Thursday, June 28, 2012

Chief Justice Roberts and the Rule of Law

Gerard N. Magliocca

We have a split personality when it comes to judges. Sometimes we want them to follow the law no matter what the consequences are. Blind justice. Sometimes, however, we want them to make a wise decision no matter what the law is.  Solomon.

Chief Justice Marshall famously found a way out of tough spot in 1803 by reading the Judiciary Act of 1789 in a peculiar way to deny William Marbury a remedy.  Following the law would have brought the Court into a terrible (and destructive) clash with President Jefferson. He lectured the President about not giving Marbury his commission, but did nothing to help.

Chief Justice Hughes less famously found a way out of a tough spot in 1935 by holding that Congress lacked the power to repudiate partially Treasury bonds but that bondholders were not entitled to a remedy.  Following the law would have brought the Court into a terrible (and destructive) clash with President Roosevelt. He lectured Congress about the sanctity of bonds, but did nothing to help.

Chief Justice Roberts did something similar today. Following the law and reading the Affordable Care Act in the most natural way (failing to buy health insurance leads to a penalty, not a tax) would have forced him to strike down the individual mandate.  So he didn't do that.  Why? Because a 5-4 straight-line party decision invalidating part or all of the Act would have have brought the Court into a terrible clash with President Obama.  The Chief Justice gave a pretty speech about federalism, but ultimately he did nothing about it.  (Maybe I'm underestimating the importance of the Medicaid issue--I'm not sure.)

Now let's turn to the campaign and see if the voters renew the President's mandate or not.  No preemptive opinion this time (barely).

UPDATE:  If you want to read more about the Chief Justice Hughes example, see my paper that will be coming out in the Florida Law Review.


The court was never going to strike down the entire law. At least Roberts preserved what remains of the CC limit.

The Medicaid ruling could be huge, however. Congress has been blackmailing the states into assuming massive unfunded liabilities for decades by threatening to withdraw current federal subsidies in a variety of programs.

If the reports on the Medicaid opinions are correct, Congress may no longer strong arm the states, which would constitute a major resurrection of the Tenth Amendment.

The immediate effect of the opinion will be all GOP and perhaps several insolvent Dem states opting out of the Obamacare Medicaid mandates, which were projected to add 20 million or so to the rolls of government dependents.

If businesses start terminating their government designed and dramatically more expensive health insurance in 2014 to instead save millions by paying the far lower Obamacare penalty, the ranks of the uninsured could swell dramatically if folks do not want to buy Obamacare policies in Obamacare exchanges. Medicaid was supposed to pick most of these people up.

This law is a complete mess.

I agree with your analysis, but I think you may be underestimating the importance of the Medicaid issue (though I am not sure either). But if the Medicaid issue is critical, that just means that the ultimate decision will need to be made by the political branches at both the federal and state levels.

And if that is the case, it seems that Roberts's opinion may be truly Solomonic.

Not to turn this into an advertisement for your latest book, which I have not finished yet, but I love,* but do you think this is a "conservative" Court in the sense of the generational conflict analysis.

The question arises in my mind because I do not see any new "generational idea" about the Constitution on the horizon. As a progressive, i see me mainly continuing to defend New Deal and Warren/Burger precedents, while the conservatives still seem ascendant to me.

I understand this is only obliquely related to the post, but...

*Since I said that and you were my Con Law professor, would you like to go back and make that A- an A?

Bart, you are wrong, my friend. The Fed don't coerce states, Medicaid recipients are not "government dependents," and people will flock to exchanges, willingly and gladly.

The upshot will be more people receiving coverage than before, less people receiving private insurance, and the creation, over time, of a de facto single payer system, which is a boon to all, since nice rich people can opt in to private care and still be better than the rest of us.

Nonetheless, as with almost all conservative arguments on this points, law is immaterial. their objections are policy objections and can thus be remedied by electing Gordon Gecko president.

timb said...

"and people will flock to exchanges, willingly and gladly."

Obamacare is essentially a rerun of Romneycare. Under Romneycare mandates, the cost of insurance exploded and the uninsured mostly flowed into an expanded Medicaid.

Under Obamacare mandates, health insurance premium inflation has already spiked from 2.5% in 2010 to over 9% last year. This will get much worse because the legislation mandates HHS design a set of Christmas tree policies.

Business in the middle of a depression will be under tremendous pressure to dump their increasingly expensive government designed employee insurance for a far smaller Obamacare penalty.

If Medicaid is not there, the only alternative is the exchanges. The statutory subsidies for the Obamacare insurance assumed a far less expensive insurance premium than will actually emerge. Thus, the newly uninsured will be faced with paying more of their rapidly rising premiums than they did under their employers or going without and paying the far less expensive Obamacare tax.

The best laid plans of mice and socialists...

While the result may be pleasing, the opinion was a decidedly mixed bag. The Commerce Clause was used to strike down a law actually involving commerce. Unlike guns in school zones or violence against women. The positive is that they left Wickard standing based on the active/inactive distinction. But what it bodes for future commerce clause cases is unclear.

The Medicaid portion may be more disconcerting. As a result of the decision, states may refuse to participate in the Medicaid expansion without consequence. So millions may not be covered by the Medicaid expansion. In addition, Breyer and Kagan signed on to this portion of the decision.

This comment has been removed by the author.

I'm trying to figure out Roberts' reasoning, and here's my best shot: he thinks he's pulling a John Marshall in Marbury.

Just to set the stage, it's generally agreed that the first section of the opinion in Marbury was an extended quasi-political attack on the Jefferson Administration. However, to avoid a direct confrontation with the Executive, Marshall cleverly found Marbury's remedy unconstitional, thereby expanding the power of the Court and laying down a marker for the future which turned out to be very important.

I think Roberts decided to duck the confrontation, but to set the current debate on the most favorable grounds -- forcing Obama to defend the statute as a tax increase in an election year. This could arguably make it harder to win re-election.

At the same time, Roberts signed on to the commerce clause portion of the opinion, which is fraught with future implications. The conservatives on the Court can tease those out in future cases.

The success of all this depends on the outcome of the election. If Obama loses, then the decision today will probably be moot -- a Republican Congress will most likely repeal the ACA. Plus, Romney will likely get to appoint additional conservative justices, who can create more restrictive commerce clause jurisprudence. If Obama wins, there's still the potential for restrictive decisions in the future.

All just my best guess, of course.

After reading the opinion, I can only come to the conclusion that Roberts caved. His conflicting opinions that the mandate was a penalty and not a tax for the purposes of the Anti-Injunction Act, but a tax and not a fine to fit it under the taxing power is ridiculous on its face.

Thankfully, in caving, Roberts did not create a federal general police power out of the Commerce Clause. Unfortunately, the CJ's awful taxing power opinion still allows Congress to penalize the citizenry if it declines to act as instructed by the government.

The very bright side of this decidedly mixed opinion is the resurrection of Tenth Amendment federalism. The Court just held that Congress can no longer blackmail the states into accepting unfunded mandates under the threat of withholding current federal funding.

I would like to tap the brain power here. Is there a reason why states could not apply this ruling retroactively and peel away past unfunded mandates. That could solve the state Medicaid funding crisis.

Now let's turn to the campaign and see if the voters renew the President's mandate or not.

Be that as it may, I still find it sad that Congress is trivialized here. This thing (with people upset Obama didn't do more to push them alone) was a long slog thru both houses, the Senate particularly a close call, and it's merely "the President's" baby now.

Putting so much on the President's shoulders is perilous in various ways & is a perversion of how the system actually operates.

As to whole "tax" thing, serious people actually took it being a tax seriously. The means used is different from a draft or criminal sanctions. A "tax penalty" as it is repeatedly called, is a less restrictive, arguably more proper, way to advance these ends.

Anyway, this is prime Roberts: minimalist result, maximalist doctrinal possibilities. Not sure how he got 7 votes to find an unconstitutional condition on spending. Breyer, really?

It's not an unfunded mandate. It's a funded mandate.

And it was the worst part of the decision. The opening was that the court didn't address the question of whether the federal government can withhold PART of a state's existing Medicaid funding if the State refuses to participate in the Medicaid expansion.


Obamacare compeled the states to ither lose their current Medicaid fundng or pick up an estimated 10% of the cost of the massive expansion of Medicaid into a junior single payer system. As with all of its other misrepresentations, Obamacare grossly understates the number of new Medicaid dependents and the states immediately recognized the fiscal trainwreck in their future.

Every GOP state government will opt out of this new unpaid mandare. How on Earth an insolvent Dem government like CA possibly afford this?

Which just shows the need for a national health plan: Medicare for all.

The federal government picks up 100% of the cost for several years. In any event, that's a policy argument not a legal one. And the court did not address the question of whether a portion of the existing Medicaid money can be withheld, as opposed to all of it.

If the Republican governors, like the repugnant Rick Scott, choose not to participate in the Medicaid expansion it will have nothing to do with money. It's because they don't give a damn about low income people without insurance. And it's to spite Obama.

Yes, I actually logged in for the single reason of making sure Bart was ok. Good to see you are still throwin' down, bro.

Re: Robert Link's:

"Yes, I actually logged in for the single reason of making sure Bart was ok. Good to see you are still throwin' down, bro."

directionally, "down" is actually "up."


I would have been apoplectic if Roberts had created a federal general police power like Silberman. Roberts held that line. Indeed, his CC opinion is rather good.

As to the bad part, tax increases designed to fine the citizenry into conforming to government policy are far harder to enact, so the damage wrought by Roberts awful tax opinion is limited. The GOP will point out this opinion every time Dems like Obama lie about something not being a tax.

I am thrilled by the resurrection of federalism in the Medicaid decision. Every state AG needs to study that opinion closely and start calculating how states can escape other similar federal unfunded mandates.

Politically, peogressives need to be careful what they celebtrate. There was never any real chance the Court would strike down the entire law. Striking down just the mandate removes Obamacare's most hated, but actually least effective element. (The Dem Senate went wobbly and reduced the fine to an annoyance).

Politically, such a limited reversal would only make the rest of the law more palatable and harder to reverse by defeating the Dem government in the election and enacting a repeal. However, the Roberts cave has infuriated the Tea Party movement, scared the business community and allows the GOP to campaign against the mandate. After hammering the economy, every GOP candidate can then argue that the only way to escape having the government order you to buy government designed insurance is to fire (fill in the name of the Dem incumbent). Over $2 million flowed into the Romney campaign yesterday and heaven knows how much into various PACs.

This case was a no win for the Dems, a choice between having the surviving law hung around your neck like an albatross and being labeled and outlaw if the Supremes had reversed.

Credit where credit's due department, the "tax" section of the Roberts opinion is well done.

It does make the "proper" argument harder to take seriously since the law is "necessary" per McCulloch v. Maryland (which the "joint dissent" must have thought wrongly decided, since clearly there were alternatives to a national bank, since the country didn't fall apart when there wasn't one) to "active" commerce (insurance companies being regulated) and the means used is functionally not doing anything more to the person than the tax being upheld.

But, you take what you can get, and a half a cheer for Roberts restraint. Sort of like an umpire who makes wrong calls, but is consistent and fair about it.

[see John Dean's Verdict column]


"But, you take what you can get, and a half a cheer for Roberts restraint. Sort of like an umpire who makes wrong calls, but is consistent and fair about it."


What precisely is consistent and fair about finding that the individual mandate was a penalty and not a tax to avoid the Anti-Injunction Act and then to find it was a tax and not a fine to place it under the taxing power?

Bart DePalma,

For the second time, it is not an unfunded mandate. It is a funded mandate.

Our yodeler continues to pucker with his lemon, unable to come up with any sugar.


The states have to pick up 10% of he Obamacare Medicaid expansion and that amount does not account for the far larger number of future government dependents the Medicaid actuary expects based on the Romneycare debacle.

If Obamacare had the feds pay for everything, the states would not have been able to prove damages in the suit and indeed would not have gone to the exoense of the suit in he first instance.

Did you really believe the lies about bending the ost curve down and that all this new coverage would not cost anything?


The more sour the mood of he voters, the better for our Tea Party revolutiion this fall.

The preliminary polling shows voters oppose this decision as they do Obamacare itself.

Our yodeler's "sour the mood" may provide use for the Roberts lemon to go with his tea, but that bag has long been spent.


Blogger IowaHawk had perhaps the pithiest line on the political effect of the Supreme Court decision: “The last time Democrats gloated this hard after a health care victory, they lost 60 House seats.”

See ya at the polls in November.

Who's gloating? Spiderman could not create this much spin. I'm patient. As I noted at an earlier thread, I survived Richard "Tricky Dick" Nixon twice ('52, '68), Bush v. Gore (5-4, 2000) and what that resulted in through the Bush/Cheney Great Recession of 2008, and more recently Citizens United (5-4, 2010). But our yodeler has a short fuse for such a busy person; however, he cannot take the time to provide details on another thread at this Blog accusing historians a la Sen. Joe McCarthy. He's so busy with his DUI practice and working on two new books. Perhaps second hand DUI fumes and smoke have impacted his libertarian brain. I'm not a medical doctor, only a JD, but I prescribe steamed broccoli, not overcooked, to restore his health with the benefit of Obamacare being constitutional.


Who's gloating?

Start with the President and then work your way down through through the Dem media to Prof. Fishkin's gloating in a latter post here.

Is our yodeler talking about trickle down gloating? What about the Etna eruptions of Fat Tony, Skinny Tony, Unk and Sammy Boy?


Trickle down gloating?

That is a good one.

What precisely is consistent and fair about finding that the individual mandate was a penalty and not a tax to avoid the Anti-Injunction Act and then to find it was a tax and not a fine to place it under the taxing power?

The majority followed one lower court, lower court judges and legal analysis supplied by amici to show that the AIA is not as broad as the tax power itself.

The joint dissent understood the idea but didn't think the AIA itself got them there here.


I am aware of the games Roberts and the progressives were playing. Do you actually consider them legitimate?

Has our yodeler discovered with:

"Roberts and the progressives"

a "top ten" constitutional vocal group? The group's name seems to be original. I particularly like their arrangement of "Happy Days Are Here Again".

I take the question is meant to be rhetorical.

Meanwhile, there has been various readings of the statute in question. One short article notes:

"Rather than determining whether the meaning of the word ―tax - in the TAIA is broader than, coextensive with, or sometimes narrower than its meaning in the Constitution, we focus on other language in the TAIA statute."

This would get one to the same end. A search of Shag's new musical group pops up a Washington Times column with a musical beat quoting The Beatles “The Taxman.”

Meanwhile, the USSC announced today they refused cert. in several Affordable Care Act cases (as calls them), so perhaps it is time for me to move on too. Sotomayor, Kagan, break, ACA ... what shall be the theme for June 2013? Maybe, Prop 8? DOMA? Time will tel.

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