June 29, 2012
A Journey Through The Healthcare Apocalypse With Glenn Beck

With the recent Supreme Court decision upholding the Affordable Care Act, this epic tale from Cracked.com needs to be brought back:

It is the year 2020, and Obamacare has made the world a very different place. It is this distorted realm that our protagonist finds himself unwittingly, kind of awkwardly and very drunkenly thrust into. After having fallen asleep in the year 2010 and, possibly due to some sort of top secret army experiment in cryogenics (but far more likely due to passing out in that meat locker), he has become frozen in time and arisen 10 years hence to find the America he once knew “hanging by a thread.” Let this tale serve as a warning of things to come:

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June 28, 2012
The Roberts Court: Now With Jokes

As I was reading through the healthcare opinion earlier, this statement from Justice Roberts’ Commerce Clause analysis caught my eye (pg. 26):

The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.  Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States. 

I couldn’t help but chuckle when I read this, as it made me think of the following photo:

There are logical, sound, reasonable arguments for reserving certain powers to state governments rather than to the federal government.  But tyranny by any other name is tyranny nonetheless.  Yes, one of the advantages of federalism is that if you don’t like the laws of a particular state, you can move.  But the same argument applies to the country writ large.  So too does the obvious objection to the former: most people can’t simply pick up and move when things get bad.  Human beings tend to develop localized networks of social, economic, professional, and emotional support that they rely on in their daily lives in order to thrive.  You can’t bring those networks with you when you leave a state.  There’s always significant sacrifices to be made, not least of which is the loss of familiarity with your surroundings, forced distance from loved ones, and the professional relationships you may be forced to leave behind.  

The police power of the states, in my opinion, is a far broader and scarier thing than the Commerce Clause ever has been or ever will be.  And unlike the federal constitution, state constitutions are fairly easy to amend.  While this makes onerous provisions easier to abolish, it also makes rights and guarantees much less resilient.  This is both the blessing and curse of decentralized polities.

It should also not be forgotten that at many points in history, it has been the federal constitution, enforced by the federal government, which has prevented American citizens from suffering at the hands of state lawmakers.  The darkest periods in our nation’s history, viz. Slavery and Jim Crow, were justified by the police power of the states.  If you review the arguments of state attorneys general in old cases, you find that discrimination against women was justified by the police power of the states.  You find that anti-miscegenation laws were justified by the police power of the states.  You find that discrimination against gays was and is justified by the police power of the states.  You find that onerous restrictions on expression and free speech have been justified by the police power of the states.  The breath of state laws that imposed onerous restrictions upon unpopular classes of citizens is long and painful to apprehend; as are the multifarious and unfortunate indignities visited upon various marginalized groups of people throughout American history.

Yet in virtually every case, it was the federal constitution, and in many cases the federal government, that helped end these various forms of oppression.  Local state governments with popular support legislated against unpopular minorities, and federal power stopped them.  That could not have happened if we held up the Tenth Amendment and the doctrine of enumerated powers as the supreme guideposts of constitutional interpretation.

The true benefit of federalism is that it creates a system of dialectical power-sharing. The states are granted the purview to serve as “laboratories of democracy” to come up with novel ways to solve problems.  But when a purely local solution cannot be efficiently implemented in isolation from the rest of the country, the federal government has the scope of jurisdiction to address it.  The founders recognized that not every problem was within the power of an individual state to solve.  That is why they gave the federal government the ability to regulate interstate commerce in the first place.  It is also why the founders gave the federal government the authority to print money, to regulate immigration policy, and to have the final word in international relations.  They wanted the federal government to be able to craft policy in areas where economic and national security realities would render a localized solution ineffective.  As our nation’s history evolved, and the Fourteenth Amendment was passed, the federal government’s power to regulate areas of national concern became a check on state power, in addition to addressing matters of national concern.  This allows the federal government to protect people when states abuse the obscenely broad authority that the police power inherently grants them.  It also allows the federal government to protect people where the states have failed to do so.

Conversely, when it is the federal government fails to act, states can implement their own laws to protect the rights of their citizens.  We see this exemplified in the relatively recent trend of state legislative enactments legalizing same-sex marriage.    We also see it in the criminal justice system, where certain states have rejected the Supreme Court’s rather loose interpretation of the Fourth Amendment’s Search and Seizure Clause, and used state constitutions and statutes to protect their citizens from unreasonable intrusions by law enforcement officials.  Yet here again, the federal government fills a necessary gap: 42 USC § 1983 provides a civil remedy against state government actors who violate their constitutional rights.  This remedy abrogates the sovereign immunity of the states granted by the Eleventh Amendment.  Where the states refuse to protect citizens from lawless government actors, the federal government steps in to protect them, and vice versa.  At least that’s the way it’s supposed to work.

It is this simultaneously antagonistic and symbiotic relationship that creates a healthy federalism.  It is the same federalism that grants the federal government the power to come up with a national solution to a problem like healthcare, where our nation’s woes are shared across state lines, and consequently, do not easily admit of a local solution.  Keep in mind that this is not an argument about private v. public sector.  It is about state government v. federal government.  And to the extent that the former retains a broad an untamed police power, I am more than happy to see the federal government entertain a broad authority under the Commerce Clause.  And I think this is also the reason why previous Supreme Courts, throughout history, have interpreted the Commerce Clause broadly.  They were able to see that not every problem can be solved at the local level.  And though government is by definition an imperfect institution, that imperfection is manifest in ill-advised state law as much as it is in federal law.

And so I disagree with Roberts’ Commerce Clause analysis.  I think the activity/inactivity distinction is vacuous and unprincipled; many a constitutionally enacted law places affirmative obligations on people to act, at a cost to themselves, where they otherwise wouldn’t.  But more importantly, I think proponents of Roberts’ interpretation of the Commerce Clause fail to give due consideration to the much broader police power of the states, which Roberts has declared perfectly encompasses the ability to regulate inactivity.  This may Give Mitt Romney a colorable premise for distinguishing his Massachusetts healthcare reforms from the Affordable Care Act.  But it does not give me much comfort to know that the state governments may oppress me in ways the federal government is restrained from doing.  

What might I do to avoid this tyranny?  As a New Yorker, I suppose I could always move to Massachusetts.  But after being in Springfield during the lead-up to the 2004 World Series, I don’t think I could tolerate the oppression of Red Sox fans, who I must admit I now fear more than the states’ police power.  But given the Red Sox’ track record since then, perhaps I shouldn’t be too worried.  Perhaps.

June 28, 2012
"It is not our job to protect the people from the consequences of their political choices."

Justice Roberts, from today’s healthcare decision.

This statement will be quoted in future decisions that have nothing to do with healthcare.  It may even eventually find itself in the same diaspora as  "the constitution is not a suicide pact," and "stare decisis is not an inexorable command," though such proliferations tend to be organic and difficult to predict.  Nonetheless, this is an affirmative statement about judicial deference to the elected branches that Roberts likely inherited from Rehnquist, who was far more afraid of judicial tyranny than congressional tyranny.  

It’s becoming increasingly clear that Roberts used this decision as an opportunity to outline his theory of federalism in clear, concise terms.  This decision will be cited for far more propositions than the question of whether mandates are constitutional.  Roberts has written his magnum opus.

June 28, 2012
The Healthcare Ruling Is A Blessing In Disguise For Advocates Of A Smaller Commerce Clause

After reading through the opinion, I was going to make a post about how this decision is actually a blessing in disguise for people who want a smaller Commerce Clause.  But it looks like Tom Scocca got to this before I could.  Here’s the operative piece of Roberts’ opinion:

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.  Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power toregulatecommerce, not tocompelit. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

Scocca elaborates:

The business about “new and potentially vast” authority is a fig leaf. This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005,Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.


Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

There is a silver lining to this decision for advocates of a smaller Commerce Clause.  I am quite sure that Roberts signed on to this opinion in exchange for being allowed to insert language that will plant the seeds for future Commerce Clause jurisprudence.  Ginsburg didn’t join this analysis, so the precedental value of Roberts’ Commerce Clause language is limited.  But time will tell if it signals a turning point for the Court’s Commerce Clause jurisprudence.

June 28, 2012
"[T]hrough it all, it turns out, John Roberts remained a lawyer at heart, and a pragmatic one. I haven’t yet read the full opinion, but the very fact that he sustained the Act as a tax shows that he has a deeply anti-formalist streak. That was apparent during the oral arguments, when he, more than anyone, expressed puzzlement over how one could even say that the law contained a “mandate” when its only enforcement mechanism was tax liability for some and nothing for others. And in the end, it turns out that was enough for him."

Mike Dorf, who clerked for Justice Kennedy in the early 90’s.

June 28, 2012
And The Award For Best Prediction Goes To…

As reported by SCOTUS blog, Here’s the operative statement from Roberts’ majority opinion upholding the Individual Mandate:

Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

Here is Joey Fishkin, writing at Balkinization in April of this year:

Conveniently, as it turns out, the only language in the statute saying that individuals “shall” maintain insurance coverage is located in its own (very short) section, Section 5000A(a).  The tax penalty can be found in Sections 5000A(b) and following.  It would be very straightforward for either Justice Scalia or his law clerks to strike 5000A(a) and leave everything else intact.

Read the rest of the post.  Fishkin’s career just got a little bit better.

June 28, 2012
It looks like Roberts joined the majority opinion upholding the Mandate.  On account of that, I can’t resist sharing this e-mail I exchanged with a few colleagues last night as we were making predictions about the decision.
I apologize for the self-indulgence.  But jesus, I should have put money down on this one.

It looks like Roberts joined the majority opinion upholding the Mandate.  On account of that, I can’t resist sharing this e-mail I exchanged with a few colleagues last night as we were making predictions about the decision.

I apologize for the self-indulgence.  But jesus, I should have put money down on this one.

June 28, 2012


June 27, 2012
On SCOTUS’s Coming Healthcare Decision

I think one of the more poignant talking points that’s been lost in the discussion over the Individual Mandate in the Affordable Care act is the degree of consensus in the legal academy regarding whether the law was constitutional.  I’ve touched on this briefly in the past, but it bares a second look.  

When the constitutional challenges to the Individual Mandate started, many folks in the legal academy took one look at the precedents and thought the smart money was on a 6-3, 7-2, or 8-1 decision upholding the mandate.  That assumption was only challenged when it seemed like the conservative side of the bench was not enthusiastic about the Mandate.  A recent poll from Bloomberg confirms the trend:

Bloomberg surveyed 21 top constitutional scholars and found that, while 19 think the individual mandate of the Affordable Care Act ought to be upheld on the basis of legal precedent, just eight think the Supreme Court will actually do so[.]

When the initial challenges to the Individual Mandate were issued, the majority consensus was that the mandate would be upheld on the basis of established case law.  This consensus is represented elsewhere by, inter alia, an ABA journal survey of legal practitioners, academics and court watchers published earlier this year in which 85% of respondents believed the mandate would be upheld.  Erwin Chemerinsky, Dean of U. Cal. Irvine School of law, who has written more legal treatises accidentally in his sleep than most lawyers will ever read, noted at the time:

Since 1936, not one federal law has been declared unconstitutional as exceeding the scope of Congress’s taxing and spending power and no spending program has ever been struck down because its conditions on the states are too onerous.

Christina Whitman, who teaches at U. Michigan school of law, notes at the first link above that “The precedent makes this a very easy case[.]”  Jesse Choper, from U. Cal. at Berkely, noted that “It’s relatively straightforward — if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.”  Elsewhere, Orin Kerr, who teaches at George Mason University and is a regular Volokh Conspiracy contributor (not exactly a crowd friendly to the ACA), said near the outset of the ACA litigation that there is a less than 1 percent chance that the courts will invalidate the individual mandate.”  So that should give you an idea on where the legal consensus was at the outset of this litigation, even assuming the ideological leanings of the Court.

What will most define the healthcare ruling when it comes down is the Court’s decision to either adhere to precedent, or depart from it.  A departure from precedent would of course be a textbook example of what often gets called “judicial activism.”  But that is really just a term that people use when they don’t like the way a decision goes.  Nonetheless, if one defines activism as wanton departure from legal precedent, the Roberts Court has been one of the most activist courts in history.  Justice Stevens noted in his dissent in Citizens United:

[T]he Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990).  Relying largely on individual dissenting opinions,  the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL), McConnell v. FEC, 540 U. S. 93 (2003), FEC v.  Beaumont, 539 U. S. 146 (2003), FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986)  (MCFL),  NRWC, 459 U. S. 197, and  California Medical Assn. v. FEC, 453 U. S. 182 (1981).

Whatever one thinks of the constitutionality of the ACA, there is no question that if it is overturned, it will be a decision based on public policy, and not stare decisis.  To be sure, there’s nothing inherently wrong with that: courts make decisions based on policy all the time (virtually every legal practitioner has a laundry list of bad precedent that they think should be re-visted and overruled).  But I suspect that the justices who vote to strike down the mandate will attempt to argue, as the majority did in Citizens United, that they are actually being faithful to the court’s precedents.  Nothing could be further from the truth.

May 27, 2012
Many hospitals, doctors offer cash discount for medical bills



The lowest price is usually available only if patients don’t use their health insurance. In one case, blood tests that cost an insured patient $415 would have been $95 in cash.

Remember that entry I wrote about health care costs being a result of a disruption of the price mechanism viz. government-promotion of insurance companies? Yeah, this is my point.

LTMC: This is the exact opposite of what normally happens.  It is much more common for hospitals to charge patients without insurance more because insurance companies have the economic clout necessary to bargain with healthcare providers for lower rates.  Individual patients have no such clout, and even if they did, would be in a poor position to use it in most cases.  A person who is bleeding from a gunshot wound cannot defiantly refuse to patronize the nearest hospital because he finds their services “unreasonably priced.”

I suspect that the LA Times is failing to control for the income of the self-payers.  Giving out charity care through reduced rates is not the same thing as bargaining at arm’s length.  It’s an attempt to reconcile their bottom line with their responsibilities under EMTALA.

(via yung-lysenko-deactivated2014040)

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