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

Me v. William Cannon, Part II: The Jonathan Gruber Canard

Okay, well, as all you AB regular readers know, yesterday I posted a post deconstructing—and, yes, that’s what I did—a blog post on the Forbes website by William F. Cannon.  He blogs there on “health, freedom, and other uncertainties,” but his day job is Director of Health Policy Studies at the Cato Institute.

The studies apparently entail mostly studying such things as YouTube video of Jonathan Gruber speeches and interviews.  Which, at least in this instance, is academic.

Gruber, Cannon explained in a Jul 28, 2014 opinion piece on Politico, is “the MIT economist who helped congressional Democrats write the Patient Protection and Affordable Care Act in 2009.”  Or, as Wikipedia says, “In 2009–10 he served as a technical consultant to the Obama Administration and worked with both the administration and Congress to help craft the Patient Protection and Affordable Care Act (PPACA).”  I’ll let Cannon, in his Politico piece, help me explain further:

[Gruber] has been sharply critical of Halbig v. Burwell, a lawsuit alleging the Obama administration is illegally subsidizing health insurance for 5 million Americans in the 36 states with exchanges established by the federal government. The PPACA offers those subsidies to only those who enroll through an exchange “established by the State.” (Disclosure: I helped lay the groundwork for Halbig and three similar lawsuits.)

The occasion for his Forbes blog post yesterday was that:

Last week, the House Committee on Oversight and Government Reform subpoenaed documents from the Treasury Department and IRS that could have a huge impact on Pruitt v. BurwellHalbig v. BurwellKing v. Burwell, and Indiana v. IRS – four lawsuits that could have a huge impact on ObamaCare.

Those cases challenge the federal government’s ability to implement the Patient Protection and Affordable Care Act’s major taxing and spending provisions in the 36 states that failed to establish a health insurance “Exchange.” The federal government established fallback Exchanges within those states, but the PPACA says the IRS can implementthe law’s Exchange subsidies, employer mandate, and (to a large extent) its individual mandate only “through an Exchange established by the State.” Nevertheless, the IRS issued a regulation implementing those taxes and expenditures in states with federal Exchanges anyway. That regulation that is being challenged as illegal by taxpayers, employers, school districts, and states, who claim the IRS is taxing them without congressional authorization.

The occasion for my blog post here at AB yesterday was to point out that the issue is not whether some IRS administrator or HHS official initially used the statute’s “through an Exchange established by the State” phrase in drafting the agency regulations to implement the ACA.  The issue is instead, uh, what “established by the State” means within the statutory scheme.  The question, more specifically, is whether mandatory default delegation, by a state to the federal government, of the setup and operation of a state’s exchange is, y’know, the establishment of an exchange by the state.  Sorta like whether the delegation of, say, prison operations by a state to a private for-profit company is the establishment of a prison system by the state or is instead a rogue operation with coopted police powers to hold people against their will.  Which I think would be called false imprisonment, in tort law.

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The Halbig Subpoena. Oh, the Fright!

Last week, the House Committee on Oversight and Government Reform subpoenaed documents from the Treasury Department and IRS that could have a huge impact on Pruitt v. BurwellHalbig v. BurwellKing v. Burwell, and Indiana v. IRS – four lawsuits that could have a huge impact on ObamaCare.

Those cases challenge the federal government’s ability to implement the Patient Protection and Affordable Care Act’s major taxing and spending provisions in the 36 states that failed to establish a health insurance “Exchange.” The federal government established fallback Exchanges within those states, but the PPACA says the IRS can implementthe law’s Exchange subsidies, employer mandate, and (to a large extent) its individual mandate only “through an Exchange established by the State.” Nevertheless, the IRS issued a regulation implementing those taxes and expenditures in states with federal Exchanges anyway. That regulation that is being challenged as illegal by taxpayers, employers, school districts, and states, who claim the IRS is taxing them without congressional authorization.

The Halbig Subpoena, Michael F. Cannon, Forbes.com blogger on “health, freedom, and other uncertainties,” today

Oh, dear.  Scaaaaary.

I’m pressed for time, so for background I’ll quote from a Jan. 30 post of mine about Halbig:

Hmm.  Okay, let me take a crack at this.  The law gives each state the option of running its own exchange or instead allowing the federal government to run an exchange for the state–an operation that must be done separately for each state, because each state has its own insurance companies offering different policies than other states, and subject to state insurance laws and state agency oversight.

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Turns out Alito isn’t the only justice who conflates the Securities Exchange Act with state-law corporate-structure statutes. Roberts does, too! (Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling. Or something.)

Roberts suggested that he believes Hobby Lobby and Conestoga Wood can bring forth claims of religious freedom, saying courts have held that “corporations can bring racial discrimination claims as corporations” and that “those cases involve construction of the term ‘person.'”

John Roberts Offers Conservatives A Way Out Of Birth Control Dilemma, Sahil Kapur, TPM, yesterday

Late Tuesday afternoon, after I’d read two or three early reports on the argument at the Supreme Court that morning in the Hobby Lobby and Conestoga Wood cases, I posted a piece here titled:

“My early take on the ACA-contraception-mandate-case argument: Alito conflates the Securities Exchange Act with state-law corporate-structure statutes (yikes); Kennedy really, really wants to give corporations the full complement of human constitutional rights; and Scalia really, really needs to limit this ruling to an interpretation of the Religious Freedom Restoration Act.”

That post harked back to one I’d posted the day before about what to look for in the upcoming argument.  What to look for, I said? Mainly whether “the court will back away somewhat from its Citizens United claim that corporate CEOs can, in the name of the corporation, access the constitutional rights of citizen-association members.”  I predicted that it would–that the Court “will find some way to segregate speech rights from other constitutional rights, and will rule against the plaintiffs in these two cases.” I wrote:

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My early take on the ACA-contraception-mandate-case argument: Alito conflates the Securities Exchange Act with state-law corporate-structure statutes (yikes); Kennedy really, really wants to give corporations the full complement of human constitutional rights; and Scalia really, really needs to limit this ruling to an interpretation of the Religious Freedom Restoration Act.

When [U.S. Solicitor General Donald] Verrilli said the Court has never found a right to exercise religion for corporations, Alito wondered if there was something wrong with the corporate form that it would not be accorded religion freedom rights.  Did Verrilli agree, Alito said, with a lower court’s view that the only reason for a corporation to exist was to “maximize profits?”  Verrilli said no, but Alito had made his point.

Argument recap: One hearing, two dramas, Lyle Denniston , SCOTUSblog, reporting on this morning’s Supreme court argument in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius

That paragraph was one of two in Denniston’s recap that dismayed me, albeit only momentarily. Unquestionably, a threshold issue in these cases is whether or not the proverbial corporate veil–a shorthand legal term that conveys that the very purpose of the state-created corporate structure is a severance of the rights and liabilities of corporations from those of its shareholders–can be “pierced” in order to allow the shareholders in these two closely-held corporations to confer to the corporation their personal legal right of religious exercise under the First Amendment or under a federal statute called the Religious Freedom Restoration Act, the latter which expressly uses the term “person” to identify its beneficiaries.  I addressed this in detail in this post here yesterday.

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George Will Comes Out for Single-Payer Healthcare Insurance! Cool!

WASHINGTON — Someone you probably are not familiar with has filed a suit you probably have not heard about concerning a four-word phrase you should know about. The suit could blow to smithereens something everyone has heard altogether too much about, the Patient Protection and Affordable Care Act (hereafter, ACA). …

The four words that threaten disaster for the ACA say the [federal] subsidies shall be available to persons who purchase health insurance in an exchange “established by the state.” But 34 states have chosen not to establish exchanges.

Four words in the ACA could spell its doom, George Will, Washington Post, today*

Ah.  While George Will’s readers don’t know about the lawsuit and others like it, and don’t know about the the four words at issue, my readers, here on AB, are not so in-the-dark.  The problem, of course, is that my readers are, well, not that numerous.  And George Will obviously is not among them.

To refresh your memory, faithful readers, back on Dec. 3, I posted a detailed post, prompted by a New York Times article that day by Sheryl Gay Stolberg.  Stolberg’s article was titled “A New Wave of Challenges to Health Law.” My blog post was titled “The Antidisestablishmentarianism Theory of Obamacare Illegality. (The ACA has a (dis)establishment clause!  Who knew?).”

I began my post, as I often do for the sake of efficiency (I don’t get paid to write these things. Dan???)**, with a quote from the article that discusses the issue I want to write about.  In this instance, the quote was:

A federal judge in the District of Columbia will hear oral arguments on Tuesday in one of several cases brought by states including Indiana and Oklahoma, along with business owners and individual consumers, who say that the law does not grant the Internal Revenue Service authority to provide tax credits or subsidies to people who buy insurance through the federal exchange. …

The subsidy cases, if successful, would strike at the foundation of the law. Subsidies and tax credits, which could be available to millions of low- and middle-income Americans, are central to Mr. Obama’s promise of affordable care. In drafting the law, Congress wrote that such financial help would be available to people enrolled “through an exchange established by the state” under the law.

“ ‘Through an exchange established by the state’ under the law.”  I wrote:

Hmm.  Okay, let me take a crack at this.  The law gives each state the option of running its own exchange or instead allowing the federal government to run an exchange for the state–an operation that must be done separately for each state, because each state has its own insurance companies offering different policies than other states, and subject to state insurance laws and state agency oversight.

The law doesn’t say “through an exchange run by the state” under the law; it says “through an exchange established by the state” under the law.  The states know their options.  Fourteen of them chose to establish an exchange by setting one up and running it.  The rest have chosen to establish an exchange by delegating to the federal government the job of setting up and running the exchange for the state.

The law itself, in other words, by requiring that each state choose one of two mechanisms to establish an exchange–directly or instead by delegation to the federal government–required every state to have (i.e., to establish) an exchange.  The tax credit, or subsidy, provision of the statute does not limit tax credits (subsidies) to people who live in states that choose to physically set up and run the state’s exchange itself.  It provides that benefit to people regardless of their state of residence, because by operation of law–specifically, by operation of that law–states can establish their exchanges by delegating to the federal government the physical setting up and running of the exchange.

Depends, in other words, on what the meaning of established is.  Or, more accurately, on what Congress intended the meaning of “established” to be.  And I’ve just told you what that is.  Surely, the federal courts understand the concept of contracting out a tech job.  Thirty-six states have chosen to contract out this job to the federal government.  Except, of course, that the contract was not negotiated but instead compelled by law.

Voila!  The antidisestablishmentarianism theory is disestablished.  The tax credits/subsidies clause in the ACA applies even to you, Red State denizens who qualify financially.  Congratulations.  I mean, my condolences.

I do not suggest that this is a slam-dunk.  As Will explains, the IRS, charged with enforcing the statute, has interpreted it as “consistent with,” and justified by, the “structure of” the ACA. By which, Will says, “The IRS means that without its rule, the ACA would be unworkable and that Congress could not have meant to allow this.”

Well, no, actually, what the IRS means is that in the 14 states that have established and run their own exchanges, the entirety of the law that remained after the Supreme Court struck down one part of it–more on that part below, because Will doesn’t understand the legal theory that succeeded in that part of the Supreme Court opinion; he should have phoned one of the legal eagles he mentions fondly before he bandied it about near the end of his column–is working reasonably well, thank you very much.

And that in the remaining 36 states, it’s also working fairly well now that the federal website is working fairly well.

And that if the Supreme Court does take the bait in these lawsuits, and strikes down the federal subsidies to lower- and some middle-income folks and families–who by then will be receiving those subsidies and enjoying meaningful healthcare insurance and the resulting relief from fear of economic hardship or calamity, should they need major medical care (or even just a broken ankle set)–the ruling likely will be the final nail in the federal-programs-via-federalism juggernaut so strongly supported by Republicans until Barack Obama became president.

Yes, as those links show, I’ve written extensively here about the death of federal-programs-via-federalism, courtesy of the Tea Party.  In those posts, I’ve also discussed the probable result of this for healthcare insurance: a major push for single-payer coverage, albeit not as a monopoly. This is a.k.a, “the public option.”

Will and his compadres apparently haven’t noticed that, with the exception of the Tea Party, most people who are concerned about Obamacare are not raging about “freedom!”/“liberty”!  Instead, they complain that their provider networks are too narrow or that the healthcare plan that they “liked” has been cancelled but usually are easily replaced by a plan they like better.

Or would like better if they knew of its availability.  Either because, with subsidies, it’s much less expensive, or because for a small additional cost, it’s much more comprehensive.  And because, well, it or something similar will continue to be available even after they actually make a large claim. Many people who have a pre-existing medical condition and who have feared that losing their job and therefore access to healthcare insurance at all, have some strong opinions about this, too.  Many of them agree that the issue is “freedom! liberty!”

As a liberal who would love to see a public option available to all–a system that uses its near-certain bargaining power to significantly lower healthcare costs and broaden provider networks or eliminate the very concept of it–I say to the justices, “Go for it!”  And as a Democrat, I’ll be licking my chops during the following campaign season, if they do.

Will says that some people argue that “the language limiting subsidies to state-run exchanges is a drafting error.” To which he responds: “Well.”  But he also disputes that the drafting-error claim is accurate. The words “established by the state,” were “carefully considered and express Congress’ intent.” “Congress,” he says, “made subsidies available only through state exchanges as a means of coercing states into setting up exchanges.”

Okay. Except that, well, what exactly is the hammer, the gun held to the head, in the coercion equation?  The states can establish and run their own exchanges or instead choose to allow the federal government to establish and run an exchange for the state; each state, remember, needs its own exchange, because the insurance policy options are for each state alone. Coercion? Really? The state saves money by allowing the federal government to establish and run the state’s exchange.  Our money or our life, isn’t all that coercive. “In Senate Finance Committee deliberations on the ACA, Chairman Max Baucus, D-Mont., one of the bill’s primary authors, suggested the possibility of making state-run exchanges the sole source of subsidies because only by doing so could the federal government induce state cooperation with the ACA,” he says.

I’ll take his word for it.  The problem is that there is nothing inherently problematic with the federal government attempting to induce cooperation with the ACA or any other statute, when there is no penalty to the state for refusing the inducement and failing to cooperate.  Will might want to check out how, say, federal transportation funds usually are distributed.  He doesn’t understand this, though, and the last three sentences of that paragraph run off the rails.

Baucus, he says, suggested the possibility of making state-run exchanges the sole source of subsidies because only by doing so could the federal government induce state cooperation with the ACA, because, um, that way “the law’s insurance requirements could be imposed on states without running afoul of constitutional law precedents that prevent the federal government from commandeering state governments.”

Yikes.

The constitutional law precedents he’s referring to are actually, first, a line of dictum in a Supreme Court opinion suggesting that there is a line, not crossed in that case, beyond which the federal government cannot go in trying to obtain a state legislature’s enactment of legislation, and, second, the section of the Supreme Court’s multipart ACA opinion issued in late June 2012. That opinion upheld all but one of the challenged sections of the ACA as constitutionally permissible use of federal fiscal power, and struck down the part of the Medicaid-expansion section that made continued federal Medicaid funds available to each state contingent upon the respective state’s agreement to expand the Medicaid program under the ACA.

The commandeering of state governments, the Court held, occurred because the Medicaid program, a program in which every state voluntarily participates and that is funded jointly by the state and the federal government, is too popular for state legislators to vote to end. Thus, coercion by the federal government, not because of the federal funds that would be provided to the states for the additional Medicaid coverage but because of the state funds, albeit only a small percentage of the costs of the expansion, that the expansion would require beginning a few years into the expansion program.

The success of this argument dismayed scads of legal scholars and other followers of the litigation. But the theory requires something resembling coercion of state legislators.  A huge part of modern conservative-legal-movement constitutional federalism claims do flip the Constitution’s Supremacy clause upside-down. But, really. No one, not even Paul Clement, at least to my knowledge, claims that the absence of a state veto over legitimate federal legislation constitutes the commandeering of state governments by the federal government, and therefore states must approve federal legislation. The federal government is entitled to use its constitutionally “enumerated” spending power to provide subsidies, in the form of tax credits or in some other form, toward the purchase of private healthcare insurance.  Will’s claim to the contrary is ridiculous.

Will says, accurately, that passage of the ACA required the vote of every Democratic senator. He also says that one senator, Ben Nelson of Nebraska, “admirably opposed a federal exchange lest this become a steppingstone toward a single-payer system.”

Nelson, as a longtime lawmaker, probably is aware of the law of unintended consequences.  Will, by contrast, has never been a lawmaker.

******

*Link is to a non-pay-wall republication titled slightly differently.

**As we Bears know, Dan Crawford has a sense of humor.  Or did have one.

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John Roberts’ Curious Voting-Statistics Sophism Misconstrues The Census Report’s Statistics by Failing to Consider Key Statistical Deviation Facts and Fails To Consider WHY Massachusetts Blacks Might Be Voting In Lower Percentages Than Mississippi Blacks Are, Even IF They Are. [UPDATED]

In a blog post titled “In Voting Rights Arguments, Chief Justice Misconstrued Census Data” on NPR’s website, veteran NPR Supreme Court correspondent Nina Totenberg deconstructs a sophism offered by John Roberts at the oral argument on Wednesday on the continued constitutionality of a key section of the Voting Rights Act of 1965, which Congress has extended several times, the last time, overwhelmingly, in 2006.  Totenberg writes:

At the voting rights argument in the Supreme Court on Wednesday, Chief Justice John Roberts tore into Solicitor General Donald Verrilli, grilling him on his knowledge of voting statistics.
The point the chief justice was trying to make was that Massachusetts, which is not covered by the preclearance section of the Voting Rights Act, has a far worse record in black voter registration and turnout than Mississippi, which is covered by Section 5 of the act.

But a close look at census statistics indicates the chief justice was wrong, or at least that he did not look at the totality of the numbers.

Totenberg goes on to say that the statistics Roberts used were taken from a lower-court dissenting opinion, statistics that in turn were taken from a 2010 census report.  “But,” Totenberg says, “upon close examination, the numbers are less than reliable, according to the Census Bureau itself.”  She explains:

Here’s the deal. The Census Bureau does voting surveys to look at voting patterns nationwide, but the survey is based on a very small sample. Most recently, in 2010, the survey looked at 94,208 voters nationwide. Break that up into roughly proportional samples in each state, Census officials say, and it is really not possible to compare states because those with relatively low minority populations have a much higher margin of error.

The number of black citizens eligible to vote in Massachusetts is 236,000, while it is 721,000 in Mississippi, more than three times that number. Therefore, according to Census officials, when looking at the estimated turnout rate in Massachusetts, the voting percentage for African-Americans at first blush is estimated at 39.3 percent. But the margin of error is 11.5 percentage points, meaning that the black voter turnout actually could be as high as 50.8 percent (or, conversely, as low as 27.8 percent). 


Now, look at Mississippi, where black turnout is listed at 48.7 percent. But because of the large size of the African-American population that was sampled, the margin of error is only 5.4 percentage points.

That means that factoring in the margin of error, the black turnout rate in Mississippi could be as high as 54.1 percent, or as low as 43.3 percent.

So, if you factor in the margins of error at their extremes — with Mississippi at the low end and Massachusetts at the high end — Mississippi could have had a black voter turnout rate that was 7.5 percentage points lower than Massachusetts.

Bottom line, as Census officials told me, these numbers are simply not reliable for state-by-state comparisons because of the high margins of error in some states.

Yep, John Roberts, it turns out, is no statistician.  But neither is he, well, a social scientist. Or even a moderately sharp observer of politics.  At least, not of Massachusetts politics. Where, y’know, Democrats usually win with lopsided victories in, say, House races in predominantly black Congressional and state-legislative districts; where the outcome of the state’s electoral college presence in presidential elections has not been in doubt for decades; and where neither Ted Kennedy’s nor John Kerry’s reelection was even remotely in doubt since, I guess, the 1994 Ted Kennedy/Mitt Romney campaign. Totenberg’s report makes clear that voting in the hotly-contested statewide race to replace Kennedy, who died in office–a special election in late 2009–was not part of the census report, which measures voting only in national elections.  

So, might not the question of what’s at stake in a particular election matter, even when you’re a Supreme Court justice who’s spent decades wanting to see the Voting Rights Act’s demise and will not be fussy about the grounds you state for your decision?  I mean, just to make it look sorta rational?

Most of the media attention concerning that oral argument focused on what were truly shocking comments by Scalia in which he said both that voting rights are a racial entitlement and, equally stunningly, although gaining less attention, that the motive of members of Congress in voting to “perpetuate” that “racial entitlement” in extending the Voting Rights Act–political reasons, he said–is appropriate reason for the Supreme Court to refuse to give the usual “deference” (here, legalese for benefit of the doubt) to Congress’s legislative decision after weighing extensive evidence, even if the motive was itself not unconstitutional.  

This latter–that the motive of members of Congress, which in this case no one claims was an unconstitutional motive (e.g., a racist motive or a religious-discrimination motive)–purports to give the Court the constitutional authority to reject Congress’s legislative choices–is so obviously bizarre and dangerous that, in this case, it likely won’t garner agreement by any other justice. But that oral argument was the second time in less than a year that Scalia offered this argument, and the first time he did so, he was joined by three other justices.

The case in which this occurred was the ACA (Obamacare) case.  In his dissenting opinion, he claimed that because a majority of the Court was voting to strike down as unconstitutional one section of the statute–the section concerning the consequences to states of refusing to agree to accept the expansion of Medicaid–the Court must strike down the rest of the statute, not because a majority thought the rest of the statute also was unconstitutional (a majority did not), but because a few members of Congress who voted for the statute might not have voted for the statute if that Medicaid-expansion part was not part of it.  The ACA passed the Senate with no votes to spare, see, so, well, I mean, who’s to say that without the Medicaid-expansion part, the statute would have passed at all?!

Rest assured, though, that this, like sooooo many other movement-conservative gimmicks, would be entirely discretionary with the justices, or lower-court judges, case by case.  A budget bill that conservatives favor, and that’s enacted in a close vote, would not be strikeable in its entirely even if it contained some part that a majority of the Court thinks is unconstitutional.  But a budget bill that disfavored by conservatives, and enacted in a close vote, might be strikeable in its entirety if one part is deemed unconstitutional, since ya never know whether it was that log-rolling of the sort that Scalia, Kennedy, Alito and Thomas objected to in the ACA, and that involved the unconstitutional provision, that enabled the passage of the budget bill.

This, by the way, apparently was the bridge-too-far that began Roberts on the road to a change of heart, and change of vote, on the constitutionality of the individual-mandate provision. Reportedly, it really offended and scared him.  But it got the votes of four of the nine justices.

This time around, though–in the Voting Rights Act case–Scalia’s apparently trying only to use this motive-matters argument to strike down a key section of the Act, not the whole thing. Which makes sense, since log-rolling wasn’t the reason for the 2006 reenactment of the law, and, as I said, the law was reenacted by overwhelming votes in each house; 98-0 in the Senate. But luckily for Scalia and friends, among them Roberts this time, there is that census report.  

And Nate Silver hasn’t been asked to analyze it. And he probably won’t be.

—-
UPDATE: OH. WOW.  Politico reported last night, in an article titled Massachusetts official slams chief justice’s comments on Voting Rights Act:

The problem, Massachusetts Secretary of State William Galvin says, is that the data does not back up Roberts’s claim.

“It’s just disturbing that the chief justice of the United States would spew this kind of misinformation,” Galvin told POLITICO.

Galvin’s office assumes that Roberts was going off U.S. Census Bureau data, which is one of the only national datasets on voter turnout by race, but they say the 2010 numbers don’t support what Roberts is saying.

“He’s wrong, and in fact what’s truly disturbing is not just the doctrinaire way he presented by the assertion, but when we went searching for an data that could substantiate what he was saying, the only thing we could find was a census survey pulled from 2010 … which speaks of noncitizen blacks,” Galvin said. “We have an immigrant population of black folks and many other folks. Mississippi has no noncitizen blacks, so to reach his conclusion, you have to rely on clearly flawed information.”

The 2010 tables show that Massachusetts does have a high discrepancy between turnout of white and black voters, but is in line with several other states, including Minnesota, Kansas and Washington, which actually has a wider ratio. The states are also similar on registration numbers. Additionally, the margin of error on each of these states’ data is over 10 percentage points, and many states on the list had populations of blacks so small, data wasn’t even available.
“We reached out to academics at many institutions … and they could find no record either, they were puzzled by [Roberts’s] reference,” Galvin said.

So Roberts was gamed by an incompetent or intellectually dishonest lower-court judge, from whose dissenting opinion Roberts took the bait, the hook, the line–and the sinker. It’s fairly commonplace for lower-court judges to misstate or omit key evidence.  Sometimes, it’s because the law clerk they’ve assigned to do their work for them doesn’t bother to actually nail down or verify facts put into briefs, and sometimes it’s just that they know how they want to rule, and just cherry-pick truncated statements of fact to support their chosen conclusion.  And sometimes–and believe me; this is true–they just fabricate a fact out of nowhere.

But, really–the chief justice of the U.S. Supreme Court using a statistic on voting that includes non-citizens as eligible to vote, because he just lifted a surprising statistic from a lower-court judge’s dissenting opinion, without first looking into its plausibility, much less its actual accuracy?

What’s next? The chief justice relying unquestioningly on a Bob Woodward report?

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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 Firedoglake.com, front page.]

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