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Posts Tagged ‘John Roberts’
September 20th, 2012 at 1:45 pm
ObamaCare: Taxing the Constitution

My column this week explains the logic behind an important new constitutional challenge to ObamaCare by the Pacific Legal Foundation, a non-profit property rights law firm.

In its lawsuit, Sissel v. Department of Health and Human Services, PLF argues that the Supreme Court did ObamaCare no favors when it saved the law from a Commerce Clause challenge by reinterpreting it as a constitutional exercise of Congress’ taxing power.

Instead, PLF argues, the Court merely exposed ObamaCare’s newly found taxing authority as an express violation of the Constitution’s Origination Clause, which requires all new tax bills to originate in the House of Representatives, not in the Senate as ObamaCare did.

Though simple and faithful to the Constitution’s text, PLF’s argument is nonetheless novel because some of the Supreme Court’s precedents indicate the Court will not seriously enforce the Origination Clause’s procedure.

But as liberal legal scholar Jack Balkin says in a blog for The Atlantic, Chief Justice John Roberts and his conservative colleagues may be open to rethinking those precedents:

In a previous essay for The Atlantic, I noted that even if a legal argument is currently “off the wall,” it may nevertheless become plausible if enough prominent people get behind it and vouch for it. Support by major political parties is probably the most important factor in quickly moving arguments from “off the wall” to “on the wall.” The challengers’ arguments in NFIB v. Sebelius got as far as they did because the unconstitutionality of Obamacare became virtually the official position of the Republican Party, and Republican politicians and affiliated media pushed the challengers’ claims over and over again. Repeated arguments by conservative politicians, media, and intelligentsia, in turn, probably affected the views of Republican-appointed judges and justices about how seriously to take the arguments.

Members of the media will no doubt ask legal scholars (such as yours truly) whether the PLF’s new constitutional challenge to Obamacare is likely to succeed on the merits. I’ve just given you my answer: not under existing law.

But if reporters have been paying attention to the events of the last two years, they should know that, at least where health care reform is concerned, the considered views of legal scholars are not the most important ones. The real question to ask is whether Republican politicians, right-wing talk radio, and Fox News will get behind the new challenge with the same degree of enthusiasm they had for the first legal assault on Obamacare. If they do, then the mainstream media will no doubt cover the controversy as it did before. If a conservative district court judge takes the arguments seriously, the game is on once more. And then, perhaps, Chief Justice Roberts, given a second chance, will change his mind — again.

July 5th, 2012 at 1:35 pm
Roberts’ ObamaCare Decision a Job Creator?

It’s no secret that Chief Justice John Roberts’ opinion in the ObamaCare case last week is already helping President Barack Obama on the campaign trail by giving the unpopular law constitutional legitimacy.

But Fox News reports that Roberts’s opinion may also help the President make another boast: ObamaCare is a job creator.

Much bigger than the mandate itself are the insurance exchanges that will administer $681 billion in subsidies over 10 years, which will require a lot of new federal workers at the IRS and health department.

“They are asking for several hundred new employees,” Dorn said. “You have rules you need to write and you need lawyers, so there are lots of things you need to do when you are standing up a new enterprise.”

For some, though, the bottom line is clear and troubling: The federal government is about to assume massive new powers.

According to James Capretta of the Ethics and Public Policy Center, federal powers will include designing insurance plans, telling people where they can go for coverage and how much insurers are allowed to charge.

“Really, how doctors and hospitals are supposed to practice medicine,” he said.

The health department is still writing regulations, which can be controversial in and of themselves. One already written, for instance, requires insurance plans to cover contraception. It has been legally challenged by Catholic groups in a case likely to end up in the Supreme Court.

So, there are likely to be many more chapters to go in the saga of Obama’s health care law

And none of it would be possible without the Chief Justice.

July 2nd, 2012 at 12:08 pm
No Silver Linings
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As the pessimist-in-residency at CFIF, I have to unhappily report that I find it virtually impossible to muster an interpretation of the Supreme Court’s ObamaCare decision as optimistic as the one that Tim notes below from George Will.

My thoughts track most closely with those of my friend and podcast partner John Yoo (you can hear me lead John and Richard Epstein in a discussion of the ObamaCare decision here). Here’s John, writing over the weekend in the Wall Street Journal:

Conservatives are scrambling to salvage something from the decision of their once-great judicial hero [Chief Justice Roberts]. Some hope [The ObamaCare ruling] covertly represents a “substantial victory,” in the words of conservative columnist George Will.

After all, the reasoning goes, Justice Roberts’s opinion declared that the Constitution’s Commerce Clause does not authorize Congress to regulate inactivity, which would have given the federal government a blank check to regulate any and all private conduct. The court also decided that Congress unconstitutionally coerced the states by threatening to cut off all Medicaid funds if they did not expand this program as far as President Obama wants.

All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power … The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program’s expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts’s opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts’s tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress’s power to tax.

John, I fear, is right. Finding conservative principles in the constitution has zero cash value when they don’t effect the ultimate outcome (though they admittedly did, in limited fashion, with the Medicaid expansion). As for banking on them paying dividends in the future? That depends on the deference that future incarnations of the Court are willing to give to the Roberts decision. And that’s a reed too thin to bear the weight that conservatives are attempting to load upon it.

June 28th, 2012 at 3:44 pm
John Roberts’ Contortions

I discuss this bizarre decision here.

I further note that I was almost right in my final prediction, below.

Especially: “ I think this is going to be one of those horribly fractured decisions where observers have trouble making heads or tails of everything. I think there may even be concurrent pluralities rather than a simple majority on at least a couple of the questions presented to the court. In the end, though, I do — yes, I do — expect the mandate in this particular form, applied in this particular way, to be adjudged at least partially unconstitutional.”

Indeed, the MANDATE was found unconstitutional, but the penalty it carried, treated as a tax, was not. And on the Medicaid issue, there were indeed shifting pluralities rather than a single majority. So I was right on the style of the opinion — although not on the substance of just how the court would find a way to muck it up beyond ordinary understanding.

June 27th, 2012 at 2:38 pm
A Few More Thoughts on the SCOTUS Obamacare Ruling
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I’ll join the scrum on this one, though in a much less organized fashion than either Ashton or Quin. Insulated as it is from direct political pressure, the Supreme Court’s actions are always much harder to predict than those of the other two branches, so I’ll offer a few thoughts rather than predictions:

  • The now widely-held belief that Chief Justice Roberts is writing the majority opinion makes me nervous. The positive interpretation is that some or all of Obamacare is going to be struck down and that Roberts — ever-mindful of public perception of the Court’s legitimacy — is writing it to ensure the widest possible acceptance of the ruling. On the other hand, if Justice Kennedy drifted over to the left on this decision, this could be a 6-3 ruling upholding Obamacare, with Roberts switching only so he could write the opinion and blunt the damage done by the majority.
  • If the individual mandate is struck down but found to be severable from the broader law, the health insurance market is going to be thrown into absolute chaos. There’s a reason that insurers themselves were lobbying so hard for the mandate — it’s the only thing that backfills the tremendous costs being imposed on them by the rest of the legislation. The combination of an explosion in costs with likely attempts by HHS to enact price controls will put American health care in a death spiral — itself a good reason to find the provision severable.
  • I’m of the opinion that, as a political calculation, having only the mandate struck down is the worst possible outcome for Republicans. If the entire law is upheld, then the GOP and the Romney camp get to run the fall campaign on the message that only electing a Republican president and Republican majorities capacious enough to achieve repeal will be sufficient to get rid of Obamacare. If the entire thing is struck down, then the work is done. But the mandate is the most unpopular portion of the law and if the Court strikes it down while leaving all of the popular components (read: the benefits — like prohibiting insurance denials based on pre-existing condtions or guaranteeing eligibility to be on your parents’ health insurance until the age of 26), it’s entirely possible — and perhaps likely — that the public opposition will be defanged while many of the most pernicious effects of the law remain.
  • One final thought: Regardless of whether he’s part of the majority opinion or the dissent, I sincerely hope that Justice Thomas uses this historic opportunity to write a separate opinion on Commerce Clause jurisprudence that can be called on by his proteges in years to come.
June 26th, 2012 at 8:22 pm
Last Chance for Predictions on ObamaCare Case

Okay, to all my fellow…er, my fellow Fellows of CFIF: Last chance to get in your updated predictions on how the Supreme Court will rule on ObamaCare.

I’ll see what you come up with before I reveal my hand (gee, isn’t that clever of me?) — but I WILL offer this outside-the-box scenario as a remote but not entirely-out-of-the-question possibility. To wit:

We could see a typical Kennedy “split the baby” sort of decision: the mandate unconstitutional, on narrow and tentative grounds, with a remand to lower courts to decipher some Delphic question from Kennedy about how best to separate the mandate from the rest of the law.

The good news — and this would be a stunner — is that I think there is a small chance that if Kennedy doesn’t just split the baby, but slices into about four pieces, then Justice Sotomayor might concur in part that “as applied,” the mandate is unconstitutional. If so, that would mean that while the end result could be quite a muddle and the size of the victory (in law, not politics) would be very small, the POLITICAL upshot would be huge in that even a small acknowledgement by an Obama appointee that the mandate went too far would take away some of the ability for Obama to bash the court as a campaign issue.

Granted, most people now think that Roberts, not Kennedy, will write the main decision, based on who has written what other decisions when, during this term. But it would be perfectly feasible for Roberts to write a plurality opinion rather than a majority one, while Kennedy wrote a concurrence with the narrow result of ruling this mandate unconstitutional (and Sotomayor joining in part) — so that the narrow result would have a majority, but the major reasoning would have only a plurality, with Kennedy’s concurrence actually being controlling in terms of what happens next (e.g. some sort of weird remand).

Of course, maybe somebody piped some bath salts into my room and I’m hallucinating. This is all too complicated by half. It’s probably just what happens when I/we have too much time to speculate.

On the other hand, the high court has done weird things like this before. With Kennedy in the mix, anything is possible.

October 4th, 2010 at 12:51 pm
U.S. Supreme Court is Back in Session

It’s the first Monday in October which means that the Supreme Court of the United States (SCOTUS) is back in session.  Uber-liberal constitutional law expert Erwin Chemerinsky is not celebrating the occasion.  Instead, he bemoans the conservative ‘take-over’ of the court and sites as evidence the fact that Republican presidents from Nixon to Bush II made a total of 12 appointments to SCOTUS while only two Democrat nominees made it onto the bench.  (Bill Clinton appointed Ruth Bader Ginsburg and Stephen Breyer, while Jimmy Carter was faced with no vacancies during his term.)

Chemerinsky, the dean of UC Irvine’s law school, singles out 4 of the 12 appointments (John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito) as proof of the conservative ascendency.  But for conservatives a success rate of 33% is hardly a victory; especially when considering that both of President Barack Obama’s SCOTUS appointments replaced Republican nominees, yet didn’t alter the conservative-liberal voting patterns.  Gerald Ford appointed John Paul Stevens, a man who ended his tenure as the leader o the court’s liberal bloc.  Bush I appointed David Souter, a justice who voted in lock-step with Stevens and the court’s other liberals.

True, Bush I gave us Thomas, and Reagan hit a home run with Scalia, but Reagan also put soul-crushing moderates like Sandra Day O’Connor and Anthony Kennedy on the bench; two people who repeatedly frustrated conservatives on issues across the political spectrum.  Ironically, at least to some, is the SCOTUS legacy of Bush II who made solid conservative appointments with Roberts and Alito.  That these two often team with Thomas and Scalia (and manage to cajole Kennedy to heed his better angels) is more the result of a historical accident than a carefully executed strategy.

Imagine the kind of country we could be enjoying had Republican presidents from Nixon to Bush I had a conservative justice success rate of 66% rather than 33%.  As it is, since at least the Eisenhower Administration (Earl Warren, William Brennan) liberals like Chemerinsky have benefited handsomely from liberal appointments by supposedly conservative GOP presidents.

July 24th, 2010 at 7:41 pm
Could Jim Webb Be the Next Daniel Patrick Moynihan?

Former Senator Daniel Patrick Moynihan (D-NY) entered the pathway of clear thinking statesmanship when he authored The Negro Family: The Case for National Action, a landmark study on the forces ripping apart the black family and with it, black society.  The study became known colloquially as The Moynihan Report, catapulting a little known LBJ aide into the serious conversations about national policy.

A similar moon shot might happen to Senator Jim Webb (D-VA) after publishing an article calling for the abolition of affirmative action programs.  Though the entire column should be read, here are words that should ring true to all Americans:

Where should we go from here? Beyond our continuing obligation to assist those African-Americans still in need, government-directed diversity programs should end.

Nondiscrimination laws should be applied equally among all citizens, including those who happen to be white. The need for inclusiveness in our society is undeniable and irreversible, both in our markets and in our communities. Our government should be in the business of enabling opportunity for all, not in picking winners. It can do so by ensuring that artificial distinctions such as race do not determine outcomes.

Memo to my fellow politicians: Drop the Procrustean policies and allow harmony to invade the public mindset. Fairness will happen, and bitterness will fade away.

Much like Moynihan’s salvo over the bow of LBJ’s ‘War on Poverty,’ Webb’s contribution to America’s race talks is unexpected.  Webb’s words also echo the color blind sentiments in Martin Luther King, Jr.’s “I Have a Dream” speech and Chief Justice John Roberts’ commonsense observation that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
If nothing else, may Eric “(America is) a nation of cowards (on race)” Holder is congratulating Senator Webb for manning up and offering his thoughts…

May 17th, 2010 at 8:45 pm
Kagan’s White House Paper Trail

What Supreme Court nominee Elena Kagan lacks in the way of academic writing, she (apparently) more than compensates for with her lawyerly output during her time in the Clinton White House Counsel’s Office.  Recalling that former President George W. Bush shared over 50,000 pages of material associated with now Chief Justice John Roberts’s time as a lawyer in the Reagan White House, Byron York of the Washington D.C. Examiner reports which way precedent points in divulging Kagan’s work product.

“There is now a precedent that a White House lawyer’s materials will be produced,” says Bradford Berenson, an associate counsel in the Bush White House. “I think it will be very difficult for the Obama administration, given everything they’ve said about transparency and openness, to withhold these documents.”

Before anyone starts salivating over the thought of reading thousands of legal memos, remember that the current Oval Office occupant is not inclined to share information.  Unlike President Bush, Obama can’t be bothered to take a single question from the press after signing the Freedom of the Press Act.

Constitutional controversy over executive privilege, anyone?

May 11th, 2010 at 9:29 pm
The Age of the Blank Slate
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Following up on Ashton’s excellent post yesterday, one of the most salient facts about President Obama’s new Supreme Court nominee, Elena Kagan, is her total lack of a track record. This is not to indict Ms. Kagan for her lack of judicial experience – more than a third of the justices in the Supreme Court’s history have come from outside what Patrick Leahy refers to as the “judicial monastery” (a phrase too sterling to have been coined by a U.S. Senator — at least in the era since Daniel Patrick Moynihan’s passing).

Rather the issue is — apart from Harvard Law’s ROTC scandal while she served as dean– that Kagan doesn’t seem to have an observable opinion on anything. As CNN and New Yorker legal analyst Jeffrey Toobin — a friend of Kagan’s since law school — observed upon news that she would be the nominee:

Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.

What Toobin regards as personal anecdotage, however, the New York Times’ always interesting (and often perplexing) David Brooks sees as pathological. As he says in the coda of today’s column:

What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess. Arguments are already being made for and against her nomination, but most of this is speculation because she has been too careful to let her actual positions leak out.

There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

As Ashton mentioned yesterday, the same criticism could be equally applied to the pre-presidential Obama. But this isn’t just the provenance of the left. John Roberts presented much the same sort of blank slate prior to his elevation to the Court. And those already clamoring for a Marco Rubio presidential bid are running the same risk.

Consent of the governed is a meaningless concept when the governed aren’t told what they’re consenting to. If the Kagan nomination is a further indication that we’re living in an age of empty political vessels, the country will be worse off for it.

March 11th, 2010 at 1:32 pm
Bush Still Classier than Obama

Say what you will about the 43rd president’s public speaking skills, machismo, or ideology, but what George W. Bush lacked in “nuance” and “polish” he compensated for richly with a statesman’s adherence to protocol.  Even though the Supreme Court repeatedly invalidated carefully crafted terrorism legislation that enjoyed broad majorities in Congress, Bush never took the low and easy road of public scolding.  Nor did he allow his subordinates.

Not so with his “post-partisan” successor.  In a sophomoric move that may permanently affect the public relationship between the president and members of the Supreme Court, President Barack Obama castigated a ruling extending free speech rights to associations like labor unions and corporations.  Not only did Associate Justice Samuel Alito react at the time, now Chief Justice John Roberts is speculating that perhaps justices shouldn’t attend future joint sessions of Congress.  If that happens, it will be one more example of Obama vulgarizing our politics.  (Another is his refusal to call members of Congress by their title of Representative or Senator knowing that they will still honor the tradition of calling him “Mr. President.”)

Maybe Bush 43 played up everyman pastimes like cutting mesquite trees and exercising too much for some people’s tastes.  But when you compare his quiet class both during and after his presidency to the current occupant’s constant whining and unceremonious behavior, it’s easy to see which person is a fully formed man.