Thursday, June 28, 2012

SCOTUS: Chewbacca Is a Wookie.

I don't want to be a downer or anything, because in some ways the Court and the Nation will be better for what was decided in the Obamacare case (NFIB v. Sebelius).  More people will have health care, and health care will be a bit better.  That's good.  CJ Roberts also proved that he is not simply a mouthpiece for whatever argument Fox News is giving on the law, but is a CJ with the strategic genius so many have claimed he has.

It took a great deal of finesse to write this opinion, and to manage to move jurisprudence to the right, generally, while seeming to be a centrist or pragmatist, specifically.

BUT there are two pretty bad parts of the decision, from a policy standpoint.

First, the part of the Affordable Care Act that I cared the most about was seriously undermined by Roberts, with the help of Justices Breyer and Kagan.  The expansion of Medicaid was the only part of this law that was legitimately liberal.  The rest of the law is moderate or "good government" stuff - with the exception of the individual mandate, which is conservative.  Yes, conservative.

And the Commerce Clause argument that Justice Roberts makes (and Scalia, Kennedy, Thomas, & Alito agree with) is stupid, and will be a problem moving forward - as it is a serious step backwards in Commerce Clause jurisdiction for Congress.

On the Medicaid decision:  There is a good legal precedent for finding the way Roberts did on what Congress can do to yank money back from states based on the behavior it wants states to exhibit going forward.  Congress can do that with money that is new (not promised to states already), but they cannot take away money that has already been technically granted to states to force them to do what Congress wants.  There is probably a way that the law could have been drafted to avoid this problem, but for right now, it's a loss and I'm sad about it.  I will say this: there will be tremendous political pressure on governors to implement the Medicaid expansion.  There may be some serious pressure not to implement it, too.  It will definitely matter to low- and moderate-income people in every state which way the state goes.

On the Commerce Clause reshuffle:  Two things -

1. The Commerce Clause is important.  If you go back to our Con Law summary you will see that the Commerce Clause is what makes a whole lot of the work that Congress does constitutional.  The Commerce Clause is very important to your every day life, whether you know it or not.  So when Roberts changes the threshold for what Congress can do here, placing new limits on what is considered commerce, it matters.

2. This part of the decision is total crap.  CJ Roberts says that A) the Commerce Clause is expansive.  B) Heath care and the uninsured clearly make a large aggregate impact on interstate commerce.  BUT 3) It is novel to use the clause to force people into commerce.  AND 4) That because the Constitution uses "regulate" rather than "raise," "support," or "provide," as the relevant verb, the Framers did not intend for Congress to create commerce.  Which is some pretty interesting parsing, given the Court's history on the Commerce Clause.  For the record: this indicates that CJ Roberts is one of the Justices who would like to find ways to rein in the "expansive" use of the Commerce Clause.

So because people don't have insurance they are not engaging in commerce?  What?  The uninsured have a daily, financial impact on all of us.  They cost us a ton of money in insurance premiums, physicians' fees, and hospital fees.  Some of them make a decision to do that - to not pay for insurance and rely on rest of society to cover their costs - at the most expensive point (and the most deadly, if that matters to us - it does to me).  And so just because they are not actively putting their own money on the table, it's a bit of a farce to say they are not engaged in commerce.  And to say that by not having insurance, people get to avoid interstate commerce?  That's crap.

Pardon me a legal/South Park joke here: Chewbacca is a Wookie...  It Does Not Make Sense.

I understand why CJ Roberts wants to make this move, but it's kind of closing the barn doors after the horses were let out, in a Commerce Clause sense.

I actually think Roberts is right that the "penalty" is a tax, and all that's fine.  I assume that the reason the President bothered to argue that it isn't a tax is because, like Rs, he would rather use another term when he supports raising taxes.  Penalty is a nice term, it sounds like it's punishment for bad behavior - and in this case, it is.  But why not call it a sin tax, Mr. President?

More tomorrow, on the political ramifications, but for now, I leave you with The Chewbacca Defense.

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