It’s SCOTUSBlog’s Health Care Moment

Like much of the US legal world, I’ll be following the liveblog at SCOTUSBlog this morning to see what the Supreme Court does to representative government. SCOTUSBlog says they spent $25,000 just beefing it up to handle the slashdotting they expect to get around 10am today.

Fortunately, there’s a way to turn off the horrible little clicking noise their liveblog makes ever time one of the participants posts something.

I don’t know if I’ll have anything to say about the decision after it issues; that depends in part on what it says. Given the mountain of instant commentary there surely will be, I rather suspect I may not have much to add.

On pure precedent, the case should be a no-brainer for upholding the statute. The strongest case for anything less is that Wickard, one of the best cases for upholding it, is something of an outlier. It’s possible to see Wickard as an unwelcome guest at the Commerce Clause table, as the rule in that case seems so broad that there are almost no limits on the Commerce Clause. My own view, however, is that even without Wickard, the health care law passes muster because I think Chief Justice Marshall set us on that path when he tied the Commerce Clause’s reach to the reach of the national market. As the nation’s markets have become truly national in more and more areas, Congressional power has, I believe, grown with it.

I am not that interested in the debate over whether this is what the Framers, or the Ratifiers, expected. I think that John Marshall’s views in this area have become, and should be, authoritative and are hallowed by time even if they may have represented something of a Federalist coup (or time bomb) when delivered. I would say the same about Marbury v. Madison. I do not mean to suggest here that Marshall’s views can never be overruled, only that there has yet been no good reason to do so, and this is not it. Indeed, principles of subsidiarity counsel that national issues should be regulated nationally; health care is clearly such an issue given its economic impact and the national effect of both failures of health care (e.g. epidemics) and of health care financing.

A purely political ruling, whatever its nature, would be a sad thing for the Nation. We have in the past decade or so eaten a great deal of our moral and intellectual seed corn, a fact reflected in poll results showing declining confidence in our institutions. Bush v. Gore has made me unwilling to teach Constitutional Law, and makes even Administrative Law harder at root. Legitimation is valuable; legitimation crises are painful.

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5 Responses to It’s SCOTUSBlog’s Health Care Moment

  1. Vic says:

    Honsestly, I think this was effectively an abstention by the Court. I don’t find Roberts’ argument that it is a tax very convincing, and I don’t think the rest of the majority do either. (I think they would have been perfectly happy affirming the Act on the basis of Commerce Clause permission, and I doubt that they would have effectively raised the tax issue on their own. It simply was not a position really much espoused by any advocate of Obamacare, including the President, and is almost sua sponte by Roberts.)

    What I think happened is that Roberts, finding a late basis for doing so, sided with the Court’s liberal Justices in order to force the question of Obamacare to be solved by the political process, rather than by yet another divisive 5-4 Court decision that would by lambasted by whatever side loses anyway and never really fix anything.

    What this decision REALLY does is stop expansion of the Commerce clause (an extremely important win for conservatives) and force Obamacare advocates to embrace it as a tax increase, which is not a good position generally in an election year. It increases pressure upon the Congress to repeal, as well as pressure on Congressional supportersof Obamacare to win in 2012 (while providing excuse for the fence-sitters to back away from it, as they have been doing since passage). Finally, it galvanizes the majority of American voters who oppose Obamacare, some of whom were Obama voters in 2008, while not galvanizing the voters who support it.

    While in the short term this appears to be a win for Obamacare, my feeling is that it merely shows that Roberts is playing a very different game than Congress and the President. I think he KNOWS that this will greatly increase the chance of repeal, and Congress majorial shiting in 2012, all while ensuring that the Commerce Clause cannot be used to justify things like this (which will be important later on). He effectively abstained by kicking it back to the one branch of Government that can decisively deal with it, without doing so obviously.

  2. Vic says:

    (* Obviously, it would have been 6-3 if Roberts voted with the dissenters)

  3. Vic says:

    Reading the decision a second and third time has not changed my view that this was clearly a calculated move by Roberts.

    Interestingly, the Ginsberg opinion reads like a dissent. It only even mentions any concurrance with the Roberts majority opinion in a single sentance that states that she agrees with its result. But it carries no water for it and in fact seems to disagree that it is even the proper basis to affirm the Act.

    It is also interesting (and possibly notable) that Scalia’s “dissent” refers to the Ginsberg concurrance as the “dissent” numerous times. (interestingly, not in the section on Roberts’ tax argument, which would have been written later) This may be a typo, but I think it more logically suggests (as does the lack of Ginsberg support for the majority opinion) that, at least as far as the mandate, this was originally a 6-3 decision for striking it down, that only later changed to a 5-4 to uphold. Perhaps leaving “dissent” in was a signal (or a pout) from Scalia.

    I am absolutely convinced that Roberts changed his mind late in the game, surprising even Ginsberg – whose concurrance was intended to be the dissent. The only question is why?

    Did Roberts suddenly see things in a new light and come up with an argument that he found killer? I really doubt it. I’m not even sure his tax argument makes much sense. Certainly nobody else on the Court thought so, even if they were willing to hitchhike along. I say again that Robert’s purpose here was twofold: 1). Place strict limits on Commerce Clause usage for future legislation. 2). Force Obamacare to be dealt with politically, rather than by a Court.

    It’s all quite Machiavellian really.

  4. Vic says:

    One more thing: I think the reality of the decision suggests that the vote might otherwise have been 6-3 striking the mandate, but 5-4 upholding the medicare section. This would have been a mess and somewhat contradictory. It certainly would not have solved the Obamacare question in anyone’s mind. Now he has placed in firmy back into the political arena. Brilliant.

  5. Penury says:

    thanks, professor habermas!

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