The Political Dimensions to the ObamaCare Challenge
As John Yoo reports, the Commerce Clause challenge to ObamaCare indeed has legs. The political cost of striking down the legislation has been reduced by the decision of the House to vote for the repeal. It is not that the courts dutifully follow the election returns. It is that they are less constrained in how they think about a case once they do not fear the kinds of political retribution that leave even independent judges quaking in their boots.
At the same time, the intellectual appeal of the antigovernment case has picked up because the United States has yet to sound a consistent theme in support of the legislation. The challengers keep stressing two simple points. First, if this mandate is allowed, there are no actions that cannot be coerced by state action, no matter how egregious and intrusive in form. Second, the novelty of this case, with its action/inaction decision, has persuaded the courts that the case marks an unprecedented extension of the law in ways that the Framers—indeed even the architects of the New Deal—could not have anticipated.
The legislation is so novel that to strike it down does not impair any of the extensive government transfer programs now in place. The point is absolutely critical because it is vastly more difficult to knock down a program that is in place than it is to prevent one from going into effect. Hence the nice separation of ObamaCare from the raft of current does not give rise to any challenge to vested rights or established programs, which lowers the price of knocking ObamaCare out of the water. Lasers are more likely to strike, and take out, a hardened target than buckshot.
Notwithstanding all this, I am surprised that Judge Vinson went so far to say that the individual mandate was so critical to the overall operation of the system that he had to strike the bill down in its entirety, given the want of the severance clause in the legislation. I would have thought that a judge might have been prepared to keep in place all the alterations to Medicare and Medicaid pieces while striking down the system of regulation for individual and group plans. Indeed he could have taken the interim position that the plan goes unless the Congress passes some general revenue tax to make up the anticipated shortfall. But the decision does not temporize. The government played table stakes poker, and for the moment it has lost.
But keep it all in perspective. This decision is in some sense only a preliminary canter, for everything depends on what the nine Justices will do. But do not put it beyond possibility that the spate of lower court decision gives cover to the Supreme Court if it chooses to knock out the statute. It is one thing to do this when all lower courts have thought the legislation fine. It is quite another to do this when other courts have issued reasoned opinions that help place the Supreme Court in the newly found political mainstream.
I still think that this legislation is likely to be sustained, perhaps by a five-four vote, on the ground that the mandate is but one part of a comprehensive health care whole, so that the mandate has to be judged, to borrow from John Donne (not Yoo) not as on island, but as a piece of the main. But I have been wrong before. In this sense for reasons that have more to do with political economy than with constitutional law, I hope I am wrong again. The current Supreme Court law is so far off base that I would support virtually any program that trimmed its excesses.
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Comments :
Nov '10
Re: The Political Dimensions to the ObamaCare Challenge
Richard, I hate to think of you being wrong, but I hope you are. Obviously this does plenty of damage to the economy, but it also sets a precedent to allow the government to mandate any area of life, as has been pointed out by many smarter folks than I. In my view, the constitutional law issue is equal to the political economy issue.
May '10
Re: The Political Dimensions to the ObamaCare Challenge
Richard: If "mandate" in this context means "buy x or pay money to the feds" and is ruled unconstitutional, couldn't a renter then sue the gov't on the grounds that the gov't is "mandating" that he buy a house--that is, buy a house or pay more (in taxes)to the feds than the equivalent guy who dutifully did buy a house?
This also is an action/inaction matter, no? What's the difference, other than the no-health-insurance penalty is a "fine" and the no-house penalty is a failure to receive a tax deduction?
Jun '10
Re: The Political Dimensions to the ObamaCare Challenge
Severed or not, the carrot (preexisting conditions are covered) doesn't work without the stick (the mandate,) and it wouldn't have worked anyway, because the stick was too tiny. The kindest thing, for everybody, is to start over from scratch.
Jan '11
Re: The Political Dimensions to the ObamaCare Challenge
Scott Reusser: Richard: If "mandate" in this context means "buy x or pay money to the feds" and is ruled unconstitutional, couldn't a renter then sue the gov't on the grounds that the gov't is "mandating" that he buy a house--that is, buy a house or pay more (in taxes)to the feds than the equivalent guy who dutifully did buy a house?
This also is an action/inaction matter, no? What's the difference, other than the no-health-insurance penalty is a "fine" and the no-house penalty is a failure to receive a tax deduction? · Jan 31 at 7:30pm
Because the government has let Peter keep more money does not mean that he has harmed Paul. Besides, I don't know how to deduct interest from taxable income without a mortgage to pay off.
May '10
Re: The Political Dimensions to the ObamaCare Challenge
fullfrontal
Because the government has let Peter keep more money does not mean that he has harmed Paul.
True, but it does mean the gov't is treating one guy better and one guy worse based on whether they did or did not get off their couches and buy a product, which might rightly annoy Paul in this case.
Nov '10
Re: The Political Dimensions to the ObamaCare Challenge
Scott Reusser
fullfrontal
Because the government has let Peter keep more money does not mean that he has harmed Paul.
True, but it does mean the gov't is treating one guy better and one guy worse based on whether they did or did not get off their couches and buy a product, which might rightly annoy Paul in this case. · Jan 31 at 8:03pm
The whole thing is just plain silly. The real punishment for not buying health insurance is that you aren't covered when something tragic occurs. Can't we just say that?
Dec '10
Re: The Political Dimensions to the ObamaCare Challenge
Richard Epstein:
...
I still think that this legislation is likely to be sustained, perhaps by a five-four vote, on the ground that the mandate is but one part of a comprehensive health care whole, so that the mandate has to be judged, to borrow from John Donne (not Yoo) not as on island, but as a piece of the main. But I have been wrong before. In this sense for reasons that have more to do with political economy than with constitutional law, I hope I am wrong again. The current Supreme Court law is so far off base that I would support virtually any program that trimmed its excesses. ·
Professor, I need some help with this last sentence. Could you restate it in a different way?
Jan '11
Re: The Political Dimensions to the ObamaCare Challenge
May I suggest that everyone pray for the continued good health of Thomas, Alito, Scalia, Roberts and Kennedy.
Edited on Jan 31, 2011 at 10:01pmJan '11
Re: The Political Dimensions to the ObamaCare Challenge
Pike Bishop: May I suggest that everyone pray for the continued good health of Thomas, Alito, Scalia, Roberts and Kennedy. · Jan 31 at 10:00pm
Edited on Jan 31 at 10:01 pm
I think this thing is going down, and I think it's not going to be a 5-4 decision.
May '10
Re: The Political Dimensions to the ObamaCare Challenge
fullfrontal
Pike Bishop: May I suggest that everyone pray for the continued good health of Thomas, Alito, Scalia, Roberts and Kennedy. · Jan 31 at 10:00pm
Edited on Jan 31 at 10:01 pm
I think this thing is going down, and I think it's not going to be a 5-4 decision. · Jan 31 at 10:10pm
I hope you are right...but I cannot for the life of me think of one of the four who would join the right-leaning five. Certainly not the affirmative-action Obamaites...
Jan '11
Re: The Political Dimensions to the ObamaCare Challenge
Keith Preston
fullfrontal
I think this thing is going down, and I think it's not going to be a 5-4 decision. · Jan 31 at 10:10pm
I hope you are right...but I cannot for the life of me think of one of the four who would join the right-leaning five. Certainly not the affirmative-action Obamaites...
My reasoning is this: if the court rules in favor of PPACA, it rules itself completely out of relevance in the matters of commerce. When it gives the green light to Congress to regulate the entire universe of possible transactions and non-transactions, it will be effectively saying, "Congress has all the marbles here, and we do not matter."
Additionally, let's suppose that the court does uphold PPACA. Let's also suppose that the people get really peeved and decide to amend the Constitution. How would we come up with the words to give Commerce Clause the meaning we want it to have without destroying the entire concept of the Commerce Clause? Under the Obama interpretation of Commerce, it's logically impossible, and I think Scalia will address this and the liberals will be forced to strike it down.
Dec '10
Re: The Political Dimensions to the ObamaCare Challenge
As goes Justice Kennedy, so goes the court. Two recent cases that attempted to reign in decades of commerce clause expansion passed because of his vote, US v. Morrison and US v. Lopez (where he wrote the majority opinion). He then changed course again in Peirce County and Gonzales v. Raich. The good thing about Kennedy is that he is often won over by federalism arguments (See Mass. v. EPA). I think what it may come down to is whether or not the purchase of healthcare has "significant effects" on commerce. Since it has more effects on interstate commerce then say, the home grown marijuana grown by a cancer patient for personal use, I have doubts that Kennedy will vote to limit congress any further.
Jan '11
Re: The Political Dimensions to the ObamaCare Challenge
fullfrontal
My reasoning is this: if the court rules in favor of PPACA, it rules itself completely out of relevance in the matters of commerce. When it gives the green light to Congress to regulate the entire universe of possible transactions and non-transactions, it will be effectively saying, "Congress has all the marbles here, and we do not matter."
Additionally, let's suppose that the court does uphold PPACA. Let's also suppose that the people get really peeved and decide to amend the Constitution. How would we come up with the words to give Commerce Clause the meaning we want it to have without destroying the entire concept of the Commerce Clause? Under the Obama interpretation of Commerce, it's logically impossible, and I think Scalia will address this and the liberals will be forced to strike it down. · Feb 1 at 6:43am
After reading about Lopez and Morrison on Wikipedia, I realize that this thinking is naive, ignorant and so tragically wrong.