Almost three months ago, I published this piece on Open Salon arguing why the Court would uphold Obamacare. I proud and pleased to say I got most of it right. Here is the piece again.
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Here's a thought: what's the difference between a person who asks a really thoughtful question and a person who asks a really stupid question?
Apparently, a Harvard law degree.
After months of anticipation by Washington's political-legal-media establishment, the Supreme Court yesterday finished the final of its three days of oral argument devoted to determining whether or not Congress has the constitutional authority to restructure the nation's health care system, including the power to make individuals buy health insurance and fine them if they don’t.
The really simple answer to this really simple question is that, yes, Congress does have the power to do just that. Just like it has the power to fine farmers who grow wheat that exceeds their production quota under federal law, even if that wheat is grown for personal use and not for commercial sale. Just like it has the power to punish pot farmers who grow marijuana for medicinal use in state since it conflicts with federal drug policy that prohibits growing the magic weed for any reason at all. Just like it has the power to punish 18-26 year old men who refuse to register for the Selective Service Act by withholding their right to receive federal financial aid to attend college. Just like it has the power to tell barbeque shack owners who employ fifteen or more persons that they cannot discriminate against employees and customers based on their race. Just like Congress has had the power to do all this and much more since 1937, when the Court brought the Commerce Clause into line with the complexities of a national (and, even then, increasingly international) economic system, one in which it was becoming virtually impossible to distinguish between what was local commerce and what was not, what was non-economic local activity and what was economic activity that nonetheless affected commerce. More importantly, the Court, after nearly a century of denial, acknowledged that "markets" did not simply exist in a pre-social, pre-political world, nor did the "commerce" that transacted within those markets. Markets were a product of law, which, in turn, was a product of politics. President Franklin D. Roosevelt was up front about the power of government to address social and economic problems. Societies of men created their problems by the policy choices they made; in turn, they could choose new and different ways to address the causes and consequences of those problems. FDR simply brought to the public forefront an observation made 50 years before by the most famous jurist in the history of American law, Oliver Wendell Holmes, Jr., that, for its pretense to the contrary "the life of the law has not been logic; it has been experience."
Debate as much as you want whether and how Congress should regulate the health care “market.” But . . . please, please do not pretend that an industry that comprises nearly 18 percent of the nation’s gross domestic product is somehow immune from congressional regulation. Or that the individual mandate, which creates a complex scheme of rules and penalties/taxes to enforce them, is somehow not a “regulation.” Or that the health care industry and that the nearly 312 million Americans who either have or will participate in it as providers, regulators, insurers and consumers (insured or uninsured) does not transcend state and national boundaries.
The Court's decision this past November to set aside three days for oral argument on the Affordable Care Act of 2010, better known as Obamacare, took what had been the academic equivalent of a drunken round of "Who Would You Do?" after a Federalist Society dinner and injected it right into the coronary artery of American politics – during a presidential election year, no less. Only four justices have to agree to hear a case filed with the Court, and I really doubt that any of the Court’s four liberal justices – Ginsburg, Breyer, Sotomayor and Kagan – had any interest in going down this road. To me, why these four or five justices wanted to take this case is a far more interesting question than the fabricated constitutional questions before the Court. Depending on the term, the Court only agrees to hear 2-3% of the petitions filed with it every year, and decides even fewer with full opinions. Time will tell – or perhaps a disgruntled clerk, in the not-to-distant-future – whether Kennedy joined Roberts, Scalia, Alito and Thomas to manufacture this pointless, unnecessary and utterly stupid moment of high drama, and what led any or all them to do so.
So, at week’s end, we are left with questions like these from some of the Court’s justices:
Kennedy: “Can you (referring to Congress) create commerce in order to regulate it?”
Seriously? Congress has been “creating” commerce from Day One. Congress creates commerce every time it establishes a legal market for any economic activity, including those on a far lesser scale than health care. Remember the Prohibition Era? Congress eliminated the legal market for alcohol production and sales? Remember what happened when Congress lifted the ban on Prohibition via constitutional amendment? It created, or, more accurately, re-created the legal market for alcohol. Congress created Medicare, Medicaid, Social Security and thousands of other social programs and thus the legal markets for all that transacts within them. Going in a completely different direction, if the Court decides that states do not have the power under the Fourteenth Amendment to restrict same-sex marriage, it will create new markets directly and indirectly related to the marriage business. Although it’s not a conventional way to think about it, the Court, not Congress, created commerce when it decriminalized abortion in 1973, a decision that, coincidentally, had an enormous impact on the health care industry. And there would be no discussion today about contraception, insurance and employer responsibility had the Court not ended legal restrictions on birth control for good in 1972.
A silly question, albeit one carefully rehearsed and choreographed for media coverage.
Scalia: “Everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody is in the market. Therefore, you can make people buy broccoli.”
No, Congress can’t make people buy broccoli, and no one with an undergraduate semester of constitutional law in the tank could possibly come to this conclusion. This is the point at which a throwaway classroom hypothetical becomes a parody of thoughtful legal conservative jurisprudence. The right answer is this: Congress could decide to take broccoli off the legal market, just like it has shark fins and horsemeat. But it cannot make you eat any of the above.
There is additional silliness from Kennedy, who suggests that a true mark of judicial restraint would be to strike the whole law rather than just parts of it. Killing bits and pieces would suggest judicial nosiness into the legislative process, which is much better designed, by his own admission, to get into just the kind of detail that runs throughout this 2,700 page piece of legislation. But ditching the whole thing would be a much more noble form of judicial modesty. Whatever.
Chief Justice Roberts, the epitome of the Serious Washington Man, then suggests that Congress might well have the power to force people to buy cell phones so they can call 911 in an emergency. (Side Note: I wonder how excited wireless and telecommunications companies are about the prospect of Congress compelling Americans to buy a cell phone, having only achieved 91% market penetration so far). Again, there is simply no correlation between participating in the health care industry and having a cell phone to dial 911. I would answered Roberts like this: “Mr. Chief Justice, I think if Congress believed it had that power it would have included a cell phone mandate in the legislation. It chose not to, recognizing the limits on its commerce power.”
Pretty clever, eh?
Those In The Know can huff and puff all they want about which version of the Commerce Clause the Court will rely upon to decide the constitutional fate of Obamacare. In the end, none of the cases most often cited as relevant to the outcome matter, not NLRB v. Jones and Laughlin Steel (1937), Wickard v. Filburn (1942), not United States v. Lopez (1995) or Gonzales v. Raich (2005) or, for that matter, Gibbons v. Ogden (1824). As I mentioned above, if any of these cases really mattered then the Court would simply affirm the constitutionality of the ACA and move on. But this case isn’t about constitutional law. It’s about politics, showboating and, above all, the mind drive of judicial ego. The idea that three hours or three days after the Court concludes it oral arguments we can draw a conclusion about a case's outcome is simply nuts.
Yes, there have been the requisite discussions of judicial activism, judicial restraint and judicial minimalism and all the other approaches to judicial decision-making and constitutional interpretation that we teach in universities and law schools. None of those theories matters either. Rather, the outcome in this case will fall back on what I call the “burning building theory of constitutional law.” Think about this way: Have you ever been in a conversation where you insisted that you'd go back in a burning building to retrieve your favorite things, rescue your cat, climb the fire escape to help the kindly old gentleman who lives four doors down from you and always remembers your birthday or to save the wheelchair-bound elderly woman who is always there for you when you need to discuss your personal problems? Of course. We all have. Yet, would we actually go back into the building to save a cat, rescue a person who isn't related to us or retrieve family photos? The only honest answer is that we don't know. Until you are actually faced with a choice that, until that point in time, has only been an abstract point of discussion, you really have no idea what you are doing to do.
Almost twenty years ago, after the Court heard oral argument in Planned Parenthood v. Casey (1992), many of the same “experts” who rushed to declare Obamacare dead before the Court had even finished the second of its three days of oral argument were convinced that a 5-4 majority had formed to overturn Roe v. Wade. That did not happen, and the reason that Roe survived is because Justice Kennedy, after suggesting during the argument and in the handful of abortion cases he had participated in since coming to the Court in 1988 that he was prepared to jettison Roe, got together with two other Republican-appointed members of the Court, Sandra Day O’Connor and David Souter, to write an opinion that would preserve the basic right established in Roe while nonetheless permitting states greater latitude to impose restrictions on women seeking abortion. They joined two other Republican-appointed justices, Harry Blackmun, Roe’s author, and John Paul Stevens, to form a 5-4 majority. That’s right – Roe was preserved by a five member majority that consisted of entirely Republican-appointed justices. In other words, when faced with the very real consequences of re-criminalizing abortion in the United States, Kennedy pulled back. Since then, Kennedy has joined majorities and sometimes written opinions declaring unconstitutional legislation clearly designed to discriminate against gay men and women; and he has also joined the Court in striking down the death penalty for minors and the mentally retarded. Earlier this year, the 9th Circuit Court of Appeals in California, Kennedy’s former employer, declared a state ban on same-sex marriage unconstitutional, setting up an appeal to the Supreme Court. If the Court takes that case, there is little doubt that all eyes will be on Kennedy.
Three years ago, the Court’s most closely watched case was Northwest Austin Municipal Utility District Number One v. Holder (2009), which involved a direct challenge to Section 5 of the Voting Rights Act of 1965, the most important federal civil rights statute ever. During the Court’s oral argument, Chief Justice Roberts was openly hostile to the notion that Section 5 was still necessary to monitor discriminatory voting practices in the states. Here are two of Roberts comments from oral argument:
“Well (discussing the preclearance provisions of the law, which requires states under federal supervision to submit their districts to the Justice Department for approval), that's like the old—you know, it's the elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that's silly. Well, there are no elephants, so it must work.”
“At what point does that history … stop justifying action with respect to some jurisdictions but not with respect to others that show greater disparities? … Your answer is that Congress can impose this disparate treatment forever because of the history in the south. … When can they—when can they—when do they have to stop?”
But here’s what happened when Roberts, who wrote the Court’s opinion, came up against history:
“More than 40 years ago, this Court concluded that 'exceptional conditions' prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”
What happened? I think the answer is fairly self-evident. Too much was at stake in this case, coming down just eight months after the election of the first African-American president of the United States, for Chief Justice Roberts to risk his reputation as a fair-minded man. Just four years into what promises to be a long turn at the helm of the nation's highest constitutional court, Roberts would be forever saddled with the moniker as having been the chief justice who presided over the demise of the nation's most important civil rights law. His opinion contains none of the moral equivalencies between race-based remedies and the pre-Brown system of America's public education system, which he drew two terms before when wrote the the Court’s 5-4 majority opinion striking down voluntary desegregation plans for school districts in Seattle and Louisville. Roberts spoke of the 1965 law's successes, which he called "undeniable," and acknowledged that it took that law to kick-start the 15th amendment's promise that the right to vote shall not be conditioned upon race, color or previous condition of servitude.
After years and years of criticizing the 1965 law, a record that goes back to his time in the Reagan justice department, a department that was the most hostile of any presidential administration to the rights of African-Americans since the modern civil rights era began in the early 1950s, Roberts blinked at the opportunity to turn a professional lifetime of caustic rhetoric on race into the big victory that conservatives, in government and in the right-wing public interest bar, have wanted for years. No, this wasn't some legal theory driving Roberts's or, as disgruntled dissenter Clarence Thomas suggested, an ill-timed use of the "doctrine of constitutional avoidance." Rather, Roberts's rhetoric, like Kennedy’s before Casey, caught fire, and he chose to stand outside rather than enter a building that, engulfed in flames, would have burned his reputation to the ground. In 2012, Kennedy and Roberts have a choice: to preserve their reputation in the classrooms and courtrooms in which their opinions will be taught, argued and cited as law for generations to come, or be forever remembered as the justices who knowingly embraced a completely specious political argument made in the name of a transparently dishonest constitutional agenda. They will choose the former.