The U.S. Supreme Court

I am still at NBC but, as many have heard, the Supreme Court delivered a clear victory to the Obama Administration in upholding the individual mandate. However, the response may be a bit too gleeful for both those following the implications for the Court and the White House.

The decision is likely to deepen negative feelings that preexisted the opinion. Obviously, for conservatives and many supporters of federalism, this will be viewed as the Brutus moment with regard to Roberts. However, it will also magnify the controversy surrounding the failure of Justice Kagan to recuse herself. To the extent that a crash landing is still a landing, this is a victory.  There is no question that the law survived but there are serious questions of how it will be implemented in light of this decision.  If you look more closely, there are serious problems ahead.

First, to the extent that Roberts wanted to unite the Court, he failed. This is another 5-4 decision with a deeply fractured court — reminiscent of Bush v. Gore in the splintering of rationales.

Second, by holding that the individual mandate is not supportable under the commerce clause but as a tax, the Court leaves the White House will only the stick of the law — citizens who do not purchase insurance will be penalized. It is a terrible result for those of us who felt the law was unconstitutional under the commerce clause. While agreeing with that opposition, the Court has affirmed that Congress can easily circumvent federalism concerns. The decision leaves federalism as the constitutional version of the Maginot Line from World War II — an impressive line of defense that can be simply avoided by going around it.

Third, with the decision on the expansion of medicaid, the White House is faced with a health care law that could come with a massive bill for Congress. The drafters wanted young people and the states to bear significant costs. That support is likely to come up short — leaving the government with the unpopular task of appropriating additional funds.

Fourth, by allowing states to opt out (it is really opting in since the state would have to decide to expand its program), the Court has inserted into the law something that Congress rejected. There were calls for opt in provisions that were defeated. The result is that the Court has done what it said it would not in oral argument — produced a materially different law. If a state can opt out, can it take the heavy federal subsidy of 9 to 1 dollars for the first few years and then opt out later?

In the end, this has to be viewed as a victory for the White House, but it is not much of a victory for the credibility of the Court which remains deeply divided. While the opinions are polite, the decision in my view again shows the dangers of a Court that is simply too small.

I previously ran the original and longer version of my column to further explain the proposal to expand the Supreme Court to nineteen members. I also have a second column in the Guardian newspaper that further discusses some of these issues.

Here is the opinion: 11-393c3a2


  1. I have not commented on the USSC decision, waiting to do a little more reading and listening. My background is more towards Constitutional History not Constitutional Law so I naturally was at least diffident to express an opinion that was too far a field to seem useful. In that I spend a lot of time in extant documents I assumed that I must have missed something. My reading of secondary histories has lead me to conclude that checking the footnotes, and getting a better grasp of the context or what may have been left out. So I began the same investigation in this regard.

    I do agree that Wickard is the ne plus ultra of the Commerce Clause. to poorly use an allegory from a movie in contrast, it may have been a bridge too far to begin with.

    As far as showing deference to legislative investigation I do understand the concept but it does have some issues we don’t seem to discuss enough.

    When a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328-330. Pp. 60-61.

    In the first seven words we have to assume the statute is unconstitutional. I became a cautious reader from this point, especially after this comment;

    As we have explained ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality” Cromwell V Besnon

    The methodology for discovering the reasonable construction is also included;


    When Roberts went before the Senate Judiciary for confirmation he very effectively use the Federalist Papers so I wondered why Roberts, [particularly missed this contribution from Hamilton in Federalist 78;

    But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

    I am at this juncture not a fan of the decision. It contains a number of different hermeneutics, one to exclude the Mandate from the AIA, a different one to make the penalty a tax. If in essence this decision was in fact a political one, designed to bolster the Courts popularity with the public, it has a new problem. My devoted liberal friends usually try the captious idea of calling the Court ‘activist’ to underline the usual 5-4 conservative Court. Albeit they are happy the result of the decision was to further alienate the strict constructionist court watchers. The end result may be an increase of apathy towards the Court.

    Increasing the size of the court, fairly done by succeeding administrations, or replacing ‘good behavior’ to a specific time on the Court are all reasonable political remedies, but I do suggest that the political remedy Roberts seemed to employ yielded a negative result, further political remedies might yield a similar if not deepening distrust of the Court.

    What is the remedy? It is an unpopular one, but it may well be that we need a common exegesis of the Constitution itself. If my reading of Marbury is right it declared the Constitution as law. It mandated that statutes were expected to have a political nature included within them, but the test of their validity rested firmly on the Constitutions boundaries. There also exists an attitude that the implies idea of Amending the Constitution is too long to employed, an idea stressed by FDR. Our fathers decided the First Ten Amendments as part of the Constitution in December of 1791, two years after the convening of the First Congress. The ACA came to pass in 2010, the decision from The Court came into effect in 2012. In the former , the Bill of Rights, despite the wrangling’s a consensus was reached, issues debated a truly decided Consent of the Governed was formed. In the latter we still bifurcation, discontentment.

    The time has come for comprehensive reform of the Constitutions powers, establishing the organic law, that decides the derivative law (statutes ) we argue about. The former is a legal question the latter is usually a political one. We need to know the difference between a constitutionally protected opinion, from one that is a constitutional one, or more cases like this one will erode not only our confidence but decimate the idea of a Constitutional Republic with a written Constitution. The Constitution is the Will of the People the Consent of the Governed…. Time to ascertain what it is, we can fight about statutes later.

  2. Kauten,

    What’s to thank for? Idiots grow on trees. Just like spanish moss and mistletoe, both are parasites.

    These are literate, that’s something in that state. Was there some enlightenment I missed. Not a clue. Which is not unusual.

    Do tell.

    The last line billy imitation leaves a great deal left to desire.
    Enjoy my insults, my compliments are even worse.

    In all well-meaning. Not everybody does the slumming for us with weak stomachs

  3. Mike S: “Mark, I get what you’re saying. While at times we all have bones to pick with Anon, he is a regular who has been here a long while, so he is one of our own.”

    What do you mean “our” kemo sabe?

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