7:10: Here it is: it is upheld!
7:07: The Court shortly will hand down First American Financial, and then the health care cases (unless Roberts has First American, too).
7:05: Scalia, Alito, and Thomas dissent in Alvarez.
7:02: The first opinion of the day is down. It is Alvarez. Kennedy has the opinion, but it is only a plurality. Ninth Circuit is affirmed, meaning the Stolen Valor Act is unconstitutional as written.
7:01: They are now in the courtroom.
6:57: Another very interesting question is whether, if they uphold the Medicaid expansion, they decide to kill the "coercion doctrine" altogether, which they have mentioned on a couple of occasions but never actually enforced.
6:55: If they invalidate the mandate, it is fairly predictable what the opinion will look like. They have no incentive to write more broadly than necessary. But it is not clear at all what an opinion upholding the mandate would look like. I hazarded a guess a few days ago, but that was just a stab.
6:45: We are still 15 minutes form the justices entering the courtroom. My gut tells me that, if I had to pick, they will invalidate the mandate but find it (or it, guarantee issue, and community rating) severable, and then uphold the Medicaid expansion. But I've been wrong so many times in the last two years that it is not worth putting any stock in my sense at all. Regardless, I'm pretty confident that the Chief Justice will be writing the principal opinion.
Thursday, June 28, 2012
Inside 90 minutes
Again, the link to send you directly to the SCOTUBblog live blog is here. I will be following it (and a few other sites) and constantly updating a thread here. Just to repeat, First American Financial and Alvarez are likely to be announced before the health care cases. So we will probably not actually get the ACA decisions until roughly 10:10 or 10:15 EDT.
Wednesday, June 27, 2012
Eleven hours
We have endured or enjoyed two years, three months, and four days of this already. We now have only eleven hours until the dramatic finish.
I will be up before the crack of dawn at my computer. And I will open up a post, which I will update as the opinions are handed down. I will be away from a computer (to take our son to day camp) for about an hour, from 11:00 to noon EDT, and then be back at it for the rest of the day.
I wish the best to everyone. Regardless of where you stand on the basic questions, it has been quite a fascinating ride.
I will be up before the crack of dawn at my computer. And I will open up a post, which I will update as the opinions are handed down. I will be away from a computer (to take our son to day camp) for about an hour, from 11:00 to noon EDT, and then be back at it for the rest of the day.
I wish the best to everyone. Regardless of where you stand on the basic questions, it has been quite a fascinating ride.
Scalia and politics
This is only tangentially related to tomorrow's decisions. But it is nonetheless fascinating to see the most prestigious and intellectually admired federal court of appeals judge, Richard Posner, call out (fellow Reagan appointee) Justice Scalia on being excessively political from the bench. You can read it here.
Why Medicaid may be the bigger question
There are essentially four reasons that the ACA cases are probably the biggest to come before the Supreme Court in a generation: (1) the political consequences; (2) the implications for the Court as an institution and its role in our constitutional system; (3) the consequences for public policy; and (4) the consequences for constitutional law. These cases rate highly along all four dimensions.
The question of the constitutionality of the minimum coverage provision probably rates higher than the Medicaid question on (1) and (2). The individual mandate has come to symbolize the ACA, and even the administration concedes it is "central" to the Act--an Act that is the central legislative achievement of the incumbent President, who is in the heat of a reelection campaign. The political ramifications--though perhaps unclear--will be substantial. Further, whether the Court (for the first time in nearly 80 years) is willing to invalidate a hugely important federal regulatory program as exceeding Congress's enumerated powers will speak volumes about the Court's conception of its role. To be sure, as a doctrinal matter, it is well established that the Court can decide the breadth of Congress's commerce and taxing powers. But the ACA is not the Gun-Free School Zones Act. Nor is it § 13981 of the Violence Against Women Act. At stake is legislation infinitely more important. So the willingness of the justices to exert their authority to check Congress here will say a great deal about the Court as an institution.
On points (3) and (4), though, I think the Medicaid question is more significant, perhaps by a wide margin. As to policy, Medicaid stands as perhaps the most significant social welfare program in the Nation (along with Medicare and Social Security). No doubt, it is the most significant redistributive program, as it only aids the poor and the disabled. Roughly half of the coverage expansion contemplated by the ACA will be achieved through its expansion of Medicaid, extending insurance to roughly 18 million more Americans per year. If this goes away, it will be a very big deal. Moreover, it is not easy to see how a decision that invalidates the Act's Medicaid expansion would not, in some way, endanger Medicaid as it existed prior to the ACA. (The sums provided by the federal government to the States are nearly the same, and thus arguably just as coercive.) Needless to say, a decision that jeopardized Medicaid more generally would be a huge policy development.
And such a decision would mark the first time in its history that the Court invalidated a cooperative spending program on the ground that it "coerced" the States. Depending on what exactly the opinion says, it could well impose significant constraints on many programs--both those that already exist (such as the massive educational funding the federal government provides the States) and those potentially to be enacted in the future.
A decision invalidating the individual mandate will probably be quite narrow and cabined, pinned to its rather distinctive characteristics. Given the political costs, it is hard to imagine Congress imposing purchasing mandates on a regular basis. Thus, the impact on constitutional law, in this sense, would likely be small. But the implications of invalidating the ACA's Medicaid expansion would be hard to constrain, no matter how hard the Court might try. Thus, I think its impact on constitutional law would actually be more significant in the long run.
In the end, then, though most of the smoke has surrounded the minimum coverage provision, the Medicaid issue might provide the real fire.
The question of the constitutionality of the minimum coverage provision probably rates higher than the Medicaid question on (1) and (2). The individual mandate has come to symbolize the ACA, and even the administration concedes it is "central" to the Act--an Act that is the central legislative achievement of the incumbent President, who is in the heat of a reelection campaign. The political ramifications--though perhaps unclear--will be substantial. Further, whether the Court (for the first time in nearly 80 years) is willing to invalidate a hugely important federal regulatory program as exceeding Congress's enumerated powers will speak volumes about the Court's conception of its role. To be sure, as a doctrinal matter, it is well established that the Court can decide the breadth of Congress's commerce and taxing powers. But the ACA is not the Gun-Free School Zones Act. Nor is it § 13981 of the Violence Against Women Act. At stake is legislation infinitely more important. So the willingness of the justices to exert their authority to check Congress here will say a great deal about the Court as an institution.
On points (3) and (4), though, I think the Medicaid question is more significant, perhaps by a wide margin. As to policy, Medicaid stands as perhaps the most significant social welfare program in the Nation (along with Medicare and Social Security). No doubt, it is the most significant redistributive program, as it only aids the poor and the disabled. Roughly half of the coverage expansion contemplated by the ACA will be achieved through its expansion of Medicaid, extending insurance to roughly 18 million more Americans per year. If this goes away, it will be a very big deal. Moreover, it is not easy to see how a decision that invalidates the Act's Medicaid expansion would not, in some way, endanger Medicaid as it existed prior to the ACA. (The sums provided by the federal government to the States are nearly the same, and thus arguably just as coercive.) Needless to say, a decision that jeopardized Medicaid more generally would be a huge policy development.
And such a decision would mark the first time in its history that the Court invalidated a cooperative spending program on the ground that it "coerced" the States. Depending on what exactly the opinion says, it could well impose significant constraints on many programs--both those that already exist (such as the massive educational funding the federal government provides the States) and those potentially to be enacted in the future.
A decision invalidating the individual mandate will probably be quite narrow and cabined, pinned to its rather distinctive characteristics. Given the political costs, it is hard to imagine Congress imposing purchasing mandates on a regular basis. Thus, the impact on constitutional law, in this sense, would likely be small. But the implications of invalidating the ACA's Medicaid expansion would be hard to constrain, no matter how hard the Court might try. Thus, I think its impact on constitutional law would actually be more significant in the long run.
In the end, then, though most of the smoke has surrounded the minimum coverage provision, the Medicaid issue might provide the real fire.
Talk that talk to me
That is about all that any of us can do at this point, with just over 21 hours to go:
* Randy Barnett offers his thanks here to everyone who has been along for the ride.
* Tom Goldstein offers his prediction here.
* Lyle Denniston sums it all up here.
* David Bernstein talks here about the decision and accusations of "activism."
* Jeffrey Rosen here discusses the possible connection between the Court's decision Monday in Arizona and the ACA decisions.
* John Cassidy has this about how conservatives have, in many senses, already won.
* NPR has this interview with Jamal Greene about the Court's decision making process.
* Robert Barnes has this on how the consensus is growing that the Chief has the majority opinion.
* Adam Liptak has this look back at the oral arguments.
* Elizabeth Wydra has this essay about the decision and the Court's legitimacy.
* Ross Douthat has this on the liberal embrace of judicial restraint.
* Nate Silver has this on how the public may not fully grasp the niceties of the Court's decision.
* Michael Shear has this article on the President's potential reactions to a loss.
* Jennifer Rubin has this on what happens if the Court upholds the ACA (and its potential benefit to Republicans on the campaign trail).
* Jake Sherman has this on how Republicans in Congress are likely to respond if some or all of the ACA is invalidated.
* Andrew Koppelman has this post at Balkinization.
And tomorrow, many of us undoubtedly will looking for love in a hopeless place.
* Randy Barnett offers his thanks here to everyone who has been along for the ride.
* Tom Goldstein offers his prediction here.
* Lyle Denniston sums it all up here.
* David Bernstein talks here about the decision and accusations of "activism."
* Jeffrey Rosen here discusses the possible connection between the Court's decision Monday in Arizona and the ACA decisions.
* John Cassidy has this about how conservatives have, in many senses, already won.
* NPR has this interview with Jamal Greene about the Court's decision making process.
* Robert Barnes has this on how the consensus is growing that the Chief has the majority opinion.
* Adam Liptak has this look back at the oral arguments.
* Elizabeth Wydra has this essay about the decision and the Court's legitimacy.
* Ross Douthat has this on the liberal embrace of judicial restraint.
* Nate Silver has this on how the public may not fully grasp the niceties of the Court's decision.
* Michael Shear has this article on the President's potential reactions to a loss.
* Jennifer Rubin has this on what happens if the Court upholds the ACA (and its potential benefit to Republicans on the campaign trail).
* Jake Sherman has this on how Republicans in Congress are likely to respond if some or all of the ACA is invalidated.
* Andrew Koppelman has this post at Balkinization.
And tomorrow, many of us undoubtedly will looking for love in a hopeless place.
Tuesday, June 26, 2012
Who are you calling obsessed?
Obsessed? Obsessed? Really?
My dear colleague, Kyle Graham, has written this about, well, us. Or at least me.
My dear colleague, Kyle Graham, has written this about, well, us. Or at least me.
The constitutionality of the IPAB
One question I continue to receive is, after the Court issues its decision on Thursday, will any issues remain to be litigated? The answer, of course, depends on what the Court holds. If the entire Act goes down, then nothing is left to litigate. But what if some, most, or all of the Act is upheld? In that case, there are still several issues that have not yet been conclusively resolved.
One of those concerns the constitutionality of the Independent Payment Advisory Board, the body created by the ACA to review and make recommendations concerning Medicare reimbursement rates. The plaintiffs in Coons v. Geithner, which is currently pending in the District Court for the District of Arizona, contend that the IPAB violates the separation of powers. (The lawsuit also contends that the minimum coverage provision exceeds Congress's enumerated powers. Thus, the matter has been stayed pending the Supreme Court's decision.)
What exactly is the challengers' claim against the IPAB? It is essentially a non-delegation doctrine claim, though it is not grounded simply in a claim that the ACA fails to articulate an "intelligible principle" to guide the Board's exercise of its discretion. Rather, the claim concerns both that discretion and the special rules that Congress imposed on itself on the ACA (much like with the Base Closing Commission) as to how it would enact the Board's recommendations in legislation. Here is the summative paragraph of the challengers' most recent filing:
But, hey, many of us were saying similar things, about other constitutional claims, in March 2010. You never know.
One of those concerns the constitutionality of the Independent Payment Advisory Board, the body created by the ACA to review and make recommendations concerning Medicare reimbursement rates. The plaintiffs in Coons v. Geithner, which is currently pending in the District Court for the District of Arizona, contend that the IPAB violates the separation of powers. (The lawsuit also contends that the minimum coverage provision exceeds Congress's enumerated powers. Thus, the matter has been stayed pending the Supreme Court's decision.)
What exactly is the challengers' claim against the IPAB? It is essentially a non-delegation doctrine claim, though it is not grounded simply in a claim that the ACA fails to articulate an "intelligible principle" to guide the Board's exercise of its discretion. Rather, the claim concerns both that discretion and the special rules that Congress imposed on itself on the ACA (much like with the Base Closing Commission) as to how it would enact the Board's recommendations in legislation. Here is the summative paragraph of the challengers' most recent filing:
The creation of IPAB represents the most sweeping delegation of congressional authority in history, a delegation that is anathema to our constitutional system of Separation of Powers and to responsible, accountable, democratic lawmaking. IPAB is insulated from congressional, presidential, judicial and electoral accountability to a degree never before seen. It is the totality of the factors insulating IPAB from our nation‘s system of checks and balances that renders it constitutionally objectionable.I have not spent a great deal of time investigating this, but it does not strike me as a particularly promising claim, especially to the extent that it relies on the parliamentary rules Congress has imposed on itself. Ultimately, Congress never need accept any of IPAB's recommendations; they must be affirmatively enacted by Congress before they become law. So I'm not sure how there could be a non-delegation problem.
But, hey, many of us were saying similar things, about other constitutional claims, in March 2010. You never know.
Revisiting Roberts at oral argument
Given that we have every reason to believe that the Chief Justice is authoring the majority opinion for the Court on the constitutionality of the minimum coverage provision, it is worth revisiting what he said--every word he said--at oral argument that might be relevant. (If reading the second amended complaint in Thomas More Law Center v. Obama was worth my time, then surely this is.) So, below the fold, are all of Roberts's substantive statements or questions relating to the individual mandate. (Omitted are his directions to counsel and his colleagues in the interests of policing the argument.) I trust all of you can recall or figure out the context prompting the Chief's comments or questions.
43 hours, 25 minutes and counting
Just to repeat, the Court has two other (reasonably important) decisions to hand down on Thursday: First American Financial Corp. v. Edwards and United States v. Alvarez. The practice at the Court, as most of you know, is to announce decisions in the reverse order of the author's seniority.
Because he is the only Justice yet to author a majority opinion from the December sitting, it seems quite likely Thomas is the author of First American Financial. (Because his views of Article III standing might be a bit miserly compared to his colleagues, however, it is possible his opinion will only represent a plurality--which would explain the delay in that opinion. Regardless, he would announce the Court's judgment from the bench, even if parts of his opinion did not garner five votes.) It is also likely that either Kennedy or Kagan has Alvarez, as neither of them has authored a majority from the February sitting. (My guess is that it is Kennedy, trying to fashion a narrow rationale based on the trademark-brand dilution idea he floated at oral argument.)
Further, as discussed yesterday, it is almost certain that the Chief Justice has the Court's opinion in the health care cases--or at least the opinion addressing the constitutionality of the minimum coverage provision.
If we put all of this together, it means that we will probably get the health care opinions at about 10:15 EDT on Thursday, as the announcements of First American Financial and Alvarez (whether by Kennedy or Kagan) are apt to come first.
This raises an interesting question. Suppose that a justice other than the Chief is authoring the Medicaid opinion. Technically, that opinion should be announced first. But if it were, it would give away at least part of the result in the other case, as it would at least reveal that the entire ACA had not been invalidated (i.e., it would reveal the result of the severability question). My guess, then, is that the Medicaid opinion would likely be announced second--regardless of the author (and assuming there is separate opinion in 11-400). And perhaps the point will be moot because the Chief has assigned both opinions to himself.
Because he is the only Justice yet to author a majority opinion from the December sitting, it seems quite likely Thomas is the author of First American Financial. (Because his views of Article III standing might be a bit miserly compared to his colleagues, however, it is possible his opinion will only represent a plurality--which would explain the delay in that opinion. Regardless, he would announce the Court's judgment from the bench, even if parts of his opinion did not garner five votes.) It is also likely that either Kennedy or Kagan has Alvarez, as neither of them has authored a majority from the February sitting. (My guess is that it is Kennedy, trying to fashion a narrow rationale based on the trademark-brand dilution idea he floated at oral argument.)
Further, as discussed yesterday, it is almost certain that the Chief Justice has the Court's opinion in the health care cases--or at least the opinion addressing the constitutionality of the minimum coverage provision.
If we put all of this together, it means that we will probably get the health care opinions at about 10:15 EDT on Thursday, as the announcements of First American Financial and Alvarez (whether by Kennedy or Kagan) are apt to come first.
This raises an interesting question. Suppose that a justice other than the Chief is authoring the Medicaid opinion. Technically, that opinion should be announced first. But if it were, it would give away at least part of the result in the other case, as it would at least reveal that the entire ACA had not been invalidated (i.e., it would reveal the result of the severability question). My guess, then, is that the Medicaid opinion would likely be announced second--regardless of the author (and assuming there is separate opinion in 11-400). And perhaps the point will be moot because the Chief has assigned both opinions to himself.
Terrific column by Charles Lane
A number of left-leaning folks have had great difficulty fully comprehending how the constitutional argument against the individual mandate has gained so much traction--has gone from being off-the-wall to the precipice of becoming the law of the land, and sinking the most important piece of domestic legislation in the last 50 years. Speaker Pelosi's words captured the sentiment well: "Are you serious? Are you serious?"
Well, yes, it is serious. Very much so. And I think Charles Lane's column in today's Washington Post, which you can access here, does a fantastic job (in a very short space) of explaining how this came to be. There are a number of complex theories floating around here, from Robert Dahl's conception of regime politics and the Court, to Jack Balkin's "framework originalism," to the age-old notion that old words are constantly obtaining new meanings, based on changed economic, political, and social circumstances. But the basic idea of Lane's piece is extraordinarily insightful, explaining the phenomenon and its place in the arc of constitutional law.
Randy Barnett reacts here. We may not all agree that the Constitution itself is "living" and "evolving." But there seems to be a consensus that constitutional law sure does.
Well, yes, it is serious. Very much so. And I think Charles Lane's column in today's Washington Post, which you can access here, does a fantastic job (in a very short space) of explaining how this came to be. There are a number of complex theories floating around here, from Robert Dahl's conception of regime politics and the Court, to Jack Balkin's "framework originalism," to the age-old notion that old words are constantly obtaining new meanings, based on changed economic, political, and social circumstances. But the basic idea of Lane's piece is extraordinarily insightful, explaining the phenomenon and its place in the arc of constitutional law.
Randy Barnett reacts here. We may not all agree that the Constitution itself is "living" and "evolving." But there seems to be a consensus that constitutional law sure does.
Monday, June 25, 2012
The author is (almost certainly) Roberts
Based on what we now know, it is a very reasonable guess virtually certain that the Chief Justice is writing the opinion for Court in the ACA cases. (Or at least in 11-393 and 11-398. It is possible that 11-400, raising the Medicaid question, is being written by someone else.)
Here is the evidence:
* The health care cases are the only opinions that the Court has not handed down from the March and April sittings.
* All of the associate justices have already authored at least one majority opinion from one of those two sittings.
* Until today, it seemed a very real possibility that Kennedy was authoring the ACA opinion, as he, too, had no opinions from either March or April. But today he handed down Arizona v. United States, a lengthy and controversial case likely to have consumed much of his time.
* More to the point, the Chief Justice was in the majority in Arizona, and thus likely would not have given Kennedy the Arizona opinion if Kennedy were already working on the Court's majority opinion in the ACA cases.
* Further, it would be passing strange for the Chief Justice to author no majority opinions from the last two sittings of the term. And it makes all the sense in the world for the Chief, assuming he is in the majority, to assign an opinion of this magnitude to himself.
So I think it is highly, highly likely that the Chief Justice has the opinion in 11-393 and 11-398, the cases addressing whether the minimum coverage provision is constitutional (as well as whether the AIA bars jurisdiction and, if the mandate is invalid, it can be severed). I am much less certain about 11-400, the Medicaid question. (Of course, 11-400 could be moot, if the Court invalidates the mandate and concludes that nothing can be severed.)
I guess we all knew that it would be Kennedy or Roberts. That the author is likely Roberts must be, between the two, marginally heartening to the challengers.
Here is the evidence:
* The health care cases are the only opinions that the Court has not handed down from the March and April sittings.
* All of the associate justices have already authored at least one majority opinion from one of those two sittings.
* Until today, it seemed a very real possibility that Kennedy was authoring the ACA opinion, as he, too, had no opinions from either March or April. But today he handed down Arizona v. United States, a lengthy and controversial case likely to have consumed much of his time.
* More to the point, the Chief Justice was in the majority in Arizona, and thus likely would not have given Kennedy the Arizona opinion if Kennedy were already working on the Court's majority opinion in the ACA cases.
* Further, it would be passing strange for the Chief Justice to author no majority opinions from the last two sittings of the term. And it makes all the sense in the world for the Chief, assuming he is in the majority, to assign an opinion of this magnitude to himself.
So I think it is highly, highly likely that the Chief Justice has the opinion in 11-393 and 11-398, the cases addressing whether the minimum coverage provision is constitutional (as well as whether the AIA bars jurisdiction and, if the mandate is invalid, it can be severed). I am much less certain about 11-400, the Medicaid question. (Of course, 11-400 could be moot, if the Court invalidates the mandate and concludes that nothing can be severed.)
I guess we all knew that it would be Kennedy or Roberts. That the author is likely Roberts must be, between the two, marginally heartening to the challengers.
Thursday is our day
The Court has announced it will hand down the rest of its opinions--thus presumably the ACA decisions--on Thursday. We now have a date certain. (Or virtually certain. The Court could always hold the cases over to the next term, but that is exceedingly unlikely.)
What's left
Only two cases, plus health care. The two non-ACA cases are Alvarez (constitutionality of the Stolen Valor Act) and First American Financial (an Article III standing question). My guess is that one hand-down day is sufficient to finish off the term.
Open hand down thread
7:16: The other opinion is Arizona v. United States. Three of the four challenged provisions in SB 1070 are preempted. Section 2(b) of the state law survives.
7:13: Alito is still reading from his dissent.
7:10: Alito is reading from his dissent in Miller and Jackson. When he is done, we will get the next opinion. We are now down to three cases (First American, Alvarez, and Arizona) plus the ACA cases.
7:07: There will be at least one more opinion this morning.
7:04: Court holds that sentencing minor to LWOP violates Eighth Amendment. Opinion by Kagan. Vote is 5-4.
7:02: The order list is down. The Court summarily reversed in American Tradition Partnership, and split 5-4. Should be very interesting dissent. First opinions are Miller and Jackson.
And away we go. The first order of business will be the order list, and perhaps news on American Tradition Partnership v. Bullock.
7:13: Alito is still reading from his dissent.
7:10: Alito is reading from his dissent in Miller and Jackson. When he is done, we will get the next opinion. We are now down to three cases (First American, Alvarez, and Arizona) plus the ACA cases.
7:07: There will be at least one more opinion this morning.
7:04: Court holds that sentencing minor to LWOP violates Eighth Amendment. Opinion by Kagan. Vote is 5-4.
7:02: The order list is down. The Court summarily reversed in American Tradition Partnership, and split 5-4. Should be very interesting dissent. First opinions are Miller and Jackson.
And away we go. The first order of business will be the order list, and perhaps news on American Tradition Partnership v. Bullock.
Tuning in
The best place to follow the Court's handing down of opinions as it is happening is SCOTUSblog's live blog, which you can access here. I will also have an open post, which I will update as events unfold beginning at 10:00 EDT. Just to remind everyone, it could be today, but it is more likely to be Wednesday or Thursday.
Sunday, June 24, 2012
The morning papers
There are already a number of articles from tomorrow morning's papers available online, in anticipation that tomorrow will be the day. (Thanks to Howard Bashman at How Appealing for several of these links).
* The New York Times has this story about the building drama.
* Politico has this story on the anticipation.
* The Wall Street Journal has stories here and here.
* Jonathan Adler has this post at Volohkh Conspiracy about some more ACA litigation that is likely to unfold if the Act survives.
* The Washington Post has this story about the waiting game for the lawyers involved, and this story about this (rather difficult) Supreme Court term for the federal government more generally.
* CNN has this story about ongoing preparations for the political implications.
* The Los Angeles Times has this story on the wrapping up of the term.
* And the Washington Times has this story about the spin preparation.
Sleep well, and I will see you tomorrow morning.
* The New York Times has this story about the building drama.
* Politico has this story on the anticipation.
* The Wall Street Journal has stories here and here.
* Jonathan Adler has this post at Volohkh Conspiracy about some more ACA litigation that is likely to unfold if the Act survives.
* The Washington Post has this story about the waiting game for the lawyers involved, and this story about this (rather difficult) Supreme Court term for the federal government more generally.
* CNN has this story about ongoing preparations for the political implications.
* The Los Angeles Times has this story on the wrapping up of the term.
* And the Washington Times has this story about the spin preparation.
Sleep well, and I will see you tomorrow morning.
What the decision will NOT mean
No doubt, there will be all sorts of broad pronouncements about the meaning of the Court's decision once it comes down--tomorrow, Wednesday, or Thursday. And no doubt, it will be a hugely consequential decision--for the Court, for constitutional law, for health policy, and for American politics. It will probably be the most important decision since Bush v. Gore, and perhaps even more important than that. It is a big, big case.
But there is also a tendency to overstate things in the heat of the moment. And there is also an impossibility of knowing the significance of a Supreme Court decision at the moment it is handed down; too much of its ultimate significance necessarily depends on subsequent, contingent events.
So with that perspective in mind, I want to highlight--no matter what some exercised partisans are bound to claim--what the decision almost certainly will not mean.
* If the Court invalidates the individual mandate, it will not mean a return to the Lochner era. The Court surely has no interest in second-guessing most economic legislation, and it could not possibly go back to treating legislation that redistributes income or wealth as presumptively unconstitutional. (To be sure, there are some folks in the camp of challengers who would prefer that course, but it is not going to happen.) Rather, a decision invalidating the minimum coverage provision will be relatively narrow, and find constitutional fault in what makes the mandate (arguably) unique--that it requires Americans to purchase a commercial product from a private third party even though they have taken no voluntary, affirmative act to bring themselves into the ambit of Congress's jurisdiction to regulate commerce. What has made this claim viable from the beginning is that the Court could vindicate it without doing much to disturb existing precedent or to limit Congress in the future. A decision that does no more than forbid Congress from requiring persons to purchase commercial products, when they have no already voluntarily entered the regulated market, is hardly a significant limit on Congress's powers.
* Conversely, if the Court upholds the mandate, it will not signify an end to any limit on Congress's enumerated powers. First, even under the government's view, Congress still would be unable to regulate intrastate activity that is neither economic or commercial in nature, unless it was integral to a broader regulatory scheme. Thus, Lopez an Morrison (as understood in Raich) would still stand. Further, the Court could rather easily cabin the constitutionality of purchasing mandates to instances in which it was really necessary to a broader regulatory scheme. Some might find such a rule unprincipled, unmoored from precedent, and judicially unmanageable. But a majority of the justices are plainly committed to the principle that Congress's powers are not unlimited, and they would continue to adhere to that rule.
* A decision to invalidate the ACA will not mean that the Court can do anything, no matter what the public and the other branches think. Public opinion is deeply divided on the ACA, with a slight majority disfavoring the Act as a whole and a substantial majority disfavoring the minimum coverage provision. Further, the national government is divided, with each party controlling one house of Congress and the President facing a very difficult reelection campaign. Under these circumstances, the Court has lots of space to render a decision reflecting the justices' sincere constitutional views. Thus, even though such a move would signify that the Court has a rather robust view of its role in American government, it hardly means that the Court would always feel so free. Other cases might present conditions that are far less inviting.
* A decision upholding the ACA will not mean that the Court "folded" to political pressure. Again, the external pressure on the Court at this moment, in this case, is not terribly strong, at least if what we mean is the potential threat to the Court from rendering a particular decision. The bigger threat is long term, over time, if Americans begin to see the Court in increasingly partisan terms. If this concern influences the Court, then I do not think that is rightly called political as much as institutional. Maintaining the Court's institutional integrity over time, as an arbiter of important questions of constitutional meaning, is an important constitutional value in itself--and arguably one far more important than the subtle niceties of constitutional doctrine.
The only issue that might be understated here--and it is hard to use the words "understated" and "ACA litigation" in the same sentence--is the impact of the Medicaid issue. This question has always played a second fiddle to the individual mandate. But in terms of modern understandings of constitutional law and American government, a decision to invalidate the ACA's expansion of Medicaid would be far more disruptive than anything else that might come from the case. No doubt, the Court could draw some arbitrary lines to cabin the impact. But it is unclear how those could remain stable over time. And this is precisely why most people think it won't happen.
But there is also a tendency to overstate things in the heat of the moment. And there is also an impossibility of knowing the significance of a Supreme Court decision at the moment it is handed down; too much of its ultimate significance necessarily depends on subsequent, contingent events.
So with that perspective in mind, I want to highlight--no matter what some exercised partisans are bound to claim--what the decision almost certainly will not mean.
* If the Court invalidates the individual mandate, it will not mean a return to the Lochner era. The Court surely has no interest in second-guessing most economic legislation, and it could not possibly go back to treating legislation that redistributes income or wealth as presumptively unconstitutional. (To be sure, there are some folks in the camp of challengers who would prefer that course, but it is not going to happen.) Rather, a decision invalidating the minimum coverage provision will be relatively narrow, and find constitutional fault in what makes the mandate (arguably) unique--that it requires Americans to purchase a commercial product from a private third party even though they have taken no voluntary, affirmative act to bring themselves into the ambit of Congress's jurisdiction to regulate commerce. What has made this claim viable from the beginning is that the Court could vindicate it without doing much to disturb existing precedent or to limit Congress in the future. A decision that does no more than forbid Congress from requiring persons to purchase commercial products, when they have no already voluntarily entered the regulated market, is hardly a significant limit on Congress's powers.
* Conversely, if the Court upholds the mandate, it will not signify an end to any limit on Congress's enumerated powers. First, even under the government's view, Congress still would be unable to regulate intrastate activity that is neither economic or commercial in nature, unless it was integral to a broader regulatory scheme. Thus, Lopez an Morrison (as understood in Raich) would still stand. Further, the Court could rather easily cabin the constitutionality of purchasing mandates to instances in which it was really necessary to a broader regulatory scheme. Some might find such a rule unprincipled, unmoored from precedent, and judicially unmanageable. But a majority of the justices are plainly committed to the principle that Congress's powers are not unlimited, and they would continue to adhere to that rule.
* A decision to invalidate the ACA will not mean that the Court can do anything, no matter what the public and the other branches think. Public opinion is deeply divided on the ACA, with a slight majority disfavoring the Act as a whole and a substantial majority disfavoring the minimum coverage provision. Further, the national government is divided, with each party controlling one house of Congress and the President facing a very difficult reelection campaign. Under these circumstances, the Court has lots of space to render a decision reflecting the justices' sincere constitutional views. Thus, even though such a move would signify that the Court has a rather robust view of its role in American government, it hardly means that the Court would always feel so free. Other cases might present conditions that are far less inviting.
* A decision upholding the ACA will not mean that the Court "folded" to political pressure. Again, the external pressure on the Court at this moment, in this case, is not terribly strong, at least if what we mean is the potential threat to the Court from rendering a particular decision. The bigger threat is long term, over time, if Americans begin to see the Court in increasingly partisan terms. If this concern influences the Court, then I do not think that is rightly called political as much as institutional. Maintaining the Court's institutional integrity over time, as an arbiter of important questions of constitutional meaning, is an important constitutional value in itself--and arguably one far more important than the subtle niceties of constitutional doctrine.
The only issue that might be understated here--and it is hard to use the words "understated" and "ACA litigation" in the same sentence--is the impact of the Medicaid issue. This question has always played a second fiddle to the individual mandate. But in terms of modern understandings of constitutional law and American government, a decision to invalidate the ACA's expansion of Medicaid would be far more disruptive than anything else that might come from the case. No doubt, the Court could draw some arbitrary lines to cabin the impact. But it is unclear how those could remain stable over time. And this is precisely why most people think it won't happen.
Some good reading while we wait
As we all hold our collective breaths, there are several interesting stories out there to pass the time. Here is a sampling:
* The front page of today's New York Times contains this story detailing the ways in which the Obama administration (and supporters of the ACA more generally) may have not taken the constitutional objections to an individual mandate seriously enough, at least when the the legislation was being crafted.
* This story from today's Washington Post discusses similar issues.
* In this story, the Times discusses how President Obama is still hoping for the best but planning for one great big giant disappointment.
* Every year, Slate runs a discussion between Walter Dellinger (former Acting Solicitor General, Professor at Duke, and author of the amicus brief for Senator Reid and Leader Pelosi) and Supreme Court correspondent Dahlia Lithwick in the last week of the Court's Term, discussing the opinions. This year they are joined by Seventh Circuit Judge Richard Posner, perhaps the preeminent judge of his generation. They are, of course, discussing you-know-what. You can find the thread here.
* More here on popular opinion about the ACA generally, and the individual mandate in particular, from Reuters. Our fellow Americans seem to like most of the Act's provisions, but object to the Act as a whole.
* Ezra Klein has this very interesting article in the New Yorker about how the the argument against the mandate's constitutionality gained momentum and, in the words of Jack Balkin, eventually became "on the wall." Ilya Somin responds here.
* And finally, here is another piece from the New Yorker with some relevant odds, including the chances that "Court accidentally orders undocumented immigrants in Arizona to purchase health insurance: 5-1."
* The front page of today's New York Times contains this story detailing the ways in which the Obama administration (and supporters of the ACA more generally) may have not taken the constitutional objections to an individual mandate seriously enough, at least when the the legislation was being crafted.
* This story from today's Washington Post discusses similar issues.
* In this story, the Times discusses how President Obama is still hoping for the best but planning for one great big giant disappointment.
* Every year, Slate runs a discussion between Walter Dellinger (former Acting Solicitor General, Professor at Duke, and author of the amicus brief for Senator Reid and Leader Pelosi) and Supreme Court correspondent Dahlia Lithwick in the last week of the Court's Term, discussing the opinions. This year they are joined by Seventh Circuit Judge Richard Posner, perhaps the preeminent judge of his generation. They are, of course, discussing you-know-what. You can find the thread here.
* More here on popular opinion about the ACA generally, and the individual mandate in particular, from Reuters. Our fellow Americans seem to like most of the Act's provisions, but object to the Act as a whole.
* Ezra Klein has this very interesting article in the New Yorker about how the the argument against the mandate's constitutionality gained momentum and, in the words of Jack Balkin, eventually became "on the wall." Ilya Somin responds here.
* And finally, here is another piece from the New Yorker with some relevant odds, including the chances that "Court accidentally orders undocumented immigrants in Arizona to purchase health insurance: 5-1."
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