Wednesday, July 4, 2012

The Supreme Decision: Part Two - The Text

Note: This is the second part of my blog about the recent Supreme Court decision on the constitutionality of the Affordable Health Care Act. This portion simply looks at the text of the opinions as presented. I have omitted some extensive legal citations in the text for the sake of readability.

What better way to blog on the Fourth of July than by looking at the recent landmark Supreme Court case, which shows all Americans how the Founding Fathers set up their government.

Let us consider the text itself, not what anyone says about it. It is 193 pages. (Read it here.) The first 6 pages are the “Syllabus” or summary of the ruling. This is followed by the majority opinions. First, Chief Justice John Roberts fills 59 pages with support from Justices Stephen Breyer and Elena Kagan, except for the specifics on the mandate which Roberts authors alone. This is followed by the Court’s most liberal justice, Ruth Ginsburg, assisted by Justice Sonia Sotomayor who are obviously voting with Roberts but take exception to his understanding of the mandate as only constitutional as a tax, among other things. Ginsburg writes 61 pages with support from Justices Breyer and Kagan.

The dissenting opinion is a united document from Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito – a rarity among Court rulings, which are usually written with two or more opinions as with Roberts and Ginsburg/Sotomayor in this majority. It is covered in 65 pages; with one additional page of one extended paragraph offered by Justice Thomas at the end of the document as printed text.

Here are a couple of extended quotes from the Roberts opinion…

‘Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the prin­ciple that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sus­tained under Congress’s power to “regulate Commerce.”

‘Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the ex­ercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for mak­ing those reforms effective.’

‘…the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable. The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power. It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.”’ (Syllabus, page 3)

Authenticating the fundamental importance of what I have posted as THE transcendental discourse in America between Federal Authority vs. State Sovereignty, Chief Justice Roberts specifically refers to this interplay in his landmark opinion: '"State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power." Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which "in the ordinary course of affairs, concern the lives, liberties, and properties of the people" were held by governments more local and more accountable than a distant federal bureaucracy. The independent power of the States also serves as a check on the power of the Federal Government: "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power."

'This case concerns two powers that the Constitution does grant the Federal Government, but which must be read carefully to avoid creating a general federal authority akin to the police power.' (Syllabus, page 4)  So, very clearly, Roberts’ ruling that the mandate is unconstitutional and may be applied only as a tax resides at the core of the Federal-State power dialectic.

State Sovereignty is also mentioned in the Ginsburg opinion. The Justice disagrees with Roberts. ‘“It is more than exaggeration to suggest that the minimum coverage provision improperly intrudes on “essential attributes of state sovereignty.” First, the Affordable Care Act does not operate “in [an] are[a] such as criminal law enforcement or education where States historically have been sovereign.” The Federal Government plays a lead role in the health-care sector, both as a direct payer and as a regulator. Second, and perhaps most important, the minimum coverage provision, along with other provisions of the ACA, addresses the very sort of interstate problem that made the commerce power essential in our federal system. The crisis created by the large number of U. S. residents who lack health insurance is one of national dimension that States are “separately incompetent” to handle. Far from trampling on States’ sovereignty, the ACA attempts a federal solution for the very reason that the States, acting separately, cannot meet the need. Notably, the ACA serves the general welfare of the people of the United States while retaining a prominent role for the States.’ (Ginsburg pp. 35-36)

State Sovereignty is also an underlying concern of the dissenting opinion. “The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.” (Scalia, et al, page 65)

Shifting gears a bit, the Syllabus of the opinion reads: ‘The Government claims that the expansion is properly viewed as only a modification of the existing program, and that this modification is permissible because Congress reserved the “right to alter, amend, or repeal any provision” of Medicaid. But the expansion accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is trans­formed into a program to meet the health care needs of the entire on elderly population with income below 133 percent of the poverty level. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically. The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion.

‘The constitutional violation is fully remedied by precluding the Secretary from applying (the statute) to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion. The other provisions of the Affordable Care Act are not affected. Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whether to participate in the Medicaid expansion.’ (Syllabus, page 5)

The Syllabus then proceeds to define the subtle dance of concurrence and dissent that makes the Roberts Ruling so complex. ‘JUSTICE GINSBURG, joined by JUSTICE SOTOMAYOR, is of the view that the Spending Clause does not preclude the Secretary from with­holding Medicaid funds based on a State’s refusal to comply with the expanded Medicaid program. But given the majority view, she agrees with THE CHIEF JUSTICE’s conclusion in Part IV–B that the Medicaid Act’s severability clause determines the appropriate remedy. Because THE CHIEF JUSTICE finds the withholding—not the granting—of federal funds incompatible with the Spending Clause, Congress’ extension of Medicaid remains available to any State that affirms its willingness to participate. Even absent (the statute) command, the Court would have no warrant to invalidate the funding offered by the Medicaid expansion, and surely no basis to tear down the ACA in its entirety. When a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation.’ (Syllabus, pp. 5-6)

Roberts recognized the dissent in Ginsburg’s opinion. ‘JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that (the statute) can be upheld under the taxing power. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a stat­ute to save it, if fairly possible, that (the statute) can be inter­preted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction. The Federal Government does not have the power to order people to buy health insurance. (The statute) would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. (The statute) is therefore constitutional, because it can reasonably be read as a tax. (Roberts, pp. 44-45)

This is the heart of the matter. President Obama does not agree with Justice Roberts that the mandate is constitutional only as a tax. In fact, the President claims it is not a tax, defying the constructional ruling. He is forced into a corner politically because, if it truly is a tax, then the Senate has some special rules that allow it to vote again on the policy before the November elections. Depending on how the complex possibilities of this scenario play out, it could make for a rather wild climax to the fall elections. The Democrats control the Senate, but having to vote in favor of a “new kind of tax” in an election year might play into the hands of Republicans.

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