Supreme Court Decision
Just finished reading all 190+ pages of the Supreme Court’s decision on Obamacare. It’s pretty fascinating.
Robert’s findings on the Commerce Clause and the mandate as a tax are amazing. Just… supremely compelling, amazing citing of sources, bordering on brilliant. I love his careful approach, his ability to parse things out and stay fair. Honestly, it’s really impressive.
His findings on the medicare funding clause, however, are a mess. They’re patently illogical on the face of it: his interpretation requires assuming that a stated goal means 100% expectation that you hit that goal, which is absurd. His argument rests on the fact that because the government had a “stated goa of 100% compliance” they assumed they’d hit that goal (despite the fact their own estimates told them they wouldn’t), and because of that, they knew no state would turn down the money, and because of THAT, it was coercive. He then says that the 5% of highway funds in South Dakota vs. Dole wasn’t too coercive, it was definitely on the safe side of the line, but that this is definitely not, and he doesn’t have to tell you where the line is. Okay.
Severability - the question of whether the remainder of the law still stands - isn’t much of an issue for him, because he kept the individual mandate, so all he’s cutting is the threat of removal of all mediacare funds if a state doesn’t comply. Which is weird, because he basically says it won’t have much of an effect. The whole law is orchestrated to all work together, so severability’s a big issue. But basically Roberts says even without the funding threat, most states will comply, so the law will probably work. Um. Okay. Not sure why that is somehow different but whatever.
Ginsberg’s partial dissent on the commerce clause is where my heart lies, and I wanted to agree with her, but she has a lot less to work with in terms of case history and examples, and it’s tough argument for her. She cites past examples of where the government compels us to do things instead of nothing (conscription, filing for taxes), but Roberts points out that those are applied through other clauses of the constitution, not the commerce clause, and they still don’t force us to spend money. We can only do that through taxes. And since he finds the mandate penalty to be a tax, that’s where it’s constitutional.
Ginsberg’s other partial dissent on the medicare penalty, though, is dead on. The moment you read it, Roberts’ protestations seem ridiculous. She points out several times that medicare has expanded in larger measure than this. Points out that this increase is only 0.8% and thus hardly extortionate. She points out that the medicare act explicitly warned states, in advance, that things might change - somehow, Roberts doesn’t seem to find this relevant. Finally, she points out that Roberts keeps calling it existing funding but that none of this is going down for 2 years, and funding levels change constantly by the US Government: there’s no real concept of existing funding here. That, in particular, seemed a good point.
I thought Scalia’s dissent was going to be hilariously awful but it’s not terribly strident or political. It’s logic on the commerce clause vs. taxes is patently weak compared to Roberts. I had read his argument something like 150 pages back and it still seemed fresh and readily-true in the face of Scalia’s objections. It’s light on precedent citing, but not terrible, though he really does play up the broccoli nonsense (which Ginsberg did an outstanding job of rejecting as absurd).
Scalia’s dissent on the medicare penalty is the weakest argument of them all in the whole ruling. It’s bordering on farcical. He, too, makes Roberts’ absurd claim of a “goal” being a statement of fact that you will succeed, turning the plain meaning of the word goal on its head. He does so several times to support many things, and it’s absurd. But it gets worse. For three reasons.
First, he sets up a whole scenario where a state rejects the act and its funding. Its citizens are then taxed by the federal government to support the plan in other states. This is legal and established (Arizona opted out of Medicare for 16 years). All well and good here. BUT THEN he says “if they then wanted to make the same plan they’d have to tax again and that would be too expensive.” That any state, ever, would opt out of a plan, pay for it, and then make the exact same plan and pay for it again is patently absurd. Doubly so, given our current political climate where almost any state opting out would be doing so to provide reduced care or no care.
Next, he completely ignores that the point of the legislation is to save money. He routinely talks abotu the plan only in costs, and makes no effort to factor in its money-saving aspects. This, actually, is a fault of Roberts’ findings, too, but here it’s even more absurd since he paints multiple giant hypotheticals around states opting out then completely replicating exactly the same plan. If they’d pay the costs in their separate plan, surely some of the benefits would be accrued as well.
But it’s the third reason that really gets me and is so absurd. Taking this analogy further into the world of hypotheticals, Scalia says (and I am paraphrasing) “what if the federal government made a plan where they completely took over education in every way, from uniforms to zoning to architecture to teacher pay to course load and books opted to pay for it, but let states opt out? It’d be too expensive to opt out because they’d be taxed heavily, and then have to be taxed again at the state level for whatever plan they wanted instead.” Then! Then! Right after that he says “this health care plan is the biggest plan we can ever imagine so it HAS to be on the side of being too much.” RIGHT AFTER HE JUST IMAGINED A BIGGER PLAN! WTF. It’s preposterous.
Severability is a formality for Scalia - he believed the mandate should have been struck, so of course the rest of the plan wouldn’t really work. If it HAD been struck, I would have liked to see the rest of the law still stand, but i can see his argument and he cites ample precedent (though there are a couple logical so-sos in there too).
All in all, it was a fascinating read. It makes me want to read the Citizen’s United verdict. I got the sense the court is far less partisan than I had thought. But then again, you get the distinct sense that past precedent is a mess and you can pretty much pull out whatever you want to support your arguments. It’s interesting to see them cite 18th century dictionaries, New York Times articles, websites, and private letters of our founders in addition to past cases and government statistics.
Also, you can read the whole thing in one charge on the iPad, which is nice.