Relevant and even prescient commentary on news, politics and the economy.

Bait and Switch: Is Pope Benedict Really Against Raising Taxes On the Wealthy to Help Balance Government Budgets?

(Reuters) – Invoking Pope Benedict, Republican Representative Paul Ryan defended his budget plan on Thursday at Georgetown University, where a group of the Jesuit institution’s faculty has accused him of misusing Catholic teachings to push cuts to programs that serve the poor.

“The overarching threat to our whole society today is the exploding federal debt,” Ryan said, speaking in a Gothic, oak-paneled auditorium on the Georgetown campus.

“The Holy Father, Pope Benedict, has charged that governments, communities, and individuals running up high debt levels are ‘living at the expense of future generations’ and ‘living in untruth.'”

— “Republican Ryan cites popeto defend budget cuts,” David Lawder, Reuters, Apr. 26

The overarching threat to our whole society today is the exploding federal debt?  Well, maybe. But this is an argument against raising revenues by raising taxes on the wealthy?  Or, for that matter, on anyone?
What’s most angering is this deliberately disorienting, gimmicky refusal by these pols—Ryan and Romney, in particular—to acknowledge that raising revenue through taxes reduces the government’s budget deficit and debt; that lowered tax rates in the last 11 years have significantly increased budget deficits and the debt (and that that also happened in the 1980s); that budget deficits and the national debt decreased during the 1990s after tax rates were raised during the G.H.W. Bush administration; and that Ryan’s and Romney’s tax-reduction plans would, according to (apparently) all projections except their own, substantially increase the national debt. 
It’s one thing to argue for a substantial reduction or elimination of the national debt, but quite another to pretend that raising tax revenues isn’t one possible way to help do that.  
These people do make Ayn Rand philosophical arguments to support their policy proposals, but the claim that the pope “has charged that governments, communities, and individuals running up high debt levels are ‘living at the expense of future generations’ and ‘living in untruth,’” is a non sequitur to the question of how we reduce the national debt.  

It appears, though, that this particular bait-and-switch—Ryan’s claim that the pope supports his budget proposals because the pope has expressed concern about high debt levels of governments, communities and individuals—is causing outright revulsion among both mainstream media pundits and the general public once they hear about it.  The pope as Ryan’s budget guide?  Really?  Comments posted to an article about it yesterday on Slate, titled “Paul Ryan Cites Pope In Defense of Budget Plan,” almost universally express disgust and dismay at Ryan’s claim.  The pope as Ryan’s budget guide?  

The beauty of Ryan’s statement is that it helpfully highlights that, Romney’s insistence to the contrary, this election is not about the present and future economy—will cutting taxes for the wealthy by 20% and eliminating the EPA and banking regulations really spur the economy and lower the national debt?—but instead about the very structure and purpose ofgovernment itself.  And because Ryan has now invoked the pope as supposed political supporter of Ryan’s budget, the real Republican intent will likely gain widespread attention.

Halleluiah.  And praise the pope.

The Laugher Curve: Romney Etch-A-Sketch Aide Says Romney Thought TARP Unnecessary but Urged Support of It as a Give-Away to Wall Street

Okay.  The subtitle of this post is a loose paraphrase of statements that Romney aide Eric Fehrnstrom made to ABC News on Thursday.  But not all that loose a paraphrase. It’s actually a direct deduction from Fehrnstrom’s comments.

As Washington Post blogger Greg Sargent mentioned on Friday, Fehrnstrom test-drove a new, or rather a newly clarified and perfected, campaign theme.  He claimed that the economic collapse began three years ago, immediately after Obama’s inauguration, rather than during the Bush administration.  Or that the severe economic downturn, which began in late 2007, and the near-collapse of the banking system, which occurred in the last few months of 2008, are unrelated to the deepening of the recession in 2009 and the ongoing high (but decreasing) unemployment rate, and also are unrelated to each other.  I’m not sure which.  Nor apparently is Fehrnstrom. 

He is sure, though, that the jobs created since the beginning of this administration, including the ones generated in, say, the last two years, owe nothing to Obama’s policies. 

Call it the theory of neo-economic severability.  Which occurs when some political hatchet wielder misjudges the level of most people’s credulity.  Or misjudges the public’s memory about major, fairly recent events, or at least about the public’s ability to have its memory refreshed by a few video clips and headlines from, say, the fall of 2008.  

Or just call it the Laugher Curve. 

My instant reaction after reading the first two paragraphs of Sargent’s post was: Ah! I should have known it!  My liberal-Democrat parents and my American History teachers lied to me. The Great Depression started in March 1933, since that was the beginning of the massive job losses that occurred in the last nine months of that year and in the following two years or so. The uptick in employment in ’36-’37 had nothing to do with Roosevelt’s policies and were instead the result of Hoover’s policies—something that should have been obvious all along, since the market crash and the economic collapse beginning in late 1929 were unrelated to each other and to the Great Depression, which started in 1933.  Those people waiting in breadlines during the Hoover administration were just practicing in case a Democrat was elected down the road and caused a Depression.  Unfortunately, one soon was, and he did.

Then I read Sargent’s third paragraph and saw that real pundits had gotten there first with that one.  Oh, well.

Sargent says that while Fehrnstrom’s claim is a step beyond Romney’s routine ones, at least in its clarity, it’s really a rendition of Romney’s main theme: that Obama’s policies caused the economic collapse.  And Sargent’s livid that the media hasn’t called Romney on it, by pointing out the, um, chronology problem.  

I’m not so sure that Fehrnstrom’s claim isn’t really new.  I’ve thought Romney’s just been claiming that Obama’s policies haven’t succeeded in spurring economic growth and hiring and instead have hindered it.  (Especially in Michigan, Ohio, Indiana and elsewhere where GM and Chrysler plants and huge numbers of auto suppliers’ factories shuttered after Obama allowed those two automakers to liquidate back in 2009, despite Romney’s frantic warnings about the dire consequences.)  I think Fehrnstrom’s new iteration is different, not just clearer. 

But as the ABC News story shows, this new theme isn’t just Fehrnstrom’s talking point; it’s also Romney’s.  On Thursday, Romney pretended that a Lorain, Ohio National Gypsum plant where Obama campaigned in January 2008 had closed during Obama’s presidency.  Actually, it closed a few weeks after Obama spoke there in 2008.  The plant, which employed about 70 people, made drywall.  Y’know, for new homes.  The market for which, and therefore the building of which, slowed in 2007 and collapsed in 2008.  It’s a market that can’t exist at all without a healthy credit market. 

Which brings me to … TARP.  A.k.a, the bank-bailout.  Or at least it reminds me that that was the subject of this post’s subtitle. 

Sargent suggests that some member of the press who covers Romney’s campaign stops ask Romney what exactly he would have done as president in 2009 to spur the economy and job creation.  But we already know the answer to that: eliminate all regulation on business and reduce or eliminate taxes on corporations and wealthy individuals. 

Me?  I just want some reporter to ask Romney, in light of Fehrnstrom’s claim, why, if the economy was fine until 2009 and the banking industry wasn’t collapsing back in the fall of 2008, he urged Republican members of Congress to vote for the bailout.  Oh.  Oh, wait.  It must be that TARP worked so well—and so fast—that by January 20, 2009 the economy was healthy again.  But then one of those damn healthcare-legislation death panels intervened and mandated the death of the recovered economy, as practice for some time down the road, after enactment of the Affordable Care Act, when the panel would have to kill nice old ladies instead of the GDP.  Either that or, well, Romney wanted the bailout as a gift to Wall Street, not as the only apparent way to keep the entire financial system from unraveling, his contrary claims notwithstanding; according to Fehrnstrom, Romney thought the financial system and the economy were fine.

But I’d also like a reporter to ask Romney why he’s adopted Fehrnstrom’s modus operandiof misrepresenting the timing of occurrences or misstating who said whatever, by simply cutting out words, or years.  Before his recent Etch-a-Sketch notoriety, Fehrnstrom gained notice as the aide who concocted an ad last fall showing Obama in a news clip saying something like “If we keep talking about the economy, we lose.”  The original clip was from 2008, and Obama was quoting McCain.  

Several commentators have written in recent weeks that a hallmark of Romney’s campaign is shaping up to be bald lies, mostly by Romney himself.  Most of these misrepresentations involve something Romney says falsely that Obama said, but sometimes the misrepresentations are fabricated statistics.  Always though, they are easily disprovable, and the statements that can’t be disproved with a video clip showing what actually was said or what actually happened, or with statistics, eventually will be disproved when Romney is directly asked the basis for the statement.  At least I assume Romney eventually will be asked this, even though Romney assumes otherwise. 

But rather than suggest that Romney regularly makes things up—that he’s a habitual liar—Obama should pretend to take him at his word.  While some voters may decide to abide a presidential candidate who they know is a habitual liar and cockily flaunts it, a majority probably wouldn’t risk voting for one who appears to base important decisions on supposed facts that have not been checked for accuracy.  Everyone knows that Romney is comically malleable.  But, if taken at his word, he’s also easily conned. 

Obama should take him at his word and illustrate the point, incident by incident.  Most voters, after all, probably would rather have a president whom they wouldn’t trust to sell them a used car than a president who they wouldn’t want buying one.  Romney of course would be the former, and most voters will recognize that.  But not before pausing and wondering.


Romney’s speech at the shuttered National Gypsum factory is important for a more substantive reason, too: Statements he made in the speech serve, I think, as a pretty stark argument for Keynesian economics and therefore undermine the Republicans’ anti-stimulus refrains regarding the 2009 stimulus law and their current opposition to use of federal funds to help state and local governments avoid further layoffs of teachers, firefighters and police officers.  And it’s pretty hard not to juxtapose those statements with Romney’s hostility toward the auto-industry bailout, both then and now.  I’ll post a short post on this later today or tomorrow.  A short post is all that’s necessary, because Romney’s words speak for themselves.  Economics isn’t my bailiwick.  But for this it doesn’t have to be.

Chris Christie’s Sweet Dream (And Romney’s)

“I’ve never seen a less optimistic time in my lifetime in this country and people wonder why,” the first-term Republican governor said at the Bush Institute Conference on Taxes and Economic Growth in New York City.

“I think it’s really simple. It’s because government’s now telling them ‘stop dreaming, stop striving, we’ll take care of you.’ We’re turning into a paternalistic entitlement society,” he said.

“That will not just bankrupt us financially, it will bankrupt us morally because when the American people no longer believe that this a place where only their willingness to work hard … determines their success in life then we’ll have a bunch of people sittin’ on a couch waiting for their next government check,” Christie said.

That, pretty clearly, is the message that the Republicans, party-wide, have settled on for this election: People are depressed because of the existence of the social safety net and other government programs such as student-loan and job-retraining programs, and because the very wealthy haven’t had their tax rates cut enough, the gap between the very wealthy, and all those couch potatoes who work regular jobs isn’t large enough.  

I wish them all the best with that message.  And I hope they keep pushing it, all the way to November. 

I think it’s simple, too. I’ll leave it at that.

Can’t wait to hear the next installment of Christie’s VP audition script.  Maybe something about all those auto-industry-worker couch potatoes who’ve stopped dreaming and striving now that Obama has handed GM and Chrysler to the UAW?

By the way, did Christie ever use the student-loan program, I wonder?  Or did he, like Romney and Romney’s kids, have no need for it?

Christie was speaking at the Bush Institute Conference on Taxes and Economic Growth. Tomorrow’s audition will be by Paul Ryan. It’s a follow-up audition, actually.


Apparently, not all government programs cause mental depression.

Obama Finally Follows My Advice. Here’s One More Suggestion.

Okay, okay.  I know that Obama doesn’t read AB.  So I know that his decision, reflected in his speech today at a lunch with Associated Press editors and reporters, to finally—finally—start refuting the Republicans’ economics proposals with actual examples and statistics, was not prompted by my repeated laments here that Obama just doesn’t do specifics, i.e., statistics and other facts, when speaking to the general public, which until now he’s rarely done anyway.  And my primal pleas that he do so.  (When, earlier this year, he defended his decision to openly approve a Super Pac that supports him, explaining that he decided to not unilaterally disarm, I said to myself: “Hmm. Guess he’s had a change heart, after unilaterally disarming for the last three years.”)

So the first sentence in the title of this post is facetious.  The second sentence in the title is not.

The New York Times is reporting on its website:
President Obama opened a full-frontal assault Tuesday on the budget adopted by House Republicans, condemning it as a “Trojan horse” and “thinly veiled social Darwinism” that would greatly deepen inequality in the country.…

In the latest of a series of combative speeches, the president said Americans could not afford to elect a Republican president at a time of fragile economic recovery, with a weak job market and a crushing national debt from “two wars, two massive tax cuts and an unprecedented financial crisis.”

The widening gulf between the rich and everyone else, Mr. Obama said, was hobbling the country’s economic growth. He cited studies that found that societies with less income inequality had stronger and steadier growth.

“In this country, broad-based prosperity has never trickled down from the success of a wealthy few,” the president said, according to excerpts of his address. “It has always come from the success of a strong and growing middle class. That’s how a generation who went to college on the G.I. Bill, including my grandfather, helped build the most prosperous economy the world has ever known.” …

But the president reserved his harshest words for the 2013 budget proposal recently passed by the Republican-controlled House. The budget, drafted by Representative Paul D. Ryan, Republican of Wisconsin, calls for $5.3 trillion in spending cuts, as well as tax cuts for households earning more than $250,000.

“Disguised as a deficit reduction plan, it’s really an attempt to impose a radical vision on our country. It’s nothing but thinly veiled social Darwinism,” Mr. Obama said. “By gutting the very things we need to grow an economy that’s built to last — education and training, research and development — it’s a prescription for decline.”

I’m absolutely thrilled. Obama’s finally picking up the gauntlet that the Repubs have thrown down, and, calling that spade the spade that it is, is throwing it back.  Hard.  Clear. And with real precision.

By far the most important parts of what he said are, I think, his references to the WWII generation’s use of the GI Bill and how it effectuated class mobility and helped spur the tremendous economic growth of the three postwar decades, and his actual citation to studies showing that societies with less income inequality had stronger and steadier growth.

Hooray.  Hooray!

But I hope he goes even further and compares the tax rates during the 1950s, ‘60s, ‘70s, ‘80s and ‘90s—including capital gains taxes and estate taxes—with today’s tax rates established during the G. W. Bush presidency and, even more important, with the tax rates proposed by the current Republicans.  
Yup.  George Romney and Edward Davies, Ann Romney’s father, amassed their wealth during Socialism.  They must have been economic Houdinis.  Or  corrupt Commie officials.

I hope Obama also discusses what those higher tax rates bought.  The interstate highway system, for example, and the student loan programs and significant aide to state universities that helped finance so many baby boomers’ college educations.  And that he points out, again and again, that in January 2001 we had no budget-deficit problem because we were raising most of the federal tax revenue needed to pay for most of our federal needs.
Specifics.  Statistics.  To refute the damn lies and the soundbites and clichés.  And to illustrate the consequences.  A picture really is worth a thousand words.  Even if the picture is drawn in words.
Here’s one such picture, already framed: In his State of the Union address earlier this year, Obama acknowledged the problem of spiraling college tuitions and its effect on the ability of college-age members of the so-called working- and even middle-class to attend college, and on the longer-term economic effects upon those who do, using college loans that leave them owing massive debts upon graduation.  Not even to mention the long-term effects on the economy from this huge aggregate debt.  He suggested penalties, in the form of reductions in federal funds, for colleges and universities that don’t find ways to curtail the tuition hikes. 

A day or two later, Linda posted a fact-based refutation, pointing out that the main reason for the incessant tuition hikes at public universities is the incessant cutting of state funding for those universities, necessitated all the more by the economic downturn since 2007 and the resulting decrease in tax revenues and increase in recession-related expenditures.  Not long afterward, I read—I don’t remember where—that one major state university, which was not identified in the article, has seen its state funding reduced from 80% of its total revenue sources to 20% within (I think) the past two decades.  The result, as some longtime professors at state universities lament, is that the student bodies at these schools are now, unlike in earlier relatively-recent times, largely from upscale families, and very few are from working-class families. The level of federal financial assistance to states for colleges and universities obviously impacts this significantly.

I’d love to hear Obama use this as an example to illustrate that the starve-the-beast juggernaut has broad and profound societal consequences. 

I’d also love to see Obama ask rhetorically what people think will be the consequence of the Republicans’ budget if, during the next economic downturn there  is no funding for unemployment compensation, a need that obviously is in an inverse relation to the unemployment rate and therefore to tax revenues.  And what will we cut from the budget in order to provide emergency disaster funding for, say, hurricane damage?

But today was a terrific start.  It’s statistics and other specifics that matter.  And today, for once, he provided some.  Hopefully, it was just the start.  

Can Your State Mandate That You Buy Broccoli or Join a Gym? (And why the excoriation of Donald Verrilli is misplaced)

The answer to the title’s question—Can your state mandate that you buy broccoli or join a gym?—depends upon which of the two possible grounds the 5-4 Supreme Court majority overturns the ACA’s individual-mandate provision.  And which grounds the majority selects also will determine whether under the Court’s new “liberty” jurisprudence, Social Security and Medicare also are unconstitutional. 

That’s because if, for all their posturing about the imposition on individual liberty of having to buy healthcare insurance that the individual may not want, they ultimately base their ruling not on that imposition on individual liberty to choose whether or not to buy a health insurance policy, but instead upon—and only upon—a narrow reading of the Congress’s powers under the Commerce Clause, states will retain the right to mandate the purchase of health insurance (e.g., “Massachusetts’s “Romneycare”), and of auto insurance, and of broccoli, and of gym memberships.

If, on the other hand, the Commerce Clause ground is simply the fig leaf used to segue into an individual-liberty-to-choose-not-to-buy-health-insurance ground, then the ruling also will imperil the legal underpinnings of Social Security and Medicare, because while those programs were enacted not under Congress’s Commerce Clause power but instead under its taxing power, both programs require payment for insurance—one, a retirement annuity, the other, eventual health insurance—that the individual may not want and may never use. Not everyone lives to age 65, after all.

The Commerce Clause issue deals only with the breadth of Congress’s power to regulate interstate commerce and the things that impact it.  Or, in Commerce Clause jurisprudence lingo, the power to regulate “markets” that impact interstate commerce.  The Obama administration, and the Congress that enacted the ACA, have claimed that there are two separate “markets” that the ACA regulates: the market for health insurance and the market for healthcare itself.  The Commerce Clause issue does not address what statescan regulate, and what states are prohibited by concepts of “liberty” from regulating. For that, you have to look at the Fourteenth Amendment’s due process clause and the constitutional doctrine known as “substantive due process,” which concerns the limits of state governments’ powers to intrude into personal autonomy, personal decisions.  As I explained in a post earlier this week, it is the doctrine under which the Supreme Court has stricken state laws prohibiting the sale and use of contraception and state laws prohibiting sodomy, and those categorically prohibiting abortion (Roe v. Wade).

The Fourteenth Amendment applies only to the states, but its due process clause is virtually identical the Fifth Amendment’s due process clause.  The Fifth Amendment applies to the federal government, and the “substantive due process” doctrine applies to that Amendment’s due process clause in the same manner in which it applies to the Fourteenth Amendment’s.

For the last two years, the rightwing has conveniently conflated the Commerce Clause ground and the due process “liberty” ground, seamlessly seguing between the two but always calling the “liberty” ground the “Commerce Power” ground.  And, with two exceptions that until Tuesday’s argument seemed important, they’ve gotten away with it  The two exceptions were the two lower appellate court opinions, both of them written by conservative Republican appointees, upholding the constitutionality of the individual-mandate provision and, in doing so, noting both that the mandate provision concerns not only the market for healthcare insurance but also the market for healthcare itself, because a 1986 federal law requires hospitals that receive federal funds to treat people having medical emergencies, irrespective of whether or not the patient has healthcare insurance. 

What surprised me most about Tuesday’s argument is that Anthony Kennedy appears to have not readthe government’s brief on the individual-mandate provision.  He seemed utterly unaware of the nature of the government’s Commerce Clause claims and unaware of the 1986 law.  “Can you create commerce in order to regulate it?” Kennedy asked Solicitor General Donald Verrilli early on.  Well, no, but if, as the government claims, one of the relevant markets under Commerce Clause jurisprudence is the market for—payment for—healthcare, then unless the ACA rather than the 1986 statute creates the obligation of hospitals to treat people who come there with medical emergencies and to admit them to the hospital if necessary rather than just treat them in the emergency room, then the ACA doesn’t create the market for healthcare of the uninsured.  Kennedy suggested that we don’t require hospitals to provide medical treatment to the uninsured, just as we don’t require someone in a position to stop a blind person about to step in front of a moving car, to do so.  And Scalia said we shouldn’t “obligate” ourselves to that.  We already have, which is one reason why the mandate provision comes within Congress’s Commerce powers.

Verrilli is being excoriated for answering ostensibly Commerce Clause questions with actual Commerce clause answers.  Especially for answering Kennedy’s and Roberts’s requests for a “limiting” Commerce Clause principle with a Commerce Clause answer.  Paul Clement, lead attorney for the challengers, is, by contrast, being praised for his brilliance in presenting his arguments, although his task was similar to that of a candy store owner offering children all the free candy they’d like.  Clement may be a brilliant appellate advocate.  But a monkey could have argued this one for the challengers, with the same effect.

Much is being made of Verrilli’s final few sentences on Tuesday—and Clement’s response to them.  And appropriately so.  Verrilli, ultimately realizing that the earlier questions were not really Commerce Clause questions at all, nor even Fifth Amendment substantive due process “liberty” questions, but instead public-policy questions, made an emotional plea that the Court respect the public-policy choice of Congress and the Obama administration in choosing to recognize a profound connection” between health care and liberty. “There will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty,” he said.

To which Clement responded, “I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”  Perhaps.  But that’s a Fifth Amendment due process argument, not a Commerce Clause one.  And if it is upon that basis that the Court strikes down the individual-mandate provision in the ACA, those of us who think that the Social Security and Medicare statutes are constitutional under both the taxing power of Congress and generic “liberty” jurisprudence shouldn’t find the Court’s ruling in this case funny at all.

[Cross-posted at, front page.]

As Goes Obamacare, So Goes Romneycare … and State Laws Requiring Auto Insurance?

I’ve written repeatedly now on AB that the challenge to the constitutionality of the ACA’s minimum-coverage provision (a.k.a., the individual-mandate provision) is not really a Commerce Clause challenge but instead a challenge under the Fifth Amendment’s due process clause, under what is known as the “substantive due process” constitutional law doctrine.  The Fifth Amendment’s due process clause limits what the federal government can do vis-à-vis individuals.  A clause in the Fourteenth Amendment is nearly identical, and identical in substance, to the Fifth Amendment’s due process clause, except that it limits what state governments can do vis-à-vis individuals.  

SCOTUSblog’s Lyle Denniston’s early report suggests that I was right.  The outcome of the case, he predicts, will depend on whether Kennedy believes that the Court can uphold the mandate provision without opening the door to unlimited congressional mandating of purchase specific things, not because Congress lacks that power under the Commerce Clause but instead because it violates liberties protected under the Fifth Amendment’s due process clause. Denniston does not mention the Fifth Amendment, but, whether or not the justices themselves did specifically, that is the upshot.

The “substantive due process” doctrine holds that there are certain incursions into personal autonomy and certain impositions on individual liberty beyond which the Constitution allows the government to go.  It is this doctrine by which the Court has stricken down such laws as state laws barring the sale and use of contraceptives, state laws prohibiting abortion under all circumstances (Roe v. Wade),  and state laws criminalizing sodomy.

But based on Denniston’s early report about the nature of Kennedy’s concerns, I don’t see how, absent an utterly artificial Commerce Clause-based ruling, a ruling that the mandate unconstitutionally infringes upon person choice, upon personal liberty, would not also mean that Massachusetts’s “Romneycare” law, and state laws that  require drivers to purchase auto insurance, would be constitutionally permissible. 

Kennedy likes to wax eloquent, as he did last year in an opinion in a case called Bond v. United States, about how divisions of power among various governments—by which he means state governments vs. the federal one—protect individuals from tyranny. (He’s usually less interested in constitutional checks than on balances to state power—especially to state-court power—but that’s another subject.)  In Bond, he said, rightly, in my opinion, that a person indicted under a federal criminal law has legal “standing” (the legal right) to argue that the federal statute unconstitutionally infringed upon an area of criminal law reserved solely for the states to address, because the federal statute impinged (literally, in that case) her personal freedom.  So if the problem with the insurance mandate is that it exceeds Congress’s authority under the Commerce Clause, then a ruling that the ACA, a federal statute, is unconstitutional would not affect state statutes.
But that’s a separate issue from whether the mandate is an unconstitutional violation of personal liberty irrespective of whether or not the Commerce Clause power would allow Congress to enact the law.  And under the Court’s longtime Commerce Clause jurisprudence, Congress does have the authority to legislate the mandate to buy health insurance, given the impact on the healthcare market of the uninsureds’ usage of health care.  A ruling to the contrary would be transparently artificial. Which probably won’t matter to Kennedy.

This will be cross-posted later today to the Firedoglake blog.


To the general public, all that matters are the headlines, reflecting the bottom line.  The universal consensus among reporters who attended the 90-minute Supreme Court argument yesterday on whether an 1867 law called the Anti-Injunction Act bars the Court from considering challenges to the constitutionality of ACA’s individual-mandate provision was that the justices will decide the constitutionality of the mandate provision despite the AIA.  

But law geeks like me know that what also matters is how they conclude that the court has “jurisdiction”—legal authority—to decide the constitutionality of the mandate provision. That’s because federal judges are incessantly, and often spontaneously, throwing lawsuits out court, claiming that they lack jurisdiction to hear the case—a trend begun in the 1980s and accelerated exponentially, explicitly and by malignant (as opposed to benign) neglect to reverse lower appellate court rulings, by the conservative legal movement to which a majority of the Roberts and Rehnquist courts adhere. 

A key part of the conservative-movement’s federal-courts-have no-jurisdiction-to-hear-any-constitutional-claims-except-the-ones-that-conservatives-want-them-to-hear jurisprudence is that federal-court jurisdiction either exists or it doesn’t, and if it doesn’t it can’t be waived by the parties.  So even if neither party claims a lack of federal jurisdiction, the judge, judges or justices in each case must raise the issue themselves if they believe jurisdiction may be lacking. Under the Constitution, Congress decides what types of cases the federal courts have jurisdiction to hear, by enacting “jurisdictional” statutes that either grant or remove federal-court jurisdiction in specific categories of cases, subject only to requirements or prohibitions in other parts of the Constitution.  (Actually, the Supreme Court has created several legal “doctrines” out of whole cloth that remove federal-court jurisdiction in various cases, but I’ll leave that for another day.)

The AIA  provides that “no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person.”  The ACA’s individual-mandate provision does not become effective until 2014 and the penalty for failure to obtain the minimum insurance will not be assed until April 2015, through income tax filings.  Early on in the ACA litigation, the Obama administration claimed that the ACA penalty was a tax and that the AIA therefore removes federal-court jurisdiction to hear the challenge to its constitutionality until 2015, but it soon retracted that claim and now argues that the penalty is, well, just a penalty, not a tax, and that therefore the AIA doesn’t remove federal-court jurisdiction to decide the constitutionality of the mandate and penalty for non-compliance with the mandate until 2015; the Court can decide the issue now.  

Three of the four lower federal appellate court panels that have issued rulings in ACA litigation, including the one in the case that the Court is hearing this week that ruled the mandate unconstitutional, agreed. The Supreme Court, in deciding to hear the AIA claim anyway, appointed a private lawyer to argue that the AIA does apply here, because the Justice Department joined the ACA’s challengers in saying that it doesn’t.

Everyone, certainly including me, assumed that the outcome of this “jurisdictional” issue—of whether or not the AIA barred the Court’s consideration of the challenges until 2015—would depend upon whether the Court thinks the penalty is a penalty or instead a tax.  And that may prove accurate.  But, stunningly (in my opinion), the Court, at the urging of Roberts, might instead say that it doesn’t matter whether the penalty is actually a tax, because the government has waived the jurisdictional claim. “It’s a case quite similar to this in which the constitutionality of the Social Security Act was at issue, and the government waived its right to insist upon the application of this [Anti-Injunction] Act,” Roberts said, referring to Helvering v. Davis, the 1937 case in which the Court upheld the Social Security Act.  “So,” Roberts asked, “are you asking us to overrule the Davis case?” 

Hmmm.  I thought they already had done that.

SCOTUSblog’s incomparable Lyle Denniston provides invaluablereportage and analysis of the different options that emerged from yesterday’s argument on how the Court will remove the AIA as a bar to deciding the constitutionality of the mandate provision. 


This will be cross-posted later today to the Firedoglake blog.

My ACA-Individual-Mandate Analysis Summed Up In Three Paragraphs**

As AB readers know, I’ve written quite a number of in-depth posts on the ACA litigation—on the individual-mandate provision and on other issues as well.  (The number, by my count, is at least 11,** including the one I posted yesterday, titled “Showtime At The Supreme Court”).  And for your reading enjoyment, and in honor the big show that will be staged at the Court during the next three days, I’m posting the links to all 10** of the earlier posts I located, below. 

But in response to a comment by Coberly to “Showtime” post today, I summed up my analysis of the individual-mandate issue in three paragraphs.  Coberly wrote:

Why, is there nothing then you can’t do in the name of the commerce clause?

Or is it a mystery known only to those who “actually know the law,” as opposed to those of us who worry about little things like civil liberties as they are actually experienced by, say, human beings?

I responded:

There are limits to what Congress can do in the name of the Commerce Clause, but because medical treatment for uninsured patients, including those traveling from one state to another, requires cost-shifting of huge amounts of money, some of it interstate, a law like the ACA is within the Commerce Clause limits. 

That’s not to say that there may not be some other reason why a statute that falls within Congress’s Commerce Clause powers is unconstitutional, and although the people challenging the constitutionality of the mandate don’t expressly say this, their “freedom” and “liberty” claim is really a claim that the mandate violates the Fifth Amendment’s due process clause under a constitutional-law doctrine known as “substantive due process.” (That doctrine also is the legal doctrine under which the Supreme Court ruled that states can’t bar the sale and use of contraceptives, and is the doctrine underpinning Roe v. Wade and Lawrence v. Texas, the opinion that struck down state sodomy laws as unconstitutional.)  But the Commerce Clause plays no role in this, one way or another. 

Sure, if the Court strikes down as beyond Congress’s authority  under the Commerce Clause a statute that requires people to do something or that bars them from doing something, then people are “free” to do or not do whatever the statute required or barred.  But that’s just incidental.  It isn’t less of an imposition on liberty for Congress to require people who can afford to do so to buy health insurance directly through the government by a tax under Congress’s taxing power (which is what the government does with Medicare) than to require then to buy it elsewhere under Congress’s Commerce Clause power.

Here are the links to the nine earlier ACA-litigation-related posts I was about to find:

*Actually, as Linda Greenhouse pointed out in her NYT column on Thursday, which I discussed in my post yesterday, it isn’t 26 state attorneys general.  It’s 22 Republican state attorneys general and four Republican governors whose states have Democratic attorneys general.

**I added this one to the list after I posted this post earlier today.

Showtime At The Supreme Court

Dan emailed me several days ago asking whether I thought I should write a preshow (my word, not his) post about next week’s marathon Supreme Court oral arguments on the constitutionality of Obamacare, a.k.a., the Affordable Care Act.  Six hours of argument, two each day, Monday through Wednesday, in which the Court will hear argument, first, on whether the courts even have “jurisdiction” (the legal authority) to even consider the challenges to the Act’s constitutionality before the challenged provisions of the Act have gone into effect, and, then, on the challenges to separate parts of the Act by various challengers who will be directly affected by the respective provision. 

It promises to be a long three days.  And by the time Dan emailed me, I already was sick of reading previews.  I wrote back to Dan:

I don’t think there’s anything to say, really, at this point.  There’ve been a zillion articles/commentaries about it within the last week or so, but they don’t really say anything.  Mostly they just kind of speculate about how Roberts, Scalia and Kennedy might vote, based on things like what Scalia wrote in a concurring opinion in a Commerce Clause case a few years ago (Scalia expressed an “expansive” view of Congress’s Commerce Clause powers), and how Roberts wants to be remembered. It’s obligatory writing for people like Adam Liptak, the NYT Supreme Court correspondent, but pretty pointless, really.

But two articles published on Thursday, one by former (longtime) New York Times Supreme Court correspondent Linda Greenhouse, who in retirement writes a periodic commentary column in the Times, and Slate Supreme Court and general-legal-issues writer Dahlia Lithwick, are, I think, worth reading. 

Greenhouse’s is titled “Never Before,” and the thrust of her article is that those two words—“never before”—are the sum and the (non)legal substance of the challengers’ arguments.  “Unprecedented,” she notes, “is a description, not an analysis.”  Or a legal argument.  It is instead merely a political argument.  And transparently so, which is why she predicts that the Court will uphold the statute, by a comfortable margin. 

Well, actually, she predicts that the Court will uphold the statute by a comfortable margin because, well, for all the incessant hype, this is not, under extensive and pretty darn clear Supreme Court precedent relevant to each of the separate stated constitutional grounds argued, a close case at all—and because John Roberts cares a lot about how the Court is perceived during his tenure as its chief. 

Or, more accurately, at least in my opinion, because under Supreme Court precedent this is not a close case and  this is too high-profile a case for its outcome not to impact the public’s perception of the Court.  By which I mean, and I think she means, that while Roberts & Co. regularly make out like bandits in the night, hijacking the law and transforming it into reflection of a 1980s Federalist Society checklist, they do so only to the extent to which they expect that they can escape widespread public revulsion.  Which in turn is determined by the extent to which the news media actually focuses on these ideological-agenda rulings before the Court issues the ruling.  

That, after all, is how we got Citizens United v. FEC.  Roberts & Co. misjudged.  Oops.  Well, for heaven’s sake … I mean … y’know … who knew that the public would, um, actually get the Citizens United ruling?

Lithwick’s article makes much the same point as Greenhouse’s—that as a matter of law, this is not a close case—but with a slight twist.  After giving a nod of recognition to the Greenhouse , which was published in that morning’s paper, Lithwick says that while she expects that the Court will uphold the statute, she’s not all that sure.  As a legal matter, she says, this case is not the case of the century nor of the decade nor even of this term.  Unless, of course, a 5-4 majority surprises almost all the legal commentators who actually know the law and follow the Court.   

Which, she says, wouldn’t surprise her all that much, because the case is not really about the law at all, but instead about “optics, politics, and public opinion.”  But ultimately, she thinks, Roberts and one or two of the others just won’t think this case is worth the cost in public opinion. 

I agree.  It’s not as if they get to pick a president in this one.  There are, as Lithwick notes, other cases in their pipeline that could well do that. The oral arguments in those cases are, like the arguments next week, likely to be mere shows.  But with a more limited-release audience and opposite results.

UPDATE On Kiobel v. Royal Dutch Petroleum. And How It Could Impact ‘Court-Stripping’ Jurisprudence.*

Last Wednesday, the day after oral argument at the Supreme Court in a case called Kiobel v. Royal Dutch Petroleum, both Linda and I posted about the case.  Linda’s post I believe was written shortly before the argument although posted afterward.  Mine was written after the argument and discussed news reports about what occurred.  The title of Linda’s post was “The Supreme Court’s corporate monsters–if money buys them “free speech” rights, can it help them avoid giving others human rights?” The title of mine was “International Law, As Established At Nuremberg*: The ACTUAL Grounds On Which the Supreme Court Will Rule For Shell Oil’s Parent Company In Kiobel v. Royal Dutch Petroleum.”  (I added the asterisk and the related footnote later that night, to make clear that the part of the title that preceded the colon was intended as a sarcastic reference to a statement made by the oil company’s counsel during oral argument, a statement I discussed in the post.)

To refresh your memory—it was barely more than a week ago, but in the intervening time, we’ve all been somewhat distracted by more important things, such as whether slightly-increased private healthcare premiums caused by the inclusion of contraceptives coverage really is public welfare paid by “taxpayers” and therefore women who receive the benefit are prostitutes—my post began by explaining the supposed issue in the case.  I wrote:
In her post earlier today on Kiobel v. Royal Dutch Petroleum, the sort-of-CitizensUnited-like case argued yesterday in the Supreme Court, Linda discusses the issue that was supposed to be the one that the Court would decide, because, well, that was the issue that the lower appellate court, the Second Circuit Court of Appeals, decided.  The issue is whether under the Alien Tort Statute, which was enacted in 1789 and allows “aliens” to file civil lawsuits in the U.S. for violations of the “law of nations,” allows aliens to sue corporations, or instead only individuals, for violations of human rights as defined under clearly-established international law.

The Second Circuit court said it doesn’t, and, as the excerpt from that opinion that Linda posts shows, the appellate panel used as its justification the judges’ own moral judgment that since individuals (i.e., the corporation’s top executives) make the corporate decisions to leverage the corporation’s resources to accomplish these heinous acts, only those individuals, and not the ill-used corporation itself, should be suable.  And that therefore, only those individuals, and not the ill-used corporation itself, will be suable in U. S. federal courts under the ATS.

This notwithstanding that the statute itself says nothing at all about who can be sued under it; it states only what acts the actor can be sued for.  And notwithstanding that the Second Circuit panel’s stated grounds for the ruling, if not necessarily the result (the dismissal of the lawsuit), conflict with the Supreme Court’s ruling two years ago in Citizens United v. FEC.  Which parlayed the First Amendment free-speech right of individuals into a right of corporate CEOs to leverage those rights of its individual human shareholders into a First Amendment speech right of the CEO to use corporate funds to advance his or her political preferences.

I noted that Anthony Kennedy, author of the Citizens United opinion, reportedly indicated that he agreed with the oil company’s statement in its brief that international law does not recognize corporate liability.  Case closed, as far as he was concerned.  But several of the justices disagreed—most emphatically Stephen Breyer and Elena Kagan, but Alito seemed to, too. 

But I went on to say that I expected from what transpired that the Court wouldn’t decide that issue at all and would instead decide the case on entirely separate grounds asserted by Samuel Alito during the argument but not addressed earlier in the case.  Alito questioned whether the statute applies as against anyone, corporation or individual, when, as in that case, the acts alleged occurred outside the United States, by someone or some entity not based in the United States, against people who have no connection to the United States.  I predicted that a majority led by Alito would say it does not.

It now looks like I was right.

On Monday afternoon, the Court issued a surprise order in the case, asking that the parties brief the following issue:
Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

The briefing won’t be completed until June 29, and so the Court will decide the case next term, not during the term that ends by July 1. 

The defendant in Kiobel did not claim that the statute provides federal-court jurisdiction (the legal authority to hear the case) only for cases alleging violations of international law that occurred within the United States—probably because the words of the statute suggest otherwise, and because in a 2004 case filed under that statute, in which the acts at issue occurred outside the United States , the Supreme Court gave no indication that it does.  But as SCOTUSblog’s Lyle Denniston noted, the defendant in another current ATS case does.  That defendant lost in the appellate court, and filed a petition asking the Supreme Court to consider the issue in that case.  The justices considered the petition last Friday and took no action on that petition.  Instead, they inserted the issue into Kiobel, in an order described variously by commenters as surprising, unusual, and stunning

The injection of this issue into Kiobel enables the justices to avoid ruling on whether the statute, enacted the same year that the Constitution was ratified, applies only to allow suits against individuals and not against violations corporations under whose auspices the human rights violations occurred. 

The one-sentence statute says: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”  The law of nations does not allow corporations to have atrocities committed under their auspices, whatever yoga-like linguistics contortions Justice Kennedy’s mind or law clerks performed that caused him to suggest otherwise at the argument.

But neither do the statute’s words suggest that it does not apply to (as the Court put it in its briefing order) violations of the law of nations occurring within the territory of a sovereign other than the United States.  If the statute adopts international law only to identify what torts—what actions—can be the subject of a suit in the country, and not to identify who (or what) can be sued, then it shouldn’t matter that (according to Kennedy at oral argument, quoting from a brief supporting the oil company) this country appears to be the only one in the world to “exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.”  But it will, although possibly circuitously.
“What business does a case like this have in the courts of the United States?” Alito asked.  None, a majority of the Court is likely to say, and not because the defendant is a corporation but instead because the atrocities alleged occurred in Nigeria rather than in the United States.  But since the statute itself doesn’t say that, the majority of justices will have to either interpret it as implying that it does or say that the statute must be interpreted in that matter in order to avoid striking it down as unconstitutional, because (they’ll say) Congress lacks the authority to give the federal courts jurisdiction to hear cases about wrongs committed outside the territorial United States. 

Which would be a novel ruling, but one that, as Denniston points out, Alito seemed to suggest by asking: “Is there an Article III source of jurisdiction for a lawsuit like this?…What’s the constitutional basis for a lawsuit like this, where an alien is suing an alien?” 

Article III is the section of the Constitution that created the judicial branch.  It’s also the part of the Constitution that says that Congress, which Article I created, has the authority to grant the federal courts jurisdiction (legal authority) to hear certain types of cases.*  In enacting the ATS, Congress granted the federal district courts the authority to hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

But there are other parts of the Constitution—the Bill of Rights; the Fourteenth Amendment (due process, equal protection of the law); the prohibition against suspension of the right to habeas corpus and against ex post facto laws and bills of attainder (protections included in the original Constitution)—that appear to require access to federal court in order to challenge, whether or not Congress provides for it. 

There are other parts of the Constitution, such as Article II, which created the executive branch, that may limit Congress’s authority to create federal-court jurisdiction.  This is what Alito appears to have in mind.*

And conversely, there are other parts of the Constitution—the Bill of Rights; the Fourteenth Amendment (due process, equal protection of the law); the prohibition against suspension of the right to habeas corpus and against ex post facto laws and bills of attainder (protections included in the original Constitution)—that appear to require access to federal court in order to challenge, whether or not Congress provides for it. 

Or at least it would seem so.  The political right is incessantly trying to remove federal-court jurisdiction to hear cases that they claim violate states’ rights to violate individuals’ rights—a tactic called “court-stripping.”  And one that, with the aggressive assistance of the current Supreme Court, has been phenomenally successful in effectively suspending (read: eliminating) the right of federal-court habeas corpus review by persons convicted of crimes in state court. “Phenomenally” is no overstatement, either.  It’s truly a phenomenon, and one that needs its own post.

Court-stripping and the reverse—I’ll call it court-mandating—are issues that the Supreme Court normally avoids like the plague, best as I can tell.  But if nothing else good comes from Kiobel—and it certainly looks like nothing else will—a Supreme Court acknowledgment that there are constitutional limits to Congress’s authority to determine federal-court jurisdiction might be the consolation prize.  But only if that limitation is viewed as a two-way street.

*This post originally referred to Article I (establishing Congress) as Article II, and referred to Article II (establishing the executive branch) as Article I.  Ooops.