A Scalia Tea Leaf on the Healthcare Law?
by Beverly Mann
from The Annarborist
A Scalia Tea Leaf on the Healthcare Law?
Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law.
—Antonin Scalia, yesterday, dissenting in Michigan v. Bryant
The tea-leaf-reading on how two or three of the justices will vote on the constitutionality of the PPACA has become a bit tiresome, I think, but I’ll engage in it here anyway.
As most people who’ve followed the issue closely know, in 2005 the Supreme Court held (in a case called Gonzales v. Raich) that Congress had the authority under the Commerce Clause to criminalize the production and use of marijuana even when the marijuana is home-grown and used only by the grower, and therefore never enters interstate commerce, because marijuana grown for the personal use can have a substantial effect on the marijuana trade in interstate commerce.
Also as people who’ve followed the PPACA-constitutionality tea leaf-reading debate know, Scalia wrote a separate opinion in that case concurring in the majority’s result. The Commerce Clause alone, he said, does not give Congress that authority, but that Clause coupled with the Necessary and Proper Clause—the clause that gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” including the power to regulate interstate commerce—do.
A fine distinction that only constitutional law nerds think about, but it is the distinction that is at the heart of the debate about the constitutionality of the PPACA.
Michigan v. Bryant is not a Commerce Clause case. It is a Sixth Amendment Confrontation Clause case. The Sixth Amendment gives criminal defendants certain specific rights, including the right to confront (i.e., cross-examine) the prosecution’s witnesses under oath at trial. And seven years ago, in a case called Crawford v. Washington, the Court reversed a 1980 opinion that had carved out a chasm of an exception to that right by allowing the admission of hearsay statements if the statement bears “adequate ‘indicia of reliability.’ ”
Scalia wrote the Crawford opinion. Since then Scalia has been at the forefront of the Court’s expansion of Crawford to kill prosecutors’ use at trial of various types of hearsay evidence, and apparently had been able to run interference internally within the Court to kill attempts by prosecutors to overturn Crawford at least in part. Until yesterday, when he lost that battle to, of all justices, Sonia Sotomayor.
Scalia, in a dissent eloquent both in its logic and its passion, masterfully deconstructs Sotomayor’s opinion. I recommend it to anyone who’s interested in issues of this sort or who wants to see Scalia in a context beyond the sort of public caricature he has, seemingly deliberately, become. That opinion is very understandable to non-lawyers, I think.
But its importance to the issue of the constitutionality of the PPACA is not just the paragraph I quoted from it but that he wrote it in defending a constitutional right dearer to the political left than to the political right. The paragraph is the second-last one. The very last one says:
For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.
—-
Beverly
I know this is a blog… and I am a friend… but I need to take this opportunity to urge all of my friends to step back from what they have just written and try to see it through the eyes of someone who isn’t reading the same “sources” that they are. Just a few words of explanation.. a little summary of the background… would make your point much clearer, and more likely to be convincing.
I guess I find myself in agreement with Scalia here, surprising to me. I long ago lost any hope that judges or justices would be able to set aside their own political preferences for a more careful and honest rendering of the law. But my own political preferences tell me that the purpose of the constitution is to protect the people from “the government.” Something Scalia would agree with, but end up protecting state government from the federal government when the federal government tries to protect the people. and yes, protecting big business from the people trying to protect themselves by means of the government.
I don’t think “necessary and proper” is at all only for “constitutional nerds.” It is essential, to prevent the commerce clause from giving the government power in every case which by some stretch of the imagination affect interstate commerce. If I understand Beverly here, Scalia concurred in finding the marijuana law “necessary and proper.” I would not have. I would have found it a ridiculous and dangerous intrusion into the rights of the people to be left alone absent a credible case that their actions are injurious to their neighbors.
ah… “credible case”… there you go again.
I have almost never agreed with a Scalia decision in a controversial case, but on this one I must agree with his reasoning and outcome. I feel somewhat more comfortable knowing J Ginsburg was also in dissent.
But I disagree with your rationale with respect to the necessary and proper clause. I believe careful study indicates it is a “grant” of authority, not a limiting factor. That obviously was the manner in which J John Marshall saw it, and how it was applied over nearly two centuries since McCulloch.
Hi, coberly,
I’d posted on AB a couple of times on the subject recently, and couple of others have too, so this post was really intended as just a postscript to those posts, which is why I didn’t provide background.
Well, I’m very much in agreement with Scalia in his entire dissent in Bryant, and certainly in what he said in that paragraph I quoted. And while it’s true that large parts of the Constitution are pretty open to interpretation—they are too amorphous to not be—as are many statutes, I agree with you that judges and justices do not set aside their own political preferences for a more careful and honest rendering of the law. Scalia, his protestations to the contrary, is by no means an exception; Bush v. Gore and Citizens United are two quick examples, but there are many others.
But you’ve hit upon a point that I think is really dismaying: that conservative and liberal libertarians alike claim that the purpose of the Constitution is to protect the people from “the government,” but that except for certain select rights that the right really cares about, the right, unlike the left, thinks the Constitution protects rights only as against the federal government, not as against state and local governments. And certainly not as against the judicial branch of state government.
About a week ago, in response to an email Dan sent me about a particular case that was argued in the Supreme Court recently, I began writing what is turning into a really long article that addresses this point. It’s a point that is very dear to my heart, as you might already know from reading my posts. The reason the article will be so long is that it will cover quite a bit of legal ground that needs explanation and background for non-lawyers.
Time permitting, I expect to get it Dan on Saturday or Sunday.
As for the Necessary and Proper Clause, that Clause just concerns Congress’s authority to enact statutes that are “necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The “foregoing Powers” are what are known in Constitutional Law jargon as the enumerated powers—the specific powers that the Constitution identifies as within Congress’s power to legislate about. Interstate commerce; national defense; taxation; etc. The Clause doesn’t address the issue of whether particular statutes violate other parts of the Constitution, such as the civil liberties parts you’re talking about. The issue in Raich was only whether Congress had the power under the Commerce Clause directly, or indirectly through the Necessary and Proper Clause, to prohibit marijuana that never entered interstate commerce. The civil liberties issue you raise wasn’t a subject of that case.
In the debate about the constitutionality of the PPACA, though, these two […]
thanks beverly
as always, i have some trouble with the way lawyers parse reality.
the marijuana law used the commerce clause to do away with what should have been a protected civil right. saying it had nothing to do with civil rights just begs the question.
if i were more clever i am sure i could find the constitutional reasons why requiring people to buy commercial insurance is a violation of their civil rights, but at some point its all just words signifying whatever the resident power wants to accomplish.
what may be interesting here is that a significant part of the citizenry regards the mandate as “unconstitutional” so eventually a Court may agree with me. I wouldn’t expect the Roberts court to agree with me because the Insurance industry wants the mandate.
and the trouble with the draft was that while it was a clear violation of any and all rights the people need to protect themselves from “government,” it was, well, traditional, and easily supported by war fever.
Whoooaaa, Walter. The Necessary and Proper Clause is DEFINITELY a GRANT, not a limiting factor. Actually, the current debate is between, um, Judge Vinson, who thinks the Clause is neither a grant NOR a limiting factor, and everyone else (including Scalia and me), who thinks it’s a grant.
I’m not sure what in my post gave the impression that I think the Clause is a limiting factor. Yikes.
Whoooaaa, Walter. The Necessary and Proper Clause is DEFINITELY a GRANT, not a limiting factor. Actually, the current debate is between, um, Judge Vinson, who thinks the Clause is neither a grant NOR a limiting factor, and everyone else (including Scalia and me), who thinks it’s a grant. (Vinson thinks the Clause has no meaning or purpose at all. Everyone else disagrees.)
I’m not sure what in my post gave the impression that I think the Clause is a limiting factor. Yikes.
Whoooaaa, Walter. The Necessary and Proper Clause DEFINITELY is a GRANT, not a limiting factor. Actually, the current debate is between, um, Judge Vinson, who thinks the Clause is neither a grant NOR a limiting factor, and everyone else (including Scalia and me), who thinks it’s a grant. (Vinson thinks the Clause has no meaning or purpose at all.)
I’m not sure what in my post gave the impression that I think the Clause is a limiting factor. Yikes.
Well, actually what I said, or was trying to say, is not that the law itself had nothing to do with civil rights but that the CASE did not address the issue of a civil rights violation of the sort you’re talking about. The guy who was charged with violating the law challenged the law’s constitutionality under the Commerce Clause; he said his civil rights were violated because the Constitution doesn’t give Congress the authority under the Commerce Clause to pass laws that prohibit conduct that never involves interstate commerce. So his argument was, in that sense, a civil rights argument. But it wasn’t an argument that the marijuana law is unconstitutional because laws prohibiting the growing and use of marijuana, whether in interstate commerce or not, violates what’s known as a “substantive due process” right.
Substantive due process rights are basically rights to make certain types of decisions for yourself, without government interference. E.g., the right to use contraceptives; the right to end a pregnancy; the right to have consensual homosexual sex.
As for the part of the citizenry that regards the mandate as “unconstitutional,” that’s the part of the citizenry that gets it constitutional law instruction for Glenn Beck, I think.
Damn Bev:
Crawford versus Washighton, 6th Amendment and the right to confrontation??? What next . . . Blakely??? Does this appear to be following similar lines as to what we have experienced? The courts can not carve out of the testimony that which does not exist, the same as Vinson has done and Steeh in Detroit has not done with Healthcare. The courts can not invent what is not there or what they perceive to be there without the foundation.
Whoooaaa, Walter. The Necessary and Proper Clause is definitely a GRANT, not a limiting factor. Actually, the current debate is between, um, Judge Vinson, who thinks the Clause is neither a grant NOR a limiting factor, and everyone else (including Scalia and me), who thinks it’s a grant. (Vinson thinks the Clause has no meaning or purpose at all. Everyone else thinks it does)
I’m not sure what in my post gave the impression that I think the Clause is a limiting factor. Yikes.
A Constitutional Law prof named Richard Friedman at good ole U-M has a blog called The Confrontation Clause that he says is dedicated completely to developments related to Crawford has a really good analysis of Bryant and its potential effects—although Scalia’s dissent covered the subject so thoroughly and well that a lot of his post really just echoes that dissent, but he thinks the Court will quickly limit the scope of Bryant. It’s at file:///C:/Users/b/Documents/The%20Confrontation%20Blog%20%20Preliminary%20thoughts%20on%20the%20Bryant%20decision.htm.
As for whether the courts can invent what is not there or what they perceive to be there without the foundation, you know me well enough, buddy, to know that I think they can and that they do, regularly. But I know what you mean.
beverly
no. as to the last. i am somewhat the opposite of a glen beck type. nevertheless i think that if the constitution means anything… other than a reasonably good framework for government checks and balances… if it means anything about protecting the freedom of people not to be harmed by “the government” it would prevent the government from forcing us to do business with people we’d rather not do business with.
would this have meant that businesses could refuse to do business with colored people? probably, and that would have been bad. but the problem here is with the difficulty of trying to write “one rule to rule them all” not with the idea that there need to be limits on what the government can force you to do.
and since it came up, would i regard the draft as “unconstitutional”? yes.
well, i am not a constitutional scholar or even a lawyer. nevertheless
the difference between a “grant” and a “limit” may be in the eye of the beholder.
if the words say “…necessary and proper…” it does not follow that everything that relates to interstate commerce is necessary and proper. the clause would require the court to decide in any given case whether or not the government act was indeed necessary and proper.
no telling how the court would decide that, but absent a whole lot of legal reasoning to the contrary which i haven’t read, and may not agree with, it’s hard for this ol’ legislated upon peasant to follow your … assertion.
A Constitutional Law prof named Richard Friedman at good ole U-M has a blog called The Confrontation Clause that he says is dedicated completely to developments related to Crawford has a really good analysis of Bryant and its potential effects—although Scalia’s dissent covered the subject so thoroughly and well that a lot of his post really just echoes that dissent, but he thinks the Court will quickly limit the scope of Bryant. It’s atfile:///C:/Users/b/Documents/The%20Confrontation%20Blog%20%20Preliminary%20thoughts%20on%20the%20Bryant%20decision.htm.
As for whether the courts can invent what is not there or what they perceive to be there without the foundation, you know me well enough, buddy, to know that I think they can and that they do, regularly. But I know what you mean. And I know you know what I mean: that they do this although they don’t have the legal authority to do it.
A Constitutional Law prof named Richard Friedman at good ole U-M has a blog called The Confrontation Clause that he says is dedicated completely to developments related to Crawford has a really good analysis of Bryant and its potential effects—although Scalia’s dissent covered the subject so thoroughly and well that a lot of his post really just echoes that dissent, but he thinks the Court will quickly limit the scope of Bryant. It’s at file:///C:/Users/b/Documents/The%20Confrontation%20Blog%20%20Preliminary%20thoughts%20on%20the%20Bryant%20decision.htm.
As for whether the courts can invent what is not there or what they perceive to be there without the foundation, you know me well enough, buddy, to know that I think they can and that they do, regularly. But I know what you mean. And I know you know what I mean: that they do this although they don’t have the legal authority to do it.