An Activist Decision

I stand by my initial reaction: the decision is a travesty.  Roberts had it within his power to strike down the entire monstrosity, and he opted not to.  Although the Right will be energized he has handed Obama a political “win” (yes, a win that might end up as a curse, but for today, right now, this is a win).

 Taking all that as read, what now are the limits of federal power?

 On the good news front, the Court struck down (for the first time) a scheme of conditional federal grants as being unduly coercive against the states — that would be ACA’s Medicaid expansion which threatened to pull the plug on all Medicaid dollars for states that don’t march in lockstep with the feds.

Also good — very good — is the fact that the Court rejected the administrations two primary arguments: that the individual mandate is justified under the Commerce Clause and the Necessary and Proper Clause.  So now we know: Congress cannot use its regulatory power to compel activity.  There must be some pre-existing activity (and it has to be of an “economic” nature) for Congress to be able to regulate.

But then the bad — very bad — news: Roberts accepted the validity of the mandate as a “tax” imposed to promote the “general welfare.”  As a matter of original meaning, this conclusion is incoherent.  Everything we know about the original understanding of the text tells us that it was not meant to authorize Congress to use its taxing power to achieve ends that it could not do under its enumerated powers.   Unfortunately, however, that conclusion is supported by precedent going back to the 1937 Helvering v. Davis.  It is the Hamiltonian view of “general welfare.” I don’t buy it, but it was not likely that the Court was going to revive the Madisonian (correct) view of general welfare at this date.

So: Congress cannot compel you to enter into commerce, but it can tax you if you refuse to enter into commerce.   What are the limits to this doctrine?  As far as I can tell they are:

The tax cannot be so high that people have no choice but to purchase health insurance [or whatever product or service Congress decides to mandate next];
Congress cannot attach any other “negative legal consequences” to the failure to engage in commerce; e.g., Congress cannot impose criminal or civil penalties for failing to buy health insurance.
The tax must be imposed regardless of intent, thus, Congress can’t impose a tax only on those who “intentionally refuse to buy health insurance.”
The tax must be collected in the same manner as other taxes, ie, via the IRS.

 The dangerous part of his decision is not that he expanded the scope of the “taxing power” (as I explain above, existing precedents already did that) but he greatly expanded the Court’s power to reclassify a regulatory measure as a “tax.”  Roberts relies on the principle that if courts are faced with differing interpretations of a law, they should choose the interpretation that upholds the law.  But that assumes that the competing interpretations are plausible.  Here, Congress was absolutely crystal clear in categorizing the “shared responsibility payment” as a “penalty,” i.e., a means to enforce a regulatory command, and not a tax.  The President who signed the law emphatically denied it was a tax (see Mollie’s post). 

A Court re-writing a statute to achieve a certain result is the very definition of judicial acitivism.  For the Court to rewrite a law so as to impose a tax is doubly disturbing.  As the dissenters say: “Impos ing a tax through judicial legislation inverts the constitu tional scheme, and places the power to tax in the branch of government least accountable to the citizenry.”

ObamaCare Thoughts

1. Let’s remember the central issue, as summarized by Ilya Somin at Volokh:

If the Court ends up striking down the mandate (which I continue to believe is a 50-50 proposition), it will be because the federal government failed to come up with a good explanation of how the law can be upheld without giving Congress nearly unlimited power to impose other mandates. Although both sides in litigation have come up with numerous interesting points, I continue to think that this is the central issue in the case, and the biggest flaw in the federal government’s case.

2. If the mandate is overturned, brace yourselves for charges of “activism.”  Rubbish.   The High Court just struck down the essential provisions of Arizona’s immigration law — have you heard any liberals screaming “activism?”  Even lower court judges who upheld the mandate acknowledged its unprecedented nature.  With no precedents directly on-point, how can the court be “activist?”

3. To those who say “but the mandate is a conservative idea” because some folks at Heritage supported it during Clinton, tell them, with all due respect, that the Heritage Foundation does not have a monopoly on conservatism.  As long ago as 1993, there were conservatives pointing out that there is no constitutional basis to force people into the insurance market.  See this 1993 WSJ piece from David Rivkind.

4.  And finally, if the Court upholds the mandate (heaven forfend), keep your courage up. This is not the end of the game, as there are future court challenges (on other grounds) in the pipeline. There are, for example, suits to challenge the IPAB death panel as well the IRS’s planned imposition of taxes not authorized in the statute — see this bracing column by Jonathan Adler and Michael Cannon.  And one of our own members K. Douglas Lee has been involved in a very robust challenge to the law — and that’s another lawsuit that could, I believe, continue even if the mandate is upheld.

Good luck to all of us!

Arizona v US: International Community Trumps Federalism

As I expected, Justice Kennedy’s majority opinion in the Arizona immigration case is a shambles.  The bottom line, which I will expand on below is that the majority found the law inconsistent with Congress’s (non-existent) right to control what foreigners think of us.   

Arizona v. US is a “pre-emption” case; that is, the issue is whether the state’s immigration law (SB 1070) is trumped by federal law.  So, the first question is: what is the federal law that is potentially inconsistent with the state law?   The majority recognizes (as did the Obama administration) that SB 1070 isn’t trumped by Congress’s constitutional power to establish a “uniform rule of Naturalization.”  The Ariz. law does not change the rules of naturalization (who can enter the country and under what conditions can they stay); rather, it adds certain state penalties to what are already violations of federal law.

Thus, the majority relies not only on Congress’s power over immigration, but on some mythical federal power over “the status of aliens” — a power which, according to the majority, flows from the executive’s power over foreign affairs.  The federal executive branch must have exclusive control over the mechanisms for enforcing immigration law because of the “fundamental” requirement that foreign countries concerned about the “status, safety, and security of their nationals” must be able to deal with one government, not 50.   Justice Kennedy cites the amicus brief filed by Argentina (I kid you not) for the proposition that the federal government must control the “perceptions” that aliens have of this country.

Even assuming that it is a worthwhile goal to give foreign governments the convenience of one-stop shopping and a more friendly “perception” of the US, these considerations must yield to the Constitution.  As usual, the money quote is from Scalia’s dissent:

The Constitution gives all those on our shores the protections of the Bill of Rights—but just as those rights are not expanded for foreign nationals because of their countries’ views . . . neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers.

 By ignoring this “inconvenient fact,” the majority casts aside the most basic aspect of state sovereignty: the right to control a state’s borders.  In the founding era, and for many decades thereafter, the operative assumption was that the states had the exclusive power to exclude undesirable aliens.  Jefferson and Madison objected to President Adams’ Alien Acts (part of the “Alien and Sedition Acts”) on the grounds that the power to determine whether aliens are “dangerous” belonged to the states and had never been delegated to the federal government.  In Mayor of New York v. Miln (1837), the Court upheld a New York statute that  gave the City the power to turn away any passengers arriving in the Port of New York who the Mayor thought might become a burden on the City.

What we’re seeing today is another example of the Court’s tendency to interpret the Constitution in a way that the Justices imagine will be most congenial to foreign (mainly European) sensibilities.  This approach has already done violence to federalism (e.g., through holdings that the president can invade states’ rights via the treaty power); and of course has turned the Eighth Amendment into a mere appendage of the UN Charter.  

Top Five Reasons Doctors Don’t Recommend ObamaCare

The five top reasons ObamaCare is bad for doctors (ht: Heritage’s Foundry blog):

  1. Adds more patients to Medicaid. (On average, Medicaid physician payments are only 56 percent of what private insurance pays).
  2. Leaves the flawed Medicare payment formula on the books. Every year, Congress passes a last minute “doc fix” to kick the can down the road. Obamacare does nothing to solve it.
  3. Creates a new board to further cut provider payments. Obamacare uses the Independent Payment Advisory Board (IPAB — or “death panel” as its known to its friends), a board of 15 unelected bureaucrats, to contain cost growth in Medicare by finding ways to cut spending to meet a new budget target.
  4. Exacerbates future physician shortage.  One survey found that Obamacare is motivating 43 percent of doctors to move up their retirement within the next five years. This will intensify the already existing doctor shortage.
  5. Destroys the doctor-patient relationship. Obamacare’s massive amount of red tape and regulations will tear apart the doctor-patient relationship.  A recent doctor survey found that 67 percent of doctors surveyed said Obamacare would not improve the doctor-patient relationship.

Pre-emptive whining over ObamaCare

Mainstream pundits continue their all-out pre-emptive attack on a hypothetical Supreme Court opinion against ObamaCare.   If the Court strikes down a single syllable of the law, they warn, the public will see this as a “political” decision and the legitimacy of the Court will be tarnished forever.  Juan Williams repeats this idiotic narrative in a column proclaiming: “Team Obama is right to conclude there is fertile political ground to be plowed in lashing out against the right-wing activism of the Roberts Court.” (ht: Ed Whelan at NRO Bench Memos).

More pathetic is the piece by Ezra Klein as WaPo griping about how hard this whole ObamaCare thing is on . . . law professors.  He quotes Akhil Reed Amar (an otherwise solid, albeit liberal scholar):

“If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.”

Cry me a river, Akhil.  He knows perfectly well (as do many scholars, such as Georgetown’s Randy Barnett) that there are sound constitutional reasons to strike down all or part of the Affodable Care Act.  The idea that the Court’s legitimacy faces some unique danger, after 70+ years of treating the Constitution as a decorative prop, is absurd. 

Even dumber is the idea that if the Court strikes down ObamaCare by a “narrow” 5-4 vote, the public will be outraged.  Does anybody seriously believe that the public (which overwhelmingly wants the individual mandate struck down) is going to quibble about the vote margin?

Obama Invokes Executive Privilege

President Obama has invoked “executive privilege” to head off a contempt of Congress citation against Eric Holder for failing to produce documents relating to operation “Fast and Furious,” the bizarre DOJ initiative to send thousands of firearms to Mexican drug cartels to see what they would do with them (kill people, as it happens).

Over on the Member Feed, ConservativeWanderer helpfully reminds us of the NYT editorial blasting Bush for invoking the privilege to block congressional subpoenas over  the firing of 8 federal prosecutors. But it wasn’t just the Times, then-Senator Barack Obama also attacked Bush for “try [ing] to hide behind executive privilege every time there’s something a little shaky that’s taking place.”

Don’t hold your breath for a NYT editorial against the Obama/Holder privilege, but a court challenge may be in order. Under existing precedent (including the famous US v. Nixon), executive privilege is not impregnable. Heritage’s Todd Gaziano has a good post highlighting the relevant law, which I summarize:

First, executive privilege cannot be invoked at all if the purpose is to shield wrongdoing – that’s what did Nixon in. Second, Congress is entitled to at least some documents and other information that indicate who the ultimate decision maker was for this disastrous program and why these decisions were made. Third, even a proper invocation of the privilege must yield to other branches’ need for information in some cases. And lastly, the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way.

If Democrats contend that executive privilege must yield to Congress’s desire to investigate the firing of 8 prosecutors, how can they argue that Congress does not have an even stronger need to know the facts about Fast and Furious? Who knows, but they obviously will make that argument.  House Republicans have to challenge the administration on this — it’s the only hope of getting Fast and Furious the infamy it deserves.

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