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Thu, 28 Jun 2012

Today's great news story is that the US Supreme Court has upheld the "individual mandate" portion of the Affordable Care Act. I won't bother linking to any particular stories since it's everywhere by now. I also won't comment here on whether or not the individual mandate (or indeed the act itself) is a good idea; that would be a much longer post than I want to write right now. Instead, I want to look at the Court's opinion from the viewpoint I have posted about before, that the Court has turned what Chief Justice Marshall called the power "to say what the law is" into something very different from what Marshall's opinion in Marbury v. Madison was arguing for.

The Court's opinion is here, and is worth reading in full, if for no other reason than to see a good up to date example of the kind of legal reasoning that the Court likes to engage in. But the gist of it can be summarized briefly thus: the individual mandate is not constitutional under the Commerce Clause or the Necessary and Proper Clause (the primary argument made by the Government in the case), but it is constitutional under the Taxing Clause. In other words, the Federal government can't say that you are required to buy health insurance, but it can force you to pay extra taxes if you don't.

Of course the proponents of the individual mandate are calling this a victory, but they should stop and think for a bit before getting too overjoyed. The Supreme Court has just declared that the individual mandate is a tax. That means the Affordable Care Act can now be termed a tax increase, and you can bet that opponents are going to be doing exactly that from now until election day. Moreover, by closing off the Commerce Clause and Necessary and Proper Clause justifications, the Court has basically said that any regulation of health care, if it is going to be economically feasible (and the chief justification for the individual mandate has always been that without it the act as a whole is not economically feasible), is going to involve a tax increase. Not that I disagree with this proposition; in fact I would be more than happy to find people applying this kind of reasoning to all efforts by the government to fix problems. But it's not the kind of reasoning that the proponents of the act want people to engage in.

Even so, this ruling is undoubtedly bad news for those who had hoped that the individual mandate would be ruled unconstitutional. In my original post on the Marbury v. Madison decision, I argued that the Court has been allowing Federal power to expand far beyond what the Framers intended for a long time, arguably since the time of that very decision. So this ruling is no surprise on that score. What is interesting, though, is the comparison between the ruling on the individual mandate and the accompanying ruling on the Medicaid portion of the act. In the latter ruling, the Court agreed with the States that it is unconstitutional for Congress to withhold funds for existing Medicaid benefits from States that decline to support the expanded benefits authorized under the act. What's more, the Court agreed with the States (and the opinion of the Court disagreed sharply with the Court's own dissenters) that the expansion of Medicaid was not "part of the existing program" (a claim based largely on language in the original Medicaid act that allowed Congress to "modify" the program), but was properly seen as a new Federal program even though Congress had not labeled it as such.

So there is an interesting parallel between the two sections of the Court's opinion: it ruled that the individual mandate is a tax, even though it was not labeled as such, and it ruled that the expansion of Medicaid is a new program, even though it was not labeled as such. True, the two parallel rulings have opposite effects: the States won't be forced to adopt expanded Medicaid, but we'll all have to either buy health insurance or pay extra taxes. But in both cases, the end result is that most of the act is upheld; expanded Medicaid and the individual mandate are both still there, even if slightly muted in effect. And the Court most certainly did not agree with the States that finding two particular provisions of the act unconstitutional required nullifying the entire act; it explicitly ruled that the two provisions are severable from the rest of the act, which therefore remains in effect. (Since the act contained explicit language about severability, this portion of the Court's opinion is hardly surprising.)

The really interesting part is that Chief Justice Roberts wrote and delivered the opinion of the Court. While there is a lot of "strict constructionist" language in the opinion (and there are also several comments to the effect that the Court is not expressing any opinion on the wisdom of the act--as the concluding remarks of the opinion put it, "that judgment is reserved to the people"), there is nothing to hinder future expansion of Federal power in a practical sense. Indeed, the Court's opinion practically gives a roadmap of how to do so: just make it a tax. (True, there are plenty of comments on the limits of such tactics, but they are not very restrictive limits, practically speaking.) And Justice Ginsburg's opinion, which argues that the individual mandate should have been upheld under the Commerce Clause, gives plenty of scope for future Courts to find ways to ignore the parts of today's opinion that are inconvenient for those who want to keep expanding the government's power. (In fact, Ginsburg practically admits this: "if history is any guide, today's constriction of the Commerce Clause will not endure.")

Of course, the dissenting opinion by Justices Scalia, Kennedy, Thomas, and Alito goes in the other direction, arguing that the entire act should be struck down because the clauses that are unconstitutional are central to its operation, and doing so with far stronger "strict constructionist" language than the Court's opinion. In fact, this opinion probably has the soundest arguments of any of those issued today, considered logically. For example, a key argument for the individual mandate being a necessary aspect of the act is the adverse selection problem: without it, healthy people will simply not buy health insurance, and rates will skyrocket. However, as the dissenting opinion points out, that problem is not unique to health care (as Justice Ginsburg's opinion claims); any industry that is regulated by the government finds its market skewed by such regulation. The dissent points out many other instances in which the majority opinion, Justice Ginsburg's opinion, and the Government's arguments in the case are, to say the least, questionable. But dissenting opinions, particularly by the more conservative justices, have been like this before (for example, consider Scalia's dissent in Planned Parenthood v. Casey in 1992), and it hasn't had any effect yet.

(By the way, there appears to be considerable speculation that Roberts switched his vote at the last minute, and that what now appears as the dissenting opinion by the four Justices referred to above was originally supposed to be part of the majority opinion. See, for example, this post at the Volokh Conspiracy and the links there. If that is true it makes the above observations even more interesting.)

So nothing in today's events changes the general conclusions I reached in my previous posts about the Supreme Court. I was actually somewhat surprised by the ruling; I had expected (though not very strongly, as it's always difficult to predict which way the Court will jump on an issue this close) the individual mandate to be ruled unconstitutional. That would have been a change from the pattern I noted in my previous posts, but not much of one, I admit. And if Justice Ginsburg is right, even the small change in pattern on the Commerce Clause (how many times has the Court ruled that anything doesn't come under the scope of the Commerce Clause?) will not last. (Before today I would have said it would last at least as long as Roberts' Chief Justiceship, but now I'm not so sure.) I wonder what James Madison would think.

Posted at 23:02   |   Category: opinions   |   Tags: politics   |   Permalink
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