Final Thoughts on the Affordable Care Act

Barring some new revelation, I think that this will be my last post on the case.  So here are some random observations:

1.  The leaks coming out of the Court are disturbing.  This is not a Jewel Ridge situation (a famous incident where some Justices leaked to the press and got into a public row about who leaked), but it does not bode well for Chief Justice Roberts’ authority. Normally bygones are bygones when it comes to divisive cases, but this time you might think that a couple of the Justices will never have the same level of respect for him again.  (Though why this is different from Justice Kennedy’s switch in Casey is unclear to me.)

2.  When Congress comes back into session, some reporters should press Senator Leahy on why he just happened to decide, in mid-May, to go to the floor and give a speech focused on Chief Justice Roberts and health care.  That was an amazing (cough) coincidence.  What did Leahy know, and when did he know it?

3.  Moving back to the merits, I must say that I’m not persuaded by the Chief’s Necessary and Proper Clause analysis.  If you define the legislative end as “regulating inaction,” then it follows from his Commerce Clause reasoning that the N and P Clause cannot support the mandate.  The more logical position, though, is that the end in this case was “providing universal coverage” and that the mandate was a constitutional means of doing that. (I have other problems with that portion of the opinion, but that would beat a dead horse.)

4.  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.  I wonder if the opinion would have been stronger if there was a more frank discussion of the political considerations.

UPDATE:  Sometimes the wisest decision is not the most coherent one.  People love to poke holes in Justice Powell’s opinion in Bakke, but it’s been the law of the land in practice for more the thirty years and has served the nation well.  You can say something similar about Marbury and many other “great” cases. In any event, we’ll be arguing about whether Chief Justice Roberts did the right thing from now until doomsday.

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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.