ACA (a.k.a. Obamacare) Upheld

[Fern]

BTW Randy Barnett is the one who manufactured the "action/inaction" theory right around the passage of Obamacare. (Later in the litigation it was euphemized as "compelling individuals who are doing nothing", when the challengers realized even the conservative judges in lower court did not buy the "action/inaction" distinction)

Why this action/inaction distinction is a meaningless formalism invented for the sole purpose of striking down the ACA, is an interesting subject. I don't mind discussing it if anyone is interested.

You are more familiar than I regarding this. You've remarked about it several times here. As for me, I'm ambivalent about the whole "action/inaction" line of argument.

One one hand I remain persuaded that the Individual Mandate is a penalty for not having HI. That's exactly how Congress wrote it and the record reflects that was their clear intention. (IMO, the later is quite important. The courts have always considered Congress's intent as an important factor in analyzing laws they passed. But not this time, at least not Roberts.)

One of my problems with the "action/inaction" theory is that the majority of people with HI did not actually purchase it; their employer or spouse's employer did. So, it is neither by action or inaction that they are penalized or not. The penalty rests firmly upon whether you have HI, no more no less.

OTOH, the govt's main argument relied upon the Commerce Clause and that generally means either selling or buying, not ownership or 'having" something. I suppose that may bring the action/inaction theory into play: Can the govt compel you to some action - engaging in commerce - or do we have the right to 'inaction'?

And I don't think that moving the discussion away from the CC and over to taxation does anything to elevate it's importance; in fact it probably lessens it.

But I do admit it's importance in the ruling as regards the limitation of the CC, even if I think in this case it was mostly misplaced. (The whole 'you cannot be forced to engage in commerce so that Congress may regulate it'.)

Fern

 

[Fern]

Conservatives feel a sense of betrayal. They feel that Roberts changed his mind for the wrong reasons.

I think the above is of great importance.

Now, until Roberts fully explains himself we are left with speculation as to the reason. There are theories that I'm aware of: (1) He wanted to 'save' the reputation of the SCOTUS and/or (2) he feels there is some responsibility on behalf of the court to find a way to Constitutionally justify what Congress has passed.

Neither of those ideals is repugnant in-and-of-itself. But from my (conservative) perspective they are objectionable when used in considering the constitutionality of a bill. When introduced both lead to subjectivity, and away from objectivity. This is particularly so for the 1st possibility. Roberts himself mentions such objectivity when he notes that it is not the SCOTUS's concern as to whether some law is good policy or not, but merely (yet importantly) whether is it constitutional. Here, as in other areas of his ruling, I find his position inherently self-contradictory. He eschews the subjectivity of whether policy is good or not, but embraces it when considering if a certain ruling will enhance or diminish respect for the court. When I read his portion of the opinion there seemed to many examples of such self-contradictory logic. Struck me as the most poorly reasoned opinion I have ever seen from the SCOTUS.

Fern

 

[shadow9d9]

I think the above is of great importance.

Now, until Roberts fully explains himself we are left with speculation as to the reason. There are theories that I'm aware of: (1) He wanted to 'save' the reputation of the SCOTUS and/or (2) he feels there is some responsibility on behalf of the court to find a way to Constitutionally justify what Congress has passed.

Neither of those ideals is repugnant in-and-of-itself. But from my (conservative) perspective they are objectionable when used in considering the constitutionality of a bill. When introduced both lead to subjectivity, and away from objectivity. This is particularly so for the 1st possibility. Roberts himself mentions such objectivity when he notes that it is not the SCOTUS's concern as to whether some law is good policy or not, but merely (yet importantly) whether is it constitutional. Here, as in other areas of his ruling, I find his position inherently self-contradictory. He eschews the subjectivity of whether policy is good or not, but embraces it when considering if a certain ruling will enhance or diminish respect for the court. When I read his portion of the opinion there seemed to many examples of such self-contradictory logic. Struck me as the most poorly reasoned opinion I have ever seen from the SCOTUS.

Fern

I'm pretty sure Clarence Thomas, with his wife full of bribes makes for a much worse "opinion."

 

[lopri]

Fern is right. Roberts' opinion is somewhat contradictory. Thomas is by far the most consistent justice on the SCOTUS. (Although I don't think he writes opinions himself )

Roberts writes that government cannot regulate inactivity using its Commers Clause power. But alternatively, government has always used its taxking power to regulate behaviors and raise the revenue. Many taxes do both (Fern must know a lot about this), and it's what Obamacare does. It merely imposes taxes on those who forgo health insurance. So you have a choice: Maintain an insurance policy or pay tax.

But wait! Doesn't that sound like action/inaction? You can forgo an insurance and pay tax (inaction), or you can purchase and maintain an insrance (action) What happened to "Government can't regulate inactivity?" You're effectively being taxed for your inactivity!

You see, the biggest problem of action/inaction is that it elevates forms over functions. I am talking about this in the context of law and the Constitution, not in a philosophical or metaphysical sense.

Fern, I would like to convince you on this matter without so much words but everything seems to come out of my head all at once and I can't seem to write in a coherent manner. I will try to organize my thought in a later post, but for now let me say this.

- When it comes to commerce clause power, I believe (and many also did/do) substance/functions matter much more than forms/technicalities.
- Everyone agrees that Congress can enact national health care system, a la single-payer. And it'd be constitutional under the Commerce Clause.
- Compared to such a system, Obamacare is much more modest. Under Obamacare, government cannot exert as much power as it would under a single-payer system.

If you accept this premise, which I think is not too controversial, then the question becomes: How can a system that gives the government almost all power (single-payer) be constitutional, yet a system the government has much less control over (Obamacare) is an impermissible expansion of federal power?

The explanation comes, from the opponents' points, not from the constitution or the court's precedents, but from a libertarian principle. I don't dismiss their claim willy-nilly. Indeed, our Constitution has a libertarian tinge. Heck, I consider myself slightly libertarian-leaning as well. But despite the libertarian tinge, the Constitution is not a Libertarian Manifesto.

And even if you give them that ground (The Constitution is libertarian), the activity/inactivity distinction is an absurd and an untenable line to draw for many reasons. I will try to expound on it in my next post.

 

[lopri]

P.S. I said above I "believed" substance matters when engaging in a Commerce Clause analysis, I was not talking about some blind faith. It is a principle established by the great chief justice Marshall in McCulloch v. Maryland, and re-affirmed in Wickard v. Filburn in 20th century.

The chief justice marshall recognized that the Commerce Clause power is what binds us as a "union," and explained what the Commerce Clause means.

McCulloch v. Maryland