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
Tony C. 1, June 29, 2012 at 3:32 pm
@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.
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You shouted PEERS which, along with your other falsehoods, indicates a feeling of superiority.
All the scientific journals I read daily include constant references to the work of others.
Those others are considered authority, just as a court citing to its own decisions, or decisions of other relevant courts, are considered authority.
Your assertion:
is absurd as an excuse not to city authority.
A psychological coup d’etat is militant, not scientific, and it is not acceptable.
The greatest expert on everything sells T-Shirts that say Justice Roberts is a Coward.
Isn’t he so persuasive?
@Blouise: I do not get stage fright. But one thing I have noticed, in both business proposals and academic presentations on stage, is that I consistently run about 10% faster on stage than I do in rehearsals. I do not think I am ever nervous, but I always feel focused right before taking the stage, so maybe I am amped up and don’t realize it.
No Jim, the court did not write the law, it only said the law that was already written was constititutional. The court has a precedential responsibility to try to find a constitutional way to accept a law approved by Congress.
Blouise,
All I know is that the Beatles looked sharp in their nehru jackets!
BarkinDog
I have always believed that the SCOTUS Was only able to rule on what was written in the law and not give their opinion of what the law should be. If they believe that the mandate is a tax then they should have thrown it out and stated that is what congress should have called it and wrote it that way. The court can’t write law and this is exactly what the majority did.
Mr. Turley, Could you write a brief essay describing, for this non-lawyer, what you mean by federalism principles? I’d like to understand your position better. Thanks!
I do not believe that federalism allows a nation to draft (enslave) its citizens into the armed forces. Now the notion of taxation without representation has been worked out. Congress can tax. Even tax us to pay for our medical care. Taxing us is not at off the wall as enslaving us to go fight. A federal system of health care is far superior to 50 state solution. What we have with the insurance model and free enterprize is socialize losses and privatize gains. Doctors get rich. We need to control costs. Open the borders to foreign doctors. My state did not graduate enough doctors in the various medical schools to take care of one city much less the whole state.
Roberts should get some kudos here. Kennedy is becoming an odd duck.
ah, the Badfinger reminds me of the movie ‘The Magic Christian’, this is from the soundtrack of the Ringo Starr, Peter Sellers cult classic.
Tony,
They tended to sharp meaning sing. It’s a common fault amongst untrained vocalists … nerves tend to make one over anxious and thus to sharp. Once the nerves settle down, tonality returns. Also, when the accompaniment is loud, one’s ear can’t easily distinguish the sharping.
You can find the same thing in those who do public speaking … voice pitch a little higher and quicker as they begin due to nerves (commonly called stage fright) which then settles to a deeper pitch and slower as the nerves wear off.
Flating, on the other hand, usually results from not being “up” for the performance. Usually if the vocalist is sick or doesn’t really want to be working … they flat.
Then there is always the vocalist who thinks he can sing but doesn’t have the ear for it and thus can’t adjust because he can’t hear the sharping or flating. Depending on the strength of the voice, such a singer can bring an entire choir off-key.
Record yourself in the shower to see what I mean. 😉
@Blouise: Did the Beatles tend to sing sharp? Or play sharp?
I guess you would have to take their lyric seriously: “What would you do if I sang out of tune, would you stand up and walk out on me?”
raf,
Weell … they tended to sharp … just like the Beetles
Blouise,
After listening and watching the Bad Finger clip, I can’t understand why it was rumored that they were actually the Beatles playing under another name. Or do I have the rumor wrong after all of these years??
Why thank you, sweetie! That’s a lovely gift. 😀
Gene,
From me to you …
And **Blouise**
Bad fingers! Bad! 😀
**the guy**
Bloise,
He’s the one who called the First Vatican Council and they first defined the concept dogmatically, so yeah, that’s they guy.
Gene,
Wasn’t Pius IX the one who decreed “papal infallibility”? (Weird facts like that stick in my head.)
Tony,
Phuck us!! LOL Lotta is going to love you for that “get around”!