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
@Dredd: you are no Einstein!
How would you know? Oh yeah, because as far as you know, I am not famous like Einstein, and the only reason you think Einstein was smart is because people told you Einstein was a genius. You worship labels, Dredd.
You would be better served if you treated all of the “famous” as if they were the anonymous bloggers of their time, and with an equal amount of disrespect you show me.
Dredd says: As I thought, your subversion of authority pervades your thinking.
You are damn straight, skippy. I was raised (by my father) to treat all authority as suspect, even his own. (I was once punished for agreeing with him, without being able to answer the question, “And why do you think that?”) I was taught to think for myself and make my own decisions.
You, apparently, were taught that your thinking really wasn’t good enough and you better just let other people do your thinking for you.
@Bron: I have always said I have no problem with private healthcare existing alongside socialized healthcare.
For the state (or any organization) there is a limited budget, and the mission is to do the most good with the money available. That DOES mean terminating STATE care for the terminal at some point. That point should not be arbitrary for anybody, it should be a decision process set in law and followed without exception for rich and poor alike without distinction. But it has to be done, spending ten million dollars to keep one person alive, and not having the money to keep a hundred other people alive, is unfair to the hundred; the value of their lives is equal.
Now if you and your family want to get together and choose to spend your personal fortunes keeping a terminal case alive for as long as possible, I think that SHOULD be your choice, once the state notifies you that no more heroic measures will be taken to preserve a life (although measures can always be taken to alleviate pain).
I will also point out that your argument is disingenuous; your oft-stated philosophy is that doctors and hospitals SHOULD be able to discontinue care if they are not being paid, so you have already rejected your supposed concept of families getting together and making a decision; because under your Aynish philosophy the doctors and hospital are free to unilaterally make the decision without even consulting you.
@Idealist: The argument might sit will with you, but it isn’t realistic. Most people, given control of the vast funds of the state, would drain them in an attempt to save their child or spouse rather than personally make the decision to let them die. It just isn’t going to happen.
At some point professionals (doctors) have to decide that the expense of heroic efforts to preserve a life are doing harm to others, by expending finite resources (including MD hours of work) that will not, therefore, be expended on others. That is facing reality.
It isn’t a death panel making individual decisions, but when death is inevitable facts must be faced, and one of those facts is that choices must be made. We are forced to choose, and when forced by a budget to choose between adding 30 quality years to one life with breast cancer screening or adding six months to the life of a brain damaged coma victim, the breast cancer screening program gets the money.
idealist707 1, June 30, 2012 at 12:05 pm
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Thank you from your new self-appointed blawg poleez.
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Ok, Mr. Moderator of da blawg, pass this on from Dredd: “I know Einstein Tony C, and you are no Einstein!”
Thanks.
Anonymously Yours 1, June 30, 2012 at 12:21 pm
You know raff, I am wondering why folks are getting in a knot for the so called Tax…..Only the top 1% will have to pay it if they do not have health insurance…
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Why do you say that?
I like it but is there a reference to the statute.
It seems you are saying that if people are unable to secure insurance through no fault of their own, the IRS tax will not be administered?
Anway, as I pointed out up-thread, anything other than the holding of the decision, which is about the operation of taxing authority, is dictum.
The mandate was upheld on tax law notions, thus “commerce clause” or “necessary and proper clause” notions are about dictum, and therefore would not have the power of full persuasion if cited in a legal brief would they?
You know raff, I am wondering why folks are getting in a knot for the so called Tax…..Only the top 1% will have to pay it if they do not have health insurance…
TonyC,
Yeah, only the facts. And is this a place where they are presented. Not even you at your best, nor Dredd for that matter.
Dredd and TonyC,
You have left the salon and are brawling in the parking lot. Come back to pure evidence presentation or shut up, you’re hogging blog space with ad hominems.
Thank you from your new self-appointed blawg poleez.
Must be my new meds. I piss more, so there is less vinegar.
rafflaw
I respectfully disagree. The law known as Obamacare does not state that the mandate is a tax but rather a penalty to protect it under commerce.. Therefore, if the court wants to view it as a tax then they should have struck it down and said re-pass it as a tax.By changing it, they in fact are re-writing legislation.
Bron
I seldom agree with you, but that sat well with me.
Tony C:
“A decision to end heroic action to save one person’s life is made in the proper currency of the greatest good; heroic action ends when the cost of it is other lives that could have been saved.”
I thought there werent going to be death panels with national health care.
The proper way to make an end of life decision is the individual and their family taking all things into account and deciding based on financial and quality of life considerations consistent with their personal values.
Human beings are not government pets.
Tony C. 1, June 30, 2012 at 11:35 am
For the un-Dredd among you; when I say I am equal, I do not mean equal in genius or insight. The meaning is much like equality before the law: I give Einstein no credit or assumption of correctness because he is Einstein. All that matters is the argument. The same goes for Darwin, Newton, Jefferson, and so on. Who made an argument is not material, it is ad hominem. All that matters is the argument itself.
The Dredd of the world do not get that, they willingly submit to the famous, the rich, the powerful, without argument, because they are star struck.
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Wrong. That is so Romney: “I didn’t say what I wrote.”
Now I must confess that I suspect your science and your office are at the Heartland Institute, and the stage you stand upon to render the casual among us star struck, is practicing for the annual neoCon circus CPAC.
For the un-Dredd among you; when I say I am equal, I do not mean equal in genius or insight. The meaning is much like equality before the law: I give Einstein no credit or assumption of correctness because he is Einstein. All that matters is the argument. The same goes for Darwin, Newton, Jefferson, and so on. Who made an argument is not material, it is ad hominem. All that matters is the argument itself.
The Dredd of the world do not get that, they willingly submit to the famous, the rich, the powerful, without argument, because they are star struck.
TonyC
One more: Ask yourself, at what point do I start looking for attacks and ways to rebut them, and when do I stop therefore looking for facts or contentions claimed to be based on them??
IMHO, having entered the attack mode then it is difficult to return to the former fact-seeking one.
TonyC,
While at times you wear your constitutional hat with elan, I feel it is askew now. You are overconfident in the profits which could derive from a stronger federalistic system.
While relatively modest wearing this hat, you do look a bit ridiculous wearing your Napoleonic one with your hand in your vest stroking your scientific credentials.
You have done so in discussions with me to great waste of our time. Even when I stood on my head to lower it beneath yours, you still screamed at what you saw as attacks, which were of course not ones at all.
You do go overboard in your battles. Consider that as a friendly opinion.
Tony C. 1, June 30, 2012 at 11:07 am
@Dredd: You shouted PEERS which, along with your other falsehoods, indicates a feeling of superiority.
I stressed “peers” to counter your assumption, repeated later in your post, that I do not regard anybody to be my superior, nor do I regard myself to be superior to them. We are equals in intelligence, skill, and comprehension; although I have the advantage of access to work and experiments they did not have.
As I thought, your subservience to authority pervades your thinking, the idea that the famous are not inherently superior escapes you. Deference is in your nature, and for that, you have my pity.
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Ok, I get it, now you say:
As I thought, your subversion of authority pervades your thinking.
Your conflating of “the famous” and “inherently superior” captures you and drags you to a false notion, and the practice of the scientific methoud escapes you.
Hyper-ego suppressing decent discourse is in your nature, and for that, you have my pity.
Tony C. 1, June 30, 2012 at 11:00 am
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The short answer is that Federalism (in the USA) means the States are supposed to have most sovereign powers, and the central (“Federal”) government has enough power to unite them.
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Quite a casual lure, and will catch casual fish.
If you cite to Supreme Court authority, binding on all courts in the land, you would catch bigger fish.
@Dredd: You shouted PEERS which, along with your other falsehoods, indicates a feeling of superiority.
I stressed “peers” to counter your assumption, repeated later in your post, that I do not regard anybody to be my superior, nor do I regard myself to be superior to them. We are equals in intelligence, skill, and comprehension; although I have the advantage of access to work and experiments they did not have.
As I thought, your subservience to authority pervades your thinking, the idea that the famous are not inherently superior escapes you. Deference is in your nature, and for that, you have my pity.
@durham girl: You can look Federalism up for yourself.
I think Turley would add qualifiers to the word if he meant something besides the standard definition; to do otherwise would be misleading, and although he is not always careful with his typing, he is not misleading.
The short answer is that Federalism (in the USA) means the States are supposed to have most sovereign powers, and the central (“Federal”) government has enough power to unite them. You can think of it as what happens within the States is supposed to be primarily the business of the States, but things that can cross State borders, or are national in nature (like tariffs, foreign policy, immigration, civil rights) need to be regulated by the national government.
The basic criticism of Federalists is that the Federal Government has gone too far with the commerce clause and tax clauses in usurping the rights of States to make their own law. For example, it is logically ludicrous to claim that a person growing pot for their own consumption on their own property should be a subject for Federal law. States might outlaw that practice, but if the Federal Government can outlaw THAT, on the pretense that maybe someday the person would transport the pot across state lines, then the Federal Government can outlaw ANYTHING on the same pretense, and therefore the States have no real sovereignty at all.
For an example of something that SHOULD be federalized, consider aircraft safety: It would be equally ludicrous to subject an airline to one set of structural safety laws at breakfast and three others before dinner.
Federalism is what the founders intended, I personally believe that the competition of States (with a central referee) with the free movement of citizens would help control governmental corruption and over-reach. Even though different laws in different states would create some unfairness in the application of the law to citizens, I do think it would create more equity overall.
Roberts was a corporatist yesterday, is a corporatist today and will be a corporatist tomorrow, just like the Obama appointees, Kagan and Sotomayor.
What explains his decision on the individual mandate, and what provides a coherent framework by which his future decisions on such matters will be perfectly consistent, quite simply, is that he is laying the groundwork for dismantling the New Deal.
This is not a reason to vote for Obama, as Hugh, a commenter on not clothed Capitalists, points out:
http://www.nakedcapitalism.com/2012/06/more-on-aca-decision-a-dark-cloud-on-a-sunny-day.html
“not to cite authority.”