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. In scientific papers there is a similar structure to legal briefs, that is, acknowledging you are not the only person in the universe, not the first person to do science, and the like:

    You should acknowledge a source any time (and every time) you use a fact or an idea that you obtained from that source. Thus, clearly, you need to cite sources for all direct quotations. But you also need to cite sources from which you paraphrase or summarize facts or ideas — whether you’ve put the fact or idea into your own words or not, you got the fact or idea from somebody else and you need to give them proper acknowledgement (even if an idea might be considered “common knowledge,” but you didn’t know it until you found it in a particular source).

    Sources that need to be acknowledged are not limited to books and journal articles, but include internet sites, computer software, written and e-mail correspondence, even verbal conversations with other people (in person or by telephone). All different kinds of sources must be acknowledged. Furthermore, if you use figures, illustrations, or graphical material, either directly or in modified form, that you did not yourself create or design, you need to acknowledge the sources of those figures.

    (Citing References In Science …). Thus, a paper that says “e=mc\2” (me), “e=hv” (me), and “the sky is blue” (me) might impress sycophants but it is likely to be ridiculed by those in command of their mental faculties.

  2. “Authority” is construed by some as an empty populist notion not unlike worshiping movie stars.

    In more knowledgeable circles “authority” has a more useful meaning:

    Primary authority is a term used in legal research to refer to statements of law that are binding upon the courts, government, and individuals. It may consist of the verbatim text of statutes, regulations, court orders, and court decisions. Primary authority may be generated by legislatures, courts, and administrative agencies. It is distinguished from secondary authority, such as commentary, that doesn’t have a legally binding effect.

    Primary authority is a law that is used to support a proposition or persuade a court or other authority to be in favor of one’s position. It is important to cite primary authority (law) in a motion or brief. In the legislative branch, primary authority takes the form of statutes. In the judicial branch, primary authority takes the form of cases, and in the executive branch, regulations which are the product of administrative agencies are primary authority.

    Secondary authority, by contrast, offers explanation and commentary on the law by scholars and practitioners. Secondary authority helps to explain the application of the law to a specific problem. Secondary authority is non-law. Anything that can be quoted, but is not law, is secondary authority. Reference works, such as a Restatement of Law, are not primary authority in a case, unless they are cited and followed by a court as authority for its holding or reasoning.

    (Authority). Someone who asserts his or her own authority is saying to the court “you must listen to me” because I am an equal authority to you and everyone else.

    Not a wise idea.

  3. LeeJCarrol,

    After living and takiing care of myself, and traveling into the acute hospital for radiation therapy M-F for 7 weeks, I felt an impending collapse, called a cab and got admitted.

    My condition deteriorated and I was semi-conscious when they after the radiation was complete, 5 days later, wanted to get rid of me (too few acute ward places) for the long recuperatation that seemed indicated. I had meanwhile gotten a return of urine blockage and was too weak to stand. I negotiated that i would receive prophylactic antibiotica against urinary infection and decided myself to not choose the hospital where my wife had expired. I have no memory of this except the decision on hospital choice. I was paranoid to the point that I accused them of wanting to cast me out on the street now that the radiation was done.

    The medical judgement was such that a usual recuperation or “long term” facility was not sufficient to handle my problems. So it became the hospice.

    I write to enlighten, not show my scar(s).

  4. rafflaw

    It does not matter what was stated in oral arguments. It is what the law actually says that matters. I will only read the entire law after Nancy Pelosi does.

  5. Idealist707
    Would that the point always to be to relieve suffering.
    Here sadly even suing does not always result in the changes that should be made.
    It is unusual, here at least, to see those 2 words togther, recuperating and hospice. Here you usually have to prove (as best as possible) you only have 6 months left.
    I am very glad you came home from there. I am not sure if you ‘merely’ a party to the discussion or able to be a part of it. It is one reason why they now ask when you go into the hospital if you have a living will.
    Thanks for asking. Actually my brain implant just failed a few months ago. Thankfully the worst part of it, inability to tolerate any touch to the affected area, ended years ago so I am only with eye usage and eye movement pain, better off then so many of my tn colleagues; but the implant was 100% experimental (13th in the world to have it) so for now told “the end of the line” but said many times and thena doc says “Oh, I have an idea….” so I am waiting for the next ‘idea’.
    (It was the first to be called ‘the worst pain known to man’ and the suicide disease’ but CRPS (chronic regional pain syndrome) has now also taken on that sobriquet.)

  6. LJC,

    I return the sympathy. It was all professional but not pointed at anything other than relieving patient suffering.

    We trust our medical system, even though we have issues with it. We do not sue them. So avoiding overdose issues is no problem here in Sweden.

    I chose the other alternative, the hospice, and got a bingo lot. The most outstanding human treatment possible, more than I imagined. And I was delirious and unable to stand when admitted. Fed two weeks on white IV. Discussion is meaningless as I was a party to it. Just one testimony among many.

    Hope your neuralgia is better. I believe it is one of the worse pains one can experience, if I remember right.

  7. Jim 1, June 30, 2012 at 5:06 pm


    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.
    I prefer that you quote from the opinions of the Court (I linked to them) rather than your own opinions if you please.

    I don’t like trusting people in government or out of government who do not refer to anything other than their own opinion, eschewing authority.

    It makes me wonder if you have read the opinion or are gossiping about what someone else said.

    As an example, here is what I would have said:

    The Act provides that this “penalty” will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties. §§5000A(c), (g)(1).


    You see, your use of “commerce” is a resort to dictum, which has no force nor effect as precedent, as law, as what was decided.

    It is useful only as history, which is not law.

    Those who think this tax issue has no force nor effect as law will join the ideology of the tax protesters who say the same thing about income tax.

    As you can see by that quote of Chief Justice Roberts, the decision has nothing to do with the commerce clause except in dictum.

  8. Idealist I am so sorry both of you had to go through that.
    (When my friend was in the hospital with cancer everywhere they could only give her morphine every 4 hours regardless of the level of her pain. I said to a nurse why won;t you give her a shot already? We are only ‘allowed’ to give it this way. I told her I have trigeminal neuralgia and out on the street I am taking sometimes 3 and 4 codeine pills an hour (prescribed is1 every 4 hours)She sai that is not in the hospital. sorry.
    Once she got to hospice I asked a nurse if they were going to ‘snow’ her. She said “No.” while shaking her head ‘yes.”)

  9. Leejcarrol,

    As for the ´”secret”, it was none to me after my wife’s demise. I might to some degree have participated by asking them to increase the sedative dose as she was obviously experiencing unease tossing from one side to another, in a new phase.
    I left her on another short errand in the hospital and returned minutes after her demise. The hours one way or another meant nothing to her, and only started the next stage of my sorrow. It was inevitable too.

    Thanks for your revealing how other patients relatives take it there in the USA. Those of the hospice patients where I lay recuperating were the same.

  10. I’ll end with this:

    Before ACA it was you, your partner, your kids versus the insurance company, the medical providers, and big pharma.

    After ACA, it is you and yours together with ACA against the others. You have ACA as a partner, as a leverage point, and a base to lobby from with your congressman. It’s not just you alone anymore. And it will get better.

    That is a vast improvement as I see it.

    Krugman and those comenters I read did not mention this, nor have I seen the WH do so. So will say that no backers on this, that I knnow of.

  11. My understanding of the ‘death panels” (what a lie) was that counseling about end of life issues was covered.
    As for with vast money from the state available” 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”
    In theory that is probably the case. I do not knoiw if you have had to deal with this situation personally but most people, in my experience, and I have had a few, do not fight to keep someone alive when they are suffering regardless of the fund available.
    Hospice has been one of the best things to come along, hospitals often fighting to keep someone alive even when the family did not want it, because of personal belief, lawsuit possibility, etc. Hospitals have also been “killing” people for a long time ‘snowing” them when the pain becomes unbearable, increasing the dosage of morphine or other pain med until the patient is essentially overdosed. It has been a long kept (not much of a) secret.

  12. How many here regard themselves as liberals. Most of those here?

    How many follow Krugman?
    Obviously those who comment him have mostly a liberal bias.

    So for myself, it is a pleasure to read the comments there following his OpEds.

    One made an argument which I have not seen anywhere, not even here, thus worth mentioning:

    ACA is not welfare, it is not a safety net.

    It is a system which effects ALL citizens. It makes ALL a part of a system which provides guarantees.

    Such as that that a cancer patient who had forgot to mention their childhood acne as a pre-existing condition can NOT be denied in certain states treatment for their cancer by the insurance company. It also gives coverage guarantee to the working who lose their jobs, who want to change jobs, who want to start private businesses, etc, etc.

    In short it is a system guaranteeing health care to the WHOLE NATION—excluding those already covered by Medicare, VA etc.

    The liberals missed this point, and pointed only to the 30 million new persons covered, etc.
    They missed that it helps ALL, both the current haves who have also a risk of denial by an insurance company under previous law, AND those who don’t have any coverage.

    The liberal in me heartily agrees.

  13. Cross post now that this one shows life again.

    Just read a bit of Paul Krugman’s OpEd at the NYT. He generally praises ACA as it benefits the people at one-quarter the costs of the unfinanced tax cuts promised by Romney. BTW, ACA is fully financed he says, by taxes and cuts elsewhere. He has his caveats.
    He says:

    “It’s not perfect, by a long shot — it is, after all, originally a Republican plan, devised long ago as a way to forestall the obvious alternative of extending Medicare to cover everyone. As a result, it’s an awkward hybrid of public and private insurance that isn’t the way anyone would have designed a system from scratch.”

    Could this be one of the reasons it was passed or did the Repubs renege on their own plan and were united in their partisan opposition?

  14. Dredd,
    If I understood your earlier comment, the ACA also assists low income people obtain insurance.
    Based on income, the ACA provides tax credits to help low income people obtain insurance.

  15. Jim,
    The ACA does consider it a tax. Check the IRS code and in oral arguments, part of the government’s arguments were based on the ability to tax.

  16. TonyC,
    Thanks for your measured answer.
    BUT, you misunderstand me. Let me begin by citing BRON.
    “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.”

    I interpreted Bron, and did not in my endorsement make

    clear, to mean that it was only private resources at private facilities would be employed to maintin a life despite doctor’s advice on outcome and suffering.

    Having spent two months recuperating at a terminal hospice I was witness to several patients final days. It varied quite a bit. But when the decline begins with loss of consciousness or into delirium, then prolonging is no longer a viable alternative of value to anyone, I feel.

    Personally, I would not support such an expenditure of private money, and certainly not of public funds.
    Privately, I and my wife would and did donate funds to cancer research instead.

    When my wife was admitted to terminal care, after being with her at home until what became her final 36 hours, my only concern was as she expressed her needs: to be respected as a person and to be relieved as much as possible from suffering.

    The doctor greeted me perhaps expecting the usual (I don’t know) and said immediately that nothing would be done to extend the patient’s life. I replied that that was self-evident the only recourse. She could expect no life of value nor miracles at that point.

    Hope this clarifies my position better. It is mine. Bron can speak for himself.

  17. Dredd

    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.

    1. Jim when has re-writing anything ever stopped supposed conservatives who believe money rules?
      They even stole a Presidential election by going against principles they long advocated.

  18. Tony C. 1, June 30, 2012 at 4:05 pm

    You, apparently, were taught that your thinking really wasn’t good enough and you better just let other people do your thinking for you.
    Another one of your opinions that doesn’t even pass the smell test.

    I disagree with you because you are pathetically unscientific, and if you were a lawyer in court telling the judge “I don’t need no stinking authorities” you would have gavel marks on your forehead.

    You are busted.

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