Thursday, June 28, 2012

History in the Making - A Summary of Today's SCOTUS Decision.

For the first time in a long time, I think many of us feel pride in our country.
Not for our arts, or for our sports prowess, but for our government. Which, given the last decade, I can think of perhaps a few events that would elicit this kind of reaction. Even conservatives, I think, or perhaps hope can choose to see this as an important, historical, and a positive moment in American History. True, they might disagree with the soundness of the arguments, or the efficacy of Obamacare, but surely we must applaud a government that many wrote off as corrupted by money and political hardliners now fulfilling its true duty. Recently, both congress and the SCOTUS (one of the best acronyms ever) reached all time lows in terms of popularity, many citing the common thought that instead of striving for justice, liberty,  equality and all that good stuff, these branches of government work for the highest bidder. For a while, it felt hard to argue with this collective voice. The case of Citizens United turned many of us into a cynics for the first time, but today feels redemptive, restorative of our faith in the ability of our country to work according to principles and not biases or prejudice.
Let’s first discuss the decision before we celebrate it. I don’t pretend to have any expertise about the soundness or constitutionality of the bill. I will attempt to summarize how I understand all of this. The supreme court largely validated Obamacare as consitutional in most of its components. Shockingly, the swing vote was Chief Justice Roberts, of whom most people think of as a staunch conservative.The decision entailed two aspects of the large Obamacare law (Over 900 pages with footnotes, though not as long as Infinite Jest.) First, The extension of medicaid, which most people don’t discuss very much, and the creation of the individual mandate. Quickly, after reading too many articles, here is a purposefully simplistic rundown of the decision.
The individual mandate states that if a person does not buy themselves health insurance by the year 2014 then they will be taxed/penalized (this ambiguity is greatly important to all the arguments) according to their livelihood, but no more than insurance would cost. In essence, this can be seen as a tax on an inactivity i.e. not opting into the health care system. This law raises two exigent questions, one practical and conceptual/law based.
First, why would we require that everyone buy health insurance? Second, how can a law mandate that people go out of their way to buy something, does that not trample on our civil liberties, and second, how can we be penalized for an inactivity? Let’s deal with the practical first. If you are a young person, let’s say younger than 35, you get the creeping sense that your health insurance in no way is commensurate to how much you actually health care you actually receive, and you aren’t wrong. Healthy people, incommensurately to their usage of the system, pay for healthcare more than the sick or the poor. This happens, because so many people use the Health care system without paying for it. Poor people use the healthcare system because as a society, we are not willing to let someone die because they lack the money, but the burden of payment needs to move somewhere, and it moves to higher premiums on the insured. Similarly, those who opt out of insurance, the young for example, place a greater burden on the rest of the system, despite the fact they still receive costly emergency care This creates a vicious cycle in that the more people without health insurance creates a higher premium for those with health insurance, which dissuades more people from buying health insurance, which cyclically leads to higher costs for those who do have.
Consequently, a way to lower the premiums on all insurance is for everyone to opt into a pool. If everyone pays for health insurance, then the insurance companies need not force others to pay incommensurately to their usage of the system. Now, conservative thinkers and some economists disagree with this economic assertion, which of course, is part of the conversation, but the bigger problem lies in the constitutionality of the law.
Basically, the court decided if this individual mandate, if penalizing/taxing for an inactivity felt within the purview of the constitution. Now how do Justices decide what falls within the purview of the constitution? Like all important texts of law, the constitution is full of ambiguity. Famously, for example, many point to a mundane law of "no vehicles allowed in the park." Sounds simple, right? But how do we define a vehicle in this context? Is a bike allowed, or how about a memorial that uses a car? Now we get into messier abstract arguments about how to read the constitution and different theories of justice, but basically, our intuition runs something like this, “Well, when the person who wrote the law wrote vehicle, what was the common usage of the word vehicle at the time?” Or, to think about it differently, we can think about it from the question of purpose. Is the law intended to keep the park safe, or perhaps to keep the park beautiful. Depending on this answer, maybe bicycles are fine as opposed to cars etc.
In that vein, what the Justices focused upon were two powers delineated in the constitution. The power to regulate commerce, nationwide, and the power to levy taxes. As you can tell from the phrasing, both regulating commerce and levying taxes leaves ample room for interpretation as to the scope of these powers. The argument that the individual mandate falls under regulating commerce goes something likes this: The government is attempting to lighten the burden of health care cost, to do that, it needs everybody to opt whether through actually buying health insurance, or just paying their share. Consequently, in order to regulate the commerce of the health care system, they must be allowed to force people to pay, one way or the other, or else this commerce system fails.
Justice Roberts denies this extension of the power to regulate commerce, because for him, regulating commerce entails creating laws for a system of commerce that already exists for people. Here, you create the system you wish to regulate.  You force people to opt in to a system of commerce they don’t want too, and that extends this constitutional power pasts its limits. Other Justices disagree(in eloquent and convincing fashion,) which will be important for future cases and precedence. 
 Roberts though, validates the law through the other constitutional right of levying taxes. Now, in a elegant maneuver, Roberts needs to make a step before he can even get to the argument if this is a tax, and if it is a constitutional tax. Democrats, including the president, went out of their way to not refer to this individual mandate as a tax, most likely because Americans hate that word. Consequently, how can Roberts view the bill as a tax when the bill itself goes out of its way to not refer to itself as one? Pretty fair question.
Roberts explains, that though the other parts of the government can create laws, how they name them or categorize them doesn’t necessarily carry weight in the court. The court holds the power to view the law in its proper manner. Essentially, as Roberts proves, the court has often disagreed with congress as to the proper categorization of the law. Consequently, even if Congress still doesn’t see this as a tax, the court isn’t beholden to the semantics, but to the details of the law. As Roberts goes on to prove, even if it isn't called a tax, it sure looks like one. Most strikingly, the bill states that the individual mandate will be collected by the IRS according to tax protocols. Now that Roberts shows he can re-imagine a law to save the law, he proves not only that this is a tax, but a tax with precedence. That this is truly a tax doesn’t really strike new ground. Experts, since the inception of the law have pointed out that this is truly a tax, what breaks new ground is calling a tax on an inactivity constitutional. Now, at this point, matters get abstract and almost arbitrary very fast. Which makes more sense, that the court can tax a person on something they want to buy, like cigarettes, so as to dissuade them from harming themselves, or taxing them on something they don’t want to buy. Is this tax/penalty a way to incentivize health care, or a way to penalize those who opt out? Also, many point out that, in the end, looking at effects, activity and inactivity engender the same results. Even if we could draw a conceptual distinction between an activity and inactivity, it’s not clear that this would preclude the law from falling within the purview of the power to tax. To be honest, I can see arguments both ways, and I don’t think either argument would be compelling.
Regardless of the specific content of the arguments, we can notice that these are not explicitly moral arguments, or prejudiced political arguments. These arguments, textual, erudite, and logical don't leave us with that bitter taste in our mouth when we think that the SCOTUS simply follows political sides. To that extent, I think everyone on the political spectrum should count today as a victory. With the election looming on our horizon, with two big movements staking at the more radical parts of our society, we feel the fracturing of our society more and more acutely. But today, if only in a small way, we all came together to discuss, mostly intelligently, the implications of this historic case. Even Romney, in his terse remarks came off as intelligent, as part of the conversation instead of shouting above it.
“Let’s make clear that we understand what the court did and did not do. What the court did today was say that Obamacare does not violate the Constitution. What they did not do is say that Obamacare is good law, or good policy. Obamacare was bad policy yesterday. It’s bad policy today. Obamacare was bad law yesterday. It’s bad law today.”
Romney clearly understands the implications of the decision. As Roberts himself points out, the decision doesn’t reflect on the policy as sound or not, but on its constitutionality, which can sound like an argument of semantics, but that assertion is far from the truth. Romney can disagree with the law, he can decide to overturn it if he wins the presidency, and he can feel let down by the court, but even Romney knows a fair decision when he sees one. The court, at least in the Roberts decision, upheld the holy separation of powers in numerous ways. First off, in a fascinating manner, Roberts justifies his decision partially based out of the necessary respect for a statute. Though he disagrees with the somewhat bumbling phraseology, Roberts goes out of his way to find support for the law because his respect for the law, and the limited power of the court. In this sense, as Noah Feldman points out, what many interpret as his siding with the liberals truly stems from the conservative strain in Roberts in regards to judicial restraint. Call it ironic, or not, but in limiting his own power to what he thinks is proper, he essentially gave more power to congress and the president. Sometimes, conservative principles lead to liberal results. In this sense, hopefully, we can see that the conservative/liberal divide is a bit false, distracting, and often unhelpful.
As others note, besides for validating the actual law, and redeeming the courts reputation, the court ruled in line with what the large majority of law experts deemed as the proper course. Overturning the law would entail disregarding decades of precedent, which on if itself, regardless of the context, would create bad precedence. In terms of the response, even that elicits pride. True, some outlets misrepresented the decision in their haste to be the first to report it, but keep in mind the complexity of the decision. Discounting that snafu, for the most part, I have read, on both sides intelligent conversations, even dialogue that transcends the normal dogmatic boundaries we come to expect from political conversation. The opinions themselves read like great intellectual fodder on the nature of the different branches of the government and the relationship between the branches. Reading the opinions, which requires effort more than anything else, is in of itself fascinating and heartwarming. They are full of wisdom, insight, history, and the mechanics of government/law so that you can see the gears of the government working. (I know a 200 page of legal opinions can sound daunting, but everyone writes with impressive clarity. I highly recommend reading this now historical document. If not, I included some choice quotes below.) That in of itself feels beautifully American.

Here's the actual text of all the opinions, and its a compelling fascinating read. Below that are important quotes from Roberts opinion. 

11-393 National Federation of Independent Business v. Sebelius ...

QUOTES SECTION: - they follow the order of the Roberts opinion.

A.On the nature of the branches...
"Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a coordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.” United States v. Harris, 106 U. S. 629, 635 (1883). Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices"
- (what a clear and thought provoking line.)

B. On the dangers in overextending the power to regulate Commerce
“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”

- “Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.”

- “People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.

That is not the country the Framers of our Constitution envisioned. James Madison explained that the Commerce Clause was “an addition which few oppose and from which no apprehensions are entertained.” The Federalist No. 45, at 293. While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have “always recognized that the power to regulate commerce, though broad indeed, has limits.” Maryland v. Wirtz, 392 U. S. 183, 196 (1968). The Government’s theory would erode those limits, permitting Congress to reach beyond the natural extent of its author- ity, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”

c. Fascinating through from Roberts - on the nature of the founding fathers, sound very reminiscent of the Conservative thinker, Edmund Burke
“To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers. Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 673 (1980) (Rehnquist, J., concurring in judgment). As we have explained, “the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was to take.” South Carolina v. United States, 199 U. S. 437, 449 (1905). The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.”

D. Final thought on the scope of the Commerce clause
- “The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.”

E. The Turn from penalty to Tax - and the relationship of the court to new laws.
“Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.
The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”

F. The Essential argument for the individual mandate as a tax
- The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more.
It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the “prohibitory” financial punishment in Drexel Furniture. 259 U. S., at 37.
Second, the individual mandate contains no scienter requirement. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution. See §5000A(g)(2). The reasons the Court in Drexel Furniture held that what was called a “tax” there was a penalty support the conclusion that what is called a “penalty” here may be viewed as a tax.
None of this is to say that the payment is not intended to affect individual conduct. Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry.

G. Is a tax on inactivity unconstitutional?
    “There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.
Three considerations allay this concern.                                
         First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) (“Our new Constitution is now established . . . but in this world nothing can be said to be certain, except death and taxes”).
Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educa- tions. See 26 U. S. C. §§163(h), 25A. Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.
Second, Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority. See, e.g., United States v. Butler, 297 U. S. 1 (1936); Drexel Furniture, 259 U. S. 20. More often and more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures. See Kahriger, 345 U. S., at 27–31 (collecting cases). We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’ ”
We have already explained that the shared responsibility payment’s practical characteristics pass muster as a tax under our narrowest interpretations of the taxing power. Supra, at 35–36. Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. It remains true, however, that the “‘power to tax is not the power to destroy while this Court sits.’” Oklahoma Tax Comm’n v. Texas Co., 336 U. S. 342, 364 (1949) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting)).
Third, although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.
By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the se-vere burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.
The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Be- cause the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness
H. Summary.                                         
The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.
As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer. The States are given no such choice in this case:
They must either accept a basic change in the nature of Medicaid, or risk losing all Medicaid funding. The remedy for that constitutional violation is to preclude the Federal Government from imposing such a sanction. That remedy does not require striking down other portions of the Affordable Care Act.
The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.

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