Thursday, March 22, 2012

The Legal Left and PPACA: Politics über alles

There is a lot to the PPACA (aka ObamaCare), but the individual mandate is the sexy problem getting all the attention, and there is good reason for that. Forcing individuals into a private market to offset the cost associated with a given program is not within the purview of the federal government and it takes an almost limitless view of the Commerce Clause to make it fit. (see legal luminary Erwin Chemerinsky in this reason video at 8:10-9:50). No one disputes that providing for one's own medical care is "an issue of personal responsibility," but so is child care, maintenance of one's own day to day affairs, paying one's utility bills and any number of other countless duties society expects of each of its citizens. This does not mean that Congress has the granted or inherent authority to make mothers buy Enfamil (or whether they should breast feed) to feed their children. Just because something may be a good idea--even if it's nearly universally agreed to be a good idea--that does not mean that the Congress ipso facto has power to do it.

Ironically, a "socialist" scheme--say, in the mold of government run Social Security or Medicare, for example--would actually pass constitutional muster given the current interpretations of the law. This is a new power, however, is instead a forced transfer payment.

What's worse, this transfer payment doesn't rein in costs--a predictable consequence from jump street--the underlying rationale of PPACA. So, what you have is an increased power grab by Congress, in order to get the insurance companies to sign on to their scheme that can't actually do what it was billed to do--by guaranteeing income for those insurance companies. This is much more akin to quid pro quo than it is 'Necessary and Proper.'

(There are also problems with the way Medicare funds are being withheld for state non-compliance and the mutilation of the taxing power--which are also key to the legislation passing muster, but I just can't get into all of it here.)

Unsurprisingly, as argument day approaches, the Legal Left has mobilized against the challenge. Their arguments in favor of the constitutionality of PPACA's individual mandate, having been molded by arguments in the courts of law and public opinion, have culminated into three main points in the latter:

1) 'So many Americans don't have health insurance!' This has become a running theme of former Acting Solicitor General and now Georgetown Law professor Neal Katyal. He argues that the act is a necessity, but it is a trumped up 'appeal to pity.' Just because it may be a good idea (lack of cost controlling measures supra notwithstanding) doesn't make it constitutional. [ Nor, might I add, did the fact that Republicans used to support the mandate, a la Neera Tanden, make it constitutional either.] The very best of these arguments are still policy arguments, not constitutional ones.

2) 'Judicial activism! Hypocrisy!' This would stick if the judges would actually take a policy position as opposed to a constitutional one. 'Judicial Activism,' a phrase initially made popular by Republicans, is now just a BS moniker assigned by any given speaker about cases he doesn't like. Properly understood, 'judicial activism' is the judiciary usurping legislative function--such as fundamentally altering and rewriting law.

The most recent example of activism that comes to mind is the Honest Services statute in the Skilling and related cases. In those cases, SCOTUS ruled that the law in its current form was 'void for vagueness'--taking unspecified legal activity and making it criminal without a clear explanation of how or why it was judged illegal. This part wasn't activism--it's very much their job to dispose of unconstitutional law. What was activist was allowing the statute to stand, though gutted of much of its scope and intent, and then redirecting it to other purposes that would pass muster. Given the lack of a severability clause, the statute should have been stricken in its entirety and sent back to Congress to do-over. Instead, the ruling re-formed the law with no legislative power granted to do so. For all the Left's harping about Chief Justice Roberts' contempt for Congress, he sure goes out of his way to leave terrible legislation standing--evidenced by challengers' fear of how Roberts may respond to PPACA. But if SCOTUS strikes down the mandate but leaves the rest of the law intact, that would be the appropriate time for everyone to jump up and down about 'activism.' (related: Excellent, and very fair piece on the severability argument by PPACA supporter Brian Buetler here.)

3) 'It's an easy constitutional call not worthy of much discussion.' This talking point irks me to no end. Most of these arguments rely on strawmen and cherry picking arguments. Both the Linda Greenhouse piece linked just above and the in-person presentation by the highly regarded Akhil Amar of Yale Law School drip with sarcasm and scorn. (Greenhouse specifically, when discussing the argument of the opposition, says it's "just words." Perhaps she was expecting interpretive dance?) The 26 states' brief by Paul Clement has become the whipping boy of an expanding group of Lefty writers and academics, and maybe it is a weak brief. But it's hardly the only brief in opposition, and it's not the only opposing party brief either. You're unlikely to see such a dismissive treatment of the NFIB's Individual Mandate brief (or Cato's*, for that matter), and I can tell you why: "judicially administerable limits." More accurately, the PPACA's complete lack thereof.

Professors Amar and Katyal, as well as DC Super Litigator Walter Dellinger have tried to explain that the democratic process is the limit upon the Congress's authority and that the "broccoli test" Sen. Coburn asked then-SCOTUS nominee Elena Kagan is ad absurdum and thus not relevant. This ducks the question entirely: a) Elections aren't "judicially administerable" (save jurisdictions still covered by oversight of the Voting Rights Act, anyway)  b) The democratic process is essentially majority rule, from which there is plenty to fear. No one, for example, argues that First Amendment infringement is ultimately a matter of voting representatives in or out of office, and thus it is not a sufficient check against infringement.

Indeed, at a recent Federalist Society event , Dellinger argued that the Bill of Rights was the limit on Congress's authority, but this begs the question: surely if you stretch the text of one part of the Constitution, you can minimize any other part of the Constitution to fit your needs just as well. (The Ninth and Tenth Amendments come screaming to mind.) The Bill of Rights can't anthropomorphize and smite an overreaching Act of Congress: that's what we have SCOTUS for.

The reality is that such a broad, uncabined reading of the Commerce power grants Congress the power to do whatever to regulate the economy it sees fit, as pretty much everything you buy--and don't buy--affects interstate commerce when applied to 350 million people. There is simply no judicially administerable limit on Congress's power in the law, effectively removing the judiciary oversight over anything affecting interstate commerce as a matter of precedent. One of the few prominent left of center lawyers to take this argument seriously is UCLA law professor Adam Winkler:
United States v. Lopez is instructive. That case involved a Commerce Clause challenge to a federal law banning gun possession near schools. During oral argument, the Justices repeatedly asked Drew Days, the solicitor general at the time, what he saw as the limits of Congress’s power. If Congress could regulate the mere possession of a gun under the guise of regulating interstate commerce, what couldn’t it regulate? Days struggled for an answer. He insisted that, yes, Congress’s powers were limited, but, no, he couldn’t point to exactly what those limits were. The Supreme Court struck down the law, explaining that it had to do so to maintain the Founders’ vision of a federal government with only limited, enumerated powers.
Winkler (unfortunately) notwithstanding, the thrust of the Legal Left's three key arguments are political arguments to 1) elicit support for the bill  2) elicit contempt for the opposition and 3) set the political stage in November in case of a loss. There are better legal arguments in favor of this law, but that's not what most of the luminaries of the Legal Left are using in public. Simply put, they prefer politics über alles.

bellum medicamenti delenda est

PS: Just as I was about to hit "post," I noticed Peter Suderman also has a post (probably) inspired by Linda Greenhouse's NYT piece. You can read that here.

*Full disclosure: I had ancillary roles in the filing of Cato's briefs opposing all four questions before the Supreme Court next week. 

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