[Posted by Karl]
In assessing why legal “elites” were caught off-guard by the scrutiny Obamacare received in last week’s Supreme Court arguments, Jonathan H. Adler suggests that (in addition to groupthink) “[a]t many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases.” Thus, “[p]remier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.” Expanding on the former point, Kenneth Anderson suggests legal elites are less interested in predicting Court outcomes than in framing of acceptable and unacceptable opinion and thereby setting the boundaries of outcomes. RTWT, because I intend to focus on the latter point.
Surprisingly, the NYT’s Adam Liptak wrote an interesting article looking at how the lawyers on both sides of the Obamacare case went about fashioning arguments to appeal to Justice Kennedy. In particular, both Solicitor General Donald B. Verrilli Jr. and Paul D. Clement tried to appeal to the idiosyncratic way Kennedy tends to view liberty and individual repsonsibility. Although Liptak focused on the much-discussed exchange in which Kennedy left the door open to finding the healthcare market to be unique, he downplayed an almost equally interesting aspect of Kennedy’s jurisprudence:
Justice Kennedy has participated in three decisions on the scope of federal power under the Constitution’s commerce clause. He twice voted to strike down the law before him. Most recently, he voted to uphold a law allowing federal regulation of home-grown medicinal marijuana.
He wrote an opinion in one of the cases, a concurrence explaining why a law concerning guns near schools had to go. The decision rested, he wrote, on “the theory that two governments accord more liberty than one,” which he said gave rise to a “grave constitutional obligation if democratic liberty and the federalism that secures it are to endure.”
On one level, this argument underscores to the difference between a mandate imposed by a state government and the federal government, but it also points to Kennedy’s concern for political accountability. As Ann Althouse quoted Kennedy from United States v. Lopez:
The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States. If, as Madison expected, the federal and state governments are to control each other, see The Federalist No. 51, and hold each other in check by competing for the affections of the people, see The Federalist No. 46, those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. ‘Federalism serves to assign political responsibility, not to obscure it.’… Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory…. The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.
Althouse noted how this played out in the context of the argument about the Medicaid expansion:
We finally hear from Justice Kennedy ***: “If the inevitable consequence of your position was that the Federal Government could just do this on its own, the Federal Government could have Medicaid, Medicare, and these insurance regulations, assume that’s true, then how are the interests of federalism concerned? How are the interests of federalism concerned if, in Florida or Texas or some of the other objecting States, there are huge Federal bureaucracies doing what this bill allows the State bureaucracies to do?”
Clement hits Kennedy with a word Kennedy has used himself in federalism cases. *** The word is “accountability.” Clement says: “If the Federal Government decides to spend money through Federal instrumentalities, and the citizen is hacked off about it, they can bring a Federal complaint to a Federal official working in a Federal agency.”
However, the point about political accountability runs throughout Obamacare. Creating a Potemkin insurance market with mandates and exchanges was very much about the Obama administration and a Democratic Congress converting the private health insurance market into a social insurance program while trying to pretend otherwise, to escape political accountability both for their long-term goal of a single-payer system and for the inevitable dysfunction of the interim system they have created. It is not clear that Kennedy understands this:
Kennedy mused that Congress could have created a Medicare-style program for the uninsured, run exclusively by the government without the involvement of private insurers.
“Let’s assume that (Congress) could use the tax power to raise revenue and to just have a national health service, single payer,” said Kennedy. “How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power.
“On the other hand, it means that since … Congress can do it anyway, we give a certain amount of latitude,” Kennedy continued. “I’m not sure which way the argument goes.”
If Kennedy is consistent, he ought to know which way the argument goes in his own mind (he may have simply not wished to tip his hand during the oral arguments, although as Liptak noted, the distribution of his questions at oral argument is suggestive). From the outside, the issue is how well the lawyers involved understood the concerns that drive Kennedy’s jurisprudence. The hacktastic Greg Sargent thinks it was “a terrible misjudgment” for anyone to have treated Justice Scalia as a swing vote, but that wasn’t the misjudgment. Rather, the misjudgment was in not having a sufficient understanding of Scalia’s jurisprudence or in thinking a superficial version of it would somehow fool him (Randy Barnett certainly understands it). Whether Kennedy can be fooled is the $1.76 trillion question.