(Franz Jantzen)
:
Simply put, Obamacare’s proponents, including those in the administration, badly misjudged, and were too overconfident about, the tone, attitude and approach that the court’s conservative bloc, particularly Justice Scalia, would take towards the administration’s arguments.
Keep in mind: Many observers, Obama officials included, spent weeks predicting Scalia could be a key swing vote on the case. Lawyers defending the law wrote some of their briefs and opinions with an eye towards persuading Scalia. They consciously invoked Scalia’s own words from a 2005 opinion affirming Congress’s power to control local medical marijuana in hopes it signaled he might be open to the administration’s defense of the individual mandate.
I am hardly an obsessive court watcher, granted, but I find it truly remarkable that anyone would think Justice Antonin Scalia would be swayed by his own past words on an issue. Of all the things Scalia is known for, judicial consistency is not among them: States' rights are considered sacrosanct for one given decision, then shredded and tossed to the dog in the next. I am
hardly the first person to note how the Scalia opinion in any case can be far more readily predicted by the outcome desired by conservatives than any past suppositions of jurisprudence. Thinking he, in particular, would find himself constrained by his own legal theories seems a laughable argument. I would be astonished if he even
addressed any apparent inconsistencies in his eventual decision.
The "broccoli argument" was, of course, telling: It seemed rather too schoolyardish an argument to be burped out by one of the nine leading jurists in the nation. No, the government does not have the power to demand broccoli-eating, because there is no overriding government interest involved in such a mandate. In an alternate universe where Americans were, say, dying on a regular and predictable basis solely because had no access to broccoli, I imagine that would change things. At least I hope it would.
Paul Krugman points to another part of the argument that he finds depressing:
[C]onservatives used to like the idea of required purchases as an alternative to taxes, which is why the idea for the mandate originally came not from liberals but from the ultra-conservative Heritage Foundation. (By the way, another pet conservative project — private accounts to replace Social Security — relies on, yes, mandatory contributions from individuals.)
So has there been a real change in legal thinking here? Mr. Fried thinks that it’s just politics — and other discussions in the hearings strongly support that perception.
I was struck, in particular, by the argument over whether requiring that state governments participate in an expansion of Medicaid — an expansion, by the way, for which they would foot only a small fraction of the bill — constituted unacceptable “coercion.” One would have thought that this claim was self-evidently absurd. After all, states are free to opt out of Medicaid if they choose; Medicaid’s “coercive” power comes only from the fact that the federal government provides aid to states that are willing to follow the program’s guidelines. If you offer to give me a lot of money, but only if I perform certain tasks, is that servitude?
Yet several of the conservative justices seemed to defend the proposition that a federally funded expansion of a program in which states choose to participate because they receive federal aid represents an abuse of power, merely because states have become dependent on that aid.
Indeed—that seems to take the notion of states' rights to cartoonish levels. The privatization of Social Security I find a compelling theoretical case, however, because I don't think there is any question that the conservative half of the court would find the requirement that all Americans make mandated payments to private companies in
that particular case to be uncontroversial. Again, the desired ideological outcome predicts the logic, not any tortured readings of what the logic used to be two cases ago, or ten. That seems to be what "original intent" most closely means, according to its more fervent adherents. I am no fan of
this mandate either, because I think if a national interest is supreme enough that it requires mandatory participation by all citizens, it by very
definition is a task of government, and not one that should be thrust upon private industry to make a few bucks from. (I think this is where the conservative and nonconservative philosophies part ways in general.)
We have no idea, of course, how the court will rule, or even how individual justices will rule. Scalia may decide that this case demonstrates that broccoli needs to be banned, for all I know. But it is perfectly reasonable to raise an eyebrow at the quality of the debate, and wonder whether the now-gone "Cornhusker kickback" or other common conservative tropes are looming larger in the minds of certain justices than the actual facts of the case presented. This court is already infamous for that most dreaded of conservative bogeymen, judicial activism, and I wonder how far back you have to go to find a Supreme Court as widely considered, by wide swaths of the public, to be a nakedly partisan entity.
I don't know if the dreaded mandate will survive or not. I do, however, think reading the as-yet-to-be-written arguments pro and con will provide yet another window into which of the justices even pretend to give a flying damn about their own supposed judicial philosophies, and which require the imagining-up of heretofore unseen theories as to why none of that matters in this case, because of humbuggery X or tortured analogy Y. What makes things especially lively, remember, is that this hated mandate was the conservative solution up until a scant four or five years ago. If nothing else, the legal explanations for why it was the height of Constitutional wisdom then but an affront to the Founding Fathers now ought to make for some ripping good reads.
