Monday, June 18, 2012

Partisanship and the Supremes

Kevin Drum makes what I think is a potentially good point – including the necessary caveat that we don’t want to pre-interpret a Supreme Court decision that hasn’t been issued yet – about what a Supreme Court decision knocking out the ACA might mean:
If the court does overturn the mandate, it's going to be hard to know how to react. It's been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can't think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock — but it was also a unanimous decision and, despite FDR's pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don't like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that's pretty explicitly chosen up sides in American electoral politics. 
Why do I say it's only a potentially good point?

Because there's another possibility here: that the SCOTUS conservatives don't care at all about ACA or partisan positioning, but instead really do want to return Constitutional doctrine to where it was before the New Deal.

In my view, it was the wrong interpretation of the Constitution then and would be wrong now...but it's not really just plain naked partisanship on the part of the Court's conservatives if that's what they believe. And there's of course reason to believe that a lot of people do believe it that theory of the Constitution.

However, if we get a 5-4 decision that doesn't challenge the New Deal but relies on fatuous broccoli stories to knock out part or all of ACA...yeah, that's pretty much as close as you can get to substituting the Supremes' partisan-derived policy preferences for the decisions of Congress and the president. 

14 comments:

  1. Don't get this at all... wouldn't returning SCOTUS jurisprudence to where it was before the New Deal be the ultimate partisan act and the fulfillment of what GOP congressional majorities and presidents have failed to achieve? If you're a modern conservative Republican, what's not to like about Lochner-era jurisprudence?

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    1. It would be ideological, for sure -- but not necessarily partisan.

      Indeed, relatively few Republican pols will say that they're against the sorts of things that would be knocked out by a real reversal of New Deal court doctrine. Maybe it's what they really want, but it isn't really what they campaign on or say. There's a significant gap between Ron Paul and mainstream conservatives even on these issues.

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    2. Drum is using "partisan" as a synonym for "self-interested," and for a situation in which the SC, like other contemporary public institutions, becomes (or finishes becoming) an arena for confrontational disintegration rather than for re-assertion and consolidation of broad consensus - a consensus merely on the right replacing a consensus above or aspiring to be above party. As NB points out, what's more bizarre is a perspective that imagines "partisans" getting together just to win elections, for the sport of it, without regard for ideological or programmatic content. Political scientists may seek a value-free and disinterested analysis, but political actors can't do so.

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  2. I think you give the Court's conservatives too much credit.

    Scalia doesn't even mention originalism in affirmative action cases, such as Adarand, because his ostensible convictions would produce a result that Republicans don't like. Scalia was on board for the federal government's right to imprison folks engaging in activity legal under state law, because that's what the GOP wanted in Raich v. Gonzales. And, as Alan Dershowitz pointed out in “Supreme Injustice”, "the majority justices decided as they did because of the personal identity and political affiliation of the litigants", in a manner that couldn't be reconciled with previous writings.

    It's not a theory of the Constitution we're seeing from the Court's conservatives, it's an effort to legislate the Republican Party's preferred policies from the bench.

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    1. Except that Scalia has often parted ways with the Republican Party's preferred goals, including re: the rights of criminal defendants, and perhaps more importantly, in rejecting due process limits on punitive damages (in contrast to the Court's liberals, who all seem to think that there are limits to punitive damages).

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    2. Yep, it's not a 100% thing, only is in cases of high salience to the GOP. That's why he cited Wickard v. Filburn in Raich, but decided yesterday that it was wrongly decided.

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    3. But, the punitive damages limits are of high salience to the GOP -- especially to their major donors. Limitations on punitive damages was in every Republican platform from 1992-2004 And, "law and order" is also a major issue (as you implicitly admit in making reference to Raich). Indeed, those are probably more salient to the GOP than defeating the individual mandate, which as many have pointed out originated in conservative think tanks. Universal health care is a major policy preference of the left, but that doesnt mean that defeating it is major policy preference (as opposed to a partisan talking point) of the GOP.

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    4. The GOP doesn't have policy preferences, they just have partisan talking points. (How else do you explain the Bush administration's policy record, or his near-constant 80-plus percent approval from "conservative Republicans", or the intense jihad against the Heritage Foundation's individual mandate).

      "Law and order" is indeed high salience, but no particular crim case that isn't Miranda has all that much widespread impact on the cultural consciousness.

      Scalia doesn't even mention originalism in affirmative action cases, such as Adarand, because his ostensible convictions would produce a result that Republicans don't like. We can anticipate that his opinion will read like a Wall Street Journal op-ed, right down to the mention of broccoli.

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  3. Where does the expansion of medicaid fit into this? (Why did that matter become a separate sub-issue?) A common assumption in commentaries is that the SC may uphold the law in total, knock it down completely, or only knock down the mandate, but they did deliberate on the medicaid expansion, right? What's supposed to come of that?

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  4. And what if the Court says, "The federal government has broad authority to regulate those who voluntarily enter into commerce. But we draw the line at regulating those who have not entered into commerce." That would overturn the mandate, but would not return to a 1930s interpretation of the Commerce Clause and would not be partisan, as Jonathan correctly defines "partisan."

    PS: Everyone seems to think that the broccoli thing is "fatuous." Yet, if so, then it should be easy to refute. No one thinks the gov't should be able to force people to eat broccoli. In contrast, many people think the government can force people to buy health insurance. It is perfectly legitimate to ask those people, "OK, what is the principle that allows the government to do the latter but not the former?" Now, I think the answer is pretty clear -- insurance (or, health care) is something that everyone wants, but the market for insurance is dysfunctional, and the federal govt has broad power under Commerce Clause to address failing and dysfunctional markets -- but just because I can come up with a good answer to a question doesn't mean that the question itself was facile.

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    1. It is easy to refute. The "force" involved in the mandate is simply a tax penalty for not purchasing something. This is not force as one would commonly use the term, but for some reason it's now the only term someone uses for the mandate. Largely irrelevant except for framing. Yes, it would be perfectly legitimate for the government to issue a tax penalty to anyone who doesn't purchase broccoli, just as it would be perfectly legitimate for the government to give tax credits to anyone who does buy broccoli. Those are functionally identical policies that people only think are different because they "feel" different - the government giving you something free versus taking something from you. But they're the same thing: behavioral tax incentives. If the government has the power to include behavioral tax incentives in the tax code, it *shouldn't* matter whether it's done with a tax increase or decrease. Conservatives have decided in the past couple years that it does. I think this is an angle they've basically conjured out of thin air because they're looking for a reason why the courts should strike down the law, and the only logical extension of a ruling striking down one behavioral tax incentive would be to strike down all of them. This is, of course, not what is going to happen.

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    2. I would tend to agree -- the Feds could certainly have extended Medicare to everyone, and had everyone pay a tax. It does seem functionally identical to me, but the case law might make a distinction. I don't know if it does.

      Also, I don't think that your argument gets at the the basis for the calumny aimed at the broccoli argument. And I note that the Solicitor General did not make that argument nor mine) when asked what distinguishes broccoli from health insurance.

      PS: Justice Kennedy acknowledges your argument at page 25 here; I wonder if it will show up in his opinion (if he writes one): http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-398-Tuesday.pdf

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  5. Hey, Ezra Klein has another nice article on rationalization and this topic:

    http://www.newyorker.com/reporting/2012/06/25/120625fa_fact_klein?currentPage=all

    And it's from the FUTURE!

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  6. JB: What would happen if the SC leaves the law mostly in place, but strikes down the mandate, and at the same time declares that an alternate model using taxes and vouchers would be OK? (Given that the Democratic majority needed to pass that alternate model is gone now...)

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