Et tu, Roberts? Federalism Falls By The Hand Of A Friend

Below is today’s column in USA Today on the health care decision. Though I support President Obama’s effort to establish health care, I have always opposed the individual mandate as a violation of federalism principles. What is fascinating is how some challengers have heralded yesterday’s decision as a victory of federalism. As shown below, I do not take that view.

The Supreme Court’s blockbuster health care ruling caused a spasm of celebration and recrimination around the country Thursday as the Affordable Care Act was upheld on a 5-4 vote. In reality, the case was never really about health care but federalism — the relative authority of the federal government vs. the state.

I support national health care, but I oppose the individual mandate as the wrong means to a worthy end. Indeed, for federalism advocates, the ruling reads like a scene out of Julius Caesar— a principal killed by the unseen hand of a long-trusted friend. Brutus, in this legal tragedy, was played by Chief Justice John Roberts.

The opinion starts out well. Roberts defends federalism by ruling that the administration exceeded its authority under the commerce clause. Just as many readers were exalting in the affirmation of federalism, however, Roberts struck a deadly blow by upholding the individual mandate provision as an exercise of tax authority. Federalism rose and fell so fast it didn’t have time to utter, “Et tu, Roberts?”

Roberts joined the four liberal justices in upholding the law. He clearly believed that the law was constitutional, and he refused to yield to the overwhelming public pressure. Indeed, he must have known that people would view this as a betrayal of states’ rights, but he stuck with his honest view of the Constitution.

None of that will diminish the sense of betrayal. After all, Brutus acted for the best reasons, too. The health care case was viewed as the final stand for federalism. If the top court could make a federal issue out of a young person in Chicago not buying health insurance, it was hard to imagine any act or omission that would not trigger federal authority. Roberts agreed that this was beyond the pale of federalism: “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”

But no sooner had Roberts proclaimed his love for federalism than he effectively killed it. Roberts held that the individual mandate still fell squarely within the taxing authority of Congress. If so, all those “broccoli” questions asked by Roberts and other justices simply move over to the tax side. If Congress can “tax” people for not having health insurance, how about taxes on people who don’t have cellphones (as Roberts asked)? Just as there was no clear limiting principle in the commerce clause debate, there is a lack of such a principle in the tax debate. Instead, Roberts simply says the individual mandate is supported by a “functional approach” that has long allowed federal taxes to “seek to influence conduct” by citizens.

Roberts did rule that states could not be threatened with the loss of Medicaid funds if they didn’t want to be part of the program. That was an unexpected protection for the states facing threats from Congress. But this still leaves citizens of every state subject to the penalties of the federal government for failing to get insurance. Moreover, in mandating the right to opt out, Roberts rewrote the law, precisely what most justices didn’t want to do. Before the law was enacted, Congress refused to add an opt-out provision. After the justices complained in oral arguments that they did not understand the massive law, this judicial amendment could increase health care costs and undermine the uniform national character of the program.

Given such problems, President Obama might have been better off losing before the court than accepting this victory from the hands of Roberts. In the end, the court’s decision could be viewed as a success only to the extent that a crash landing is still considered a landing.

It is hard to see who will be the ultimate winner from this decision. But the biggest loser is federalism. Roberts lifted it up only to make it an exquisite corpse. In that sense, the decision reads like the funeral speech of another character in Julius Caesar. To paraphrase Mark Anthony, Roberts came to bury federalism, not to praise it.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

June 28, 2012

162 thoughts on “Et tu, Roberts? Federalism Falls By The Hand Of A Friend

  1. Appeal to Authority can fail and turn from cite to fallacy quite easily.

    The strength of such arguments relies upon whether the authority is a legitimate expert on the subject, is there a consensus exists among legitimate experts on the matter under discussion, does the speaker properly understand and/or represent the argument of the authority and is that authority improper and/or biased in any way (for example does an authority fall into an extremist camp in the nature/nurture debate). Also arguing to authority is a form of inductive reasoning and as such is constrained by that form, i.e. while such an argument may have probabilistic merit it is not necessary logically that the conclusion must be true. In this manner, inductive reasoning fails because it is allowing the theory – backed by authority – to inform the evidence instead of allowing the evidence – on its inherent evidentiary merit – to inform the theory. Consider the most likely outcome of the Higgs boson research. They will probably not announce they have conclusively found the Higgs boson. They will probably announce they have evidence for a particle that may be the Higgs boson but that further research is necessary to determine if it is the Higgs boson as described by the standard model or if it is a different creature altogether.

  2. Gene H. 1, July 2, 2012 at 4:14 pm

    Appeal to Authority can fail and turn from cite to fallacy quite easily.

    The strength of such arguments relies upon whether the authority is a legitimate expert on the subject, is there a consensus exists among legitimate experts on the matter under discussion, does the speaker properly understand and/or represent the argument of the authority and is that authority improper and/or biased in any way (for example does an authority fall into an extremist camp in the nature/nurture debate). Also arguing to authority is a form of inductive reasoning and as such is constrained by that form, i.e. while such an argument may have probabilistic merit it is not necessary logically that the conclusion must be true. In this manner, inductive reasoning fails because it is allowing the theory – backed by authority – to inform the evidence instead of allowing the evidence – on its inherent evidentiary merit – to inform the theory. Consider the most likely outcome of the Higgs boson research. They will probably not announce they have conclusively found the Higgs boson. They will probably announce they have evidence for a particle that may be the Higgs boson but that further research is necessary to determine if it is the Higgs boson as described by the standard model or if it is a different creature altogether.
    ========================================
    Science has a way of mediating the tendency to make a faith out of science, and a science out of faith.

    A way to separate fact from opinion, a way to allow the real expert to stand up, in a way more advanced than the legal profession has devised.

    As an example, Einstein, to illustrate one of his hypotheses predicted that a star, which was by straight line sight, to be behind another astral body at a specific time when observed from a specific point on the Earth.

    This was not controversial.

    However, to comply with the prerequisite for converting a hypothesis into a theory, he predicted that in fact the star would be visible at that specific point on the Earth.

    This was controversial.

    This assertion was revolutionary because Einstein explained that light does not travel in a “straight line” when it is in a gravitational field associated with an astral body, rather, space is curved there, so the light will in fact curve around that body as it travels through that curved space.

    His prediction was correct.

    Thus, these CERN scientists need to make a prediction, so that their assertions may be reproduced, repeated, that is tested, by anyone anywhere under the same conditions of their experimental research.

    No faith, no trust allowed, just the facts please.

    Then the Higgs hypothesis may be elevated to theory status if enough authorities agree, and reach consensus, following experimental verification.

    I doubt that Dr. Nobel Price will have any effect one way or the other.

  3. “As an example, Einstein, to illustrate one of his hypotheses predicted that a star, which was by straight line sight, to be behind another astral body at a specific time when observed from a specific point on the Earth.”

    should be …

    “As an example, Einstein, to illustrate one of his hypotheses made a prediction concerning a star, which was by straight line sight, to be behind another astral body at a specific time when observed from a specific point on the Earth.”

  4. once more please …

    “As an example, Einstein, to illustrate one of his hypotheses made a prediction concerning a star, which was by straight line sight, to be behind another astral body at a specific time when observed from a specific point on the Earth.”

    should be …

    “As an example, Einstein, to illustrate one of his hypotheses made a prediction concerning a star, which was by straight line sight, was to be behind another astral body at a specific time when observed from a specific point on the Earth.”

  5. Dredd,

    I didn’t say they weren’t going to make a prediction, in fact, that is precisely what I said they’d do: make a statement they have evidence of a candidate particle. Unless they have verification on their data, they are not going to say in terms certain they have discovered the Higgs Boson. What I said had nothing to do with legal standards of proof and everything to do with proper application of the scientific method – which is something you regularly bypass in appealing to the authority of the fringe elements of the genetic determinism/stereo evolution debate. They are not right just because you consider them experts and perpetually making statements of the truth of their wilder assertions isn’t looking at the evidence on its intrinsic merit, but appealing to their perceived authority to say they are correct. At either end of the spectrum of that debate, there is insufficient evidence for genetics or environment being dominate in natural selection, only evidence that both processes are inputs to natural selection (something that is manifest anyway if you properly understand natural selection in the first place – a process that is not in doubt as it is readily observable and repeatedly testable).

  6. Will Repeal Only Take 51 Votes?

    Because of the filibuster, it now often takes 60 votes to do anything in the Senate.

    But Senate Minority Leader Mitch McConnell said Sunday that he thinks it will only take 51 to repeal the health care law.

    Citing the Supreme Court’s ruling, McConnell said he thinks the individual mandate to buy health insurance is a tax, meaning it could be repealed using a process known as budget reconciliation.

    That would make it dramatically easier to repeal the health care law if Republicans win the presidency and take narrow control of the Senate.

    http://www.congress.org/news/mcconnell-gop-only-needs-51-votes/

  7. @Dredd: Well, I did not expect you to comprehend anything, as I said. I posted so others could see why I think you are a fool. Mission accomplished, I think.

    In both science and law, precedent stops being authority the minute somebody makes a compelling case for why it was imperfect. Such compelling cases are virtually always an original argument, meaning it has NOT been made before (or it would have been compelling then) and that means it appeals to NO authority for its validity, it appeals only to logic and observation that were either unavailable when the precedent was formed, or were ignored when the precedent was formed.

    Original work does not require a precedent or citation, period. It is accepted (or rejected) on its own logic, period. If it is good logic, it can be traced back to self-evident axioms.

    I apologize to other readers for having to repeat myself, but you have a fundamental misunderstanding of the role of citations and precedent in science. They are shorthand for “the argument those guys made that we agree was sound.”

    There is no role for authority in science, in most journal articles the authors do not even list their credentials or degrees, anywhere, and in blind review the “peers” do not even know who the authors are, at all. That is because we don’t care who wrote it, all we care about is the validity of their argument.

    Citations won’t help them: Their argument has to be original, you don’t get to publish a paper repeating somebody else’s original argument. Their argument has to add something new to the field, with research or logic or data, restating something we already know is also not worth publishing (with the exception of “survey” papers that add organizational coherence).

    What makes publications worthwhile is the part of the paper that is a new destination, not the part that describes the known territory that led them to the new destination. It is not the citations, it is the innovation.

  8. Gene H:

    thanks for the link. I am against private funding of science for political reasons as well. It is just as bad. I believe science should be pursued without regard to politics or one’s personal philosophy. You dont use science to confirm your bias.

    Companies which do this harm themselves. If I was CEO of a large company I would allocate a large portion of R&D to theoretical research with no guarantee of short term gains. I would be rewarded 10 fold over a life time.

    I dont know why a company would focus on short term gains or crappy science, it will do nothing for their bottom line in the long term. Find brilliant men and women and let them be free to fail. In fact all organizations should embrace failure and not look at it as a bad thing. It is how we evolve and learn.

    Show me a company where the people are afraid to fail and I will show you a company that is on its way out.

  9. Bron,

    The sad fact of the matter is (and I’m sure Tony will back me up on this) is that very little theoretical research is paid for by the private sector. Most work of that nature is paid for government. Business has become all about short term gains for the most part. That’s reflected in their R&D budgets. Take Big Pharma as your prime example. To quote Chris Rock (because he’s right) “There’s no money in the cure! The money is in the medicine.” The reality is that without governmental funding, pure research would practically grind to a halt. But this is a problem that cannot be solved. Science is a cost, an investment, and the money has to come from somewhere. Government and industry are pretty much the only players on that funding field. You won’t find GoldSachs ponying up any money for experiments that might pay off in 50 years or maybe not at all in and of themselves.

  10. @Gene: Back you up, I will.🙂

    In the past, when so little was known, research and true discovery could be done by individuals, using equipment they built themselves with a few weeks or months worth of income. Real science was well within the range of “enthusiasts.” That was true of electricity, chemists, biologists and botanists, geneticists, mechanics, machinists and astronomers.

    In most sciences the low-hanging fruit has been long picked, and the problems now are far more daunting. The fact that they are still unsolved shows they are highly resistant to a white board solution, and the equipment needed (like electron microscopy, vapor deposition, hard vacuum engineering, etc) is for deep pockets.

    The alternative is what I would call developmental, like trying to link a disease or disorder to a genetic variance and understanding what is going wrong biologically. That kind of work can still be done cheaply, by one person, perhaps with some grad students. I do not want to diminish that kind of work in any way, it saves lives and is important, but if your goal is “headline” science, that usually takes bigger teams and bigger bucks.

    Unless you are doing some kind of field work in paleontology or archeology or something that cannot be done in a laboratory, there is a lot to be discovered there just because discovery is a physically daunting challenge on the human scale, and just doesn’t scale well.

  11. @Bron: The problem is fundamental research may not pay off at all, ever. For exampe we know how the ribosome works (to translate a gene into a protein), and that has been very important in understanding the genetic code, single-nucleotide polymorphisms, etc. But how do you profit from that? What you have is a description of an existing process, it is like understanding how granite is formed, it just isn’t easy to commercialize an understanding.

    You cannot patent it, or get royalties from people that use that knowledge. Fundamental research changes our understanding and how we see something. It is important to dispel mystery, but it isn’t always clearcut how that will produce a profit, or if it will.

    That argues for the public funding of such discovery; and making the results free to the public, to advance knowledge. Hopefully the market benefits, and when the fundamental advances reach a tipping point then risk takers can put them together and fail or succeed with profitable products. The computer industry followed that model, the first computers were funded as government projects and the technology was patent-free.

    The Internet followed that model, the original communications protocols and software were built by university professors and students and made freely available, supported by government funding, and then later commercialized.

    Genetic science is following that model. Publicly funded research is made freely available and can be pursued commercially.

  12. @Bron: I have read something recently about a private asteroid mining venture; that might be the first, but I do not really know the typical chemical makeup of asteroids. My assumption would be they are like Earth or the Moon or Mars itself, basically silica and other stuff we find plentiful on Earth already. So I do not know what they hope to find, but they probably know more than I do about asteroids.

    My first pick for a commercial venture would have been zero-G alloy manufacturing using solar furnaces (parabolic mirror focused sunlight). In space the mirrors can be enormous, and in zero-G it is possible to mix elements that normally would separate in a gravitational field.

    I think a factory like that could be entirely controlled robotically, and really would not have to be that large, the size of a room or so.

    Although I have nothing specific in mind, some of those products would undoubtedly be commercially valuable, both in space and on Earth. Or maybe the point of the asteroid mining is to provide the raw materials for a venture like that, instead of lifting them from Earth or the Moon.

    Personally, I do not think there will be a manned Mars mission until we have the technology to live in inter-planetary space safely and indefinitely; we need the protective equivalent of the Earth’s magnetosphere to deflect the hard radiation of the solar wind, both en route and on Mars (unlike Earth, Mars is weakly magnetized and has no magnetosphere).

  13. Thanks for every other great article. Where else could anybody get that kind of information in such an ideal manner of writing? I have a presentation next week, and I am on the search for such information.

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