In an email exchange between Dan and me on Tuesday, I wrote:
Btw, the Supreme Court has been amazingly slow this term in issuing opinions in high-profile cases. Most of the opinions they’ve issued recently are on pretty esoteric issues; they’re important, but pretty inside-baseball. A good example is an opinion they issued yesterday. Here’s a great article on it at SCOTUSblog…. If you read it, I think you’ll see what I mean by esoteric and inside-baseball. I do have to say—as the author of the article does—that Alito’s dissent is spot-on. And, as the author says, it’s downright baffling that five justices signed on to Thomas’s wacky opinion. The article indicates that Thomas apparently flipped Scalia after the oral argument. Scalia had it right the first time.
In an op-ed piece yesterday in the New York Times, Linda Greenhouse, that paper’s longtime Supreme Court correspondent, who retired three or four years ago but still writes two or three op-ed commentaries a month there, mentioned the Court’s slow pace in issuing its “big” opinions this term. Then she discusses an opinion that the Court issued on June 4 that, like most Supreme Court opinions, got little attention in the mainstream press but is nonetheless important.
Most Supreme Court opinions decide “procedural,” “jurisdictional” or “standard-of-judicial-review” questions, which sometimes involve constitutional questions, often under the guise of statutory-interpretation ones. Often, the court treats these cases as though they present only issues of interpretation of a federal statute and pretend that the case does not implicate constitutional law even if really does. But the case Greenhouse discussed, Amour v. City of Indianapolis, was squarely a constitutional-law case involving the Fourteen Amendment’s equal protection clause, and did not involve a federal statute but instead a Supreme Court-created standard of judicial review of the constitutionality of a government policy or law that has the effect of discriminating against some class of people.
Under the Court’s longtime equal-protection jurisprudence, the law is more tolerant of certain types of government discrimination than of other types of discrimination. Laws or policies whose purpose is purely fiscal are among the types of government actions entitled to the most tolerant, or most “deferential,” level of judicial “scrutiny.” Courts are not entitled to bar those laws or policies as violative of the equal protection clause unless there is no conceivable legally legitimate “rational basis” for the discrimination. Greenhouse observes (as most liberal court watchers have recognized) that the conservative justices select out a few favorite conservative causes—most notably, the cause of George W. Bush becoming president instead of Al Gore, but also challenges to government affirmative action programs, and issues concerning religious speech in public schools (which Greenhouse doesn’t mention), and property-rights and tax cases—in which to champion the right of equal protection, while otherwise normally accepting virtually any stated basis for government discrimination as a sufficiently rational one to pass constitutional muster. Of these conservative-favored types of cases, the deferential “rational basis”—i.e., almost anything goes—standard is applied only to the property and tax-type cases. Conservative legal-movement types hatethat it is.
Armourconcerned a sewer improvement assessment in an Indianapolis subdivision. Greenhouse summarizes:
The city gave the 180 property owners affected a choice of how to pay the $9,278 assessment: in a lump sum, or over time with interest. Most chose to pay over 10, 20 or 30 years. Three dozen paid up front, and the city then played them for suckers, announcing a year later that it was changing the way it financed sewer improvements and would issue bonds to cover most of the cost. It would forgive the indebtedness of the installment-payers. But the city refused to give the full-payers any of the refund they demanded.
The full-payers sued for a refund of all but the first year’s pro-rated assessment. In a 6-3 opinion written by Breyer, the majority accepted as a sufficiently legitimate rational basis the city’s claim that the refund process would be difficult administratively and that the city then also would probably have to make similar refunds in other parts of the city. Roberts wrote a strong dissent, but, as Greenhouse points out, it was fact-based rather than an attempt to change the law itself. Roberts, joined by Scalia and Alito, said that the city’s proffered basis was not sufficiently legitimate under the rational-basis to pass equal protection muster. But he did not advocate a change in equal protection legal doctrine itself; he did not suggest that the Court should abandon the rational-basis test for property-rights and other fiscal cases. And Kennedy joined Breyer’s majority opinion.
Which Greenhouse interprets as potentially indicative of the outcome of the Affordable Care Act case. I do too, although I’d already concluded more than two months ago that Roberts and Kennedy probably would vote to uphold the individual-mandate provision. I based that in part on an earlier Greenhouse op-ed in the Times, in which she discussed a comment by Kennedy late in the oral argument on the challenge to the individual mandate, and a comment by Roberts. Neither comment had gotten much attention in the press coverage immediately following the argument (and I hadn’t read the lengthy transcript of the argument). I also concluded once the dust had settled two or three weeks after the argument, and I’d read many articles and commentaries about it, that the majority might tacitly and effectively uphold the mandate’s constitutionality, by not formally making that ruling at this time but making it clear that eventually they will. I still think that’s a possibility, but one that, because of recent historical findings by a Harvard professor published a few weeks after the argument, is less likely now.
In several posts on AB beginning about a year ago, I argued that the challengers’ Commerce Clause argument—that in enacting the ACA, Congress’ exceed its power under the Commerce Clause—was really a disguised Fifth Amendment “substantive due process” argument (liberty! freedom!), not a Commerce Clause argument at all. Under the Supreme Court’s Commerce Clause jurisprudence, beginning in the mid-1930s with cases challenging the constitutionality of some of the New Deal legislation, and including a high-profile opinion issued in 2005, the ACA appears comfortably within the authority of Congress’s Commerce power. It was that darned liberty thing that really was at issue: the slippery slope to Congress’s requiring the purchase of broccoli. That is, this is a Fifth Amendment substantive due process argument, not a Commerce Clause argument. As I pointed out, the “freedom” issue would be the same whether Congress achieved the end through it Commerce power or instead through its taxing power.
And, in fact, the ACA’s enforcement mechanism—the penalty for not obtaining medical insurance arguably is a tax. And since that’s the only enforcement mechanism—there is no provision for arrest and imprisonment, for example—the taxing power would suffice. But that still would leave the issue of freedom! liberty! And that slippery slope to broccoli-purchase mandates. Unless, of course, the ACA mandate is no different, in a liberty! freedom! sense, whether enacted through the Commerce power or instead through the taxing power, than, say, Medicare and Social Security, but that a broccoli mandate, whether enacted through the Commerce power or instead through the taxing power is very different, and would be a violation of Fifth Amendment substantive due process (personal choice, liberty).
Shortly after I wrote my first AB post making this argument, the first of two appellate-court opinions upholding the law under a virtually identical analysis was issued, both of them written by conservative-movement leading lights. In the second of the two, issued last August, another leading-light movement-conservative judge dissented, but only from the determination that the law was within Congress’s Commerce Clause power, not from the conclusion that the law unconstitutionality infringed upon individual liberty. That judge said that had Congress tweaked the statute even just slightly, enacting through the taxing power rather than through the commerce-regulating power, running the mandated insurance purchase through the government, the statute would be constitutional, both in that Congress would have the authority to enact it and that the mandate would not violate constitutional precepts of individual liberty. And it turns out that the lawyer for the statute’s challengers agrees, as (apparently) does either Kennedy or Roberts (I can’t remember which). And probably both do.
It was a third appellate case that the Supreme Court agreed to hear. In that case, the Obama administration originally argued that the ACA’s penalty provisions was a tax, that the ACA was enacted under both the Commerce power and the taxing power—and that under a federal “jurisdictional” statute known as the Tax Anti-Injunction Act, which bars the courts from hearing a constitutional challenge to a federal taxing statute until after the tax is due, the courts lacked “jurisdiction” (legal authority) to consider the constitutional challenge at all until April 2015, when the first penalties under the ACA would be due. But when that case on appeal, the administration reversed its position and said the penalty was, well, just a penalty, not a tax, and that the ACA was enacted solely under Congress’s Commerce power. If so, the courts could hear the challenges to the Act. That appellate court agreed, and in a split opinion held the mandate provision unconstitutional under what the majority said was a finding that Congress exceeded its Commerce power authority but what, the language of the opinion made clear, was really a finding that the mandate violated Fifth Amendment due process, or individual liberty, rights. This, although the opinion didn’t mention the Fifth Amendment or due process.
When the Supreme Court agreed to hear that case, it decided to hear as a threshold issue, although neither side had asked it to do so, whether the penalty is really a tax and therefore its constitutionality cannot be decided until 2015. That issue was argued on the first of the three days of argument. The next day, late in the argument on the mandate issue, Kennedy or Roberts asked the lawyer for the challengers whether an insurance mandate enacted under Congress’s taxing power would be constitutional—that is, whether Congress not only had the authority to enact such a mandate through the taxing power but also whether such a mandate would be constitutional; in other words, whether it wouldn’t violate a due process liberty right and lead to the possible forced purchase of broccoli. The lawyer said Congress could enact such a mandate through its taxing power, and apparently the justices didn’t dispute this.
So if a majority of the Court concludes that the mandate penalty is a tax, they can postpone an actual ruling on its constitutionality until after April 2015, while strongly suggesting in its opinion this month that the mandate and its enforcement-mechanism penalty do not unconstitutionally violate individual liberty.
But I don’t think they’ll do that. In an article titled “IfHealth Insurance Mandates Are Unconstitutional, Why Did the Founding FathersBack Them?”, published in the New Republic in mid-April (three weeks after the Supreme Court arguments), Harvard law professor Einer Elhauge pointed out that on two occasions in this country’s earliest days, Congress, whose members the included several drafters of the Constitution, enacted statutes mandating that certain citizens purchase a private product. In one instance the product was guns, in the service of a creating a citizens’ militia. In the other instance, the product was medical insurance, which ship owners were required to buy for their seamen, enacted apparently under Congress’s Commerce power. Neither law was thought to violate constitutional concepts of individual liberty.
Which creates sort of an obstacle for the conservative “originalist” justices. And which causes me to think that a majority will uphold the mandate as authorized under the Commerce power and that the penalty is, after all, not a tax but instead just a penalty.
Which in turn causes me to disclaim my prediction before I’m even proven wrong. After all, this type of prediction is worth the cost of the paper it’s not even written on. If that.