Sunday, October 17, 2010

Sunday Question for Liberals

How scared are you about the possibility that the Supreme Court will (1) knock out ACA, and (2) return to pre-New Deal interpretations of the powers of the federal government?

And, the big question: should that happen, what kinds of political consequences would you expect?


  1. I don't think they'll declare the individual mandate unconstitutional and/or overturn the ACA. If the court's conservatives were truly "Constitution in Exile" ideologues -- i.e. believers in the theory that the New Deal, and everything it's given rise to since, was unconstitutional -- there'd be some danger of this. But I think judges like Roberts and Alito, who are obviously sympathetic to that theory (and should have been vigorously questioned about that fact in confirmation hearings -- thanks for nothing, Pat Leahy), are ideologues of convenience, i.e. they adhere to right-wing theory only as long as it produces right-wing policy outcomes. When it doesn't, they forget the theory and find some other reason to arrive at the outcome. So, for instance, state's rights are all-important, until a state moves to the left of the feds on something, and then suddenly these guys rediscover federal supremacy.

    Similarly, while they might object in some abstract way to the broad interpretation of the Commerce Clause that enabled the welfare state, and might like to use an ACA case to cut back on this, they will know that striking out the mandate brings down the whole structure, and that this will just increase the pressure for single-payer. I don't think they're stupid enough to believe that America will just happily go back to the old system and forget that it ever wanted health-care reform.

    Having said that, it could be that when the actual case is heard (if it is; I'm inclined to think that if appellate courts uphold the mandate, then the Supreme Court will just deny review and let it stand), it's entirely possible that Robert and Alito will vote to strike down the mandate and will issue some dissent reminding everyone what the Commerce Clause meant in 1789 and was supposed to mean for the rest of time. But I think they'll do this only if Kennedy has come out (internally) for the mandate and given them the loss on this that they basically want. So: a 5-4 decision upholding the mandate, the righties get their Federalist Society song and dance on the record, and everybody goes home happy.

  2. Well, obviously I wouldn't be happy. But one of two things will happen. The Roberts court will be consistent in ruling against the government and there will be a backlash from conservatives, since they only actually advocate "small government" when it fits their ideology. Or they'll become so nakedly partisan that the whole process of nominating judges will bog down into constant gridlock. (We're almost there as is.) I'm not sure how much of a backlash that would cause, but it would be pretty bad for the country. I'm not sure it's all that democratic to have Anthony Kennedy single-handedly decide how the most serious issues we face are implemented, if at all.

  3. I mostly agree with Jeff and BP. To your point (2) I'll add that there will be economic consequences as well. So many of New Deal reforms have been undone since Reagan. Further regression in the current weak economic environment could thrust us into a Depression from which there will be no recovery.

  4. I don't think either Roberts or Alito are that kind of conservative. They're happy with a strong gov't (run by business interests). The individual mandate is about the only part of ACA that the insurance companies like, so I suspect it will be upheld. Similarly for #2.

    Roberts and Alito may well end up being considered traitors to the Conservative movement.

  5. I'm actually quite frightened of the ultrapolitical SCOTUS Right. After Bush v. Gore and Citizens United, I'm quite sure that stare decisis and the judgement of the legislature are quite irrelevant to the Five Tyrants.

    I also think Obama doesn't have the gall to countermand a SCOTUS ruling (i.e. "I am instructing the FEC to disregard the recent campaign finance ruling by the SCOTUS, as the Court exceeded its authority and nullified a duly enacted, bipartisan-supported act of Congress without a proper Constitutional justification").

    The only plus side is that Obama's centrist nominations so far may convince Kennedy to go fishing in his remaining years. Replacing HIM with, say, Goodwin Liu, could save the country.

  6. I'm worried, not about an outright overturn or return to 1890, but about the continued chipping away at the effectiveness of progams liberals like (e.g. banning voluntary local school desegregation programs -- now that's federalism at work). I agree with Jeff et al. that they probably won't overturn the individual mandate right now, but if there's anything you can say about the Supreme Court it's that they're in it for the long haul (Bush v. Gore partially excepted). Fifteen years ago it was pretty hard to imagine that the Supreme Court would ever strike down a local gun law on the grounds that the Second Amendment guaranteed an individual right to firearms. Just wasn't in line with any decision they'd ever made. Now that's the law of the land. Roberts and Alito are sixty and younger. You can bet they're aware of how a landscape can change over their next twenty years on the bench, and acutely aware of what trees they can prune themselves.

    I'll stop before I hit "block that metaphor" territory. But Michael -- can you seriously imagine a Senate in the next two to six years that's willig to confirm Goodwin Liu to the Supreme Court? Even to replace Ginsburg, let alone Kennedy. Last I heard, this Senate -- substantially more liberal than what we'll have next year -- hadn't been able to get him confirmed to -- which was it? -- the 9th Circuit Court of Appeals?

  7. (1) Moderately and (2) not very. (If I had to bet, I would bet against the SC striking down ACA. But on the other hand, I wouldn't be shocked if they did.)

    I think one point that's worth making is that if they strike down ACA, my understanding is that they probably wouldn't strike down the whole bill, but just the individual mandate or whatever else they found constitutionally objectionable. But if the individual mandate is eliminated from ACA, and the rest of the bill is allowed to stand, that would effectively mean the end of the individual insurance market in this country. (With insurers forbidden from discriminating by pre-existing condition and the mandate gone, individual insurance would enter a death spiral as rates soared.) Which would mean that there would almost certainly be some other legislation to fix this problem. And I very much doubt, even if the government is under complete Republican control, that that legislation would be to repeal ACA's insurance reforms and return to the 2009 status quo. Rather, I think it would either be some reworking of the individual mandate to meet constitutional muster (if the Democrats are in control) or some kind of government reinsurance (if the Republicans are in control).

    Also, at the moment I think that conservative activists still care a great deal more about the Supreme Court than liberal activists. However, if ACA is struck down, I think that would almost certainly change.

  8. Near term political consequences would include the formation of a 3rd political party, one which would mirror the Tea Party's composition, thus taking in 20% of Obama's 2008 voters, and overall composed 20-40% by current Democrats and Independents. It would be small government focused, and very narrowly focused it would be... simple ideas leading to broader ranges of support.

    Further, if things stay on an unacceptable trajectory, and the new party's supporters remain unappeased, there could very well be a constitutional convention, or at least some discrete amendments. If governor's mansions and state legislatures start flipping over as they appear to be, and state budgets continue to come under extreme pressure, that would be the final impetus for this movement.

    The SC is the least of the Left's worries. They matter only if they're relevant, and in a tumultuous environment, their irrelevancies might be simply addressed.

    The times they are a changin'.

  9. Not and not - well, at least presuming a Republican president isn't given the choice of picking Justice Kennedy's successor.

  10. Not very concerned about either, but especially not #2. This SCOTUS has just authorized too wide an interpretation of the Commerce Clause. Yes, they've usually done that to protect conservative social issues (like the war on drugs), but the logical gymnastics they'd have to jump to walk that back would be too much- especially since Scalia seems fairly disinterested in such a roll back.

    #1 is a little harder. You could write a pretty narrow opinion exing out the mandate while leaving most Commerce Clause jurisprudence intact. But Kennedy and even Scalia don't seem very interested in Tea Party buggaboos, if anything, they're more corporate conservatives, which ought to protect the ACA.

    If I'm wrong, the consequences for #1 will depend on the politics of the time. Any kind of functioning legislature (Republican or Democrat) could pretty easily replace the mandate, but we don't have that now, so who knows. It's harder to predict #2, since we've always lived under New Deal reforms. But I doubt it will match some of the...giddier predictions of electoral overhall. After all, we lived without the New Deal reforms from the Slaughterhouse cases on, and we got little of that activity then (nor can I see how a change in Constitutional Interpretation that kneecaps "big government" will lead to a "small government" Third Party on the center-left).

  11. Jeff, if the conservatives on the SC manage to muster enough of the nine to get rid of the veto and also role back federal power to the pre-New Deal level, than wouldn't single-payer be hard to implement on a federal level since it might be declared unconstitutional? If Congress passed a Medicare for All law than I'm pretty sure that conservatives would attack it as socialized medicine. I'm not really sure how the courts would react but I imagine enough would go for conservatives in order for a rightist Supreme Court to knock it down like they did with the income tax. Than we would need a constitutional amendment. It took nearly twenty years to get an income tax amendment in the Constitution. Single-payer could take longer.

  12. That's a lot of hypotheticals, Lee. In practice, members of the Court would like to do a lot of things that they don't end up doing. The conservatives, for instance, would like to have overturned Roe v. Wade a long time ago -- conservative legal writing is full of denunciations of it, not only as bad/immoral policy but as poor jurisprudence -- but they haven't. In the end, they're aware of public opinion and not eager to invite a huge liberal backlash. I think the same considerations apply here, along with the fact that John Roberts' insurance-industry buddies will take him golfing at some point and explain to him that the industry likes the individual mandate and faces desctruction if it's overruled.

  13. Wow!
    A constitutional amendment to expand Medicare? It took a vote of congress to create it. Why would a constituional amendment be needed to exand it?
    Requiring individuals to find a way to pay the full cost of insurance is admittedly a bad idea.

    A much better idea is for people to pay while they are working so they can be covered when they can't.

    This is not an alien concept. It is a model has existed for years in multi-employer plans.

    A single payer plan built on that model would look a bit like the German system.

    Our current system distorts competition in the economy, inhibits the agility of the American enterprise, the creativity of small business, the mobility of the American worker, and the delivery of care to the American patient.

    Whether an adverse Supreme Court decision would force a rethinking of our approach to health care and health care financing is quite another question.

    God forbid that it would take another 20 years.


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