincoln on how many legs a horse has.

As-Applied Challenges, Severability, and the Mandate

Guest Blogger

Gillian Metzger

Tuesday’s argument on the constitutionality of the individual mandate was striking in many respects. First is the apparent skepticism that the five more conservative members of the Court displayed towards the constitutionality of the mandate. Although questions at oral argument do not necessarily reveal how the Justices will vote, these five seemed sympathetic to the claim that Congress cannot force individuals to engage in economic activity.

But equally striking, and too easy to lose sight of, is the key point on which all of the parties agree and the Justices appeared to accept: Congress can require anyone who is seeking healthcare services, and is therefore active in the healthcare market, to obtain insurance as the mechanism to finance those healthcare purchases---or pay an annual tax penalty. As Justice Kagan particularly noted, the issue here is simply one of timing. Those who oppose the mandate’s constitutionality say that Congress can only require purchase when an individual actually seeks healthcare, whereas those who support it contend that Congress can require purchase now because requiring purchase when someone shows up sick is infeasible. Critically, however, no one denies that Congress can require anyone actively seeking healthcare to buy insurance.

If so, the facial challenge to the constitutionality of the mandate being brought here has to fail. The Court has sometimes suggested that a facial challenge can only succeed if there’s no set of circumstances in which a challenged provision could be constitutional, and at other times said it’s enough if a statute lacks any plainly legitimate sweep. But under either standard, the facial challenge here can’t succeed, given the tens of millions of uninsured who access healthcare services each year (around 57% of the 40 million uninsured, according to a leading source of data on national medical spending).

The failure of the facial challenge here also follows from two key elements in the Court’s Commerce Clause jurisprudence going back to the New Deal: first, that Congress can regulate on an aggregate basis; second, that Congress’s power in regulating economic activity which substantially affects interstate commerce is plenary. This means that Congress can act to address the tremendous problem of cost-shifting caused by the uninsured in the aggregate, even if not every uninsured individual imposes costs, and does not have to tailor its regulations to suit the particular needs of the young and healthy.

As a result, if a majority of the Court concludes that the individual mandate is unconstitutional insofar as it forces people to buy health insurance before they have sought healthcare, then the Court’s proper path is clear. It should reject the facial challenge, and at most hold the mandate unconstitutional as applied to those individuals who do not use any healthcare. Happily for the Court, this approach also avoids the difficult questions surrounding how much of the Act to sever if the mandate is deemed unconstitutional. Such an as-applied approach handles all the severing that is needed.

Gillian Metzger is Vice Dean and Stanley H. Fuld Professor of Law at Columbia Law School. You can reach her by e-mail at gmetzg1 at

"Wow! WOW!"

Marty Lederman

That was Justice Kagan's reaction to the logic of the States' extradorinary Medicaid argument yesterday afternoon. (Check out the first three minutes of the audio.) And her incredulity is entirely justified, as I explained here a couple of days ago.

During the argument, the Chief Justice and Justice Scalia, as well as the plaintiff States' attorney Paul Clement, tried repeatedly to tamp down the "Wow" factor by invoking the analogy of the classic ultimatum: Holding a gun to the states' heads and saying "Your money or your life." Which would be an apt analogy . . . except that there's no gun here, and the States's argument is not based on any federal demand for (or commandeering of) the States' money. What the States are complaining about, instead, is a case of "Take our money, and spend it to provide aid to your citizens in the manner we determine or . . . you can't have our money."

At issue here is an offer by Congress to give the states hundreds of billions of dollars--Justice Kagan wasn't exaggerating when she referred to a "boatload" of money (indeed, it's a shipload)--on the condition that the states spend the money, as they have since Medicaid's inception, on the categories of needy persons identified by Congress, for the medical services the legislature prescribes. This is a much larger boatload of money than Congress has offered in the past--approximately $443 billion dollars more. And Congress determined that those additional hundreds of billions are to be spent on a new category of beneficiaries, not previously covered by Medicaid--namely, individuals under age 65, not receiving Medicare, with incomes up to 133% of the poverty level.

The objecting States don't think federal dollars should be spent on this new population of Medicaid recipients. What they are asking for, then--as a matter of constitutional right--is not the control of "their money" or "their life," but instead the freedom not to spend the federal dollars on that new population . . . but to be entitled nonetheless to re-up the deal they had previously enjoyed with the federal government. In particular, they insist that the Constitution entitles them to accept only the percentage of the federal billions Congress is offering that corresponds to the beneficiaries the States deem worthy of Medicaid protection. The "threat," such as it is, is thus that the federal government might cease giving the states Medicaid dollars to serve the populations who were Medicaid beneficiaries in years prior to the ACA, if the states refuse to use additional hundreds of billions of federal dollars to benefit the expanded set of beneficiaries. That is to say, it's an extremely generous offer, with almost no strings attached, but it's an all or nothing offer.

To use a variation on Justice Kagan's hypo: Imagine a law school hires a professor to teach Property for one year, at a salary of $200,000. The school informs the teacher, however, that it reserves the right to alter, amend or rescind the arrangement in any future years. The teacher takes the job, and it's an excellent fit: she is rehired to teach Property each year for decades on end. Every so often, the school assigns her new responsibilities, and gradually increases her salary accordingly. The teacher becomes very invested in the job; she's put a lot of time and energy into it, has made a lot of close friends and colleagues, and has shaped her life around it.

Then, decades into the arrangement, the school determines that it now needs someone who teaches both Property and Intellectual Property. It offers the existing teacher a raise to 10 million dollars if she will teach both classes. She hates IP, however, and wishes only to teach Property--and she's willing to continue to do so for her current salary. Sorry, says the school, it's both classes (and the $10 million), or neither. The teacher loves her current job so much that she reluctantly takes the $10 million, and teaches both classes.

Does that sound like "your money or your life"? Is the $10 million a dangerous weapon?

"Your money or your life" is a classic example of a choice between two options, neither of which the ultimatum-maker has the legal right to demand. The parallel in Supreme Court case law was the "take title" provision of the Low Level Radioactive Waste Policy Amendments Act (LLRWPAA), which the Court declared invalid in New York v. United States, 505 U.S. 144 (1992). That provision required New York to either legislate a solution to the problem of radioactive waste within its borders or take title to the waste and become liable for all damages associated with it. That choice between the two commands--neither of which Congress could impose sanding alone--was "no choice at all," Justice O'Connor explained. "Your money or your life" was the appropriate (if hyperbolic) analogy there.

Then there are middle-ground cases, in which one side of the choice is a demand that could not be imposed standing alone, but the other option is acceptance of a federal benefit, rather than another command. As the Solicitor General noted in his argument yesterday, there is at least one historical example in which the Court held that such a federal inducement to a State was unconstitutionally coercive because the condition--the "demand" side of the offer--cut too close to the core of state sovereignty. That was in Coyle v. Smith, 221 U.S. 559 (1911), where Congress had offered the territory of Oklahoma admittance to the Union as a State on the condition that its capital be located in the city of Guthrie (current pop.: 10.191). Most of the time, however--and in every challenge to federal spending conditions ever litigated--such "inducements" are constitutional, even when the condition is an exercise of state authority over which Congress has no article I authority. I canvass the leading such cases in my previous post. Most importantly, in New York itself, the Court described the spending choice in the LLRWPAA as one of the "variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests.” 505 U.S. at 166. The Court thus upheld that Spending Clause provision, even while it was invalidating the "no choice at all" take-title provision.

But Medicaid is not even one of those middle-ground cases. The requirement Congress is imposing, as a condition of the states being able to receive the portion of the Medicaid "boatload" they desire, is not that a state move its capital (Coyle), or tax its citizens (cf. Steward Machine), or legislate an unpopular solution to a vexing problem (New York), or prohibit its teenagers from drinking (Dole). It is only that the states use the entire boatload of the federal dollars, including the $443 billion for new beneficiaries, to provide the medical care for which those dollars are being offered.

As Justice Kagan said, that isn't "anything but a great choice." And if that generous offer is unconstitutionally "coercive," then, well . . . WOW is right.

Wednesday, March 28, 2012

Which Innocent People Shall We Hurt Today?

Andrew Koppelman

Today’s Supreme Court arguments on the Affordable Care Act involve complex technical issues of “severability” and “conditional federal spending,” so let’s get right to the core issue.  The judges are being asked to take away health insurance from millions of people.  And judging from what they said, they just might do it.  Constitutional arguments that were clear howlers a few days ago now have a chance at becoming the law of the land.

The rest of this post is on, here.

Five Limiting Principles

Neil Siegel

Jack and I see this matter similarly. With respect to each of the three enumerated powers in play in the ACA litigation, there are limiting principles available to the Court that would allow it to uphold the minimum coverage provision while respecting the structural principle of a national government of limited, enumerated powers.

The Necessary and Proper Clause

1. Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate. In light of the adverse selection problem, upholding the minimum coverage provision would not mean that Congress could issue whatever purchase mandates it wanted. Rather, a decision upholding the provision could hold narrowly that Congress may issue a purchase mandate when, but only when, such a mandate is reasonably (or substantially or closely) related to preventing the unraveling of a market that Congress is regulating in undeniably constitutional ways.

It does not matter if Congress contributed to the problem. That was true in Comstock as well. It could not be otherwise: Congress can prevent terrorist attacks on military bases notwithstanding the fact that Congress created the targets when it created the bases.

Using the Sweeping Clause would allow the Court to uphold the minimum coverage provision on very narrow grounds.

Using this clause would also have the virtue of being responsive to the main reason why Congress enacted the ACA. The problem is not millions of Americans who just want to be left alone but are being forced to buy something they do not want or need. The problem is 40 million Americans who desperately want health insurance but cannot afford it because they fall into the nongroup market. If someone loses a job, gets very sick, and does not qualify for Medicaid, she and her family may end up in serious financial peril.

The Commerce Clause

2. The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets. In other words, Lopez and Morrison remain secure if the Court upholds the provision.

3. The economic problems addressed by the minimum coverage provision are interstate in scope. Collective action failures and interstate externalities impede the ability of the states to guarantee access to health insurance, prevent adverse selection, and prevent cost shifting by acting on their own. Insurers operate in multiple states and have fled from states that guarantee access to states that do not. Individuals have turned down better job opportunities in states that do not guarantee access because they cannot afford to lose their health insurance. Residents of one state access medical care in other states.

The SG may have declined to stress this limiting principle because some federal laws exceed it. But that should reassure the federalists on the Court, not concern them.

The Tax Power

4. As I wrote in a recent post introducing a new paper of mine, the minimum coverage provision respects the limits on the tax power. The difference between a tax and a penalty is the difference between the minimum coverage provision and a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured. Unlike the minimum coverage provision, such an exaction would be so coercive that it would raise little or no revenue. It would thus be beyond the scope of the tax power.


5. The minimum coverage provision does not violate any individual rights, including bodily integrity and substantive due process more generally. These rights would be violated by a mandate to eat broccoli or exercise a certain amount. This limit would not be worth mentioning if these hypos did not keep coming up.

In sum, if the Court upholds the minimum coverage provision, there are several limiting principles that would preclude the federal government from issuing any and all individual mandates, purchase or otherwise.

More on "limiting principles"

Sandy Levinson

Needless to say, I think that Jack's posting is brilliant. One response I've had to the search for limiting principles is to feel that I'm stuck in a Philosophy 101 class full of bad first-year undergraduates in philosophy 101 who believe that there is one and only one correct way of confronting the world and that competitors can be defeated with a single knock-down example. So, for example, there's nothing more to say about utilitarianism once one points out that under some formulations, that allows the torture of babies. Or Kant is sent to woodshed once someone can't explain why we can’t explain why we can’t like to Nazis asking where our friends are hiding. Isn’t life more complex than that? (Isn't one common feature of Ronald Dworkin, Charles Fried, and Robert Nozick, for example, that they all turn into Schmittians when a "catastrophe" threatens. I.e., they're not willing to adhere to their favorite single principle if the heavens really would fall (unless one can make a plausible argument that the principle is so completely important that it's worth the destruction of the world, which returns us to Philosophy 101 and the question whether one would commit incest in order to repopulate the world after a nuclear attack or some such absurd hypothetical). I assume, incidentally, that all of the Republican
Five reject Isaiah Berlin and other pluralists who find it impossible to reduce the world to a single dominant principle that one applies to the bitter end.

Consider Justice Stone’s canonical dissent in US v Butler:

A tortured construction of the Constitution is not to be justified by recourse to extreme examples of reckless congressional spending which might occur if courts could not prevent—expenditures which, even if they could be thought to effect any national purpose, would be possible only by action of a legislature lost to all sense of public responsibility. Such suppositions are addressed to the mind accustomed to believe that it is the business of courts to sit in judgment on the wisdom of legislative action. Courts are not the only agency of government that must be assumed to have capacity to govern. Congress and the courts both unhappily may falter or be mistaken in the performance of their constitutional duty. But interpretation of our great charter of government which proceeds on any assumption that the responsibility for the preservation of our institutions is the exclusive concern of any one of the three branches of government, or that it alone can save them from destruction is far more likely, in the long run, “to obliterate the constituent members” of “an indestructible union of indestructible states” than the frank recognition that language, even of a constitution, may mean what it says: that the power to tax and spend includes the power to relieve a nationwide economic maladjustment by conditional gifts of money.

Would Stone recognize the current majority as the “worthy” successors of the Four Horsemen? And, frankly, doesn't the demise of the ACA, if it should happen, expose us as a more truly ungovernable country than was the case even during the heyday of 1936-37.

Once more on "limiting principles": If there is no way, as Rick Santorum suggests, to stop short ofsupporting bestiality if one supports same-sex marriage, is there any way to stop short of the state's assigning us marriage partners once we allow it to restrict the "marriage market" at all by telling us we can't marry a variety of people? Why is it only proponents of same-sex marriage who have to answer all sorts of absurd hypotheticals and not proponents of restricting the market. Presumably, the latter would offer the "practical" answer that we still have, say, 5 million people availble to us instead of 6 millions, but what PRINCIPLE says that that is legitimate. What if it were only 4 million, 2 million, 100,000, or 25?

Is the Court going to return us to the old days of John Marshall and the use of categorical rule-like on-off switche?. If, after all, "the power to tax is the power to destroy," why does the state have the power to tax/destroy anyone at all? That's really a stupid slogan, since, as Holmes said, taxes are the price we pay for civilization (even if we recognize the possibility of taxes being excessive). Don't we have to live in an unfortunately complex world?

Props to Bart Farr

Mark Tushnet

Because no one appears to be saying this: His argument as amicus in the severability argument was, in my judgment, the best of the three -- clear, well-presented, etc. And you have to admire someone with the quickness and poise to get off the line, "It doesn't sound right the way you say it, Justice Kennedy," in response to Justice Kennedy's description of the opinion he said Farr wanted the Court to write.

The Limiting Principle


Hey kids, are you down in the dumps after Tuesday's oral argument? Do you want a limiting principle that justifies the individual mandate but doesn't give Congress unlimited power under the Commerce Clause? Fine. Here are three of them. Pick your favorite.
Read more »

Our Platonic Guardians

Brian Tamanaha

As many of our greatest legal minds parse every word and gesture of the Justices in the ongoing Affordable Care Act-fest, we should pause to reflect on what it says about our polity that (once again) nine unaccountable people in a room wield veto power over democratically-enacted legislation dealing with an issue of fundamental political and economic significance to our society.

Whither Rational Basis and the Affordable Care Act?

Adam Winkler

If there was one thing missing from yesterday’s Supreme Court argument on the Affordable Care Act’s minimum coverage provision, it was rationality. Or at least rationality review. That’s the standard of review the Supreme Court has applied consistently for over seventy years to Congress’s purported exercise of its power to regulate interstate commerce. “We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce,” explained the Court in Gonzales v. Raich, “but only whether a ‘rational basis’ exists for so concluding.”

Yet although this standard strongly favors the government in the health care case, Solicitor General Donald Verrilli did not emphasize it in his presentation to the Justices. In fact, he all but ignored it. Although Verrilli did warn the Court of its “solemn obligation to respect the judgments of the democratically accountable branches of government,” one might have expected him to remind the Justices repeatedly of the applicability of the rational basis test. Instead, he only once referred to Congress having the authority to use “reasonably adapted” means.

A perfect place for Verrilli to have reminded the Justices about rationality review was in response to a question by Justice Kennedy. “Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed…. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is a, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?” The answer, which Verrilli didn’t give, is quite clearly no. The Fair Labor Standards Act of 1938 (U.S. v. Darby); the Civil Rights Act (Katzenbach v. McClung); the Agricultural Adjustment Act applied to a farmer growing wheat for his own farm (Wickard v. Filburn); and the Controlled Substances Act applied to marijuana grown for personal consumption (Gonzales v. Raich) all went a step beyond what prior cases allowed and reshaped the relationship between individuals and the government. And they all applied rational basis review, in which the heavy burden of justification rests with the challenger.

Justice Kennedy’s question may suggest, however, that Verilli had little to gain by emphasizing rational basis review. The current swing vote on the Court has shown a fondness for applying rational basis in an unusually non-deferential way. In landmark gay rights cases like Romer v. Evans and, arguably, Lawrence v. Texas, Kennedy used rational basis with bite to strike down laws under the Fourteenth Amendment that might have been expected to survive traditional rational basis review. The ACA case may be Kennedy’s opportunity to import a strong version of rational basis into the Commerce Clause – one that, at once, presumes the constitutionality of laws and imposes on the government a heavy burden of justification. It wouldn’t be consistent with rational basis as we know it but it would be consistent with Justice Kennedy as we know him.

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