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Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Uh oh . . .
Tuesday, March 27, 2012
Uh oh . . .
Gerard N. Magliocca
The early press accounts of the argument don't sound good for the Government.
Don't sound too good for getting healthcare to millions; don't sound too good for stopping irresponsible people from foisting the cost of their medical care onto others; don't sound too good for allowing healthcare delivery to work given fundamental constraints; don't sound too good for our ability as a society to solve basic problems.
If Scalia was seriously running with the "broccoli" argument - the stupidest legal argument against the feds - then the Court is indeed going to rule politically, not on the legal merits.
Perhaps Tony can explain to me why the state can compel me to buy liability insurance in order to drive.
Of course he's going to rule politically. But there are others on the bench.
When the Court decides in my favor, it is upholding the rule of law.
When it decides in your favor, it is acting politically.
I repeatedly disagreed with SCOTUS. I did not think they "acted politically" each time.
Is this 10 ten stereotypes? Can someone take a dig at Thomas next?
LOL Did anyone catch Scalia's comment here (as reported in the Washington Post):
"When Justice Ruth Bader Ginsburg observed that 'the people who don’t participate in this market are making it much more expensive for those that do,' Scalia interjected,'You could say that about buying a car. If people don’t buy a car, the price [that car buyers] will pay will be more.'"
So now when demand goes down prices go up? I guess the price of gas will soon drop below $10 per barrel, what with so many people using more of it these days. Why again is this man's intellect considered so mighty? His grasp of econ 101 is apparently no better than his grasp of logic 101 (see his comment in his Citizens United opinion that if people at the founding did not like corporations "then why were there so many of them?") or his grasp of morality 101 (see his dissent in Lawrence).
Anderson...The state can require you to get car insurance because it is a state with police power. The federal government doesn't have that power and is limited by the positive grants of power in the Constitution. Talk about a lack of basic understanding of the Constitution....
Yeah treating supposed price influences as somehow the same as cost shifting -- and then getting the direction wrong for his example; wow!
Southern humor has an expression "he don't know nothin', and he's got got that all mixed up"
To be fair, his knowledge of law is probably awesome. Perhaps he should stick with objections based on law. Or is that a problem?
As to Kate, the feds have power to regulate interstate commerce. Thus, for instance, for interstate travelers, they very well have the power to apply insurance and in fact do, e.g., for truckers.
Health insurance involves an existing interstate market, including one long regulated and guaranteed issue in various respects that few want to dispose of.
Shouldn't your title read "So Far, So Good"?
Until the government can offer some sort of bright line rule demonstrating what Congress can and cannot do under the Commerce Clause and show that the individual mandate is on the side of what Congress can do, Kennedy appears to be prepared to find the mandate unconstitutional.
Kennedy does not appear to be ready to erase the Commerce Clause entirely from Article I and replace it with a general police power written in by the Court.
Joe - A trucker is an active participant in an interstate market, sure. The ACA mandate, on the other hand, mandates action to enter into the private insurance market just because you exist. A state could do that, but the feds can't reach non-market participants to create commerce in order to regulate it. Who knows if Kennedy will find that health care is so unique that it justifies the ACA mandate, but the next case will inevitably also be a "special exception" ad infinitum, which is why the "health care is special" argument would gut the Constitution's limits on federal power just as much as a holding that doesn't justify itself as a one-off.
Kate, none one other than perhaps a bum on the street (and I doubt then) merely "exists." They live, work, take part in markets etc. in numerous ways that result in a legitimate reason to regulate something that is 1/6 of the national economy. As with Social Security in the '30s, this might once upon a time been just for states, but as in other Western nations, it is seen as a matter of national economic regulation.
Joe, Your last argument is one that does not recognize any limits on federal power. I understand people have that view, but I think Kennedy and the other "conservatives" on the Court understand the federal structure of our government to be a key protector of liberty, and I hope and expect that at least they will protect that structure in this case.
Kate, "national economic" is itself two limits. Then, there are the limits in Art. 1., sec. 9. The Bill of Rights. The Fourteenth Amendment. Political limits (e.g., now Congress is split and you have to avoid a veto). etc.
So, yes, I firmly accept limited federal power. The feds also has the power to regulate interstate commerce w/o violating the text and spirit of the Constitution.
Hopefully, at least one justice reads up on history and realizes the Constitution was written to give the feds more power to deal with such interstate commercial issues, especially in the market approach here.
Since I think that the mandate is constitutional, I'm sticking with my headline. From the opposite point of view, though, absolutely.
I think there is a possibility that Scalia and others are throwing in the stupid arguments (i.e. broccoli) in order induce the gov't to provide a sound counter argument to it so that it would give him cover to rule in favor of it.
Just a thought...
the justices seemed to be stepping in for Verrilli and seemed to be answering for him in many places where he stumbled. Clement was clearly better prepared. but Roberts was making Verrilli's points for him a couple of times.
overall where Verrilli seemed to stumble the worst was the repeated inability to articulate a limiting principle. Even the liberals seemed disturbed by this at times.
overall where Verrilli seemed to stumble the worst was the repeated inability to articulate a limiting principle. Even the liberals seemed disturbed by this at times.
No one can articulate a limiting principle within the Commerce Clause which would permit the individual mandate but not other acts of Congress because the mandate to engage in commerce where none exists is quite clearly outside the Commerce Clause.
What the government is asking the Court to do is completely erase the limits of the Commerce Clause from the Constitution and replace it with a general police power of the Court's own making.
Limiting principles were stated. As noted in a later post, it's a question if it's the "right" one for whomever is the justice that counts.
Also agree with the later post that (1) Scalia came off as really lame and (2) the argument had a rambling quality. I really don't know why they needed this much time. Didn't really seem to amount to much.
"Perhaps Tony can explain to me why the state can compel me to buy liability insurance in order to drive."
First, this is being handled at a state, not federal, level. See the Tenth amendment: Federal government has enumerated powers, state government enumerated limits.
Second, you're not compelled to have liability insurance to drive. Only to drive on the government's roads. This isn't the state as sovereign, it's the state as property owner. On private property, knock yourself out, the rule doesn't apply.
"Second, you're not compelled to have liability insurance to drive. Only to drive on the government's roads. This isn't the state as sovereign, it's the state as property owner. On private property, knock yourself out, the rule doesn't apply."
might be tested by his driving in order to obtain medical care. Maybe in his backwoods of wherever, he can accomplish his medical needs on private property without "government" [public, local, state and federal] roads. Once again we get the extremely simpletonian libertarian view of Brett. Perhaps libertarians can fulfill all their needs on private roads, especially avoiding the federal interstate highway system. Maybe it's time for a moonshine run on those private roads.
Second, you're not compelled to have liability insurance to drive. Only to drive on the government's roads
My state compels insurance in order to have current registration tags. Even if I drive only drive on private roads, the police can fine me for driving without current tags and without insurance. Similarly, I need to be a licensed driver to operate a car on private roads.
but putting aside legalities, I've never seen protests over the merits of government forcing people to purchase a product (auto insurance) from a private company.
I assume even a simpletonian libertarian is aware that while driving a car on his/her own private property is okay, such use of another's private property normally requires permission else it constitute a trespass.
Is there a way for such a libertarian to use private backroads - with permission, when necessary - to access health care without public roads? Of course, libertarian Congressman and medical doctor Ron Paul could make a house call to attend to Brett's medical needs. But could Dr. Paul avoid using public roads to do so?
It would be extremely helpful to the rest of us if, in your learned deliberations, you here and the Supremes--of all people!--would stop conflating health care, which indeed we all will need sooner or later, with medical insurance, which is merely a means to finance it, and arguably not the best way.
Thanks in advance
The distinction is valid in some contexts, not so valid in others.
It's valid e.g. when pointing out the ACA doesn't address how medicine is practiced but how it's paid for. Generally it's valid in the context concerning individual care; how you get your disease treated is entirely separate from how you pay for it.
It's not so valid e.g. when addressing the fact that medicine we know how to practice won't get delivered because there's no way to pay for it. That medicine might as well not exist. Generally systems contexts: how does the system deliver, how well, and at what total cost?
As far as I can tell, the Supremes don't get any of this.
"Astonishingly, many of the justices appear not to understand that health care isn’t like the market for cars, or broccoli; even more astonishingly, the administration’s lawyer seemed unprepared to explain the difference."
Because of all the hoopla about him, I listened carefully to Paul ("No Notes") Clement's argument, and came away decidedly unimpressed. He name-dropped "Federalist 45" and then a disagreement between Hamilton and Madison, but this rhetoric did not didn't interest anyone.
The SG did an admirable job. Stood his ground and tried to educate the court. This really was a case where some on the court needed edification about how insurance works.
Before this argument, many heavy-weight con-law scholars said this was an easy case, one of the easiest on the calendar. It still is.
My guess, 6 to 3 or even 7 to 2 upholding Obamacare.
Jack suggested three potential limiting principles under the Commerce Clause to save the individual mandate:Post a Comment
1. The Moral Hazard/Adverse Selection Principle. Congress can regulate activities that substantially affect commerce. Under the necesary and proper clause, Congress can require people to engage in commerce when necessary to prevent problems of moral hazard or adverse selection created by its regulation of commerce.
In other words, Congress can expand its power under the Commerce Clause at will by simply creating an economic problem and then commanding citizens to purchase a product to correct that government created problem.
I am unsure how this in any way limits Congress' power under the Commerce Clause.
Why not broccoli? There is no moral hazard problem created when people refuse to buy broccoli. It's true that buying and eating broccoli might make you healthier, but people don't wait until they are sick to buy broccoli. That's because broccoli is not going to do them much good at that point. In this sense, broccoli doesn't work like health insurance.
The same principle holds. Broccoli is the equivalent of preventative medicine. When the government commanded insurers to cover sick people requesting insurance, it destroyed the insurance model of many healthy people paying for the few sick people. Where the mandate to get insurance expands the pool of healthy people paying into insurance, mandating people buy broccoli or preventative medicine lowers the number of sick people.
Why not cars? Under this principle, Congress can't make everyone buy a car in order to help the auto industry. There is no moral hazard that Congress is responding to that is caused by people strategically waiting to buy cars. Note, by the way, that if fewer people buy cars, the price of cars might go down, not up, as Justice Scalia thought.
In a recession, people do indeed delay buying cars, harming the auto industry. While this hypo is not as analogous as broccoli, it does have merit.
2. The Interstate Externalities Principle...States that adopt guaranteed issue and community ratings rules will become magnets for sick people, driving up rates, and uninsureds may flock to states without individual mandates, further driving up rates in the states they leave. This discourages many states from adopting this combination of reforms.
This is the inverse of non-limiting principle one and involves no hypothetical commerce at all. In sum, this argument states that states will not enact regulations harming the economy unless Congress has the right to command us to buy health insurance. The Commerce Clause does not provide Congress with the power to create commerce to enable damaging regulations.
3. The "It's a tax, stupid!" Principle. Congress can regulate economic activities that cumulatively affect interstate commerce. But if Congress wants to regulate inactivity, it must use the taxing power instead. Congress can use its taxing power to give people a choice between engaging in commerce or paying a tax. The rules for the taxing power are well settled since the New Deal. The tax (1) must promote the general welfare, (2) must raise revenue; and (3) and it must not be a criminal penalty in disguise.
This is a rather desperate workaround to the Commerce Clause and not a limiting principle. The problems here are that Obama, Congress and even the left justices on the Supreme Court recognize that this is a penalty. The legislation repeatedly calls it a penalty.
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Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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