Law Professor Geoffrey R. Stone Cuts through the Supreme Court’s Nonsensically Motivated Hypotheticals during ObamaCare Oral Arguments

29 March 2012

First — a disclaimer regarding separating my distaste for ObamaCare from the law’s legal legitimacy

By way of introduction, I point out that I did not support the Affordable Care Act (ObamaCare). But I do think that the Supreme Court’s own precedents make it constitutional.

Of course, that does not mean that there isn't room to pretend that the ObamaCare situation is different. (See below.)

Note

My opposition to ObamaCare is based on a couple of observations:

First, the law essentially further enriches the health services plutocracy, in exchange for making progress on slightly widening health care access for ordinary people.

Second, I suspect that the enactment’s probable inefficiencies will ultimately further increase health care costs to the public and deficits to the government.

That said, the trumpeted negative reaction to ObamaCare is overblown.

The Affordable Care Act is simply another stick added to our already unfair and grossly inefficient health care system. Sanity would have been remarkable. Continued insanity is not.

What is at stake? — The principles of constitutional interpretation should not be distorted by our biases in individual cases

Ideally, in law and science, the important thing is setting aside interpretive prejudices and finding truth, according to accepted principles of fair-minded investigation.

In regard to ObamaCare, I have noticed that the Act’s opponents confuse their displeasure with the law with its purported illegality. These issues are actually separate.

Conflating (mixing and overlapping) our distaste for the Act's contents with allegations of its illegality winds up:

(a) distorting our body of constitutional law

and, worse,

(b) the principles by which we derive that law.

Professor Stone on ObamaCare’s constitutionality

I draw on Professor Stone because he communicated the legal issues regarding ObamaCare more clearly than most of the media has.

Generally speaking, it is more difficult to dissect concise clarity out from under layers of deliberately obscuring camouflage than most people recognize. Because politics is almost entirely about obscurantism, constitutionally founded legal cases usually suffer from both sides’ attempts to distort and over-complicate relatively simple legal issues.

ObamaCare’s publicized “trial” in front of the U.S. Supreme Court, during three days of oral argument, is an example of this. Thanks to some of the justices’ precedent-ignoring (and sometimes broccoli-silly) forays in Hypothetical Land — one can excuse the public, if it has no idea what the non-pretend legal issues are.

Law professor Geoffrey Stone competently clarified the confusion.

Citation

Geoffrey R. Stone, The Supreme Court, the Affordable Care Act, and the Slippery Slope, Huffington Post (29 March 2012)

What Professor Stone had to say about the primary legal issue in ObamaCare

In the manner of the most effective law school teachers, Professor Stone went immediately to the crux of the issue that has confused so many people and pundits:

There is no doubt that a state can constitutionally require citizens to have health insurance. Why, then, is the Supreme Court fussing over the constitutionality of the individual mandate provision of the Affordable Care Act?

The answer is simple. States have plenary authority to legislate on matters of public policy.

The national government, however, is a government of limited powers. It cannot constitutionally act unless the Constitution authorizes it to do so.

The central question in the case now pending before the Supreme Court is whether the Constitution grants Congress the authority to require individuals to have health insurance.

What is Professor Stone’s answer to this question? — The Affordable Care Act is constitutional

Stone’s answer is that the Court’s Commerce Clause precedents indicate that the federal government can mandate that people buy health insurance.

All the government needs to prove is that:

(i) the aggregate activity under scrutiny has “a substantial economic effect on interstate commerce"

and

(ii) Congress has a “rational basis” for regulating it.

For example, Congress’ commerce clause-granted power validated the following laws:

the Sherman Antitrust Act of 1890, the Fair Labor Standards Act of 1938, the Civil Rights Act of 1964, the Environmental Policy Act of 1969, the Controlled Substances Act of 1970, and the Americans with Disabilities Act of 1990, to cite just a few examples.

Similarly, in regard to the validity of ObamaCare, health costs and services are a huge part of the nation’s economy. Congress obviously has a rational basis for regulating them.

Note

The “rational basis” interpretive hurdle is easy to surmount.

The Court’s own jurisprudence indicates (in effect) that Congress just has to think that a law might be a good idea for the public welfare. This so, even when it is clear to the justices that the real world result of a statute’s implementation will ultimately be foolish or harmful.

Ergo, writes Stone, there should be no question, even for political conservatives, that ObamaCare is constitutional.

So what is the pretended legal issue?

According to Professor Stone, the alleged question is whether the federal government make us perform affirmative acts.

Professor Stone thinks the gist of the unconstitutionality claim is that ObamaCare mandates that people buy health insurance, even though they themselves have contributed nothing to the flow of commerce.

For example, if I have never been sick, and never gone to a doctor or hospital, why should I have to pay to insure myself for future health services under Congress’ authority as granted by the Commerce Clause?

This sounds like a valid argument, until you parse its questionability under the light afforded by U.S. Supreme Court precedents.

For example and analogously, under civil rights law, I cannot legally refuse to hire a black person. This is so because the refusal impacts overall employment and, therefore, commerce.

So, how is refusing to buy health insurance different? The refusal to buy insurance affects commerce because it:

(a) raises rates for people who do need health care

and

(b) very likely means that someday, as I age or become unlucky, I will have to receive expensive health services that I cannot pay for and someone else will have to subsidize.

Professor Stone points out that this economic situation is identical to that which led the states to make auto insurance mandatory.

Congress, therefore, has a rational basis for mandating health insurance among the national public.

Is political conservatives’ refusal to see what is (or should be) constitutionally obvious a result of their fear of the slippery slope?

If the government can make us buy health insurance, cannot it also make us eat broccoli or pay for anticipated funeral costs?

No, says Stone. These pretended parallels are not actually parallel in economic magnitude.

Eating or not eating broccoli — and pre-paying or not pre-paying funeral costs — do not have nearly the financial impact on the overall economy that the health insurance conundrum does. Congress’ motivation to fix the health care economic problem is rationally much greater under the Commerce Clause justification, than it would be for attacking the (false) broccoli and funeral problems under the same reasoning.

Consequently, thinks Professor Stone, if the Court diverts itself from the real legal issue via these trivial and deceptive arguments, it exposes itself for the purely ideologically motivated body that it was, when it reached the Bush v. Gore (2000) and Citizens United v. Federal Election Commission(2010) decisions.

So why is there even a controversy regarding ObamaCare’s constitutionality? — Answer: this Court is not playing by the institution’s own rules

What distinguishes this Supreme Court, from many of its predecessors, is its willingness to casually ignore:

(a) the body’s own legal precedents

and

(b) the institution’s well-established judicial restraint,

in order to activist-ically

Dahlia Lithwick’s characterization of the reactionary justices’ thinking

Legal analyst Dahlia Lithwick insightfully synopsized the conservative justices’ backward-looking philosophy:

This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community . . . .

It’s about freedom from our obligations to one another, freedom from the modern world in which we live.

It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected.

It’s about the freedom to be left alone . . . . the freedom to live like it’s 1804.

Is being politically reactionary “bad”?

No and yes.

No, from the perspective that many Americans really would resent being told to pay a private entity for something they really do not (perhaps shortsightedly) want.

Yes, from the perspective that this nation cannot afford to keep ducking the social and economic equitability issues that haunt us. A supposedly predominantly Christian nation cannot continue to pretend to be one, while it simultaneously lets millions of people suffer from obviously inadequate care. The problem with being a reactionary (in the manner that this Court and many Americans are) is that both try to brush the suffering of these mostly faultless millions under the carpet.

The Supreme Court has been, more often than not throughout American history, reactionary. So, again, my objection to this Court is not its archaic legal philosophy, but it’s professionally unwarranted willingness to suppress the social gains that previous Courts reached in spite of their own throw-back tendencies.

Lithwick’s choice of the 1804 metaphor is apt.

Scalia et al. are living in an intellectual climate from a couple of centuries back. They can afford to. They are part of the Fat Cat elite. The problem — that their reality-denying world view presents for most human beings — does not occur to, or impact, them. Money and power insulate these justices and their many fellow-travelers against the idea of community.

And there is the judicial rub. Law is essentially about community.

Laws are not necessary, when we are alone or so widely distributed that our paths do not cross. But, today, with a more than 7 billion-populated planet, law is (or should be) almost exclusively about promoting successful communities.

Here, even the presumably archaic American Declaration of Independence (1776) seemed to think that happy community was a goal worth striving for:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

American reactionaries — among whom I include the entire Republican Party Right Wing and Ron Paul’s socially naive libertarians — seem to drop the Declaration’s “Life” and “pursuit of Happiness” from their prescriptions for America’s modern direction.

Reactionary conservatism as a political philosophy is defensible — until, at its extreme, one recognizes that (to a meaningful degree) “I am my brother’s keeper.”

In this regard, the developed world’s prevailing social culture is closer to implementing risk-distributing community than it is to expressing deep-seated loves for (a) slave-making plutocracy or (b) over-individualized libertarianism.

This is why the “conservative” component of the current U.S. Supreme Court seems so out of step with the guiding prescriptions set out by commonly accepted religious teachings and the words of the American Declaration of Independence.

That said and Professor Stone aside, might there actually be a legitimate legal issue regarding ObamaCare?

This dysfunctionally divided Court can, probably legitimately, create one.

The problem with legal precedent is that it is usually and unavoidably crafted according to the context of the case(s) that initiated it.

This means that that subsequent sets of justices have the opportunity to say, “We (meaning the institution) did not really mean that precedent to apply to this new situation."

The majority then highlights the innumerable ways in which the new situation is not similar to the old.

This, of course, is usually disingenuous camouflage. The less the new situation deviates from the old, the more the majority pretends that it does. And the less professional integrity that the justices have, the more slimily they pull this off.

That said, the ObamaCare hodge-podge opened itself up to this Court’s conservative teeth by attempting to force private entities (insurance companies) to do what is more properly a government and tax-funded job.

Had ObamaCare been the single payer equivalent of Medicare and Medicaid, no one would have questioned the constitutionality of the statute.

Short-cutting the difficulties of trying to do the right thing can get lazy political pragmatists into trouble.

The moral? — Reactionaries foment the discord that eventually unseats them

I doubt that this Court’s characteristically obtuse insistence on protecting Fat Cat privilege and its determined social blindness are going to disappear before I do.

But someday, overwhelmed by Time’s pace of change, these justices’ atavistic philosophy will be unseated. Or the United States’ democracy itself will have been dumped to molder on History’s pile of failed experiments.

PeteFree.com

Law Professor Geoffrey R. Stone Cuts through the Supreme Court’s Nonsensically Motivated Hypotheticals during ObamaCare Oral Arguments