Wednesday, March 27, 2013









The South May Rise Again



The question is: is John Roberts going to do it again?  Last year, in the midst of a presidential campaign which threatened to make the Affordable Care Act a volatile issue, the Chief Justice upheld President Obama's signature legislative achievement and its mandate.   He did it, however, by rejecting applicability of the Commerce Clause, the logical rationale for the health care mandate. He contended

The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added).  The power to regulate commerce presupposes the existence of commercial activity to be regulated.  If the power to “regulate”  something included the power to create it, many of the provisions in the Constitution would be superfluous....

Our precedent also reflects this understanding.  As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity.” It is nearly impossible to avoid the word when
quoting them....

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.  Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.

The mandate was constitutional, Roberts contended, because of the federal government's taxing authority. He rationalized

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS.  Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.  And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read. (Citations omitted)

It's a good thing for the PPACA and, presumably, the President's legacy that the Government asked that the mandate be construed as imposing a tax if it otherwise was thought to violate the Constitution.  Twisting himself into a pretzel, Roberts upheld a somewhat progressive measure while rejecting the clause which, as People for the American Way explained in an unrelated context, has been "deftly used" for "more than a century"

as a tool for advancing social justice, fair competition, equal rights in the marketplace and workplace democracy. From anti-trust policy to union organizing, from consumer rights, to civil rights and environmental protection, progressives have enacted legislation that conforms corporate commerce to the agenda and values of society rather than accepting the conservative claim that society must conform itself to the agenda and values of corporate commerce. Our robust Commerce Clause reflects the genius of the Framers, who considered well-regulated national commerce on fair terms to be a crucial constitutional value and a social and economic imperative.

In health care, the majority decision was 'yes, but on the other hand.' In the Proposition 8 case, speculation is rampant that the Court may decide 'for me but not for thee.' CAP's Ian Millhiser observed on the first day of oral arguments that Justices Scalia, Alito, and Roberts appeared to be all in for Prop 8 and its ban on same-sex marriage in California (with Thomas presumed to be in agreement) while the four liberal Justices are very sympathetic to overturning it, and to ssm in general.   Justice Kennedy, as expected, appeared more ambivalent and

By the end of the argument, a majority of the Court seemed to believe that they shouldn’t even be hearing this case in the first place. At least five justices — Roberts, Ginsburg, Breyer, Sotomayor and Kagan — at one point asked skeptical questions about whether the Court has jurisdiction to hear this case, a result that would potentially raise difficult legal questions about whether Prop 8 is still the law in California or not. Justice Kennedy repeatedly asked about another possibility — the Court could dismiss the case as “improvidently granted” — essentially reversing the Court’s prior decision to hear the case and leaving the Ninth Circuit’s decision to strike Prop 8 in effect. Sotomayor asked Cooper “[i]f the issue is letting the States experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?”

In other words, the most likely answer to the question of whether Prop 8 is unconstitutional is that the Supreme Court will not answer this question at all. Too many of the five justices who appeared open to marriage equality posed too many questions about whether now is the time to bring equality to the nation as a whole, and they did not appear satisfied with any of the theories offered to limit their decision to just some of the states.

With three Justices (Scalia, Alito, Thomas) likely opting to rule according to their conservative principles and four liberal Justices, the influence of the Chief Justice is out-sized.   Steve M. believes that a scholarly interpretation of the United States Constitution may not dominate Roberts' approach, and aptly asks

Did Roberts and his conservative confreres formerly hope to uphold the constitutionality of state bans on gay marriage, whereas now Roberts thinks that's potentially harmful to the GOP? Right now, nobody in the GOP establishment is sure what the shrewd play is if the party wants to win over new voters in the future without alienating old voters.

The Chief Justice's ruling on the ACA pleased liberals, anxious to maintain health care reform and promote the election prospects of President Obama, but probably in rejection of the Commerce Clause harmed progressive causes long-term.    An analogous situation may be playing itself out in the Proposition 8 case, with liberals/progressives like Steve M. on board:

The Court's liberals don't seem to be itching to use the Prop 8 case as a way of declaring a constitutional right to gay marriage in all 50 states -- clearly they don't have a majority, and maybe they think they will in the not-too-distant future, but they may also agree with what David Cole wrote in New York Times op-ed today: that such a ruling would inspire a huge right-wing backlash. (I agree with that -- do you really think legislators and local officials in, say, Mississippi are going to take kindly to being compelled to allow gay marriage? And I wouldn't limit that to Mississippi -- I'd include Rust Belt states that still have lots of aging cultural conservatives, such as Michigan, Ohio, and Pennsylvania. I don't want the 2014 midterms playing out under that cloud.) 

I'm thinking that no one wants to touch this right now. And I don't think it's bad that this will play out in the states (especially now that the good guys are winning more and more).

If the "good guys win" on the basis of states' rights, it may prove to be a pyrrhic victory, not unlike  the constitutional power to tax winning out over the Commerce Clause as legal justification for health care reform.   Salon's Alex Pareene, a strong supporter of same-sex marriage who apparently has a superior sense of the notion of the U.S.A. as a group of, well, united states, criticized a guest on Sunday's This Week by being appropriately snarky:

Noonan was hilarious here, saying she hoped the court would just not decide anything, because “Americans don’t take it well when their black-robed masters decide” big issues (HELLO AGAIN KARL REMEMBER 2000) and that the court should leave it up to the states by saying, “if you can’t solve it here, you can say everybody can solve it down there.” So yeah, sorry gay Southerners, basically. 





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