"[A]n all-star group of researchers following Ms. Parris and tens of thousands of other Oregonians has found that gaining insurance makes people healthier, happier and more financially stable. The insured also spend more on health care, dashing some hopes of preventive-medicine advocates who have argued that coverage can save money — by keeping people out of emergency rooms, for instance. In Oregon, the newly insured spent an average of $778 a year, or 25 percent, more on health care than those who did not win insurance. For the nation, the lesson appears to be a mixed one. Expanded coverage brings large benefits to many people, but it is also more likely to increase a stretched federal government’s long-term budget responsibilities."
Friday, June 22, 2012
Interesting story on the impact of health insurance
As many of you probably know, the state of Oregon recently adopted a program under Medicaid that expanded coverage to many who previously were ineligible, but it did so using a lottery. This was too good to be true for many researchers, as it created what we almost never have in the real world: a nearly perfect randomized study about the effects of carrying health coverage. An award-winning team has been studying the impact on the newly covered, and the New York Times has a story on the preliminary results. Here are the two most important conclusions thus far:
Thursday, June 21, 2012
Partisanship and judicial behavior in the ACA litigation
Regardless of the outcome, one of the narratives likely to emerge from the Court's decision next week will concern its partisan valence. This will be especially true, of course, if the Court splits 5-4 on predictable ideological lines, with the five Republican appointees voting to invalidate the minimum coverage provision and the four Democratic appointees voting to uphold it. But even other outcomes are likely to raise questions about how much the Court's decision--and perhaps judicial behavior more generally--is explainable in partisan terms.
Thus, it is perhaps useful at this point to step back and take stock of the ACA litigation as a whole. What that examination shows, I think, is that judicial voting patterns have been less correlated with judges' partisan affiliations than many presume. If we look at all the different issues that have come before the courts thus far, the partisan affiliation of a judge tells us little about he or she is likely to vote. If we look at the most contested issue, however--the constitutionality of the minimum coverage provision--then partisan affiliation is more predictive. Nonetheless, it has hardly been determinative.
I am in the process of creating a data set that codes every judicial vote in every case challenging the legality of the ACA. I still have a ways to go, so these results are just preliminary (at best). Moreover, there are all sorts of contestable, discretionary coding decisions can can alter these results. (For example, there are lots of complications in determining what constitutes a discrete vote.) But with those caveats in mind, here are some figures to ponder:
* Overall, Republican Court of Appeals judges have cast 31 distinct votes in ACA cases. Eighteen of those votes (58%) have been against the party challenging the ACA. (This figure counts Judge Stanley Marcus as a Republican, although he was appointed to the Eleventh Circuit by President Clinton. He was appointed to the District Court by President Reagan. It also counts Judge Richard Tallman as a Republican, also appointed by President Clinton, but as part of a political compromise.)
* Overall, Democratic Court of Appeals judges have cast 21 distinct votes in ACA cases. Fourteen of those votes (67%) have been against the party challenging the ACA.
* Every single federal judge to have confronted the question--eight Republicans and two Democrats--has agreed on the taxing power question (i.e., that the minimum coverage provision cannot be justified on this ground).
* Even as to whether the minimum coverage provision exceeds Congress's authority to regulate interstate commerce, a judge's partisan affiliation has not been predictive. Among Republicans, two circuit judges (Dubina and Graham, a district judge sitting by designation) have voted to invalidate it, while three (Silberman, Sutton, and Marcus) have voted to uphold it. Among Democrats, one (Hull) has voted to invalidate it and three (Martin, Edwards, and Davis) have voted to uphold it. Even if we instead count Marcus as a Democrat, partisan affiliation does not seem to hold too much explanatory power.
This is not to say that a judge's partisan affiliation is somehow irrelevant. Rather, the point is that this litigation has involved scores of questions, and as to most of them, the law has been sufficiently clear that judges of all ideological stripes have agreed on the outcome. To the extent there appears to be a partisan split, it is with respect to the most contested, ideologically controversial question, and one on which most now agree the law is hardly clear.
And this is roughly what most students of judicial behavior would predict. In the vast bulk of legal controversies to reach the federal court, there is no predictable difference between the behavior of Republican-appointed and Democratic-appointed judges. But on highly salient, ideologically charged issues, matters are a bit different--but perhaps not as different as many suppose. The biggest difference is at the Supreme Court, where the issues are often highly charged, and the issues are pre-selected based on their lack of any clear legal answer.
Thus, although there have not been any really clear partisan divisions in the lower courts, I fully expect the Justices to split largely (though perhaps not entirely) on ideological lines next week.
Thus, it is perhaps useful at this point to step back and take stock of the ACA litigation as a whole. What that examination shows, I think, is that judicial voting patterns have been less correlated with judges' partisan affiliations than many presume. If we look at all the different issues that have come before the courts thus far, the partisan affiliation of a judge tells us little about he or she is likely to vote. If we look at the most contested issue, however--the constitutionality of the minimum coverage provision--then partisan affiliation is more predictive. Nonetheless, it has hardly been determinative.
I am in the process of creating a data set that codes every judicial vote in every case challenging the legality of the ACA. I still have a ways to go, so these results are just preliminary (at best). Moreover, there are all sorts of contestable, discretionary coding decisions can can alter these results. (For example, there are lots of complications in determining what constitutes a discrete vote.) But with those caveats in mind, here are some figures to ponder:
* Overall, Republican Court of Appeals judges have cast 31 distinct votes in ACA cases. Eighteen of those votes (58%) have been against the party challenging the ACA. (This figure counts Judge Stanley Marcus as a Republican, although he was appointed to the Eleventh Circuit by President Clinton. He was appointed to the District Court by President Reagan. It also counts Judge Richard Tallman as a Republican, also appointed by President Clinton, but as part of a political compromise.)
* Overall, Democratic Court of Appeals judges have cast 21 distinct votes in ACA cases. Fourteen of those votes (67%) have been against the party challenging the ACA.
* Every single federal judge to have confronted the question--eight Republicans and two Democrats--has agreed on the taxing power question (i.e., that the minimum coverage provision cannot be justified on this ground).
* Even as to whether the minimum coverage provision exceeds Congress's authority to regulate interstate commerce, a judge's partisan affiliation has not been predictive. Among Republicans, two circuit judges (Dubina and Graham, a district judge sitting by designation) have voted to invalidate it, while three (Silberman, Sutton, and Marcus) have voted to uphold it. Among Democrats, one (Hull) has voted to invalidate it and three (Martin, Edwards, and Davis) have voted to uphold it. Even if we instead count Marcus as a Democrat, partisan affiliation does not seem to hold too much explanatory power.
This is not to say that a judge's partisan affiliation is somehow irrelevant. Rather, the point is that this litigation has involved scores of questions, and as to most of them, the law has been sufficiently clear that judges of all ideological stripes have agreed on the outcome. To the extent there appears to be a partisan split, it is with respect to the most contested, ideologically controversial question, and one on which most now agree the law is hardly clear.
And this is roughly what most students of judicial behavior would predict. In the vast bulk of legal controversies to reach the federal court, there is no predictable difference between the behavior of Republican-appointed and Democratic-appointed judges. But on highly salient, ideologically charged issues, matters are a bit different--but perhaps not as different as many suppose. The biggest difference is at the Supreme Court, where the issues are often highly charged, and the issues are pre-selected based on their lack of any clear legal answer.
Thus, although there have not been any really clear partisan divisions in the lower courts, I fully expect the Justices to split largely (though perhaps not entirely) on ideological lines next week.
What a Kennedy opinion upholding the individual mandate might look like
Another day without an ACA decision, another
day for idle speculation!
So in that spirit, this post offers a thinly theorized guess as
to what a majority opinion upholding the
minimum coverage provision might look like. Most speculate that, if the Court were to
uphold the mandate, the majority would have to include Kennedy. And if the Chief did not
join, then Kennedy would assign the opinion—and probably keep it
for himself.
So, if all this comes to pass, what would be the rationale, given
Kennedy’s prior opinions and questions at oral argument? Here is a stab at an outline:
* The minimum coverage provision does not regulate economic
or commercial activity. It regulates Americans simply because they exist. Thus, it cannot be justified by the Commerce Clause
alone, as a “direct” regulation of interstate commerce.
* Indeed, in effectively forcing
individuals into a commercial market, the minimum coverage provision is
truly “unprecedented.” It fundamentally alters the relationship between the
federal government and the individual, in a manner no prior Supreme Court
decision has sanctioned.
* Nonetheless, the Congress here has not invoked the power
conveyed by the Commerce Clause alone, but in conjunction with the Necessary
and Proper Clause. And when Congress enacts a regulatory scheme that, taken
as a whole, unquestionably regulates interstate commerce, then it may also
enact provisions that are “necessary and proper” to effectuating that
regulatory scheme.
* Since McCulloch,
this Court has articulated the standard of necessity for purposes of the
Necessary and Proper Clause as being “conducive” or “appropriate.” This is
correct as a general rule.
* But as the challenged provision drifts further from the direct
regulation of interstate commerce—and where, as here, it fundamentally alters
the relationship between the individual and the federal government, in a manner
never attempted before—something more is required.
* “Necessary” in these circumstances requires a true need, a
more rigorous showing that this unprecedented measure is truly important (rather than merely convenient or politically expedient) to meet the needs of the broader regulatory scheme (which scheme, to repeat,
plainly regulates interstate commerce). Cf.
United States v. Comstock (Kennedy,
J., concurring).
* Here, the minimum coverage provision meets this heightened
standard of necessity. The problem of the medically uninsured in the United
States is startling, in both its social and economic dimensions. And although requiring
all persons of adequate means to acquire health insurance is not absolutely necessary to addressing this
public policy problem, it is one of very few options available to policymakers crafting a solution
that preserves the existing private market in individual health coverage.
* This distinguishes the minimum coverage provision from
the various hypotheticals that the challengers have posited, such as those to
purchase broccoli or a GM car. Those might be “helpful” or “conducive” to
stimulating the relevant industries (or reducing the cost of products in those
markets). But they are not necessary in
the same sense as the mandate at issue here. They are not critical to the proper functioning of the relevant
market as a market.
* Thus, the “limiting principle” here is that the minimum coverage provision is necessary in ways these other, hypothesized mandates could not be.
* In short, because the minimum coverage provision is
necessary and proper to Congress’s regulation of the health insurance market
(and the health care services market) embodied in the ACA, it falls withion Congress’s
enumerated powers, and is thus constitutional.
As I said, idle speculation. But if the Court upholds the
individual mandate—and if Kennedy authors the majority opinion—this seems like a reasonable guess as to how it might look.
What is left, what it means
There are now four (or five, if you count Miller and Jackson separately) argued cases left for the Court to hand down this Term, in addition to the ACA cases. They are:
1. First American Financial Corp. v. Edwards (argued November 28) (Article III standing issue)
2. United States v. Alvarez (argued February 22) (whether the Stolen Valor Act violates the Free Speech Clause)
3. Miller v. Alabama and Jackson v. Hobbs (argued March 20) (whether a sentence of life in prison without possibility of parole is constitutional when imposed on persons who were minors at the time of their offense)
4. Arizona v. United States (argued April 25) (whether four provisions of Arizona's S.B. 1070 are preempted by federal immigration law)
Also slated for today's conference of the Justices--and thus for possible resolution on Monday, perhaps with opinions--is American Tradition Partnership v. Bullock, the campaign finance case in which the Montana Supreme Court distinguished (flouted? ignored?) Citizens United.
It seems highly unlikely the Court will hand down all of these decisions plus the health care cases on Monday. Thus, as most have been guessing, Wednesday or Thursday of next week is most likely for the ACA.
And the Court hands down . . .
The first opinion this morning is Southern Union, authored by Sotomayor. It extends the rule of Apprendi (and Blakely and Ring, etc.) to criminal fines.
The next opinion is Knox v. SEIU, opinion by Alito. This concerns union dues for political activities. Vote is 7-2, with Breyer and Kagan dissenting. (The Court appears to be 5-4 on standard ideological lines on the rationale, however; Ginsburg and Sotomayor concur, but are closer to the dissent on reasoning.)
At least one more coming. We are waiting because Breyer is reading from his dissent in Knox.
The third opinion is that in the curvelined Davis and Hill cases, involving the Fair Sentencing Act. Breyer writes for a 5-4 Court, with the Chief, Scalia, Thomas, and Alito dissenting.
The next opinion is FCC v. Fox Television Stations. Kennedy writes for the Court. It appears unanimous. Application of regulation to fleeting expletives in these cases, because there was not fair notice, were impermissibly vague. Ginsburg concurs in judgment only; Sotomayor did not participate.
And that is all for today. Monday at the earliest for the ACA decisions.
The next opinion is Knox v. SEIU, opinion by Alito. This concerns union dues for political activities. Vote is 7-2, with Breyer and Kagan dissenting. (The Court appears to be 5-4 on standard ideological lines on the rationale, however; Ginsburg and Sotomayor concur, but are closer to the dissent on reasoning.)
At least one more coming. We are waiting because Breyer is reading from his dissent in Knox.
The third opinion is that in the curvelined Davis and Hill cases, involving the Fair Sentencing Act. Breyer writes for a 5-4 Court, with the Chief, Scalia, Thomas, and Alito dissenting.
The next opinion is FCC v. Fox Television Stations. Kennedy writes for the Court. It appears unanimous. Application of regulation to fleeting expletives in these cases, because there was not fair notice, were impermissibly vague. Ginsburg concurs in judgment only; Sotomayor did not participate.
And that is all for today. Monday at the earliest for the ACA decisions.
Wednesday, June 20, 2012
The URL for tomorrow morning
The place to be is SCOTUSblog's live blog of the Court's hand down. And the URL for jumping straight to that live coverage is here.
Other fish to fry?
As we all wait on pins and needles, I thought I would engage in some completely idle, pre-decision spin and speculation. None of this speculation is remotely falsifiable; there is no way of testing its accuracy. Its just guessing, at best. Perhaps not even informed guessing. But what the heck.
Here is a thought I have had since the Court granted certiorari back in November. Might the Court (or at least the center of the Court) care more about a number of other issues heading the Court's way in the next few Terms--issues like affirmative action, campaign finance, voting rights, gay marriage, and the like? And might deciding this case in favor of the ACA's constitutionality essentially buy the Court a great deal more leeway with Democrats (and perhaps the public more generally), which would permit the Justices a much freer hand to pursue a more conservative agenda with respect to these other issues?
Much has been discussed recently about public opinion and its impact on the Court's decision making. In this case, the American public seems reasonably split on the ACA as a whole, and rather significantly against the minimum coverage provision. But there is also a fair amount of support for the ACA and the individual mandate. Suffice it to say that the Court has plenty of political room to decide this case however it chooses without fearing a truly threatening political reprisal. No political coalition could mount any sort of credible threat to the Court in response to its opinion, at least under present circumstances. (The Republicans might conceivably have such power following a landslide in November, but they would also then have the power simply to repeal the ACA, rendering any attack on the Court pointless and counterproductive.)
What the Court might rightly fear, though, is a growing perception that its decisions are partisan. Bush v. Gore and Citizens United are not too far in the rearview mirror. If the Court, over a series of years, decides these highly partisan questions (referenced above) along fairly predictable partisan lines--with the five Republican appointees voting one way and the four Democratic appointees the other--it might well threaten the Court's long-term "diffuse support." As much research has shown, the Court's popularity does not seem to take much of a hit when it renders a decision with which the public disagrees. What seems to matter is the public's perception that the Court is acting based on the Justices' sincere views of the law. This may be ideological, but it is legal (or constitutional) in nature.
This suggests that the converse (or is it obverse?) may be true as well. That is, even if the Court renders decisions that a majority of the public (or close to a majority) supports in terms of immediate result, the Court could still suffer a hit to its prestige if the perception grows that those decisions can be explained in purely partisan terms.
Just to be clear, this problem is not necessarily of the Court's making. It stems in part from the historical circumstance that the Court's five predictably conservative Justices were appointed by one party, and its four predictably liberal Justices were appointed by another. It also stems from the historical circumstance that the major parties seem to cleave on strict partisan lines on most all of these constitutional questions heading to the Court. Moreover, for this dynamic to create problems for Court, the public's perception need not be accurate. (Indeed, I personally think it would be quite wrong; to me, the Justices seem quite driven by ideology and deeply held constitutional views, but rarely, if ever, by partisan concerns.)
Thus, one could see the Court--or the center of the Court--deciding that the ACA decision is an opportunity for the Justices to make a show of their bipartisanship, a display of how it stands above the partisan politics infecting the other branches. Though certainly a lot of people would be very unhappy with the result, and would disagree sharply with the decision, such a decision could well (taking the longer view) enhance the Court's long-term prestige by being the salient counter-example to the Court's high-profile conservative decisions--including those likely to come, such as striking down Section 5 of the Voting Rights Act, upholding much (or all) of Arizona's S.B. 1070, and reaffirming Citizens United.
One more point to clarify. I am not suggesting that the Justices should act in this way. Nor am I suggesting that this would be a conscious aspect of their subjective thought processes. Rather, I am suggesting that, as a Supreme Court Justice--particularly a median Justice, or a Chief Justice--these sorts of circumstances are bound to seep into one's brain and subtly influence the way one sees the relevant precedents, legal arguments, and logical implications of the decision. The human brain works in all sorts of ways that we cannot perceive. Social psychologists attest that we often, imperceptibly, reach a result first, and then subjectively experience the analytic reasoning that leads to that result. The "real" reasons for the initial setting on a particular result never come into our subjective view.
In any event, if the Court upholds the individual mandate, these broader concerns may provide a plausible--albeit, completely unverifiable--explanation. Just a thought.
Here is a thought I have had since the Court granted certiorari back in November. Might the Court (or at least the center of the Court) care more about a number of other issues heading the Court's way in the next few Terms--issues like affirmative action, campaign finance, voting rights, gay marriage, and the like? And might deciding this case in favor of the ACA's constitutionality essentially buy the Court a great deal more leeway with Democrats (and perhaps the public more generally), which would permit the Justices a much freer hand to pursue a more conservative agenda with respect to these other issues?
Much has been discussed recently about public opinion and its impact on the Court's decision making. In this case, the American public seems reasonably split on the ACA as a whole, and rather significantly against the minimum coverage provision. But there is also a fair amount of support for the ACA and the individual mandate. Suffice it to say that the Court has plenty of political room to decide this case however it chooses without fearing a truly threatening political reprisal. No political coalition could mount any sort of credible threat to the Court in response to its opinion, at least under present circumstances. (The Republicans might conceivably have such power following a landslide in November, but they would also then have the power simply to repeal the ACA, rendering any attack on the Court pointless and counterproductive.)
What the Court might rightly fear, though, is a growing perception that its decisions are partisan. Bush v. Gore and Citizens United are not too far in the rearview mirror. If the Court, over a series of years, decides these highly partisan questions (referenced above) along fairly predictable partisan lines--with the five Republican appointees voting one way and the four Democratic appointees the other--it might well threaten the Court's long-term "diffuse support." As much research has shown, the Court's popularity does not seem to take much of a hit when it renders a decision with which the public disagrees. What seems to matter is the public's perception that the Court is acting based on the Justices' sincere views of the law. This may be ideological, but it is legal (or constitutional) in nature.
This suggests that the converse (or is it obverse?) may be true as well. That is, even if the Court renders decisions that a majority of the public (or close to a majority) supports in terms of immediate result, the Court could still suffer a hit to its prestige if the perception grows that those decisions can be explained in purely partisan terms.
Just to be clear, this problem is not necessarily of the Court's making. It stems in part from the historical circumstance that the Court's five predictably conservative Justices were appointed by one party, and its four predictably liberal Justices were appointed by another. It also stems from the historical circumstance that the major parties seem to cleave on strict partisan lines on most all of these constitutional questions heading to the Court. Moreover, for this dynamic to create problems for Court, the public's perception need not be accurate. (Indeed, I personally think it would be quite wrong; to me, the Justices seem quite driven by ideology and deeply held constitutional views, but rarely, if ever, by partisan concerns.)
Thus, one could see the Court--or the center of the Court--deciding that the ACA decision is an opportunity for the Justices to make a show of their bipartisanship, a display of how it stands above the partisan politics infecting the other branches. Though certainly a lot of people would be very unhappy with the result, and would disagree sharply with the decision, such a decision could well (taking the longer view) enhance the Court's long-term prestige by being the salient counter-example to the Court's high-profile conservative decisions--including those likely to come, such as striking down Section 5 of the Voting Rights Act, upholding much (or all) of Arizona's S.B. 1070, and reaffirming Citizens United.
One more point to clarify. I am not suggesting that the Justices should act in this way. Nor am I suggesting that this would be a conscious aspect of their subjective thought processes. Rather, I am suggesting that, as a Supreme Court Justice--particularly a median Justice, or a Chief Justice--these sorts of circumstances are bound to seep into one's brain and subtly influence the way one sees the relevant precedents, legal arguments, and logical implications of the decision. The human brain works in all sorts of ways that we cannot perceive. Social psychologists attest that we often, imperceptibly, reach a result first, and then subjectively experience the analytic reasoning that leads to that result. The "real" reasons for the initial setting on a particular result never come into our subjective view.
In any event, if the Court upholds the individual mandate, these broader concerns may provide a plausible--albeit, completely unverifiable--explanation. Just a thought.
Tomorrow is possible
But quite unlikely.
Again, for those who (having better things to do with your lives) do not follow the Supreme Court's every move, there is no official indication in advance as to which opinions the Court will hand down on a given day. All we know for certain is that the Justices will issue one or more opinions tomorrow. And those opinions could include HHS v. Florida, Florida v. HHS, and NFIB v. Sebelius.
The reasons almost everyone thinks that unlikely are (1) the decisions a are extremely complex (especially if the Court needs to get mired in the severability questions), (2) the cases are extremely important, such that the Justices want to take great care in crafting precisely what they write, (3) the issues are extremely contested, meaning there are apt to be sharp exchanges between the majority and dissenting Justices (requiring multiple revisions to capture the back-and-forth), and (4) the cases were argued in late March, giving the Court a relatively short time frame to accomplish all the writing. Together, these circumstances suggest the Court will probably use all the time available to complete these opinions.
So, we can all get on SCOTUSblog's live blog (which, by the way, is a terrific resource) tomorrow morning at 10:00 EDT to see what the Court does. But we are much more likely to find out whether the Stolen Valor Act is constitutional (and perhaps the ways in which the FCC can or cannot regulate "fleeting expletives") than whether the ACA is within Congress's enumerated powers.
Again, for those who (having better things to do with your lives) do not follow the Supreme Court's every move, there is no official indication in advance as to which opinions the Court will hand down on a given day. All we know for certain is that the Justices will issue one or more opinions tomorrow. And those opinions could include HHS v. Florida, Florida v. HHS, and NFIB v. Sebelius.
The reasons almost everyone thinks that unlikely are (1) the decisions a are extremely complex (especially if the Court needs to get mired in the severability questions), (2) the cases are extremely important, such that the Justices want to take great care in crafting precisely what they write, (3) the issues are extremely contested, meaning there are apt to be sharp exchanges between the majority and dissenting Justices (requiring multiple revisions to capture the back-and-forth), and (4) the cases were argued in late March, giving the Court a relatively short time frame to accomplish all the writing. Together, these circumstances suggest the Court will probably use all the time available to complete these opinions.
So, we can all get on SCOTUSblog's live blog (which, by the way, is a terrific resource) tomorrow morning at 10:00 EDT to see what the Court does. But we are much more likely to find out whether the Stolen Valor Act is constitutional (and perhaps the ways in which the FCC can or cannot regulate "fleeting expletives") than whether the ACA is within Congress's enumerated powers.
Monday, June 18, 2012
Outstanding opinions, updated
So here is what is left of the Term, updated to reflect today's decisions. There are essentially eight outstanding decisions, aside from the ACA cases:
1. First American Financial Corp. v. Edwards (argued November 28)
2. Knox v. SEIU (argued January 10)
3. FCC v. Fox Television Stations (argued January 10)
4. United States v. Alvarez (argued February 22)
5. Southern Union Co. v. United States (argued March 19)
6. Miller v. Alabama and Jackson v. Hobbs (argued March 20)
7. Dorsey v. United States (curvelined with Hill v. United States) (argued April 17)
8. Arizona v. United States (argued April 25)
Also noteworthy is that the Court took no action today in American Tradition Partnership v. Bullock, the Montana campaign finance case raising a challenge to Citizens United. This development increases the likelihood that the Court is preparing an opinion summarily reversing. If so--though styled a "summary reversal"--that opinion is unlikely to be short. Justice Ginsburg (joined by Justice Breyer), in her statement earlier this spring that accompanied the Court's stay of the Montana Supreme Court's decision, expressed her interest in revisiting Citizens United. This suggests any disposition in Bullock is apt to be controversial and divisive among the Justices. We might surmise, then, that the Court is working on nine non-ACA opinions at the moment in total.
The next day for hand down is this Thursday. It is reasonable to expect four to five more opinions on that day, which would leave four to five non-ACA opinions to go. That, combined with the ACA cases, is almost certainly too many for the Court to hand down next Monday alone.
Thus, the single most likely scenario at this point is that the ACA decisions come next Wednesday or Thursday, June 27 or 28. The Court should announce by this Thursday or Friday whether it will hand down opinions on any day next week other than Monday--and if so, which day (or days).
Not today
The Court handed down four opinions in argued cases today, and--needless to say--none involve the ACA. The earliest we theoretically could get an opinion is this coming Thursday, the next day scheduled for hand down. But realistically, it is looking more and more like next Wednesday (June 27) or Thursday (June 28).
Thursday, June 14, 2012
What is left on the Court's docket, and what it might mean for the ACA decision (corrected and revised)
(I omitted two cases in the original post. This version has been corrected.)
This post is intended for those who do not follow the Court's work closely, but are tuning in now largely because of the ACA decision. (For avid Court watchers, this stuff is terribly obvious, so I apologize.) My goal is just to briefly explain what work is left for the Court this Term, and how it might affect the timing of when HHS v. Florida (and Florida v. HHS and NFIB v. Sebelius) are handed down.
First, the numbers. Setting aside the ACA cases, the Court essentially has twelve other decisions to hand down. (I say essentially, because Miller v. Alabama and Jackson v. Hobbs are separate cases, though they raise the same basic Eighth Amendment question. Thus, they are sure to be decided together, whether in two opinions or one, and probably with the same majority opinion author.) Those are, in the order of argument:
1. First American Financial Corp. v. Edwards (argued November 28)
2. Williams v. Illinois (argued December 6)
3. Knox v. SEIU (argued January 10)
4. FCC v. Fox Television Stations (argued January 10)
5. United States v. Alvarez (argued February 22)
6. Southern Union Co. v. United States (argued March 19)
7. Miller v. Alabama and Jackson v. Hobbs (argued March 20)
8. Christopher v. SmithKine Beecham Corp. (argued April 16)
9. Dorsey v. United States (curvelined with Hill v. United States) (argued April 17)
10. Salazar v. Ramah Navajo Chapter (argued April 18)
11. Match-E-Be-Nash-She-Wish Band v. Patchak (curvelined with Salazar v. Patchak) (argued April 24)
12. Arizona v. United States (argued April 25)
The Court will hand down one or more opinions--almost certainly more than one--this coming Monday, June 18. The Court will then announce--probably on Monday, probably before noon--whether it will hand down any more opinions later next week. Of course, it will not announce which opinions, just whether it will hand any more down.
In recent Terms, the Court has handed down opinions on Wednesdays or Thursdays of both of the last two weeks of the Term, in addition to the regularly scheduled Mondays. And the Court has already announced that it will issue one or more opinions next Thursday, June 21.
Even so, given that the Court almost never issues more than four or five opinions on the same day, it seems exceedingly unlikely that the Court will hand down the ACA decisions next week--at least if we assume that they will be issued on the last day of the Term. And this seems a safe assumption given their contentiousness and potential complexity.
So putting these pieces together, the earliest date for the ACA decisions would seem to be Monday, June 25. And we will know a great deal more about how likely that date is by next Thursday. If the Court has handed down virtually all of the twelve opinions listed above by next Thursday, then June 25 would likely be the last day of the Term. But if the Court only hands down, say, five or six opinions next week, it will need at least two days the following week to hand down what remains. This would push the last day of the Term to Wednesday, June 27, or Thursday, June 28. And if we again assume the ACA decisions will come on the Term's last day, they would be pushed to that date.
There is also one important wildcard. Scheduled for today's conference was American Tradition Partnership v. Bullock, the Montana case that, in some sense, directly challenges the Court's decision in Citizens United. It is almost certain the Court will do something significant here, something other than deny certiorari. If the Court simply grants cert (which we should know by Monday), then American Tradition Partnership will not add to the Court's present workload. But if the Court is summarily reversing the Montana Supreme Court (which is what the petitioners seek), the Court will need to write an additional opinion, which will surely prompt at least one dissent, which will in turn prompt some substantial additions to the majority opinion. So if the Court decides to decide American Tradition Partnership on the merits right now, it could push the Court's Term out further than we would otherwise project (based on the number of argued cases outstanding).
Of course, the Court can ultimately do whatever it wants in terms of the timing of its decisions. If for some reasons the Justices feel they need more time, nothing prevents them from taking a few more weeks. But the institutional norms surrounding these practices are fairly well entrenched, and have obviously produced a swarm of external expectations. At this point, breaking with those traditional practices--unless absolutely necessary--would bring down on the Court some extremely intense (and unwanted) speculation.
So there it is, in a nutshell. Plan your vacations accordingly.
This post is intended for those who do not follow the Court's work closely, but are tuning in now largely because of the ACA decision. (For avid Court watchers, this stuff is terribly obvious, so I apologize.) My goal is just to briefly explain what work is left for the Court this Term, and how it might affect the timing of when HHS v. Florida (and Florida v. HHS and NFIB v. Sebelius) are handed down.
First, the numbers. Setting aside the ACA cases, the Court essentially has twelve other decisions to hand down. (I say essentially, because Miller v. Alabama and Jackson v. Hobbs are separate cases, though they raise the same basic Eighth Amendment question. Thus, they are sure to be decided together, whether in two opinions or one, and probably with the same majority opinion author.) Those are, in the order of argument:
1. First American Financial Corp. v. Edwards (argued November 28)
2. Williams v. Illinois (argued December 6)
3. Knox v. SEIU (argued January 10)
4. FCC v. Fox Television Stations (argued January 10)
5. United States v. Alvarez (argued February 22)
6. Southern Union Co. v. United States (argued March 19)
7. Miller v. Alabama and Jackson v. Hobbs (argued March 20)
8. Christopher v. SmithKine Beecham Corp. (argued April 16)
9. Dorsey v. United States (curvelined with Hill v. United States) (argued April 17)
10. Salazar v. Ramah Navajo Chapter (argued April 18)
11. Match-E-Be-Nash-She-Wish Band v. Patchak (curvelined with Salazar v. Patchak) (argued April 24)
12. Arizona v. United States (argued April 25)
The Court will hand down one or more opinions--almost certainly more than one--this coming Monday, June 18. The Court will then announce--probably on Monday, probably before noon--whether it will hand down any more opinions later next week. Of course, it will not announce which opinions, just whether it will hand any more down.
In recent Terms, the Court has handed down opinions on Wednesdays or Thursdays of both of the last two weeks of the Term, in addition to the regularly scheduled Mondays. And the Court has already announced that it will issue one or more opinions next Thursday, June 21.
Even so, given that the Court almost never issues more than four or five opinions on the same day, it seems exceedingly unlikely that the Court will hand down the ACA decisions next week--at least if we assume that they will be issued on the last day of the Term. And this seems a safe assumption given their contentiousness and potential complexity.
So putting these pieces together, the earliest date for the ACA decisions would seem to be Monday, June 25. And we will know a great deal more about how likely that date is by next Thursday. If the Court has handed down virtually all of the twelve opinions listed above by next Thursday, then June 25 would likely be the last day of the Term. But if the Court only hands down, say, five or six opinions next week, it will need at least two days the following week to hand down what remains. This would push the last day of the Term to Wednesday, June 27, or Thursday, June 28. And if we again assume the ACA decisions will come on the Term's last day, they would be pushed to that date.
There is also one important wildcard. Scheduled for today's conference was American Tradition Partnership v. Bullock, the Montana case that, in some sense, directly challenges the Court's decision in Citizens United. It is almost certain the Court will do something significant here, something other than deny certiorari. If the Court simply grants cert (which we should know by Monday), then American Tradition Partnership will not add to the Court's present workload. But if the Court is summarily reversing the Montana Supreme Court (which is what the petitioners seek), the Court will need to write an additional opinion, which will surely prompt at least one dissent, which will in turn prompt some substantial additions to the majority opinion. So if the Court decides to decide American Tradition Partnership on the merits right now, it could push the Court's Term out further than we would otherwise project (based on the number of argued cases outstanding).
Of course, the Court can ultimately do whatever it wants in terms of the timing of its decisions. If for some reasons the Justices feel they need more time, nothing prevents them from taking a few more weeks. But the institutional norms surrounding these practices are fairly well entrenched, and have obviously produced a swarm of external expectations. At this point, breaking with those traditional practices--unless absolutely necessary--would bring down on the Court some extremely intense (and unwanted) speculation.
So there it is, in a nutshell. Plan your vacations accordingly.
Monday, June 4, 2012
Necessary, proper, and "bootstrapping"
I wanted to make another quick point, much like my post on Friday, that is probably so banal as to be embarrassing. But the matter gets confused enough in discussions (and briefs and even judicial opinions) that it probably bears some clarification.
One argument that some challengers to the minimum coverage provision's constitutionality have repeatedly raised is that the government cannot make a statutory provision "necessary and proper" simply by creating a regulatory scheme that includes the provision, with the constitutionally problematic provision being integral to the scheme (and thus, by argument, constitutional as "necessary and proper" to a broader regulatory scheme.) This would be impermissible "bootstrapping." In other words, the government cannot render an otherwise unconstitutional provision constitutional by enacting other provisions that will not function without the constitutionally problematic provision.
This seems correct, as far as it goes. But I do not think it accurately characterizes what is going on here.
Properly conceived, the relevant question is not (or not simply) whether the minimum coverage provision is "necessary and proper" given the enactment of the guarantee-issue and community-rating provisions in the ACA. And the relevant problem here is not the operation of the regulatory scheme absent the minimum coverage provision. Rather, the relevant problem is the manner in which the current, pre-ACA (or pre-2014) individual insurance market functions (or fails to function)--a market operates to discriminate against those with pre-existing conditions and leaves insurance unaffordable for a huge swath of Americans. That is not a problem of the ACA's creation, but well predates the statute.
Congress thus responded with a particular regulatory approach--the now-famous (or infamous) "three-legged stool," of which the insurance mandate is one of the legs. From the government's perspective, the mandate is necessary not simply because the stool will fall down without it. Rather, it is necessary (that is, "conducive" or "appropriate") to ameliorating pathologies in the non-group insurance market, pathologies that existed long before the ACA.
Again, we can debate whether it is really "necessary," and whether such a reading of necessity leaves anything beyond Congress's reach. But to characterize the government's argument as impermissible "bootstrapping" fundamentally misses the way in which the Act attempts to respond to a problem that is not a problem of the statute's own creation.
One argument that some challengers to the minimum coverage provision's constitutionality have repeatedly raised is that the government cannot make a statutory provision "necessary and proper" simply by creating a regulatory scheme that includes the provision, with the constitutionally problematic provision being integral to the scheme (and thus, by argument, constitutional as "necessary and proper" to a broader regulatory scheme.) This would be impermissible "bootstrapping." In other words, the government cannot render an otherwise unconstitutional provision constitutional by enacting other provisions that will not function without the constitutionally problematic provision.
This seems correct, as far as it goes. But I do not think it accurately characterizes what is going on here.
Properly conceived, the relevant question is not (or not simply) whether the minimum coverage provision is "necessary and proper" given the enactment of the guarantee-issue and community-rating provisions in the ACA. And the relevant problem here is not the operation of the regulatory scheme absent the minimum coverage provision. Rather, the relevant problem is the manner in which the current, pre-ACA (or pre-2014) individual insurance market functions (or fails to function)--a market operates to discriminate against those with pre-existing conditions and leaves insurance unaffordable for a huge swath of Americans. That is not a problem of the ACA's creation, but well predates the statute.
Congress thus responded with a particular regulatory approach--the now-famous (or infamous) "three-legged stool," of which the insurance mandate is one of the legs. From the government's perspective, the mandate is necessary not simply because the stool will fall down without it. Rather, it is necessary (that is, "conducive" or "appropriate") to ameliorating pathologies in the non-group insurance market, pathologies that existed long before the ACA.
Again, we can debate whether it is really "necessary," and whether such a reading of necessity leaves anything beyond Congress's reach. But to characterize the government's argument as impermissible "bootstrapping" fundamentally misses the way in which the Act attempts to respond to a problem that is not a problem of the statute's own creation.
Spreadsheet updated
Just a small note that I have updated the spreadsheet linked above, with only some minor alterations. All the litigation in the lower courts has either been formally stayed pending the outcome of HHS v. Florida, or is informally in a holding pattern until the Supreme Court's decision comes down.
Friday, June 1, 2012
A small note on the limiting principle
Those here know the importance to the government of successfully articulating a "limiting principle" to its argument--in short, being able to explain why the Court's upholding the minimum coverage provision will not effectively grant Congress a general police power.
So much has been written on this subject that I hesitate to say any more. But there is a little part of this discussion that has bothered me, so I just can't help myself.
My small point is this: The government's proposed limiting principle is that the minimum coverage provision is necessary to the effectiveness of a regulatory scheme that, taken as a whole, plainly regulates interstate commerce. Only provisions that are so necessary (if they do not directly regulate interstate commerce themselves) are within Congress's authority.
This probably seems obvious. But too often the government's articulated limiting principle has been mishcharacterized as some sort of ad hoc, jury-rigged set of factors pegged to the distinctiveness of the health care market (e.g., that almost is everyone is in that market, that the costs are exorbitant, that they are unpredictable, and that the absence of insurance thus results in massive cost-shifting). These are all reasons that the government believes that an individual mandate is truly critical here, and thus easily satisfies the standard of necessity. It is also a means of showing that many other purchasing mandates would not be "necessary."
But these factors are not a "limiting principle" themselves. The limiting principle is "necessity," taken straight from the text of Article I, section 8, clause 18. The oft-cited factors are merely the factual bases for arguing that the minimum coverage provision satisfies this requirement of necessity.
Of course, one might be dissatisfied with this principle on the grounds that, in practice, it really is not a limit. No doubt, the Court's review of "necessity" under the Necessary and Proper Clause has been quite deferential since M'Culloch, and there is a decent argument that it is difficult to devise any sort of judicially manageable standard that operationalizes "necessity" so as to have any teeth. Fair points, to be sure. Thus, Ilya Somin would argue (I think) that if this is your limiting principle, it leads us down a slippery slope justifying all sorts of purchasing mandates. (I'm not sure I agree, but I certainly see the point.)
My only point here is that the "limiting principle" itself proposed by the government is indeed principled. It is not ad hoc or gerrymandered to suit this case (as Justice Scalia seemed to suggest at oral argument). In other words, the problem is not really the principle itself--a principle grounded in the text of the Constitution, and well explained by Justice Scalia in his Raich concurrence. Rather, the precise problem concerns fears about the judicial enforceability of the standard of necessity.
So much has been written on this subject that I hesitate to say any more. But there is a little part of this discussion that has bothered me, so I just can't help myself.
My small point is this: The government's proposed limiting principle is that the minimum coverage provision is necessary to the effectiveness of a regulatory scheme that, taken as a whole, plainly regulates interstate commerce. Only provisions that are so necessary (if they do not directly regulate interstate commerce themselves) are within Congress's authority.
This probably seems obvious. But too often the government's articulated limiting principle has been mishcharacterized as some sort of ad hoc, jury-rigged set of factors pegged to the distinctiveness of the health care market (e.g., that almost is everyone is in that market, that the costs are exorbitant, that they are unpredictable, and that the absence of insurance thus results in massive cost-shifting). These are all reasons that the government believes that an individual mandate is truly critical here, and thus easily satisfies the standard of necessity. It is also a means of showing that many other purchasing mandates would not be "necessary."
But these factors are not a "limiting principle" themselves. The limiting principle is "necessity," taken straight from the text of Article I, section 8, clause 18. The oft-cited factors are merely the factual bases for arguing that the minimum coverage provision satisfies this requirement of necessity.
Of course, one might be dissatisfied with this principle on the grounds that, in practice, it really is not a limit. No doubt, the Court's review of "necessity" under the Necessary and Proper Clause has been quite deferential since M'Culloch, and there is a decent argument that it is difficult to devise any sort of judicially manageable standard that operationalizes "necessity" so as to have any teeth. Fair points, to be sure. Thus, Ilya Somin would argue (I think) that if this is your limiting principle, it leads us down a slippery slope justifying all sorts of purchasing mandates. (I'm not sure I agree, but I certainly see the point.)
My only point here is that the "limiting principle" itself proposed by the government is indeed principled. It is not ad hoc or gerrymandered to suit this case (as Justice Scalia seemed to suggest at oral argument). In other words, the problem is not really the principle itself--a principle grounded in the text of the Constitution, and well explained by Justice Scalia in his Raich concurrence. Rather, the precise problem concerns fears about the judicial enforceability of the standard of necessity.
On the origins of the constitutional arguments against the mandate
A few interesting writings out there today on exactly when the argument that an individual mandate to purchase health insurance might be unconstitutional began to emerge, and when they started to gain any traction. Andrew Koppleman has this piece at Salon, and Ilya Somin responds here over at The Volokh Conspiracy. Both worth a read.
Wednesday, May 30, 2012
Back at it
After a two month hiatus of classes, exams, and administrative work, I am ready to dig back into all things ACA. As everyone knows, the opinions are most likely to be handed down the week of June 25. More specifically, the most likely dates are June 25, June 27, and June 28. (The Court typically hands down opinions the final week on Mondays and Thursdays, and occasionally on Wednesdays.) So that means we are within four weeks. I will try to keep up with what is going on between now and then.
Wednesday, March 28, 2012
Risky business
Of course, all the usual caveats apply--oral argument can be misleading, it is hard to know exactly what the justices are thinking, etc., etc.
That said, most everyone seems to agree that the Court is headed towards invalidating the minimum coverage provision. Moreover, after listening to this morning's argument, there seems at least a non-trivial chance that the Court will invalidate the entire ACA, all 2,700 pages, because the individual mandate is unseverable. (This would conveniently moot the Medicaid question that bedeviled them this afternoon.)
If the Court were to take both of these steps, I fear it would thrust itself into a full-fledged political maelstrom, the intensity of which the justices are unlikely to appreciate. Justice Thomas could not care less; he has said as much, many times. Justice Scalia probably feels the same way; the Constitution says what it says, period.
But the Court, regardless of its politics, cannot afford to be wholly oblivious to the political consequences of its decisions, at least as they relate to its own institutional standing. A decision invalidating the ACA (especially one that takes down the Act in its entirety), rendered by a predictable 5-4 split, will serve to reinforce the notion among many Americans that the Court is no more than another partisan institution, one that operates much like the other branches. That would be wrong factually, but I fear it would be the prevalent perception. And such a perception could do real lasting damage to the Court.
The danger seems especially acute given all the other highly partisan, ideological issues presently heading the Court's way. Consider the following cases the Court is apt to decide in the next 2 or 3 years: the Arizona immigration case (to be argued next month); the Texas affirmative action case (to be argued in the fall); the Citizens United sequel from Montana (cert petition filed earlier this week); the constitutionality of Section 5 of the Voting Rights Act (currently percolating in the courts of appeals); the constitutionality of California's Proposition 8 banning gay marriage (currently awaiting a decision from the Ninth Circuit about an en banc hearing); and the constitutionality of the Defense of Marriage Act (also percolating in the courts of appeals).
Again, we are just speculating at this point. But a steady stream of highly divisive, conservative 5-4 decisions, led off by a decision to invalidate the most important federal statute in a generation, could be toxic. It could take years for the Court to regain its standing among the American public.
This is not a partisan concern. It is a concern--voiced eloquently by Chief Justice Roberts on several occasions--rooted in beliefs about the importance of the Supreme Court, the independence of the federal judiciary, and ultimately the rule of law.
In other words, I fear the justices might be playing with fire. I sure hope they are careful.
That said, most everyone seems to agree that the Court is headed towards invalidating the minimum coverage provision. Moreover, after listening to this morning's argument, there seems at least a non-trivial chance that the Court will invalidate the entire ACA, all 2,700 pages, because the individual mandate is unseverable. (This would conveniently moot the Medicaid question that bedeviled them this afternoon.)
If the Court were to take both of these steps, I fear it would thrust itself into a full-fledged political maelstrom, the intensity of which the justices are unlikely to appreciate. Justice Thomas could not care less; he has said as much, many times. Justice Scalia probably feels the same way; the Constitution says what it says, period.
But the Court, regardless of its politics, cannot afford to be wholly oblivious to the political consequences of its decisions, at least as they relate to its own institutional standing. A decision invalidating the ACA (especially one that takes down the Act in its entirety), rendered by a predictable 5-4 split, will serve to reinforce the notion among many Americans that the Court is no more than another partisan institution, one that operates much like the other branches. That would be wrong factually, but I fear it would be the prevalent perception. And such a perception could do real lasting damage to the Court.
The danger seems especially acute given all the other highly partisan, ideological issues presently heading the Court's way. Consider the following cases the Court is apt to decide in the next 2 or 3 years: the Arizona immigration case (to be argued next month); the Texas affirmative action case (to be argued in the fall); the Citizens United sequel from Montana (cert petition filed earlier this week); the constitutionality of Section 5 of the Voting Rights Act (currently percolating in the courts of appeals); the constitutionality of California's Proposition 8 banning gay marriage (currently awaiting a decision from the Ninth Circuit about an en banc hearing); and the constitutionality of the Defense of Marriage Act (also percolating in the courts of appeals).
Again, we are just speculating at this point. But a steady stream of highly divisive, conservative 5-4 decisions, led off by a decision to invalidate the most important federal statute in a generation, could be toxic. It could take years for the Court to regain its standing among the American public.
This is not a partisan concern. It is a concern--voiced eloquently by Chief Justice Roberts on several occasions--rooted in beliefs about the importance of the Supreme Court, the independence of the federal judiciary, and ultimately the rule of law.
In other words, I fear the justices might be playing with fire. I sure hope they are careful.
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