Laurence Tribe on the ACA … and the Supreme Court justices
by Beverly Mann
Laurence Tribe on the ACA … and the Supreme Court justices
Argggh. In rereading my comment from yesterday to Bruce’s “Health Care ACA Act: Who does the Roberts Court Work For?” post, I realized that there’s a major part of my comment that’s, well, missing: the part that explains why I started out saying that the potential conflict between the pro-business Republicans and the Tea Baggers, and therefore between the business-interests-first justices and the Tea Party justices, appears more significant than it actually is, but ended up predicting that business-proxy Roberts and anti-libertarian Alito indeed would part company with Tea Partiers Scalia and Thomas and vote to uphold the insurance mandate.
OK, well, I was in a hurry when I wrote that post. Today I’m not in a hurry, and I was going to post a comment explaining how I got from Z to A. But it turns out that eminent Harvard constitutional law professor Laurence Tribe did that for me, in an op-ed piece today in the New York Times: On Health Care, Justice Will Prevail.
(Dan here…The prestigious Scotusblog makes mention of Beverly’s post on the Supreme Court justices in its roundup.)
Tribe explains, as I should have but did not, that a new Supreme Court precedent on the breadth of Congress’s authority under the Commerce Clause, via the Necessary and Proper Clause, of the sort that would be necessary to invalidate the insurance mandate in the ACA, also would establish grounds to invalidate a slew of federal laws, current ones and potential ones, that Scalia and Alito like, particularly criminal laws of the sort that the Court upheld in a 2005 opinion written by Scalia and joined by Alito (uphold a law making it illegal to grow marijuana on your own property for your own use rather than for sale in interstate commerce), but also—although Tribe doesn’t mention this—laws such as the one requiring 18-years to register with the Selective Service.
The authority for the Selective Service law is the Constitution’s “provide for the common defense” Clause rather than the Commerce clause, but the main objection to the ACA’s insurance mandate is, as Judge Vinson put it, that it compels activity by those who want to opt for inactivity. If that’s a problem under the Commerce Clause paired with the Necessary and Proper Clause, why wouldn’t it be problem under the Common Defense Clause when paired with the Necessary and Proper Clause?
But Tribe and I part company in predicting what Scalia will do, mainly because we part company in our view of the intellectual integrity of the justices, and probably of judges in general.
To imagine that Justice Scalia would abandon the fundamental understanding of the Constitution’s necessary and proper clause that he expressed six years ago in the marijuana case, because he was appointed by a Republican president, is to insult both his intellect and his integrity, Tribe says. Well, his integrity anyway. As would imagine that Justice Scalia would abandon the fundamental understanding of the Constitution’s necessary and proper clause that he expressed six years ago in the marijuana case, because he is a Tea Party fave would, too.
And as several commentators have pointed out recently, Scalia indicated recently in a dissent from the Court’s refusal to hear a particular case, that’s likely what he’ll do. Only Thomas, who dissented from Scalia’s opinion in the marijuana case in 2005, also dissented from that recent refusal to hear that other case.
Tribe’s umbrage that legal commentators are expressing their expectation that the Court will divide 5-4 along ideological lines in deciding whether the mandate in the ACA is constitutional makes my skin crawl. Tribe, some of y’all may recall, was Al Gore’s Supreme Court advocate in Bush v. Gore. His point that the ACA opinion will not—could not—be a ruling good for that case only is spot-on. Which is why I think Roberts and Alito will vote to uphold the mandate. “My bet—not the ranch, but let’s say a nickel—is that Roberts and even Alito will vote to uphold the mandate,” is how I ended my post comment to Bruce’s post yesterday.
But Tribe knows well that it is only for that reason—that the ACA case, unlike Bush v. Gore, cannot be limited to that case only, and that an opinion invalidating the insurance mandate as beyond the reach of the Necessary and Proper Clause, would have repercussions that some of the Federalist Society justices wouldn’t be happy about—that those justices may vote to uphold the insurance mandate. For that reason, Scalia may have second thoughts and vote to uphold it; it won’t be because his intellectual integrity is impeccable.
Just as Tribe’s fawning over Scalia and the other justices has everything to do with Tribe’s ongoing Supreme Court practice, and nothing to do with his opinion of the intellectual or personal integrity of the justices.
Bev:
I hope you are correct as this would shoot down any future challenges. I see 5-4 as the outcome with Kennedy going with the more liberal.
It’s always just a guess until oral argument, of course, run. But unless Roberts thinks Big Business—the types of folks (corporate “persons” and their execs) on whose behalf he used to argue cases before the Supreme Court and other courts—is strongly against upholding this mandate, then I think Bruce is right that it will be only the Tea Bag justices that will vote to kill the mandate as unconstitutional. Alito is a pro-business Republican, but more than that, he’s a circa 1985 pro-government-police-powers Republican. For him, the latter will always trump the former, I think, when the two could prove incompatible, as they could in this case.
As for Kennedy, he’s an uber-Federalist when it comes to exempting state courts from compliance with constitutional rights. In that context, he, like Thomas, doesn’t believe in the Supremacy Clause. And he’s having his way on that these days, in spades. But the issue of the breadth of Congress’s power under the Necessary and Proper Clause to enact laws effectuating the “enumerated powers”—e.g., the Commerce Clause; taxation authority; providing for the common defense—is an entirely different federalism issue than the one concerning the ability of state courts to ignore the Supremacy Clause.
Some Tea Baggers are libertarians in both respects. Thomas is not among them. Either is Scalia. And Kennedy, to the extent that he identifies with the Tea crowd, isn’t either. But I don’t think Kennedy’s really a Tea Bagger at all. But, who knows?
Bev
you underestimate a top legal mind’s ability to “distinguish” cases. it’s possible the Supremes might be deterred by fear of establishing a precedent, but i wouldn’t bet on it. my bet is they will uphold because it is in our Ruler’s interest to change the health care paradigm. but of course the Court won’t put it that way.
Run
this won’t do you any good, but liking the health care act may not be a good enough reason to put up with the “mandate.” there are better ways to get a better health care act.
Coberly–The ACA was the product of the Health Insurance industry’s hand-picked lobbyist who set up shop in the SFC and cranked out this bill. The “individual mandate” was the price the HI industry’s extracted for letting the Congress and administration pass anything. The ACA buys the HI carriers time. But, eventually, Congress will probably turn to single payer as the last resort to control spiraling health care prices. This bill regulates the HI carriers. What we need is to abolish for-profit medicine through single payer. And, that is a horse of a different color. NO
I had a conversation with a friend, from my old military life, in another part of the US about the challenge to ACA/HCR, he being somewhat libertarian and mainly conservative we bounce things off each other.
My reply ‘it is refreshing to see the conservatives doing ‘judicial activism” a tactics set they used to oppose.
We changed the subject………………………
I don’t think single-payer converts the practice of medicine into a non-profit industry, Nancy. After all, Medicare hasn’t done for care for seniors. What it would do is convert the health INSURANCE industry in a non-profit enterprise. Which is something I’d LOVE to see.
I don’t think single-payer converts the practice of medicine into a non-profit industry, Nancy. After all, Medicare hasn’t done that for care for seniors. What it would do is convert the health insurance industry in a non-profit enterprise. Which is something I’d LOVE to see.
I don’t think single-payer converts the practice of medicine into a non-profit industry, Nancy. After all, Medicare hasn’t done that for care for seniors. What it would do is convert the health insurance industry into a non-profit enterprise. Which is something I’d LOVE to see.
Sounds like that was a good idea, ilsm. LOL.
Bev
constitutionality is what the Supremes say it is. I was fairly sure i understood you to be arguing that some of the supremes at least would not care to set a precedent they wouldn’t like. my guess is they are smart enough to find a way around their own precedents when they want to.
actually, it need not even do that.
a model for health care similar to the way we build roads in this country would work fine:
the government collects the taxes and sets out contracts for bid. insurance companies would bid to handle blocks of insurees according to gov’t specifications under government supervision.
i’ve built a few bridges this way. works fine.
Of course, coberly. Which exactly what I expect that Scalia will do, or ague for, in voting to strike down the insurance mandate. But Roberts, Alito and Kennedy may not be so sanguine in presuming that a majority of justices will decide to find a way around their own precedent when the next case comes along. If Kennedy votes to rule the mandate unconstitutional, can Alito and Roberts be sure he’ll help them find a way around that precedent when the Necessary and Proper Clause case comes along?
And Scalia and Kennedy aren’t young men anymore. Do they not care what happens once their no longer on the Court?
Of course. Which exactly what I expect that Scalia will do, or ague for, in voting to strike down the insurance mandate. But Roberts, Alito and Kennedy may not be so sanguine in presuming that a majority of justices will decide to find a way around their own precedent when the next case comes along. If Kennedy votes to rule the mandate unconstitutional, can Alito and Roberts be sure he’ll help them find a way around that precedent when the Necessary and Proper Clause case comes along?
And Scalia and Kennedy aren’t young men anymore. Do they not care what happens once they’re no longer on the Court?
Of course, coberly. Which is exactly what I expect that Scalia will do, or ague for, in voting to strike down the insurance mandate. But Roberts, Alito and Kennedy may not be so sanguine in presuming that a majority of justices will decide to find a way around their own precedent when the next case comes along. If Kennedy votes to rule the mandate unconstitutional, can Alito and Roberts be sure he’ll help them find a way around that precedent when the Necessary and Proper Clause case comes along?
And Scalia and Kennedy aren’t young men anymore. Do they not care what happens once they’re no longer on the Court?
Of course, coberly. Which is exactly what I expect that Scalia will do, or ague for, in voting to strike down the insurance mandate. But Roberts, Alito and Kennedy may not be so sanguine in presuming that a majority of justices will decide to find a way around their own precedent when the next case comes along. If Kennedy votes to rule the mandate unconstitutional, can Alito and Roberts be sure he’ll help them find a way around that precedent when the Necessary and Proper Clause case comes along?
And Scalia and Kennedy aren’t young men anymore. Do they not care what happens once they’re no longer on the Court? Do Roberts and Alito not care what happens when Scalia and Kennedy are no longer on the Court?
Better LOL than break down in despair.
O Tempores O Mores.
Beverly
well, just to distinguish: you are arguing that Scalia will “distinguish” but that Roberts wont… or wont take the chance. which interests me because i replied to your earlier comment that i thought you were underestimating the Courts ability to “distingusish” and you replied “not so.. that was Tribe… but you fully expedt Scalia to distinguish.” (quotes suggestive only) which strikes me as a pretty good example of why people have so much trouble understanding each other.
which is part of what makes me wonder why you are so sure you know what is “constitutional.” I have to speculate that all the lawyers and scholars who tell us with great certainty what is constitutional are usually right about what the court will decide, if for no other reason because the court is afraid of their opinion.
but then you say we can’t really tell until the orals.
me, i can’t guess. but i got cynical a long time ago. and now mostly try to limit myself to my opinion about the wisdom of the policy.
btw don’t take any of this as unfriendly. we’re all in this together. i would like to see universal health care, but i think a straightforward tax is a better way to do it.
still not clear.
i expect that Roberts et al are fully as capable of distinguishing as Scalia. but we won’t see it here, because in fact he will favor the mandate on accounta that’s what his friends want. so you will get your mandate, and we will get the feds regulating home grown. not that i am a big marijuana advocate, but i am a big believer in limited government… just not the tea partiers idea of what that means. or, for that matter, Roberts idea of what that means.
ilsm
i think it would be accurate to observe the R’s doing exactly what they have always accused the other side of doing. at best it is (was) something like what psychologists call projection… being afraid the other guy is going to do what you want to do. at, not worst but maybe most realistic, it is just politics as usual. call the other guy a crook so you can get elected and steal the money yourself.
I think Scalia might in the end back away from “distinguishing” between his opinion in the marijuana-growing case and the ACA case. I think Tribe might be right on that. But not because Scalia has such great intellectual integrity, as Tribe claims, but instead because it would be a powder keg that could explode sometime down the road in his and other conservatives’ faces, mainly concerning criminal statutes like the statute at issue in the marijuana-growing case.
I know it’s not personal, coberly. And I, like you, think it’s clear as day that a straightforward progressive tax is by far the best policy solution.
beverly
i think if i were a Supreme I could do a lot of distinguishing behind that “necessary and proper” clause. but i am pretty sure my idea of necessary and proper would differ from Scalia’s and Roberts’.
Personally, I think this controlling bunch on the bench don’t care much about precedent other than that which sets up the US in their image. Thus, as with Citizens, they will present a decision that is argued to get them what they want with no regard for precedent because they just set a new precedent.
That whole story we are told in civics (or were told when civics was taught) about how our law works, chain of evidence, etc…myth. These guys feel they are the stop gap for all that defines the US.
If they blow up some other thing, like selective service registering, well, they know a case will come before them and they can decide then a new precedent. Besides, commerce is private and selective service is patriotic. See how easy that is.
Am I suggesting there will over time be no rhyme or reason beyond “I said so” to our final court of opinion? Yes I am. Just like we see currently with our legislature.
Personally, this supreme court could benefit from playing Jenga and playing in a band. Or better yet, working on a town rubbish truck.
maybe not too progressive. i would favor something that looked like Social Security. a flat tax up to some reasonable cap where the taxpayer was paying his “expected” cost of medical care plus his “expected” cost of having an income too low to pay his expected medical costs.
Tribe compares the insurance mandate with Social Security. If the reform were to go the rout of expanding medicare, then he would not only have a popint, we could have had a better health insurance reform. Social Security is a tax imposed by government on earnings that funds government run program that does not create a private profit. The challenge to the mandate is based on the fact that goventment mandate to contract with a for profit corporation amounts to part time slavery. Justify this – Tribe, and the purported five justices.