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
@Brooklin: Exactly.
Now that their revenue stream is a matter of law, they can turn to the happy task of keeping as much of it as possible by screwing as many people as possible, with Congressman lined up by the dozens willing to sell out their constituents for a little super-PAC help in campaign expenses.
ID:
“Now comes the quip: Do you change pens only, or do you change ink, or tank another compound?”
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I have my secretary grind the pigment for me while I hunt down and hand cut the snow goose feathers.
“Federalism rose and fell so fast it didn’t have time to utter, ‘Et tu, Roberts?'”
An astute observation that acknowledges the radical position of Roberts opinion.
I with Mespo and OS on this one. I am concerned about the claims that Federalism is being damaged, but I don’t see the damage that others are insistent on. I only see the millions that will be helped by this imperfect improvement to our current health care system. There is no way that the House and Senate would have passed a single payer plan and without the ACA, millions would go uninsured and insurance companies would have even less reason to lower their premiums.
I agree with Prof. Turley that we can discuss this openly without rancor and in a civil manner. As long as we don’t discuss religion and politics! 🙂
I admit my ignorance re federalism although being educated by prof columns and mnay of the comments but the professor said it will be hard to see who will be the ultimate winner. To me the answer is easy: the people.
Republicans can now hack away at ACA provisions with as much gusto and ferocity as corporate money will buy. Democrats, also thanks to corporate largess, can put up the brilliant and intrepid resistance we have been witness to in so many areas over the last several years, such as Guantanamo, or drones, or rendition, or throwing innocent families out of their houses by the thousands via illegal foreclosures, or extending tax breaks for the rich with control of both houses. But in all this epic struggle, one thing you can be sure of; the Republicans will not touch the individual mandate (except to strengthen it). Given how much they say they hate it, this will be as mystifying as Robert’s holding it to be constitutional as a tax.
States do not have to comply with the expansion of Medicaid, but individuals do have to comply with the profligacy of insurance behemoths.
@Dredd: That presumes that less than 20% goes into health care now, not profit, salaries, bonuses, and the like.
Bullshit. Tone done your illteracy and moon math.
Dredd says: Tone down the “sociopath” crap, JT has urged civility.
Civility does not mean political correctness or that your feelings should be spared. If JT wants to reprimand me he is free to do so, and the last thing JT needs is you pretending to be his policeman and asserting his authority.
I am speaking factually, sociopaths are happy to make money by deciding to let others suffer, that is what you (and other free marketers) advocate, allowing insurance companies the conflict of interest inherent in their decisions about who gets care and who does not. It is sociopathy; that fact that you find that insulting is immaterial.
A doctor that earns a salary, even if it is high, does not earn a profit by letting people suffer, he earns a profit by relieving suffering.
The opposite is true for an insurance company; they earn more if they can deny coverage. Denying coverage causes disease to go untreated, and that causes misery, disability, and death. I don’t care what your “theory” is, it does not match the reality we can observe and measure: Insurance companies spend massive amounts of money denying claims and treatments that any reasonable person would have believed were covered. One of the highlighted cases during the debate was a woman that died, because she was denied breast cancer treatment, because the insurance company claimed her failure to inform them of her teenage acne constituted a pre-existing condition and invalidated her health insurance contract.
For-profit insurance companies are parasites on patients AND on doctors, they divert money that should have helped save lives into their pockets for their own personal greed. They cause suffering for personal profit. That is sociopathic and in my view criminal; if you support that model you are aligned with sociopaths.
David Blauw 1, June 29, 2012 at 10:56 am
@Dredd: What happened to market factors such as competition between companies for clients and customers based upon better performance.
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I’m going with Tony C. on this one. I’m going with promoting the general welfare as the constitutionally correct reason for a universal government oversight health care plan.
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Fair enough, your choice of course.
I am going with experts, that is why I linked to a report by experts:
(link up-thread). Those companies who have developed some expertise will be ready in 2014.
The others who have 70% capability now will have to improve to 80%, those who have 77% capability now will have less improvement to accomplish, but they can all do it.
If the market dynamics work as theorized then the companies who improve will be rewarded with more clients and customers, and those clients and customers will likewise benefit.
Those who have health insurance already are making the most noise about this for some reason.
Some commentators are not as kind as JT is in his published piece:
(HuffPo). Sounds to me like Savage lives up to his name and would probably be better off if he took some of that epilepsy medicine.
@Dredd: What happened to market factors such as competition between companies for clients and customers based upon better performance.
Buying a car can be difficult for a consumer. Buying a car has a thousand choices. A consumer has the ability to research, question and read, to educate themselves. Evaluating performance, gas mileage, guarantees and warranties are easily available. Buyer beware does exist in the car market, but the tools are their to deal with it.
Dredd, I am not the sharpest tack in the bin, nor the dullest, but evaluating health care is way beyond my abilities. The fog and smog of thousands of pages, thousands of illnesses, different capabilities, practices, etc etc. overwhelm me and I’m sure 90% or more of US. citizens agree.
I in my ignorance and non capability have to rely on my relationship with my Doctor. My biggest personal choice would be if I don’t trust him I look elsewhere. I want a Doctor that will do what is best for me, not what is best for the bottom line of his corporate masters.
I’m going with Tony C. on this one. I’m going with promoting the general welfare as the constitutionally correct reason for a universal government oversight health care plan.
“Bu unfamiliar as I am with legal matters, I don’t understand how Roberts can put a abating hand on Congress prerogative to withhold Medicaid monies from states who select to not participate “in the program” (ACA?).”
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I think this was a backhanded “Let them eat cake”. If you live in a red state that disagrees that the legs of the country have an absolute right to healthcare, then let the vote take care of the problem.
The ‘win’ was not about ‘healthcare’ per se, it was the limits put on the insurance companies and the closing of the donut hole. There should be a huge upsurge in the fight for single-payer insurance for all.
Tony C. 1, June 29, 2012 at 9:56 am
@Dredd: What happened to market factors such as competition between companies for clients and customers based upon better performance.
It is FAR easier to compete by monopoly and regulation, so that is what they bribed politicians to get.
Dredd says: Plus, there will be government oversight to make sure 80% of the premium income goes into health care, not stocks and bonds.
First, that means 20% less health care than we could otherwise have; and that means specifically 20% more unnecessary death and disability, because those are the big ticket items they do not want to pay for; like cancer treatment. So your position aligns with the sociopaths; it is okay for some people to die or be crippled for life so they can afford a sixty foot yacht and a 20,000 square foot suite for an executive office.
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That presumes that less than 20% goes into health care now, not profit, salaries, bonuses, and the like.
Here is what one study says:
(Kaiser Foundation). These data indicate that an improvement will take place.
P.S. Tone down the “sociopath” crap, JT has urged civility. So remember the ancient adage “don’t start no sh*t and there won’t be no sh*t.”
Be good to JT please.
@Idealist: IE, agencies have the congressional budget gun pointed at the literal heads constantly.
I won’t refute that, it is how it should be. The congress is the representative of the people, the people should decide how much is spent on public works, and the leaders of the various agencies should be responsible for getting their mission accomplished efficiently and within budget.
As for re-org and confusion, I disagree. The mission can change as the Congress changes or the budget changes, but I have been a middle manager (a division manager) and you just need to have the courage to do what you think is best with what budget you have, follow your principles, make sure you can defend your actions and perhaps be reprimanded or fired for it.
I believe in oversight by committee as the final word in management. I dislike unitary executive power as the FINAL word. It is okay and pragmatic for middle management; but for FINAL words and decisions I prefer a flat-topped pyramid and a vote (with a tie-breaking mechanism).
The mission of an agency should be to do the most good it can within the budget it is given. Both the amount and the judgment of whether it is accomplishing the mission should be up to the people, even if indirectly by way of Congress. Somebody has to look for fraud, waste, abuse, and misdirection or misapplication of funds, somebody has to be looking out for the owners (the people).
@idealist
I think the dynamic you’re pointing out is this: efficiency is only relevant where resources are scarce. Therefore, budgets are curtailed in order to produce the innovation necessary to increase efficiency.
There are a number of problems with this, in general. First, organizations might reach some optimal level of efficiency, and further budget cuts only hurt at that point.
Second, effciciency isn’t an unqualified good. For example, for government to be accountable, it needs to explain its actions at every step. This is inefficient, but the only way we can tell if government is doing what it should. This is not an argument for government waste, only that efficiency is not a supreme good in all contexts.
Third, industry doesn’t innovate all that much. It’s hard to have innovation where outcomes are foreseen. But industry is largely defined by organizational prowess, and functions by planing (that is, shaping market conditions to ensure certain outcomes). The reason a farmer can order fertilizer or pesticide and be certain to have it for the planting season is because of the effectiveness of planning. If a competition is fair, outcomes cannot be foreseen: markets are unpredictable, and it isn’t market forces that deliver us our goods; rather it is planing. Industry is the result of planning.
“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. ”
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Bad dentist.
and gave the bullies back their whip….
a little socialism would save this country from the fascist surge…and
I don’t buy all the federalist whining, the laws have been so pathetically enforced, twisted and perverted, and the power of the people so pitifully corrupted, that boohooing about the loss of Federalist principle is just, well, bathos….
Mespo72,
“While the purists among us may wish for pristine application of principle, the simple fact is that necessity creates modification in law. As has been rightfully said, our constitution is not a suicide-pact and while principle is critically important it must yield to circumstances that involve even more vital issues.
As I’ve said, Roberts was positively Marshall-esque in trying to preserve the principle of federalism while still permitting a congressionally approved national solution to a national problem. It is hyperbole, in my view, to conclude that both federalism or the nation’s interests were slain by this decision. The simple fact is that it is a false choice to decide between the two and while these bedrocks may have been chipped by the decision, the foundation still stands.”
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Inspiring. Inspired? WTF, it was good.
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Now comes the quip: Do you change pens only, or do you change ink, or tank another compound?
Reading JT’s and others arguments that the Health Care Law violated the concept of Federalism and was therefore a further example of the erosion of our Constitution, I was persuaded that there points were valid. Yet those that took the position that Congress had the right to place a penalty on those who refused to purchase also had persuasive elements in their arguments. In truth though I see it all from a different perspective that I think goes beyond this specific legislation and strikes at the heart of what has been wrong with our country in its history and is wrong today.
All the legal systems that govern nations are the products of years of evolution, the exercise of naked power.and the fruits of political compromise. The U.S. Constitution, as radical a document as it was in its time, was no less influenced by these forces. In our country’s case it was the process that melded together thirteen states, each with ethnically/religiously disparate populations and governed by different economic needs. Each State’s citizens were loyal to their particular State and viewed a “Federal” government with suspicion and the specter of tyranny. Thus the Constitution reflected a compromise that could assure each State a measure of sovereignty to continue in its own direction. The concept behind that was surely that with much to be decided on a local level the freedom of a States citizens was somehow more protected.
With the perceptive wisdom of hindsight I believe that this initial decision, quite reasonable at the time, has actually been a chief cause of turmoil and tyranny.
The most obvious dysfunction of States Rights was slavery, which not only led to the Civil War, but whose aftereffects linger today in an undercurrent that still breeds major resentment. However, given the range of local autonomy that each State has under our Federal System we see that an average, individual citizen’s future is dominated to a great extent by the State in which they are born. The educational opportunities for a child of average ability, for instance, are far greater in some States than in others. We have seen that the freedom to vote is now subject to limitations in various States where voter suppression has become a “cause celebre”. Indeed, wasn’t the reality of the stolen election in 2000 the result more of voter suppression/fraud than of actual count of the votes deemed cast?
Using the 2000 election as a further illustration was the fact that the majority of votes were cast for the losing candidate, but the victory was decided by the Electoral College, which is another relic of the Constitution’s compromise of deferring to the rights of the individual States. We have also the situation caused by giving each State, despite widely varying populations, two Senators.
This has allowed for States representing minuscule amounts of people to be able to wield power far beyond their.size and extract benefits catering to their own needs, sometimes to the detriment of the entire country. for instance how many unneeded military bases have been kept open simply because their Senators have extracted these local benefits in exchange for their votes.
While I believe a much more comprehensive and compelling case can be made from this viewpoint, the examples above illustrate my thoughts well enough for agreement or disagreement, with the point I am making. That is that arguments over Federalism ignore the innate dysfunction caused by the compromises that cobbled together the Constitution, as great a document as it is. For the present it is in our interests to support the Rule of Law and thus support upholding the Constitution. however, if we ever want to get to the point where we can truly have a society based on principles of freedom for all, we will have to have some sort of Constitutional Convention that will deal with the flaws that are only dealt with now in patchwork solutions.
The problem is that a Convention seems almost a chimerical idea and the potential of it making our lives far worse is also great. We are then stuck with defending the flawed document that is our Constitution as best we can. We can at least though, drop the pretense that our founding Fathers created a document flexible enough to take us through the ages as a free nation.
@Dredd: What happened to market factors such as competition between companies for clients and customers based upon better performance.
It is FAR easier to compete by monopoly and regulation, so that is what they bribed politicians to get.
Dredd says: Plus, there will be government oversight to make sure 80% of the premium income goes into health care, not stocks and bonds.
First, that means 20% less health care than we could otherwise have; and that means specifically 20% more unnecessary death and disability, because those are the big ticket items they do not want to pay for; like cancer treatment. So your position aligns with the sociopaths; it is okay for some people to die or be crippled for life so they can afford a sixty foot yacht and a 20,000 square foot suite for an executive office.
Second, that 80% is already being undermined by the companies, they are going to qualify as part of the 80% on “health care” the salaries of their employees that deal on the phone with patients, and perhaps other expenses of their company as well, leaving more for their own bonuses and compensation, and the government does not appear to be complaining. The law WILL be undermined, as I said above the caveats (like this 80% rule) will be allowed to decay by the studious inattention of Congress, until they mean nothing. I have no doubt that what counts as “Health Care” for the 80% will be redefined until the distinction is meaningless, and five years from now the insurance companies will be allowed to put whatever they like in that column, even their own massive bonuses, and Congress won’t stop them.
Third, the issue isn’t putting the profits into stocks and bonds, it is putting it in the hands of the private owners of the insurance company. The issue is the ability to make a personal profit by causing your customers misery. It is an inherent conflict of interest.
TonyC,
I have from the beginning been enthusiastic about your idea of regulated commerce and/or public utilities vs profit driven corporations.
“The mission of a government agency is to do as much good as possible within their budget and overseen by Congress. That does leave them with making some decisions about the value of care, but they make those decisions objectively without regard to their personal fortunes, because their personal fortunes are not on the line.”
This seems well optimistic and denies what appears to be obvious reality seen every day.
IE, agencies have the congressional budget gun pointed at the literal heads constantly. THEIR “CEOs” are driven to improve in the form of budget reductions.
They have to show they are dynamic and always have some re-organization plan on the back-burner. It will be unleashed before the current mess from the previous re-org has been resolved by ex post facto ad hoc fixes.
Confusion factor will constantly increase. Inefficiency will also.
AND THE OVERRUN IN COSTS WILL BE TAKEN FROM THE ONLY REMAINING SECTOR—-IE PUBLIC BENEFITS, FOR WHICH THE AGENCY WAS CREATED.
Please do refute my comment. I prefer your dreams (and obvious greater experience in the field) to my doubts concerning our capability to screw up the best of ideas.
I could give examples from Sweden, so this is not a criticism of the USA way. It is human nature perhaps.
oops … seven minutes … not seven seconds …