Salon.com > Andrew Koppelman

Roberts’ crafty victory

Thu, 05 Jul 2012 18:30:00 +0000

In the recent, extraordinary leak about the internal deliberations of the Supreme Court in the healthcare case, Jan Crawford reports (while leaving ambiguous whether this comes from her leakers) that Chief Justice Roberts was worried about the lack of existing doctrinal support in the challengers’ case. “To strike down the mandate as exceeding the Commerce Clause, the court would have to craft a new theory, which could have opened it up to criticism that it reached out to declare the president's healthcare law unconstitutional. Roberts was willing to draw that line, but in a way that decided future cases, and not the massive healthcare case.”

Professor John Yoo has told the New York Times that, if the story is true, Roberts has misunderstood his job. “His job is not to finesse the place of the Supreme Court in the political world, in which he and most justices are rank amateurs, but to get the Constitution right first and then defend the institution second.” But this occludes the complexities with which Roberts was faced. New constitutional constructions, of the kind that undergirded the challenge to the mandate, raise deep issues about the appropriate role of the judiciary – issues that go far beyond the healthcare case. Roberts was right to be cautious.

Uninsured still being screwed

Mon, 02 Jul 2012 18:14:00 +0000

The Supreme Court struck down the provision in the Affordable Care Act that required states to accept an expansion of Medicaid coverage — presently available to unemployed parents who make, on average, less than 37 percent of the federal poverty level; henceforth to be raised to 133 percent of the poverty level — or lose all their Medicaid funds. Now Republican governors like Florida’s Rick Scott are deciding whether to reject the new Medicaid funding. Republican representatives are already urging their home-state governors to turn down the money.

Rep. Phil Gingrey of Georgia, when asked what the 500,000 people in his state who would thus be deprived of insurance are supposed to do, simply said that those at that income level have “got a little bit more money in their pocket than those who are at 100 percent of the federal poverty level.” A great comfort if they get cancer. (Gingrey actually misstates the preexisting rules in Georgia, where working parents are eligible only if their incomes do not exceed 50 percent of the poverty level, or about $9,500 for a family of three, while adults without dependent children are not eligible at any income level.)

Anthony Kennedy joins the radicals

Fri, 29 Jun 2012 12:22:00 +0000

In yesterday’s column, I discussed Chief Justice John Roberts’ decision upholding (almost all of) the Affordable Care Act. Now I’d like to discuss the world that almost came into existence – the vision of the four dissenters, Justices Scalia, Kennedy, Thomas and Alito, who wanted to throw out the entire statute. Roberts’ opinion has serious weaknesses, though the result was better than many expected. The dissenters, on the other hand, exhibited the highest virtue of any subordinate: They made the boss look good. With respect to the mandate, the Medicaid restriction, and the severability question, they devised arguments even weaker than those of the chief, proposing newly minted constitutional doctrines that make little internal sense and appear explicable only by a determination to eradicate every bit of a law that they just don’t like.

Terrible arguments prevail!

Thu, 28 Jun 2012 20:26:00 +0000

This morning, I was prepared to write about a humanitarian catastrophe – 30 million people deprived of their health insurance, chaos as the Supreme Court smashed a statutory scheme that had already become tightly integrated with a fifth of the American economy, all on the basis of terrible legal arguments. Terrible arguments did carry the day, but the damage is relatively minimal. So I’m just left to fret, in typical law professor fashion, about a poorly reasoned Supreme Court decision that is going to confuse courts in future cases. Chief Justice John Roberts wrote a lousy opinion, but on the big issues, he didn’t do much damage. (How much will depend on how badly Republican governors are willing to hurt the working poor in their own states in order to signal their disdain for Obama.)

“Tough luck” becomes law

Wed, 27 Jun 2012 14:34:00 +0000

I argued a few days ago that the constitutional challenge to the Affordable Care Act’s insurance mandate reflects the anarchist-libertarian proclivities of its principal theorist, Randy Barnett. But this invites an obvious objection. The challenge to the mandate is a free-standing argument. It does not expressly rely on its author’s other views. Why think that there is any relation between the two?

One important bit of evidence comes from the questions that three justices saw fit to ask at the oral argument in March. Those questions each presumed that something like Barnett’s philosophical views can be read into the Constitution – and that there is a serious danger that they will decide this case by relying on those views. That is very bad news for anyone who is neither healthy nor rich.

At one point, Solicitor General Donald Verrilli argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick.

Justice Antonin Scalia responded: “Well, don’t obligate yourself to that.”

Obamacare hater No. 1

Wed, 20 Jun 2012 19:43:00 +0000

As we await the Supreme Court’s decision on the constitutional challenge to the Affordable Care Act’s health insurance mandate – it will almost certainly come down on Monday, the last day of the term – it is worth reflecting on the underlying philosophy that has taken us to this point.

The challenge is most remarkable for its sense of priorities. Constraining government power, through newly crafted rules that were unheard of when the law was passed, matters more than millions of people without health insurance.

Why would it make sense to think about government power that way? The philosophical work of Randy Barnett, who essentially invented the constitutional objection, provides a valuable window into the assumptions behind the challenge. His 1998 book, "The Structure of Liberty," is an ambitious effort to work out libertarian principles of law from the ground up. These are justified on rule consequentialist grounds. He claims that his principles of justice must be respected if we are to achieve happiness, peace and prosperity.

Origins of a healthcare lie

Thu, 31 May 2012 16:38:00 +0000

Professor Michael McConnell, the distinguished constitutional theorist, has weighed in, to my knowledge for the first time, on the healthcare reform case pending in the Supreme Court. He writes in a recent Wall Street Journal op-ed that “[t]he drafters and defenders of the health-care law have only themselves to blame for this mess.” This is because “they did not take seriously their obligation to legislate within the limits set by the Constitution.”

Prof. McConnell's essay includes some uncharacteristically sloppy statements, as Sam Bagenstos points out. But he asks a good question: Why didn’t the Democrats see this trouble coming?

I’m now working on a book on the constitutional objections to the Affordable Care Act, which will be published in the spring of 2013 by Oxford, and I’ve been researching this very question. What I’ve found may be surprising.

The constitutional limits that the bill supposedly disregarded could not have been anticipated because they did not exist while the bill was being written. They were invented only in the fall of 2009, quite late in the legislative process.

The Court’s innocent victims

Fri, 30 Mar 2012 15:28:00 +0000

So what did this week’s oral arguments in the Supreme Court tell us about the constitutionality of the Affordable Care Act? There are two ways of predicting what the Supreme Court will do. One is legal analysis. You read the Court’s decisions, see what broad principles the judges have endorsed, and then apply those principles to the case before you. But there is a second approach, which I’ll call Kremlinology, after the old practice of analysts trying to guess what the Central Committee of the Soviet Union was up to. This attempts to piece together any evidence one can find of the whims of those in power, in order to intelligently guess how that power will be used.

One needs to keep that distinction in mind when one reads CNN legal analyst Jeffrey Toobin’s now-notorious statement Tuesday on CNN: “This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong. I think this law is in grave, grave trouble.”

A brutal day for healthcare

Thu, 29 Mar 2012 00:00:00 +0000

Wednesday's Supreme Court arguments on the Affordable Care Act involved complex technical issues of “severability” and “conditional federal spending,” so let’s get right to the core issue. The judges are being asked to take away health insurance from millions of people. And judging from what they said, they just might do it. Constitutional arguments that were clear howlers a few days ago now have a chance at becoming the law of the land.

The severability issue presupposes that the Court is going to accept the stupid arguments against the mandate. If it does, the Court must decide how much of the rest of the statute has to be struck down as well? The answer depends on how much of it Congress would have passed had it known it could not enact the mandate. The Obama administration claims that if the Court strikes down the mandate that individuals purchase insurance, it must also invalidate the prohibition against insurers discriminating against people with preexisting conditions, and the law’s limitations on how insurers can set rates. Its opponents want to throw out the whole thing. The Court had to appoint a lawyer itself in order to hear arguments that the rest of the law could work without the mandate, because there are other mechanisms, such as subsidies, to encourage young, healthy people to buy insurance.

Craziness prevails in Obamacare hearings

Tue, 27 Mar 2012 21:47:00 +0000

The long-awaited oral argument on the merits in the challenge to the Affordable Care Act makes depressing reading, because so many judges seem to be ready to buy such silly arguments – arguments whose silliness was pointed out on the spot, sometimes even conceded by the challengers, but which nonetheless seemed to sometimes move Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito. (Justice Thomas, who characteristically didn’t say a word, is a sure vote to strike down the law.)

A lot of arguments have been made against the mandate, but we can roughly group them into two broad categories, which I’ll call 1) No Limits and 2) I Am a Rock. No Limits claims that if the mandate is permitted, there will be no limitations on federal power. I Am a Rock claims that people have a constitutional right to some safe harbor where they and (more important) their money are immune from all federal regulation.

The No Limits argument was succinctly stated by Justice Kennedy: “Can you create commerce in order to regulate it?” He worried that “this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.” Roberts worried that government could force you to buy a cellphone; Alito, burial services; Scalia, broccoli.

The Supreme Court just wants to be popular

Mon, 26 Mar 2012 22:03:00 +0000

Six hours. It’s remarkable for the Supreme Court to allow that much time for argument of a single case. But then, it’s remarkable that the challenge to the Patient Protection and Affordable Care Act of 2010 (ACA for short) is in the Supreme Court at all. Constitutional claims that would have seemed obviously ridiculous a couple of years ago – and, I expect, will be deemed obviously ridiculous a couple of years from now – are treated with solemn gravity by the Court. The justices are evidently looking forward to resolving these claims.

And that’s why it is unlikely that the Court will accept Monday’s invitation to throw the whole case out on jurisdictional grounds, without ever reaching the merits. Before a court can hear any case, it has to decide whether it has the authority to do it. The central challenge in the case is to the ACA’s “mandate,” which deducts a penalty from the tax refunds of persons who go without health insurance. Monday morning’s oral argument in the Court focused on an obscure statute called the Anti-Injunction Act of 1867, which states that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” Several lower court judges have concluded that this language means no one can challenge the ACA until they have paid the penalty. That would delay the litigation for years, since no penalties will be collected until 2015.

Previewing the Supreme Court’s healthcare reform hearings

Mon, 26 Mar 2012 14:00:00 +0000

Starting today, the Supreme Court will hear six hours of oral argument on the constitutionality of President Obama’s healthcare reform, the Patient Protection and Affordable Care Act of 2010. For those who haven’t been paying attention: The crux of the case is the act’s “mandate,” which deducts a penalty from the tax refunds of persons who go without health insurance. The states and individuals challenging the act argue that the mandate exceeds Congress’s power to regulate commerce.

The stakes are huge. Some of the arguments that the challengers are making would call into question the entire modern administrative state. Recent years have seen many bitterly divided, 5-4 conservative activist decisions overturning social welfare legislation – banning affirmative action, the Violence Against Women Act, cutting back on the reach of the Voting Rights Act – but this would be the biggest of all. On the other hand, because only Clarence Thomas has endorsed a radical reshaping of the law like the one ACA's challengers argue for, it is entirely possible that the bill will be upheld by an 8-1 margin.