I Will Not Question Marbury v. Madison
April 4, 2012 12:13 PM   Subscribe

Judge Jerry Smith (R) of the U.S. Fifth Circuit Court of Appeals has ordered the Department of Justice to do an unusual homework assignment: present him with a three-page single spaced letter specifically addressing the position of the Attorney General and DOJ the authority of the federal courts to conduct judicial review. The "tantrum" or "brave take on the left" depending upon your viewpoint, has legal scholars scratching their heads as to whether DOJ would have to comply. So far, Attorney General Holder has indicated that DOJ will "respond appropriately."
posted by Leezie (277 comments total) 8 users marked this as a favorite

 
Tempest, teapot, molehill, mountain, pottle, kettle, and black: I have gathered you all here for a very special assignment.
posted by Sticherbeast at 12:19 PM on April 4, 2012 [87 favorites]


Maybe this is purely a graphical question – maybe not – but is it customary to put (R) or (D) after a judge's name? Particularly when it seems to indicate, in this case, the affiliation of the person that appointed them? Given the fact that judges have often not acted in the interest of those who appointed them, this seems like a bad idea.
posted by koeselitz at 12:20 PM on April 4, 2012 [15 favorites]


No, it is not customary. There are states that have partisan judicial elections, but even then I don't think it's typical.
posted by jedicus at 12:21 PM on April 4, 2012


I'm with koeselitz. I am unnerved by the existence of that (R) after a judge's name.
posted by TwelveTwo at 12:22 PM on April 4, 2012 [3 favorites]


Ah, who's worried. They'll get extra credit for the 4th page:

SHUT
------
THE
------
FUCK
------
UP!
posted by yerfatma at 12:22 PM on April 4, 2012 [1 favorite]


I think maybe that's the point. Judges are supposed to be so impartial, it shouldn't matter who appointed them.
posted by crunchland at 12:22 PM on April 4, 2012


The Supreme Court (R)
posted by Artw at 12:23 PM on April 4, 2012 [52 favorites]



This whole brouhaha started because Obama accused the Supreme Court of something called "judicial activism".

You can't just say that about judges. It's wrong.
posted by Pogo_Fuzzybutt at 12:23 PM on April 4, 2012 [5 favorites]


I would love to see the DOJ come back with a "No, the Courts do not have any power of judicial review," since judicial review is pretty obviously an extra-constitutional power that the Court granted to itself.

It's time to revisit Marbury v Madison. Come on originalists, you know you want to!
posted by Jonathan Livengood at 12:23 PM on April 4, 2012 [18 favorites]


I just want to make sure that we all have this straight:

When courts overturn laws passed by Republicans, or uphold laws that are passed by Democrats, that is judicial activism.

When courts overturn laws passed by Democrats, or uphold laws passed by Republicans, that is brave support of the US Constitution.

When Obama stated that conservative judges could engage in judicial activism, he clearly betrayed the fact that he doesn't understand constitutional law.
posted by muddgirl at 12:24 PM on April 4, 2012 [60 favorites]


Waste of time, but good for him The judicial branch should have demanded clarification when President Bush was railing against "activist judges" and shut him up once and for all on the subject. Perhaps this will also encourage presidential candidates to keep their traps shut and stop spreading misinformation about the role of our court system.
posted by zarq at 12:26 PM on April 4, 2012 [3 favorites]


When Obama stated that conservative judges could engage in judicial activism, he clearly betrayed the fact that he doesn't understand constitutional law.

Article Eleventy-Thirteen of the U.S. Constitution clearly states: "Whatever brown people, poor people, women, or Democrats want is clearly unconstitutional."

I just don't know what they're teaching in civics anymore...
posted by gauche at 12:27 PM on April 4, 2012 [11 favorites]


While this sort of action from the judge seems pretty out of line (and as someone who has gotten my fair share of lectures from judges, I was wincing reading the transcript), the original Obama comment is pretty baffling. While what it sounds like he was trying to say was "the Supreme Court hasn't overturned a law of this magnitude since the New Deal" which is true enough, but using the phrase "unprecedented" seems like a poor choice.
posted by Bulgaroktonos at 12:29 PM on April 4, 2012 [2 favorites]


Ugh, he called it Obamacare from the bench, and then abused his power to made a nakedly partisan point that wasn't relevant to the case before him (because DOJ was not and would never take the position that judges can't strike down unconstitutional laws). That's seriously fucked up.
posted by Mavri at 12:30 PM on April 4, 2012 [6 favorites]


And, yeah, Obama's point was not well-stated, but it's obvious what he meant.
posted by Mavri at 12:31 PM on April 4, 2012 [1 favorite]


While what it sounds like he was trying to say was "the Supreme Court hasn't overturned a law of this magnitude since the New Deal" which is true enough, but using the phrase "unprecedented" seems like a poor choice.

I don't think it's an issue of the magnitude of the law, but rather that (as many con lawyers have argued) it would be unprecendented for a Supreme Court in the modern era to argue that the federal government does not have the power to regulate interstate commerce.
posted by muddgirl at 12:31 PM on April 4, 2012 [7 favorites]


This whole brouhaha started because Obama accused the Supreme Court of something called "judicial activism". You can't just say that about judges. It's wrong.

No, it is your reading of what he said that is wrong. What he actually did was call out conservative pundits that always complain about judicial activism, that for some reason get all gung ho about it when Obamacare is under the gun. In no way did he ever say there is no power of judicial review.

Stop getting your news from bullshit conservative talking points.
posted by fungible at 12:31 PM on April 4, 2012 [7 favorites]


Well, if I were an activist judge, I would outlaw sarcasm so that this thread would be comprehensible.
posted by koeselitz at 12:34 PM on April 4, 2012 [22 favorites]


Fungible, I had read that as sarcasm. Maybe I'm wrong.
posted by spicynuts at 12:34 PM on April 4, 2012 [1 favorite]


This whole brouhaha started because Obama accused the Supreme Court of something called "judicial activism".

You can't just say that about judges. It's wrong.


First of all, that isn't what he said. To quote the article: President Obama said on Monday that striking down the Affordable Care Act, aka Obamacare, would constitute an “unprecedented, extraordinary step,” amounting to “judicial activism or a lack of judicial restraint

Secondly, judges substituting their own legislative judgments for those of the elected legislators is judicial activism, whether done by Republican appointed or Democratic appointed judges. Judicial review is about assessing the constitutionality of legislation, not whether it is a good idea.

Third, this court has been only too willing lately to ignore past precedent, issue sweeping rulings, and even to redefine case issues to meet their perceived policy goals. Striking down Medicare and "Obamacare," and these are linked issues in the pending case, would indeed be extraordinary judicial activism, running contrary to long established interpretation of the commerce clause.

And this judge is way out of line though I am sure the DOJ will provide a respectful memo to him, very much consistent with the President's own respectful statements.
posted by bearwife at 12:34 PM on April 4, 2012 [3 favorites]


fungible: “No, it is your reading of what he said that is wrong.”

This is what I mean; it's my guess that Pogo_Fuzzybutt was being sarcastic. "You can't say that... It's wrong" sounds sarcastic to me. But then, I've been wrong before. Who knows.
posted by koeselitz at 12:35 PM on April 4, 2012


present him with a three-page single spaced letter specifically addressing the position of the Attorney General and DOJ the authority of the federal courts to conduct judicial review.

Did you accidentally a word? Should it be "on the authority"? I'm confused
posted by Pruitt-Igoe at 12:35 PM on April 4, 2012


Fungible, I had read that as sarcasm. Maybe I'm wrong.

It was. Maybe it was little too subtle.
posted by Pogo_Fuzzybutt at 12:36 PM on April 4, 2012


What a crock! The judge in that case revealed himself to be a partisann hack on the bench -- an amazing lack of judicial temperment, there. The judge should recuse himself from the bench for showing bias. What a bully!

Republicans and Republican candidates, including Presidents & Presidential candidates, have been complaining about judicial activism for years.

As for Obama's comments, so what? He's right. The SC's overturning the law would be a case of judicial activism.

I wish the attorney could have responded, "Hello, McFly, saying that the Supreme Court shouldn't overturn existing law is not the same thing as calling judicial review under question! Duh!"
posted by JKevinKing at 12:36 PM on April 4, 2012 [2 favorites]


I don't think it's an issue of the magnitude of the law, but rather that (as many con lawyers have argued) it would be unprecendented for a Supreme Court in the modern era to argue that the federal government does not have the power to regulate interstate commerce.

What about Lopez and Morrison?
posted by Falconetti at 12:37 PM on April 4, 2012



It was. Maybe it was little too subtle.


It wasn't. Some people just have their panties permanently in a twist about certain issues and go straight to ad hominem.
posted by spicynuts at 12:38 PM on April 4, 2012 [1 favorite]


"All work and no play makes Jack a dull boy." (For three pages)
posted by dances_with_sneetches at 12:38 PM on April 4, 2012 [5 favorites]


Anthony Lewis had some cogent points about this Supreme Court's remarkably politicized approach in a recent interview.
posted by bearwife at 12:39 PM on April 4, 2012 [8 favorites]


I don't think it's an issue of the magnitude of the law, but rather that (as many con lawyers have argued) it would be unprecendented for a Supreme Court in the modern era to argue that the federal government does not have the power to regulate interstate commerce.

Admittedly, I got the magnitude criteria from the Maddow piece, but I think you have to include something sort of caveat like that because otherwise his statement is wrong because of Lopez definitely overturned a federal law based on the scope of the Commerce Clause power, as did at least one other case whose name I'm forgetting, but which dealt with the Violence Against Women Act.
posted by Bulgaroktonos at 12:39 PM on April 4, 2012


judicial review is pretty obviously an extra-constitutional power that the Court granted to itself. It's time to revisit Marbury v Madison. Come on originalists, you know you want to!

Federalist 78 pretty plainly establishes that the Framers intended for the courts to have the power of judicial review, both as regards conflicting laws and laws that conflict with the Constitution.

Thomas, probably the most hardcore originalist on the Court, accepts judicial review. After all, he would like to strike down most federal laws passed since, oh, 1933 or so on the grounds that they are an unconstitutional expansion of the Commerce Clause.

it would be unprecedented for a Supreme Court in the modern era to argue that the federal government does not have the power to regulate interstate commerce.

Nah, the Court struck down a couple of laws on that basis in 1995 and 2000. Then it waffled right back in 2005. The 1995 case was essentially a gun control case, and the 2000 case was about violence against women, but the 2005 case was about criminalizing drugs. It's the kind of thing that makes one think the crits might be on to something.
posted by jedicus at 12:40 PM on April 4, 2012 [9 favorites]


I'm also interested to read the response.

One other thing: the Supreme Court has opened itself up to these attacks by issuing nakedly partisan rulings. It's authority and legitimacy lies in it's fairness, reasoning, and adherence to the law.
posted by JKevinKing at 12:41 PM on April 4, 2012 [8 favorites]


spicynuts: “Some people just have their panties permanently in a twist about certain issues and go straight to ad hominem.”

Were you attempting to prove your point that "some people" show great concern for "certain issues" by taking a sideways jab at 49% of the people here, knowing that somebody might say something about it?
posted by koeselitz at 12:42 PM on April 4, 2012


zarq: "Perhaps this will also encourage presidential candidates to keep their traps shut and stop spreading misinformation about the role of our court system."

Hold up a second. If the president started going around and arresting judges that he didn't agree with, like Gingrich promises to do wouldn't that be more than enough justification to impeach (and possibly arrest) the president?
posted by schmod at 12:44 PM on April 4, 2012 [1 favorite]


Lopez and Morrison were about local behavior (guns in school, private right of action for violence against individual somen) with an arguably attenuated effect on interstate commerce. No one can argue with a straight face that health care funding has anything but a major impact on interstate commerce. If the Supreme Court rules that Congress does not have the power to regulate something with that sort of major economic impact, it will fell a forest of commerce clause precedent.

Not that four of them care a whit about that. The question is which way Kennedy will or has voted.
posted by bearwife at 12:46 PM on April 4, 2012 [1 favorite]


So ridiculous. No basis for this order to issue, at all. This is a judge playing politics. Some people don't like Obama's statement, fine. Its politics. But in the case in question, there is simply no basis for this order to issue.
posted by Ironmouth at 12:47 PM on April 4, 2012 [2 favorites]


jedicus: "No, it is not customary. There are states that have partisan judicial elections, but even then I don't think it's typical."

Thirty Nine out of the fifty states elect judges and at least in my state, they defiantly run as Democrats or Republicans.
posted by octothorpe at 12:48 PM on April 4, 2012 [2 favorites]


A few commentators have pointed out the fact that this is the second president in a row that has run afoul of the Supreme Court. The Justices basically tore Dubya a new one on Gitmo. Administration didn't win a single case there. Now, the Court is considering the legitimacy of Obama's signature legislative achievement.

Both issues represented an arguable expansion of federal authority, the former in terms of war powers and civil rights, the latter in terms of commerce powers. The fact that the Supreme Court is at least potentially concerned about that shouldn't come as much of a surprise.

For the record, I supported the Boumedine, Hamdi, and Hamdan decisions, all of which went against the administration, and I'd be perfectly content with the Court striking down the ACA.
posted by valkyryn at 12:49 PM on April 4, 2012


Federalist 78 pretty plainly establishes that the Framers intended for the courts to have the power of judicial review, both as regards conflicting laws and laws that conflict with the Constitution.

That's a pretty big power to have slipped the drafter's minds. I'm not saying I oppose it, but the power is clearly not enumerated or even suggested in the Constitution.
posted by Ironmouth at 12:49 PM on April 4, 2012


But in the case in question, there is simply no basis for this order to issue.

This, on the other hand, is correct. There's simply no procedural reason for this. I'd be willing to argue the judge doesn't have the authority to do this. But pissing off federal circuit judges isn't a terribly profitable way to spend your time, so DOJ would be well advised to just write the damn letter.
posted by valkyryn at 12:50 PM on April 4, 2012


Were you attempting to prove your point that "some people" show great concern for "certain issues" by taking a sideways jab at 49% of the people here, knowing that somebody might say something about it?

No, I was attempting to say that most people who post here should know that most people on MeFi are slightly to way left and that any statement that sounds like a Rush Limbaugh quote is going to be sarcastic but that some people start off angry regarding some issues and the anger overwhelms their sarcasm detectors.
posted by spicynuts at 12:51 PM on April 4, 2012 [3 favorites]


Thirty Nine out of the fifty states elect judges

A grand total of eight states have partisan judicial elections, per the ABA (beware, pdf format.) . The usual is nonpartisan or nonpartisan retention election.

Anyway, this was an appointed federal judge who issued the order.
posted by bearwife at 12:54 PM on April 4, 2012 [2 favorites]


valkyryn: “Both issues represented an arguable expansion of federal authority, the former in terms of war powers and civil rights, the latter in terms of commerce powers.”

It seems remarkably difficult to me to argue that the ACA constitutes an expansion of federal authority in terms of commerce powers. There's almost nothing the ACA does that federal authority hasn't been regulating already for at least three decades. The chief question seems to hinge on the difference between a "fine" and a "tax," which (pardon me for saying so) seems like an extraordinarily unimportant distinction.
posted by koeselitz at 12:55 PM on April 4, 2012 [2 favorites]


On the other hand, it occurs to me that judges can actually require additional briefing on particular points of law. I don't see any clear reason why the judge couldn't have ordered both sides to brief the issue of judicial review. So while the judge probably can't order a letter like this, because he can formally order additional briefing, this doesn't seem to be all that significant.
posted by valkyryn at 12:56 PM on April 4, 2012


schmod: "If the president started going around and arresting judges that he didn't agree with, like Gingrich promises to do wouldn't that be more than enough justification to impeach (and possibly arrest) the president?"

Our last President outright lied to the American people (and the world) to justify a war, authorized the NSA to tap phones of American citizens illegally, authorized that American citizens and Afghani non-combatants be detained indefinitely in a base off American soil and tortured because the DOJ couldn't find enough evidence to prosecute them, played games with the definition of POW's to do what they wanted... etc., etc.

I think at this point if a President started arresting judges who disagreed with him (or her,) no one would blink a fuckin' eye over it.
posted by zarq at 12:56 PM on April 4, 2012 [6 favorites]


It seems remarkably difficult to me to argue that the ACA constitutes an expansion of federal authority in terms of commerce powers.

That's what the Solicitor General and most of the legal professoriate thought too. None of the justices bought it. Even the "liberal" wing, likely to uphold the law, seemed to recognize that this was an expansion of federal authority, they were just okay with it.
posted by valkyryn at 12:57 PM on April 4, 2012 [2 favorites]


I think at this point if a President started arresting judges who disagreed with him (or her,) no one would blink a fuckin' eye over it.

Actually... I think you're wrong about that. That would represent a massive breach of the integrity of the legal profession, and I don't think the bar or bench would stand for it, regardless of the president or judge at issue. I can certainly see the bench and bar in my state going absolutely bananas if an executive officer took a swipe at any of our judges. Even at the most routine level, giving the executive authority over judges in this way would make it almost impossible for us to do business.

It's one thing to take unpopular policy decisions. It's another to go after the profession as such.
posted by valkyryn at 12:59 PM on April 4, 2012 [2 favorites]


me: “It seems remarkably difficult to me to argue that the ACA constitutes an expansion of federal authority in terms of commerce powers.”

valkyryn: “That's what the Solicitor General and most of the legal professoriate thought too. None of the justices bought it. Even the ‘liberal’ wing, likely to uphold the law, seemed to recognize that this was an expansion of federal authority, they were just okay with it.”

You can say that. You could also say that the liberal wing did their utmost to make it clear that they were entirely willing to entertain arguments in favor of striking down legislation, even if those arguments are incorrect. That's how it seemed to me. Of course, this "seeming" means very little. We'll have to wait until June to see which of us was right. I wouldn't bet that the judges will be predictable based on what they say in arguments.

In the mean time, the federal government is and has been regulating nearly every aspect of health care for many decades, and moreover doing it badly.
posted by koeselitz at 1:04 PM on April 4, 2012


In the mean time, the federal government is and has been regulating nearly every aspect of health care for many decades, and moreover doing it badly.

Hear hear!
posted by BobbyVan at 1:05 PM on April 4, 2012


There's a difference between expanding federal activity and expanding federal authority. Sure, the feds are doing more than they used to, but not necessarily of a different kind than they used to.

I bought a house in part because of the federal home buying mandate and I'll buy insurance because of the federal insurance mandate.
posted by anotherpanacea at 1:06 PM on April 4, 2012


valkyryn: "Actually... I think you're wrong about that. "

My kingdom for a sarcasm tag.
posted by zarq at 1:07 PM on April 4, 2012 [1 favorite]


I don't know, valkyryn. I didn't see a huge outpouring of outrage from bench and bar when Gingrich, then an actual contender for the Republican nomination, suggested using US Marshals to dragoon "radical" judges to explain their rulings. The notable exception was the American Judges Association's Kevin Burke, who hardly got a lot of national press or oodles of bar support for his courageous comments.

I am still astonished at the level of national surveillance and the casual daily abrogation of 4th amendment rights that all of us tolerate without complaint. And I don't think there are lots of examples of the bar standing up for judges and courts when cries of judicial activism are hurled, either.

Now, in the fulness of time, Americans tend to realize their civil rights breaches. For example, I think we all know how wrong interning Japanese Americans was. But it takes a long time.
posted by bearwife at 1:07 PM on April 4, 2012 [1 favorite]


It's a political world.

Thing is, a politician saying political things is something we expect and can make allowances for, agree or disagree. How friggen long have we heard "judicial activist" from the right with no significant challenge from the courts, and once it is expressed by someone nominally to the left, because they feel strongly about some legislation before the SCOTUS, it draws a sharp rebuke? Hell, where is the outrage over Scalia using right-wing internet talking points to attack ACA right after the case was heard? Judaical review? What fucking judicial review? Scalia isn't even trying to pretend he takes his job seriously. Roberts? I don't care for, but at least he seems to be going through the motions.

but you know, I am sure these issues have always plagued the most undemocratic part of the American government.
posted by edgeways at 1:09 PM on April 4, 2012


I didn't see a huge outpouring of outrage from bench and bar when Gingrich, then an actual contender for the Republican nomination, suggested using US Marshals to dragoon "radical" judges to explain their rulings.

No one really took him seriously. There's a difference between a blowhard, dark-horse candidate for the nomination and an actual politician.
posted by valkyryn at 1:09 PM on April 4, 2012 [3 favorites]


bearwife: " Now, in the fulness of time, Americans tend to realize their civil rights breaches. For example, I think we all know how wrong interning Japanese Americans was. But it takes a long time."

Except when they tried to ban alcohol.
posted by zarq at 1:09 PM on April 4, 2012


I was expecting to last another couple of years at least before the Right's lack of consistent ideology (other than 'what benefits us is right and what you do is wrong') created a Sarcasm Singularity which would pull in any valid point or argument and taint it with that tinge of 'Is this really fucking happening?'
posted by Slackermagee at 1:12 PM on April 4, 2012 [2 favorites]


No one really took him seriously.

Are you joking? This is not just Newt.

Newt Gingrich, who says as president he would ignore U.S. Supreme Court rulings he dislikes, has plenty of company among Republican candidates in vowing to blow up long-held premises of constitutional law.

All this respect for Marbury v. Madison and judicial review is brand new stuff from the rightist wing of the party, now that they hope the ACA oral argument previews the actual decision. And at least up until now, the bar has essentially said nothing.
posted by bearwife at 1:16 PM on April 4, 2012


In the mean time, the federal government is and has been regulating nearly every aspect of health care for many decades, and moreover doing it badly.

What aspects have been badly regulated, in your opinion? (No snark here.) Medicare provides more of every dollar paid into the system to patients than any insurance company? Before the FDA people were regularly killed my "medicines." All bureaucracies have their shortcomings, but this one seems better than most.

If anything the government hasn't done enough (because of lack of funding) to ensure the safety of the food supply from bacterial contamination.

Perhaps you are referring to things that I am either unaware of or indifferent to?
posted by haiku warrior at 1:17 PM on April 4, 2012


As for Obama's comments, so what? He's right. The SC's overturning the law would be a case of judicial activism.

I don't think so. The mandate has always struck me as unconstitutional, notwithstanding that it makes sense on a policy level. Mind you, I don't think much of Wickard v. Filburn either.
posted by anigbrowl at 1:19 PM on April 4, 2012 [1 favorite]


That's a pretty big power to have slipped the drafter's minds. I'm not saying I oppose it, but the power is clearly not enumerated or even suggested in the Constitution.

Sure it is, right at the beginning of Article 3: " The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

Declaring what the law is, and which law wins if two conflict, is part of the judicial power.
posted by ROU_Xenophobe at 1:19 PM on April 4, 2012 [2 favorites]


valkyryn: “No one really took him seriously. There's a difference between a blowhard, dark-horse candidate for the nomination and an actual politician.”

bearwife: “Are you joking? This is not just Newt... All this respect for Marbury v. Madison and judicial review is brand new stuff from the rightist wing of the party, now that they hope the ACA oral argument previews the actual decision. And at least up until now, the bar has essentially said nothing.”

valkyryn is right, though. There is a massive, massive difference between "presidential candidate" and "president." It does not matter that lots of Republicans take Newt seriously and say the same things. None of those people are president. If and when one of them becomes president, then the Judiciary will have some reason to address that president and deal with her or him. Until then, criticism of candidates amounts to negative endorsement, and is thereby the same thing as playing politics. Judges shouldn't do it, and it'd be even worse than the silliness that this Texas judge is pulling.
posted by koeselitz at 1:21 PM on April 4, 2012 [1 favorite]


Declaring what the law is, and which law wins if two conflict, is part of the judicial power.

Or, to directly answer the point, it seems to have slipped the Founders' minds that any one might think that judicial review wasn't part of the judicial power.
posted by valkyryn at 1:22 PM on April 4, 2012 [3 favorites]


I didn't see a huge outpouring of outrage from bench and bar when Gingrich, then an actual contender for the Republican nomination, suggested using US Marshals to dragoon "radical" judges to explain their rulings.

I heard plenty about it. As Valkyryn says, nobody ever took Gingrich very seriously as a candidate, given his pattern of wandering off on holiday in between making hyperbolic remarks, but there's a reason his campaign has essentially been funded by only one big donor.
posted by anigbrowl at 1:22 PM on April 4, 2012


There is a massive, massive difference between "presidential candidate" and "president."

And an even bigger one between "potential presidential candidate" and "President".
posted by valkyryn at 1:23 PM on April 4, 2012


A blogger for the conservative journal First Things (which has a long history of decrying judicial activism) has a modest proposal for President Obama.
So, as I’ve been suggesting, I’d be all for some kind of deal (how is a problem, of course) that would let ObamaCare slide if the Democrats, taking the president’s lead, started to work to get ROE reversed (or get Congress working to strip the Court of the relevant jurisdiction).
So how about it. For those of you who are with President Obama and believe that judicial review ("activism") is a bad, undemocratic practice: would you be willing to trade Roe vs. Wade for ObamaCare?
posted by BobbyVan at 1:24 PM on April 4, 2012 [1 favorite]


What an amazingly silly and fallacious argument.
posted by XQUZYPHYR at 1:26 PM on April 4, 2012 [8 favorites]


valkyryn: "I'd be perfectly content with the Court striking down the ACA."

In one respect, I'd be content: I think the individual mandate is misguided at best. However, I would be very discontented that the Supreme Court would choose to make an obviously partisan ruling. I just don't see the Constitutional grounds on which they could overturn it, and nothing in the oral arguments gave me hope on that point.
posted by wierdo at 1:27 PM on April 4, 2012


I don't think so. The mandate has always struck me as unconstitutional, notwithstanding that it makes sense on a policy level. Mind you, I don't think much of Wickard v. Filburn either.

I'm all for ignoring precedent when precedent is clearly bad law, and the line of commerce clause cases stretching from Wickard to Raich, with a few exceptions like Morrison and Lopez, were clearly bad law (even if one agrees that some of the results were good) that stretched the commerce clause to vastly expand federal power.
posted by gyc at 1:27 PM on April 4, 2012 [1 favorite]


Maybe this is purely a graphical question – maybe not – but is it customary to put (R) or (D) after a judge's name?

Where did the (R) come from? I didn't see it in any of the FPP links.

Ugh, he called it Obamacare from the bench

Last week: President embraces "Obamacare"

So far, Attorney General Holder has indicated that DOJ will 'respond appropriately.'

Possibly by mooning.
posted by kirkaracha at 1:27 PM on April 4, 2012


BobbyVan: “For those of you who are with President Obama and believe that judicial review (‘activism’) is a bad, undemocratic practice: would you be willing to trade Roe vs. Wade for ObamaCare?”

I am not on any side of this simplistic fence – I'd like to steer clear of it altogether – but I have a feeling that those who are "with President Obama" will do precisely what those who are "against President Obama" do on this issue, and declare that they don't agree that both of those things are judicial activism.
posted by koeselitz at 1:28 PM on April 4, 2012


I'm generally interested in the response.
posted by humanfont at 1:28 PM on April 4, 2012


jedicus (and other attorneys),

I'm curious about the role that extra-constitutional sources, like the Federalist Papers, are supposed to play. I can see how Federalist 78 would be relevant if there were some vague statement about the power of the Court having power to evaluate or interpret laws. Then one could say, for example, "What the Constitution means by 'laws' includes the Constitution itself." But the Constitution doesn't seem to have any relevant statement of the power of judicial review. So, are we saying that extra-constitutional documents can introduce powers not enumerated?

Also, if I had said "strict constructionists" rather than "originalists" would that have been better or would it have made a difference?
posted by Jonathan Livengood at 1:29 PM on April 4, 2012 [1 favorite]


I comment not to take a position in this argument but instead to note that nearly every day I see things taking place in our nation that indicates the deepening divide between the Red and the Blue; and while there as often been qa deep division between conservatives and liberals, what I see now is a division that breaks along state lines rather than within individual states.
posted by Postroad at 1:32 PM on April 4, 2012 [1 favorite]


But the Constitution doesn't seem to have any relevant statement of the power of judicial review.

Case law from the highest court in the land, as well as the continued, centuries-long acquiescence of the rest of the government, has settled the question of judicial review with as much solidity as you're ever going to get, from a real-life point of view.
posted by Sticherbeast at 1:34 PM on April 4, 2012 [2 favorites]



BobbyVan: “For those of you who are with President Obama and believe that judicial review (‘activism’) is a bad, undemocratic practice: would you be willing to trade Roe vs. Wade for ObamaCare?”


I think judicial review is fine and basic to our constitutional structure. I am no fan of judicial activism.

Much as I support the right to choice, I think Roe v. Wade was a terrible exercise of judicial activism. And there are plenty of other, earlier Warren Court decisions that in my view were as well.

But to avoid judicial activism, judges also need to be respectful of stare decisis, that is to say, the importance of following established past judicial precedents.

At this point, whether well decided or not, Roe is a very well established precedent. Roberts acknowledged in his Judiciary Committee hearings that it was a "super precedent." And so is Wickard v. Filburn, a seminal commerce clause case.

So -- a person who believes in real judicial restraint wouldn't advocate for overturning either.
posted by bearwife at 1:35 PM on April 4, 2012 [2 favorites]


So, are we saying that extra-constitutional documents can introduce powers not enumerated?

No. We're saying that though "the judicial power" is an enumerated power, extra-constitutional documents might help us understand exactly what it's enumerating.

Saying that "Judicial review is not an enumerated power," is implicitly saying "Judicial review is not included in 'the judicial power,' which is an enumerated power." There's clearly an argument to be had about that.
posted by valkyryn at 1:38 PM on April 4, 2012 [1 favorite]


Case law from the highest court in the land, as well as the continued, centuries-long acquiescence of the rest of the government, has settled the question of judicial review with as much solidity as you're ever going to get, from a real-life point of view.

Sure. But I'm a philosopher. And as everyone knows, philosophers want to know whether what works in practice also works in theory.
posted by Jonathan Livengood at 1:38 PM on April 4, 2012 [3 favorites]


And an even bigger one between "potential presidential candidate" and "President".

Apples and oranges. Obama's statement that "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress" pales compared to Gingrich's saying that as president he could send federal law enforcement authorities to arrest judges who make controversial rulings.
posted by exogenous at 1:38 PM on April 4, 2012 [3 favorites]


Much as I support the right to choice, I think Roe v. Wade was a terrible exercise of judicial activism. And there are plenty of other, earlier Warren Court decisions that in my view were as well.

Lots of liberal jurisprudential scholars think that way. The Warren Court is widely considered, even within the legal academy, to have routinely made shit up.

But the precedents are what they are, and District judges routinely going against Supreme Court precedent is a Bad Thing, so even many conservative legal scholars who think that the Warren Court was frequently not only wrong on procedure but on the merits are reluctant to just throw the things out overnight.
posted by valkyryn at 1:39 PM on April 4, 2012 [1 favorite]


jedicus (and other attorneys),

I'm curious about the role that extra-constitutional sources, like the Federalist Papers, are supposed to play.


The FP are pretty important. The drafters were critical players at the constitutional convention, and they wrote the FP to explain the constitutional structure, so what they had to say is really valuable in understanding what the constitution was intended to do and what its words mean.
posted by bearwife at 1:40 PM on April 4, 2012 [2 favorites]


At this point, whether well decided or not, Roe is a very well established precedent. Roberts acknowledged in his Judiciary Committee hearings that it was a "super precedent." And so is Wickard v. Filburn, a seminal commerce clause case.

FYI, the challengers to ObamaCare have argued that rejecting the individual mandate as unconstitutional would not require overturning Wickard v. Filburn.
JUSTICE GINSBURG: I thought — I thought that Wickard was you must buy; we are not going to let you use the home-grown wheat. You have got to go out in the market and buy that wheat that you don't want.

MR. CARVIN: Oh, but let's be careful about what they were regulating in Wickard, Justice Ginsburg. What they were regulating was the supply of wheat. It didn't in any way imply that they could require every American to go out and buy wheat.
posted by BobbyVan at 1:48 PM on April 4, 2012 [1 favorite]


BobbyVan: "So how about it. For those of you who are with President Obama and believe that judicial review ("activism") is a bad, undemocratic practice: would you be willing to trade Roe vs. Wade for ObamaCare."

...That you're calling it "ObamaCare" instead of ACA tells me your political vector (magnitude and direction). Accordingly, that you absolutely, completely missed the point (veering into "not even wrong" territory) of Obama's comments doesn't surprise me.

Obama was remarking on how conservatives wail, knash their teeth, and rend their garments over "judicial activism" if the rulings don't perfectly please them, but they cheer, gloat, etc, at the mere suggestion (see: Scalia's use of right-wing talking points and jargon) of a court disliking a liberal law.
posted by notsnot at 1:48 PM on April 4, 2012


...That you're calling it "ObamaCare" instead of ACA tells me your political vector (magnitude and direction). Accordingly, that you absolutely, completely missed the point (veering into "not even wrong" territory) of Obama's comments doesn't surprise me.

Dude, get with the program! ObamaCare is an OK word now.
"Happy birthday, Obamacare," Jim Messina, the president's campaign manager, wrote in an email to supporters last week to note the anniversary of the reform becoming law.

"If you're tired of the other side throwing around that word like it's an insult, then join me in sending a message that we're proud of it," he wrote.
posted by BobbyVan at 1:51 PM on April 4, 2012 [4 favorites]


For those of you who are with President Obama and believe that judicial review ("activism") is a bad, undemocratic practice: would you be willing to trade Roe vs. Wade for ObamaCare?

I'd say "We don't make deals with terrorists."
posted by octobersurprise at 1:51 PM on April 4, 2012 [19 favorites]


Declaring what the law is, and which law wins if two conflict, is part of the judicial power.

That's just begging the question. If you assume that judicial review is included in the judicial power then, fine, it's an enumerated power. But by the same token I can assume that the power to impose the insurance mandate is included in "Necessary and proper" clause as it relates to General Welfare clause--which makes it an enumerated power too.

This is the problem with the simplistic appeals to strict textualism of the "Tenther" kind--you'll always end up finding out that you've thrown out some baby or other with the bathwater. And then you just get the usual intellectual dishonesty trying to recover what's been lost: "Oh, they obviously meant to include the things that I happen to want--they're just SO obvious they didn't NEED to write them down!"
posted by yoink at 1:53 PM on April 4, 2012


notsnot: “Obama was remarking on how conservatives wail, knash their teeth, and rend their garments over ‘judicial activism’ if the rulings don't perfectly please them...”

That is really not what Barack Obama said. He didn't say, "you know, if this were a law that was popular with conservatives, they'd be talking about how it's judicial activism!" He said that this would amount to judicial activism. That statement implies that Obama believes in the concept of judicial activism and believes it's a bad thing.
posted by koeselitz at 1:54 PM on April 4, 2012 [1 favorite]


Obama enjoys making conservatives argue against themselves. I'm not sure how productive it is, but I like to do the same thing so I find it one of his endearing qualities.
posted by furiousxgeorge at 1:56 PM on April 4, 2012 [1 favorite]


For those of you who are with President Obama and believe that judicial review (‘activism’) is a bad, undemocratic practice: would you be willing to trade Roe vs. Wade for ObamaCare?

Obama said no such thing. He said that the Supreme Court would be wrong to overturn this specific law, and that doing so would be an act of judicial activism. A very large number of legal scholars agree with him. Pretending that he was challenging the very principle of judicial review is just the right wing talking machine's deliberate misconstrual du jour.
posted by yoink at 1:58 PM on April 4, 2012 [1 favorite]


I wish I had more time to comment, but briefly I agree with Wickard & its progeny. The ennumerated powers in Article 1 should be plenary, limited only by other provisions in the Constitution, if the commerce and other powers are to have any meaning at all.

To do otherwise is to attempt to enshrine one's poltical beliefs into the Constitution, which I feel is inappropriate.

I haven't seen anyone bring this up amongst all the commentary around the arguments, the the conservatives' arguments seem like they'rer trying to resurrect Lochner v. NY, by arguing there is a fundumental right to economic freedom via substabtive due process, defined by a strict libertarian viewpoint.

Now, as I believe BobbyVan pointed out, you could argue that such a right is similar to the Right of Privacy, and it might be.

But for reasons I don't have time to get into, I believe the Right of Privacy should be upheld and a Right not to be made to enter into an insurance contract, should not be.
posted by JKevinKing at 1:59 PM on April 4, 2012


George Washington was right. We should never have allowed parties to enter into our political processes. It causes too much mindless factionalism. Turns our whole election process into a two-ring circus with clowns everywhere, on top of all our other problems with the process being corrupted by monied influence.

It's all just bathos at this point: tragedy that goes so far it becomes farce.

Kind of like Peter Jackson's Dead Alive.

so what they had to say is really valuable in understanding what the constitution was intended to do and what its words mean.

Sort of. But they had a lot of differences of opinion--often around subjects that are still controversial--and those are reflected in the papers, so it's not like they really offer some kind of magic key to decoding the intentions of the founders.

Also--and this is important--no matter how much insight the FPs might give into what the various founding authors had in mind, they aren't law.

Overturning the law will only confirm what many of have already known for sometime: This is the most blatantly partisan Supreme Court majority we've had in many, many years. I'm almost secretly hoping they will overturn it so I can be proven right again. I know a lot of fence squatters who just need to see one more blatantly partisan decision like this to jump ship.

He said that this would amount to judicial activism. That statement implies that Obama believes in the concept of judicial activism and believes it's a bad thing.

I think most everyone accepts this is a bad thing. It's the partisan way in which decisions are qualified as "judicial activism" that people object to in the use of the term. Nobody thinks justices should be making decisions based on their partisan political commitments; it's just that Republicans like to call any decisions they don't agree with partisan examples of judicial activism. Anything that doesn't agree with what Republicans want is rank Democrat [sic] partisanship in their imaginations. Hell, that's what turned me into a partisan: they kept insisting I was one already because I didn't agree with them.
posted by saulgoodman at 2:00 PM on April 4, 2012 [4 favorites]


Obama believes in the concept of judicial activism

Who doesn't? No one thinks judges are or should be empowered to simply rule as it happens to please them. To believe that some decisions amount to "judicial activism" is not to take the position that there is no place for judicial review.
posted by yoink at 2:01 PM on April 4, 2012 [2 favorites]


IANAL, but reading about the Court and its history is something of a hobby of mine :)

The thing about judicial review is that at the time the Constitution was drafted, there wasn't really a whole lot of doubt that it was just a natural part of judicial power. Remember that the Bill of Rights, for example, was considered unnecessary by a lot of people who drafted the Constitution, because many of them believed that the existing definition of the federal government's power implied an inability to violate those rights. We got the first ten amendments largely because others were a bit squeamish about trusting basic freedoms to such implications; no-one had such qualms, at the time, about the nature of judicial power.

And judicial review in the US certainly predates Marbury; there are state-level cases of courts "nullifying" acts of their legislatures on (state) constitutional grounds (and those courts were acting on precedent from England, where review goes back further). The neat thing about Marbury, by the way, is that the people most likely to complain about judicial review being an unenumerated power (Jefferson's Democratic-Republican party) were also the big winners in that decision. Jefferson grumbled a bit, but the principle of review was pretty much universally accepted.

That said, there is a danger facing the Supreme Court with the ACA hearings, because traditionally the country's acceptance of and respect for the Court has been rooted in a widely-held belief that the Court is above politics. Thus, for example, blatantly politically-motivated decisions like Dred Scott have historically decimated the country's respect for the Court and put it on very shaky ground. The recent tendency toward pure political splits on major cases may be setting the Supreme Court up for another fall of that magnitude, and it's not clear whether it could recover again.
posted by ubernostrum at 2:03 PM on April 4, 2012 [4 favorites]


Sure. But I'm a philosopher. And as everyone knows, philosophers want to know whether what works in practice also works in theory.

Case law can be seen as a series of performative utterances. It's a blurry line between theory and practice. That said, it wasn't the world's biggest reach to assume that the highest court in the land could strike down laws for conflicting with the highest law of the land. It wasn't necessarily, indubitably inherent in the Constitution, but it couldn't have been ruled out, either.

Regardless, the Court said what it said, and unless we add an Amendment effectively overruling it (unlikely) or the Court itself overrules itself on this point (lolno), it is of little substance to contemplate what could have been. Since case law has evolved consistently on the point of judicial review, there hasn't been a strong argument against American judicial review in a very, very long time.

As for extraconstitutional sources, Justices do invoke them. Even originalists do, although to be fair they do so with their fingers crossed behind their back.
posted by Sticherbeast at 2:03 PM on April 4, 2012


At this point, whether well decided or not, Roe is a very well established precedent. Roberts acknowledged in his Judiciary Committee hearings that it was a "super precedent." And so is Wickard v. Filburn, a seminal commerce clause case. So -- a person who believes in real judicial restraint wouldn't advocate for overturning either.

I partly agree, but I think there are two differences worth bearing in mind in this context:

a. Wickard v. Filburn held that the government could outlaw an act of commission, to wit the growing of more wheat than the farmer had a quota for. The ACA arguably penalizes an act of omission, that of failing to purchase health insurance - so its categorically quite different, insofar as it creates a new kind of civic duty.

b. As regards precedent and incrementalism, Roe gives people the right to do something in their individual lives (along with Griswold etc. etc.), so like it or not it has resulted in the creation of a new liberty interst and attempts to limit that liberty interest by government reduce the freedom of the individual. Wickard gave the government the right to regulate individual participation in commercial life of the country, and thus reduced the scope of individual liberty. It's a fundamentally collectivist precedent - and in the context of a nation at war, that's not necessarily a bad thing. But if it were to be overturned (which it won't need to be in this case for the reason I've outlined above), then it would represent an expansion of state/company and individual liberty interests. So while its disappearance would be massively disruptive, it would be so in a very different way from if Roe were overturned.

Lots of liberal jurisprudential scholars think that way. The Warren Court is widely considered, even within the legal academy, to have routinely made shit up.

The more I learn and think about the work of the Warren court, the less long-term good I think it did for liberal causes (in the Lockean sense). I wish some of the policy changes that resulted had been enacted by amendment or statute. Separation of powers keeps some of these issues 'alive' as sort of scary legal zombies.
posted by anigbrowl at 2:04 PM on April 4, 2012 [4 favorites]


What he actually did was call out conservative pundits that always complain about judicial activism, that for some reason get all gung ho about it when Obamacare is under the gun. In no way did he ever say there is no power of judicial review.

Yes he did. He said it would be "unprecedented" for the court to strike down a law enacted by Congress. That's untrue and is very close to saying there shouldn't be judicial review of acts of Congress. Obama's supposed clarification only compounds his error by falsely saying it hasn't happened since the Lochner case of 1905 (which wasn't even about an act of Congress). Obama is either lying or doesn't know what he's talking about.

And to the extent Obama was actually decrying "judicial activism," that's hardly a defense of Obama. "Judicial activism" is a ridiculous term that gets used in a political way to suggest that courts shouldn't do strike down a law if you happen to like the law. It's disappointing to see Obama buying into the conservative line on "judicial activism."

(as many con lawyers have argued) it would be unprecendented for a Supreme Court in the modern era to argue that the federal government does not have the power to regulate interstate commerce.

No one is denying that. The Commerce Clause issue is whether the law does regulate interstate commerce. I've studied the Commerce Clause, and I've listened to the whole argument, and the answer isn't obvious to me. Can Congress create interstate commerce precisely to regulate it? I don't know. I don't know of a case that has decided that issue (Wickard and Raich are not examples). If the answer is obvious to you, that's fine, but it is a real issue.
posted by John Cohen at 2:07 PM on April 4, 2012 [3 favorites]


and those courts were acting on precedent from England,

Parliament is supreme in British law. There is no such thing as judicial review of laws passed by parliament in Britain.
posted by yoink at 2:07 PM on April 4, 2012


When courts overturn laws passed by Republicans, or uphold laws that are passed by Democrats, that is judicial activism.

When courts overturn laws passed by Democrats, or uphold laws passed by Republicans, that is brave support of the US Constitution.

When Obama stated that conservative judges could engage in judicial activism, he clearly betrayed the fact that he doesn't understand constitutional law.


I wish I could agree with the above sarcasm, because, yes, "activist judges" are something Republicans complain about all the time, and it's total bullshit.

Thing is, it doesn't magically become non-bullshit when a Democrat does it.
posted by Sys Rq at 2:07 PM on April 4, 2012 [3 favorites]


Obama said no such thing. He said that the Supreme Court would be wrong to overturn this specific law, and that doing so would be an act of judicial activism. A very large number of legal scholars agree with him. Pretending that he was challenging the very principle of judicial review is just the right wing talking machine's deliberate misconstrual du jour.

Look, I'm sure that the President believes in judicial review. But it's hard to square that with his comment at this week's press conference. Since we have a transcript, let's just quote the President.
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
There it is. He says that "overturning a law that was passed by a strong majority of a democratically elected Congress" would be "unprecedented" and "extraordinary." When the President says "unprecedented," do you think he's only referring to ACA (ObamaCare)?

My take is that Obama was trying to make a cute, quasi-cynical argument to expose what he sees as the hypocrisy of his opponents. But in the process, he made himself appear uneducated about the constitution, which is all the more damning because he taught the subject.
posted by BobbyVan at 2:08 PM on April 4, 2012 [3 favorites]


Parliament is supreme in British law. There is no such thing as judicial review of laws passed by parliament in Britain.

Parliament is supreme now, yes, but Justice Coke's declarations that Parliament was subordinate to the common law -- though later repudiated -- fundamentally set the stage for the American concept of judicial review.
posted by ubernostrum at 2:14 PM on April 4, 2012


I'd say "We don't make deals with terrorists."
posted by octobersurprise at 3:51 PM on April 4


Eponysterical!

posted by gimonca at 2:14 PM on April 4, 2012 [1 favorite]


Of course, Jon Stewart gets it completely right.
posted by ZenMasterThis at 2:15 PM on April 4, 2012 [2 favorites]


That is really not what Barack Obama said. He didn't say, "you know, if this were a law that was popular with conservatives, they'd be talking about how it's judicial activism!"

Here's what Obama said:
And I'd just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint—that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”
So, yeah, he did basically say exactly that.
posted by yoink at 2:16 PM on April 4, 2012


Look, I'm sure that the President believes in judicial review.

I'm glad we agree about that. I'm pretty sure we also agree that it is tedious and childish the way both political camps seize upon infelicitous phrasing of extempore statements to try, disingenously, to pretend that they reveal some deep truth about what the speaker "really" believes.
posted by yoink at 2:20 PM on April 4, 2012 [3 favorites]


the thing i love about the "activity/inactivity" distinction is that it's so obviously *completely made up*. lol. you couldn't ask for a better off-the-cuff out-of-one's-butt law school argument.
posted by facetious at 2:21 PM on April 4, 2012


let's just quote the President.

Yes, let's. Because he made a very nuanced statement, not well summarized in the sound bite you quote. Here is his answer to the reporter in full, and note the language I've highlighted up front.

With respect to health care, I’m actually -- continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

I think it’s important -- because I watched some of the commentary last week -- to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.

The law that's already in place has already given 2.5 million young people health care that wouldn’t otherwise have it. There are tens of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition. That's part of this law.

Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.

So that’s just the part that's already been implemented. That doesn’t even speak to the 30 million people who stand to gain coverage once it’s fully implemented in 2014.

And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.
posted by bearwife at 2:21 PM on April 4, 2012 [25 favorites]


Parliament is supreme now, yes, but Justice Coke's declarations that Parliament was subordinate to the common law -- though later repudiated -- fundamentally set the stage for the American concept of judicial review.

Bonham's Case had no impact on British constitutional practice--it's essentially a curiosity, whose intended scope, even in Coke's mind, is a matter of considerable dispute. It is also by no means universally agreed by legal scholars that it had any significant impact on the emergence of the doctrine of judicial review as practiced by the Supreme Court. To the extent that it did, this would have been a deliberate repudiation of the British legal tradition, and by no means would that support your general position that the power of judicial review would just naturally be assumed to be implicit in the Constitution.
posted by yoink at 2:29 PM on April 4, 2012


I'm glad we agree about that. I'm pretty sure we also agree that it is tedious and childish the way both political camps seize upon infelicitous phrasing of extempore statements to try, disingenously, to pretend that they reveal some deep truth about what the speaker "really" believes.

I agree about the gotcha culture of today's politics, but what the President "really" believes is fairly irrelevant. What he says is certainly more meaningful and impactful.

I'm glad that the President is defending the law in Constitutional terms, but less sanguine about comments that suggest that a ruling against ObamaCare would be "extraordinary" and "unprecedented" (i.e., less than legitimate) because Congress is elected and Justices are not.
posted by BobbyVan at 2:30 PM on April 4, 2012 [1 favorite]


Obama's joke at the expense of the Republicans sailed right over your head?
posted by mikelieman at 2:34 PM on April 4, 2012


I'm glad that the President is defending the law in Constitutional terms, but less sanguine about comments that suggest that a ruling against ObamaCare would be "extraordinary" and "unprecedented" (i.e., less than legitimate) because Congress is elected and Justices are not.

The comment about "unelected" judges is part of his (accurate) paraphrase of what conservatives have been saying about the Supreme Court for decades. Now that the Conservatives have a majority on the court, they've forgotten that they used to sing with great gusto and in unison from that hymnbook, but those of us older than, say, 30, can remember pretty well.

Heck, Newt let rip with the old hymn just a few weeks back, and where was all the conservative outrage then?
posted by yoink at 2:38 PM on April 4, 2012


I'll trade Bush v. Gore for Joe vs. the Volcano and a third round pick to be named later. There is totally a point to this comment.
posted by XQUZYPHYR at 2:39 PM on April 4, 2012 [5 favorites]


...pottle?
posted by shakespeherian at 2:43 PM on April 4, 2012 [2 favorites]


Imagine if you were a conservative from the early 90s and you'd just time travelled to the present. You see a black Democratic President championing an approach to universal healthcare that you'd just seen originated by the Heritage Foundation, and you see conservatives demanding that the Supreme Court blithely ignore the will of the people as expressed by Congress, and claiming to be shocked, SHOCKED at the very notion that anyone could question the court's plenary power to toss whatever laws it found just didn't sit right with them--precedent be damned.

He'd think he'd arrived in fucking bizarro world.
posted by yoink at 2:45 PM on April 4, 2012 [14 favorites]


The comment about "unelected" judges is part of his (accurate) paraphrase of what conservatives have been saying about the Supreme Court for decades.

Judges being "unelected" is also inferred in his initial quote when he discusses "overturning a law that was passed by a strong majority of a democratically elected Congress."
posted by BobbyVan at 2:49 PM on April 4, 2012


I hated it when the Supreme Court decided it was OK to take someone's land using eminent domain and turn it over to private enterprise for the purpose of profit (and thereby increasing the tax base, which was the excuse for the eminent domain process).

The government requiring citizens to pay private enterprises for insurance is roughly equivalent. You can't opt-out, and you can't buy into a federal system. Even the "exchanges" that the ACA sets up still are payments to private companies, and I'm bothered by that.

I generally support all of the aspects of ACA but honestly feel squeamish about the individual mandate because it forces me to give money to private enterprise. The fact that the Democrats didn't have enough party discipline to get a Public Option (let alone Single Payer) pushed through just might kill the ACA altogether.
posted by chimaera at 2:59 PM on April 4, 2012 [6 favorites]


In truth I don't love the individual mandate either, or for that matter the structure of the ACA, but that does not mean Congress didn't have the power to pass it. IMHO they clearly do have that constitutional authority, via the language of the commerce clause and a long line of past Supreme Court precedent very broadly construing it.

It does make me feel sick to think that five members of this Court would and could abuse the power of judicial review to overturn a constitutional and critically important law because, in reality, they just don't like it.
posted by bearwife at 3:06 PM on April 4, 2012


I generally support all of the aspects of ACA but honestly feel squeamish about the individual mandate because it forces me to give money to private enterprise.

Not really, you could just pay the fine.
posted by snofoam at 3:10 PM on April 4, 2012 [1 favorite]


Not really, you could just pay the fine.

When California set up a law requiring people to buy auto insurance, the alternative was to post a bond with the state that can be accessed in the event of an accident.

Had the Federal government allowed us to post a bond (or buy into a public option), then I'd feel differently about it.

I also happen to think that the precedent of the Supreme Court being OK with the government doing things like take away people's property and turning it over to someone else is a bad precedent. Allowing for the individual mandate in this case really does expand the commerce clause to places it hasn't been before.

As I said, I'm in favor of the ACA as it stands now, but I also can see that allowing this mandate to stand *could* allow congress to do something like requiring everyone to buy Terrorism Insurance from your local friendly Chertoff-on-the-board enterprise.
posted by chimaera at 3:16 PM on April 4, 2012 [1 favorite]


But pissing off federal circuit judges isn't a terribly profitable way to spend your time, so DOJ would be well advised to just write the damn letter.

Bull.

Writing the letter would acknowledge he had the right to demand it, and would therefore be a disastrously stupid thing to do.
posted by jamjam at 3:16 PM on April 4, 2012


As I said, I'm in favor of the ACA as it stands now, but I also can see that allowing this mandate to stand *could* allow congress to do something like requiring everyone to buy Terrorism Insurance from your local friendly Chertoff-on-the-board enterprise.

But we already do buy 'Terrorism Insurance'. It's called taxes. It goes to pay for FEMA, which contracts with private companies in the event of an emergency of any sort.

The difference between an 'individual mandate' and a tax is seems vanishingly small. The practical difference is that FEMA gets to pick their contractors, while with the individual mandate private citizens get to pick their insurance plan. Small-goverment folks should love the individual mandate (and they did, 20 years ago).
posted by muddgirl at 3:20 PM on April 4, 2012


It would be funny if the DOJ's "appropriate" response was a just a dude in a suit who shows up and sighs.
posted by Sticherbeast at 3:21 PM on April 4, 2012 [2 favorites]


But we already do buy 'Terrorism Insurance'. It's called taxes. It goes to pay for FEMA, which contracts with private companies in the event of an emergency of any sort.

Yes, and what you describe -- if the ACA were set up that way (which I'd prefer) -- is Single Payer in the Canadian style.
posted by chimaera at 3:23 PM on April 4, 2012 [3 favorites]


The only difference between the mandate and a tax is the fact that no Congresscritter wanted to vote for a tax increase. The insurance mandate is, in every practical sense, just a tax increase, with a tax credit for those who have insurance.

It's thin gruel to say that the Congresscritters who voted for the mandate didn't vote for a tax increase, and it's also thin gruel to say that this is substantively different from any other tax that Congress levies on the people.
posted by Sticherbeast at 3:24 PM on April 4, 2012 [1 favorite]


Yes, and what you describe -- if the ACA were set up that way (which I'd prefer) -- is Single Payer in the Canadian style.

Yep, which is why conservative think tanks in the US stumped for the individual mandate 20 years ago as a viable, market-based alternative to a single-payer system.

I was pretty skeptical about the idea that the US has gotten significantly more conservative in the past 20 years (I thought the jingoism and war-hawking was just an isolated reaction to 9/11), but I think this debate has finally convinced me.
posted by muddgirl at 3:28 PM on April 4, 2012 [3 favorites]


Yep, which is why conservative think tanks in the US stumped for the individual mandate 20 years ago as a viable, market-based alternative to a single-payer system.

Just because a conservative think tank once proposed something doesn't mean it's good public policy, let alone constitutional. It's kind of surprising to see lefty's continue to use the Heritage Foundation for an appeal to authority.
posted by BobbyVan at 3:31 PM on April 4, 2012 [2 favorites]


It wasn't just the conservative think-tanks that stumped for an individual mandate, they mooted an act in committee about it. It was only the abject failure of Clinton to get any traction on his "Health Security" initiative that prevented them from effectively doing in 1994 or 1995 what Obama did in 2010.
posted by chimaera at 3:33 PM on April 4, 2012


John Cohen & BobbyVan,

Oh come on.

You are intentionally misunderstanding him to make a rhetorical point. The fact that he referenced Lochner, especially, and under the context makes it clear that he was talking about the commerce clause.
posted by JKevinKing at 3:34 PM on April 4, 2012


Had the Federal government allowed us to post a bond (or buy into a public option), then I'd feel differently about it.

I was just saying that if you are required to purchase insurance by the mandate, the penalty for not doing so is a fine. It still doesn't force you to buy insurance.
posted by snofoam at 3:36 PM on April 4, 2012


Just because a conservative think tank once proposed something doesn't mean it's good public policy, let alone constitutional.

I didn't state either of these things. I obliquely used it as evidence that conservatives hate anything proposed by a Democrat, even if they used to think it was a great idea.
posted by muddgirl at 3:39 PM on April 4, 2012 [4 favorites]


Conservative support for an individual mandate (as opposed to HillaryCare) in the mid 1990's is roughly equivalent to liberal support for the war in Afghanistan in the mid 2000's (as opposed to Bush's war in Iraq). In my view, both positions were taken for cynical, rhetorical purposes.
posted by BobbyVan at 3:39 PM on April 4, 2012


It's thin gruel to say that the Congresscritters who voted for the mandate didn't vote for a tax increase, and it's also thin gruel to say that this is substantively different from any other tax that Congress levies on the people.

I think it's problematic that it takes the form of a direct tax in the amount of $1000; that looks like a head-on collision with the capitation clause, and from the beginning I've been unable to understand why they took this approach, because it seems doomed to legal failure.

As I've said before, it's fine policy insofar as it broadens access to healthcare - not as good as a single payer system, but the end is certainly a worthy one. I strongly believe in public healthcare because the market for health services really is different and can't clear in the same fashion as markets for other goods and services. but as implemented in the ACA I think it's really terrible law and I have more and more doubts about its constitutionality. At one stage I thought the SC would uphold it to maintain consistency with Wickard v. Filburn but I've changed my mind about the legal necessity of doing so. I don't think they should uphold something just because it would be good policy, if it is not supportable legally - that's Congress's problem.

I was watching a discussion on Tvis Msiley recently where someone opined that the main strategic error of the Obama administration was to do healthcare first instead of jobs, on the theory that a stronger economy and lower unemployment would have made it far more conceivable to get an electoral mandate and maybe even a bipartisan consensus on healthcare in a second term. She had a point.
posted by anigbrowl at 3:41 PM on April 4, 2012 [2 favorites]


is roughly equivalent to liberal support for the war in Afghanistan in the mid 2000's (as opposed to Bush's war in Iraq)

How was support for the war in Afganistan 'opposed' to the war in Iraq? Considering both liberals and conservatives in Congress voted for both? (There was significant public opposition to the war in Afghanistan as early as October 2001).
posted by muddgirl at 3:43 PM on April 4, 2012


BobbyVan,

That liberals supported the Afghanistan War for cynical reasons is also BS. Try again.

(Too bad the conservative hero, W, truly the epitome of modern conservatism ... at the time until it became clear his crap Administration was a liability ... fucked it up by, among other things, going into Iraq.)
posted by JKevinKing at 3:44 PM on April 4, 2012


Once again, there is a ton of noise in a legal thread. Nevertheless, I think we have discussed the potential ruling pretty exhaustively in the thread last week during the oral arguments, but I wanted to comment on the request from the Judge. It is not unheard of for a Judge to make such a request. In fact, to the extent the Judge was seeing this as a request for a supplemental letter brief on legal authority, that is actually a fairly common request. Federal Rule of Appellate Procedure 28(j) specifically permits and contemplates supplemental letter briefing when "pertinent and significant authorities" come to attention after the merits briefing is filed. Of course, authorities typically refers to other court rulings, but I don't see why a statement from the executive branch could not be such an authority.

That being said, I do find this particular request to be too partisan. I can see having the DOJ disown the statement and concede the point in oral argument that judicial review is constitutional. But once conceded, to ask for further comment specifically referencing and refuting the President's statement seems unnecessary partisan sniping. So I think it is an inappropriate action by Judge Smith--not horrendously inappropriate, but the kind of inappropriate action that justifies skepticism of the political motivations of jurists. I wish all Judges were more conscious of wanting to discredit through their conduct the belief that the Courts are political animals.

I'd also say that Obama's comment was legally wrong, inappropriate, and an unfortunate use of the bully pulpit. Commenting on the merits of pending litigation should be judicious and not confrontational and threatening because that too creates skepticism of the judicial process. And if Obama truly is a constitutional law scholar and believer in our justice system, he should not be damaging to the Court. I would expect that from a guy like Bush who is just brash without concern of ramifications, and I took even greater offense to his war against the civil justice system. But I can say that for those of us in the trial lawyers bar, we thought Obama would be an advocate and champion of the justice system. He has wholly failed to do anything other than be hostile to it.

But at the end of the day, Obama is a politician. The Judge is a jurist. Even if Obama's comments were confrontational, a Judge should not rise to the bait. So Judge Smith should be internally reprimanded.
posted by dios at 3:49 PM on April 4, 2012 [7 favorites]


Any one who thinks the GOP was going to give a bipartisan consensus to Obama on healthcare under any circumstances has very little credibility as a political observer.
posted by Pater Aletheias at 3:51 PM on April 4, 2012 [1 favorite]


Oh, and one thing I just caught. Judge Smith set a 3 page minimum for the letter. Now that is highly unusual. Usually the Courts would set a maximum that is constrained. This suggests to me even further that this is an improperly motivated request by Judge Smith.
posted by dios at 3:55 PM on April 4, 2012 [2 favorites]


Just because a conservative think tank once proposed something doesn't mean it's good public policy, let alone constitutional. It's kind of surprising to see lefty's continue to use the Heritage Foundation for an appeal to authority.

The fact that a conservative think tank proposed something that was widely espoused by conservative politicians (the HEART bill of 93 was co-sponsored by literally half of the Republican senators as well as having strong support from the Republicans in the house, lead by House Minority leader Newt Gingrich) and widely discussed in conservative political circles and the wider media without anyone, at any time, seeing the least possibility of a constitutional challenge or expreessing the least qualm about the Federal government usurping new and unprecedented powers prettily thoroughly exposes the hypocrisy of the Right's rhetoric about the ACA.
posted by yoink at 4:08 PM on April 4, 2012


Commenting on the merits of pending litigation should be judicious and not confrontational and threatening because that too creates skepticism of the judicial process

That would make sense if this were a criminal trial. It makes no sense whatsoever in the case of the Supreme Court ruling on a law championed by the President's administration. No President in history has seen themselves as bound not to speak in defense of the very laws that they have campaigned for. The only thing in what you say that would constitute crossing a line is if Obama had, in fact, "threeatened" the Justices. I am struggling, however, to find any implied "threat" in his language. At most he has threatened them with his disappointment. Somehow I think the conservative justices will be willing to bear that.
posted by yoink at 4:15 PM on April 4, 2012 [1 favorite]


a. Wickard v. Filburn held that the government could outlaw an act of commission, to wit the growing of more wheat than the farmer had a quota for. The ACA arguably penalizes an act of omission, that of failing to purchase health insurance - so its categorically quite different, insofar as it creates a new kind of civic duty.

I don't know that this is such a clear cut distinction. For example, you're punished for refusing to consider for hire (or sell housing to) minorities. Companies are obligated (backed by some potential punishment from NLRB) to engage with duly recognized unions. I don't know what the limiting principle is, but don't think "can be expressed as negative" is it.
posted by a robot made out of meat at 4:16 PM on April 4, 2012 [1 favorite]


I'm no fan of Smith or this stupid order but I also think that advocating that a federal judge be "internally reprimanded" for doing what you say is authorized by federal rule is hardly supportive of the judicial process.

Maybe we can all just stick to exercising our free speech rights to criticize, as the President did, rather than suggesting people be disciplined somehow for acting lawfully.
posted by bearwife at 4:18 PM on April 4, 2012


I think it's pretty clear that Republicans have, over the past decade, become much more fiscally conservative. I don't say that as an insult, but as an honest appraisal. It seems as though there's been a groundswell of people in the past five or six years who have watched the recession unfold and become enraged at what they see as excessive government spending and wastage of their tax dollars. As a result, whereas 1990s Republican figureheads would pay some lip service to mitigating underhanded dealing in the private sector – which was the whole point of the individual mandate in the first place, making people pay for things they take, and which was the foundation of the ACA – that lip service has disappeared now that conservatives are, by and large, much more libertarian than they were ten years ago.

So, basically, yes – I do believe that, if a Republican had proposed the ACA, much of her or his party would have turned against it.

However, BobbyVan – I think you're quite incorrect if you mean to imply that most Republican politicans – or even most Republicans at large – would have been against the ACA if it had been proposed two decades ago. To say that would be to ignore the large changes that have happened among conservatives in that time; specifically, it would ignore the central prominence that libertarianism has taken on.
posted by koeselitz at 4:18 PM on April 4, 2012


Dios,

I don't think anyone wrote that in principle a judge can ask for such a letter is inappropriate. Wwhat we are complaining about is the obviously political nature of the order. Under the circumstances I think it was a lot more inappropriate than you do, but then again, I don't go to court as much as you seem to. I think it shows an attitude that compromises his impartiality. I'm sure you've seen local judges do inappropriate things because I know I have, but this is coming from a Federal appellate judge, who I think should be held to a higher standard.

Plus, maybe this is just a difference of perspective, but I don't think that Obama's comments were wholly innapropriate, or really that confrontational. I see your point about commenting on pending cases, but he is the President discussing public policy, and what are the real chances of his comments affecting the decision? The comments certainly weren't "intimidation" as the blowhards on Fox News were bloviating.
posted by JKevinKing at 4:20 PM on April 4, 2012


I'm no fan of Smith or this stupid order but I also think that advocating that a federal judge be "internally reprimanded" for doing what you say is authorized by federal rule is hardly supportive of the judicial process.

bearwife: the point I was making is that asking for supplemental briefs is permitted, so the concept is not foreign or improper. But I think, as with all things, putatively legitimate acts can be pursued with improper motivations. All things considered, the motivation of Judge Smith seems suspect, and the result is deleterious to the dignity of the Court because it causes people to question the motivations of the courts. I would hope the other judges would internally reprimand his behavior or otherwise let their disapproval be known--not publicly because that just compounds the problem.
posted by dios at 4:28 PM on April 4, 2012


I don't know that [commission v. omission] is such a clear cut distinction. For example, you're punished for refusing to consider for hire (or sell housing to) minorities. Companies are obligated (backed by some potential punishment from NLRB) to engage with duly recognized unions. I don't know what the limiting principle is, but don't think "can be expressed as negative" is it..

Excellent points, but in both of those cases I'd say the obligations are ancillary to the fact that you're actively trying to participate in a market (to sell a house, recruit labor, or whatever). By contrast, imagine a hermit that has paid rent in advance to some patch of land and lives off whatever she grows thereon - in other word, has the minimum conceivable contact with the economy. The mandate as implemented in the ACA means that Hermione the Hermit gets a letter one day from the IRS saying she owes the government $1000 because she has failed to purchase health insurance, even though she may not have sought any services. It's a weird choice between a contract of adhesion and a head tax, neither of which are necessarily desirable.

Logical (not policy) arguments by the proponents of the ACA ring a bit hollow to me - for example the idea that everyone will need healthcare at some point in their lives (probably but not necessarily true, and certainly not to the same degree), or that you have to file tax returns and doing so necessarily involves the purchase a postage stamp, therefore mandates are OK (again, probably true but not necessarily so; I could in theory deliver my tax return by hand). I'm not strawmanning here; these were two arguments I've heard in favor of the mandate from Pamela Karlan, neither of which struck me as remotely persuasive on their face, but then she's been studying this stuff a lot longer than I have so maybe I'm missing something about them.

As an aside to the legal question, I wonder what would happen if everyone (or even just a majority of people) ditched their health insurance and just paid the $1000. In a purely theoretical framework, you could deliver a lot of healthcare for $300B a year - enough to 'stuff the doctors' mouths with gold,' as it were.
posted by anigbrowl at 4:46 PM on April 4, 2012 [1 favorite]


I see your point about commenting on pending cases, but he is the President discussing public policy, and what are the real chances of his comments affecting the decision? The comments certainly weren't "intimidation" as the blowhards on Fox News were bloviating.
posted by JKevinKing at 6:20 PM on April 4


I don't see it as a problem because it is intimidating, although the use of the bully pulpit like this is clearly an attempt to influence the decision in part.

I see it as problematic because it prospectively disclaims the legitimacy of an action that the Court may take. So it's an attack on the legitimacy and dignity of the Court. That is what I find inappropriate and unfortunate. It is one thing to advocate a position (e.g., "I believe the Court should approve A because of X, Y, and Z"). It is an entirely different issue if you attempt to convince the public that ruling the opposite way is per se illegitimate and partisan. The difference is in the former you are advocating your position, but you are not attacking the process or the legitimacy of a view. In the latter, you are creating the pubic perception that ruling a particular way indicates a flawed and illegitimate process. There is a world of difference between respectfully disagreeing after an adverse ruling is made while respecting the dignity of the process and prospectively proclaiming that an adverse ruling would be evidence that a court is ruling on political grounds and without a constitutional basis to do so.

The fact that his statement was legally inaccurate and apparently an attempt to make a partisan point about hypocrisy makes it all the more unfortunate in my opinion.
posted by dios at 4:46 PM on April 4, 2012 [4 favorites]


One other thing that occurs to me:

It seems that Obama is intentionally saying things to get under the Republicans' skins and rile them up. He's hoisting them on their petard and calling them out on their own sophistry.

We know is mere holding the office of the Presidency gets under their skin, but I can only think now he's doing it on purpose.

Maybe it's not 11th dimensional chess, but it might be boxing.

Looking at this in that light, I think I'm enjoying the reaction.
posted by JKevinKing at 4:49 PM on April 4, 2012


The mandate as implemented in the ACA means that Hermione the Hermit gets a letter one day from the IRS saying she owes the government $1000 because she has failed to purchase health insurance, even though she may not have sought any services.

I was under the impression that, if she earns below a certain amount, which it sounds like she would, she would not pay federal income taxes, and as a corollary to that, she would not pay that $1000.
posted by Sticherbeast at 4:55 PM on April 4, 2012


I'd say the obligations are ancillary to the fact that you're actively trying to participate in a market

anigbrowl has it correct. This is really unprecedented for that reason. The law is well-trodden that, having willingly entered the zone of commerce, you can be required to perform an act. In the previous thread, we discussed the Heart of Atlanta case which dealt with, in effect, requiring motel owners to rent to all races (technically to force adherence to the Civil Rights Act through the Commerce Clause power). But that dealt with people who had already decided to run motels.

Here the question is whether a person not currently in the market and no present intention to engage in such commerce can be compelled to engage in commerce with no ability to opt out. This wholly novel fact issue is what makes it different from every Commerce Clause case and also makes it almost certainly (probably 9-0) an improper use of the taxing power because it is a direct tax.

As an aside, it is a week later and my view is the same: this is likely going to come down to whether Kennedy can construct some heightened standard to use as a limiting principle.
posted by dios at 4:56 PM on April 4, 2012


Dios,

I don't think he was attempting to influence the Court as much as he was making a political argument to the general electorate.

The argument that he is prospectively trying the delegitimize the decision rings hollow to me. It's obvious, that's what he thinks, and, again, the chances that his talk might influence the decision are nil.

And I don't think his comments were legally inaccurate as much as they were the expression of his opinion.
posted by JKevinKing at 5:00 PM on April 4, 2012


Here the question is whether a person not currently in the market and no present intention to engage in such commerce can be compelled to engage in commerce with no ability to opt out.

My impression on a few points:

1. You can't, in my mind, make the claim that a person gets to makes the decision whether or not to participate in the health care market. Participation is decided by external forces - completely. Unless a person can will themselves well, this is not their decision to make.

2. Allowing someone to opt out completely when they are young and healthy compounds the expense when they get old and sick and have to participate in the market. And, again, they are merely passive players here.

3. Drawing some kind of imaginary line between the "health care market" and the "insurance market" is absolutely ridiculous. In this country, they are two sides of the same coin.
posted by Benny Andajetz at 5:06 PM on April 4, 2012 [1 favorite]


I'd say the obligations are ancillary to the fact that you're actively trying to participate in a market

That's a pretty weak boundary; it limits the federal power to compel an act only to individuals who enter any market whatsoever. I'd be fine with a hermit exception; the implied restriction would be to individuals who at some point purchased any health care services / goods, which is just about everyone.

because it is a direct tax

Are credits in excess of cost for anything a direct tax?Given the built-in subsidies we would end up in the same position if we added n% to the income tax and allowed individuals a credit.
posted by a robot made out of meat at 5:09 PM on April 4, 2012


Dios,

I know we had this comversation last time, but I'll state it again here:

The correct question in my mind is that, stipulating that health care and its financing is interstate commerce, is the law in question rationally related to Congress' purpose. The limiting principle is the rational relation test & the other provisions in the Constitution.

Arguing for the limiting principle does sound like there is an economic liberty under, say, substantive due process. I think it sounds an awful like Lochner v. New York.

It would be a change to the law, and I would disagree with it. But new knew that. ;)
posted by JKevinKing at 5:09 PM on April 4, 2012


So ridiculous. No basis for this order to issue, at all.

So says the Obama supporter. Would such a position be playing politics.
posted by rough ashlar at 5:11 PM on April 4, 2012


There's simply no procedural reason for this.

So nut up and file judicial grievances.
posted by rough ashlar at 5:14 PM on April 4, 2012


Just WTF is going on with Marbury vs. Madison and how has it become some conservative hot button? I remember 6 months ago, someone at my Occupy Wall Street group pulled up the Citizens United group and found their legal brief for SCOTUS. It started with an argument for Marbury, because it allows the court to be judicial activists and rule in their favor. But now, I can't find that on their website at all. It seems to be a 100% Andrew Breitbart site now.
posted by charlie don't surf at 5:32 PM on April 4, 2012


I was under the impression that, if she earns below a certain amount, which it sounds like she would, she would not pay federal income taxes, and as a corollary to that, she would not pay that $1000.

Oh sure, I don't think an IRS agent is going to come and take it out of her hide Shylock style. But up to this point she could have filed a tax return saying 'income $0' and owed $0; it's the fact that she incurs a liability of any kind even if it costs her nothing in practice that doesn't sit right. It's a bit like selective service and conscription, except there you can tie it to one of Congress's enumerated powers (to raise armies). Applying similar logic to the ACA would (ISTM) require the court to discover something new in the penumbra of the general welfare clause or so.


1. You can't, in my mind, make the claim that a person gets to makes the decision whether or not to participate in the health care market. Participation is decided by external forces - completely. Unless a person can will themselves well, this is not their decision to make.

Oh yes it is - one may choose to tough an injury out or lie down and die, for that matter. People are not helpless victims of circumstance in this respect. Sure, when in enough distress people will often give into their circumstances and seek medical attention, but that is by no means a given; and even if they do, they might choose to pay out of pocket. From a policy standpoint it's much better that people are not put in a position of having to make such decisions because of the economic inefficiencies that result, but the fact is that you can get sick or injured without necessarily asking the public to help you bear the burden. Your argument here begs the question by assuming that everyone who is not insured will at some point become a public charge.

2. Allowing someone to opt out completely when they are young and healthy compounds the expense when they get old and sick and have to participate in the market. And, again, they are merely passive players here.

That's a policy issue. I've said above that I think it's good policy, but good policy doesn't make it constitutional. I've met some legal scholars who are dad set against the ACA that are nonetheless in favor of single payer. But I can't agree that you can downgrade people to passive players, that's essentially classifying them as subjects rather than citizens.

3. Drawing some kind of imaginary line between the "health care market" and the "insurance market" is absolutely ridiculous. In this country, they are two sides of the same coin.

Again, you can go get medical treatment and pay for it without ever having a business relationship with an insurance company. The older you get, the less viable of a strategy this is likely to be, but the point is that the two are not inextricably linked. The ACA penalizes you for not buying insurance even if you can afford to do without it and pay cash up front. Yes, as a matter of probability most people will need healthcare and most people would and will prefer to have their healthcare paid out via insurance and amortize the costs over time.

But that's not good enough to rewrite the law over. You could argue that we don't need to care about the 4th amendment because most people aren't criminals and have nothing to fear from a police search, or that we don't need to care about a first amendment because most people don't enjoy public speaking in the first place, or about a second amendment because most people don't need a gun. Being European, I find American's fondness for guns hard to understand and have little interest in the things, and the harms of widespread gun availability are pretty obvious. But Congress can't overturn the 2A just because the founders failed to anticipate the possibility of drive-by shootings or the myriad increases in firearms' lethality. Likewise, the existence of a consensus about the pragmatic desirability of a socialized healthcare system doesn't mean Congress has the power to impose the individual mandate.
posted by anigbrowl at 5:40 PM on April 4, 2012 [2 favorites]


I was really shocked when I read this story yesterday. I immediately went to Balkinization to see if they were discussing it, and yes, it was the top item there. But even Balkinization (I forget which contributor it was) didn't seem to know how to react.

This assignment by the 5th Circuit judge seems like anything but a tempest in a teapot. It is an egregious violation of separation of powers. For one thing, one branch of government does not assign homework to another branch of government. For another thing, to order the executive branch -- in the course of hearing a case or controversy before the court -- to explain, by way of a letter (which is not a legal pleading, has no status as a legal pleading, and cannot be considered since it lacks this status) a statement by the executive in an out of court speech having nothing to do with that case or controversy, is an outrageous abuse of authority. I would not be at all surprised if the judge is formally reprimanded for this at some point, because it is so flagrant a violation of judicial authority.

It is pretty much exactly analogous to a situation in which the Chief Justice gives a speech making some general statement about the type of justice he is sure the President will appoint, and the President ordering that Justice to explain himself in a formal letter.

This 5th Circuit judge simply does not understand separation of power. He is bullying Obama and treating him as an errant school child, and flagrantly ignoring the Constitution in doing so. It is shocking.
posted by jayder at 5:45 PM on April 4, 2012 [3 favorites]


It is pretty much exactly analogous to a situation in which the Chief Justice gives a speech making some general statement about the type of justice he is sure the President will appoint, and the President ordering that Justice to explain himself in a formal letter.

Actually upon reflection I think it is analogous to the President ordering a Justice or judge to explain something, by letter, that a Justice or judge says from the bench.
posted by jayder at 5:48 PM on April 4, 2012


a statement by the executive in an out of court speech having nothing to do with that case or controversy

Well it does seem to have an indirect bearing on the case; Kaersvang had been arguing for the ACA, and it's not so unreasonable for a judge to take judicial notice of the an external assertion that he (the judge) has no authority to find against the government as regards this legislation.

It is absurdly petulant, may compromise the neutrality of the court and open up avenues of appeal, and Judge Smith would have done better to sit at home and harrumph, but ultimately it's a sideshow.
posted by anigbrowl at 5:57 PM on April 4, 2012


"we thought Obama would be an advocate and champion of the justice system. He has wholly failed to do anything other than be hostile to it."

Can you expand on this?
posted by klangklangston at 6:02 PM on April 4, 2012


Actually upon reflection I think it is analogous to the President ordering a Justice or judge to explain something, by letter, that a Justice or judge says from the bench.

Well, that's exactly how some people felt about Obama complaining about Citizen's United in his State of the Union speech - another area where I find myself having to side with the conservative viewpoint even though I don't agree with the policy. I don't see what other conclusion the Court could reasonably have come to, and thought it was rather bad form to take a pot shot at the court from the pulpit, although it did serve as a great object lesson in how the decision would reshape the political landscape.
posted by anigbrowl at 6:04 PM on April 4, 2012 [1 favorite]


"for example the idea that everyone will need healthcare at some point in their lives (probably but not necessarily true, and certainly not to the same degree)"

This is, to large extent, inventing a vanishingly small hypothetical in order to justify an argument that seems absurd on its face — something you admit later by noting that any hermit would have zero income tax, ergo his fee would be subsidized away anyway.

So, it's something that beggars imagination to hold as anything but the exception that proves the rule, and even then it has zero actual harm to that individual?

This just reads like post hoc justification to me.
posted by klangklangston at 6:08 PM on April 4, 2012 [2 favorites]


Oh sure, I don't think an IRS agent is going to come and take it out of her hide Shylock style.

Leave Shylock out of this. People at or below the poverty line are completely exempt from the mandate, so Hermione the Hermit is, as I already said, exempt entirely from the mandate. By 2014, everyone at or below 133% of the poverty line qualifies for Medicare. There will also be exchanges (subsidies, essentially) for people at 133% and 400% of the poverty line. There is also an exemption for "financial hardship," which I assume will be defined by administrative types.
posted by Sticherbeast at 6:09 PM on April 4, 2012 [2 favorites]


we thought Obama would be an advocate and champion of the justice system.

As it turns out, there's a fair likelihood he's going to be the President to do more to limit the power of the Federal government via the Commerce Clause than anyone in a century. So maybe, he is!

Who knew?

Prediction: conservatives will still hate him, though.
posted by Kadin2048 at 6:11 PM on April 4, 2012


This is, to large extent, inventing a vanishingly small hypothetical in order to justify an argument that seems absurd on its face — something you admit later by noting that any hermit would have zero income tax, ergo his fee would be subsidized away anyway.

Not to justify it, just to illustrate it (by positing someone who has an absolute minimum of commercial relations so that we can focus on the one imposed by the mandate). But the number of people who do not have health insurance and make the choice to either skip treatment or pay for it out of pocket is not vanishingly small at all. It is this latter situation that is the justification for my argument.

I myself am in this group, so I might wind up with an additional tax liability of $1000 if the Supreme Court upholds the law. I don't have any personal problem with that, but since I've never had health insurance but have instead pulled out my checkbook to pay for medical treatment on a few occasions (and gone without on some others), the issue jumped out at me when the ACA was passed in the first place.

People at or below the poverty line are completely exempt from the mandate, so Hermione the Hermit is, as I already said, exempt entirely from the mandate.

I never said she was poor, and that's not what my argument rests on. She might have $1,000,000 in the bank and simply want to be left alone. The example is one of someone who incurs a penal tax liability despite an absence of ties to interstate (or even intrastate) commerce of any kind.
posted by anigbrowl at 6:27 PM on April 4, 2012


I never said she was poor, and that's not what my argument rests on. She might have $1,000,000 in the bank and simply want to be left alone. The example is one of someone who incurs a penal tax liability despite an absence of ties to interstate (or even intrastate) commerce of any kind.

Does she have "minimal conceivable contact with the economy," or does she have $1,000,000 in the bank? Hermione's existence is inconsistent.
posted by Sticherbeast at 6:33 PM on April 4, 2012


She can have it under her mattress, in a safe deposit box, doesn't matter. The point is that she's representative of someone who is attending to their own business, but is now compelled to enter into a relationship with an insurance company or face an administrative penalty. Even Filburn was presumably planning to sell the chickens after feeding them with his own wheat. Hermione the Hermit chooses to live outside the social and commercial sphere for reasons of her own. What constitutional basis does the government have for compelling her to enter it?

If you want, imagine her as an Amish or something. There's probably some sort of legislative exception for such folk in the ACA too, but as you know any legislative exception can get turned into a loophole. I'm trying to get at the enumerated power the government can use to compel someone to purchase a service that they may not want.
posted by anigbrowl at 6:45 PM on April 4, 2012


Allowing someone to opt out completely when they are young and healthy compounds the expense when they get old and sick and have to participate in the market.

As Zombie Justice Stevens would say - how you gonna turn square corners when a bulk of expense is at the end of life ?

(and when did insurance companies become health care?)
posted by rough ashlar at 6:54 PM on April 4, 2012


Well, that's exactly how some people felt about Obama complaining about Citizen's United in his State of the Union speech

But he didn't order the judicial branch to explain itself.
posted by jayder at 7:05 PM on April 4, 2012


Anigbrowl,

Maybe this was adressed earlier, but I can't seem to find it in the thread, how is she gooing to pay the penalty if she doesn't file taxes?

RoughAshlar,

I think the argument is that under current conditions, which the law seeks to keep as intact as possible, health care & health insurance are inextricably linked.
posted by JKevinKing at 7:15 PM on April 4, 2012


(and when did insurance companies become health care?)

Roughly between 1940 and 1950 if we're talking about the U.S., but I have a suspicion you're not arguing in good faith.
posted by joe lisboa at 8:36 PM on April 4, 2012


Maybe this was adressed earlier, but I can't seem to find it in the thread, how is she gooing to pay the penalty if she doesn't file taxes?

I'm assuming she files for taxes even if her income is $0. The only reason she's a hermit in this hypo (grows own food etc) is to signify a person who has no commercial relationships by choice, in order to simplify the issue. That would be unusual in today's society but it's not impossible by any means, and would not have been unusual at all in the early days of the nation. The constitutionality or not of the mandate doesn't really depend on being a hermit, but I can't help feeling that many of the mandate's proponents have argued on the basis that it's such a minor administrative burden that questions about the principle behind it are moot.

I'm not really an originalist, but I think one has to at least consider a textual analysis - I haven't heard the ACA advocates make a strong precential argument, and while I agree with the policy I don't think that's enough to justify expanding the reach of the commerce clause.
posted by anigbrowl at 9:11 PM on April 4, 2012


could the States, but not the Federal government, impose the same scheme? if not, then is the argument against the aca based on federalism? if it's not about federalism, then is it about the violation of an individual right? which individual right is it about? the same one that prohibits the government from imposing taxes, and regulations? i don't think there is one.
posted by facetious at 9:49 PM on April 4, 2012


could the States, but not the Federal government, impose the same scheme?

Yes, provided it's allowed within the framework of that state's constitution. But Massachusetts has a state-level mandate that is very similar to the ACA's, and it is not particularly controversial there.

If the USSC says that the Federal government cannot sustain the individual mandate via the Commerce Clause, then via the 10th Amendment it would seem quite safe to do at the state level. In other words, if the Court says that the Federal government can't do it because it's outside the scope of Federal powers, then it seemingly must be a state-level function. A Commerce Clause-based argument can't prohibit it both ways.

In the long run, I actually think defeating the ACA's mandate would be a good thing; it would put the focus back on state-level initiatives that are less likely to be co-written by the insurance industry, and where single-payer might have a fighting chance. The result would hopefully be a diversity of approaches -- some states would probably go with the status quo, others with an ACA-style mandate, perhaps some would even try various de facto or de jure single payer systems -- and we'd probably get some pretty clear lessons in which work well and which don't. Advocates for various systems would finally have the chance to demonstrate that they actually work, without the distraction of trying to correct for other countries' political, fiscal, cultural, regulatory, or healthcare environments.

If the ACA remains in place, then a mandate to purchase private health insurance will probably be the best we'll ever do for the foreseeable future; the insurance companies will recycle enough of their profits into political contributions to ensure that nothing threatens the convenient arrangement that it represents.
posted by Kadin2048 at 10:27 PM on April 4, 2012 [1 favorite]


Yoink: The fact that a conservative think tank proposed something that was widely espoused by conservative politicians (the HEART bill of 93 was co-sponsored by literally half of the Republican senators as well as having strong support from the Republicans in the house, lead by House Minority leader Newt Gingrich)

Hmm. A Republican health care law proposed in 1993. What else was happening that year that could have made Republicans interested in offering health care legislation? If Hillary Clinton were not advocating a single-payer system, do you really think that Republicans would have still supported a mandate? Sure it's cynical, but it's not as if a health care mandate was part of the GOP party platform pre-Obama.

Yoink, cont: and widely discussed in conservative political circles and the wider media without anyone, at any time, seeing the least possibility of a constitutional challenge or expressing the least qualm about the Federal government usurping new and unprecedented powers prettily thoroughly exposes the hypocrisy of the Right's rhetoric about the ACA.

You overstate your case. It's true that the Heritage Foundation did support a health insurance mandate as early as 1989, but it was not without controversy on the right. In 1994, the head of the Cato Institute, Ed Crane, wrote a critical letter noting that "our friends at The Heritage Foundation have endorsed a mandated, compulsory, universal national health plan’ which flies in the face of the American heritage of individual liberty and individual responsibility."
posted by BobbyVan at 6:29 AM on April 5, 2012


koeselitz: However, BobbyVan – I think you're quite incorrect if you mean to imply that most Republican politicans – or even most Republicans at large – would have been against the ACA if it had been proposed two decades ago. To say that would be to ignore the large changes that have happened among conservatives in that time; specifically, it would ignore the central prominence that libertarianism has taken on.

I honestly don't know what Republican politicians would have supported two decades ago. It's interesting that they only really got interested in a health insurance mandate when they were faced with unified Democratic control of both Congress and the White House, and the prospect of a single-payer system (HillaryCare).

But you are very, very correct about the "prominence that libertarianism has taken on" within the GOP. That would imply that a good portion of Republican opposition to the mandate is rooted in good-faith ideological disagreement, rather than political gamesmanship.
posted by BobbyVan at 6:37 AM on April 5, 2012


She can have it under her mattress, in a safe deposit box, doesn't matter.

Of course it matters, unless you're aware of FDIC-insured mattresses which offer interest. Regardless, if her income is below the poverty line, then she is exempt from the penalty, which is why the example keeps failing. If you are saying instead that Hermione does not have minimal commercial contacts, but rather that she earns apparently a healthy amount of money despite the fact that she aspires to be a subsistence farmer, then your hypo necessarily changes.

Even Filburn was presumably planning to sell the chickens after feeding them with his own wheat. Hermione the Hermit chooses to live outside the social and commercial sphere for reasons of her own. What constitutional basis does the government have for compelling her to enter it?

Taxing power and the Commerce Clause.

As for Filburn, there's every guarantee that most people will never be in the business of selling chickens, but as for health care, there's every guarantee that most people wind up requiring health care. I'd be interested in seeing actual numbers of people who never in their life pay for any health care, not even out of their own pockets.

If you want, imagine her as an Amish or something. There's probably some sort of legislative exception for such folk in the ACA too, but as you know any legislative exception can get turned into a loophole. I'm trying to get at the enumerated power the government can use to compel someone to purchase a service that they may not want.

There's a religious exemption built into the law, although of course that exemption would have been imputed anyway.

We can't keep coming up with counterfactual hypotheticals. There are too many exemptions at play for Hermione to become an interesting example. At the end of the day, "purchas[ing] a service that they may not want" is what taxes are.

I'm assuming she files for taxes even if her income is $0. The only reason she's a hermit in this hypo (grows own food etc) is to signify a person who has no commercial relationships by choice, in order to simplify the issue.

If her income is $0, then she is exempt from the penalty. When you whittle her down to having "no commercial relationships," then your example fails.
posted by Sticherbeast at 6:57 AM on April 5, 2012


Frankly I'm unsurprised, and I'm unsurprised for exactly the same reason that I think Leezie was entirely correct in putting the (R) behind Smith's name. This is 2012, that means it has now been 12 years since the five Republican members of the Supreme Court abandoned any and all pretense of being above the partisan fray and in Bush v Gore willfully and gleefully embraced partisan politics in order to steal an election for their party's candidate.

Why shouldn't a lower court judge follow the lead of the Supreme Court and identify first and foremost as the Republican that he is? The only surprising thing is that it's taken this long for the lower court Republican judges to step up their party's war against Obama.

We see exactly the same dynamic in the Florence v. Board of Chosen Freeholders decision (that was the strip searches for everyone decision), and we'll see it again when the ACA ruling is made, and we already saw it in the questioning during oral arguments on the ACA case. The Republican Justices haven't even pretended to be anything but just that, Republican Justices, for twelve years now.

Now the partisanship that the Republican Justices embraced in Bush v Gore has trickled down to the Circuit courts. This is both entirely predictable and not at all surprising. Regrettable perhaps, but they did the damage back in 2000. The real downside is that, as always, the Democrats aren't fighting back and the "liberal" branch of the Court isn't remotely as nakedly partisan as the Republican branch is.
posted by sotonohito at 7:21 AM on April 5, 2012


I am unnerved by the existence of that (R) after a judge's name.

Get active in local politics, witness firsthand the flagrantly partisan activity of judges at all levels of our Federal, State, and local judicial systems, and you'll be even more unnerved.
posted by snottydick at 7:59 AM on April 5, 2012 [1 favorite]


I've been thinking about this for a couple of days now, and come to the conclusion that Holder's best course of action would be to submit the requested three-page paper.

In 24-point Comic Sans.
posted by Faint of Butt at 8:12 AM on April 5, 2012


But you are very, very correct about the "prominence that libertarianism has taken on" within the GOP. That would imply that a good portion of Republican opposition to the mandate is rooted in good-faith ideological disagreement, rather than political gamesmanship.

This assumes things not in evidence about the Republican adoption of libertarian rhetoric.
posted by gauche at 10:05 AM on April 5, 2012


Good post today at HuffPo on just how radical a piece of constiutional jurisprudence a decision striking down the ACA on commerce clause grounds would be. And it includes the amusing metaphor of Lochner as a crucifix waved before a vampire.
posted by bearwife at 10:16 AM on April 5, 2012


And, here is Holder's letter. Nice job, Mr. A.G.
posted by bearwife at 10:34 AM on April 5, 2012 [4 favorites]


Yeah, that's about right. Seems like one of those "best just eat your medicine" situations. It sounds from the actual transcript that the request was genuine, if a bit unusual, and Justice seems to have responded 1) in keeping with the spirit of the question, and 2) uncontroversially.
posted by valkyryn at 11:29 AM on April 5, 2012 [1 favorite]


That's only two and a half pages! Someone's gonna get detention.
posted by Big_B at 11:29 AM on April 5, 2012


In the long run, I actually think defeating the ACA's mandate would be a good thing; it would put the focus back on state-level initiatives that are less likely to be co-written by the insurance industry, and where single-payer might have a fighting chance.

Spoken like someone who I can only believe has no idea how state government's actually run.

As a matter of fact, industry lobbying groups like ALEC directly author more legislation at the state level at the behest of corporate interests than at the federal level, because state government is much more corruptible.
posted by saulgoodman at 11:37 AM on April 5, 2012 [2 favorites]


Of course it matters, unless you're aware of FDIC-insured mattresses which offer interest. Regardless, if her income is below the poverty line, then she is exempt from the penalty, which is why the example keeps failing. If you are saying instead that Hermione does not have minimal commercial contacts, but rather that she earns apparently a healthy amount of money despite the fact that she aspires to be a subsistence farmer, then your hypo necessarily changes.

No it doesn't, and you're smarter than this. As I've said before, the simplicity is for illustrative purposes only; it's not path-dependent. You have no basis for assuming that wealth is indicative of commercial activity (it might be inherited and the tax already paid; she might have won the lottery jackpot last week), but in any case the fact of having existing commercial contacts, if someone does, does not justify forcing them into another one that they may not wish to enter into, on pain of an administrative penalty.

As for Filburn, there's every guarantee that most people will never be in the business of selling chickens, but as for health care, there's every guarantee that most people wind up requiring health care. I'd be interested in seeing actual numbers of people who never in their life pay for any health care, not even out of their own pockets.

So? there's every guarantee that most people will end up needing food unless they die very young indeed, but as discussed during oral argument, the government can hardly require you to eat broccoli. The error that proponents of the mandate are making her is that they're applying a deterministic outcome to a probabilistic situation and then trying to retroactively justify it with a combination of 'it's for your own good'a dn ;sooner or later it's going to happen to you', while ignoring the slippery slope this leads them onto. I can justify all sorts of draconian, individual-liberty-interest-destroying policies on such grounds. It's not that I think proponents of the mandate want to promulgate such policies, but that they're opening the door to doing so.

All the exemptions to the hypo that you're conjuring up amount to an avoidance of the basic question of how the government can force an unwilling participant into a private market. You haven't even attempted to answer this, but instead keep making collateral attacks on the idea. Deep down I think you agree with me, the same way I agree with you about the desirability of universal healthcare from a policy point of view, and even of a mandate from an economic point of view. But I can't justify the law on policy grounds alone.

We can't keep coming up with counterfactual hypotheticals. There are too many exemptions at play for Hermione to become an interesting example. At the end of the day, "purchas[ing] a service that they may not want" is what taxes are.

Not they are not. Taxes are where the government purchases a service that I may or may not want, like a stealth bomber capability or an industrial policy. I would be absolutely fine with single-payer healthcare, and frankly I agree with Randy Barnett that the Democrats' main legislative failure was not having a plan B in place when Ted Kennedy fell ill, died, and his seat went to Scott Brown and the senatorial supermajority that could have gone on to add a public option evaporated.

Let me put this simply: if the government can tell me to buy a health insurance policy, which one should I buy, and how much should I spend? Can the government require me to buy a car, on the basis that I will certainly need to travel around at some point? What divides contractual relationships that the government can force me into from those that it can't?
posted by anigbrowl at 11:43 AM on April 5, 2012


What divides contractual relationships that the government can force me into from those that it can't?

The Solicitor General couldn't answer that question. What makes you think these mooks can?
posted by valkyryn at 11:51 AM on April 5, 2012 [1 favorite]


Good post today at HuffPo on just how radical a piece of constiutional jurisprudence a decision striking down the ACA on commerce clause grounds would be.

You've gotta love a discussion of the Lochner era that fails to mention FDR's threat to pack the court and leaves the reader to conclude that some legal miasma simply lifted from the judiciary's eyes.
posted by anigbrowl at 11:57 AM on April 5, 2012 [2 favorites]


Let me put this simply: if the government can tell me to buy a health insurance policy, which one should I buy, and how much should I spend? Can the government require me to buy a car, on the basis that I will certainly need to travel around at some point? What divides contractual relationships that the government can force me into from those that it can't?

anigbrowl: How would you answer those questions at the state level?

Are you okay with the fact that if the Supreme Court rules the Federal Government does not have the right to compel people to buy health insurance, the state does?

So you're also okay with the state's having the right to compel people to buy cars (to use your hypothetical)?

The clear dividing line is simple to me: Even apart from Interstate Commerce considerations, health is a public policy matter because health problems can effect more people than just those immediately effected by a health problem.

If you get an infectious disease and don't get it properly treated, your neighbors are at greater risk of illness/death, too. Health care is not strictly an individual rights' issue.
posted by saulgoodman at 12:04 PM on April 5, 2012


I'm really surprised and disappointed by your take on this, actually, anigbrowl, We don't always agree, but you're usually more sensible than this.
posted by saulgoodman at 12:05 PM on April 5, 2012


Are you okay with the fact that if the Supreme Court rules the Federal Government does not have the right to compel people to buy health insurance, the state does?

I, for one, absolutely would be. The federal government is a government of limited and enumerated powers. State governments are governments of plenary powers only limited by the Constitution.

The objection isn't that the mandate is stupid or a bad idea. That's a policy consideration, and the courts rightly keep their noses out of those most of the time. The objection is, regardless of policy considerations, the mandate isn't something the federal government, being a government of enumerated and limited powers, is allowed to do.

So you're also okay with the state's having the right to compel people to buy cars (to use your hypothetical)?

On policy grounds? No, that's silly. On constitutional and legal grounds? It'd probably violate due process to punish people for not buying something they can't afford. But pick something cheaper, or provide the money for them to do it, and yeah, the states could probably do that.

That's federalism at work. Arguments that the federal government has exceeded its powers are almost never on the basis that this isn't something that government, as such, should not do a thing, but that it's something that under the American system of government has been left up to the states and the people.
posted by valkyryn at 12:19 PM on April 5, 2012 [1 favorite]


I, for one, absolutely would be. The federal government is a government of limited and enumerated powers. State governments are governments of plenary powers only limited by the Constitution.

So, are you a big fan of the practical outcomes of that philosophy like Jim Crow laws? Or the slave trade?

But pick something cheaper, or provide the money for them to do it, and yeah, the states could probably do that.

Living in a state that sometimes feels like little more than an annex for certain wealthy corporate interests, this view horrifies me.
posted by saulgoodman at 12:23 PM on April 5, 2012 [1 favorite]


...and the people.

Right. Good that you acknowledge it isn't just up to the states. It's also up to the people. And one way the people get to express their un-enumerated powers is when their elected representatives in the congress pass new laws that enumerate a new power for the Federal government.
posted by saulgoodman at 12:27 PM on April 5, 2012 [1 favorite]


...when their elected representatives in the congress pass new laws that enumerate a new power for the Federal government.

You will want to back off of this particular line of argument. It is pretty well established in Constitutional law that statutes are not the source of Federal power.
posted by gauche at 12:35 PM on April 5, 2012


So, are you a big fan of the practical outcomes of that philosophy like Jim Crow laws? Or the slave trade?

No, because those things violate the Constitution.

Think about it this way: the federal government can only do those things the Constitution says it can. The States can do anything the Constitution doesn't say they can't.
posted by valkyryn at 12:38 PM on April 5, 2012


And one way the people get to express their un-enumerated powers is when their elected representatives in the congress pass new laws that enumerate a new power for the Federal government.

Only by invoking Article V and passing a new Constitutional amendment. As gauche says, this isn't something Congress can do on its own authority.
posted by valkyryn at 12:39 PM on April 5, 2012


No it doesn't, and you're smarter than this. As I've said before, the simplicity is for illustrative purposes only; it's not path-dependent. You have no basis for assuming that wealth is indicative of commercial activity (it might be inherited and the tax already paid; she might have won the lottery jackpot last week), but in any case the fact of having existing commercial contacts, if someone does, does not justify forcing them into another one that they may not wish to enter into, on pain of an administrative penalty.

It is not illustrative if it's counterfactual, saying that people would have to pay the penalty when the law itself says that they would not. I'm not "conjuring up" exemptions: I am stating what the law itself says.

If she inherited her money, the tax has been paid, and she keeps it in a shoebox, then no, she does not need to get health insurance, she does not need to pay the penalty. She's not forced to do anything. That's what the ACA itself says. Don't get frustrated at me because the law itself specifically lays out that she would not have to pay the penalty. Drop her being a hermit, drop her being Amish. I

On the other hand, if Hermione does go out into the world and chooses to hold down a job, earning, say, 200% of the poverty level, then yes, even though her health care would be subsidized through the exchanges and her out-of-pocket health are expenses would be limited, she would have to pay for health insurance, or pay a tax penalty, unless there is a religious exemption or if paying for health insurance would pose a financial burden. It's not as "simple" as having Hermione be a hermit, but it's scenario that actually works, because Hermione the Hermit never has to pay the penalty, whereas Hermione the Just-Getting-By might have to.

So? there's every guarantee that most people will end up needing food unless they die very young indeed, but as discussed during oral argument, the government can hardly require you to eat broccoli. The error that proponents of the mandate are making her is that they're applying a deterministic outcome to a probabilistic situation and then trying to retroactively justify it with a combination of 'it's for your own good'a dn ;sooner or later it's going to happen to you', while ignoring the slippery slope this leads them onto. I can justify all sorts of draconian, individual-liberty-interest-destroying policies on such grounds. It's not that I think proponents of the mandate want to promulgate such policies, but that they're opening the door to doing so.

Forcing everyone to eat broccoli would be more like forcing everyone to get a particular plan from Aetna.

Thanks to Reagan, we already pay taxes so that people can go to the emergency room and get treated, no matter their insurance situation. Even setting aside Medicare and such, everyone already has some degree of publicly-supported health care, whether or not they want it. Getting back to broccoli, ACA is more like if the US had already offered everyone free broccoli, so then the government decided that wealthier people could pay less taxes if they proved that they'd already bought broccoli on their own.

This winds up being functionally the same as a tax increase for everyone, with exemptions and subsidies all the way up to people earning 400% of the poverty level, plus a tax credit for people who pay for health insurance.

If the Court finds that Congress inadvertently created a direct tax by phrasing their tax increase in this way, then that's life, but if Congress turned around the very next week and passed ACA 2: Judgment Day by turning the "penalty" into a "tax increase," everyone's life would be functionally identical, and the Court couldn't say a damn thing about it.

Let me put this simply: if the government can tell me to buy a health insurance policy, which one should I buy, and how much should I spend? Can the government require me to buy a car, on the basis that I will certainly need to travel around at some point? What divides contractual relationships that the government can force me into from those that it can't?

Bodies inevitably require care, break down, stop, and rot. Load your consciousness into a Lawnmower Man-esque VR simulation and maybe you can get out of that bind. There is no equivalence here to what cars do.
posted by Sticherbeast at 12:39 PM on April 5, 2012


anigbrowl: How would you answer those questions at the state level?

By reference to the state government's enumerated powers in the state constitution, of course.

So you're also okay with the state's having the right to compel people to buy cars (to use your hypothetical)?

No. you seem to think I view it as a quantitative issue, ie how much power does the government have? I don't, I see it as a qualitative one, ie what kind of power(s) does the government have? I don't see anything in the US constitution that justifies the government forcing people into unwanted commercial relations. Now if there had been enough votes, and the government set up a National Health Service or a National Insurance Pool and said 'from now on some of your income taxes will go into this, and by the way your income taxes are going to increase by somewhere between 1-5% in progressive fashion to pay for it' then I would be fine with that because I can understand the government's power to tax incomes and construct public works.

The clear dividing line is simple to me: Even apart from Interstate Commerce considerations, health is a public policy matter because health problems can effect more people than just those immediately effected by a health problem.

Hey, I can come up with all kinds of great policy arguments against widespread gun ownership and a legislative agenda that would reduce the availability of guns. Unfortunately they all fall apart as soon as they hit the reality of the 2nd amendment. Likewise there are all sorts of arguments against unrestrained public speech, because it often has unhappy consequences. You can see those arguments deployed on a regular basis in the UK, where there are much stronger legal sanctions available against libel and hate speech. But those policies would quickly founder here because they'd run afoul of the first amendment. We're not making policy arguments in a vacuum, we're doing so in the context of of an existing constitutional framework. It's a framework that I consider archaic and flawed in many ways, but we still have to deal with it.

I'm really surprised and disappointed by your take on this, actually, anigbrowl, We don't always agree, but you're usually more sensible than this.

How many fucking times do I have to restate that I favor universal healthcare as a matter of policy? I've said it at least five times in this thread already, not including this post. I love the idea socialized healthcare. If it was up to me all hospitals would be run by the federal government, or at the very least there'd be things like 'member FHIC ' stickers over every hospital doorway in the same way banks acknowledge the FDIC. I even think the mandate would be good policy if there weren't a constitutional question. I can make the economic arguments for public healthcare in my sleep. I'm getting really tired of repeating this point. I'm not against it as a matter of policy. I think it's great policy. That doesn't mean the policy is legal.

I don't see any constitutional foundation for the existence of the mandate as written. If I did, I would argue for it. The ACA has a very noble end, which is great, but a noble end does not automatically justify the legal means employed to bring that end about.
posted by anigbrowl at 12:43 PM on April 5, 2012 [1 favorite]


valkyryn: “The objection is, regardless of policy considerations, the mandate isn't something the federal government, being a government of enumerated and limited powers, is allowed to do.”

I still can't see how this is really a major distinction. So you're saying if they'd just called it a "tax" it would have been just fine?

anigbrowl: “I don't see anything in the US constitution that justifies the government forcing people into unwanted commercial relations.”

Taxation is a commercial relation.
posted by koeselitz at 12:44 PM on April 5, 2012


That's only two and a half pages! Someone's gonna get detention impeached.

Don't laugh! It could happen.
posted by octobersurprise at 12:46 PM on April 5, 2012 [1 favorite]


So you're saying if they'd just called it a "tax" it would have been just fine?

There's more to it than just the name, otherwise Congress could just call whatever it wanted to do a "tax" and have done with it.

Here's how Congress should have done it:

1. Levy a 1-2% income tax on all incomes to pay for the expansion of Medicaid.

2. Give a dollar-for-dollar credit against that tax for health insurance premiums paid either directly by the taxpayer or by the taxpayer's employer.

Completely constitutional. Completely avoids the individual mandate problem. It does, however, force Congress to actually admit that it's levying a tax, and to treat it as such. If anything, this case is about forcing congresscritters to eat their medicine. If they want to use the powers available to them, they have to do so. No "it's-a-tax-but-no-not-really-but-yes" bullshit.

Heck, you could even avoid the income tax requirement entirely by simply levying an excise tax on health insurance. That'd work too, and it'd avoid a lot of the regressive problems with income taxes generally.

I'd also favor either making health insurance deductible or not, period, and eliminating this completely stupid linkage with employment. Either let everyone deduct the cost, or let no one do it, but this sort of non-taxed benefit thing is for the birds.
posted by valkyryn at 12:56 PM on April 5, 2012


Can the government require me to buy a car, on the basis that I will certainly need to travel around at some point?

My state government requires me to buy insurance before I can drive. On what grounds can a state compel me to do something that the feds cannot compel me to do?
posted by octobersurprise at 12:57 PM on April 5, 2012


My state government requires me to buy insurance before I can drive. On what grounds can a state compel me to do something that the feds cannot compel me to do?

Federalism.
posted by BobbyVan at 1:01 PM on April 5, 2012


Putting things another way...

Let me put this simply: if the government can tell me to buy a health insurance policy, which one should I buy, and how much should I spend? Can the government require me to buy a car, on the basis that I will certainly need to travel around at some point? What divides contractual relationships that the government can force me into from those that it can't?

The government isn't "forcing" people to get health insurance. The government says you pay more taxes unless you get a health insurance plan. As far as our wallets and pocketbooks are concerned, this is functionally identical to the fact that you pay more taxes unless you claim tax credits for education, mortgages, etc. etc. etc.

Could the Court strike the mandate on the purely semantic difference between a tax penalty with exemptions and a tax increase with tax credits? Sure! The Court can do a lot of things. But as far as semantic problems go, this one is especially weak, unless for policy reasons the Court decides to get especially peeved about this case.

My state government requires me to buy insurance before I can drive. On what grounds can a state compel me to do something that the feds cannot compel me to do?

The Constitution says what the Fed can do and what the States can't do. Since the Constitution doesn't say the States can't require auto insurance for drivers, the States can do that.
posted by Sticherbeast at 1:02 PM on April 5, 2012


On what grounds can a state compel me to do something that the feds cannot compel me to do?

For the zillionth time: federalism. State governments can do anything the Constitution doesn't explicitly say they can't. The federal government can only do what the Constitution explicitly says it can. They're different animals, and they act in different ways. For example, the federal government doesn't prosecute petty theft or issue speeding tickets,* because it doesn't have the authority to do so.

And you know what? Theft and murder aren't actually federal offenses. Not really. Only in very limited cases, and only when connected to something which is a federal offense in itself. Why not? Because the federal government does not have a general police power. It isn't authorized to define or punish those crimes. Piracy? Yes. Treason? Yes. Counterfeiting? Yes. (Makes sense, given that it's also specifically allowed to issue currency.) But petty larceny? No. Only the states can punish that crime, because only the states have the power to do so.

*Well, it does on federal property, but only there.
posted by valkyryn at 1:06 PM on April 5, 2012


You guys might be right on the legal merits, but I'm forced to conclude we need to revise our system then, because Eugenics, Jim Crow, slavery, and far too many ongoing abuses of state authority all persuade me that the practical implications of letting the states have as much power as they do--without giving the Federal government at least as much power--aren't worth it. I thinks Federalism works out terribly in practice and causes far more problems than it solves.

You will want to back off of this particular line of argument. It is pretty well established in Constitutional law that statutes are not the source of Federal power.

Fair enough. I retract the argument on the legal issues, but I still stand by my position that this is an awful arrangement that does more harm than good.

I don't see any constitutional foundation for the existence of the mandate as written. If I did, I would argue for it. The ACA has a very noble end, which is great, but a noble end does not automatically justify the legal means employed to bring that end about.

I understand. But it just seems like there's a bigger picture being missed here: as I said, beyond merely the interstate commerce aspects of the law, contagions don't acknowledge state boundaries either. It's suicide to accept that the Federal government doesn't have broad latitude to regulate issues of public health, whether the form of that regulation includes a mandate or whatever other mechanism we might imagine. Imagine if the Christian Scientist-packed legislature in one state declared all vaccines illegal in their state. What then? The Federal government already mandates certain vaccinations for anyone traveling into or out of the US. Is the argument that that's different because no one has to travel?

On the other hand, if the court does strike down the mandate, I hope it upholds the rest of the law so that when all the health insurance companies go bankrupt or withdraw from the market, we can finally get a decent single-payer system like the rest of the modern world.
posted by saulgoodman at 1:06 PM on April 5, 2012


valkyryn: “If anything, this case is about forcing congresscritters to eat their medicine. If they want to use the powers available to them, they have to do so. No ‘it's-a-tax-but-no-not-really-but-yes’ bullshit.”

When you put it that way, it still seems like this is about you wanting them to say the word "tax." This is absolutely not about not wanting the government to "force" people to buy something – the government forces people to buy things every single day, many of which may seem objectionable. That doesn't mean the federal government does not have constitutional power to do so. This clearly falls into the category of a tax, whether congress wishes to use the word or not. If you'd like an originalist argument, I sincerely doubt the founders had "following a specific structure laid out by the IRS and only following that structure" in mind when they wrote "Power To lay and collect Taxes, Duties, Imposts and Excises." Moreover, it's been common since that time for politicians to call taxes by other names for political expediency. That politicians are tricky about words does not change congressional powers. To say otherwise smacks of frivolity.
posted by koeselitz at 1:12 PM on April 5, 2012 [2 favorites]


The government isn't "forcing" people to get health insurance. The government says you pay more taxes unless you get a health insurance plan. As far as our wallets and pocketbooks are concerned, this is functionally identical to the fact that you pay more taxes unless you claim tax credits for education, mortgages, etc. etc. etc.

This is also a really important point I think the justices and others have been too quick to scoff at or pretend isn't valid. In terms of how the enforcement mechanism is actually structured, this is not a mandate with a penalty--it's a tax incentive program for buying health care.

At worst, the justices should rule congress has to revise the language to make that clearer. If you could make the law pass constitutional muster simply by revising some of the wording--but none of the practical impact or functioning of the law--then striking it down just seems like a great big waste of everybody's time and makes the constitution look like a pretty petty and impoverished document.
posted by saulgoodman at 1:12 PM on April 5, 2012 [1 favorite]


Or what koeselitz just said better than I did...
posted by saulgoodman at 1:14 PM on April 5, 2012


because Eugenics, Jim Crow, slavery, and far too many ongoing abuses of state authority

I'm unpersuaded by your ancient examples. Getting back to the 20th and 21st centuries, several states have also legalized gay marriage, medical marijuana, and assisted suicide. I assume you think those are good things, right?
posted by BobbyVan at 1:15 PM on April 5, 2012


I still can't see how this is really a major distinction. So you're saying if they'd just called it a "tax" it would have been just fine?

I'm not speaking for valkyryn, but I think that's the argument, yeah. The idea is that the various enumerated powers of congress are not coterminous, and that it matters how a power is exercised. The Congressional spending power, for instance, is pretty broad: Congress has a great deal of lattitude to decide what it wants to spend money on, and what strings it might attach to that money when it spends it.* The taxing power is also pretty broad.

The commerce power (i.e., the power to regulate interstate commerce) has, arguably, been expanded rather a lot in the past seventy years or so.

Part of the issue is that conservatives have been gunning for the commerce power ever since the New Deal, and the Democrats pretty much painted a target on the commerce power by basically designing the ACA in such a way that it had to rest on the margins of the commerce power, rather than on the much firmer ground where a number of enumerated federal powers overlap. I think that if this were not "Obamacare", if it weren't the signature achievement of a President that has really brought out the crazy on the Right, this case would not have made it out of the Circuits and would certainly not have been the media circus that it was.

It is a virtual certainty that Congress could enact the ACA under one or another of its enumerated powers. I think the mandate is probably -- but not explicitly -- a valid exercise of the Commerce power under a whole line of cases from Wickard up through Raich. I'm inclined to say that the activity / non-activity arguments and the splitting hairs about which enumerated power authorizes the mandate are distinctions without a difference.

For me, the interesting question is whether the right wing of the Court will be able to resist the temptation to overturn everything back to Wickard or not. They didn't with Raich, but I think that was just because Scalia couldn't find it in himself not to punch a hippie when he had a chance.

on preview: yeah, what everyone else said, too.

* Yes, I know South Dakota v Lopez didn't go in Congress' favor, but I have a hard time believing that Congress couldn't fail to find ways to do pretty much whatever it wants within the test that Lopez articulates.
posted by gauche at 1:18 PM on April 5, 2012 [1 favorite]


octobersurprise: “My state government requires me to buy insurance before I can drive. On what grounds can a state compel me to do something that the feds cannot compel me to do?”

BobbyVan: “Federalism.”

valkyryn: “For the zillionth time: federalism.”

For the zillionth time, no. This is not a question of federalism at all. Sorry, octobersurprise, but car insurance has absolutely nothing to do with the issue at hand. For one thing, you can choose not to have a car. You cannot choose not to have health. For another thing, the federal government has been regulating health insurance for at least thirty years, on the grounds that it constitutes interstate commerce and has to do with the general welfare. So the claim that health insurance is flatly not a matter of federal regulation flies in the face of decades of well-established precedent, and it's kind of pointless to bring that argument up here.
posted by koeselitz at 1:20 PM on April 5, 2012


Springing off of what koeselitz said, and as I have argued previously, the Federal Government could easily condition its massive amounts of highway spending on an auto insurance mandate without falling afoul of Lopez.
posted by gauche at 1:26 PM on April 5, 2012 [1 favorite]


And one way the people get to express their un-enumerated powers is when their elected representatives in the congress pass new laws that enumerate a new power for the Federal government.

OMFG, I can't believe that you guys are allowed to vote without having to pass the same kind of test I do as an immigrant.

It is not illustrative if it's counterfactual, saying that people would have to pay the penalty when the law itself says that they would not. I'm not "conjuring up" exemptions: I am stating what the law itself says.

Look, you brought in the assumption that she was poor and therefore exempt. I started with the example of someone who just lived as a hermit and grew her own veggies so that we could focus on the issue of being made to buy something. At least now we agree that people are being made to buy something.

Thanks to Reagan, we already pay taxes so that people can go to the emergency room and get treated, no matter their insurance situation.

You'll still get a bill, and I presume that if you don't pay it you'll have a lien placed upon your assets as with any other unpaid bill. You can't be turned away, but you're not getting free treatment per se.

Even setting aside Medicare and such, everyone already has some degree of publicly-supported health care, whether or not they want it.

No they don't. Publicly supported care would be where you get a free health exam every year or two doctor's visits for which you'll never receive a bill, or (fill in the blank). This is like a funhouse mirror version of the absurdist GOP argument that 'everyone already has access to healthcare, because you can go to the emergency room'. If this were the case then we wouldn't have any need for something like the ACA to begin with.

Getting back to broccoli, ACA is more like if the US had already offered everyone free broccoli, so then the government decided that wealthier people could pay less taxes if they proved that they'd already bought broccoli on their own.

It would be if it included a public option. Then it would be a case of 'we're taxing you, and you're enrolled in this new public health plan automagically, or you can buy insurance from XYZ company and get a tax break in the same amount if you like.' There might still be a minor quibble about the direct tax but I'm sure that could be ironed out. But look, if I am liable for the $1000 tax liability and I opt to accept that, am I going to get a nice red-white-and-blue card in the mail saying 'welcome to the public health plan of the united states' that I can hand in at a hospital or clinic next time they ask me about insurance? No. If it were as simple as everyone being automatically enrolled in Medicare by default, then we could just call it 'medicare for everyone', but we don't because that's not what's happening.

If the Court finds that Congress inadvertently created a direct tax by phrasing their tax increase in this way, then that's life, but if Congress turned around the very next week and passed ACA 2: Judgment Day by turning the "penalty" into a "tax increase," everyone's life would be functionally identical, and the Court couldn't say a damn thing about it.

I would not object if they did that, but the reality is that the it won't happen right now because the GOP controls the house and loathes Obamacare. The best outcome I see is that Obama and the Democrats get to crusade on the issue and make the policy case clearly enough to get a big electoral mandate in November, then they go back and rewrite the thing properly, or stick a public option in it, or whatever. I am all for the idea of publicly funded healthcare paid for by taxes and that tax burden being distributed as widely and fairly as possible. Education and healthcare are two things that I think shoudl absolutely be publicly subsidized on policy grounds. But the ACA as written is a messy legal fudge. It's a bad implementation of a good idea.

Bodies inevitably require care, break down, stop, and rot. Load your consciousness into a Lawnmower Man-esque VR simulation and maybe you can get out of that bind. There is no equivalence here to what cars do.

Now you're just being obtuse. We agree about the likelihood of people needing healthcare and about the economic sense of making healthcare available as a public good. But my actual question to you, which you keep shying away from, is which health service insurance contract the government wants me to purchase from a private vendor, which is the obligation that the ACA imposes now.

Taxation is a commercial relation.

/facepalm
posted by anigbrowl at 1:33 PM on April 5, 2012


I'm unpersuaded by your ancient examples.

20--30 years ago, in the case of some of those laws, is not ancient. And we're adopting election laws and criminal laws in many states currently that are every bit as racist.
posted by saulgoodman at 1:34 PM on April 5, 2012 [1 favorite]


OMFG, I can't believe that you guys are allowed to vote without having to pass the same kind of test I do as an immigrant.

anigbrowl: Enjoy yourself. You deserve it. You caught me in a slip. Huzzah.
posted by saulgoodman at 1:35 PM on April 5, 2012


Imagine if the Christian Scientist-packed legislature in one state declared all vaccines illegal in their state. What then? The Federal government already mandates certain vaccinations for anyone traveling into or out of the US. Is the argument that that's different because no one has to travel?

That would probably fall afoul of the Dormant Commerce Clause, for what it's worth. This stuff can definitely be crazy-making, and I do sympathize with the non-lawyers trying to make sense of it. You may, or you may not, take comfort in knowing that there is a whole school of thought that judicial decisions are not really decided on either logic or precedent nearly so much as they are decided on the basis of how judges think they should come out.
posted by gauche at 1:36 PM on April 5, 2012


But look, if I am liable for the $1000 tax liability and I opt to accept that, am I going to get a nice red-white-and-blue card in the mail saying 'welcome to the public health plan of the united states' that I can hand in at a hospital or clinic next time they ask me about insurance? No. If it were as simple as everyone being automatically enrolled in Medicare by default, then we could just call it 'medicare for everyone', but we don't because that's not what's happening.

No, but when you show up in the Emergency Room without health insurance, we will have the tax revenue we need to pay the public hospitals' tab for your colon surgery.
posted by saulgoodman at 1:37 PM on April 5, 2012


20--30 years ago, in the case of some of those laws, is not ancient. And we're adopting election laws and criminal laws in many states currently that are every bit as racist.

Was it Jim Crow, eugenics, or slavery that you think lasted until the 1980s.

And what election laws are so racist? Is it the voter ID requirement endorsed by Jimmy Carter?
posted by BobbyVan at 1:42 PM on April 5, 2012


gauche--I know. I'm not a lawyer but I'm also typically a bit better versed than a lot of people in law. I used to perform legal reviews as a legal code editor--for municipal legal codes, which is a bit different than federal or state law, but still--I've also done some work analyzing state legislative processes, and finally--and a bit pathetically--I maxed out my score on the AP American Government exam. I've studied the Federalist Papers and I get Federalism. I just don't like it. And personally, I take a much more expansive view of the powers of the federal government than some. I suppose in this case even I'd have to agree there isn't necessarily enough clear popular support for the mandate to justify overlooking the finer technical points of the law. But in general, I tend to think that if the Federal government is acting in a way that's consonant with the popular will and not brazenly in violation of the spirit of the constitutional limits on its authority (which I don't think the mandate is) then it should have the power to act. That's why I consider myself an old school liberal Republican.

Was it Jim Crow, eugenics, or slavery that you think lasted until the 1980s.

There were still laws banning interracial marriage on the books in some states through the late 60s--so okay I'm stuck in the 90s. But 40 years ago still isn't ancient.

And what election laws are so racist? Is it the voter ID requirement endorsed by Jimmy Carter?

Not exclusively, no. It's also the voter registration laws and other more subtle measures. But that's getting way off track.
posted by saulgoodman at 1:51 PM on April 5, 2012


that should be 'Rrepublican' lest there be any confusion.
posted by saulgoodman at 1:54 PM on April 5, 2012


To use your own rhetoric BobbyVan, just because Jimmy Carter endorses a public policy doesn't make it good policy.

The simple fact of the matter is that Voter ID laws are primarily designed to reduce voter turnout among low income (predominantly minority) individuals and that the task of getting an ID is an not insignificant one particularly for low income and elderly individuals.

Research has consistent shown than vote fraud is nowhere near as prevalent as conservatives trumpet it and quite frankly the burden on citizens voting isn't worth the reduction in potential fraud associated with the voter ID law.
posted by vuron at 1:55 PM on April 5, 2012


And what election laws are so racist? Is it the voter ID requirement endorsed by Jimmy Carter?

Uh ... yes? From Carter's opinion piece, it isn't the ID requirement in and of itself, it's the way the rules are being implemented.
As we stated in our 2005 report, voter ID laws are not a problem in and of themselves. Rather, the current crop of laws are not being phased in gradually and in a fair manner that would increase — not reduce — voter participation.
The people made less likely to vote are overwhelmingly poor and minority citizens.
posted by Jonathan Livengood at 1:57 PM on April 5, 2012


Question about federal power:

Suppose the government has power to do X in virtue of some power A. However, the government thinks it has the power to do X in virtue of some other power B. Does that mean that if/when the government attempts to do X that X is not a legitimate thing for the government to do?

Put another way, is it the responsibility of the Court to determine whether the Congress actually has legitimate authority to do something or is it the responsibility of the Court to determine whether the Congress (or whoever argues before them) correctly justifies its authority to do things?
posted by Jonathan Livengood at 2:07 PM on April 5, 2012


Holder's letter.
posted by dirigibleman at 2:34 PM on April 5, 2012 [1 favorite]


In terms of how the enforcement mechanism is actually structured, this is not a mandate with a penalty--it's a tax incentive program for buying health care.

Actually... only if you squint a bit and ignore the way the enforcement mechanism is actually structured. If it were a tax, they'd amend the Internal Revenue Code, Title 26. The individual mandate is 42 U.S.C. 18091, the title on Public Health.

The layman obviously doesn't think that's going to matter much, but to the lawyer, it does (or at least it should). The way in which state power is used matters quite a bit. For example, there is a categorical difference between federal Magistrate and District judges. Why? Because federal District judges are created under the authority of Article III of the Constitution, giving them life tenure and salary protection, and they're appointed by the President with the advice and consent of the Senate. Magistrate judges are creatures of statute under Article I, meaning they only serve for terms, they're appointed directly by District judges, and they can't handle felony cases.

I mean, they're both federal judges, right? What's the big deal? But it turns out that one legal nicety makes all the difference in the world.

Why does this matter? Because, as liberals are so fond of pointing out when it comes to habeas corpus and Gitmo, we do actually live in a system devoted to the rule of law. Congress is patently playing hide the football here, because the Dems took a flyer, thinking they'd be able to sell their bill more effectively if they didn't have to claim they were funding it with additional taxes. They deserve to get smacked around just as hard as the Bush administration did when it played hide the football with "enemy combatant" status.

And just so we're clear: I don't actually give a fig about the mandate one way or the other. On a policy level, I'm completely ambivalent. What I care about is Congress doing whatever it's trying to do correctly, and I really think they screwed this one up. Blame the Republicans if you want, but the bill Congress passed shouldn't pass constitutional muster, because they're trying to use the Commerce Power to do something they should have done with the Tax power, and the whole "But it kinda looks like a tax if you ignore the way the bill is written!" dodge doesn't carry water.

You don't get to complain that the rest of the system doesn't follow the rules if you're okay with ignoring them to achieve your policy goals.
posted by valkyryn at 3:02 PM on April 5, 2012


You don't get to complain that the rest of the system doesn't follow the rules if you're okay with ignoring them to achieve your policy goals.

This is a fair point that would, I think, be easier to swallow if it did not seem like the rules were consistently bent in support of one side's policy goals.
posted by gauche at 3:09 PM on April 5, 2012


Suppose the government has power to do X in virtue of some power A. However, the government thinks it has the power to do X in virtue of some other power B. Does that mean that if/when the government attempts to do X that X is not a legitimate thing for the government to do?

You're conflating two different things. One is the policy question about whether X is a good idea or not. The other is the legal question about whether the government is using permissible means to achieve X. The two aren't all that closely related, legally speaking.

Put another way, is it the responsibility of the Court to determine whether the Congress actually has legitimate authority to do something or is it the responsibility of the Court to determine whether the Congress (or whoever argues before them) correctly justifies its authority to do things?

Now you're splitting into two things what is really a set of very closely related questions. The question of "legitimate authority," from a judicial review perspective, is all about whether the exercise of power at issue is based upon an enumerated power. So the Court has to figure out 1) what power Congress is trying to use, then 2) whether said power does what Congress wants it to do. The Court will generally go out of its way to uphold laws where possible, but most of the time Congress doesn't actually say "We're exercising the Commerce Power" or "We're exercising the Tax Power." Here, Congress seems to have gone out of its way not to exercise the Tax Power by sticking all of the mandate provisions in title 42. So the Court is going to give credence to that.

I say again, this law could have been written in a way that was constitutional, but it wasn't, and the fact that Congress could have done it right is no excuse for not doing so.
posted by valkyryn at 3:13 PM on April 5, 2012


This is a fair point that would, I think, be easier to swallow if it did not seem like the rules were consistently bent in support of one side's policy goals.

This, of course, is debatable.
posted by valkyryn at 3:14 PM on April 5, 2012


I say again, this law could have been written in a way that was constitutional, but it wasn't, and the fact that Congress could have done it right is no excuse for not doing so.

That is, I think, a stronger statement than the jurisprudence on judicial review warrants. The presumption of constitutionality means that the Supreme Court will look for any reasonable constitutional reading of a statute, and only when there is no such reading should it excise a statute. It may be that there is no such reading in the case at hand, but the presumption is against you, and is nowhere to be found in the standard you've articulated.

What you seem to be saying is that there's no possible way to read the Commerce Clause cases, from Wickard through Raich, in support of the mandate. I haven't done the work, but I'd bet there is such a way.
posted by gauche at 3:20 PM on April 5, 2012


That should, of course, be "no reasonable way to read the Commerce Clause cases..."
posted by gauche at 3:22 PM on April 5, 2012


Look, you brought in the assumption that she was poor and therefore exempt. I started with the example of someone who just lived as a hermit and grew her own veggies so that we could focus on the issue of being made to buy something. At least now we agree that people are being made to buy something.

You are missing a very important point about how income tax works. Income tax is not wealth tax. It is income tax. You can live in a golden house with golden windows and a golden bed and a golden portrait of yourself as a centaur and still "live below the poverty line" if you do not produce taxable income.

If you already have a million dollars in a shoebox, or if you conduct your own subsistence farming, as Hermione is variously suggested to have done, then you are not producing taxable income. You are earning below the poverty line. You are, according to the ACA itself, exempt from the mandate.

That's why I keep objecting to Hermit Hermione and her Amish Shoebox, because the ACA has already specifically, explicitly exempted people like her from the mandate.

You'll still get a bill, and I presume that if you don't pay it you'll have a lien placed upon your assets as with any other unpaid bill. You can't be turned away, but you're not getting free treatment per se.

People can and do get their bills forgiven. No point in putting a lien on people's houses if they don't have houses. Indeed, the main complaint about EMTALA is that it is effectively an unfunded mandate: the government says you can't turn away people who can't pay, but the government doesn't directly provide any money to cover the hospital's bills.

Publicly supported care would be where you get a free health exam every year or two doctor's visits for which you'll never receive a bill, or (fill in the blank). This is like a funhouse mirror version of the absurdist GOP argument that 'everyone already has access to healthcare, because you can go to the emergency room'. If this were the case then we wouldn't have any need for something like the ACA to begin with.

You are redefining "some degree of publicly-supported health care" to suit your argument, just as the Republican argument omits the fact that only emergency care is covered, and only some people qualify for Medicaid/Medicare.

It would be if it included a public option.

I also wish that it included a public option, but alas, the mandate only exists to fund, for example, the "exchanges," or the bar on denying coverage for pre-existing conditions. Limited tools which assist people in getting coverage, but which are not single-payer insurance themselves.

But the ACA as written is a messy legal fudge. It's a bad implementation of a good idea.

Messy legal fudge? We've seen much messier. The important question, though, is it explicitly unconstitutional? We seem to agree that the mandate would be constitutionally unassailable if we just used different terms of art to describe it.

Now you're just being obtuse. We agree about the likelihood of people needing healthcare and about the economic sense of making healthcare available as a public good. But my actual question to you, which you keep shying away from, is which health service insurance contract the government wants me to purchase from a private vendor, which is the obligation that the ACA imposes now.

The government can "want" you to do a variety of things. The government wants you to get an education, the government wants you to own a house. The government can certainly want you to have health insurance. Why would it be inherently unconstitutional for the government to incentivize these events?
posted by Sticherbeast at 3:24 PM on April 5, 2012


This, of course, is debatable.

Of course it is, but it is not the sort of thing that someone who subscribes to the Hayekian critique of Federal power is really in a position to argue against.
posted by gauche at 3:26 PM on April 5, 2012


Here, Congress seems to have gone out of its way not to exercise the Tax Power by sticking all of the mandate provisions in title 42. So the Court is going to give credence to that.

Are you suggesting that tax penalties (and exemptions) aren't under the Taxing Power?
posted by Sticherbeast at 3:30 PM on April 5, 2012


There were still laws banning interracial marriage on the books in some states through the late 60s--so okay I'm stuck in the 90s. But 40 years ago still isn't ancient.

So what? We should call a constitutional convention? If your evidence of state-level abuses of power is limited to 1960's era laws against interracial marriage and modern day voter ID laws (which, by the way, were ruled constitutional by the US Supreme Court in a 6-3 opinion written by Justice John Paul Stevens), I think you've fallen laughably short of meeting your burden.
posted by BobbyVan at 3:31 PM on April 5, 2012


Are you suggesting that tax penalties (and exemptions) aren't under the Taxing Power?

I'm suggesting that they could have been if Congress had wanted them to be, but it didn't, and now it's got to face the music.
posted by valkyryn at 3:43 PM on April 5, 2012


anigbrowl: Enjoy yourself. You deserve it. You caught me in a slip. Huzzah.

Come on saulgoodman, arguing that powers reserved to the people are manifested in the form of congressional legislation is a fundamental error. I will agree with you all day about the policy benefits of healthcare, but if we're going to discuss the legalities of it then you need a basic handle on how the constitution operates. You know who else reaches for arguments like 'the people have spoken'? The folks who promoted proposition 8 in California and have been raging about having the will of the people overturned by unelected judges on constitutional grounds. And that was a state plebiscite, where the will of the people was clearly expressed (I'm with the judges on its lack of constitutionality, mind).

...when you show up in the Emergency Room without health insurance, we will have the tax revenue we need to pay the public hospitals' tab for your colon surgery.

But I have shown up in the emergency room without insurance. But I had to answer a whole bunch of administrative questions, and afterwards, I always got a bill for the treatment I received (which I paid). So we're not using the taxing power to provide free ER care to people. If I hadn't paid the bill then I'd have suffered the usual consequences of liens and so on that go with other kinds of bad debt.

Yet again, it's not the taxation art I object to, although I'd be that much happier if people who paid the tax got a medicare membership card or something similar. What bothers me is the fudge that applies the tax as an administrative penalty for not purchasing a product in the private marketplace. Functionally it's not very different at all, but the thin end fo a wedge never is. Here's a Huffington Post article that explores the issue in greater depth: if it's actually a tax, then just call it a tax and have done with it. As things stand, the government is arguing that the mandate/penalty arrangement is not a tax for procedural purposes, but that it is for practical purposes. This is just stupid, and a prime example f what's wrong with our politics.
posted by anigbrowl at 3:44 PM on April 5, 2012


I'm suggesting that they could have been if Congress had wanted them to be, but it didn't, and now it's got to face the music.

Congress does not have to bellow "AND NOW WE SHALL USE THE POWER TO TAX" before they use their enumerated power to tax. Could you please clarify what you're talking about?
posted by Sticherbeast at 4:06 PM on April 5, 2012 [1 favorite]


BobbyVan: “And what election laws are so racist? Is it the voter ID requirement endorsed by Jimmy Carter?”

This is a derail, but, first of all – Jimmy Carter has been an idiot before, and he will be an idiot again. His being wrong about this particular thing does not change the fact of the matter. Voter ID laws are an example of laws which are not racist in intent but racist in effect. It's clear that minorities have fewer IDs, even in places where IDs are free, for various reasons. That said, I am not against voter ID laws. I think voter ID laws are great. If and when a state successfully manages to issue IDs to every single one of its legal citizens, I think they'd be fantastic. Until that time, they're laws designed to keep people from voting by burying them in paperwork, and as such they're unconstitutional.
posted by koeselitz at 4:06 PM on April 5, 2012


Until that time, they're laws designed to keep people from voting by burying them in paperwork, and as such they're unconstitutional.

Your opinion on what is and is not constitutional couldn't be less relevant. Justice John Paul Stevens' opinion, however, matters.
posted by BobbyVan at 4:10 PM on April 5, 2012


valkyryn: “I'm suggesting that they could have been if Congress had wanted them to be, but it didn't, and now it's got to face the music.”

A tax is an amount of money Congress demands from the populace. Any amount of money Congress demands from the populace. If Congress demands money from the populace unjustly, then the injustice of that taxation should be argued and its constitutionality determined; but it does not cease to be taxation, even if Congress chooses to call it "a peanut butter sandwich" or "a Cuban cigar" rather than "a taxation."
posted by koeselitz at 4:11 PM on April 5, 2012


BobbyVan: “Your opinion on what is and is not constitutional couldn't be less relevant. Justice John Paul Stevens' opinion, however, matters.”

The Supreme Court, too, has been wrong before, and they will be wrong again.
posted by koeselitz at 4:12 PM on April 5, 2012


Moreover, neither my opinion nor John Paul Stevens' opinion changes the fact that the law is effectively (not intentionally) racist.
posted by koeselitz at 4:14 PM on April 5, 2012


The Supreme Court, too, has been wrong before, and they will be wrong again.

True, but even when the Supreme Court is wrong, it's the law.
posted by Sticherbeast at 4:14 PM on April 5, 2012


You're conflating two different things. One is the policy question about whether X is a good idea or not. The other is the legal question about whether the government is using permissible means to achieve X. The two aren't all that closely related, legally speaking.

Hmm ... I don't think that's what I was doing. When I asked whether doing X would be legitimate, I meant legally or constitutionally permissible. The question is just whether the Congress has to provide a (the?) correct justification for its actions in order for the Court to uphold its actions as Constitutionally legitimate.

The question of "legitimate authority," from a judicial review perspective, is all about whether the exercise of power at issue is based upon an enumerated power. So the Court has to figure out 1) what power Congress is trying to use, then 2) whether said power does what Congress wants it to do.

Now, this gets at what I was interested in. To be clear, you are claiming that for an act of Congress to be Constitutional, the Court has to be convinced that the Congress intended to use the correct enumerated power, not just whether or not there exists some enumerated power that would permit the act. Is that right?
posted by Jonathan Livengood at 4:25 PM on April 5, 2012


The Supreme Court, too, has been wrong before, and they will be wrong again.

Another opinion of little constitutional value.

Moreover, neither my opinion nor John Paul Stevens' opinion changes the fact that the law is effectively (not intentionally) racist.

How so? As far as I know, ID cards for voting purposes are provided free by every state with a voter ID requirement.

Do you really mean to suggest that it's constitutional to require every citizen to purchase health insurance, but it's unconstitutional AND RACIST to require every citizen to get a free ID card if they wish to vote?
posted by BobbyVan at 5:04 PM on April 5, 2012


me: “Moreover, neither my opinion nor John Paul Stevens' opinion changes the fact that the law is effectively (not intentionally) racist.”

BobbyVan: “How so? As far as I know, ID cards for voting purposes are provided free by every state with a voter ID requirement.”

As I said, regardless of the intentions of the people who passed the law, fewer minorities will vote because of it. That is undisputed by anyone involved in this decision, and it's hard to argue otherwise. The Court believed incorrectly that going to the DMV and standing in line for many hours is not a barrier to voting. I get the feeling the Court has never been to the DMV, or has never had a job that didn't afford them hours to go to said DMV. As it happens, a disproportional number of people who are minorities have such jobs.

“Do you really mean to suggest that it's constitutional to require every citizen to purchase health insurance, but it's unconstitutional AND RACIST to require every citizen to get a free ID card if they wish to vote?”

As I said above, this is a derail; I don't contend that these two things have anything to do with each other. The ACA does not compel citizens to purchase health care; it taxes them if they do not. Voter ID laws punish those who are too busy or too scattered or uninformed by removing a fundamental right of citizenship. Moreover, the information the Supreme Court was working from was incomplete and later shown to be incorrect; it's been demonstrated time and time again since that decision that voter ID laws have little to no effect, because voter fraud is not a significant problem. So the benefit the Court weighed against removing fundamental rights from certain citizens was a nonexistent benefit.

All of this could have been avoided if states simply issued IDs to all citizens before enacting these requirements. The fact that states have not done so makes it clear that these laws are motivated not by a concern for fraud but by politics and a desire to marginalize certain voters. Even the Supreme Court's majority opinion admitted this much.
posted by koeselitz at 5:32 PM on April 5, 2012


That's why I keep objecting to Hermit Hermione and her Amish Shoebox, because the ACA has already specifically, explicitly exempted people like her from the mandate.

Then fine, give her an income. Hermione is not anti-tax and I never positioned the example that way.

People can and do get their bills forgiven. No point in putting a lien on people's houses if they don't have houses. Indeed, the main complaint about EMTALA is that it is effectively an unfunded mandate: the government says you can't turn away people who can't pay, but the government doesn't directly provide any money to cover the hospital's bills.

So? That's no better as a foundation for policy than the GOP argument that charity will fill the gap. For the indigent to have to rely on charity is neither dignified nor practical, which is why I've never bought that argument. Likewise, people shouldn't need to rely on the possibility that their medical bills will be forgiven if they can't or don't pay. Not buying insurance and instead paying the $1000 tax penalty (if they are liable to do so) doesn't provide any greater degree of assurance in this regard.

You are redefining "some degree of publicly-supported health care" to suit your argument, just as the Republican argument omits the fact that only emergency care is covered, and only some people qualify for Medicaid/Medicare.

My problem is that I don't have a working definition of 'some degree of publicly funded health care.' Taking that at facial value, it reads to me like 'you can get some medical care without needing to pay.' this is how it works in practice in places with socialized medicine; you go to the local clinic, if it's your first time there you fill out some very basic identifying paperwork, and then you see the doctor. There might be a small means-tested copay for some things, but basically you don't get a bill in the mail afterwards.

If the legislation had included a public option, then my objections would be pretty much mooted. If anyone proposes amending the ACA to add that that, then that would be ideal.

The government can "want" you to do a variety of things. The government wants you to get an education, the government wants you to own a house. The government can certainly want you to have health insurance. Why would it be inherently unconstitutional for the government to incentivize these events?

It wouldn't! Tax breaks for health insurance are fine by me. As I said above, I'd even be OK with the government raising the tax rate in return for extending medicare to everyone (or any of several other single-payer or public-option alternatives). But as written the mandate is framed as a penalty, not as the cost of some guaranteed publicly-funded service from which one might opt out in favor of a privately provided alternative. That's the bit people have a problem with.

As I said earlier, it ends up applying a deterministic solution to a probabilistic need. I will likely need healthcare in the future, unless I'm very lucky. It would be better for me to have insurance, since I don't know if, when, or to what degree I will get sick. But when you push me towards buying a product in the private marketplace, then you're not only imposing the costs of the product itself on me - which I would be perfectly willing to pay in the form of tax in return for membership in a federal scheme - but the transaction costs of selecting, evaluating and possibly switching products. That might sound petulant but but it's my strong belief that this ends up subsidizing bureaucratic inefficiency in the private sector by pushing the administrative costs onto patients.

I've made this point before in relation to taxes in general. People don't mind paying tax as much as they say they do. People hate doing their taxes because they hate filling out tons of paperwork and navigating the ever changing complexity of the tax codes and being taxed 17 different ways (some which are labelled as fees or tariffs or...). This is why Herman Cain enjoyed a brief popularity with his 9-9-9 plan. Yes, it was hopelessly regressive and it would actually have raised the tax burden for a great many people. But it was simple and comprehensible. Equity is important, but it is not people's #1 concern. Responsiveness is. People are willing to pay a premium for simplicity and predictability. That's why Apple is the #1 company in America and the idea of a flat tax hangs around in the room like a stale fart. People want the government to make their lives easier, not pile them with the equivalent of math homework every year at tax time.

Now mind, that's a policy argument against the mandate as written (as opposed to a public option). don't mix it up with the legal argument, which is that if the mandate is constitutional so is a law requiring you to buy broccoli.

A tax is an amount of money Congress demands from the populace. Any amount of money Congress demands from the populace. If Congress demands money from the populace unjustly, then the injustice of that taxation should be argued and its constitutionality determined; but it does not cease to be taxation, even if Congress chooses to call it "a peanut butter sandwich" or "a Cuban cigar" rather than "a taxation."

Yes, but there's a constitutional prohibition on direct taxation, which makes the fixed penalty-or-tax of $1000 problematic.
posted by anigbrowl at 5:54 PM on April 5, 2012


Come on saulgoodman, arguing that powers reserved to the people are manifested in the form of congressional legislation is a fundamental error.

It's not a fundamental error to say that my own view of republicanism is consistent with that interpretation, and that it's not a view of republicanism that's inconsistent with the historical traditions of republicanism. You are absolutely correct that it's not the accepted legal interpretation and that's why I immediately acknowledged it was a slip; I made the error of substituting my preferred view for the accepted one, and I retracted it. I might also add that I happen to be a pretty big fan of the Warren court, to put it in context. But back to the topic...

anigbrowl: Do you believe congress has the authority to create a new tax that increases everyone's tax burden by $1000.00 in order to cover the public costs of treating the uninsured? And that they have the right to offer tax credits to offset the cost of health insurance for low income earners? And that they have the right to offer a tax break to individuals who buy health insurance to offset the potential costs to the public of their healthcare?

If you answered no to any of those questions I'd like to know why. If you answered yes to all of them, then you now understand the constitutional basis for congress' authority to impose the individual mandate.
posted by saulgoodman at 6:02 PM on April 5, 2012


Any tax that you can't avoid by qualifying for a break can nominally be deemed a "penalty"; the words aren't the thing that should matter in the law. That's a shallow take on law.
posted by saulgoodman at 6:04 PM on April 5, 2012


Of late I'm coming to the conclusion that the Warren Court did more harm than good to liberal and even progressive causes. I'm inclined towards legal realism, a pragmatic philosophy, by nature but the judicial function needs to be rooted in something concrete or it ends up as little more than a third legislative chamber.

anigbrowl: Do you believe congress has the authority to create a new tax that increases everyone's tax burden by $1000.00 in order to cover the public costs of treating the uninsured? And that they have the right to offer tax credits to offset the cost of health insurance for low income earners? And that they have the right to offer a tax break to individuals who buy health insurance to offset the potential costs to the public of their healthcare?

No, yes and yes. No to the first because a fixed burden per person is a form of capitation, which is unconstitutional.

The government's own legal position is that the $1000 tax liability is a penalty and not a tax, and that's how it's written into the ACA. It's not my fault that the thing is so poorly drafted.
posted by anigbrowl at 6:23 PM on April 5, 2012


It looks like I've missed a lot and can't keep up with the conversation.

I will say generally that those of you who think this is functionally like a tax and should be treated like a tax to be constitutional, that such an argument is incorrect.

There are very specific rules about the limits of the taxing power and one of those limits is that it cannot be an un-apportioned irect tax. The way this operates is an un-apportioned direct tax. It is not a permissible income tax. Nor an excise tax. Nor a proportional capitation tax.

Now it is correct that arguably Congress could have created an additional tax--say adding to or earmarking 2% of the annual income tax revenue to cover this--but they cannot call a functional direct tax a tax and treat it like the income tax. Income taxes have special protection in our county under the 16th Amendment because they do not have to be apportioned.

But the way in which the tax born by the citizens is of determinative importance even if it is functionally similar to what Congress did pass. Form matters in the law.

For those of you who are curious about direct taxes generally, here is an interesting pdf from a law review. Here is a tax geeky legal article addressing whether the individual mandate is or is not a direct tax.

I will say this again, as I have several times in the previous oral argument thread: on the issue of whether the individual mandate is a valid exercise under the taxing power, I expect that argument to fail 9-0. If the individual mandate as currently constructed is going to survive, it will only be under the commerce clause if Kennedy can construct a heightened standard limiting principle--and Kennedy will have to come up with it because the Solicitor General couldn't give him one. If Kennedy does, it may be 5-4 or 6-3 (with Roberts joining for non-merits reasons) upholding the mandate. If Kennedy cannot come up with one, then it will be 5-4 striking down the mandate.
posted by dios at 6:24 PM on April 5, 2012 [1 favorite]


Yes, but there's a constitutional prohibition on direct taxation, which makes the fixed penalty-or-tax of $1000 problematic.

It's not a direct tax. It's claimed as part of the income tax, which the 16th amendment specifically excludes from the ban on direct taxes.

Are other tax subsidies that aren't taken examples of direct taxes?
posted by saulgoodman at 6:29 PM on April 5, 2012 [1 favorite]


So just once more, let me make sure I'm understanding your position here. The law wouldn't be in doubt constitutionally if there were a few cosmetic--but by your own admission, effectively meaningless--changes to the language used to draft it.

If congress had drafted a law with exactly the same practical effects but slightly different phrasing, that law would undoubtedly pass constitutional muster, but because of a few quibbles over the specific language used in drafting the law, it should be thrown out and the nation put through the wringer, and that's the more pragmatic position?

I'm sorry but it seems to me that any difference in law that amounts to nothing more than a difference in the language used to construct it is no difference and such distinctions betray the spirit of the law in order to abuse the letter (in this case, for political ends). The law should be understood at a deeper level than that, on the level of the principles that are meant to be embodied in the language of the law.

In this case, there's no practical difference--even in form--the "penalty" is assessed as part of the income tax assessment process, just as it would be if the language satisfied the requirements you claim they'd need to satisfy to pass constitutional muster.

If we can penalize people for not owning a yacht through our income tax system, why can't we penalize them for not owning insurance?
posted by saulgoodman at 6:46 PM on April 5, 2012


me: “A tax is an amount of money Congress demands from the populace. Any amount of money Congress demands from the populace. If Congress demands money from the populace unjustly, then the injustice of that taxation should be argued and its constitutionality determined; but it does not cease to be taxation, even if Congress chooses to call it ‘a peanut butter sandwich’ or ‘a Cuban cigar’ rather than ‘a taxation.’”

anigbrowl: “Yes, but there's a constitutional prohibition on direct taxation, which makes the fixed penalty-or-tax of $1000 problematic.”

saulgoodman: “It's not a direct tax. It's claimed as part of the income tax, which the 16th amendment specifically excludes from the ban on direct taxes. Are other tax subsidies that aren't taken examples of direct taxes?”

I'm not absolutely sure that this is an income tax; it could be argued that it is, but I can see some basis for arguing that it's not. However, even if saulgoodman is incorrect, and this is in fact not an income tax, then:

(1) I don't think it's absolutely clear that this is a direct tax. Wikipedia's section on direct taxation in constitutional law points me to a recent [2007] precedent, which stated that the only taxes known to be direct are capitations (such as poll taxes), taxes on "real property," and taxes on "personal property." This does not seem to be any of those things. Direct taxes seem pretty vague and difficult to define; even in Pollock V Farmers' Loan & Trust Co, which seems to be the most definitive case and which was the reason the sixteenth amendment had to be passed in the first place, the Court did not rule that all income taxes were direct taxes, but only taxes on income from interests, dividends, or rents. So it seems as though it would be incorrect to define direct taxes as "all taxes that aren't income tax." There is some more precise definition of direct taxation, but the Court has not issued that definition. It has characteristically only defined a few kinds of taxes that are direct, leaving open the question of whether more exist.

(2) But assuming that the penalty involved in the individual mandate is a direct tax, it should be noted that the constitution does not actually prohibit direct taxes. It merely requires that direct taxes be levied equally throughout the population. The ACA certainly wouldn't meet this requirement. However, since Congress clearly wouldn't be overstepping its bounds in issuing a direct tax, but would simply be doing so in an incorrect way, I guess the contitutional solution would be to require that Congress levy this thousand-dollar tax on the entire population, not just those who don't buy insurance. But I admit this is sort of a gray area. Still, direct taxes are not forbidden.
posted by koeselitz at 8:36 PM on April 5, 2012


dios: “There are very specific rules about the limits of the taxing power and one of those limits is that it cannot be an un-apportioned irect tax. The way this operates is an un-apportioned direct tax.”

You clearly know more about this than I do, I think. Can you point me toward a clearer definition of "direct tax"? Everything I've been able to find suggests that it's not actually so easy to call this a direct tax. I confess that I might just not know where to look. Wikipedia is not often the final word in legal matters, to say the least.
posted by koeselitz at 8:38 PM on April 5, 2012


(And you already kind of did that, actually. I'll read. Thanks.)
posted by koeselitz at 8:40 PM on April 5, 2012


So just once more, let me make sure I'm understanding your position here. The law wouldn't be in doubt constitutionally if there were a few cosmetic--but by your own admission, effectively meaningless--changes to the language used to draft it.

No, you're not. I favor the end, and the means used to implement it may be very similar from the individual's point of view, but the legal mechanism involved is way, way different.

Koeselitz, it's a poll tax, even though it's not linked to voting rights. In the context it makes a certain amount of sense from a policy standpoiint, but poll taxes have historically been politically toxic no matter how rational they are.
posted by anigbrowl at 9:57 PM on April 5, 2012


They've only been "politically toxic" insofar as they've been actual poll taxes – though of course political toxicity doesn't matter much. The argument seems to be that this is a capitation, though not necessarily a poll tax. I'm reading the link dios gave; we'll see where I get with that.
posted by koeselitz at 10:09 PM on April 5, 2012


I wonder if the Supreme Court has struck down a direct tax recently.
posted by koeselitz at 10:11 PM on April 5, 2012


I thought the common public expectation of a legal and historically backed justification for Supreme Court conclusions and prejudiced decisions was more like a test of sobriety than proof of some majestic and objective rationality that they may be mystically endowed with. This isn't Hogwarts.
posted by TwelveTwo at 10:18 PM on April 5, 2012 [1 favorite]


There are very specific rules about the limits of the taxing power and one of those limits is that it cannot be an un-apportioned direct tax.

You should read your link. The mandate-plus-subsidy can be broadly understood as an income or excise tax, and historically that's what SCOTUS has done:
See, e.g., Bromley v. McCaughn, 280 U.S. 124, 136 (1929) (stating that gift tax was excise); Flint v. Stone Tracey Co., 220 U.S. 107, 150 (1906) (holding that corporate income tax was excise); Knowlton v. Moore, 178 U.S. 41, 78-79 (1900) (establishing that estate tax was excise).
The apportionment requirement is dead letter law. That's not to say the Court won't resurrect it, but they're certainly not going to do that 9-0.
posted by anotherpanacea at 6:32 AM on April 6, 2012 [2 favorites]


What anotherpanacea said. The mandate could be read as a direct tax, but it's not a 9-0 certainty.
posted by Sticherbeast at 6:58 AM on April 6, 2012


One last tangential remark on BobbyVan's point way up-thread:

Was it Jim Crow, eugenics, or slavery that you think lasted until the 1980s.

Oregon and other states still had forced sterilization laws on their books as recently as 1983. And we have a lot of problems here in Florida with agricultural slavery and other forms of human trafficking; granted, those are mostly illegal, though the devil's in the details of how states enforce their laws in these areas, and with the recent push in many state legislatures toward prison privatization, more punitive mandatory punishments for minor offenses, and the thriving industry of prison labor in-sourcing (Outsourcing's Best Kept Secret™), it's not hard to see cause for worry. So, a little of all of the above.
posted by saulgoodman at 7:02 AM on April 6, 2012


No, you're not. I favor the end, and the means used to implement it may be very similar from the individual's point of view, but the legal mechanism involved is way, way different.

How is it way, way different anigrbrowl?

Under the law, the "penalty" is assessed through the mechanism of the income tax filing. I don't understand how, even from a pro forma perspective, this is any different than the earned income credit or any other special breaks we get when we file our income taxes. To remedy the supposed "constitutional problem" with the law, all they'd have to do is use language on the income tax form that describes the "penalty" in terms of the filer not qualifying for a tax credit in the same amount as what we're currently calling a "penalty."

People call the higher taxes some married couple have to pay under certain circumstances the "marriage penalty," but that doesn't limit congress' authority to impose it.

Further cite regarding how the "penalty" is formally imposed through the income tax system:
In addition, the department notes, the penalty is imposed and collected under the Internal Revenue Code, and people must report it on their tax returns “as an addition to income tax liability.”
If the penalty is implemented as an addition to a person's income tax liability, and the government has the authority to levy income tax however it likes under the authority of the 16th Amendment, I don't see the argument at all.

The court's skepticism is political. They didn't want to acknowledge the practical reality that this "penalty" is imposed using mechanisms that are well within the authority of the federal government because they know that puts the law on solid constitutional ground, and the current majority are political partisans who'd love nothing else than to hand the administration a stunning defeat just in time for the elections. Just like the court's awful, blatantly partisan decision (so partisan they were afraid to let it be used as a precedent for fear some future liberal court might use it to swing an election in their favor) in Bush v. Gore.

(also meant to include another link above: Outsourcing's Best Kept Secret™)
posted by saulgoodman at 7:25 AM on April 6, 2012 [1 favorite]


That's not to say the Court won't resurrect it, but they're certainly not going to do that 9-0.
posted by anotherpanacea at 8:32 AM on April 6


Well, I certainly wasn't suggesting that those two articles were definitive--just helpful. And to be clear, I am not suggesting that it is going to fall 9-0 because it is a direct tax. I think it will fall 9-0 because the Court will find it is not a tax at all but rather an administrative penalty. But if it were a tax, then as written I think it is likely a prohibited unapportioned direct tax.

If you want to get a sense of what the Court is going to do then you need to read the briefs (they are available) and then read the transcript of the oral argument and questioning on the Court on the topic. In briefing and argument, the Solicitor General practically ignored the taxing argument and showed how little they thought of it. There's a reason why it was the Solicitor General's alternative argument; that is, they did not think it was strong enough to be the lead argument and are only putting it forward as a potential fall back argument if they lose on their best argument. And it is exceedingly unlikely that the backup argument carries the day.

I really do not think this is even a close call. I don't think many of you realize that on the taxing power argument, every court that has addressed the ACA has uniformly rejected the taxing power justification. As the 11th Circuit noted in the opinion that is the basis for the Supreme Court's review:
The government claims in the alternative that the individual mandate is a tax validly enacted pursuant to the Taxing and Spending Clause...Like every other court that has addressed this claim, we remain unpersuaded.
It is not surprising to us that all of the federal courts, which have otherwise reached sharply divergent conclusions on the constitutionality of the individual man-date, have spoken on this issue with clarion uniformity. Beginning with the district court in this case, all have found, without exception, that the individual man-date operates as a regulatory penalty, not a tax.
And the 11th Circuit opinion had a dissent from Judge Marcus arguing the individual mandate was constitutional under the Commerce Clause, but Judge Marcus joined in the majority opinion and making it unanimous
in rejecting the taxing power argument. If it was even a close call, you'd have at least one judge giving it credence and the Federal Government would have given it more weight in their briefing and in the argument. It is very rare to have complete uniformity on an issue in the circuits.

So, again, I stress that arguing about taxes is a waste of time. It is likely to fall 9-0 against that argument. The mandate will rise and fall by the Commerce Clause. The taxing power is a red herring.
posted by dios at 8:22 AM on April 6, 2012


saulgoodman, this has been referenced several times, so I don't know how else to get this message through: Courts do not ignore statutes as written and say "well it is functionally similar to this other thing so we'll just consider it that." There are sorts of rules of statutory construction that require the Court to be bound by the plain language of what a statute actually says. There is not a rule that the Court can ignore the text if they can analogize effects to something else. It is simply not the way judicial decision-making works. Text and form matter and are in fact outcome-determinative.

You mention "you don't understand" why it is this way. Well, unless you endeavor to actually read the legal analysis as to why this matters, you won't grasp why the legal result ends up where it is at. Try reading the 11th Circuit's analysis (.pdf) of this issue (it's roughly pages 172-189). I'm certain if you read that, you will have an answer to your question.
posted by dios at 8:34 AM on April 6, 2012


The mandate will rise and fall by the Commerce Clause.

Yeah, I think you're right. The taxing argument works on generic "principles of justice," but the SG was right to downplay it.

I do find the whole "SG failed to articulate a clear limiting principle" discussion of the Commerce Clause worrisome: the fact that Jack Balkin can come along after the fact and lay out three good limiting principles clearly and concisely makes me think that the SG seriously screwed up in oral arguments: these things do get discussed in the merit brief from DHHS, but they don't discuss it in terms of a "limiting principle" but rather reject other potential limiting principles as not-in-keeping with precedent, i.e. Lopez and Morrison. There are a lot of documents and it will be easy to ignore those passages if the Court chooses to do so.

If you want to get a sense of what the Court is going to do then you need to read the briefs (they are available)

This is not the case that deals with the mandate: those are the briefs for day three, on the Medicaid expansion. Here is the link.
posted by anotherpanacea at 9:00 AM on April 6, 2012


I'm sorry but it seems to me that any difference in law that amounts to nothing more than a difference in the language used to construct it is no difference and such distinctions betray the spirit of the law in order to abuse the letter (in this case, for political ends). The law should be understood at a deeper level than that, on the level of the principles that are meant to be embodied in the language of the law.

There is a bootstrapping problem with this approach: the law is made up of words, not principles. To the extent that these principles, such as they are, can be articulated, they, too, must be articulated using words.

Language is a deeply problematic and complicated thing, and it is really insufficient to adopt an approach that requires one to know what the drafters of a law meant over and above what they wrote. What they meant is something that you can only infer out of what they wrote. Two people may agree on a particular inference, and most of the time people do, roughly, agree, but in an adversarial situation -- and court interpretation of a statutory utterance is almost always done under adversarial conditions -- the inference cannot take primacy over the text.
posted by gauche at 9:13 AM on April 6, 2012


gauche: “Language is a deeply problematic and complicated thing, and it is really insufficient to adopt an approach that requires one to know what the drafters of a law meant over and above what they wrote. What they meant is something that you can only infer out of what they wrote.”

Indeed. In fact, it's pretty clear that the drafters meant many different things, and often those many different things were contradictory.
posted by koeselitz at 9:18 AM on April 6, 2012 [1 favorite]


Indeed. In fact, it's pretty clear that the drafters meant many different things, and often those many different things were contradictory.

Yes. This is one of the problems with an originalist approach.
posted by gauche at 9:20 AM on April 6, 2012


saulgoodman, this has been referenced several times, so I don't know how else to get this message through: Courts do not ignore statutes as written and say "well it is functionally similar to this other thing so we'll just consider it that." There are sorts of rules of statutory construction that require the Court to be bound by the plain language of what a statute actually says. There is not a rule that the Court can ignore the text if they can analogize effects to something else. It is simply not the way judicial decision-making works. Text and form matter and are in fact outcome-determinative.

I understand this, but personally reject it and consider it to be a shallow way of practicing and interpreting law. I also believe that there have been other sustained periods in the history of American jurisprudence when more pragmatic, common sense and principals-based approaches to the law were more prevalent in the courts, and I am critiquing the current state of the courts in the US on that basis. I also think it's obvious to all parties that if the current court wanted to uphold the law, it could fashion any number of arguments to do so that would be entirely consistent with how a number of previous courts have rules in similar controversial cases. It all comes down to what the court majority wants to do: take a pragmatic view of the law to avoid the additional public costs, political turmoil and other negative impacts that rejecting the law on essentially technical grounds would undoubtedly bring about, or use the plausible-seeming (though not even clear-cut) technical deficiencies of the law to render a decision that is literally in nobody's best interest but political partisans. To deny that previous courts--and for that matter, the current one--have ruled that the practical merits of a case outweigh minor technical consideration would be dishonest.

On the technical merits alone, the court's recent ruling on strip searches in prison should clearly have gone the other way; but the court opted to rule against precedent and established law on "practical grounds." If it fails to do so in this case, so soon after that "pragmatic" ruling, how on earth can there be any doubt there motives are political rather than motivated by the best interests of the American people and the principle of the law?
posted by saulgoodman at 9:26 AM on April 6, 2012


There is a bootstrapping problem with this approach: the law is made up of words, not principles. To the extent that these principles, such as they are, can be articulated, they, too, must be articulated using words.

Only if you assume words and concepts don't refer to independent referents, which is pretty dubious. And besides, there's ample legal precedent, tradition and scholarship in the US for a principles-based approach to interpreting law. There's also ample precedent for pragmatic approaches. And the current court majority has at various times used both.

See my example above about prison searches. Even this current court majority has demonstrated it believes that a principles-based or legally pragmatic approach to deciding cases is sometimes appropriate. Why shouldn't it be in this case, when the consequences of ruling only on the technical merits are so far ranging and potentially destabilizing to our democratic processes?

And there's plenty of legal precedent out there that argues the contrary: that the specific language is secondary to the underlying legal principles it embodies.

Some of the attorney types around here on MeFi like to present these kinds of matters as cut-and-dried, like arithmetic, to lend more authority to their claims. But they aren't, and they never have been.
posted by saulgoodman at 9:39 AM on April 6, 2012


saulgoodman: "On the technical merits alone, the court's recent ruling on strip searches in prison should clearly have gone the other way; but the court opted to rule against precedent and established law on "practical grounds.""

I am struggling to understand your argument. What existing "precedent and established law" are you referring to? As I explained in the thread on this topic:
The point here is that the dividing line between the dissent and the majority is not a constitutionally principled one. This is not a question of whether a strip search is per se unconstitutional. Breyer concedes that it is constitutionally permissible. The question in this case is whether the evidence is sufficient to show that it is reasonable in this instance. And when you look, it all really comes down to the degree to which the majority was willing to give deference to the administrators about the importance of this while Breyer and the dissenters wanted more objective evidence of the need.
I'm greatly confused as to where you see that case as a precedence based one.

I understand this, but personally reject it and consider it to be a shallow way of practicing and interpreting law.

You reject statutory construction and the plain meaning rule? That statutory construction begins with the plain meaning rule may be the closest thing we have to an uncontroversial and well-established legal principle that exists. I cannot think of an older or more fundamental interpretive principle. (Note, I did a post in 2006 post on this topic). The only real question with the plain meaning rule is where to look when the meaning is not definite (that is where the originalist/textualist/pragmatist/Ely/Active Liberty/etc approaches argument begins). But no one quarrels with the concept that the Court is supposed to be look first and be bound by the plain meaning rule. I am aware of no theory of statutory construction that would permit a Court to have a text which says "this is a penalty not a tax", look at the legislative history that is clear "this is a penalty not a tax", and look past precedents defining the differences between an administrative penalty and a tax, and then conclude that "this is a tax" because of "common sense and principles". That is a jurist rewriting legislation.

Your reference to a "principles" based approach may be confusing two disparate concepts: decision-making in common law cases and statutory construction. They are very different things. What you are arguing makes more sense when interpreting common law rules. In fact, your reference to the Dworkin and Hart theories (which I also did a post about in 2006) is confused because those arguments do not apply in this case where the Court is interpreting a statute and the constitution.

I again urge you to consider not spending much time considering the merits of the "taxing power" argument. It is a sure failure as evidenced by the lower court rulings and its position in the federal governments argument as an afterthought. It really, truly is not the important issue in this case. It's all about the Commerce Clause here.
posted by dios at 11:08 AM on April 6, 2012


I'm greatly confused as to where you see that case as a precedence based one.

Well, it overturned the lower court precedents. District courts had consistently upheld such restrictions on constitutional grounds for years. Here's one example, in a ruling from the 8th circuit court. There are many others. The lower courts have been pretty consistent in ways contrary to the Supreme Courts decision, but they ignored all that lower court precedent.
In analyzing the case the court noted that numerous other circuits had concluded that strip searches of arrestees brought into a jail for a minor offense violated the 4th Amendment. The court also noted that many of these decisions relied on the balancing test applied by the United States Supreme Court in Bell v. Wolfish.
The court justified its decision on pragmatic grounds, is my point, even though established lower court precedent--and arguably, legal principles embodied in the constitution--could just as easily have led them to a different opinion.

So its hard not to conclude this court majority picks and chooses which legal theories to apply based on what best fits its preferred outcomes.
posted by saulgoodman at 12:01 PM on April 6, 2012


The court justified its decision on pragmatic grounds, is my point, even though established lower court precedent--and arguably, legal principles embodied in the constitution--could just as easily have led them to a different opinion.

This is simply not correct.

The issue is the 4th Amendment. The 4th Amendment has a test to determine whether something violates it or not. The test was well-established in the Supreme Court's precedence. All the judges in the Florence agreed that (1) the Fourth Amendment applies, (2) that a strip search is an invasion of privacy of the type the Fourth Amendment was designed to protect, and (3) that the state has a valid penological interest at stake. The only disagreement was on the remaining question under the test: was the search reasonably related. This prong of the established test requires the Court to consider the evidence put before it to determine whether the search is necessary. The only split was that the majority and dissent disagreed over whether the state met its evidentiary burden to estabish the need for the search.

The Court's decision was not made on "pragmatic grounds." It was made on principled grounds in that they applied the well-established Fourth Amendment test. And in that case, the most relevant Supreme Court precedent was Bell which had established for decades that prisons could strip search inmates after they have visitors to ensure nothing is secreted into the prison.

By the way: if you want to argue this point further, will you please confirm for me that you have read the entire opinion, both concurrences and the dissent? I tire quickly of discussing any Supreme Court ruling with people when the basis for their information is some (likely incomplete or uninformed) summary from an article by a non-lawyer as opposed to a review and understanding as to what the Court actually said. I'm not trying to be rude, its just that from experience I find that when that is not the case, it ends up to be a pointless discussion but rather a back and forth just trying to get the person to understand what the heck the ruling actually was.

(And, just fyi - it is exceedingly peculiar to refer to "established lower court precedent". Precedent, in the context of Supreme Court decisions, refers to other Supreme Court cases. Lower court rulings have no binding precedential value on the Supreme Court and are only of interest from purely persuasive grounds.)
posted by dios at 12:52 PM on April 6, 2012 [1 favorite]


Well, I know lower court precedent isn't binding on the supreme court, but it still usually carries weight, especially when there's a clear consensus of opinion. Fair enough, I haven't read the opinion in its entirety. I'll study the opinion more closely. But if the thrust of the majority opinion is accurately captured in Kennedy's remarks on the decision as quoted below:
Writing for the court's conservative wing, Justice Anthony Kennedy noted that jails are "often crowded, unsanitary, and dangerous places," and that, therefore, the courts must defer to the judgment of correctional officials in order to prevent new inmates from putting lives at risk with weapons or contraband that they may "carry in on their bodies."
That sounds like an argument based more on pragmatic considerations surrounding the effect of the law than on legal principle to me; if we ruled that the 4th amendment applies, it would create too much of a security risk, and it's impractical to think we in the Supreme Court can micromanage how state corrections facilities handle their security. And even if you call my qualifications to criticize the ruling into question, there are plenty of other critics of the credentialed variety to choose from.
Bernard Harcourt, a law professor at the University of Chicago, however, called the decision "frightening ... the kind of logic that can turn a democracy into a police state" because it is premised on the notion of eliminating all risk at the expense of those who reasonably pose little risk.

In fact, at least 10 states outlaw routine strip searches of those arrested for minor charges, and the Federal Bureau of Prisons and the U.S. Marshals Service bar visual body cavity searches for those arrested on misdemeanor or civil contempt charges. "What the court did was to take a practice that was not universal and give it its constitutional imprimatur," says Harvard Law School professor Carol Steiker. The open question, she said, is whether states that have forbidden this practice will now move to permit blanket strip searches of those arrested for minor charges.
posted by saulgoodman at 1:48 PM on April 6, 2012


Maybe we need a constitutional amendment to say prisoners have the right not to be jailed in prisons so crowded, dangerous, and unsanitary that we have to check their assholes when they come in.
posted by furiousxgeorge at 1:51 PM on April 6, 2012 [4 favorites]


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