I think on balance I'm most persuaded, so far, by Scott Lemieux's argument:
But, in reality, this is no major conservative win in any sense...First, Roberts's opinion, even if it constrained future Supreme Courts in perpetuity, is a narrow one that does not substantially alter existing commerce clause and spending powers jurisprudence. And second, what Roberts wrote in NFIB v. Sebelius will do nothing to constrain future courts.I should back up a bit, because I've been trying to make sense of all of this based on my own understanding of things going in. What I've been saying throughout is that it would be very difficult for the conservative Justices to put together a case that (1) struck down ACA; (2) did not constitute a major judicial overturn of the way that the US has been governed for the last 80 or so years; and (3) was internally consistent and passed the giggle test -- that is, wasn't just pure partisanship (as opposed to strong ideology). So my assumption was that it would be very hard to overturn ACA unless they were willing to either attack the New Deal arrangements or look like hacks. I suspected that they wouldn't want to look like hacks, and had no idea whether they did or didn't want to go the whole "Constitution in exile" route.
But that didn't really work out, did it? Because Roberts did embrace Broccoli Liberty (which I continue to think is just silly), but didn't do it in an effort to carve out a special "No major Obama legislation" exception. So, basically, I'm trying to fit what did happen into the framework I was using to understand what would happen, while of course leaving open the possibility that I was just wrong. But if not: what I think happened is that Roberts wound up using hack logic as window dressing, but that when it counted, he wound up with reasonable reasoning. If that's right -- and I'm not sure about it -- then I can return back to my framework, and say that Roberts just wasn't willing to disrupt how the US was governed just in order to knock out the ACA. But, yeah, I have no idea whether that's true or not, and I don't know what it says about the future. Does Roberts really not want to kill off the New Deal and Great Society? Did he just think that this case was the wrong time to do it, whether for political reasons or technical law-related reasons? I don't know. On the other side: is Kennedy really okay with such a disruptive dissent, or would he have pushed for more moderation (or even switched?) if the conservatives had four other solid votes?
All of which is fine; that whole line of thought may be asking for more consistency (not just legal consistency; political consistency) than what we actually get. And, as with other politicians, there's no way to know what's really in their heads. It's all speculation. But I'll defend some speculation here, because the stakes are indeed very high.
Meanwhile, for right now, I think Lemieux is correct and this decision at least is a liberal win. I just can't figure out what, if anything, it tells us about the future.
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As far as understanding the Commerce Clause part of Roberts' decision, isnt this the key language:
ReplyDelete"Wickard has long been regarded as 'perhaps the most far reaching example of Commerce Clause authority over intrastate activity,' Lopez, 514 U. S., at 560, but the Government’s theory in this case would go much further."
So, in Roberts' eyes, as well as the 4 "conservative" justices who joined him in that part of the opinion, it was EASY to rule that ACA was outside the scope of the Commerce power, while leaving prior Commerce Clause jurisprudence untouched.
Moreover, as Roberts notes, the Court has long held that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” (A google scholar search for that quote in "legal documents" turns up 14,000 hits). So, I don't think we need to speculate about what Roberts was "really" thinking -- maybe he was just following precedent as he saw it. Sometimes, Occam's Razor applies.
PS: There have now been quite a few judges who have found the "broccoli argument" to be cogent. So perhaps those who criticize it as silly should be a bit self-critical. It is, after all, just an type of "slippery slope" argument, and the history of constitutional law is full of slippery slopes (see, eg, Monday's decision re: juvenile life sentences). Broccoli might be a bit of a silly example, but that does not render the argument itself silly.
I find scholar Steven Teles's explanation quite convincing. And he should know since he's a serious, empirical historian of the genealogies and evolution of conservative legal circles:
ReplyDeletehttp://www.washingtonmonthly.com/political-animal-a/2012_06/roberts_brand_of_conservatism038244.php
I'd add too, with more emphasis than you give it, that I continue to find Kennedy's motivations, in terms of both short and long-term strategy/perspective, more opaque than Roberts'.
DeleteSome background for the (like myself) baseball-illiterate: http://en.wikipedia.org/wiki/Brushback_pitch
DeleteYeah I'd have to agree with Lemieux, there's a great post on this at TNR by Jonathan Cohn and a (yet another) constitutional law professor that basically argues that robert's commerce clause was more of a "statement of creed" than any sort of groundbreaking legal argument. http://www.tnr.com/blog/plank/104455/did-roberts-gut-the-commerce-clause
ReplyDeleteAbout whether the broccoli argument is fair: It is totally 100% fair and reasonable to say people who argue providing more Americans access to healthcare will result in broccoli tyranny are saying that giving more American's access to healthcare will result in broccoli tyranny. The reason? Opponents of ACA repeatedly cited this argument in public countless times, in oral arguments before the Supreme Court of the United States of America and in writings from said body o' law where it was (Jarvis help me out?) cited something like 12 times. Oh and Scalia talked about it during oral arguments. So yeah it is okay to say that people are worried about broccoli tyranny when they said they were worried about broccoli tyranny a whole bunch of times.
Well, I think comments in some plain blog threads narrowed it down to something like 4 broccoli cites in the dissent (all broccoli tyranny), 3 in Roberts (mentioning and giving credence to brassicocratophobia {a word I just made up that I THINK should mean "fear of government by broccoli"}), and 5 in Ginsburg (all of which, I believe, point out the health benefits of eating broccoli. Either that, or they just throw cold water on the broccoli tyrrany argument.)
DeleteNow, I think Roberts' use of "broccoli" is actually giving credence to the slippery slope argument of the dissent, which is one of the parts of Roberts that I don't like so much, because it very clearly starts off explicitly stating the Court's role is not to judge whether the policy is a good one, which, I think, is the ultimate argument against the slippery slope argument. Slippery slopes work because gravity is constantly pulling things down. They DON'T work as legal or other arguments because we can easily argue that the force pushing in a direction would not push it that far. Gravity, however, would just keep pulling (at least, until the gravitational center of the earth, but that's very far away). The part about the broccoli tyranny argument that bothers me the most is where it insults liberals by really suggesting that liberals would push for such a policy. The argument, it seems to be, is both logically flawed AND insulting.
Except that slippery slopes are common in law. Once the Supreme Court recognized one exception to the warrant requirement, subsequent courts recognized others. Once the Court recognized a privacy right of married couples to use birth control, subsequent courts recognized rights to abortion and to have sex with persons of the same gender. Once the Court outlawed the death penalty for juveniles, subsequent courts outlawed life w/o parole for juveniles.
DeleteMoreover, governments in other countries and other times - on both the left and right -- have atempted to control citizens in a manner equivalent to a broccoli mandate; to argue that the US would never do that is both hubristic and contrary to the underlying rationale of why we have a limited government.
It seems likely to me that Roberts would have joined the other conservative Justices if they had been willing to only knock out parts of the law (perhaps the mandate and the Medicaid part that he did ultimately modify). But the other 4 were adamant about throwing out the whole bill. As Chief Justice, Roberts knew that he would own such a radical, activist decision and the ones that would follow it, and he just couldn't stomach it. So instead he opted to join the moderates in calling the mandate a tax and therefore letting it and the bill stand which does seem like a perfectly sensible legal reading. This leaves it up the voters to decide whether they like the ACA or not which is as it should be.
ReplyDeleteI've been reading through a lot of that ton of commentary, and I think what it amounts to is that this doesn't mean much for the future. All we learned yesterday is that there are currently 5 conservative justices who are hostile to at least some aspects of the New Deal and the legal regime it helped create. But basically we knew that already. Whether and how that fact matters for the future depends on the future composition of the Court, which depends on elections and appointments, which depend on politics. This case could be looked back on in 20 years as a step toward the glorious recovery of the Constitution in Exile, or as the high-water mark of judicial conservatism before things went back to post-1930s trend. Predicting which of those is more likely is indistinguishable from predicting the broad political tendencies of the next few election cycles.
ReplyDeleteThe puzzler is that the Commerce Clause argument is sounder than the 'really a tax' argument, yet Roberts chose the latter.
ReplyDeleteI suspect that Roberts is disturbed by the way the Commerce Clause has been stretched beyond what the few words in the Constitution seem to hold. Wickard v. Filburn is established precedent now, but it is pretty extreme. Precedent aside Necessary and Proper seems like a better fit for arguing the constitutionality of New Deal legislation, but that is not how it played out.
From this perspective you can expect a conservative justice to be hostile to anything that seems like an expansion of the Commerce Clause. The 'really a tax' argument does not do that. It lets the Commerce Clause get slightly hemmed in by appealing to the Tax power, which is not a sore spot.
At the same time Roberts really cares about the legitimacy of the Court, which is in danger of being seen by most as a bunch of politicians. His legacy required that he not deliver such a radical ruling on landmark legislation. Paradoxically it is a political act that prevents him from being branded as a politician.
This story is not inconsistent with the idea that he would have joined the other conservatives had they not insisted on throwing out the whole bill.
But, the Necessary and Proper Clause is not an independent source of federal power -- it merely permits the Federal govt to do what is necessary and proper for implementation of the enumerated powers. So the question here was: 1) Is health insurance interstate commerce? 2) If so, is the mandate a proper regulation of the insurance market? Five justices said no, and four said yes
DeleteI think that when the conservatives call that decision a "victory", what they mean is that they can use it the way that they did welfare reform before Bill Clinton took the issue away from them, or the way they use abortion today. There are many issues that conservatives champion that they have no intention of ever putting into statute. Actually accomplishing stuff does not motivate the base.
ReplyDeleteI like the argument the right has at this point in time, that Roberts made the call he did because he has epilepsy. A heritable condition that precludes him, and whichever of his children may manifest it, from getting health insurance in the open market.
ReplyDeleteThey fear that he allowed health insurance reform because he sees that it could be to his personal benefit. Must be why Scalia refused to read the damn law before ruling on it.
Healthcare will be at the center of this presidential election. Both parties present very different approaches to healthcare. The Democrats will provide healthcare for all American citizens, while the Republicans will leave several American citizens in the dust.
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