Monday, July 02, 2012

Let's Make a Deal

Gerard N. Magliocca

Randy Barnett was on MSNBC this weekend, and his take on the Health Care Cases was (and I'm paraphrasing here) that eight Justices acted in a principled way and one rendered a political decision. Now I do not agree with this.  Chief Justice Roberts' opinion is principled--it's just a different kind of principle.  But even if I accept Randy's premise, he's still wrong.

In fact, six Justices voted in a "principled" way and three voted "politically" or "pragmatically."  It is hard to believe that Breyer and Kagan went into conference thinking that the Medicaid expansion was unconstitutional. That is totally inconsistent with their prior opinions or stated views, though I'm sure that someone will soon write a clever article explaining why they (and the Chief Justice) paid no heed to external considerations.  They must have offered that concession (or were persuaded to offer it) to solidify the Chief's vote on the individual mandate.

I think your take on the decision may come down to this:  What makes the Court look more political?  A party-line vote invalidating the most significant piece of legislation enacted by the other party in forty years, or an opinion that was transparently designed to avoid that result?


Yes, Randy Barnett continued to be in "advocacy mode" or something in thinking that Breyer and Kagan didn't pragmatically do that.

John Marshall was known to compromise. Juries are known to compromise. In real life, what "the law is" is not as "pure" as some make it out to be.

The Constitution itself is a compromise, some vague language papering over difficult. It is artificial how some try to find the true cross here. The law can be a matter of some compromise or we can have like what happened in the Confrontation Clause case, a 4-1-4 ruling or something where Thomas mostly agreed with the dissent but disagreed on some originalist point that even Scalia didn't agree with.

Gerard, I did not see Randy Barnett on MSNBC but I did read his WaPo OpEd published promptly after the ACA decision, in which Randy patted himself on the back because his positions on commerce/necessary & proper clauses were, in his eyes, swallow hook, line and sinker by CJ Roberts - and the other conservative Justices. If you read the OpEd, how does it compare, in your view, to Randy's comments on MSNBC a day or so later? I'm afraid Randy continues to get heartburn from "Wick-burn." This isn't good for his health. But we have Obamacare as a balm.

Two things.

1. I don't get how making Medicaid 7-2 rather than 5-4 would be enough for the price of Roberts's vote, or why making it 7-2 would even much matter.

2. I'm not really aware of any "prior opinions or stated views" on Kagan's part about the Spending Clause, but that aside, if you listen to the oral argument, Breyer spent the whole hour trying to get some assurances that HHS couldn't take back all the Medicaid funding because doing so would be arbitrary and capricious and violate the APA. When Verrilli wouldn't sign off on that and Clement and Scalia batted it down, he seemed concerned. Kagan, for her part, seemed skeptical of Clement's argument, but ultimately spent the back side of the hour trying, like Breyer, to extract a promise from Verrilli that the Secretary wouldn't withhold all the money. For example, take this colloquy:

JUSTICE KAGAN: But, General Verrilli,
you're not willing to give away whether the APA would bar that [withholding all the money], but the APA surely has to apply to a discretionary act of the Secretary.
GENERAL VERRILLI: I agree with that,
Justice Kagan, but -­
JUSTICE BREYER: What's making you reluctant?

Ginsburg, on the other hand, didn't ask Verrilli a single question, and Sotomayor only questioned him in an attempt to throw him a liferaft. Maybe Breyer and Kagan were already advancing their pragmatic views at argument, but it seems to me they wanted to uphold the expansion but genuinely thought withholding all the money was a constitutional problem, hence their anxiousness to get a promise that all the money would never be withheld.

True, but violating the APA and violating the Spending Clause are different issues.

I don't understand how Roberts' opinion was "transparently designed to avoid" making the Court look political, in any other sense than Roberts was the only justice who voted against his presumed partisan preferences. His legal analysis of the taxing power issue is clear, straightforward, and well-grounded in the law. Are you suggesting otherwise? If so, you need to make the argument.

If there is anything transparent about Roberts' opinion, it is his apparent desire to provide a silver lining to his conservative brethren by reaching the Commerce Clause issue, which he did not have to reach. But even that decision, while debatable, is defensible.

The APA issue might have affected Breyer's vote but yes, it is not the same thing as the Spending Clause.

1. I don't get how making Medicaid 7-2 rather than 5-4 would be enough for the price of Roberts's vote, or why making it 7-2 would even much matter.

I don't get how getting two liberals on a major issue on a case that even some opponents thought was striking they took "would [not] much matter."

The thinking is Roberts was trying to get Kennedy to sign on to his CC opinion. The net result if that happened is that three justices from both sides would agree with a "middle approach."

As is, Roberts got two from the 'liberal' or 'moderate' side to sign on to a case most really thought was a total loser.

Why wouldn't did matter?


1. The entire discussion of the Commerce Clause and the Necessary and Proper Clause is dicta.

2. I'm not persuaded that this was a tax.

I think his tax section was well written, but many think he stretched things. OTOH, Roberts argued that the tax interpretation as a constitutional avoidance mechanism that he wouldn't have used if the CC provided a better way.

Some dispute this too, but if we want to take his full tax argument (including on the injunction issue) at face value, why not this?

Let's channel Groucho Marx by substituting "penalty" for "rose," "law" for "girl" and "tax" for "Sam":

"Show me a rose, And I'll show you a girl named Sam. Show me a rose, Or leave me alone." (CJ Roberts, 5-4)

Principled in what way?

In adhering to the law as written? The four conservatives on the commerce and taxing, but questionably on the spending power.

In adhering to their own view of judicial review? Everyone but Roberts. The Roberts tax and penalty distinction is not even internally consistent.

Political in what way?

In following the voters? The four conservatives' dissent seeking to strike down Obamacare reached the result preferred by voters.

In following the desired outcome of the progressive legal establishment? The self identified progressives and Roberts after the proper pressure was applied.

The APA and the Spending Clause are different issues, but as I read their questions, they were trying to get some guarantee that, because of the APA, a withholding of funds that they actually thought was coercive wouldn't happen. Not that they thought there was actually some lurking APA issue in the case (as the putatively arbitrary and capricious action hadn't happened yet) For example:

JUSTICE KAGAN: General Verrilli, before you do that, I'm sorry, but in response to the Chief Justice's question, I mean, the money or your life, has consequence because we are worried that that person is actually going to shoot. So I think that this question about are we -- what do we think the Secretary is going to do is an important one.

Here, Kagan buys the states' "money or your life" framing of the expansion, which is why she wants to know if the threat was real. And Breyer, notably, didn't push Clement on his theory at all; all of his questions to Clement were about whether the Secretary could really or would really withhold the old funds. Their votes are surprising, but entirely predictable given their questions at argument. If you'd told me a week ago that Kagan would join an opinion saying that false statements of fact only are protected by intermediate scrutiny/"proportionality review" because they're low-value speech, I really wouldn't have believed you, but here we are and no one thinks that was a horse-trade.

I said the same thing last week. No other way to explain Kagan's and Breyer's votes other than that it was part of a deal for Roberts's vote.

I'm reading Sandy Levinson's "How I Lost My Constitutional Faith," his contribution to a Symposium on Jack Balkin's book "Constitutional Redemption." (A link to the article, and others, is available at Concurring Opinions.") At page 967, Sandy says:

"And, as we are seeing with the Supreme Court's consideration of the Affordable Care Act, even passage by Congress and the signature of the President may not be enough, should a bare majority of five of the Justices--all, of course, readily identifiable as conservative Republcans--feel empowered to exercise their own veto power, which can be overcome only by constitutional amendment.49"

"49. By the time this Essay is published, readers will have the answer. For what it is worth, my own prediction, as of May 21, 2012, is that the Court will in fact uphold the Act, whether because of Chief Justice Roberts's and Justice Kennedy's fidelity to well-established precedent or because of a prudential judgment, particularly by the Chief Justice, that a 5-4 decision striking it down would do immense damage to the Court's institutional reputation and perhaps even tarnish the legitimacy among significant elements of the American polity."

Now, back to finish Sandy's essay.

bifold doors

I think the Supreme court's decision is for themselves, for their own good. They should make a decision for the good of all.

I see Breyer's vote differently. I think he went into conference, ased on oral argument, believing that the statute should be construed to prevent this, and that the states should have the right to sue the federal government to have all funds not directly related to a group they did not want to cover restored. That's more or less what he said in oral argument. This would have given the justices a way not to reach the Constitutional question.

The problem with a view like that is that it gives the states full power to draw lines. What if a state says "you know, people at 130% of poverty line can buy health insurance. We will only cover up to 125%. Now we will sue to have all funds restored except for those used to cover that last fraction of people that would have been covered under the new plan."

I think the fact that such an argument would be a litigation nightmare would have become clear in conference, and Breyer may have changed his mind. If the horror he exhibited in oral argument didn't go away, that would have left the Constitutional option.

So I do think it is possible that Breyer and Kagan in fact voted the way they did for principled reasons, initially holding a statutory argument and later thinking about it and realizing it really was not a good thing.

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