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
rafflaw
Blouise,
If the GOP doesn’t win the White House and/or the Senate in November, the ACA will remain intact. They will continue to use it as their boogeyman to rile up the tea party crowd, but it will survive.
————————————————————-
I have no doubt you are right.
@Blouise: A fig leaf indeed, since I think it covers their plan to phuck us. 🙂
Did someone say fig leaf?
Inspector Olivetti: [on hearing Langdon’s description of Pius IX’s “Great Castration” of Vatican City’s male statues where their genitalia were replaced with plaster fig leaves] Are you anti-Catholic Mr. Langdon?
Robert Langdon: No. I’m anti-vandalism.
Tony,
” … their current opposition is just a show for the rubes and trying to get votes in four months.”
Ah, the proverbial “fig leaf”? 😕
@Blouise: so it would seem to me that the GOP must direct their attention to the needlelike range of authorized but unfunded ACA programs if they wish to do damage.
I was not concerned with funding, I do not think Congress is really opposed to funding if they can funnel it to their ends. The more taxpayer money in the system, the better off they are.
If you believe in the Military-Industrial-corporatist model that I do (and others here do), what Congress wants to do is spend more on corporations, and less on citizens. Lower taxes on the rich and corporations, and increase taxes on the middle class. Reduce regulation on the top 1%, and increase it on the bottom 99%, because regulations cost money and that means money for corporations.
I do not think Congress really looks at the ACA as anything but an opportunity for corruption; they will use their discretion to look the other way, or weaken the demands of the ACA with riders and amendments. A large bill is perfect for that, in return for campaign contributions esoteric changes are made to wording, caveats and conditions and thresholds are added, what looks like innocuous changes will pass without fanfare, objection or media notice. The result will be for insurance companies what happened with the banks: Privatization of profits and the socialization of risk and losses (loaded on the middle class).
I would be surprised if the GOP really wants to repeal the ACA, they would be throwing away billions in campaign contributions to do it. I think insurance companies like the individual mandate, and the GOP loves lobbyists, and their current opposition is just a show for the rubes and trying to get votes in four months.
TonyC,
Incredible roll. So good that it must be plagiarized. Just JOKING. Almost poetry.
Just came back from a Texas Longhorn tenderloin, so if I should sound mellow (no chance of that) then you know why.
I should cssh in my chips and drink another beer. 5 in
return from one roll. But we know how gamblers are, just one more time.
No, consideting who’s standing around the table I think I will.
Just will say that more was returned than invested in what I rolled.
My little experience in 100,000+ employee international telecom company was seeing who later became the CEO make three prior major mistakes, very publicly. And the only innovations were two: one by myself which wss later adapted by all company divisions, and a new division that had the vision to see a market before anybody else in the industry did.
Glad to see Rafflaw has a heart. Touching. Empathy is what makes some of us human.
And some are utopists (BB) but that is nice as it describes one border. Don’t seem to have too many realists now. That’s good, especially on a Friday. We all need hope.
@Dredd: I comment here casually. I argue here based on my own logic. Contrary to your apparent belief, being an academic is NOT about citing authority for one’s views, citations are about giving credit for ideas or data being employed in an argument where credit is due, but if you had ever been taught to READ an academic paper, you would realize that the point is to focus on what the author has done that is NEW, what their argument is, not the cachet of their references.
The point of academic work is to make an argument for something NEW, without claiming credit for something you did not do. You have a serious flaw in your thinking in relying upon authoritarian pronouncements, I assume that is why you think academia is just some game of peasants stitching together quotes of great men that cannot be questioned. It isn’t.
I and my fellow scientists are the PEERS of Einstein, Newton, Bohr, Planck, Maxwell, Darwin, Turing, Hubble and Galileo. We are not their acolytes or subordinates, we do not need their permission for our work, we do not even have to agree with them, we cite them when we use something for which they deserve credit, because it is polite and is what we want others to do if they use our work.
In fact, I do readers here a favor by NOT using citations and by putting my reasoning directly into my arguments. No lookup or experience is necessary, no tomes or endless blithering blogs must be read. My posts are usually self-contained and I take pride in that.
I do not cite authority because I do not use their work here, and I do not need any help or anybody to agree with me. I do not require reflected respect or borrowed intelligence, I need no shield for defense, I need no hero for protection, and I do not owe anybody credit for my original ideas.
Bad link above concerning:
The proper link is here.
Blouise,
If the GOP doesn’t win the White House and/or the Senate in November, the ACA will remain intact. They will continue to use it as their boogeyman to rile up the tea party crowd, but it will survive.
mespo,
” … while I hunt down and hand cut the snow goose feathers”
Migratory bird hunting rules are established by the U.S. Wildlife Service but specific hunting regulations for each species are set by the appropriate state agency.
Federalism.
Tony,
Re the agencies charged with implementing so much of what is in this law:
A great deal of the funding for implementing the Act is already appropriated in the Act so it would seem to me that the GOP must direct their attention to the needlelike range of authorized but unfunded ACA programs if they wish to do damage.
Also, cuts in the operating budgets of the IRS and HHS that will implement the law making it impossible for them to hire the people they would need in order to spend the funds already appropriated within the law seems like the route the GOP could also follow within the Congress in furthering their 2010 campaign promises to the T-Party that swept them into so many State offices.
The bulk of the law becomes effective in 2014 so I would expect a great deal of the above mentioned GOP effort in 2013. In fact, the battle is enjoined right now in the Senate Appropriations Committee.
Tony C.:
Roberts’ use of the tax power does not render the commerce power superfluous. Regulation of commerce can involve many rules that are not meant to raise revenue (e.g., regulation of discrimination), but all taxation must involve the raising of revenue. If you choose not to purchase health insurance, you pay a tax, and the government thereby raises revenue.
Why can’t the government tax your failure to buy a cellphone (or broccolli)? Because some actions by government, state or federal, are so intrusive as to violate your individual liberty(e.g.,abortion). That’s a due process violation, not a federalism problem.
See Judge Posner’s posts in the ongoing Slate series on the Supreme Court Term:
http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2012/_supreme_court_year_in_review/affordable_care_act_upheld_why_the_commerce_clause_should_have_been_enough_.html
Raff,
I am quite sure….. You’re ok in my book….. I agree with you that the ACA was needed in so many ways….. If anyone has ever dealt with Neglect Abuse Cases and Juvenile Deliquencys…..the only way that some of these folks got the treatment that was needed was because it was COURT ORDERED….. other than that…it was pass the buck….no one wanted to pay for it…. In addition so many States have cut funding levels so drastic that most Doctors do not take SSI patients…..even if they get paid something…..
But as the others have said….we do not know what the full implications are in Roberts decision…. Then again. FDR did pass Social Security…..and It was going to bankrupt the Country….. well, raff, it looks like its the other way around and the Politicians are Bankrupting Social Security….. because of the excesses…..
WRT to Roberts decision….. he may well have voted the way he did to restore some ligitimacy back to the Court…. Just like Blackman said after heruled against legal Gay Sex….he wished that he hadn’t…. Maybe Roberts has second thoughts about Citizens….. who knows until the candle blows out….. until then I am pleased that the needest folks will have some defree of protection…..that Pre-Existing Conditions cannot be used to deny coverage, exceeding the policy limits and Children are covered until age 26….. There are so many positives to this that at present in my mind it out weighs the negatives…..
AY,
Don’t worry, no one else is reading this???
Tony C., I think the ACA, under the smoke screen of partisan bickering, was designed specifically so as to be highly prone to legislative whittling. This works well with our tribal projections; Republicans can be blamed and Democrats lamented. The thrust of the legislation –of course– is ever toward corporate interest and the fans are ever riveted to their red and blue seats as if something different might happen.
Had this not been the case, I think we would have seen elements such as the public option that would have truly made the legislation popular, crisper, more sharply defined in intent, and thus more difficult to dismantle.
Raff,
I am sure that this would need to be a Private Chat….. Now if ole Tricky Dick was still there……then, they’d be taped…. hey wait….can’t we get a drone to eaves drop on the conversation…..the hell with Rosemary…..
Tony C. 1, June 29, 2012 at 11:24 am
…
I am speaking factually, sociopaths are happy to make money by deciding to let others suffer…
=========================
Reminds me of the cheering during the Republican primary debates when the statment “let him die” was made.
The U.S.eh? is the only industrialized nation that did not have health care for all before yesterday’s decision.
Isn’t catching up to this century cool?
Your sociopaths now are mad that money will be taken from the military bully worship religious realm:
(Supreme Court Decides …). That may not be all sociopathology, because there seems to be some jignoist psychopathology in there too.
You are the only scientific researcher with an office that I know who eschews citing experts, relying instead on your own ego and opinions.
That type of presentation is convincing only to the ill informed.
Justice Roberts, nominated by a Republican President (Bush) hinted that the way to overcome this is to change those in Congress. Though cloaked in eloquent judicial verbage, the message was clear : “Congress passed this, IF you don’t like it, then change the Congress”.
It’s now up to the voters to make their will clear in November.
Justice Roberts may have been pressured into this ruling, BUT the people can elect representatives who’ll deal with it. We need a better healthcare system, but this is not the answer.