This isn’t the place for legal commentary. For that go to SCOTUSBlog or The Volokh Conspiracy. However, I feel perfectly well qualified to give political opinions.
The Pelosi-Reid Congress and the Obama Administration have placed Solicitor General Verrilli in an absurdly untenable position. He must simultaneously argue that the penalty for not purchasing the mandated healthcare insurance is a tax (for legal reasons) and is not a tax (for political reasons). Additionally, he must argue that the Commerce Clause grants the Congress limitless power to compel or prohibit individual conduct and that it’s necessary and proper. It’s not the SG’s fault. He’s doing the best he can but he’s in a difficult position and the case is much, much more difficult that commenters in the media and blogosphere had thought just last week.
It didn’t need to be this way. The federal government has been running the VA Hospital System, a nationalized healthcare service nearly as large as the British National Health Service, for more than 80 years and the Indian Health Service for more than a half century. There is little doubt that they pass constitutional muster. The reasonable conclusion is that Medicare, Medicaid, or, indeed, the entire healthcare system could have been converted into a full-on nationalized system.
Similarly, there is far less argument that the federal government could have implemented a single payer healthcare system than it is that the individual mandate is constitutional.
We have arrived at this contretemps because the Democratic Congress was desperate to enact some form of healthcare reform while the party held both houses of Congress and the White House, it didn’t want to antagonize prospective adversaries (like the insurance industry, physicians, or the pharmaceutical industry), and it wanted to avoid the political baggage of “socialized medicine”. The prudence of that strategy now hinges on the decision of the Supreme Court on the case that was argued today.
I am reading an increasing number of articles claiming that the Supreme Court will decide the case along ideological or even along party lines. To believe that you must believe that
- The justices on one side of the ideological/partisan divide are willing to violate their oaths of office for ideological advancement or partisan gain.
- The justices on the other side of the etc.
- The justice on both sides etc.
If that is the case, the Supreme Court can no longer perform its function as a check on executive or legislative power and is merely a rubberstamp; it should be abolished. I think that’s wrongheaded and borders on being seditious. I think that all of the justices in the Supreme Court genuinely do their level best to decide cases brought before them on their legal merits. There is, however, a serious, non-trivial disagreement about the nature of U. S. law and government among the citizenry and that includes jurists. Rather than bad faith I believe there is serious disagreement that should not merely be dismissed.
The problem that faces the federal government is that it is the government of all of the people and when opinion is as divided as it is today that is quite difficult. It is not enough for the president to be the president of those who voted for him. Being the president of all of the people appears to require a skillset that is not in evidence and may be beyond human capability. I think of DeGaulle’s wisecrack “How do you govern a country that has 150 different kinds of cheese?”
The media who were so confident are now responding with something like panic, cf. Jeffrey Toobin:
“This was a train wreck for the Obama administration. This law looks like it’s going to be struck down,” Toobin said on CNN. “All of the predictions including mine that the justices would not have a problem with this law were wrong.”
I think a little introspection about why they were wrong is in order. It’s not because they underestimated the ideological rabidity of some of the justices of the Supreme Court. It’s because they overestimated the obvious rightness of the position they themselves held. That you cannot make an omelet without breaking eggs will probably not prove to be an adequate argument.
I still have no idea how the Court will decide. I think it’s looking increasingly likely that the Court will rule on the merits rather than kicking the can down the road and determining that the suits are premature. I also have no idea of what you can divine about the final decision or the vote tally based on the oral arguments. We might do as well reading the entrails of oxen or observing the flights of birds.
Of course it’s party.
” I think that all of the justices in the Supreme Court genuinely do their level best to decide cases brought before them on their legal merits. ”
I do not. Many lifetime judges, federal and SCOTUS, are married to politicians and activists. They hobnob with politicians and political activists. They suddenly become impartial in court? I dont think so. They are chosen for a set of ideological beliefs. Many of them engage in activities that cement that ideology. I think the best you can say is that they interpret the law within a fairly rigid set of political beliefs to which they have chosen to adhere.
Steve
I don’t believe that they’re immune to politics. But I don’t believe that party politics is dispositive, either.
I think you’re being far too dismissive of the sincere difference in opinions. It isn’t that the people who disagree with you are idiots. That’s far too easy. They have reasons and their reasons make every bit as much sense to them as yours do to you.
No doubt their arguments make sense to them. But they make sense because they’ve gone looking for intellectual support of pre-existing prejudices, predispositions, etc… They see what they want to see, what they expect to see. First comes the conclusion, only later the supporting evidence. Emotion makes a servant of reason. Pile on Harvard law degrees and you still have the essential equation, unchanged.
Understand that I have no idea whether the mandate is constitutional. Obviously if the Supremes decide it’s not, then it’s not.
But that has no bearing on my opinion of how people reach conclusions. I think the best chronicler of human thought processes was an Anglican deacon by the name of Charles Dodgson.
I’ve read these synopses. The Solicitor General has been put in terribly contradictory positions the past couple of days. Perhaps the judges see what they want to see, but I can see that the government’s case is a mess, and I’m a layman.
I think you are way too lenient on the SG. Here is what I suspect happened. This issue has been bouncing around district and appellate courts across the country. The Adminstration no doubt put some of its bests lawyers on it, and for several years they have been arguing the complex net of issues in briefs and courts many times over. They’ve been fine-tuning their arguments, improving with time, becoming more limber with difficult points.
Now, we are at the Supreme Court, and arguing for the Administration is the prestige job of the SG. And no doubt he is one of the best and brightest, he doesn’t have the practiced experience of those now whispering behind his back that “I could have done better.”
I’m waiting for H. Bartow Farr III, summa cum laude, Arizona State.
Dave- I don’t think they are stupid. Far from it. What I am arguing is that they are not impartial interpreters of the law. That is true for all of them, not just the ones with whom I might agree. I cannot read minds, so I don’t know if they are sincere. I do know, judged by their actions, that their political affiliations are very important to them.
Steve
Steve
Let me put my position another way. I don’t think that the justices of the Supreme Court call their precinct captains to ask how they should decide cases. William Demarest is not sitting in the courtroom chewing on a cigar.
Are they all zealous advocates for their own views? Yes. In part that’s human but it’s also the product of their training. That’s why I think that advocates should go to advocate school where the emphasis is on zealous advocacy and judges should go to judge school where the emphasis is on impartial adjudication. But the system we have is the system we have.
I still think that all of the justices are doing their best to base their judgments on the law. Certainly their views affect that process but I don’t believe they control them and you can just figure out which party they belong to and that’s that.
I think I’m with PD. although I have to confess most of my efforts the last 48 hours have been on the pros and cons of a Diamana ahina 72 gram shaft vs an Aldila RIP 65 gram shaft in my Titelist 910D3 driver.. (suggestions welcome)
Hence, I’ve only heard tidbits of the arguments. Seems to me Obama Care is getting slaughtered on both tax vs regulated payment and purchase mandate arguments.
But hey, I made eagle on #15, so who gives a damn?
I haven’t been for a while, but I used to visit the medical blogs. One doctor reluctantly supported the PPACA because one of his patients was a young college woman who was about to fall off her parents’ insurance.
She had a severe case of Chrohn’s and was sporting a colostomy bag. She needed another surgery.
You can’t pick your kids, so far, any better than you can pick your parents.
I think one of Dave’s points needs emphasize, the Constitution generally places more restrictions on certain powers than others. From most restrictive powers to least:
Criminal Punishment
Regulation
Spending
There is very little restriction in terms of spending. As Dave points out, the feds could create their own healthcare insurance program, expand Medicare or Medicaid. Obviously, there are political problems with these, both in terms of taxation and fear of government quality services. So, we tend towards “regulation,” forcing others to do indirectly, what sometimes might be more efficiently directly.
Somewhere between spending and regulation is probably a federal program that conditions money grants to the states (spending power) to make the states do what the federal government can’t or won’t do itself. Its not a Constitional problem if Massachusetts adopts Obamacare; its probably a minor one if the federal government coerces Alabama to adopt Romneycare.
Doesn’t that argument work better on the fouth day, when the Court is to hear arguments about Medicaid expansion?
A couple of points:
First, this is actually something I see a lot in the intelligence community who are supposed to be impartial, unbiased arbiters of “facts” and “truth.” Well, that’s a nice ideal to aspire to, but the vast majority of people fall short, including me for most of my career. I’ve progressed in the sense that I have a lot more introspection, understand my biases better, and am more appreciative of uncertainty and ambiguity (both of which are a lot more pervasive that most people think). In short, people are people and bias is part and parcel of the human condition.
Of course, we expect better of our judges than the “common man” (no sexism intended), particularly those on the SCOTUS. We expect them to be as impartial as possible. Appointment to the SCOTUS requires passing through a political process, one that is currently highly ideological and partisan, and so we should not be surprised that this process would affect those who make it to the high bench.
However, what does impartial really mean? Can “reason” conquer ambiguity? After all, cases before the SCOTUS typically contain a lot of ambiguity – if they didn’t they would be settled at a lower level. Is the constitutionality of the individual mandate really all that clear? I would say no. So what, in the presence of ambiguity, is an impartial decision? I don’t think there is an ultimate “truth” here or one answer that is “right.” Consequently, and decision is going to contain no small amount of justification based on where one sits.
Regarding the decision itself, I would like to see the mandate struck down. I don’t object to the mandate itself, my concern is how this decision would be used in the future to justify onerous policies. The PPACA is, in my opinion, a bandaid for a broken system that will end up compounding the errors of that system, not correcting them.
Over at OTB Ben said:
I agree with that except I would replace single payer with any system that’s sustainable, fair, and consistent with good public health.
There is something that interests me more then the court. It is that the GOP has given up on having a health plan of its own if Obamacare is repealed. Their Senate leader wants nothing beyond a medical liability law and purchasing across state lines.
http://www.bloomberg.com/news/2012-03-26/supreme-court-case-won-t-end-republican-obamacare-attacks.html
As I’ve been saying for the last three years, there will be only one bite at the healthcare reform apple for years to come. Poisoning the well. Wasting it on something as feeble as the PPACA amounts to legislative malpractice.
On the perversity of homo politicus, or I know I said that then, but now I’m saying this:
Orin Kerr
Blues and Buffs. Blues and Buffs.
I think PD is right about the SG. This is not, after all, the first time the Administration has had to answer questions about the mandate’s limiting principles in court, and they’ve won the majority of prior hearings. For him to blow it in front of the Supremes – well, if I were in his shoes I would be feeling rather bad about myself right now.
One other thing. While I disagree with you somewhat about the overall merit of the PPACA, I couldn’t agree more about this:
No matter what the details of the healthcare plan that got voted on in 2009, passing it meant there would be a tidal wave of resistance. Remember, Wyden-Bennett had mandates too, and simply for cooperating with Wyden on that stalled piece of legislation, Bennett got thrown out of office.
Perhaps such resistance means Congress and the President should have done nothing at all, or should have focused solely on costs. I don’t agree, but I can see the logic of those opinions.
Scotusblog has kindly condensed audio highlights from the arguments of the past two days in two posts:
Tuesday
Monday
Yeah, and? This has pretty much been the view all along. Even if you do something NOT to have an impact on inter-state commerce the Supremes ruled you ARE having an impact by NOT participating so they can STILL regulate you.
The idea that there are any binding constraints is a joke.
Are they compulsory? That seems to be the sticking point–that is the mandate part.
You’ve just now come to this conclusion?