Archive | June, 2012

Barack Obama’s Ironically Prescient Speech Opposing John Roberts’ Nomination to the Supreme Court

In light of Thursday’s decision upholding the individual mandate, then-Senator Barack Obama’s 2005 speech opposing John Roberts’ nomination to the Supreme Court seems ironically prescient:

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge…

The problem I face… is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult….

The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak….

I want to take Judge Roberts at his word that he doesn’t like bullies and he sees the law and the Court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.

The bottom line is this: I will be voting against John Roberts’ nomination. I do so with considerable reticence.

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New Poll Shows that Majority Disapproves of the Supreme Court’s Health Care Decision

A new Newsweek/Daily Beast poll of likely voters shows that 50% disapprove of the Supreme Court’s ruling upholding the Affordable Care Act as a whole, compared to 45% who support it. Survey respondents disapprove of the decision to uphold the individual health insurance mandate specifically by a larger 49-38 margin.

This is a significantly smaller anti-mandate majority than the 65-70% who said they wanted the Court to strike down the mandate in polls conducted before the decision was handed down. The difference may well be the result of the fact that a substantial minority of the public will tend to assume that any decision the Court makes is likely to be right unless they have very strong personal feelings on the subject.

Nonetheless, this result undermines the notion that the ruling will be a boost to the Court’s legitimacy or that its public image would have suffered had it ruled the other way. It’s unlikely that the Court’s legitimacy improved much in the eyes of anyone but committed liberals and legal academics.

To avoid misunderstanding, I will repeat what I have said many times before: public opinion about a court decision says very little about whether the ruling is right or wrong. Popular rulings are sometimes badly misguided (consider Korematsu v. United States, which was extremely popular at the time), and unpopular ones can be correct (the flag burning cases are a good example).

I do not believe that the Court should decide cases based on the perceived effects on its “legitimacy.” But for those who disagree, the individual mandate decision was not the great triumph that some imagine it to be. […]

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Insurance for Spoiled Food

The Bernstein family has power, but we’re hosting my in-laws, who don’t. A handy tip for readers who lost power last night: if your food spoils, some insurance companies will reimburse you with no deductible. Our refrigerator failed on its own last week, and USAA sent a check with no hassle. I don’t know how common this is, but I suspect that lots of people wouldn’t think to check with their homeowner or renter’s insurance policy about this. […]

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From Marty Lederman’s Mouth to God’s Ears

Georgetown lawprof Martin Lederman had this to say about the undue coercion challenge to the Medicaid expansion back in March:

It is one thing to suggest—as litigants in many past Spending Clause cases have—that Congress may not use the lure of its valuable funding to “coerce” the States to spend their own funds outside the federal program, or regulate their own citizens, in a way that Congress could not insist upon directly. The Court has always rejected such arguments, and for good reason. But at least such arguments make some logical sense, as an analogy to the “unconstitutional conditions” doctrine in cases where the government imposes conditions on private individuals’ receipt of benefits.

Here, by contrast, the thing the States are allegedly being “coerced” to do is to spend federal dollars to benefit the States’ own citizens in the manner that Congress has chosen. It’s all carrots, and no stick. What the States’ argument thus amounts to is, in effect, a claim that each State should be able to pick and choose among the terms on which federal dollars are to be expended. Acceptance of that argument would upend the basic terms on which Congress has long exercised its Spending authority.

I disagree with Lederman’s characterization of the argument, but I hope he is right about the decision upending the way Congress exercises its spending power. As I noted back in March in a separate discussion of the Medicaid issue,

these sorts of programs are among the worst the federal government has to offer, not necessarily because of their substance but because they undermine political accountability. The states get money from the federal government, with strings attached. Congress is happy, because it gets to spend more money, and state and local officials are happy because they can claim credit

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A Thought About Chief Justice Roberts

When Roberts was nominated to the Supreme Court, one especially remarkable biographical detail came to light: every one of his friends interviewed by the media, conservative, liberal, and otherwise, swore they had never heard him express any opinion in private conservation on any controversial Supreme Court cases. How could it be that a top Washington lawyer, a veteran of the Reagan Administration who eagerly expressed rather strong political and legal views while serving in that administration, had avoided talking about any of great constitutional and other cases of the day?

Well, it suggests that he intentionally avoided discussing any of the cases, lest he say something that could get him in trouble in judicial nomination hearings in the future, or otherwise somehow interfere with his political career. This suggests a few relevant things about Roberts:

(1) He is extremely self-disciplined.

(2) He is extremely risk-averse. Besides avoiding discussion of any Supreme Court cases with his many high-powered DC acquaintances, as disclosed during his nomination battle, while he participated in Federalist Society events he never became a member. The most likely reason that a young conservative DC lawyer would avoid doing so is that he thought it could be a negative in future confirmation hearings. This risk-aversion seems have been on display in his unwillingness to provide a fifth vote to invalidate Obamacare.

(3) Consistent with the theory that his opinion is part of a long-term strategy, Roberts exhibits both farsightedness and a confidence in his own role in history. How many thirty-something DC lawyers, no matter how strong their credentials, censor their private conservations because they think they may be nominated to the Supreme Court someday? Many individuals, including John Yoo in today’s WSJ, share my skepticism that Roberts is pursuing what seems to be a tenuous and unrealistic […]

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So, Speaking of Soccer . . .

OK, nobody actually was speaking of soccer. . . . But I’ve been away from home (and the VC) for a while (six weeks in Italy), and after a 20-hour transatlantic ordeal I come home in the midst of this firestorm about the healthcare decision (about which I have, at the moment, nothing intelligent to say).  Ordinarily, I’d hang back for a few days to gather my thoughts before returning to the blog, but important events on other fronts dictate otherwise.

I refer of course to tomorrow’s final in the Euro 2012 soccer championship (245 ET), Italy v. Spain.  Living in Italy for six weeks is a pretty extraordinary experience at any time, and I will have lots to say about the things I figured out while I was there.  But it’s particularly interesting to be there when Italy is advancing to the finals of the Euros.  The Italians were spectacularly uninterested in this tournament when it began – there was absolutely no buzz about the national team (and my italian’s good enough so I think I can pick up buzz), none of my Italian friends were talking about the tournament, it was difficult to find a cafe in Rome to watch the opening game (against Spain, no less).  When I asked people about this, I heard several theories, the most plausible being that it represented a kind of fallout from Italy’s dismal performance at the 2010 World Cup.  The azzurri — the “blues,” as the Italians refer to their national team — were truly awful in 2010: old, uninteresting, unengaged, lacking creativity or passion or much of anything else.  The country felt a little bit of humiliation as a consequence.  This time around, there was little expectation that the team could do much better, and understandably no enthusiasm about […]

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Of Silver Linings and Clouds

Today’s USA Today quotes me on the individual mandate decision as follows:

“You can look for silver linings in the cloud, but it’s still a cloud,” said George Mason University law professor Ilya Somin, who wrote a brief opposing the health law. He said the decision offers Congress a road map to enact similar laws by crafting them as taxes instead of mandates.

The quote is accurate. I do think the ruling is a cloud over the Constitution, and I do believe that Chief Justice John Roberts’ opinion allows Congress to mandate almost anything it wants, so long as the mandate is structured as a so-called “tax” similar to the individual health insurance mandate. In addition, the ruling upholds a major unconstitutional statute. Although the law might be repealed, there is also a good chance it will not be. Relative to a decision striking down the mandate that might have been and almost was, this result is a disappointment.

Some might wonder whether the above is consistent with other statements I have made to the effect that the decision also offers supporters of limits on federal power cause for optimism. Part of the explanation is that I spoke with the USA Today reporter less than an hour after I got the decision, and I have since had more time to study it closely, as well as read commentary by both supporters and opponents of the mandate who believe the Court’s decision gave a lot of ground to the latter.

But, ultimately, I don’t think there is any great inconsistency in my view. The decision is a disappointment relative to one that actually invalidated the mandate, and also dangerously expands Congress’ tax power. I fully acknowledge that. But at the same time it endorses important constraints on Congress’ powers under […]

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Next step: Repeal the individual mandate because it is unconstitutional

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the […]

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Reasons for Cheer

From James Stewart’s “Common Sense” NYT column:

Despite the statute’s survival, the significance of the ruling for the commerce clause wasn’t lost on constitutional scholars from across the political spectrum. “It’s a dark day and the opinion is very dispiriting,” Charles Fried, a Harvard constitutional law professor, told me from Rome, where he was on vacation.

“The limitation of the commerce clause runs counter to 75 years of Supreme Court jurisprudence. It is a complete capitulation to the bogus logic of the broccoli argument and its proponents in the Tea Party.” . . .

The Yale constitutional law professor Akhil Reed Amar has long argued that the health care act could be upheld as a tax, whether or not the statute actually used the “T-word,” as he put it. Still, he told me that he was troubled by the court’s restriction of the commerce clause and the triumph of the broccoli argument.

“There were five votes upholding the commerce clause interpretation, which is unfortunate,” he said. “This is very significant.” Congress now can’t accomplish anything it might have enacted under the commerce clause by simply calling it a tax. “There are limits to the tax power. It has its own internal limits and logic,” he said. . . .

“This opinion reinvigorates a stricter understanding of all the powers of government,” Professor Amar said. “There’s a renewed interest in limits to federal power. The language about inactivity suggests that any laws that purport to order conduct, including existing laws, have the potential to be challenged. This could become a powerful tool to achieve a more limited federal government.”

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The Chief Gets No Respect

I understand the disappointment that Chief Justice Roberts did not join the dissenters to hold the individual mandate unconstitutional. Whether or not the Chief Justice changed his vote, or was convinced of the proper outcome throughout, Matthew Franck cautions commentators about attributing political or other non-judicial motives to his decision.

Last week, in poking fun here at Yale’s Akhil Amar, I was also making a serious point. Liberals who were all keyed up to demonize a conservative 5-4 decision against ObamaCare were committing the classic fallacy of the false dilemma, supposing just two possible alternatives when there are more than two. They were so convinced of the slam-dunk character of their own arguments for the law’s validity that, for them, the only possible explanation for overturning it would have to be that the justices in the majority behaved politically—and by “politically” read “abjectly partisan in the most craven sense.” What they did not seem willing to credit is the obvious third possibility, that the justices could have a good-faith view of the Constitution’s meaning that differs from their own, even if it does not in the end persuade them—and that no “stick it to Obama” motivation was behind their decisions.

Now I find, amid the pandemonium of commentators on yesterday’s ruling in NFIB v. Sebelius, that much the same fallacy of the false dilemma, with some interesting variations, afflicts many of the critics of Chief Justice Roberts on the right, and even some of the commentators who praise him on both left and right. That is, the chorus seems to be “the chief justice behaved politically,” and then that putative behavior is either praised or blamed. Almost (but not quite) universally, there is a refusal to credit the possibility that Roberts meant and believed everything he said in his

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Neal Katyal on the Federal Government’s “Pyrrhic Victory” in the Health Care Decisions

Georgetown law professor Neal Katyal is a highly respected liberal constitutional law scholar. He also argued several of the individual mandate cases for the Obama administration in the lower courts. In this recent New York Times op ed, he suggests that the result may well have been a “Pyrrhic victory” for federal power:

The obvious victor in the Supreme Court’s health care decision was President Obama, who risked vast amounts of political capital to pass the Affordable Care Act….

But there was a subtle loser too, and that is the federal government. By opening new avenues for the courts to rewrite the law, the federal government may have won the battle but lost the war….

The health care decision also contains the seeds for a potential restructuring of federal-state relations. For example, until now, it had been understood that when the federal government gave money to a state in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform.

In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds….

This was the first significant loss for the federal government’s spending power in decades….

Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce.

Obviously, Katyal and I disagree on the merits of the two cases. For example, I think he is wrong to suggest that “until now, it had been understood that when the federal government […]

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NFIB as Marbury

My article yesterday for Scotusblog discussed the tremendous importance of the Court’s 7-2 use of the non-coercion rule to limit Spending Clause violations of State sovereignty and independence. The rule has been around ever since Steward Machine Company v. Davis (1937), but NFIB v. Sebelius is the first decision by any federal court to find that a conditional congressional grant violates the rule.

The folks who think that the “evolving Constitution” completed its evolution in 1937-42, and that everything the Court did during those years must be applied today with the broadest possible reading, should be especially pleased with the NFIB Court’s vigorous enforcement of a very important New Deal precedent.

My essay argues that the application of the non-coercion rule, as well as the  application of the doctrine of incidental powers for the Necessary and Proper Clause, are among the many elements of the Roberts opinion whose significance approaches that of some of the most important opinions by Chief Justice Marshall.

Although we do not know Chief Justice Roberts’ motives, I suggestion a comparison of NFIB to Marbury v. Madison: adroitly escaping from a partisan assault on the Court itself, the opinion moves constitutional law very far in the opposite of the direction favored by partisan assaulters–and does so in a way that leaves the partisan assaulters unable to use the case in their attacks on the Court. […]

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