Author Archives: Michael Froomkin

Adam Winkler, The Roberts Court is Born:

Roberts may have voted to save healthcare because he wants to preserve the Court’s capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America’s commitment to civil rights for over forty years.

The Voting Rights Act? Really?

Robert E. Malchman, John Roberts, evil genius:

[T]he survival of the Affordable Care Act eliminates any clamor for real, progressive health care reform, whether universal Medicare or for the creation of a public insurance option. Such programs are anathema to conservatives who want most things privatized — either for ideological reasons or so that their corporate masters can further enrich themselves.

…

Roberts has permitted the implementation of a conservative health-care regime, energized the Republican base, preserved his ability to vote against liberal congressional measures as violating the commerce clause and aggrandized himself as an apolitical Chief Justice. I tip my hat to his evil genius.

Steve Benen, How far the four dissenters were willing to go:

The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law — the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.

To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. …

Roberts’ motivations notwithstanding, it’s important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.

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.