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. Bron,

    You may want to read this article from Discover magazine. It indicates your take on the funding situation in re science and government is the inverse of what is really happening.

  2. Tony C. 1, July 2, 2012 at 3:43 pm

    @Dredd: Your idiotic subservience to authority prevents you from understanding anything on your own.

    The norm is not to cite authority, the norm is to cite the original work. In the culture of law, some original work is honored as binding, that is called “stare decisis”, but it isn’t always honored; it is possible for a court to decide an earlier case was decided wrongly and decide differently (and originally).
    Gosh, that ad hominem falderal really clears things up Dr. Price.

    It shows you have no clue about what authority is, either in science or in law.

    The original BS artist.

  3. @Dredd: Your idiotic subservience to authority prevents you from understanding anything on your own. You reveal that in your posts.

    I have no doubt you will have to take the Higgs statistics on faith; and in fact they will not claim they FOUND it, they will claim they have evidence of it, and that is a difference you will probably never comprehend.

    As for Roberts, he may have cited some case from 1867; which he should do if his opinion was informed by it and he believes his argument is identical to theirs. However, how was THAT case decided? If Roberts is citing it, as opposed to something earlier, then he is using an original argument from the 1867 case that he believes applies to the ACA.

    However, somebody in 1867 obviously DID something original themselves.

    You really are too ignorant to bother with, Dredd, you are incapable of actually understanding what everybody knows: There is no citation for what is original, and originality does not render a conclusion invalid, in fact originality is what makes it citation-worthy in the first place.

    The norm is not to cite authority, the norm is to cite the original work. In the culture of law, some original work is honored as binding, that is called “stare decisis”, but it isn’t always honored; it is possible for a court to decide an earlier case was decided wrongly and decide differently (and originally).

    So the earlier case does NOT have “Authority” unless the new court decides that it does. Which means it NEVER had authority, it was cited as the original source of an argument with which the later court agreed.

    The same thing is true for science: We cite original work when we believe the original arguments are valid and we want to use that conclusion. It is not that they are an authority we dare not go against, we are including their work by reference (citation) as shorthand because their conclusion is a necessary component of our larger conclusion.

    We are not BOUND by original work, if we do our own original work we do not have to cite anything, readers can judge for themselves whether they agree with our argument or not.

    You are simply ignorant, Dredd. Citations in science are not about invoking authority, it is about including by reference arguments the author agrees with, and often expects readers agree with as well. Just because Newton said it does not make it true, or Einstein could not have supplanted Newton. Just because Einstein said it does not make it true, and just because Bohr said it does not make it true. No person in science is indisputable, because reality trumps them all.

  4. Case 1: A Scientific Research Team says it has found the Higgs Boson:

    As soon as scientists at Cern revealed that they would host a seminar on 4 July to announce the latest results from its two main Large Hadron Collider (LHC) experiments, Atlas and CMS, physicists and bloggers started guessing. Would they announce the long-awaited discovery of the Higgs boson, a find that would be sure to trigger a raft of Nobel prizes and launch a new era of physics?

    (Reuters). How would you determine whether or not to believe them, to consider the results of the research part of your “knowledge” from now on?

    Decide it on your own opinion?

    Or read up on it so you can make the case?

    Case 2: Or in the supreme court case at hand where Roberts wrote:

    Congress may also “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. Put simply, Congress may tax and spend. This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control. See, e.g., License Tax Cases, 5 Wall. 462, 471 (1867).

    He cited to authority going back to the License Tax Cases of 1867, 145 years ago.

    Some science is that old too.

    Shall we construct our brains with our exalted opinions (because “the government is corrupt” and we are not), or shall we follow the norm and cite relevant and valid authority?

  5. @Bron: the problem with science today is that it is funded a good deal by government. It bows to the god of the purse of those who are in power.

    There is actually a lot of truth in that, as you have said it. For what its worth, there is even greater problem when science is funded by industry, where I have worked. At least government does fund a significant amount of fundamental research, like the space telescopes, the LHC, and thousands of smaller projects. Industry dislikes fundamentals; they seldom lead to commercial success. No business, or consortium of them, is going to spend billions of dollars on a space telescope.

    The problem is really in the second part of the equation you state; the government deciding what it will fund based upon the internal requirements of the government; their weapons and eavesdropping and other war and security initiatives, instead of on the merits of the science.

    The problem is government corruption. Money that should be coming out of a military budget (or no budget because it is intended to help a private company) is instead coming out of a science budget that is supposed to be independent of military influence but clearly is not.

  6. The most famous “scientist” from Heartland Institute:

    Dr. Nobel Price is an inventor whose only inventions are either of no use or have already been invented. He first appeared on Sesame Street around 1979 and remained on the show until about 1988.

    He often appeared in Sesame Street News Flash segments, showing off his latest inventions to Kermit the Frog. These were always remotes from Dr. Price’s “far-off island laboratory,” which may explain why he kept inventing items that already existed, or discovering known creatures such as rabbits. His ineptitude was further emphasized by his constant tripping, due to a very long labcoat (as in a 1983 episode where he “discovers” Snuffleupaguses).

    Eventually, Dr. Price became a regular in street scenes, where he usually created complicated machines or conducted ridiculous experiments. The only known time that Dr. Price invented something original that actually works came in a 1986 episode, where he combined various items to create an invention that can dry towels, scratch a dog’s ears, holds flowers, plays music, and gives one a place to sit down.

    (Dr. Nobel Price, Sesame Street). He was always reinventing things that already exist or discovering things that have already been discovered, like gravity, because he did not read published papers and lived in his own dream world of fantasy science.

  7. Most of Einstein’s original scientific work appeared as journal articles. In 1901 he wrote an erroneous paper concerning intermolecular forces. It was the first of two incorrect papers wherein he discussed the interations between molecules. He later called these two papers worthless. His third paper, Annalen der Physik he quoted Planck and Blotzmann, recognizing them as authority. Ditto for his 5th paper a year later. In his sixth paper in 1905 he referred to the work of Giuseppe Belluzzo. Ditto for his 8th paper in 1905 citing the works of William McFadden Orr, his 9th citing George Hartley Bryan, his tenth citing Nikolay Nikolayevich Schiller, his 11th citing Jakob Johann Weyrauch. And so forth. In his 34th paper he cites to Planck to confirm Planck’s e=hv as equivalent to his own E=mc² and other acknowledgements. (Wikipedia, List of Einstein Publications). And on and on it goes in his published papers.

    He knew how to write papers, rely on the work of others, and cite them all through his career.

    He understood that you must understand the current science by reading papers in journals concerning issues, before you have standing to improve upon them, disprove them, or prove them.

    To think he was someone who vainly and recklessly exalted his opinion in unprofessional ad hoc bloviating, disregarding the work of others, is pure hooey done by those who have no published papers to cite to.

    Very lame.

  8. “Albert Einstein wrote his first scientific essay in the summer of 1895; he was only 16 years old. This essay Über die Untersuchung des Ätherzustandes im magnetischen Felde (On the Investigation of the State of the Ether in a Magnetic Field) was sent to his uncle Caesar Koch (1854-1941) for an expert’s opinion.” (Einstein).

    Good scientists develop because they work with and understand the work of other scientists.

    They do not elevate their own egos above others, rather they recognize the work of others, of experts.

    Einstein had learned that by 16 years of age, thus he went on to become a master.

    Those who don’t know the ways of science work in little offices at the Heartland Institute or pop science magazines, if they are lucky.

  9. You won’t get funding to study a hypothesis that could do harm to the folks holding the purse strings. Ever.

  10. the problem with science today is that it is funded a good deal by government. It bows to the god of the purse of those who are in power.

  11. @Mike: Yes, absolutely. The influence of money in science is similar to the influence of money in politics.

    Resistance is not just about contradicting their beliefs (although that is part of it), it is also about diminishing their prestige, their ability to publish (due to their approach becoming obsolete), their authority as journal editors, their invitations to leadership positions at meetings, conferences, councils and so on. Successful attacks on the dogma they helped create really can diminish their social capital in the scientific community.

    Plus I imagine it can be disconcerting to watch from a distance, near the end of your career when you HAVE power, as some newby dismantles an edifice you helped build and renders your legacy of scientific contribution a quaint relic of what we used to think.

    1. Tony,

      I agree with your expansion of my thoughts. My first real sense of it I saw in Archaeology, which is a love of mine. There the establishment is quite entrenched and it is about ego more than money.
      The guy named Howath controls all of Egyptian archaeology and is more a government bureaucrat glorifying Egyptian history rather than allowing studies of things the government doesn’t approve of.

  12. (Ideallist, I don;t know what would happen here in that circumstance (ACA or not). Hospice is covered if can ascertain only 6 mths left for terminal patient. – and maybe your paranoia was well placed.
    You have been to hell and back,.

  13. @Idealist: Being taught to challenge authority, can lead to one regarding oneself as an authority.

    A metaphor for you: It is said that men become crooked the same way rivers become crooked, by always taking the easiest path, and not caring where it leads. But one also becomes crooked by always taking the hardest path. The key observation is that the straight line is indepedent of the landscape, it crosses both difficult and easy terrain and does not bend to either.

    I use that metaphor to teach that challenging authority (taking the difficult path) is not a virtue in its own right, nor is accepting authority (taking the easy path). One challenges authority when their own carefully considered conclusions leave them no choice but to disagree, and one accepts authority when their own carefully considered arguments lead to the same conclusions as the authority.

    Regarding one’s self as an authority is not inherently wrong either. Was Newton wrong to believe he was right when everybody else was wrong? Was Darwin? Was Einstein? Was Wegener? Was Bohr? Was Locke, or Paine?

    No. Humans DO become authorities, often by inventing something new, and when your conclusions are grounded in reality and evidence, there is no virtue in being humble or pretending otherwise, it is in fact misleading to do so.

    When one regards one’s self as the expert, it is just important to believe, at the core of one’s being, that you are not infallible. That does not mean you have to entertain every fool as being potentially right, what it means is that if somebody presents an argument as to why you are wrong, and they reason correctly from axioms that you agree with, you are obligated to either find the hole in their logic that refutes their conclusion, or find the hole in your own and admit you were wrong and they were right.

  14. “Heed your own advice” seems appropriate.

    The problem with those who advocate the stereo view of evolution is precisely the same problem with those who subscribe to the genetic determinism view with ardent fervor. Both are extremist points of view that the facts simply don’t back. On the stereo side, you have those who favor nurture – that external forces dominate evolution. On the genetic determinism side, you have those that favor nature – that genes determine all. Both sides miss the point of natural selection. Neither nature nor nurture have dominance in evolutionary processes. They are independent inputs to the process of natural selection and while in specific instances one input may be a greater influence than the other, neither is dominate in the process as a whole. Natural selection is the result of a confluence of factors – including random chance which can influence both genetics and environment. It is misunderstanding the idea of natural selection that can lead both camps astray and into either the fineries of academic argument or to simply reach wrong conclusions based on lack of understanding of fundamental principles. You know, like the ridiculous idea that microbes practice either religion or science and, ergo, that Darwin was somehow wrong and that genetics is somehow wrong. A proper understanding of natural selection shows both camps to be in error in asserting dominance of their pet theories and a problem that often arises in academics as elsewhere – a tendency toward tribalism instead of a purist approach to the scientific method. It is letting theories inform observation, not observation informing theory. It is a form of backward reasoning that in counter to the scientific method and it invites error rather than striving to minimize error.

    Tony is correct. Darwin isn’t right or famous because he was Darwin. He was right because he was right and his being right made him famous.

  15. jeez, and I who thought it was universal, but the problem is greater in Germany. Only those who attended les Grands Academies in France feel this way, I believe.


  16. Tony C. 1, July 1, 2012 at 1:02 pm

    @Dredd: Your use of “authority” is proof “because the Big Daddy says so.”

    That is laughable, and you are pathetic for believing it. Einstein did not rise from obscurity (a second-rate student, working in a job that had nothing to do with his training in physics) to world fame by citing authority.
    au contraire.

    It is obvious you are no Einstein, no matter what you think you think.

  17. @Dredd: Your use of “authority” is proof “because the Big Daddy says so.”

    That is laughable, and you are pathetic for believing it. Einstein did not rise from obscurity (a second-rate student, working in a job that had nothing to do with his training in physics) to world fame by citing authority. He couldn’t even FIND an academic job for two years, that is how he ended up in the patent office.

    Einstein began his rise to fame by inventing something new; explanations for the photoelectric effect and an explanation of Brownian motion. His fame was sealed by something entirely new, a proof of the equivalence of matter and energy.

    There was no existing authority for him to cite in order to show this stuff, and in his publications, accepted by editors and reviewers because of the logic of his explanation, he was calling the existing explanations promoted by various Big Names in those fields wrong.

    Science does not advance by recombinations of dogma, which is what you seem to believe in. Great leaps in science overturn dogma, that has been true in genetics, physics, geology, cosmology, virtually everything.

    I could say the same thing for Darwin (in my view an even greater scientist than Einstein). he was also overturning dogma.

    An even better (and recent) example is Wegener, who first described continental drift in 1915, and was vehemently opposed by Jeffreys and Schuchert, the pre-eminent Authorities in Geology at the time. In fact, the influence of several Big Names was largely responsible for a four decade delay in the acceptance of plate tectonics, despite compelling evidence for it from geologists themselves. Several of the Big Names had to literally die off before Wegener was accepted.

    What stands in our way is often what we are certain of that just isn’t true, and the premier proponents of what we are certain of are almost always the “authorities” on the topic. They have a lot of career and prestige invested in the false certainty, and have often developed key elements of it.

    When you claim that you believe something because a Big Name said it, you betray yourself and you betray science. You have removed yourself from the debate, because you are just an imperfect and blurred reflection of a true actor in the debate, the Big Name, who may be wrong, and drastically so.

    Einstein and Darwin and Wegener did not become famous by choosing the right guys to follow, they became famous by following nobody, and leading the way into new territory, despite their anonymity, despite their relatively common and unremarkable roots, despite their routine credentials and lack of any significant station.

    They were not right because they were famous, they became famous because they were right. The same is true for Newton: Not right because he is famous, but famous because he was right.

    What you get backwards is assuming people are right because they are famous, as if once right, always right. You engage in a form of extremist thinking by investing people that become famous for the merit of their reasoning with something close to infallibility. When you do that you join a cult of personality.

    But people like the aforementioned Jefferys and Schuchert, famously wrong about continental drift, also became leaders in geology through the merit of being very much right much earlier in their careers. That disproves your idea that once right, always right.

    When a science undergoes a paradigm shift, it is quite often rejecting and overturning the Authorities in the field. Advances are made without respect or deference to what the big names think, and often in opposition to them.

    That does not mean anybody should have a knee-jerk disbelief in authority, anymore than a knee-jerk acceptance of it. What it means is that they should be neutral, and instead of taking lazy shortcuts in your thinking and just taking somebody’s word for something because they are a Big Name, if you are making a decision you care about you should understand the various arguments from the ground up and make your own decisions.

    I do that, for this blog with philosophy and politics, and that is why I need no citations to support my view. Even my link above is ancillary, an easy source of data for those unfamiliar with Wegener’s science, but my statements stand without the link, and readers can Google Wegener, Einstein, or Darwin without my help.

    My arguments are self-contained, and if they are not, I invented them and if somebody has questions I can justify them back to what are to me self-evident axioms.

    Like Einstein, Darwin, and millions of other scientists before me, I do not want people to believe me because of my authority or credentials, that is an empty and shallow belief devoid of understanding. My goal is to make others understand, to pass along a framework for thinking that produces results they can replicate. That is success, that is adding value to the lives of others, that is helping people avoid mistakes and think correctly.

    Your speculations are worthless. Because of your subservience to authority, because of your lack of independence from authority, your arguments will all devolve to the assertion that “somebody famous said so,” as if fame or stature or antiquity magically conferred infallibility.

    It doesn’t. What matters is the argument, and within my capabilities I try to present arguments whole and in their entirety, for accessibility to the widest audience. You feel free to write as pompously and with as much self-promotion and bullshit references as you can muster. I think, after seeing your writing, anybody looking at a link you provide should assume you are misquoting and misinterpreting what the author said, or presume it is a self-promotional link to more of your derivative bluster.

    Whether I am successful in my attempts, or you are in yours, I will leave to readers. I would not be surprised if some join you in your uncritical worship of fame, but that is fine: People that think like you and rely on fame or prestige as a proxy for solid argument are already ruined, their minds cannot be changed by any argument, they would not have believed the likes of unknowns like Darwin, Einstein or Wegener when they were unknowns. It is people like you, with an unhealthy reverence for Authority, that stand in the way of progress, and you are welcome to them, because I am not trying to reach them anyway.

    1. Tony,

      I agree in general with your points vis. authority. One of yhe big problems with science as practiced today is that some scientists build profitable careers in a certain field and the reject any new thinking that comes along that may contradict their beliefs. Those rejecting plate tectonics no doubt were thinking of their careers rather than advancing sgience.

  18. idealist:

    great thought, it is sort of like being of French and German ancestry: you dont know whether to kiss ass or kick ass.

  19. A thought just came to me.

    Being taught to challenge authority, can lead to one regarding oneself as an authority.

    Both positions lead to useless conflict.

    I said that.

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