Final Thoughts on the Affordable Care Act

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. AF says:

    On 2, the far more amazing coincidence was the rash of articles from conservative pundits in late May complaining that Justice Roberts was being pressured by liberal into changing his vote. This was exactly the same argument that Jan Crawford’s inside-the-Court sources made to Crawford. It looks very much like these same sources or their surrogates got their message out before the decision came down.

  2. Shag from Brookline says:

    On point 1, might this be described as Gerard’s SC(R)OTUS* TRICKLE DOWN THEORY? (* The (R) is for the Republican wing of SCOTUS.) As to “respect,” who can respect Scalia’s Etna-like outburst at Obama in his AZ immigration case dissent? Here in MA, we learn in the weaning political process not to get mad but to get even.

    As to point 2, Gerard, this is really a stretch. But I would welcome an independent investigation of the Court leaks, as I have noted on Obamacare related threads at this Blog and at Balkinization. Gerard, you really, really have to do something about that cough, with the benefit of course of the ACA decision on healthcare.

    As to point 3, I am not persuaded by Roberts’ analysis of both the commerce and N & P clauses. As for logic, Gerard, keep in mind Justice Holmes on “experience uber logic.”

    As to point 4, Gerard might go back in time to the writings of Finley Peter Dunne through the voice of Mr. Dooley on the Court’s political considerations.

    These are not my final random observations on some random observations.

  3. Joe says:

    #1 Respect my authority! Seriously, the conservatives come off as somewhat childish here including their “joint dissent” that looks like a first draft & unlike Roberts/Ginburg wasn’t properly edited for clarity or to resist all this dicta talk.

    Yet again all this talk from the right that the left make stuff up or just act political, can’t really handle just applying the law really is hard to take seriously. The left are full of themselves too but repeatedly admit to being pragmatists, knowing how to count to five etc. so it’s not as bad.

    #3 The sensible thing here is to treat “functional taxes” as “proper” — this can avoid those who don’t believe this is a tax. This would also address the unlimited power fears (overblown anyway, but I repeat myself).

    #4 Shades of this was present in Dred Scott, the two Northerners pressed to join the holding.

  4. Brett Bellmore says:

    “In time, I think the principle that will emerge from this case is that a major piece of legislation enacted by one party and subjected to extensive partisan debate should not be invalidated on a party-line vote by the Justices of the other party.”

    Isn’t this just rewarding partisans on the Court for being relentlessly partisan? Even if they’re the minority, so long as they hold the line, by this rule they exercise a veto on enforcement of the Constitution.

    I see no good reason why Justices should vote to uphold a law they think unconstitutional. Ever.

    Nor do I think the rule you propose has the slightest chance of being implemented by the liberal members of the Court.

  5. Gerard Magliocca says:

    In a sense you could call it a judicial filibuster. But you need a unusual alignment of circumstances for that principle to apply. I’m hard-pressed to think of another since the early Marshall Court.

  6. Joe says:

    I see no good reason why Justices should vote to uphold a law they think unconstitutional. Ever.

    In practice, justices from the 1790s accepted the principle that overturning federal law was a weighty thing and only very clear cases warrant it. John Marshall more than once determined dispute among his justices meant it wasn’t clear enough to rule in a certain way. Merely “thinking” might not be enough given the weight given democratically passed law.

    But, so be it, let the heavens fall. My problem is this citation of “liberals” in particular. Liberals, including under Warren, have restrained themselves, voted in a more conservative way than sometimes they liked, for the sake of collegiality or for reasons comparable to the OP.

    I think it is fine to be cynical that either side would be consistent here. But, why would “liberals” in particular not implement the policy? I find it a bit harder given Breyer and Kagan went along with the Medicaid coercion argument though the side they are assumed to be more closely connected politically are opposed.

  7. Shag from Brookline says:

    I’m sure Brett is aware that after the Court in Marbury v. Madison held in 1803 a federal statute to be unconstitutional, it was not until 1857 in Dred Scott that the Court next determined a federal statute to be unconstitutional. In between there were a number of constitutionally questionable cases involving questionable federal statutes. In fact both Marbury and Dred Scott were themselves questionable. Like ugliness, unconstitutionality is in the eye of the beholding Justices in the majority. Get over it, Brett, as Scalia said about Bush v. Gore. The liberty to free load on healthcare may be precious to “pure” libertarians, but there are so few of them compared to the healthcare uninsured. Perhaps Brett, like the Tin Man, should be in search of a heart.