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The Supreme Court
The Supreme Court
It is emphatically the province and duty of the Judicial Department to say what the law is. - Marbury v. Madison

When the Supreme Court of the United States enunciated those words in 1803, it was committing to being part of our political process. For what is politics but an exercise in deciding the laws which will govern us? By deciding "what the law is," the Supreme Court is engaged in political action. The retort to this is that the Supreme Court is merely an instrument for enforcing the laws that have been enacted in the political process, acting in the wake of the political process. The history of the Court demonstrates this to be a facile formalism at best, and more properly just wrong.

In next year's term of the Supreme Court, it is likely that the Affordable Care Act will come before the Court for a decision on whether the individual mandate provisions of the law are a constitutional exercise of  Congressional power. Political opponents of the president are arguing that the mandate provision exceeds the powers granted to the Congress by the Commerce Clause and the adjacent power derived from the Necessary and Proper Clause. It is my view that  jurisprudence on this issue is quite clear and that were the Court to merely follow the law and the existing precedent, then the case will be an easy one—of course it is constitutional. In 2010, the Court decided US v. Comstock, upholding a federal civil commitment statute as a constitutional exercise of Congressional power:

The Necessary and Proper Clause grants Congress broad authority to enact federal legislation. Nearly 200 years ago, this Court stated that the Federal “[G]overnment is acknowledged by all to be one of enumerated powers,”  McCulloch, 4 Wheat., at 405, which means that “[e]very law enacted by Congress must be based on one or more of” those powers,  United States  v.  Morrison  , 529 U. S. 598, 607 (2000) . But, at the same time, “a government, entrusted with such” powers “must also be entrusted with ample means for their execution.”  McCulloch,  4 Wheat., at 408. Accordingly, the Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or useful” or “conducive” to the authority’s “beneficial exercise.”  Id.,  at 413, 418; see also  id.,  at 421 (“[Congress can] legislate on that vast mass of incidental powers which must be involved in the constitution …”). Chief Justice Marshall emphasized that the word “necessary” does not mean “absolutely necessary.”  Id.,  at 413–415 (emphasis deleted);  Jinks  v.  Richland County  , 538 U. S. 456, 462 (2003) (“[W]e long ago rejected the view that the Necessary and Proper Clause demands that an Act of Congress be ‘ “  absolutely  necessary” ’ to the exercise of an enumerated power”). In language that has come to define the scope of the Necessary and Proper Clause, he wrote:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch, supra, at 421.

[. . .] The Framers demonstrated considerable foresight in drafting a Constitution capable of such resilience through time. As Chief Justice Marshall observed nearly 200 years ago, the Necessary and Proper Clause is part of “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” McCulloch , 4 Wheat., at 415 (emphasis deleted).

We take these five considerations together. They include: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope. Taken together, these considerations lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.

If precedent means anything, the mandate should be held constitutional. But the Court, like all political actors, does not always concern itself with precedent. To be sure, it will seek ways to not overturn precedent formally, but will do so through intellectual contortion. In any event, the larger point is that the Supreme Court is not a "neutral arbiter" of what the political process has delivered, but rather a part of the process itself.

The role of the Court as a political actor is neither new nor controversial. By necessity it must play such a role. In Federalist 78, Alexander Hamilton wrote:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.  [. . .] This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. [. . .] It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

And indeed, as stated earlier, the history of the Supreme Court has demonstrated that it will act in manners that have profound effects on the political questions of the day and beyond. Understanding these actions requires leaving behind the ivory tower notions of a blindfolded justice—there is no such creature. Judges are people, with views, preferences and life experiences. Even the most honest and committed jurist cannot escape the wages of their own views.

Once we can escape the ivory tower view, we are in a better position to understand the actions of, not only the Supreme Court, but all courts. Yes, I am talking about Legal Realism:

The logical critique argued that legal concepts were not a constraining force to law. Here, Realists relied on Wesley Hohfeld, who argued that legal concepts inappropriately treated various discrete legal relationships as unitary; on Judge Benjamin Cardozo, who asserted that there was more than one method for deciding a case; on Cook, who claimed that legal rules “hunt in pairs”; and on Llewellyn, who identified a great range of acceptable techniques for dealing with a legal precedent. These observations suggested that legal concepts did not produce necessary results, but rather permitted judges a choice of results. [Emphasis added.]

A choice of results. No doubt. On the flip, I'll discuss the history of the Supreme Court's "choice of results."

The powers granted to the Congress were a political dispute at the heart of the debate between the Federalists and the anti-Federalists regarding the ratification of the Constitution. The dispute continued after the ratification. One of the early battle regarded the federal government's power to create a national bank. Hamilton and Jefferson took opposing views, and Hamilton's Letter on the First Bank won the day, for the moment.

But the battle continued. Jefferson won the presidency in 1800, and ostensibly his view  of a limited federal power would hold. In his book, The Rise Of American Democracy, Sean Wilentz described Chief Justice John Marshall  as "the preeminent Federalist in the country." And so he was and would remain for decades—defending the Federalist view of the Constitution from the Supreme Court.

The Jeffersonian party held the presidency for the next 24 years. But John Marshall remained the Chief Justice of the Supreme Court. Thus, on Constitutional questions, the Federalist view continued to win political battles.

In terms of the power of the Congress, the Marshall Court issued two seminal decisions, Gibbons v. Ogden and McCulloch v. Maryland. For these two cases, I borrow from PBS:

Was the Court acting politically in these cases, that reverberate to this day? Of course. The Court pronounced the Federalist doctrine as the final word  (for the moment at least) of the Constitution. And that John Marshall's Court made this declaration can hardly be seen as a surprise. I think he was right. But I think Marshall would have led this ruling even if he was wrong. Legal Realism.

Let's move ahead to 1857. The slavery issue divided the country. In his inaugural address, newly minted President James Buchanan said of the slavery issue:

[I]t is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled.

Well, it was a judicial question, but it was also a political question. And, in Dred Scott v. Sanford, the Supreme Court rendered a decision, but that decision did not settle the slavery question. It did contribute mightily to the inception of a Civil War.

It was no accident that slavery proponent Buchanan urged accepting the Supreme Court decision as the final word on the issue. He knew that Taney was seeking to render a decision that would be as pro-slavery as possible.

In Wilentz's book, he describes the "improper collusion in the matter of Dred Scott" between the Taney Court and the incoming Buchanan administration. Indeed, Wilentz relates the existence of an 1850 decision, Strader v. Graham, that seemed to dispose of the case. In Strader, Chief Justice Taney wrote for the Court:

Every state has an undoubted right to determine the status, or domestic and social condition of the persons domiciled within its territory except insofar as the powers of the states in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of the United States that can in any degree control the law of Kentucky upon this subject.

In fact, the early deliberations of the Court led to that precise conclusion. Taney had other aspirations, however. And everyone knew what they were. Taney did not disappoint. A Civil War ensued that actually did conclusively settle the slavery question. (More on the Dred Scott case.)

After the Civil War, during the Reconstruction Era, the Supreme Court retained an active political role. The most important decision of the era was The Slaughterhouse Cases. This decision was the first Court interpretation of the 14th Amendment. The case involved a Louisiana statute that granted an exclusive franchise for butchering to a single corporation. The case was challenged by various New Orleans butcheries, who argued that the new law denied them equal protection of the law and deprived them of privileges and immunities as citizens. Ironically, the lawyer arguing these positions before the Supreme Court was a former Court Justice who resigned due to his loyalty to the Confederacy, John A. Campbell.

The Slaughterhouse Court chose an interpretation of the Privileges and Immunities clause that narrowed to virtual nonexistence:

Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.

What does the Legal Realist say about this course? Simply this: the Court majority was disturbed by the serious health problems caused by the slaughterhouse situation in New Orleans and wrote an opinion to support a result upholding the Louisiana statute. But what of the means? It was sloppy work. Justice Field's dissent makes a cogent point:

With this power of the State and its legitimate exercise I shall not differ from the majority of the court. But under the pretence of prescribing a police regulation, the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.

The question presented is, therefore, one of the gravest importance not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the federal Constitution protect the citizens of the United States against the deprivation of their common rights by state legislation. In my judgment, the Fourteenth Amendment does afford such protection, and was so intended by the Congress which framed and the states which adopted it.

Justice Field rightly recognized that the majority opinion took a course that eviscerated the Privileges and Immunities Clause. And for no good reason. Sometimes this is the fruit of Legal Realism coupled with the Law of Unintended Consequences.

Travel forward with me then to the inevitable reaction to the gutting of the Privileges and Immunities Clause, Lochner v. New York:

The statute necessarily interferes with the right of contract between the employer and employes concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U.S. 578. Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere. Mugler v. Kansas, 123 U.S. 623; In re Kemmler, 136 U.S. 436; Crowley v. Christensen, 137 U.S. 86; In re Converse, 137 U.S. 624.

The economic "liberty" interest in the due process clause of the Fourteenth Amendment becomes the vehicle of choice to resist government regulation. Justice Holmes' famous dissent elaborates on the political character of the decision:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.

This political dispute in the Supreme Court continued to play out until 1937. Then 301 US Reports changed the Commerce Clause-related constitutional jurisprudence until recent times. Justice Souter's dissent in U.S. v. Morrison recounts that history and strikes a warning for the future.:

Chief Justice Marshall's seminal opinion in Gibbons v. Ogden, supra, at 193-194, construed the commerce power from the start with "a breadth never yet exceeded," Wickard v. Filburn, 317 U. S., at 120. In particular, it is worth noting, the Court in Wickard did not regard its holding as exceeding the scope of Chief Justice Marshall's view of interstate commerce; Wickard  applied an aggregate effects test to ostensibly domestic, noncommercial farming consistently with Chief Justice Marshall's indication that the commerce power may be understood by its exclusion of subjects, among others, "which do not affect other States," Gibbons, 9 Wheat., at 195. This plenary view of the power has either prevailed or been acknowledged by this Court at every stage of our jurisprudence. See, e.g., id., at 197; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 99-100 (1888); Lottery Case, 188 U. S. 321, 353 (1903); Minnesota Rate Cases, 230 U. S. 352, 398 (1913); United States v. California, 297 U. S. 175, 185 (1936); United States v. Darby, 312 U. S. 100, 115 (1941); Heart of Atlanta Motel, Inc. v. United States, 379 U. S., at 255; Hodel v. Indiana, 452 U. S., at 324. And it was this understanding, free of categorical qualifications, that prevailed in the period after 1937 through Lopez,  as summed up by Justice Harlan: " `Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators ... have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.' " Maryland v. Wirtz, 392 U. S. 183, 190 (1968) (quoting Katzenbach v. McClung, 379 U. S., at 303-304).

Justice Harlan spoke with the benefit of hindsight, for he had seen the result of rejecting the plenary view, and today's attempt to distinguish between primary activities affecting commerce in terms of the relatively commercial or noncommercial character of the primary conduct proscribed comes with the pedigree of near-tragedy that I outlined in United States v. Lopez, supra, at 603 (dissenting opinion). In the half century following the modern activation of the commerce power with passage of the Interstate Commerce Act in 1887, this Court from time to time created categorical enclaves beyond congressional reach by declaring such activities as "mining," "production," "manufacturing," and union membership to be outside the definition of "commerce" and by limiting application of the effects test to "direct" rather than "indirect" commercial consequences. See, e.g., United States v. E. C. Knight Co., 156 U. S. 1 (1895) (narrowly construing the Sherman Antitrust Act in light of the distinction between "commerce" and "manufacture"); In re Heff, 197 U. S. 488, 505-506 (1905) (stating that Congress could not regulate the intrastate sale of liquor); The Employers' Liability Cases, 207 U. S. 463, 495-496 (1908) (invalidating law governing tort liability for common carriers operating in interstate commerce because the effects on commerce were indirect); Adair v. United States, 208 U. S. 161 (1908) (holding that labor union membership fell outside "commerce"); Hammer v. Dagenhart, 247 U. S. 251 (1918) (invalidating law prohibiting interstate shipment of goods manufactured with child labor as a regulation of "manufacture"); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 545-548 (1935) (invalidating regulation of activities that only "indirectly" affected commerce); Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330, 368-369 (1935) (invalidating pension law for railroad workers on the grounds that conditions of employment were only indirectly linked to commerce); Carter v. Carter Coal Co., 298 U. S. 238, 303-304 (1936) (holding that regulation of unfair labor practices in mining regulated "production," not "commerce").

Since adherence to these formalistically contrived confines of commerce power in large measure provoked the judicial crisis of 1937, one might reasonably have doubted that members of this Court would ever again toy with a return to the days before NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), which brought the earlier and nearly disastrous experiment to an end. And yet today's decision can only be seen as a step toward recapturing the prior mistakes. Its revival of a distinction between commercial and noncommercial conduct is at odds with Wickard, which repudiated that analysis, and the enquiry into commercial purpose, first intimated by the Lopez concurrence, see Lopez, supra, at 580 (opinion of Kennedy, J.), is cousin to the intent-based analysis employed in Hammer, supra, at 271-272 but rejected for Commerce Clause purposes in Heart of Atlanta, supra, at 257 and Darby, supra, at 115.

Justice Souter then provides the Legal Realists' explanation for this behavior:

Why is the majority tempted to reject the lesson so painfully learned in 1937? An answer emerges from contrasting Wickard with one of the predecessor cases it superseded. It was obvious in Wickard that growing wheat for consumption right on the farm was not "commerce" in the common vocabulary,13 but that did not matter constitutionally so long as the aggregated activity of domestic wheat growing affected commerce substantially. Just a few years before Wickard, however, it had certainly been no less obvious that "mining" practices could substantially affect commerce, even though Carter Coal Co., supra, had held mining regulation beyond the national commerce power. When we try to fathom the difference between the two cases, it is clear that they did not go in different directions because the Carter Coal Court could not understand a causal connection that the Wickard Court could grasp; the difference, rather, turned on the fact that the Court in Carter Coal had a reason for trying to maintain its categorical, formalistic distinction, while that reason had been abandoned by the time Wickard was decided. The reason was laissez-faire economics, the point of which was to keep government interference to a minimum. See Lopez, supra, at 605-606 (Souter, J., dissenting). The Court in Carter Coal was still trying to create a laissez-faire world out of the 20th-century economy, and formalistic commercial distinctions were thought to be useful instruments in achieving that object. The Court in Wickard knew it could not do any such thing and in the aftermath of the New Deal had long since stopped attempting the impossible. Without the animating economic theory, there was no point in contriving formalisms in a war with Chief Justice Marshall's conception of the commerce power.

If we now ask why the formalistic economic/noneconomic distinction might matter today, after its rejection in Wickard, the answer is not that the majority fails to see causal connections in an integrated economic world. The answer is that in the minds of the majority there is a new animating theory that makes categorical formalism seem useful again. Just as the old formalism had value in the service of an economic conception, the new one is useful in serving a conception of federalism. It is the instrument by which assertions of national power are to be limited in favor of preserving a supposedly discernible, proper sphere of state autonomy to legislate or refrain from legislating as the individual states see fit. The legitimacy of the Court's current emphasis on the noncommercial nature of regulated activity, then, does not turn on any logic serving the text of the Commerce Clause or on the realism of the majority's view of the national economy. The essential issue is rather the strength of the majority's claim to have a constitutional warrant for its current conception of a federal relationship enforceable by this Court through limits on otherwise plenary commerce power. This conception is the subject of the majority's second categorical discount applied today to the facts bearing on the substantial effects test. [Emphasis added.]

So what can a Legal Realist tell us about what to expect from this Court on the Affordable Care Act? Here are issues to consider: (1) since Lopez and Morrison, the Court has issued Raich and Comstock, both providing expansive views of the Congress' Commerce Clause and Necessary and Proper Clause power; (2) the case will be decided in an election year—what will be the political effect of a decision?; (3) the issues do not appear to touch the federalism concern dear to the hearts of the conservative members of the Court; (4) there is no "narrow" decision for the Court here if it wishes to strike down the mandate (to leave ACA standing without the mandate is a terrible result for insurance companies, something the conservative majority will never countenance), it is all or nothing. That would be, in the parlance, a big fucking deal'; and (5) there is a punt option available; since the mandate does not become operative until 2014, the issue may not yet be "ripe" for decision. Issues like ripeness, justiciability and standing are always susceptible to "whatever the court wants to do" analysis.  It is silly to even look at cases on these issues in my view.

One Legal Realist's opinion - since the political consequences of a decision on ACA are uncertain, I expect a punt from the Court until after the election.

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Comment Preferences

  •  Federalist 78 (1+ / 0-)
    Recommended by:
    TerryDarc

    Then there's a chance with Scalia. As of late it seems that if it can be found in the Federalist papers then he'll go along with the argument

    So it's The Why do you hate this country You're Obsessed with misquoting me out of context while I was in the process of misspeaking with the sun in my eyes while chowing down and bashing Sharia law God Bless America defense.......

    by JML9999 on Sun Oct 09, 2011 at 10:12:27 AM PDT

    •  You expect too much from Scalia (8+ / 0-)

      Considering his decisions in Bush v Gore and Raich, his jurisprudence is outcome determinative. With Raich I was pleased to see he upheld Wickard; obviously I was not happy to have see Al Gore get oxed.

      "Once in a while you get shown the light In the strangest of places if you look at it right"

      by molly bloom on Sun Oct 09, 2011 at 10:47:54 AM PDT

      [ Parent ]

      •  Scalia as pretzel (0+ / 0-)

        In Bush v Gore, Scalia didn't have to reverse himself in any significant way nor have to commit himself to a future decision due to the "no precedent" aspect of the decision.  In terms of how he might rule regarding the ACA, he would have to significantly reverse himself as compared to the reasoning in his concurrence in Raich.  I rarely agree with his legal reasoning, but he is remarkably consistent with it.  If you haven't read the full text of his concurrence, I would recommend doing so.  If you have (which I suspect), then you would agree that Justice Scalia would have to really make a pretzel out himself to not uphold the law.  In addition, just because of the way these things tend to fall out, I wouldn't be surprised if this is a 7-2 vote upholding the law, with only Justices Thomas & Alito dissenting.  I am not saying that will happen, I am just saying that I wouldn't be surprised.  

        "Sometimes we live no particular way but our own"

        •  Are you serious? (2+ / 0-)
          Recommended by:
          oculus, StrayCat

          the no precedent rule in and of itself was a departure from Scalia's previous position

          On the one hand, lower courts could simply ignore Bush v. Gore and pretend it never happened, which may be what the Supreme Court is hoping lower courts do. But this is to ignore what looks like a new principle in Bush v. Gore regarding the equal treatment of voters, which, we should recall, was not only endorsed in the per curium opinion, but also taken seriously by Justices Breyer and Souter in their dissents. It also goes against a pretty persuasive model of the bindingness of Supreme Court opinions, a classic formulation of which was given by none other than Justice Scalia. “[W]hen, in writing for the majority of the Court,” Scalia said in a 1989 law review article,

               I adopt a general rule, and say, ‘This is the basis of our decision,’ I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.     
          By letting the Supreme Court issue a rule good for one case and one case only, lower courts could leave the impression that the Court just was indulging its political preferences in Bush v. Gore.

          See Please Don't Cite This Case

          "Once in a while you get shown the light In the strangest of places if you look at it right"

          by molly bloom on Sun Oct 09, 2011 at 08:53:14 PM PDT

          [ Parent ]

        •  JonS - coffeetalk has commented (0+ / 0-)

          with a thoughtful analysis on why Scalia's views on Raich do not lead her to think that he will uphold the ACA and why that view will not tie him in a pretzel.

          "let's talk about that"

          by VClib on Sun Oct 09, 2011 at 09:59:09 PM PDT

          [ Parent ]

  •  IOKIYAN (1+ / 0-)
    Recommended by:
    shpilk

    It's OKay If You're A Neocon.

    Anything. Anything's okay, if you're a neocon. Torture. Murder. Assassination. Warrantless wiretapping. Indefinite detention.

    This is the new American Way. Get used to it. Next up: Neo-Feudalism, bitches.

    "I feel a lot safer already."--Emil Sitka

    by DaddyO on Sun Oct 09, 2011 at 10:21:57 AM PDT

  •  Gingrich seemed to reject Marbury (1+ / 0-)
    Recommended by:
    JML9999

    Just ignore the Court; defund the Ninth Circuit.

    •  Newt Defends Arithmetic from Judaical review (2+ / 0-)
      Recommended by:
      Lonely Liberal in PA, Zera Lee

      http://thinkprogress.org/...

      Newt’s Awful Speech Part I: Newt vs. The Little Rock Nine

      Presidential candidate Newt Gingrich just completed one of the most radical speeches ever delivered by a presidential candidate on the judiciary. Gingrich’s speech calls for a radical reshaping of our constitutional democracy, eliminating the judiciary’s power to make binding constitutional decisions. He promises to openly defy Supreme Court decisions he disagrees with, and pledges to intimidate judges who dare to part ways with the Constitution According To Newt.

      Newt begins his speech with a rant about an unspecified 1958 Supreme Court decision which, he claims, wrongly created a doctrine of “judiciary supremacy”:

         Imagine that, by a 5-4 vote, the Supreme Court decided that 2+2=5. Under the current theory, which the Warren Court promulgated in 1958, the only effective recourse would be either a) to get a future Supreme Court to reverse them, or b) to pass a constitutional amendment declaring 2+2=4. . . . This is an absurdity, foisted on us in 1958 by an historic lie. There is no judicial supremacy, it does not exist in the American Constitution.

      So it's The Why do you hate this country You're Obsessed with misquoting me out of context while I was in the process of misspeaking with the sun in my eyes while chowing down and bashing Sharia law God Bless America defense.......

      by JML9999 on Sun Oct 09, 2011 at 10:32:17 AM PDT

      [ Parent ]

      •  Huh? (1+ / 0-)
        Recommended by:
        JML9999

        That doesn't even make sense.  Wouldn't the Court require an existing law being challenged?

        Sure, you can write a law saying 2+2=5 and you might even get it passed.  I can't imagine anybody challenging it on anything other than "It's completely wrong in basic mathematics."  Although more advanced math might allow for algebraic renormalization...

        The Court doesn't really declare anything not related to the challenge in question (although there are certainly rather wide-reaching things that they do decide that don't strictly relate to the law in question).

        Newt fails.  Again.  Fortunately, he already failed as a candidate.

        (-6.25, -6.77) Moderate left, moderate libertarian

        by Lonely Liberal in PA on Sun Oct 09, 2011 at 10:38:19 AM PDT

        [ Parent ]

  •  Excellent. (2+ / 0-)
    Recommended by:
    Garrett, mon
  •  If the case isn't ripe, then (1+ / 0-)
    Recommended by:
    Loge

    the Court has to vacate all of the decisions, no? We'll be at tabula rasa.

    For my part, I think this is such an easy case that I'm dumbfounded we've even gotten this far.

    Ok, so I read the polls.

    by andgarden on Sun Oct 09, 2011 at 10:43:09 AM PDT

  •  I don't know (2+ / 0-)
    Recommended by:
    thegood thebad thedumb, wsexson

    the legal twisting here but I have no argument about politics and the judicial system. My problem with the ACA, is that the mandate seems like it does nothing to make healthcare affordable. All it does is make buying a bad product from a protected subsidized monopoly a legal obligation. It sure seems like extortion to me and the saddest part is even if you pay the mandated vig you do not get access to affordable healthcare. It's like the government is acting like the bagman and enforcer for the insurance industry who make their profit from blocking access.

    I did like the history lesson of the courts ongoing political  Federalist vs anti-Federalist's. Thanks for the informative dairy about where the law meets politics.      

    •  I think you're not far off (1+ / 0-)
      Recommended by:
      shaharazade

      from what the ACA will do. But remember that the mandate allows you to pay a tax in lieu of purchasing a qualifying plan.

      Ok, so I read the polls.

      by andgarden on Sun Oct 09, 2011 at 10:54:54 AM PDT

      [ Parent ]

      •  The sanction for failure to abide the mandate (1+ / 0-)
        Recommended by:
        VClib

        is irrelevant.

        Can the government Constitutionally mandate all households to kill their first-born, so long as the only sanction for not doing so is a "Population Tax"?

        Of course not.  Mine is a gonzo hypothetical, but the point is that the mandate which the government is imposing must be evaluated on its own constitutional merit, regardless of what the government's choice of enforcement sanction is.

        •  Could a state legislature impose your insane (1+ / 0-)
          Recommended by:
          David Kaib

          hypothetical?

          There is nothing in the Federalism theory put forward by opponents of the ACA that would prevent one from doing so.

          Ok, so I read the polls.

          by andgarden on Sun Oct 09, 2011 at 11:42:04 AM PDT

          [ Parent ]

          •  I don't understand your question. (1+ / 0-)
            Recommended by:
            erush1345

            My post was a response to your statement:

            "But remember that the mandate allows you to pay a tax in lieu of purchasing a qualifying plan."

            I simply don't see the relevancy of that statement to the question of whether the mandate in the ACA is Constitutional or not.

            If the federal government doesn't have power to act in a particular situation, the mechanism it chooses to enforce that action doesn't somehow grant them that power.

            •  The relevancy was to the comment I replied to (0+ / 0-)

              I believe that the diary itself covers the "constitutional argument" ACA opponents propounded perfectly well.

              So I ask you again, do state governments have the power to enact your insane hypothetical?

              Ok, so I read the polls.

              by andgarden on Sun Oct 09, 2011 at 12:12:28 PM PDT

              [ Parent ]

              •  I promise I'm not being obtuse (2+ / 0-)
                Recommended by:
                shaharazade, mon

                The original comment was:

                "My problem with the ACA, is that the mandate seems like it does nothing to make healthcare affordable. All it does is make buying a bad product from a protected subsidized monopoly a legal obligation. It sure seems like extortion to me and the saddest part is even if you pay the mandated vig you do not get access to affordable healthcare. It's like the government is acting like the bagman and enforcer for the insurance industry who make their profit from blocking access."

                You said, essentially (if I may put some words in your mouth), "Yes, you're right, but the fact that the sanction for not getting insurance is just a tax makes it OK."

                To which my response is "No, it does not."
                __

                Fine.  The hypothetical is gonzo, but if law school taught me one thing, it's that you can plug any situation into the law and get a sensible result.  Therefore, to answer your question, one must actually answer two questions:

                1) Does the state have the power to enact such legislation both from a) the U.S. Constitution; and/or b) the state's constitution.

                a) Ostensibly, under the Constitution's granting of the state's broad police powers, the state has broad power to enact legislation aimed at providing for the welfare of its citizens.  A proponent of the law would point to overpopulation as a general need/problem which the government has to address.

                b) The state's constitution would have to give the state legislature the ability to act in this way.

                So the answer to question 1 is perhaps YES, though, again, it would depend on the individual state's constitution.  Proceed to question 2

                2) Does the state action impinge on a Constitutional right of those whom the law impacts?

                The answer to this question is undeniably yes.  Just as Roe v. Wade extends a right to privacy in personal family decisions under the due process clause of the 14th Amendment, so to would a court find that this "kill your first born" act implicates the right to privacy.  This would be a much simpler case than Roe v. Wade, since this act would, of course directly implicate the right to life due process right of those being killed.  

                Once a Constitutional right is implicated, the level of scrutiny which the Court applies to the law is very strict and narrow.  The law must be narrowly tailored to achieve a compelling governmental interest.  Most likely, a court would find that either, a) there are less intrusive ways of achieving the interest of lower population; or b) lowering the population isn't a compelling government interest.

                Of course, the analysis calculus may change, if, say 200 years from now the U.S. suffers from severe overcrowding, food shortages, frequent epidemics, etc.  Even then, however, the Congress would likely first have to find less intrusive methods of accomplishing the goal of lower population.

                So the answer is that though the state may have broad police power to act in this way, the fact that the act directly and severely impacts the Constitutional rights of those involved means that a Court would likely strike the law down as being either 1) too intrusive of those rights; or 2) not addressing a compelling enough government interest.

                •  OK, fine (0+ / 0-)

                  Now assume a state passed its own version of the ACA. Further assume that no state constitutional prohibitions exist.

                  All you have left is the 14th Amendment, and that argument would rightly be laughed out of court.

                  This exercise is so simple that I am amazed anyone bothers to devote any energy to it. Congress has an enumerated power to regulate interstate commerce. Under that power, Congress may regulate the healthcare market. Assuming the commerce power alone is insufficient, Congress could rationally believe that the mandate in the ACA is a useful measure in its scheme designed to regulate that market. It is therefore necessary and proper.

                  Ok, so I read the polls.

                  by andgarden on Sun Oct 09, 2011 at 01:46:52 PM PDT

                  [ Parent ]

  •  Supreme Court (0+ / 0-)

    We can see politics in play when in the 1800s the Supreme Court changed a fruit to a vegtable, the tomato, because of tariffs.  The court is nothing more than a political instrument played like a fine violin for greed and little else!  

    •  And it decided that baseball was not "commerce." (0+ / 0-)

      Professional baseball, the Court opined, was America's great national pastime, so how could it be considered "commerce"? (As I recall, the issue was whether the antitrust laws applied to baseball.)

      But on health care/insurance reform, as Armando points out, the issues are more subtle. (!)

      It seems to me, simplistically, the Court would have to reverse - or at least seriously impair - a lot of Constitutional law to void ACA. And despite what some of the Court's conservative jurisprudes might say in favor of narrowing Congress's ability to mess with the economy and freedoms, the conservatives rely on the power of Congress to enact their priorities, too.

      My hope is that the contortions SCOTUS would have to go through to overrule or duck precedent will be enough to shove a swing justice toward taking ACA up (as all sides to the case ask) and upholding it.

      Obama and strong Democratic majorities in 2012!

      by TRPChicago on Sun Oct 09, 2011 at 12:15:30 PM PDT

      [ Parent ]

  •  I am not a lawyer (2+ / 0-)
    Recommended by:
    Garrett, mon

    So my knowledge is very limited.

    I am fascinated nonetheless, so thank you for this detailed post, Armando.

    Slightly OT, but related, I will ask...

    Would Citizens United be an example of the "contortion" you mention?

    It seems to that it would be, from my layperson's understanding of Justice Stevens' dissent.

    -
    Somebody has to do something, and it's just incredibly pathetic that it has to be us.
    ~ Jerry Garcia

    by DeadHead on Sun Oct 09, 2011 at 11:15:06 AM PDT

  •  Not only is the Mandate a Republican idea, (1+ / 0-)
    Recommended by:
    thegood thebad thedumb

    it's a BAD Republican idea.

    As part of the compromise to get the healthcare bill through, it is a very weak link in providing affordable healthcare.

    Medicare Part E; "Medicare for Everyone" is the way to go.

    Notice: This Comment © 2011 ROGNM

    by ROGNM on Sun Oct 09, 2011 at 11:25:07 AM PDT

  •  we need TERM LIMITS for the USSC !! (0+ / 0-)

    just like with politicians that become CAREER politicians, the ability to be on the ultimate court forever harms our Republic

    "Orwell was an optimist"

    by KnotIookin on Sun Oct 09, 2011 at 11:25:15 AM PDT

    •  I don't believe term limits (1+ / 0-)
      Recommended by:
      Garrett

      would alter the political aspects of the SC or any of the Article III courts.  Politicians become career politicians because their constituents vote them back in -- for good or bad for the rest of the country.

      Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

      by gchaucer2 on Sun Oct 09, 2011 at 11:40:24 AM PDT

      [ Parent ]

      •  Interesting. California Supreme Court (0+ / 0-)

        (not Article III, of course) justices are not elected in the first instance but must run for "reelection."  Usually--no problem.  Except for the Rose Bird court.  When she was bounced, so were some of her liberal colleagues.  But no term limits. One state court judge here didn't get federal district appointment, probably because of a trial court decision she made many years ago awarding to custody to gay father.  

      •  I didnt VOTE for a single person on the USSC (0+ / 0-)

        and there should be a LIMIT to the time they get to effect the course of our republic.

        "Orwell was an optimist"

        by KnotIookin on Sun Oct 09, 2011 at 12:16:01 PM PDT

        [ Parent ]

  •  New Supreme Court Robes (4+ / 0-)
    Recommended by:
    DeadHead, stolen water, mon, Matt Z

    new-supreme-court-robes.jpg

    "Always remember this: They fight with money and we resist with time, and they’re going to run out of money before we run out of time." -Utah Philips

    by TerryDarc on Sun Oct 09, 2011 at 11:34:08 AM PDT

  •  Sorry, Armando (4+ / 0-)
    Recommended by:
    stolen water, erush1345, DeadHead, VClib

    But if I boil down your diary (at least that part pertaining to the mandate) into one sentence, that sentence would be:

    "Congress can do whatever it wants to do."

    As such, you render the idea of enumerated powers useless.

    You cite Comstock to point out that the Necessary and Proper Clause grants Congress wide latitude to enact laws needed to facilitate the exercising of their enumerated powers.

    In other words, the Necessary and Proper Clause only comes into play when an enumerate power exists.

    What opponents of the health insurance mandate want to know is: what enumerated power grants Congress the power to force individuals to purchase private, for profit health insurance?

    IMHO, the Commerce Clause cannot be that enumerated power.  In Raich, like in Wickard, the Court ruled that the activities of growing cannabis and wheat, respectively, for personal use only constituted commerce, despite the non-commercial nature of those activities.

    But what the mandate regulates is not only non-commercial activity - but NON-ACTIVITY period!  In this way, the mandate goes far beyond Wickard and Raich to regulate things which AREN'T activities.  Congress isn't regulating the purchase of health insurance.  It is regulating mere existence.  Mere existence now comes along with it a government-imposed requirement to purchase something.   THAT is VERY unprecedented.

    Consider the implications of this:  can the government require me to purchase stocks in the stock market after a market crash, since my non-participation in the market is an "activity" which is ostensibly keeping stock prices low?  Can the government require me to purchase a home, since shelter is a basic necessity that all humans will need at some point in their lives and my non-participation in the housing market is affecting home prices?

    And how can the government choose for me the method with which I choose to pay for my health care?  What if I am capable of self-funding my health care?  Or what if I choose (as some fundamentalist Christians do) to not seek health care?  What is being mandated is NOT that I purchase health care - but that I purchase health INSURANCE - a very different animal where a health insurance company will ostensibly be able to choose whether or not it covers procedures that I or my doctor may decide I need.

    I'm rambling a bit, but as a self-avowed progressive, I just want to point out that questions like mine exist and need to be answered.

    •  Congress can chose a lot of things for you. (1+ / 0-)
      Recommended by:
      Garrett

      Social Security "savings," for example, and Medicare and Medicaid. Congress and state legislatures can regulate private activity, too, when it "stands at the gateway of commerce and takes the toll of all who pass."

      As for insurance, if that's how you view the real peril of ACA, providers who choose to sell insurance to the public have been regulated in all manner of ways. As for personal choice, legislatures can - and do - limit our choices in procuring all kinds of things.

      Yes, the implications of a broad view of Congressional power can render steamy even the windshields of visionaries. "What's the difference between ...?" distinctions will forever occupy students of law and political science.

      Questions like the ones you raise are important, but fortunately, they need not all be answered to uphold Congress's constitutional power to enact ACA.

      Obama and strong Democratic majorities in 2012!

      by TRPChicago on Sun Oct 09, 2011 at 12:26:48 PM PDT

      [ Parent ]

      •  Social Security "savings," i.e. and Medicare (3+ / 0-)
        Recommended by:
        stolen water, erush1345, VClib

        are both taxes on earned income.  When you say that '
        "Congress can choose a lot of things for me", you're being imprecise.

        What you should be saying is that "Congress has the power to regulate and/or tax a wide variety of the activities you engage in".  I agree with this statement.  

        Your examples of Social Security and Medicare are, in fact, taxes on income.  If I engage in no activity that generates income, guess what - I pay no Social Security or medicare.  There is no requirement that I pay a social security or medicare tax upon my mere existence.  I only pay it if I engage in activity which earns income.

        With the Mandate, Congress isn't taxing or regulating an activity - it is imposing a requirement on simple existence.  This is unprecedented and unlike any other tax or regulation that you can currently point to.

    •  look at the whole ACA, not just the mandate (0+ / 0-)

      The Affordable Care Act (ACA) regulate healthcare, which is unquestionably a market that Congress can regulate pursuant to its Commerce Clause power. Among other things, the ACA prohibits insurers from denying coverage based on preexisting conditions, stops them from dropping people from the rolls once they get sick, limits the amount insurers can spend on non-medical care related expenses, etc., etc.

      In order for that whole thing to work, there needs to be a mandate. Otherwise, you will have a serious free-rider problem. Healthy people won't pay for insurance until they get sick. (Because at that point they can't be denied coverage or care.) The only people on the rolls will be people who need frequent and/or costly care. The entire "insurance" concept—i.e. distribution of risk—would fall apart.

      Thus, the mandate becomes a means by which Congress can achieve its goal of regulating the healthcare market. It is Constitutional because the Court has ruled that the "Necessary and Proper clause" gives Congress the ability to choose any convenient means to achieve a legitimate end (e.g. McCulloch, where the Bank is a convenient means of achieving Congress' commerce, taxing, and war powers). So to sum up, the ACA is supported by the Commerce Clause, the Mandate by Necessary and Proper, because without the mandate, the ACA wouldn't work.

      P.S. I'm not a lawyer, just an undergrad who has taken a few con-law classes and discusses these issues a lot with classmates, professors, and friends.

      I have long since come to believe that people never mean half of what they say, and that it is best to disregard their talk and judge only their actions. —Dorothy Day

      by bignoise on Sun Oct 09, 2011 at 12:49:21 PM PDT

      [ Parent ]

      •  here is a program where the government (0+ / 0-)

        offers property owners flood insurance protection. not only did it lack a mandate, but you could buy into coverage AFTER your house got damaged by floods.

        Consider the example of  Trent Lott of Mississippi, who was that state's senior senator when Hurricane Katrina hit in 2005, flooding his home looking out on the Gulf. Lott had not exercised personal responsibility by taking out flood insurance even though it was available from the federal government at low cost. He did have private insurance, but his insurer refused to pay much of the claim, saying it was not wind damage (which was covered by the policy), but water damage (which was excluded).

        Weeks later Lott introduced Senate Bill 1936, which would have authorized retroactive flood insurance. The idea came from Representative Gene Taylor, a Democrat who represented the Mississippi Gulf Coast, which should remind us that when there is voter demand for reform, and campaign contributions are not the driving force, the parties have worked together.    

        Lott's bill would have let flood victims pay 10 years of flood insurance premiums after-the-fact plus a 5 percent late payment penalty. Since this storm was rated a once in 500 years occurrence, even 10 years of premiums would not come close to covering the real costs, meaning a taxpayer subsidy was built into the Lott bill.

        http://www.huffingtonpost.com/...

        we can have retroactive flood insurance to protect property, but we can't have retroactive health insurance to cover people?

        •  the way that the Court has interpreted... (0+ / 0-)

          necessary and proper is that it does not mean Congress can only choose those means which are "absolutely necessary" for achieving a specific end, but rather than Congress may choose any convenient means for achieving an end so long as that end is legitimate.

          So, it doesn't matter that you theoretically could have retroactive insurance, just like it didn't matter in McCulloch that Congress could theoretically have exercised its commerce, taxing, and war powers without a bank. All that matters—to The Court—is that the "Necessary and Proper Clause" gives Congress the freedom to choose its means. Under the ACA, Congress has chosen a mandate as the means to achieve its end of regulating the healthcare market. You may not agree with the method Congress has chosen, but that doesn't mean Congress didn't have the power to choose it.

          I have long since come to believe that people never mean half of what they say, and that it is best to disregard their talk and judge only their actions. —Dorothy Day

          by bignoise on Sun Oct 09, 2011 at 01:12:26 PM PDT

          [ Parent ]

      •  germany relies on private insurance companies (1+ / 0-)
        Recommended by:
        RainyDay

        but they're heavily regulated in that they are not allowed to run for profit.

        obama is asking us to be shackled to an monopolized industry that lacks a proper enforcement mechanism with teeth that'll keep it in check.

      •  The Commerce clause regulates commerce (1+ / 0-)
        Recommended by:
        VClib

        "The Affordable Care Act (ACA) regulates healthcare, which is unquestionably a market that Congress can regulate pursuant to its Commerce Clause power."

        Two points

        1)  Remember, the ACA regulates health INSURANCE.  It requires me to purchase health INSURANCE, not health CARE.  This is an important distinction.

        2) So the commerce clause gives Congress the power to regulate the health insurance market.  OK.  Fine.  Pass all sorts of regulations which affect policy holders and insurers.  But say I don't participate in the health insurance market.  Then the regulation doesn't apply to me, right?  

        Wrong, Congress is claiming that it does apply to me.  How?  Because, in reality, by imposing an individual mandate, Congress isn't regulating health insurance market.  It's regulating mere existence.  The requirement to act in a certain way arises by virtue of my existence, NOT by my participation in a commercial market.  

        In other words, you can't say that Congress has the power to regulate commerce, but then it also has the power to regulate those who aren't participating in not just commerce, but in any ACTIVITY.  By that logic, Congress has the power to do anything, and the enumerated powers clause is rendered moot or superfluous.  

        •  on the whole, ACA regulates healthcare... (0+ / 0-)

          not just health insurance. and, i'm going to go out on a limb here and guess that you DO in fact participate in the healthcare market. if you're in a car accident, the ambulance takes you to the hospital even it you don't have insurance. and you get treated, even if you don't have insurance.

          i don't think you can really separate health insurance from health care. the two are intricately intertwined, and certainly the former would not exist without the latter.

          I have long since come to believe that people never mean half of what they say, and that it is best to disregard their talk and judge only their actions. —Dorothy Day

          by bignoise on Sun Oct 09, 2011 at 01:30:08 PM PDT

          [ Parent ]

          •  He need not even actually participate (1+ / 0-)
            Recommended by:
            JR

            the Necessary and Proper clause does the rest of the work.

            Ok, so I read the polls.

            by andgarden on Sun Oct 09, 2011 at 01:48:09 PM PDT

            [ Parent ]

          •  Point by point features of the ACA (1+ / 0-)
            Recommended by:
            VClib
            * Guaranteed issue and partial community rating will require insurers to offer the same premium to all applicants of the same age and geographical location without regard to most pre-existing conditions (excluding tobacco use). Regulates health insurance market
                * A shared responsibility requirement, commonly called an individual mandate, requires that nearly all persons not covered by Medicaid, Medicare, or other insurance programs purchase and comply with an approved insurance policy or pay a penalty, unless the applicable individual "is a member of a recognized religious sect" exempted by the Internal Revenue Service, or waived in cases of financial hardship.Regulates health insurance market (or mere existence, IMHO)
                * Medicaid eligibility is expanded to include all individuals and families with incomes up to 133% of the poverty level along with a simplified CHIP enrollment process. Regulates Medicaid
                * Health insurance exchanges will commence operation in each state, offering a marketplace where individuals and small businesses can compare policies and premiums, and buy insurance (with a government subsidy if eligible).Regulates health insurance market
                * Low income persons and families above the Medicaid level and up to 400% of the poverty level will receive federal subsidies on a sliding scale if they choose to purchase insurance via an exchange (persons at 150% of the poverty level would be subsidized such that their premium cost would be of 2% of income or $50 a month for a family of 4). Regulates health insurance market
                * Minimum standards for health insurance policies are to be established and all annual and lifetime coverage caps will be prohibited. Regulates health insurance market
                * Firms employing 50 or more people but not offering health insurance will also pay a shared responsibility requirement if the government has had to subsidize an employee's health care. Regulates health insurance market
                * Very small businesses will be able to get subsidies if they purchase insurance through an exchange Regulates health insurance market
                * Insurance companies are required to spend a certain percent of premium dollars on medical care improvement; if an insurer fails to meet this requirement, a rebate must be issued to the policy holder. Regulates health insurance market
                * Co-payments, co-insurance, and deductibles are to be eliminated for select health care insurance benefits considered to be part of an "essential benefits package" for Level A or Level B preventive care. Regulates health insurance market
                * Changes are enacted that allow a restructuring of Medicare reimbursement from "fee-for-service" to "bundled payments."Regulates Medicare
                * Establishment of a national voluntary insurance program for purchasing community living assistance services and support.Regulates health insurance market
                * Additional support is provided for medical research and the National Institutes of Health Regulates medical research

            This law regulates health insurance.  You can't really deny that when you look at the individual provisions.  Any provisions which "need" the health insurance mandate to exist are those which regulate the health insurance market.

            Now you tell me, which of these provisions comes into play in your hypothetical by which I get in a car accident and an ambulance takes me to the hospital?   The answer is none.  None of these provisions come into play by virtue of the fact that I use the health care system in this way.  If I have no insurance and get into a car accident and an ambulance takes me to the hospital - what happens next is quite simple:  the ambulance company will send me a bill for having used the service.

            I'll either then pay it or not.  If I do pay it, great.  Nothing in this ACA came into play in that transaction.  It had no effect on my use of the health care system.  There was no need for an insurance company to be involved.  If I don't pay it, then they can sue me for the money.  Upon obtaining a judgment, they can garnish my wages, place liens on my real estate, or levy against my personal property.  Again - what part of the ACA comes into play for this interaction?  

            So you see, health insurance and health care are very distinct and separable markets.  I don't HAVE to have health insurance to get health care.

          •  Hypothetical law (0+ / 0-)

            Law passed requiring each individual in the U.S. to purchase and own X dollars worth of private equities on the New York Stock Exchange.

            1) According to the Commerce Clause, the Congress has the broad power to regulate the securities markets.  

            2) This law is being passed after a large sell-off of shares that has caused the NYSE to crash

            3) So Congress has the power to regulate the equities market, and in order to do this, Congress can use the Necessary and Proper clause to "do the rest of the work" and require individuals to participate in the NYSE, since their participation in the market is "necessary" for Congress' regulation to succeed.

            Constitutional?

            •  Almost certainly (1+ / 0-)
              Recommended by:
              JR

              Ok, so I read the polls.

              by andgarden on Sun Oct 09, 2011 at 01:59:54 PM PDT

              [ Parent ]

              •  Two points: (1+ / 0-)
                Recommended by:
                VClib

                1) From a political/jurisprudential/economic standpoint, progressives who support this particular constitutional justification for this mandate are simply being very short-sighted.

                You would be setting a precedent which will certainly be abused in the future in favor of corporations and against individual rights.  In other words, be careful what you wish for.  You're essentially saying that Congress has the Constitutional power to turn us into corporate slaves if it wanted to.  That Congress has the power to direct and channel the way in which individuals spend every penny they have.  Very, very short-sighted and dangerous reasoning.

                Some examples?  For starters, the power to boycott companies could be outlawed.  Upon learning of a boycott - Congress can force individuals to purchase the products of the boycotted company.

                Also, any attempt to privatize Social Security would surely include a law forcing individuals to purchase private securities, 401ks, etc.

                2) The legal reasoning is flawed.  Lopez and Morrison both point out that Congress' power is not infinite.  As such, the Necessary and Proper clause CANNOT be used in the way you describe without it thereby conferring unlimited power to the Congress.  

                Let's look again at the wording of the "Necessary and Proper Clause":

                “To make all Laws which shall be necessary and proper for carrying into Execution  the foregoing Powers” (emphasis added).

                Now, Congress is free to regulate the health insurance market, including pre-existing condition regulation, and it can EXECUTE or implement that regulation without an individual health insurance mandate.  In other words, the fact is that Congress COULD pass a law banning pre-existing condition exclusions without a mandate.  From a procedural, executional standpoint - it can be done.

                The fact that the insurance industry would suffer and/or premiums would increase is an outcome separate and apart from the Congress' ability to pass that regulation.  Though it may be an undesired result, it isn't NECESSARY for the passage of such an act.  An individual mandate may be DESIRED, but it isn't necessary.

                The Necessary and Proper clause gives Congress the ability to enact the enumerated powers granted to it.  It does NOT grant Congress carte blanche to act in ways it could not otherwise act due to lack of an enumerated power.  And it certainly isn't a short-circuit by which Congress can create a problem, and then act in any way it chooses to fix that self-created problem.

                •  If what Congress is trying to do is a serious (0+ / 0-)

                  affront to individual liberties, it will be prohibited by the 5th Amendment.

                  This is neither so complicated nor so dire as you suggest.

                  Ok, so I read the polls.

                  by andgarden on Sun Oct 09, 2011 at 03:09:37 PM PDT

                  [ Parent ]

                  •  You're missing the point and clearly only read (1+ / 0-)
                    Recommended by:
                    VClib

                    the first part of my post.  My personal liberties aren't part of the legal analysis.  

                    Put simply, an individual health insurance mandate is not a power enumerated to it by Congress.  It is not a regulation of commercial activity under the Commerce Clause, nor is it necessary for Congress' implementation of any other enumerated power, including the power to regulate insurance markets.

                    It isn't NECESSARY.

                    •  Oy (1+ / 0-)
                      Recommended by:
                      bignoise

                      Do you understand what "necessary" means in this context?

                      It would be well worth your while to (re?) read McCulloch v. Maryland before you make even more of a fool of yourself.

                      Ok, so I read the polls.

                      by andgarden on Sun Oct 09, 2011 at 03:19:25 PM PDT

                      [ Parent ]

                    •  i tried to address this point previously... (2+ / 0-)

                      in this comment here.

                      i understand the argument you are trying to make. it's just incorrect. read my comment. if it's not clear, follow andgarden's suggestion and read McCulloch. actually, you should probably just read McCulloch anyway, it's a brilliantly written opinion and a foundational piece of our constitutional history.

                      understand that I am not necessarily arguing that i think the individual mandate is a good thing. i'm simply arguing, like the diarist, that it can more than plausibly be upheld as a constitutional exercise of congress' enumerated powers.

                      lastly, be careful about chiding progressives for supporting an individual mandate and then citing Lopez and Morrison, both of which were, in the opinion of many progressives, reactionary decisions. note, they said that a congressional ban on guns in schools and the violence against women act were both unconstitutional.

                      I have long since come to believe that people never mean half of what they say, and that it is best to disregard their talk and judge only their actions. —Dorothy Day

                      by bignoise on Sun Oct 09, 2011 at 04:02:44 PM PDT

                      [ Parent ]

                      •  Hey, I really appreciate your tone (0+ / 0-)

                        I'll reply to you and not the other poster, who decided to forgo civility and insult me instead.

                        Whichever way the decision goes when the SCOTUS eventually hears it, this mandate issue is clearly going to be a close case.   Despite all the precedent available, in the end, any person who thinks about this issue and makes a decision as to its constitutionality ends up making a judgment call as to where they perceive the limits of Congress' power to be.  There is enough wiggle room in any of the precedential cases such that a person wanting to reach any particular result can do so in a jurisprudentially consistent manner.

                        I know that traditionally, progressives have tended toward a more expansive view of Congressional power, because progressives have traditionally viewed the role of government as that of reformer and protector - an entity granted power by the people so that it will pursue their interests.  When one sees government as a vehicle to make people's lives better, one wants to give that government as much latitude and power as possible in doing so.  I completely understand that.

                        Unfortunately, in 2011, the reality is that our government no longer functions in the way that progressives envisioned for it.  In fact, one could argue that an honest reading of American history (Zinn and Chomsky perhaps) uncovers the idea that government has almost always had to be pulled, prodded, and threatened into acting for the people, and more often than not, has been a vehicle for the advantaged to increase their advantage over the masses.

                        But regardless of one's view of American history, the fact of the matter is that TODAY, American government no longer operates "of the people, by the people, for the people."  TODAY, government has been corrupted to a point where almost no reform is possible except when such reform is either minor enough to be inconsequential, or, at the very least, only after corporate interests are first protected or ensured to remain intact.

                        And so it is in this context which I and many other progressives have a difficult time understanding why anybody would want to expand the powers of THIS government.  Taken alone, I could perhaps agree with an expansive view of Congressional powers.  I could, for example, agree with the ruling in Comstock or Raich if you simply read them as individual cases.  But Comstock and Raich don't exist in a vacuum.  Nor will the eventual ruling on the mandate exist in a vacuum.  

                        Instead, that ruling will exist in a jurisprudential and political world where a ruling like Citizens United also exists.  In other words, I simply can't agree that a government which can be legally bought and paid for by corporate interests should be given MORE power over the lives of individual citizens.  And I especially can't see the logic in giving such a government the power to force people to directly purchase things from the same corporations which do the buying and paying for.  

                        These are the reasons I oppose the mandate.  As for the jurisprudential analysis - who are we kidding.  The members of the Court will rule according to their desired result and contort their rulings accordingly.  That much is sure.  What isn't so sure is what those desired results will be.

                        Will a Roberts or Scalia, for example, recognize the potential boon to corporations if the government whose campaigns they fund is given the power to force individuals to purchase things from them?  Or will they take the more traditionally conservative view of seeking to limit government?   We'll see.

            •  Absolutely. (0+ / 0-)

              Probably bad policy, but that's not the test of constitutionality.

              ‎"Our greatest asset as advocates is a deep cognizance of our own ignorance, plus a willingness to do something about it." -Joseph Mitchell Kaye, 1966.

              by JR on Sun Oct 09, 2011 at 05:01:36 PM PDT

              [ Parent ]

        •  Existence (0+ / 0-)
          The requirement to act in a certain way arises by virtue of my existence, NOT by my participation in a commercial market.  

          But your existence also mandates that you use the health care system.  You cannot opt out.  If you try, then when you die, the ME will have to do an autopsy, so you're back sucking at the tit of the public health care system.

          Frankly, I blame everything on Nixon.

          by J Orygun on Sun Oct 09, 2011 at 02:53:24 PM PDT

          [ Parent ]

      •  bignoise - it does not matter (0+ / 0-)

        The fact that health care is something that Congress can regulate through its power relative to the Commerce Clause does not by proxy make the mandate constitutional. Congress had many options on how to fund the ACA, including by using a tax instead of a mandate. Had they used their taxing power there would not be a constitutional question. I am not a lawyer, or constitutional scholar but there is no doubt that the mandate it pushing the envelope on the Commerce Clause. I think the SCOTUS will declare the mandate and thereby the ACA unconstitutional.

        "let's talk about that"

        by VClib on Sun Oct 09, 2011 at 05:26:53 PM PDT

        [ Parent ]

    •  good lord, we're slaves to the court. (0+ / 0-)
    •  Well that's wrong (0+ / 0-)

      But not really the point of my diary.

  •  not his words, but thom hartmann likewise (0+ / 0-)

    argues that an undemocratic body like the supreme court shouldn't be the final and ultimate arbiter.

    In his letter to Judge Spencer Roane, Thomas Jefferson argues against exclusive judiciary construction of the Constitution; such exclusive power of constitutional interpretation would, according to Jefferson, undermine the principle of checks and balances-since it would allow the judiciary department to prescribe rules for the government of the others.

    If the judiciary has sole power of constitutional interpretation, then the Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

    case in point, look at how the supreme court handed over the election to george w. bush. what if the court were to abuse their powers and do this again? what recourse would we have?

  •  what's a lousy mandate (0+ / 0-)

    when the supreme court found it constitutional to execute innocent people.

  •  What a fantastic article! (4+ / 0-)
    Recommended by:
    oculus, Garrett, Matt Z, TampaCPA

    I feel like I'm back in college.  Now I need to write up all these case summaries and memorize them so I can pass my con law test.  I don't think I've ever said this about a diary before, but that was "satisfying".  Like a fine meal.

    Frankly, I blame everything on Nixon.

    by J Orygun on Sun Oct 09, 2011 at 02:33:58 PM PDT

  •  With another Scalia, Thomas or Alito (0+ / 0-)

    this Court would be effectively outright legislating.

    We are so close to losing what little we've got left, its frightening.  

    Republicans totally abandoned conservatism in the 1980s ..

    by shpilk on Sun Oct 09, 2011 at 05:24:58 PM PDT

  •  I do not co-sign this framework (1+ / 0-)
    Recommended by:
    just another vet

    Armando, first, nice diary.  It was an interesting read.  But I've got to throw this out there.  I am delurking for the first time since 06 to make this comment.... I do not agree that the Legal Realist framework for analysis of SCOTUS decision making is useful in this case, especially if we are talking about predicting the outcome of the Affordable Care Act case.  

    A more useful model for analysis would be the Attitudinal Model put forth by Spaeth and Segel.  For those who are unfamiliar, the model asserts that all SCOTUS justices have beliefs, attitudes, and values that manifest in personal policy preferences. The model further asserts that those preferences play the biggest role in SCOTUS decision making.  Judges have biases and beliefs and they act on them.  Spaeth's model uses a sort of Guttman scaling to create attitudinal scales for each of the justices based on how they voted on issues of freedom, equality, and new dealism (those are Spaeth's three categories for SCOTUS cases). It then uses those scales to engage in ex-post and ex-ante predictions via statistical analysis.  It has a 90%+ accuracy rate in ex-ante prediction and a 98% accuracy rate in ex-post prediction, which is better than any other model out there as far as I know.  

    Spaeth also went further, after his model was criticised for being circular (IOW looking at votes to determine votes) and studied precedent.  He used his model to do some ex-post exercises and found that judges DO NOT follow precedent 88% of the time.  Only in 12% of cases did judges actually respect precedent.  I wouuld suggest that the Attitudinal Model is much more reliable and accurate than Legal Realism, Sociological Jurisprudence, Declaratory Theory, or any other theory of judicial behavior.  

    The main problem I have with the other models, including the Realist model, is that there is absolutely no evidence for it.  There is nothing that "proves" the validity of those models.  Quite the contrary, there is plenty of evidence to suggest that the Realist Model is complete B.S.  On the other hand, the Attitudinal Model is backed up by 30+ years of scientific, mathematical analysis.  It's just a better way, IMO, of trying to predict outcomes.  

    I hope you don't have a problem with me dropping this comment here. I'm in the middle of doing an intensive study of the Attitudinal Model and it's on my mind....

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