pageok
pageok
pageok
Small Contribution to the Debate Over the Constituitonality of Mandatory Health Insurance:

My small contribution is that the Supreme Court would be much more likely to invalidate elements of Obamacare on which there is no firm, direct precedent if the Republicans sweep the 2010 midterm elections than if they don't. In my view, it's no coincidence that Lopez, the first case to invalidate the a federal law on commerce grounds since the 1930s, came after the Republican sweep in 1994, and no coincidence that Raich backtracked on federalism at a time when neither the incumbent Republicans nor certainly the Democrats were spending any political capital on either limited government in general or federalism specifically, and indeed, when these issues seemed passe. The Supreme Court, institutionally, does not like to be exposed on controversial issues without any support from the political branches. The most ideological Justices (e.g., Thomas) may not care, but the swing voters do. So one thing I think we can be pretty sure of: if the Democrats still control the House and Senate in 2011, any constitutional challenge to health care reform will go nowhere.

UPDATE: Oh, and by the way, I wrote something for Cato in 1992 suggesting that there might be five votes on the Court to revive the Commmerce Clause to some degree ("given the changes in the ideological composition of the Court since 1981, Rehnquist might one day find himself leading a Court whose opinions take the requirements of the commerce clause seriously, with potentially salutary results"). At the time, in mainstream con law circles the notion that the Commerce Clause had, or would soon have, any bite at all was considered absurd, about as likely as the Supreme Court declaring Texas to be an independent republic. Ya never know.

einhverfr (mail) (www):
It's interesting. I was having a debate with Dilan Esper on another thread as to whether the Presidential Requirements could ever be justiciable in court. The debate ended up focusing on the breadth of the political question doctrine.

My view was that questions which would be otherwise political in nature, such as war powers, could come under Constitutional scrutiny if Congress acted in a decisive manner prior to a lawsuit being filed, but if Congress might not act, this would be seen as tacit support by the Court and hence a political question. In short, things which might be political questions otherwise might become justiciable if the result were a strong intra-government conflict which would admit to Youngstown-type analysis.

(That is separate from the birther suit queston which I thought might be justiciable only PRIOR to the election because afterwards, it would become Congress's responsibility via impeachment.)

However, your view takes this a step further, suggesting that the court would become less deferential if there was substantial political support for more strict readings of the Constitution.

That is an interesting thought.
9.21.2009 12:07pm
Arkady:

My small contribution is that the Supreme Court would be much more likely to invalidate elements of Obamacare on which there is no firm, direct precedent if the Republicans sweep the 2010 midterm elections than if they don't.


Mr. Dooley was right.
9.21.2009 12:13pm
DiverDan (mail):

The Supreme Court, institutionally, does not like to be exposed on controversial issues without any support from the political branches.


Yet it is precisely to avoid any such political influences on judicial decisions that our founding fathers decided, in Article III of the Constitution, to give the Judicial Branch the benefit of lifetime appointments (OK, during "good behavior", but come on, seriously, it usually takes a criminal indictment for the House to draft Articles of Impeachment for a Federal Judge). If lifetime appointments don't prevent our Judiciary from being influenced by politics on what the Constitution requires or prohibits, then we really ought to consider amending Article III to give Federal Judges term limits.
9.21.2009 12:14pm
einhverfr (mail) (www):
DiverDan:

Agreed, but I think a major part of the issue is that the justices realize that, to borrow an Old Norwegian rune-poem line, "the sheath is for swords."

But this is all missing the point, really. What would happen is that the Supreme Court, if they were afraid of undermining their credibility, would let the lower courts uphold the law and then deny cert, so that they would have the option LATER of rendering an opinion not bound by stare decisis on the exact same set of facts and legal theories. Unless the appeals court strikes down the law, there is NO WAY, the Supreme Court would wade into that unless they were ready to do so.

Judicial restraint doesn't JUST mean deferring to elected branches, but also not taking cases which undermine one's ability to settle issues later.
9.21.2009 12:21pm
Teller:
Why does that follow, Diver? One could be even more influenced (and less able to attract quality) w/ term limits. Because, among other things, you subjet termed out offices to regular and frequent political litmus processes of appointment.
9.21.2009 12:23pm
rick.felt:
Let me see if I understand this:

(1) The Supreme Court wants support from the political branches if it is to overturn controversial - or perhaps consequential laws.

(2) The Dems may pass Mandatory Health Insurance, and the GOP may retake one or both houses of Congress in 2010.

(3) A GOP sweep in 2010 will provide the Supreme Court with the cover it needs to overturn Mandatory Health Insurance.

Is that right?

Okay, two problems with this reasoning:

(1) How will the Court know that Mandatory Health Insurance requirements are the reason that the GOP won in 2010? Maybe voters just don't like Obama 'cause he's black. If a GOP sweep is fueled by racism, how does the sweep provide cover? Or, to put it more simply: how can the Court possibly know what an election result "means"? Did Obama's election "mean" that voters wanted to get out of Iraq? Sure. Did it "mean" that voters believed that Bush &the GOP had mismanaged the economy? Absolutely. But did it mean that the voters want Card Check or any other specific Obama proposal? Unclear. The same goes for a GOP sweep in 2010. Could be a lot of things.

(2) If the GOP sweeps in 2010, they have the power to pass bills that do away with Mandatory Health Insurance. Obama won't sign them, but I would agree that passing a repeal would constitute political cover. But what if the GOP does nothing? What if the GOP leaves things where they are in the hopes that the Court does the heavy lifting of eviscerating Obama's health plan? Once the GOP has power, couldn't failure to repeal Obamacare be reasonably interpreted as acquiescence to it? Could failure to act be considered the opposite of political cover for the Supreme Court?
9.21.2009 12:50pm
einhverfr (mail) (www):
My prediction is that appeals courts would not overturn the law and the Supreme Court would deny cert. That avoids the Supreme Court from having to rule on it at all....
9.21.2009 1:05pm
einhverfr (mail) (www):
This being said, I think that Bernstein's point might also be explainable for the same reason that lobbyists have so much power. People THINK about issues in ways which are framed by others. If politicians are talking about Constitutional interpretation, limited government, etc. this will certainly affect judicial thinking on the subject too just because we don't put our judges in ivory towers insulated from all other discourse.

In short, I think that social controversy increases judicial awareness as well as awareness of litigants. These then shape judicial thinking on issues. After thinking about it I don't see any way in which the Supreme Court sits down and says "well, there was a change in the will of the people." Rather I think that weighting of issues is a complex process which political controversy affects.
9.21.2009 1:20pm
wfjag:

What would happen is that the Supreme Court, if they were afraid of undermining their credibility, would let the lower courts uphold the law and then deny cert, so that they would have the option LATER of rendering an opinion not bound by stare decisis on the exact same set of facts and legal theories. Unless the appeals court strikes down the law, there is NO WAY, the Supreme Court would wade into that unless they were ready to do so.

Actually, einhverfr, this is why I would expect SCOTUS to grant cert, whether the lower court upheld or held unconstitutional ObamaCare (and, in particular, if the case involved any mandatory provisions that insurance be purchased or a penalty be imposed, or involved any government run plan that competed with private companies). Not long ago DC was packed by thousands, or tens of thousands, or hundreds of thousands, or over a million -- take your pick on the estimate, source for that estimate, and camera angle to support that estimate -- of people. In a highly divided and partisan time, the Justices will understand that SCOTUS has much more credibility than either the Executive or Congress. Accordingly, they understand that their decision, even if not liked, will be obeyed.
9.21.2009 1:45pm
Gordo:
I don't see how the "mandatory health insurance" requirement could be overturned on commerce clause grounds.

And generally, if a national health insurance program is in violation of the commerce clause, then we can say goodbye to Medicare while we are at it.
9.21.2009 2:14pm
Gordo:
Since Prof. Barnett disdains comments, it should be pointed out that, if I am not mistaken, the "mandatory health insurance" provision is not, in fact, mandatory, if a person is willing to pay an income tax penalty on their next tax return - just as it is not mandatory to keep your money in an existing IRA before you are 59 1/2 as long as you are willing to pay income taxes PLUS a penalty on it.

On a more general note, when emergency rooms and doctors are ready, willing, and able to turn away people who are about to die because they were supposed to sign up or buy health insurance and then didn't, then we won't need a mandatory health insurance requirement.
9.21.2009 2:19pm
Anon commenter:
If you want to make a legal argument (as opposed to speaking as a partisan), try referring to it as "healthcare" instead of "Obamacare." Any credibility that you have is eliminated when you speak like Glen Beck and others from the angry right.
9.21.2009 2:24pm
ShelbyC:
So people that say, "ObamaCare" don't have any credibility? How 'bout people that say "angry right"?
9.21.2009 2:28pm
Anon commenter:
ShelbyC:
First, I'm not making legal analysis.
Second, I'm not referring to everybody on the right. I'm speaking about the angry commenters, such as Glen Beck, who add nothing to our discourse. I am not referring to right leaning people who add thoughtful commentary.
9.21.2009 2:30pm
stevesturm:
I think Bernstein is right and it's just another nail in the coffin of a umpire who just calls them the way he sees them. Yeah, the pitch is right down the middle, but depending on the score and who's at bat, the umpire might just call it a ball.

Given that there is so much evidence that the Court makes it up as it goes along, why the continued worshiping at their steps? Why not start calling it like it is?
9.21.2009 2:31pm
Fub:
Arkady: wrote at 9.21.2009 12:13pm:
Mr. Dooley was right.
Sure looks like.
9.21.2009 2:39pm
egd:
rick.felt:

how can the Court possibly know what an election result "means"? Did Obama's election "mean" that voters wanted to get out of Iraq? Sure. Did it "mean" that voters believed that Bush &the GOP had mismanaged the economy? Absolutely.

Looks like all they need to do is ask a blog commentator. If you can discern that the last election "means" President Bush mishandled the economy instead of voters generally being upset with white men being president, then you have more perception than you're affording the Supreme Court.

And if the last election "means" that voters wanted us out of Iraq as opposed to wanting to raise taxes on the rich (or President Bush's position on a missile shield in Poland), then why shouldn't you be able to tell us what the next election will "mean"?

That aside, I do think there is a problem with the theory that the retaking of Congress by Republicans will change Commerce Clause interpretation:

The Supreme Court is made up of nine justices. I think three of those justices (although if Stevens retires it may muddy the waters) are reliably opposed to Commerce Clause restrictions on Congressional actions (at least any bills which will come before the Court, as they will likely have been passed by the current, Democrat controlled, Congress, and therefore not designed for such a challenge).

Of the other justices, Scalia and Thomas can be counted on to support Commerce Clause restrictions on Congress. Kennedy can be lumped in with the pro-CC group, assuming Scalia and Thomas don't go too far.

That leaves the three newest judges, and I don't think we know enough of their records to reliably say they will go one way or the other. It's likely that the situation will tilt 2-1 (favoring the CC), but I can't imagine what effect a Republican victory would have. Will C.J. Roberts politicize the issue? I don't know, and I don't think it's likely.

The only way I see this coming out is if Stevens retires, if the Republicans win the Senate, if the President doesn't get a new appointment through before January, if the Republicans stand up for a pro-CC justice, and if President Obama is willing to give ground.

Those are a lot of big "ifs".

So tell us Professor B., assuming a 5-4 split in the current court, which Justice do you think is going to vote based on the 2010 elections?
9.21.2009 2:41pm
one of many:
Anon; how do you distinguish the healthcare reform proposals of Obama from, well healthcare? Of course it is a little incorrect to refer to them as the healthcare reform proposals of Obama since Obama keeps changing his position, but it is even more akward to say The Democrat Healthcare Reform Bills Currently Heing Run Through Congress Which May Or May Not Have The Current Support Of President Obama But Are Based Upon Proposals To Reform Healthcare He Has Made, and Obamacare also sounds less partisan than the accurate phrase. If you find the term Obamacare offensive then come up with an alternative term which is accurate. It'
s not as if the people who are opposed to Obamcare are all opposed to healthcare, I'm sure most of them are perfectly willing to accept the legitimacy of putting Band-Aids on cuts.
9.21.2009 2:44pm
yankee (mail):
At the time [1992], in mainstream con law circles the notion that the Commerce Clause had, or would soon have, any bite at all was considered absurd, about as likely as the Supreme Court declaring Texas to be an independent republic. Ya never know.

It's still about that absurd, unless the subject is violence against women. Even Lopez only required Congress to make some cosmetic changes to the statute.
9.21.2009 2:54pm
einhverfr (mail) (www):
Anon and One Of Many:

I refer to Obamacare as the platform that Obama adopted as written by the House. It isn't the only health care reform plan out there, but it is the most ambitious.

Look, if the laws were what Obama promised on campaign, I would be all for them. However, the laws are closer to what I was afraid the McCain proposals were going to turn into (castration of state health insurance regulations, etc and the general replacement of state regulations with federal ones).

My own thinking is that we will see at most a VERY watered down approach coming out of this system. I know a lot of Health Care Reform proponents who are very unhappy with the the Senate bill because they see it as too weak (I could live with the Senate bill-- the House bill needs to be killed though).
9.21.2009 3:03pm
ChrisatOffice (mail):
Real Obamacare would include a public option, so that no one would be 'forced' to purchase insurance from private companies.
But as Obama will not be able to get a public option through in the face of opposition, we have the result of mandating private insurance.
Of ocurse, without that mandate, we cannot ask insurance companies to take on people with pre-existing conditions - as they might wait until they need the insurance. So then, we would end up with ... oh, yeah, tort reform.
9.21.2009 3:12pm
einhverfr (mail) (www):
Something I posted on Prof. Kerr's thread.

I wonder if the government would even defend the mandate on commerce clause grounds at all. It seems to me that the obvious case is

1) This is spending for general welfare (health care available to all Americans, some of which is available regardless of ability to pay)

2) It is accompanied by appropriate taxation.

Hence it is within spending and taxation powers of the Constitution. No interpretation of the Commerce Clause necessary.

Such an interpretation would also save Medicare.

And it would avoid questions of whether interstate highways programs are allowed under either commerce clause or post office clauses under the Constitution.
9.21.2009 3:25pm
Jon Roland (mail) (www):
We would not be arguing about "is" and "ought" if we say "legal practice is what the courts say" and "the law is what the Constitution says". Then the word "ought" would be used in a statement like "legal practice should stop being in conflict with the law". Is that so difficult?
9.21.2009 3:31pm
frankcross (mail):
One man's "ought" is another man's "ought not." We must strive to avoid confusing ourselves with omniscient Gods. While everyone has a right to their own "ought," they shouldn't confound their opinion with certain truty.
9.21.2009 3:36pm
badlaw (mail):
Real Obamacare would include a public option, so that no one would be 'forced' to purchase insurance from private companies.
But as Obama will not be able to get a public option through in the face of opposition, we have the result of mandating private insurance.


IIRC, the have-insurance-or-be-penalized stipulation was already within the bill, even when the public option was on the table.
9.21.2009 3:36pm
rick.felt:
Looks like all they need to do is ask a blog commentator. If you can discern that the last election "means" President Bush mishandled the economy instead of voters generally being upset with white men being president, then you have more perception than you're affording the Supreme Court.

And if the last election "means" that voters wanted us out of Iraq as opposed to wanting to raise taxes on the rich (or President Bush's position on a missile shield in Poland), then why shouldn't you be able to tell us what the next election will "mean"?


You can do exit polling if you want to see which issues resonated with voters. Less scientifically, you can see which issues were the key issues that the candidates campaigned on.

Incidentally, I agree somewhat with the assertion that the 2008 election results can be interpreted as a mandate to raise taxes on high earners. The economy was a big issue, so I think Obama was given a mandate to do significant economic tinkering, of which tax hikes on high earners could be a part.

But we don't disagree that much. My point is that it's hard to draw more than the most facile conclusions from electoral results, so I don't see how the 2010 election results, whatever they are, will give much cover unless all the exit polls say "mandatory health insurance sucks nard." I imagine that what will be motivating GOP voters will be a pastiche of anti-Obama issues.

If you want to make a legal argument (as opposed to speaking as a partisan), try referring to it as "healthcare" instead of "Obamacare."

I'm open to not using the "Obamacare" label, but you're going to have to come up with a superior name for it, and "healthcare" isn't one. "Healthcare" is a general term for the class of services that get from a physician, dentist, nurse, physical therapist, podiatrist, optometrist, etc. "Obamacare" (or "Medicaid" or "Medicare" or "SCHIP") is a government program designed to pay for healthcare.
9.21.2009 3:41pm
_Jon (mail) (www):
So would an amendment that limited the SC Justices to say .. 9 help with the larger issue? That is, the justices seemed to be swayed by politics due to previous threats of stacking the court. Would a stated limit help release that sway?
9.21.2009 3:43pm
one of many:

I wonder if the government would even defend the mandate on commerce clause grounds at all. It seems to me that the obvious case is

1) This is spending for general welfare (health care available to all Americans, some of which is available regardless of ability to pay)

2) It is accompanied by appropriate taxation.

Hence it is within spending and taxation powers of the Constitution. No interpretation of the Commerce Clause necessary.

Such an interpretation would also save Medicare.

And it would avoid questions of whether interstate highways programs are allowed under either commerce clause or post office clauses under the Constitution



Would require a reinterpretation of the general welfare clause of the preamble. Current interpretation is that the preamble only provides justification for the powers enumerated in the rest of the document (see Jacobson v Massachusetts). Not that it couldn't be done, but the commerce clause is a better hook to hang this on.
9.21.2009 3:51pm
einhverfr (mail) (www):

Would require a reinterpretation of the general welfare clause of the preamble.


Actually, I was thinking of this, from art. 1, section 8:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;


Note that the taxation power was broadened by the 16th Amendment.
9.21.2009 4:00pm
DavidBernstein (mail):
I'm going to stop using the word "the" because Glenn Beck used it liked 90 times last night.
9.21.2009 4:12pm
John T. (mail):
Real Obamacare would include a public option, so that no one would be 'forced' to purchase insurance from private companies.


Ah, the popular "Let Obama be Obama" meme. Remember that one from Reagan.

So many people heard the President speak when running for office and disagree on what he really meant or even what he said. I've seen both the liberal wing of the Democratic Party and its conservative wing use the same Presidential health care speech to argue that Obama really supports opposite things.

I don't know that you can say he had a mandate for anything. His winning the nomination for Democratic candidate was arguably a mandate against the insurance mandate, since he criticized the mandate so harshly in the Democratic debate, and that seemed to be his sharpest policy point of contrast with Hilary.

The campaign ads of Obama that he ran most often argued strenuously against the (economist and me-approved) plan to replace company-provided health care with an individual tax credit. Lots of ominous warnings about "taxing your company health care for the first time ever." So that does mean the tax on health care coverage in the Baucus bill has a mandate against it?
9.21.2009 4:18pm
one of many:

Actually, I was thinking of this, from art. 1, section 8:


Then you get into the apportionment requirement which requires direct taxes to be apportioned upon relative state populations (art. 1, section 9 No capitation, or other direct Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.) The 16th amendment makes an exception for taxes on income, but I don't see how money not spent can be considered income.
9.21.2009 4:42pm
SuperSkeptic:
Relevant links to Mr. Dooley or Mr. Dunne please.
9.21.2009 4:52pm
einhverfr (mail) (www):
One of Many:

Under your theory, tax credits in general would be Unconstitutional. I have a hard time understanding that in the context of the 16th Amendment.

If there is a penalty to one's income tax (or better yet, a default surcharge with an equal credit for having insurance), it is hard to see that as unconstitutional by itself, unless that is outside the bounds of every other enumerated power. However, the power to spend money on general welfare would seem to cover this.

So it seems like we are trying to debate whether the limitation on army funding being limited to 2 years governs the Navy.....
9.21.2009 4:52pm
SuperSkeptic:
Just the election returns quip? or something more substantive?
9.21.2009 4:55pm
one of many:
einhverfr

if this were set up as a tax credit then it would pass muster. A default surcharge is different, it would be a direct tax on being a person and not on income and would have to be apportioned which would mean it couldn't be attached to the income tax. Likewise a tax penalty based upon being a person instead of upon income would be considered a capitation.

A tax credit for the act of being insured is less likely to pass congress because the rules for scoring bills in congress consider tax credits to be expenditures which would mean a tax credit would be seen as congress spending money. Further a tax credit wouldn't meet the stated goal of foring the freeloaders to pay, the 2% of healthcare bills which are not paid are almost entirely not being paid by people who pay no income tax currently.
9.21.2009 5:23pm
Avatar (mail):
Of course the government could change the income tax such that having no insurance coverage would have a significant tax penalty. On the other hand, if you haven't noticed, a significant number of people who don't have insurance, have no insurance because they can't afford it; there's a high correlation between "uninsured" and "unemployed" (or just "poor"), and those people already don't pay income taxes as it is, generally speaking.

Nor would linking reductions in EITC aid to having no insurance prove very popular...
9.21.2009 5:48pm
ChrisTS (mail):
BadLaw:

IIRC, the have-insurance-or-be-penalized stipulation was already within the bill, even when the public option was on the table.

I believe you RC. My comment was in response to the complaint that people will be forced to buy insurance from private companies.
9.21.2009 5:59pm
ShelbyC:
Wait, would the tax penalty apply to people earning < $250,000 per year?
9.21.2009 6:42pm
one of many:
ShelbyC,

President Obama made clear yesterday on ABC's This Week, it will not be a tax it will be a levy and levies are not taxes. He;s a con law prof as well as president of the US so he should know what he is talking about. As far as us mere mortals go this is a tax, but Obama is a constitutional law scholar after all. I didn't want to being this up because it seems too much like snark to me but you can find the interview here if you want to see it.
9.21.2009 7:26pm
ShelbyC:

President Obama made clear yesterday on ABC's This Week, it will not be a tax it will be a levy and levies are not taxes.


Huh. Just re-read einhverfr's cite of the taxation power and didn't see anything in there about Congress having the power to impose levys.
9.21.2009 7:39pm
one of many:
well yes Shelby, but that mistake should not be held against him, I'm sure plenty of people are confused and think that a levy is a tax. In fact I think that the people who wrote the US Constitution would be surprised to find out that levy isn't a tax.
9.21.2009 11:07pm
Jeff Walden (www):
I'm going to stop using the word "the" because Glenn Beck used it liked 90 times last night.


David, are you sure you didn't mean, "I'm going to stop using 'the' when I speak because Glenn..."? You're slipping already!

SuperSkeptic, I assume the Dooley reference is to this quote:

"No matter whether the country follows the flag or not, the Supreme Court follows the election returns."
9.21.2009 11:31pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.