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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Friday, June 29, 2012

My Favorite Affordable Care Act Post

Balkinization:  A Massive Victory for Liberalism, by Joseph R. Fishkin (Texas):

The decision was the most important court victory for liberalism in my lifetime.  For all that Chief Justice Roberts gave conservative movement activists in his compromise ruling yesterday—and he gave them a lot—he gave liberals something even more precious. ...

by leaving undisturbed the functional provision of the law—5000A(b), which says you have to pay a penalty on your income taxes if you don’t have insurance—the Chief Justice hands supporters of Obamacare an essentially complete policy victory.

One way to understand this compromise, already filtering out into the blogosphere, is that Roberts pulled a Marbury, giving in on the outcome in this specific case but claiming a longer-term victory on the level of constitutional doctrine and high politics.  This view seems to me mistaken.  The specific new doctrine announced yesterday—the activity/inactivity distinction that yesterday’s opinion created out of whole cloth—has little future utility.  There are simply not all that many times that the federal government has ever or will ever want to regulate inactivity (and anyway, from now on, lawmakers are on notice that they should use the taxing power).  The Commerce Clause language certainly moves the needle back from Raich in the direction of Lopez, but that is a subtle shift of interest only to constitutional lawyers.  (It’s not even clear that the Commerce Clause language is formally a holding; I think there is a strong case that it is all dicta, since it is not necessary to reach any part of the Court’s result.)  The spending clause holding could well have more substantial doctrinal reverberations, but that is very hard to predict.

Stepping back from constitutional doctrine, what happened yesterday?  Basically, one really important thing happened.  The Affordable Care Act was upheld essentially in its entirety.  This means we are headed for a long-term change in the basic social bargain in the United States.  Once this law has been in place a few years, it will simply become politically impossible to go back to a world in which large swaths of the population were regularly denied access to health insurance because of pre-existing conditions, as they are today.  The glib libertarian vision of young men (and it is always young men) free to go without health insurance (and freeload if they get sick, of course) will gradually lose its grip on the public consciousness.  Americans of the future will simply come to expect that they are going to have health insurance—either they will literally have insurance coverage, or else they will be paying a tax that entitles them to a de facto catastrophic policy in the sense that if they get really sick, they can always buy insurance then, and cannot be turned away.  This will be part of our social compact.

Of course, some people will disagree with Obamacare for decades to come; I’m sure people will fight Obamacare for as long as people fought Social Security and Medicare.  But over time these things become part of the firmament.  They stop being actively politically contested.  They become background facts of politics, assumptions most of us basically share.  Yesterday’s decision sets that process in motion, and I don’t think it can be stopped.  That is why, despite many doctrinal bones the Chief threw to the likes of Randy Barnett, the Federalist Society, and the Tea Party, despite all the foundations this decision tried to lay down for future limits on federal power, the decision was simply a massive victory both for President Obama and for American liberalism.

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Fishkin's views illustrate two things: (1) academic tenure warps the human mind, removing the incumbent from everyday life; and (2) parents today will inevitably get screwed, despite their struggles for years to pay for their kids' college educations, because screwballs like Fishkin will rob the gullible young of their birthright.

Posted by: Jake | Jun 29, 2012 5:34:17 PM

Fishkin is, like so many professors, incredibly uneducated meaning naive and immune to a relationship with reality. It is the ultimate childish dream to think we can just mandate X and shazam we will have X. In truth, it always becomes a nightmare. The examples are too numerous to list. And as his dream crumbles over the next few years, as it inevitably will, watch the Fishkins and Dworkins of the world create one excuse after another. They are certainly experts in that. As are all children.

Posted by: jwdeming | Jun 29, 2012 9:37:38 PM

That "favorite post" of Paul's applauds the upholding of a major act as part of the "fundamental change" in America--an act which was passed on Christmas Eve without Congress being allowed to read or understand the bill, through corrupt back-room deals, when the majority of Americans opposed it, represents a double-cross to Americans by claiming that it contained no taxes--and, it wouldn't have passed with tax wording, and approved by a Supreme Court Chief Justice who was bullied by the political President just like FDR. Every point made in the post is misleading and/or mistates the positions of opponents.

If this is Paul's favorite post, then he's missed many others that actually are reasonable and honest. What I read into the post is that situational ethics is okay as long as you get what you want. Those poor law students, indeed.

Posted by: Woody | Jun 29, 2012 10:29:21 PM

The view of a law professor who believes the Constitution should be honored:

Law Professor Says John Roberts Should Resign Over Obamacare Ruling (Segment Starts @ 2:40 on Video)

Law professor John Eastman [Chapman University] also found the ruling somewhat questionable, stating that the role of the Supreme Court is to tell Congress whether they have or don’t have the authority to do something. And for Roberts to do what he did and find and alternative way to keep it constitutional, Eastman concluded that the chief justice needs to resign.

“If the assumption is right, that he thinks was unconstitutional but found a way to uphold it to preserve the integrity of the court, then he really ought to resign because it proves he doesn’t have the judicial fortitude to do the job that he’s been chosen to do.”

Ingraham observed that Roberts could have just as easily made a last-minute turnaround in where he came down on the case, perhaps to preserve the integrity of the Supreme Court and ensure a bipartisan consensus over the legislation. Eastman suggested that Roberts was influenced by “political pressure,” which is exactly the reason the justices are appointed, not elected.

Posted by: Woody | Jun 29, 2012 10:59:22 PM

What is the point of a comment like this? Everyone knows who won the case. It adds nothing in terms of understanding, and unfortunately confirms the view that many people are interested only in results and not in the long-term health (so to speak) of law. It tells you, in a few sentences, what's wrong with law schools.

Posted by: michael livingston | Jun 30, 2012 3:08:09 AM

The way I see it is that I don't know if I will have the luxury of posting comments on this blog anymore due to the following:

If I disagree with the Author of the post and congress and the president disagree with my disagreement, I am fully free to disagree but I can be penalized (taxed) for my disagreement.

But, if I disagree with the author of the disagreeing comments, I am fully free to disagree with the author of such disagreeing comments but if congress and the president disagree with my disagreeing with the author of the disagreeing comments, then I can be penalized (taxed) for my disagreeing with such disagreeing author.

Individual liberties have been dealt a huge blow. I will now have to ensure that each candidate I vote for agrees that he/she will not penalize me for drinking beer, or singing in the shower, mowing my lawn without catching the grass clippings, (fill in the blank of an activity that gives you your own personal feeling of freedom), etc.

Posted by: DeductionSeeker | Jun 30, 2012 6:23:41 AM

I thought the handling of the tax part was pretty unremarkable. The Supremes have long claimed the power to look past the labels and determine whether a tax was a penalty and vice versa. This was in accord with those precedents. The Anti-Injunction Act part was pretty adroit; The Act closes the door to the courhouse to otherwise meritorious claims, so it would be wrong to give the act a very broad reading. Look at Hibbs v. Winn from a couple of years ago. The congress didn't call it a tax, so it would be wrong to think that the Anti-Injunction Act applied by analogy.

The court threw the Tea Party some pretty big bones. The Commerce Clause was returned to its original text that the "Congress shall regulate those who, with specific intent, engage in interstate commerce."

"Keep the government's hands off my Medicaid!" went from a snide joke about the Tea Party to constitutional doctrine overnight when the court as part of its original intent approach held that the states had an entitlement to their entitlements, niggly "progressive" stuff like the spending clause notwithstanding.

Going forward this will be a political boon for the Tea Party. They can remind the people that President Obama imposed taxes in exchange for his universal health care, while they were able to pass the Part D Medicare drug benefit which is nearly as expensive as Obamacare, without raising taxes one penny.

Posted by: jimharper | Jul 1, 2012 6:05:32 PM

I do think Fishkin captures the import-- a huge win for liberals since their policy was upheld, and meaningless scraps for a few conservative/libertarian ConLaw professors who manage to see a Commerce Clause restriction (an unlikely reading).

I won't say it's my favorite post until I check in with The Onion, but Fishkin nails the reporting.

Posted by: Yo Gabba Gabba | Jul 2, 2012 11:22:08 AM

Fishkin is correct in the short run.

Once this law has been in place a few years, it will simply become politically impossible to go back to a world in which large swaths of the population were regularly denied access to health insurance because of pre-existing conditions, as they are today.

In a few years the bond market will force the US government to balance its budget. Then the "politically impossible" will become economically inevitable. With no one to bail us out, our crisis will be much worse than the one in Greece. As government reneges on all its promises, the whole universal health insurance effort will then be seen as the fantasy it was.

The baby boom produced a temporary imbalance between taxpayers and tax consumers. That imbalance is now reversing. The initial imbalance was like the negative tide that precedes a tsunami: It's a warning to the wise.

Progressives should have secured their core programs by limiting eligibility to the truly needy. Instead, progressives could not resist staking out the new territory on the exposed seabed for a new building called Universal Health Insurance.

Health care spending will be the first casualty of the incoming fiscal wave. Then there will be a huge political battle in which middle-income seniors will crowd out the truly needy at the public trough. By the time we have the resources needed to rebuild our government programs, things will be an awful mess.

Government promises will be seen as inherently unreliable for the next 40 years. Progressives will have been too clever for their own good.

Posted by: AMTbuff | Jul 5, 2012 9:50:37 AM