Saturday, June 30, 2012

Healthcare Roundup

Lots and lots of ink (at least electronic ink) has been spilled since Thursday morning’s ruling by the Supreme Court upholding the healthcare act (our review is here). Below is a collection of some of the better articles floating in cyberspace.

Paul Mirengoff, Why Did Roberts Do It?

I propose a related but somewhat different explanation – Roberts’ strong commitment to “judicial modesty.” Roberts has spoken clearly about this commitment, and it’s time to take him seriously.
Judicial modesty is related to promoting the perceived legitimacy of the Court. An aggressive, immodest judiciary risks losing esteem. But the two explanations – Krauthammer’s and mine – aren’t identical. Judicial modesty is a theory of judging, not a theory of pure political expediency. And it is independent of Roberts’ status as Chief Justice. Unlike Krauthammer, I believe Roberts would have reached the same decision had he been an Associate Justice.

Deroy Murdock, A Pyrrhic Victory for Obama

By sticking with Obamacare, Obama must admit that he has imposed a new tax on nearly everyone, not just the “millionaires and billionaires” whom he decries by day and with whom he dines by night at $40,000 per plate. America’s Spender-in-Chief now seeks another term as America’s Taxer-in-Chief.

Second, according to pollster Scott Rasmussen, 54 percent of Americans want Obamacare repealed. Those numbers will go up, not down, as citizens realize that this 2,801-page monstrosity is an unworkable, bloated Washington power grab turbocharged by a near-universal tax hike.

Sean Trende, The Chief Justice's Gambit

The loss is especially galling for conservatives because they were extremely close to having the whole thing struck down in its entirety, immediately. That’s what Justices Scalia, Kennedy, Thomas and Alito would have done, and there’s some pretty good evidence that Scalia’s dissent was the majority opinion until fairly late in the day.
But Roberts is only a few years further into his chief justice-ship than Marshall was at the time of the Marbury decision. His tenure is likely to be equally as lengthy, if not more so. I think the forest for him is quite a bit different than the trees that people are focusing on.
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The most important aspect of the ruling, however, comes with respect to the spending clause. Seven justices just agreed to real limits on Congress’ ability to attach strings to legislation. This is significant. Until today, these limits were hypothetical, and it was believed that Congress could, for example, remove all Medicaid funding as a punishment for a state’s refusal to comply with the Medicaid expansion. I did not expect the court to rule the way it did here, much less to do so by a 7-2 vote.

David Bernstein, More Hints that Roberts Switched his Vote – reasons why the dissent reads like the initial majority opinion

1. The dissent has a whole section on severability that is completely beside the point except on the assumption that the mandate had been struck down, and now “We” have to decide whether and what to preserve of the rest of the act now that the mandate is gone.
2. Notice also that his response to Roberts is tacked on at the end, rather than worked into the body of whatever he was writing (see page 64 of his dissent). For example, one would have expected Scalia to directly take on Roberts’ application of the Anti-Injunction Act, but his brief section on that act only mentions what “the Government” argues (see pages 26-28).

Bert Atkinson Jr., Why Chief Justice Roberts Made the Right Long-Term Decision With ObamaCare

Here’s what really occurred — payback. Yes, payback for Obama’s numerous, ill-advised and childish insults directed toward SCOTUS.
Chief Justice Roberts actually ruled the mandate, relative to the commerce clause, was unconstitutional. That’s how the Democrats got Obama-care going in the first place. This is critical. His ruling means Congress can’t compel American citizens to purchase anything. Ever. The notion is now officially and forever, unconstitutional. As it should be.
Next, he stated that, because Congress doesn’t have the ability to mandate, it must, to fund Obama-care, rely on its power to tax. Therefore, the mechanism that funds Obama-care is a tax. This is also critical. Recall back during the initial Obama-care battles, the Democrats called it a penalty, Republicans called it a tax. Democrats consistently soft sold it as a penalty. It went to vote as a penalty. Obama declared endlessly, that it was not a tax, it was a penalty. But when the Democrats argued in front of the Supreme Court, they said ‘hey, a penalty or a tax, either way’. So, Roberts gave them a tax. It is now the official law of the land — beyond word-play and silly shenanigans. Obama-care is funded by tax dollars. Democrats now must defend a tax increase to justify the Obama-care law.
Finally, he struck down as unconstitutional, the Obama-care idea that the federal government can bully states into complying by yanking their existing medicaid funding.

Tom Scocca, Obama Wins the Battle, Roberts Wins the War

The scholars expected to see the court gut existing Commerce Clause precedent and overturn the individual mandate in a partisan decision: Five Republican-appointed justices voting to rewrite doctrine and reject Obamacare; four Democratic-appointed justices dissenting.
Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well).
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This is a substantial rollback of Congress' regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts' nomination, saying he did not trust his political philosophy on tough questions such as "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce." Today, Roberts did what Obama predicted he would do.
Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress' power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

Jonathan Adler, Lose the battle, win the war?

The Chief Justice’s opinion also confirms that he is a judicial minimalist – and more so than any other member of the Court. His decision to adopt a narrowed, if strained, interpretation of the minimum coverage opinion so as to preserve the statute’s constitutionality is of a piece with what he has done before . . . .  When possible, the Chief Justice prefers to decide less, leave precedents undisturbed and, as in this case, avoid overturning a federal statute – even if it means stretching statutory text or adopting stingy interpretations of prior opinions.  Whether or not one likes this approach to judicial decision-making, it is what we have come to expect.  It is thus no surprise that, as a 2010 NYT analysis found, the Roberts Court overturns precedents and invalidates federal statutes far less often than did the Rehnquist, Burger, and Warren Courts.
While commentators largely focused on the Commerce and Necessary and Proper Clauses, the Court’s treatment of the Spending Power is likely to have the greatest practical effect.  For years the Court has insisted that Congress’ power to impose conditions on the receipt of federal funds is limited without ever finding a limit it would enforce. The criteria outlined in South Dakota v. Dole made for a nice test, but it was a test that nearly every statute passed.  Today, however, seven Justices concluded that Congress could not condition the receipt of existing Medicaid funds on state acceptance of a Medicaid expansion, putting teeth into Dole’s admonition that Congress could not use the promise of federal funds to “coerce” state obedience.

Randy Barnett, A weird victory for federalism

Today, the Roberts Court reaffirmed the “first principle” announced by Chief Justice Rehnquist some 17 years ago in Lopez: the federal government is one of limited and enumerated powers. It accepted all of our arguments about why the individual insurance mandate exceeded the commerce power:  “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” wrote Chief Justice Roberts. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”  Then the Court went farther to invalidate the withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power.
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Academics are sure to react to today’s decision by declaring the New Federalism dead, but they would be wrong to do so.  The Founders’ scheme of limited and enumerated powers has survived to fight another day.

Kenneth T. Cuccinelli II, Victory in Defeat

Some will suggest that this is no victory at all, given the Court’s ruling that the money one must pay for failing to obtain insurance can be supported as a use of Congress’s taxing power. However, by confining within the taxing power the ability of Congress to adopt such schemes, the Court has greatly limited Congress’s ability and political appetite to attempt them in the future.
Now everyone will know that when Congress does something like this, it is without question a tax increase. Is there any doubt that if PPACA had been presented as a middle-class tax increase, it would have failed? Because the American people have made clear that elected officials raise taxes at their peril, it is unlikely will we see this particular gambit repeated.
Another thing to note is that Chief Justice Roberts’s opinion on the taxing power is limited. He noted that it could not be considered punitive because the amount citizens are required to pay for not having insurance is far less than they would have to pay to obtain insurance. He strongly suggests that, if Congress were to require citizens to pay an amount greater than the costs of insurance, that would constitute a penalty, and thus would be unconstitutional.

Michael Knox Beran, Why Roberts Was Right

There is a larger point. If the only way Americans can defend their liberties is to hide behind the verbiage of a Supreme Court opinion, it’s already too late for freedom here.
My guess is that the chief justice doesn’t think it’s too late. He knows, as we all do, that the remedy — a remedy far more potent than any judicial decision — is at hand.
If conservatives in an election year like this one can’t win the battle of the ballot box, no Supreme Court judgment can save them.
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