SCOTUS to US: “Look, We’re Politically Neutral!”

Four days after the historic health law decision, and news outlets have already moved on to speculations about winners and losers, the next political battlegrounds against the law, and the impending fall of Medicaid (and why it won’t happen).

However, let’s backtrack a bit; for those of you who didn’t rush to download the 193-page decision as soon as it was available, here are the take-away points (as well as political points):

  • The individual mandate does not regulate existing commerce, but instead compels individuals to become active in commerce. In this manner, it is NOT constitutional under the Commerce Clause. (+1 Republicans) This is likely what caused a number of news outlets to erroneously report that SCOTUS had struck down the law, causing mass confusion.
  • However, the mandate is functionally equivalent to a tax. Therefore, it IS constitutional under Congress’ power to tax. (+1 Democrats) This is, of course, in spite of the fact that a few paragraphs up, the Justices had just rejected the applicability of the Anti-Injunction Act (which prevents a ruling on taxes before they are collected) because “the Affordable Care Act describes the payment as a ‘penalty,’ not a ‘tax.’”
  • The Medicaid expansion clause of the ACA (Huh? This was an issue?) is NOT constitutional despite the federal government’s offer to pay for 90-100% of the expansion, because the threat to withdraw Medicaid funding from states that fail to comply becomes unreasonably coercive. (+1 Republicans)
  • However, this “constitutional violation is fully remedied” as long as the government does not execute said threat. (+1 Democrats)
  • Justice Kennedy, the expected swing vote, sided with the Conservatives in a rather scathing accusation of “vast judicial overreaching” (+1 Republicans). Chief Justice Roberts, long believed to be likely to side with the conservatives unless Kennedy swung liberal, actually turned out to be the key vote in upholding the law (+1 Democrats).

The whole decision reads like a blow-by-blow boxing match, with almost equal attention given to both sides of the political aisle. Particularly surprising was the convoluted method of justifying the mandate, validating conservatives’ concerns about regulating so-called “economic non-activity” while in effect delivering a victory to Obama. Perhaps Obama’s warning of “judicial activism” three months ago was hanging rather heavily over their heads.

The fact that the Justices couldn’t tell the difference between health insurance and broccoli means one of two things:

  1. They actually didn’t understand Solicitor General Verrilli’s argument (which is not unimaginable, given his oh-so-impressive eloquence). This is the same argument made by many economists, that a mandate to purchase insurance isn’t compelling people to purchase a good, but rather regulating a way to pay for health care, which everyone is already in the market for. As Cornell University economic professor Robert H. frank writes, “[the Justices’] interpretation will strike many economists as a misreading of the mandate’s purpose. It isn’t that people should buy health insurance because it would be good for them. Rather, failure to do so would cause significant harm to others.”
  2. They were throwing a political bone to the Republicans.

Given the convoluted rationale for the ruling on the health law, including a number of arguments that seem to fly in the face of the expectations of experts, I am led to believe that here is a case where the Justices tried everything in their power to maintain an image of political neutrality for the court. As Santa Clara University law professor Bradley Joondeph stated, “The court avoided, despite an enormous amount of pressure to invalidate this law, staining itself as excessively partisan.”

Which, ironically, reveals just how cognizant of political pressures the court actually is.


The Supreme Court Decision: A Birthday Gift for Rousseau?

Tomorrow is the day that political pundits, news media outlets, and most of the general public have been anxiously waiting for, the day when Obama’s landmark legislative accomplishment could either be validated or razed to the ground. Perhaps less known, tomorrow also happens to be the 300th birthday of Jean-Jacques Rousseau, whose writings on political philosophy are strikingly relevant to tomorrow’s decision.

Prof. Frederick Watkins provides an insightful overview of Rousseau’s philosophies here. The crux of Rousseau’s theory on the social contract can be summarized as such:

According to Rousseau, humans in presociety times was neither brutish (a la Hobbes) nor noble, but simply operating by the sense of self-preservation, and never interacting enough with other humans to need social morals. The increasing concentration of the population and the development of society requires humans to bond together and form a social contract, complete with rules for governance by which all agree to live.

In the society-gone-wrong Rousseau scenario, the dominance of private interests and increasing economic inequality allows the rich and powerful to usurp governance, resulting in a populace hoodwinked into thinking it’s free but actually serving the wishes of the elite. “Man is born free; and everywhere he is in chains.” However, in the ideal Rousseau scenario, civic-minded individuals set aside their self-interest and adopt a General Will, making political decisions that improve the general societal welfare, which they then agree to abide by. As his (in?)famous quote goes, only then can man “force himself to be free.”

The distinction that saves Rousseau’s line of reasoning from tyranny of the majority is his distinction between an individual’s “particular will” and society’s  “general will”. For Rousseau, it wasn’t simply enough for policies to be determined by majority vote or even unanimous consensus. Instead, each individual had to make decisions with the good of the general society in mind, suppressing any selfish urges that may conflict with this ideal. As a young, active, healthy adult, I may personally prefer to save the $700 in annual health insurance premiums for other expenditures, but as a well-informed citizen, I would prefer to live in a society where I can be assured that if I run into an unexpected health problem, or when I become old and decrepit, I will nonetheless have access to basic health care services. If I truly believe in advancing the general good, then society’s collective decisions will be exactly the same decisions I want.

Watkins seems almost prescient when he writes:

For the modern constitutionalist, as for Rousseau, respect for the moral responsibility of individual citizens is the foundation of all political legitimacy. Coercion is justified only in so far as it is based on some sort of general agreements. Constitutional government assumes that all the citizens of a particular state, no matter how divided they may be in their personal opinions, are so firmly agreed in their desire to share a common political existence that they are willing to repress their particular views in the interest of common action. The skill of constitutional statesmanship consists in limiting the demands of collective action to the area of actual or potential agreement. If this proves impossible, minority groups may come to feel that the values of the community are less important to them than the particular interests they are asked to sacrifice on its behalf. When this happens, there ceases to be any constitutionally legitimate basis for coercion, and a proper constitutional government must either relax its demands in such a way as to win back the disaffected minority, or else recognise the right of the latter to set themselves up as an independent political society. (Emphasis mine)

In about eight hour’s time, we will find out whether we live in a society in which consideration for a general will is too much to ask for.