Patterico's Pontifications

4/2/2012

Justice Kennedy and the Obamacare bubble

Filed under: General — Karl @ 7:32 am

[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.

–Karl

32 Responses to “Justice Kennedy and the Obamacare bubble”

  1. Ding!

    Karl (6f7ecd)

  2. I fear, Karl, that we are in violent agreement here.

    Kevin M (bf8ad7)

  3. Alito’s hypothetical regarding coercion in the Medicaid debate is also telling, as is Verrilli’s very wrong response.

    Let’s say Congress says this to the States: We have got great news for you. We know that your expenditures on education are a huge financial burden, so we are going to take that completely off your shoulders. We are going to impose a special Federal education tax which will raise exactly the same amount of money all of the states now spend on education, and then we are going to give you a grant that is equal to what you spent on education last year.

    Now, this is a great offer and we think you will take it, but, of course, if you take it, it’s going to have some conditions because we’re going to set rules on teacher tenure, on collective bargaining, on
    curriculum, on textbooks, class size, school calendar, and many other things. So, take it or leave it.

    If you take it, you have to follow our rules on all of these things. If you leave it, well, then you’re going to have… to tax your citizens, they’re going to have to pay the Federal education tax; but on top of that, you’re going to have to tax them for all of the money that you’re now spending on education, plus all of the Federal funds that you were previously given.

    Would that be — would that reach the point — would that be the point where financial inducement turns into coercion?

    The SG says no! The states have a choice, he says, to which Alito responds: “But if that’s the case, then there’s nothing left of federalism.”

    It would be interesting if they also struck down the Medicaid expansion, due to its holding the current level of funding hostage to acceptance of the expansion. But it is also telling that Verrilli has so little understanding of the court’s view of federalism that he couldn’t find a distinction between the hypothetical and his own case.

    Kevin M (bf8ad7)

  4. (that last from the same Althouse link as in the main post)

    Kevin M (bf8ad7)

  5. Given that one is not supposed to read too much into oral arguments, why all the discussion of oral arguments?

    Other than for the fun of it?

    steve (369bc6)

  6. Very interesting. Articulates the ‘malfeasance of government’ fulcrum in search of the ‘limiting principle’ which Kennedy, for one, searches.

    Article 10 might just get some redress.

    gary gulrud (d88477)

  7. Given that one is not supposed to read too much into oral arguments, why all the discussion of oral arguments?

    Other than for the fun of it?

    Comment by steve — 4/2/2012 @ 8:33 am

    I thought orals was a chance for the justices to attempt to sway the other justices to their way thinking.

    joe (2d12c3)

  8. Joe: why would that be the case given that they ALL made up their minds long before oral arguments?

    steve (369bc6)

  9. This is the interesting thing for me, at the “complex constitutional law claims” vs. “comprehensive theory of justice” level:

    I find myself agreeing with the precedential, legal arguments supporting the mandate – the externality arguments and the method of payment arguments. I find myself agreeing with Justice Breyer’s arguments, thinking that they are exceedingly well-reasoned.

    At the same time, from a theory of justice standpoint, I am dead-set against the mandate. I think it’s a reprehensible subsidization of a corrupt industry, and, more fundamentally, an alarming imposition on simple freedoms.

    I’ve come to reconcile these two things by realizing that while the mandate is valid under existing Commerce Clause precedent, existing Commerce Clause precedent is unconstitutional. The expansion of “commerce” to “economic activity + non-economic activity in service of a comprehensive regulatory scheme” has grown to monstrous proportions by incremental steps. That’s what we should be worried about, even more than the fact that this new incremental step is a step in the wrong direction.

    Leviticus (91e44c)

  10. I’ll leave the detailed legal arguments to the professionals, they’re good at it, and they resent it when amateurs and dilettantes muddy the waters.

    However, I’m keeping a sharp eye out for signs of improper influence.

    With so few people making such an important call the possibility sinister forces may attempt to coerce one or more of the decision-makers rises well beyond the point of probability.

    ropelight (fc4aa2)

  11. [i]I find myself agreeing with Justice Breyer’s arguments, thinking that they are exceedingly well-reasoned.[/i]

    which ones?

    madawaskan (89a442)

  12. I’m still hoping they just overturn Wickard v Filburn. Not holding breath.

    Kevin M (bf8ad7)

  13. 9. “I find myself agreeing with Justice Breyer’s arguments, thinking that they are exceedingly well-reasoned.”

    Dropped /sarc tag? I suppose in a universe populated with Kagan and Ginsburg this isn’t hilarity.

    http://volokh.com/2012/03/29/nearing-the-end-of-the-search-for-the-non-existent-limiting-principles/

    http://volokh.com/2012/03/27/thoughts-on-the-individual-mandate-oral-argument/

    Somewhere Breyer’s musings on existing case law during the oral arguments was fisked. He did not appear to this rube to remember specifics well or to have logic in hand.

    I get that the end justifies the means but not that it will look good doing so.

    gary gulrud (d88477)

  14. Comment by Leviticus — 4/2/2012 @ 8:57 am

    nk (dec503)

  15. Comment by Leviticus — 4/2/2012 @ 8:57 am

    For an A+ in your Constitutional Law class, Leviticus, 1 gets an A) who called the Supreme Court a “permanent constitutional convention”, 2 gets the plus) in which case?

    nk (dec503)

  16. Actually, that will get you a C in your school. “Know” what your professor wants you to know. But I will give you an A+ and dinner at Greektown if you are ever in Chicago.

    nk (dec503)

  17. steve (5),

    Check the link about the distribution of questions at oral argument.

    Karl (f07e38)

  18. 9, 13. Located the ‘fisking’ of Breyer as that by Conn Carroll at “Beltway Confidential”, with the help of Powerline tossing in Weekly Standard for good measure:

    http://www.powerlineblog.com/archives/2012/03/justice-breyer-flunks-con-law.php

    Whether Amerikkka finds Xmas in June or not, Liberal gravitas will play no role, should any be revealed.

    gary gulrud (d88477)

  19. 16. Don’t know the name but the Greek place under the Seneca on the Hancock side was our favorite.

    Right up there with Gordon’s for total pleasure.

    gary gulrud (d88477)

  20. Karl: #17: Let me rephrase, why spend any time analyzing the substance of their comments when you can simply count the words aimed at each side?

    steve (369bc6)

  21. steve(20),

    Because what the word/question count suggests is that there’s less Devil’s advocacy at the Court than many presume. :)

    More seriously, the point of paying attention to orals in the sense I do here is to examine whether the advocates effectively appealed to the known jurisprudence of those they’re supposedly attempting to influence. My focus here is more on the answers given than the questions asked — and to suggest that perhaps the lefties don’t understand the right sufficiently to answer their questions effectively.

    Karl (f07e38)

  22. Leviticus,

    Following up on our conversation the other day, Karl’s last link to the Randy Barnett interview explains why I think Raich is important. In addition, Barnett obliquely suggests Breyer doesn’t have much influence over the rest of the Court. My guess (and it is only a guess) is that while Breyer may be charming and articulate, he’s not as scholarly as his colleagues. There’s a reason he’s known as the resident pragmatist.

    DRJ (a83b8b)

  23. Athens on Halsted? Please don’t tell me it was Papagus on Clark.

    nk (dec503)

  24. Kewpie, behind the Hancock building was where I was taking my wife out on dates during our second breakup. But it went out of business a long time ago.

    nk (dec503)

  25. 23, 24. Beats me but woulda been 2001.

    gary gulrud (d88477)

  26. Yup, 2001 was when we made the baby while apart and dating.

    No matter what, I got myself a fun wife. Beautiful and smart, too. (Well, not altogerher all that smart. She married me.)

    nk (dec503)

  27. 26. Our first Valentine’s weekend. Ate at a continental place on Delaware the night of, over $200 bucks, bottle of St. Denis, didn’t like it half as much.

    The Chestnut St. place saved my butt in recovery.

    gary gulrud (d88477)

  28. There is no doubt that the Congress can regulate insurance sold across state lines.

    But how can it to do for intrastate insurance?

    Michael Ejercito (64388b)

  29. Re: my comment at ropelight — 4/2/2012 @ 9:01 am

    That sure didn’t take long. Obama’s attempt to intimidate the court wasn’t quite as obvious as asking conservative justices if their life insurance was paid up, or mentioning it would be a shame if something happened to their grandchildren, but the threat was clear and unambiguous: see things his way or else.

    ropelight (ace307)

  30. Comment by ropelight

    Like so many things Obama is tin eared about this as well. Opens new area for Republicans (unified type) to address. SC picks in next four years could shape SC decisions for 25 years beyond that.

    His comments about Trayvon have risk of driving many white democrats (hillary dems/reagan dems) away from him.

    His arrogance is unmatched.

    vor2 (6c8528)

  31. His arrogance is unmatched.

    Amen. And his stupidity knows no bounds.

    JD (7a7e60)

  32. Comment by Michael Ejercito — 4/2/2012 @ 6:25 pm

    Since all insurance eventually gets layed-off to the re-insurance market, intra effects inter, so therefore it is regulable – classic Wickard.

    AD-RtR/OS! (b8ab92)


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