Yesterday

The decision and opinions in the health care cases were bound to be shaped by considerations outside “pure” legal principle—by politics or statesmanship, call it what you will. As it happens, I have a relatively high tolerance for that sort of thing. What strikes me as disappointing about NFIB v. Sebelius is that the statesmanship and politics are so bad.

More than one blogger-pundit has drawn the analogy to Marbury: give the administration what it wants; protect the Court’s power and prestige; and use the occasion to establish a legal principle for future cases. But there’s all the difference in the world between Marbury’s “this Court has the power of judicial review” principle and the supposed principles of yesterday’s decision. For starters, a Chief Justice’s opinion for a unanimous Court (as in Marbury) is far more likely to withstand future attack than is a 5-4 majority opinion, especially one that is so obviously the result of the author’s post-Conference vote switch. (The Volokh Conspiracy has several fine posts on that subject.) On a more merits-related note, what exactly is the principle in yesterday’s cases?

One candidate is the “to regulation of inactivity” limit to the commerce power and the related reasoning on the Necessary and Proper Clause. However, whatever one thinks of the reasoning, it is (1) unlikely to apply to much future legislation; (2) fatally undermined by the absurd “it’s a tax” argument; and (3) arguably dictum. (The Chief says it isn’t, but that may also be dictum.)

A second candidate is the 7-2 holding that the Affordable Care Act’s Medicaid expansion is unconstitutionally “coercive,” to the extent that Congress threatened states that wished to opt out with a withdrawal of all Medicaid funding. No doubt, states “as states” will seek to invoke that unprecedented holding in litigation over other spending statutes. But there is no intelligible principle here, only an analysis-free pro-state sentiment that cannot possibly sustain a plausible federalism jurisprudence.  In short, the Chief’s supposed act of statesmanship has bought nothing that is worth having.

So with the politics. One could argue that yesterday’s outcome, especially when coupled with the outcome in the Arizona immigration case, has freed the Roberts Court from charges of “conservative activism.” Maybe Jeff Rosen and E.J. Dionne will at last shut up, and the Court’s majority is free to do as it pleases on issues it actually cares about—the Voting Rights Act, affirmative action, another round of campaign finance litigation.

Dream on. The “deference at the price of plausibility” standard of NFIB v. Sebelius is the new normal, and future denunciations of “activism” will be all the more vehement. And besides: if the Court cannot bring itself to mow down the monstrosity that is Obamacare, what exactly is it saving itself for?

The statesman-esque, politically savvy way to skin this cat would have been to nix the individual mandate on a principle with bite, while upholding the rest of the statute and, moreover, emphasizing that even the mandate could have been enacted in some different form.  Sure, the liberal commentariat would have squawked. But the Court would have found that reaction easy to live down. The costs and consequences of this decision are bound to prove far more troublesome.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. Before coming to AEI, Professor Greve cofounded and, from 1989 to 2000, directed the Center for Individual Rights, a public interest law firm. He holds a Ph.D. and M.A. in government from Cornell University, and completed his undergraduate studies at the University of Hamburg. Currently, Professor Greve also chairs the board of the Competitive Enterprise Institute and is a frequent contributor to the Liberty Law Blog. Professor Greve has written extensively on many aspects of the American legal system. His publications include numerous law review articles and books, including most recently The Upside-Down Constitution (Harvard University Press, 2012). He has also written The Demise of Environmentalism in American Law (1996); Real Federalism: Why It Matters, How It Could Happen (1999); and Harm-less Lawsuits? What's Wrong With Consumer Class Actions (2005). He is the coeditor, with Richard A. Epstein, of Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (2004) and Federal Preemption: States' Powers, National Interests (2007); and, with Michael Zoeller, of Citizenship in America and Europe: Beyond the Nation-State? (2009).

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Comments

  1. libertarian jerry says

    Michael, The matter was settled 75 years ago with the Helvering decision which declared that Social Security was a tax and that the money that was doled out were benefits thus making Social Security ,and today’s ACA Constitutional. Why do you think that the Federal Government uses it’s tax collection arm, the IRS, to enforce this new mandate. With that said,both Social Security and the ACA can be terminated by Congress voting to end the tax and stopping the benefits.

  2. Richard Schweitzer says

    But, does anyone notice that “coercion” of the collective (the several states) is deemed a Constitutionally unauthorized power of Congress (via the intents of “Federalism”) whilst “coercion” (via “Tax”) of individuals to act has become an authorized power.

    And, is this simply because of the differences in the mechanismms of coercions used?

    In the case of coercion of the states, it is via spending (which has heretofore seemed an almost unlimited and judicailly unregulatable power). In the case of the individuals it is via a form of taxation (direct) which is subject to specific Constitutional constraints (Art I; Sect 9).

    This is indeed “Upside Down!”

  3. Richard Schweitzer says

    In response to Jerry:

    The FICA “Tax” is levied “on” incomes.

    No income. not tax.

    The levy imposed by 5000A (PPACA) is *not* imposed “on” incomes; although the extent of the levy, subject to arbitrarily determined limitations of service prices, may (in addition to a minimum levy) may be measured by “household incomes.”

    Fica is distinct from 5000A, which is a*direct* levy, and therefore subject to the constraints of Art I; Sect 9.

  4. Richard Schweitzer says

    We should also note that FICA is levied on expenditures for obtaining services, as our Secretary of the Treasury came to accept.

  5. z9z99 says

    While I can understand Mr. Greve’s disappointment from a conservative/libertarian philosophy perspective, the Court’s ruling does provide practical benefits. The progressive ambition is single payer (despite the fact that virtually no one can identify why that is desirable). In order to get single payer (a monopsony) the federal government must have some way to coerce providers to participate in government programs. Half-wits like Nancy Pelosi and Jan Schakowski assumed that regulating physician practices as “commerce” was the next logical step.

    The Court’s ruling put that to rest for a while.

  6. says

    it was not constitutional. They FDR came out with his theart to pack the Court with three more justices and when he sent it up, they caved and allowed social security to be admited into law and within the constitution. Every major new extension of power such as Medicare and Medicaid were tied to this law because of this court ruling. So lets take a look at these signature programs. Social Security has had to be constantly tweaked with ever more income being ripped fromt he taxpayers and ever more restrictions placed on the recipient. It is a giant ponzi scheme that if a company tried it the officers would end up in jail. This think makes Bernie Madoff look fairly bland in comparison. It is going broke and again will have to be adjusted and faces a time when there will be many multiples of retirees for each worker. If you give the government an opening, you can plan on it being much more massive in a very short time and it never ends. Then we had Medicare thrust on us. Taking care of the ederly was the plan, but of course you soon had the program extended to those in need and disabled. If you look at the history of healthcare in the USA in regard to total costs, prior to Medicare, it was a fraction with very low increases from year to year. After Medicare it zoomed up each year in a never ending spiral. So the government action created the problem of healthcare costs and then the democrats come along to fix it with more big government solutions with ObamaCare. Again, it starts out saying it is going to provide better care that is more accessible and provided to millions more while they tout it will be cheaper in another big lie. They even had the gall to say savings from medicare fraud and abuse to justify the huge increase in spending for Obamacare is in the billions and use the money twice while insisting that it will not cause anyone to lose any benefits. So again a big lie on top of another lie. Each time the republican party has tried to slow it down and make programs that might be more efficient or to cut fraud and abuse in the past, the liberal left and their partners in the media cry about how mean they are for wanting to hurt the elderly and how the only thing saving them is electing democrats. now they try to make these programs inot rights defined in the constitution. The only solution to any problem in the world or in our country is government growth in cost and size. They even started the unionization of public sector workers for one purpose alone, to lock in votes and support and donations. FDR was against public sector workers being given collective bargaining because their boss is the taxpayer. We can only hope that the American people in large numbers have learned that the democratic party is evil for the future of our country and bankrupt of any idea that does not increase speding a increase the size of government.Reply

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