Gaming the System: At The Supreme Court, Could Legal Precedent Be Less Important Than Popular Opinion?
Articles of faith, as a rule, don’t change every few months. And yet, just nine months ago, it was an article of faith among court watchers that President Obama’s health care reform plan would be upheld at the Supreme Court by a margin of 7-2 or 8-1. Today it is an equally powerful article of faith that everything rests in the hands of Justice Anthony Kennedy in what will surely be a 5-4 decision. What changed between last March and last Monday?
To review: When the first lawsuits were filed challenging the law in March 2010, the conventional wisdom was that they were little more than a Tea Party stunt. “Several constitutional law experts said this week that it is somewhere between unlikely and hard-to-imagine that the Supreme Court would strike down the new healthcare law,” wrote David Savage at the Los Angeles Times. He quoted George Washington University law professor Orin Kerr, a former Kennedy clerk, saying that “there is a less than 1 percent chance that the courts will invalidate the individual mandate.” In Newsweek in September 2010, Stuart Taylor quoted Walter Dellinger, acting solicitor general under President Clinton, predicting an 8-1 vote at the high court, and Tom Goldstein, another prominent court watcher and litigator, calling for a vote of 7-2.
Fast forward to this week. As my colleague David Weigel put it Monday: “The fate of health care reform is where it was yesterday—in the hands of Supreme Court Justice Anthony Kennedy.” The Wall Street Journal agreed, sighing, “As with so many contentious issues in American life, destiny appears to have appointed [Kennedy] the ultimate arbiter of the constitutionality of the linchpin of this new law: the individual mandate.” Now, the composition of the court has not changed since last year. Nor has the meaning of the Commerce Clause, or the decades of precedents interpreting that doctrine, or the words of the Affordable Care Act itself. The only thing that has shifted between the filing of the Obama health care suits and Judge Roger Vinson’s decision finding the entire bill unconstitutional is the odds. We went from “a less than 1 percent chance” of the suits succeeding to their success being determined by a coin flip in Anthony Kennedy’s chambers.
Putting aside the question of whether it matters what court watchers think—or whether the new odds should make any difference—it’s astounding to witness the conventional wisdom shift so dramatically and so rapidly. It took years for court watchers to take challenges to the collective-rights theory of the Second Amendment seriously. It’s taken just weeks for them to come to believe that the fate of the health care law may be decided by a single vote.
To those in the business of making predictions about the Supreme Court justices, one thing that did change was a smoke signal sent up by Justices Clarence Thomas and Antonin Scalia last month in a passionate dissent from the court’s refusal to hear a case from the 9th Circuit Court of Appeals. Alderman v. United States involved the right of the federal government to criminalize a violent felon’s purchase of body armor. And as Andrew Cohen explained it, the two justices weren’t obligated to publish a lengthy dissent, spelling out—complete with references to Hershey’s Kisses (the new broccoli?)—their view that the Commerce Clause does not allow the federal government to make such a regulation. Their small treatise on the limits of the Commerce Clause’s power, Cohen wrote, “confirms to the world that no more than seven votes on the Supreme Court are still in play over the constitutionality of the federal health care measure.”
Court watchers have long argued that Scalia cannot possibly square his vote (indeed his own words) in the 2005 case of Gonzales v. Raich with a vote to strike down health care reform. Once they read the Thomas/Scalia dissent in Alderman, they had to swallow hard. In Raich, Scalia agreed that Congress could regulate marijuana that was neither purchased nor sold in any market but grown for medicinal reasons at home. “The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce,” Scalia wrote. “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” He added that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”
These words matter a lot to supporters of health care reform. But it’s no longer clear how much they matter to Justice Scalia.
Simon Lazarus has a thoughtful post about all the ways in which the court’s more conservative justices—not just Scalia but also Kennedy and Chief Justice Roberts—”will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.” Reading Raich against the Alderman dissent, I am not sure all the justices are terribly bothered at the prospect of performing such gymnastics. Supreme Court reporters like to believe that the justices are invariably hemmed in and pinned down by their prior decisions, and in a perfect world they might be. But if we learned anything at all from Bush v. Gore, it’s that in landmark cases with huge symbolic stakes, justices on both sides of the aisle can get all kinds of creative.
If that is the case, then in the coming months we should pay less attention to the words of Raich and more to the political scientists and judicial behavior theorists who have a lot to say about how justices decide cases. What really changed between last March and this week is that in making predictions about what happens to health care reform, we have almost entirely stopped talking about the law or the Constitution and begun to think solely in terms of strategic judicial behavior.
Court watchers on both sides of the debate seem to agree that Vinson’s opinion was rooted more in his convictions about the need to restrain federal overreaching than in the court’s modern Commerce Clause precedents. The question now seems to be less about whether the justices can find a way to strike down the law if they so choose—they can—than whether they have the political stomach to do it.
I am not an expert on judicial stomachs. But it seems to me that once you start thinking strategically about how health care reform will fare at the Supreme Court, pretty soon you arrive at some serious questions about the continued legitimacy of the court, judicial responses to public sentiment, and other matters that have far more to do with social psychology than Wickard v. Filburn.
Everyone would like to believe that the kind of constitutional issues presented in these health care suits are clear and specific. But they are precisely the sort of wide-open normative inquiries that may tempt even great and fair jurists to have a little extra-textual fun. “American constitutional lawyers, whether practitioners, academics or judges, seem to feel relatively few genuine constraints in the kinds of arguments they are willing to make or endorse,” professor Sanford Levinson has written. “It is, I am convinced, harder to recognize a frivolous argument in constitutional law than in any other area of legal analysis.”
If the odds of success for the health care challenges have tilted in recent months, it’s not because the suits themselves have somehow gained more merit. It’s because the public mood and the tone of the political discourse have shifted dramatically—emboldening some federal judges willing to support a constitutional idea whose time, in their view, has finally come. Whether this sea change will affect the Supreme Court remains to be seen. At least on paper, the Supreme Court is immune to whatever the odds makers are saying about the law’s chances. If recent weeks have shown us anything, however, it’s that what’s on paper doesn’t matter as much as we think it does in the nation’s courts.
By: Dahlia Lithwick, Slate, February 2, 2011
How Conservative Attacks on Health Care Reform Will Affect You
Attempts to Repeal Affordable Care Act Have Serious Consequences
The Affordable Care Act provides Americans economic and health security with protections against exorbitant premium hikes, better health benefits, and slower growth in health care costs. Conservatives in the Congress are intent on taking these benefits away.
Conservatives are starting to implement their onslaught to repeal the Affordable Care Act this week as Republicans take control of the House of Representatives. They have scheduled a vote on January 12. If conservatives have their way and repeal the Affordable Care Act, we will go back to a health care system that failed millions of Americans: one with skyrocketing costs bankrupting families and our budget, fewer people with access to quality care, and more people at the mercy of the health insurance industry.
Increasing premiums for millions of Americans. Prior to passage of the Affordable Care Act, individuals and families were faced with skyrocketing premiums. Premiums for individuals increased 120 percent and family premiums increased 130 percent from 1999 to 2009. The Affordable Care Act controls these costs. In fact, the nonpartisan Congressional Budget Office or CBO looked at the law’s effect on premiums in 2016 and estimated that the health reform law would cut premiums for millions of Americans. These premiums cuts would be more substantial for those in the individual market, most of whom will receive subsidies to help cover the cost. According to the CBO, those receiving help in the individual market would see their premiums reduced by 56 percent to 59 percent less than they would pay without the law, while also enjoy better coverage than what they currently receive. Repealing the law means going back to a status quo of skyrocketing premiums that made health insurance out of reach and unaffordable for American families.
Costing 400,000 jobs annually. The Affordable Care Act helps create as many as 400,000 jobs annually over the next decade by lowering costs and helping promote a healthier workforce. It includes cost-containment measures to slow the rate of growth of health care spending. Small businesses in particular are helped through exchanges that allow them to pool resources to lower costs as well as tax credits to make it more affordable to offer their employees health coverage. These cost-reduction provisions free up money that otherwise would be spent on health care and allow companies to spend it hiring more workers. In addition, a healthier workforce is a more productive workforce. Those benefits disappear, as well as the jobs created along with it, if the law is repealed.
Increasing costs for seniors by as much as $1,500 in 2011. The Affordable Care Act eliminates the “donut hole” in the Medicare prescription drug program by 2020. Seniors with high prescription drug expenses before health reform had to pay full price for their prescription drugs—without any help from their drug plan—once their prescription drug spending reached a pre-defined limit. People who hit this limit in 2011 will get a 50 percent discount on their name-brand prescription drugs, saving some Medicare enrollees as much as $1,500 in out-of-pocket drug costs. Those savings will not be realized if the Affordable Care Act is repealed.
Hurting communities of color. Communities of color are more likely to be uninsured, and they suffer from higher rates of chronic illness than the rest of the population. The Affordable Care Act addresses these inequities by expanding health insurance coverage and improving access to primary care, including preventive services. These provisions will be eliminated if conservatives have their way and repeal the health reform law.
Increasing costs and deficits. The Affordable Care Act creates tools to control the growth in health costs while improving quality of care. Effective implementation can reduce administrative costs for small businesses and individuals, promote greater use of preventive care, and prevent unnecessary hospitalizations, saving as much as $2 trillion in total health spending over the next decade. In addition, the CBO estimated the law will reduce the federal budget deficit by $143 billion over the first 10 years and more than $1.2 trillion over the next two decades. Repealing the new law stymies these much-needed efforts and reverts to the unsustainable status quo of skyrocketing costs that were bankrupting our country. Make no mistake: The Affordable Care Act provides Americans economic and health security with protections against exorbitant premium hikes, better health benefits, and slower growth in health care costs. Conservatives in Congress are intent on taking these benefits away and going back to a health system that was failing America. And, to top it off, they’d keep their benefits, while taking away ours.
Americans deserve better. We need the Affordable Care Act.
By: Tony Carrk, Center For American Progress. Note: Originally Published January 5, 2011 prior to US House Vote on Repeal.
Judge Vinson’s Tea Party Manifesto
Mark Hall, Fred and Elizabeth Turnage Professor of Law, Wake Forest University School of Law
On first read, the most striking aspect of Judge Vinson’s ruling today is not its remedy — striking the Affordable Care Act in its entirety — but the impression one gets that the opinion was written in part as a Tea Party Manifesto. At least half of the relevant part of the opinion is devoted to discussing what Hamilton, Madison, Jefferson and other Founding Fathers would have thought about the individual mandate, including the following remarkably telling passage (p. 42):
It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.
As I’ve written elsewhere, the same Founders wrote a Constitution that allowed the federal government to take property from unwilling sellers and passive owners, when needed to construct highways, bridges and canals. But Judge Vinson dismissed those and other examples with the briefest of parenthetical asides: “(all of [these] are obviously distinguishable)” (p. 39). Instead, he twice cites and quotes the lower court opinion in Schechter Poultry (pp. 53, 55), which struck down the National Industrial Recovery Act, at the height of the Great Depression and the pinnacle of Lochner jurisprudence.
Still, it’s fair enough to conclude, absent controlling precedent, that being uninsured might not constitute interstate commerce. What’s harder to swallow is the judge’s rejection of the Necessary and Proper Clause. In refusing to sever the individual mandate, he not only concedes the mandate “is indisputably necessary to the Act’s insurance market reforms, which are, in turn, indisputably necessary to . . . what Congress was ultimately seeking to accomplish,” he astonishingly devotes about ten pages (63-74) to hammering home the mandate’s necessity, explaining, for instance, that:
this Act has been analogized to a finely crafted watch . . . . It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper
So if the mandate is so clearly necessary, why is it not “proper.” The answer, as in Virginia’s Judge Hudson’s opinion, is a virtual tautology: because the Commerce Clause does not permit it. Here are critical excerpts:
the Clause is not an independent source of federal power (p. 58) . . . Ultimately, the Necessary and Proper Clause vests Congress with the power and authority to exercise means which may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power. (p. 60)
In light of [United States v. South-Eastern Underwriters], the “end” of regulating the health care insurance industry (including preventing insurers from excluding or charging higher rates to people with pre-existing conditions) is clearly “legitimate” and “within the scope of the constitution.” But, the means used to serve that end must be “appropriate,” “plainly adapted,” and not “prohibited” or inconsistent “with the letter and spirit of the constitution.” . . . The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. (p. 62)
The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.” (p. 63)
My full rebuttal is here, but in brief: none of this is consistent with Comstock, which allows the federal government to commit mentally ill former prisoners to civil treatment, despite the clear absence of any general federal civil commitment power. And this is inconsistent with Lopez and with Justice Scalia’s concurrence in Raich, which note that regulation, otherwise forbidden, of local noneconomic activities, can be justified when this is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Thus, we still await a convincing explanation of why rejecting the “necessary and proper” defense is consistent with recent Supreme Court opinions, authored or joined by most of the conservative justices.
By: Professor Mark Hall, Health Reform Watch, January 31, 2011
Mark Pauly, Father of the Individual Mandate: “Either We Have To Have A Mandate Or Make Insurance Free For Everyone”
In 1991, economist Mark Pauly was the lead author of a Health Affairs paper attempting to persuade President George H.W. Bush and his administration to adopt a universal health-care proposal that would keep the government from eventually taking over the sector. “Our view is that excessive government intervention will make matters worse,” wrote Pauly and his co-authors. “Our strategy, therefore, is to design a scheme that limits governmental rules and incentives to the extent necessary to achieve the objectives.”At the heart of that strategy was the individual mandate, which would go on to be promoted by congressional Republicans, the Heritage Foundation, and Massachusetts Gov. Mitt Romney before being adopted by Democrats and becoming a bete noire of conservatives. I spoke to Pauly earlier this afternoon, and an edited transcript of our conversation follows.
Tell me about your involvement in the development of the individual mandate.
I was involved in developing a plan for the George H.W. Bush administration. I wasn’t a member of the administration, but part of a team of academics who believe the administration needed good proposals to look at. We did it because we were concerned about the specter of single payer insurance, which isn’t market-oriented, and we didn’t think was a good idea. One feature was the individual mandate. The purpose of it was to round up the stragglers who wouldn’t be brought in by subsidies. We weren’t focused on bringing in high risks, which is what they’re focused on now. We published the plan in Health Affairs in 1991. The Heritage Foundation was working on something similar at the time.
What was the reaction like after you released it?
There was some interest from Republicans. I don’t recall whether they formally wrote a bill or just floated it as an idea [It did make it into a bill — Ezra], but Democrats in Congress said it was “dead on arrival.” So that was the end of my 15 minutes.
Was the constitutionality of the provision a question, either in your deliberations or after it was released?
I don’t remember that being raised at all. The way it was viewed by the Congressional Budget Office in 1994 was, effectively, as a tax. You either paid the tax and got insurance that way or went and got it another way. So I’ve been surprised at that argument. But I’m not an expert on the Constitution. My fix would be to simply say raise everyone’s taxes by what a health insurance policy would cost — Congress definitely has the power to do that — and then tell people that if they obtain insurance, they’ll get a tax break of the same amount. So instead of a penalty, it’s a perfectly legal tax break. But this seems to me to angelic pinhead density arguments about whether it’s a payment to do something or not to do something.
That gets to one of the central questions in this argument, which is whether the individual mandate is a penalty for economic inactivity or whether it’s part of a broader system of regulations affecting a market for health care that we’re all participating in, whether we’re buying insurance that day or not.
I see it in the latter way. We thought it was a good idea to do everything possible to encourage people to get insurance. Subsidies will probably pick up the great bulk of the population. But the point of the mandate was that there are a few Evil Knievals who won’t buy it and this would bring them into the system. In our version, the penalty was effectively equal to the premium of a policy. You paid the penalty and you got the insurance. That’s one of my puzzlements here: In the new law, the actual level of the penalty is quite small compared to the price of a policy. It’s only about 20 percent of the cost of a policy.
Do you think the mandate is severable from the larger bill?
I think you could do that. I’d want to take some other things out of the bill, too. But the main part I favor and the part that deals with the uninsured are these subsidies for lower-middle-income people. The great bulk of them would take insurance with those breaks. That won’t go away. The mandate props up community rating, which I’m not a fan of. So I’d throw overboard both the mandate and the community rating. Then I’d add high-risk pools.
You say the mandate was developed as a way to avoid single-payer health care. As I see the evolution of this issue, Richard Nixon countered single-payer with an employer mandate, then Clinton co-opted the employer mandate and Republicans moved to an individual mandate, and then Obama co-opted the individual mandate. But there’s nowhere else to go, as far as I can tell. If the individual mandate dies, it seems to me that the eventual universal coverage solution will rely heavily on government programs — we’ll have single payer in fact even if we don’t have it in name.
I think there’s a slippery slope in that direction. I have mixed feelings about the mechanics of the current bill. Our idea was to have tax credits and very little additional government control over insurance markets, and the legislation has an awful lot of that. I believe you could achieve almost the same reduction of the uninsured with the subsidies and without the mandate. But CBO says that you leave about 40 percent of the uninsured population without coverage in that scenario. If we want to close that gap, then either we have to have a mandate or make insurance free for everyone and run by the government.
Interview By: Ezra Klein and posted in The Washington Post, February 1, 2011
Judge Vinson’s Health Care Smackdown: What’s A Tea Party Without Tea Leaves?
In his spare time, U.S. District Judge Roger Vinson, the author of Monday’s sweeping ruling gutting as “a bridge too far” the entirety of the Patient Protection and Affordable Care Act, apparently serves as the president of the board of directors of the American Camellia Society, an industrious group that evidently appreciates and nurtures a tiny, colorful corner of God’s Green Earth. The camellia is known around the world not just as a plant that produces beautiful flowers — it is the state flower of Alabama, for example — but also as a plant that produces tea leaves. And what’s a Tea Party, after all, without a healthy supply of tea leaves?
It cannot be a coincidence, then, that Judge Vinson, the Reagan appointee who has chosen reverence to the camellia as a hobby, would choose to compare (unfavorably, even) the Obama Administration’s complicated (and increasingly endangered) effort to bring health insurance to 30 million Americans with the efforts of King George III and the British East India Company to tax the tea the colonials quoffed.
“It is difficult to imagine,” Judge Vinson wrote in his 78-page ruling, “that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”
Tea Party analogy? Check. Head-scratching analysis? Check. Judge Vinson wrote:
“… the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not ‘slight,’ ‘trivial,’ or ‘indirect,’ but no impact whatsoever) — at least not any more so than the status of being without any particular good or service. If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce.
The uninsured can only be said to have a substantial effect on interstate commerce in the manner as described by the defendants: (i) if they get sick or injured; (ii) if they are still uninsured at that specific point in time; (iii) if they seek medical care for that sickness or injury; (iv) if they are unable to pay for the medical care received; and (v) if they are unable or unwilling to make payment arrangements directly with the health care provider, or with assistance of family, friends, and charitable groups, and the costs are thereafter shifted to others.”
Got that? The uninsured can only have a “substantial effect on interstate commerce” — and thus be regulated by Congress — if they are subject to the precise conditions which exist today all over the country, and which prompted the Act in the first place. The judge acknowledges this point, to his credit, saying that the Congress would of course have the power to regulate the millions of people who meet his five criteria above. But he then concludes: “But, to cast the net wide enough to reach everyone in the present, with the expectation that they will (or could) take those steps in the future, goes beyond the existing ‘outer limits’ of the Commerce Clause” (emphasis in original).
I suspect there will be a million words of legal and political analysis over the logic and viability of that conclusion.
Unsolicited and simplistic recommendations for the legislative branch? Also check. Judge Vinson wrote: “If Congress intends to implement health care reform — and there would appear to be widespread agreement across the political spectrum that reform is needed — it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not.” In other words: Try again, Congress, and good luck with that!
Painfully half-hearted expression of regret for kicking the entire Affordable Care Act to the curb? Check. Judge Vinson wrote: “I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here” (emphasis added).
I am sure that others, including some of my colleagues here at the Atlantic, will be spending time in the coming hours and days further parsing the ruling. For me, for now, it’s enough to say that Judge Vinson delivered for opponents of the Act precisely what he had promised them one month ago in open court in the motion hearing; a epic, hero-to-a-cause ruling that somehow makes U.S. District Judge Henry Hudson’s ruling last month in Virginia, which also struck down the “individual mandate,” seem like a relative exercise in judicial restraint. And that’s saying something.
Two federal trial judges (Democratic appointees both) have declared the law valid. Now two federal trial judges (Republican appointees both) have declared the law invalid. Ultimately, the United States Supreme Court — and by that I mean swing-voter Justice Anthony Kennedy, who also is a Reagan appointee — will decide. But no matter what happens from here on in, Judge Vinson, lover of flowers and tea-leaf-reader by choice, has just ensured himself at least one more day in the sun.
By: Andrew Cohen -The Atlantic-January 31, 2011: Andrew Cohen has served as chief legal analyst and legal editor for CBS News and won a Murrow Award as one of the nation’s leading legal analysts and commentators.
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