Author: David Orentlicher


More Like Gibbons Than Marbury

I usually don’t agree with John Yoo, but his op-ed in this weekend’s Wall Street Journal is much closer to the mark than the commentaries likening Roberts’ opinion on the Affordable Care Act to that of John Marshall in Marbury v. Madison. While on its face, it may seem that Roberts sacrificed in the short-term to achieve a more important long-term gain, there is nothing in his opinion that imposes any meaningful limits on the Commerce Clause power. It still is as sweeping as it was before Thursday. Roberts may not have enlarged the commerce power, but there was no need to do so.

Indeed, the success of the “inactivity” argument was the most hollow of victories. Not only did it not result in the Court overriding the individual mandate to purchase health care, but there is no other purchase mandate that it will prevent in the future. Congress does not try to regulate economic inactivity because, other than with health care insurance, it can impose its purchase mandates by regulating economic activity. Just as Congress can require us to buy seat belts with our cars or V-chips with our television sets, it can require us to buy other things when we enter the marketplace, from broccoli to cell phones to GM cars.

I’ve very much enjoyed my stint as a guest blogger. Much thanks to Gerard, et al., for giving me this opportunity and for all the readers who engaged with me on the issues.


The Chief Rejects Novelty

In upholding the individual mandate as an exercise of the taxing power, while rejecting the Commerce Clause basis, Chief Justice Roberts demonstrated a resistance to adopting novel principles. On the taxing power side, he rejected the novel argument that Congress may only rely on powers that it has expressly invoked even if there is another power that authorizes its action. On the commerce clause side, he rejected the novel argument that Congress may regulate economic inactivity. Foolish consistencies may be the hobgoblins of little minds, but we often see too little consistency by justices in their decision making.


Big Victory for Purchase Mandates

It’s difficult to exaggerate the extent to which the argument against purchase mandates came up short in today’s decision. Not only did the Supreme Court uphold the individual mandate to purchase health care, but the majority’s opinion casts no doubt on just about any other mandate that Congress might want to pass.

As I have observed before, Congress usually can impose purchase mandates by tying the mandates to voluntary economic activity. If Congress wants us to buy broccoli, for example, it can require grocers and restauranteurs to include broccoli with every sale (say with an exception if you show you bought broccoli earlier that day or week). What’s different about the health care mandate is the infeasibility of tying it to another voluntary purchase, like the purchase of health care services. Health care coverage must be purchased before the need for health care arises.

The majority may have rejected the imposition of mandates on those who are not engaged in economic activity, but it did not reject the regulation of people already engaged in economic activity. Just as Congress can require us to buy seat belts with our cars or V-chips with our television sets, it can require us to buy other things when we enter the marketplace. The barrier to purchase mandates remains political, not constitutional.


George Bush Laughs Last?

The post-mortems already have begun, and as usual, they overdetermine the surprising success of the constitutional challenge to the individual mandate to purchase health insurance. If the Supreme Court actually strikes the mandate down, observers will continue to claim that the critics framed the debate effectively, that the Solicitor General defended the mandate ineffectively, that Congress and the Obama Administration were too slow to perceive the threat, etc.

But all we really need to know is that George Bush, rather than Al Gore or John Kerry, nominated Sandra Day O’Connor’s replacement to the Supreme Court. That difference in the Court’s ideology explains far more than anything else. Indeed, as the Court’s decision last week in Knox illustrated, the justices can readily draw on their philosophical biases without any help to reach their decisions. In that case, as the four moderate justices pointed out, the conservative wing of the Court announced a new principle about the first amendment rights of non-union members without hearing arguments on the particular matter. Contrary to the Court’s standard rules, the majority simply decided to establish a new doctrine without giving the parties a chance to weigh in. There was no need for conservative law professors, television hosts, newspaper columnists or elected officials to beat the drums on behalf of management.

If the individual mandate goes down, its viability was determined not in the past couple of years but in 2006 when George Bush appointed Samuel Alito to the Supreme Court.

[cross-posted at HealthLawProf]


It’s the Economy, not the Mandate

In recent weeks, we’ve seen a number of articles explaining the surprising effectiveness of the constitutional argument against the individual mandate to purchase health care. An argument that many observers gave little chance of success now is seen as a 50-50 proposition. Blame has been assigned to our highly polarized politics, in which each party rejects whatever the other party supports, the spending of conservative interest groups on attack ads, and the media’s greater attention to lower court decisions that found the mandate unconstitutional than to decisions that upheld it.

No doubt all of these factors have played a role, but they are not a complete explanation. After all, well-funded, partisan attacks on presidential policies are not always successful. We need to know why critiques of the mandate have resonated with the public as much as they have.

As I have suggested elsewhere, I think public disapproval of the mandate reflects a deeper concern than concern with the mandate itself. Voters are unhappy with the Affordable Care Act in large part because they saw it divert President Obama’s attention from a much more important need—reviving the economy. It seemed like Obama spent just a few months on his stimulus bill and then a full year on health care. Recall in this regard how many times the president had to reassure the public that he would pivot back to the economy. And the fact that the Commerce Clause power is at stake is telling. If the commerce power is designed to allow the national government to promote economic activity, why were the Democrats in Washington using the power for another, less pressing purpose?


Hiding the Ball

SCOTUSblog reported that 70,000 people were logged onto its live blog yesterday morning as the Supreme Court announced its decisions. Most were likely watching to see if the Affordable Care Act opinions would come down. That’s a lot of unproductive time that could easily have been avoided if the Court had released a list of decisions in advance, say by 5 pm on Wednesday, or even by 9 am yesterday.

Of course, the Court hides the ball in other ways, such as by forbidding live broadcasts when it hears oral arguments and issues its decisions or when it writes per curiam opinions. The justices might learn from the practices of their lower court colleagues. For example, when I clerked for Judge Alvin Rubin on the 5th Circuit, he would compose a list of questions that the clerk’s office then sent to counsel so they could better prepare for oral argument and give their best shot at responding to Rubin’s concerns.

The public would be well served if the Supreme Court brought more transparency to its activities.


Indecency and the Supreme Court

In FCC v. Fox, the Supreme Court once again took a pass on the first amendment questions raised by the regulation of indecent images or speech on broadcast television. It is a good thing that the justices want to take their time to get it right on the constitutional issues, but ten  years have passed since the case was first triggered by Cher’s use of the F-word at the Billboard Music Awards. And the Court’s decision today suggests it hopes the matter will just go away. As Justice Kennedy concluded for the majority, “this opinion leaves the [FCC] free to modify its current indecency policy.”

The Court’s discomfort with indecency is not surprising. The justices’ discomfort reflects that of much of society. Indeed, they could not bring themselves to actually say the F-word at oral argument.

But once again, it leaves us to wonder why our society seems to worry more about exposing children to even brief uses of profanity or depictions of nudity than it does about exposing kids to prolonged violence. The FCC does not restrict violence the way it does indecency on television, movie ratings are tougher on indecency than on violence, and the Court has a lower threshold for government regulation of violence than of indecency. Recall, for example, that last year, the Court invoked the first amendment to override California’s ban on the sale of violent video games to minors, and two years ago, the Court rejected on first amendment grounds a federal statute that outlawed “crush” videos depicting the torture and killing of animals.

It may be correct to be as careful as we are about the harms to children from the media’s use of nudity and vulgar language. But we also should take more seriously the harm from the media’s depictions of violence.


Trusting PhRMA?

I might have been persuaded by Justice Stephen Breyer’s dissent on behalf of drug company sales representatives in Christopher v. SmithKline until I got to his reliance on the ethics code of the Pharmaceutical Research and Manufacturers of America (PhRMA). [The majority rejected a claim by sales representatives (detailers) that they were entitled to overtime pay under the Fair Labor Standards Act because they were not really engaged in sales.]

As Breyer observed, the PhRMA ethics code “refers to detailers as ‘delivering accurate, up-to-date information to healthcare professionals.'” The code also “explains why a detailer should not (hence likely does not) see himself as seeking primarily to obtain a promise to prescribe a particular drug, as opposed to providing information so that the doctor will keep the drug in mind with an eye toward using it when appropriate” (emphasis added).

Perhaps Breyer is correct that drug company detailers see themselves as educators, rather than salespersons, in accordance with the PhRMA ethics code. But it’s difficult to square that view with the reality of the detailers’ compensation. As the majority pointed out, detailers receive substantial incentive pay (more than 30 percent of gross pay for one of the plaintiffs) that is based on sales volume of the detailers’ assigned drugs in their sales territory. They are not given bonus pay based on the extent to which doctors in their sales territory are knowledgeable about their assigned drugs. Read More


Be Careful What You Wish For

As doctors learned with their opposition to government-sponsored health insurance, critics of the Affordable Care Act (ACA) may win a Pyrrhic victory if the Supreme Court strikes the individual mandate down. It may be unpleasant to be subject to the dictates of the state, but it can be even worse to be subject to the dictates of the private sector.

Thus, for example, many physicians and the American Medical Association (AMA) opposed the Clinton health care program because they did not want to work with the government’s bureaucracy and rules. However, they found it even more difficult to work with the bureaucracy and rules of insurance companies. As a result, the medical profession became more supportive of a national health insurance program, and the AMA backed ACA.

Consider the deal offered by ACA compared to the current deal that the private sector provides. Most Americans get their health care insurance through their employers and therefore are subject to a private individual mandate to purchase health care. How is this so? Say an employer offers health care benefits worth $10,000. If the employee declines the offer, the employer does not substitute $10,000 in salary. Either the employee accepts the health care benefits or gets nothing. There really is no choice—the employer forces the employee to spend a significant chunk of compensation on a health care plan.

The ACA mandate, on the other hand, imposes a much smaller penalty on individuals who do not purchase health care insurance. Rather than losing 10 or 20 percent of income from one’s employer for not buying insurance at the workplace, people are subject to a penalty of only 2.5 percent of income under the ACA mandate. Moreover, the ACA mandate comes with protection against preexisting conditions clauses and preservation of health care insurance for people who lose their jobs or voluntarily leave their employment to start their own businesses.

It is important to worry about governmental power, but there are times when the choice is not between more or less individual freedom, but between freedom from governmental power or freedom from corporate power. When it comes to health care, it often is better to work with the government than the private sector.


The Supreme Court’s Declining Status

There is considerable irony in the declining approval ratings for the Supreme Court. As reported last week in the press, only 44 percent of Americans approve of the job the Court is doing, and 76 percent believe that the justices are influenced by their personal or political views. The irony lies in the failure of Justice Antonin Scalia to heed his own warning in the Cruzan “right to die” case.

In his concurring opinion rejecting a constitutional right to have life-sustaining medical treatment withdrawn, Scalia observed that the “Court need not, and has no authority to, inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so it will destroy itself.” Yet by joining the majorities in Bush v. Gore and Citizens United, and tipping his hand at oral argument on the validity of the individual mandate to purchase health care, Scalia has only reinforced public skepticism of the Court’s role in resolving constitutional controversies.