Roberts Ruling redux: A closer look at the ‘Obamacare’ decision

By Luiza Ch. Savage - Thursday, June 28, 2012 at 4:23 PM - 0 Comments

The U.S. Supreme Court decision to uphold the health care reform that is the signature policy of Obama’s presidency came as a surprise to many observers because Chief Justice John Roberts, a conservative appointed by George W. Bush, ruled with the majority to uphold the law.

Many court watchers assumed the court would strike down the law after the hostile questioning they gave government lawyers during oral argument on the central question of whether the Commerce Clause of the U.S. Constitution, which empowers the federal government to “regulate commerce between the states,” empowers Congress to require individuals to purchase health insurance or face a fine.

Unlike the Canadian Supreme Court, the judges in Washington read summaries of their decisions and dissents from the bench. There is no pre-briefing or “lock-up” for reporters by court officials. Cellphones are banned in the courtroom, and the decision was not posted to the court’s website until after it was announced. As a result,  confusion ensued inside the court room and among TV correspondents outside when the Chief Justice began to read his decision, the first section of which explained why the majority of the court held that the law was not a valid exercise of the Commerce Clause power.

But Roberts was just getting started. He eventually found the law could be upheld under a third argument advanced by the federal government – that the fine was essentially a tax and therefore within federal powers.

(Adding to the confusion was that earlier in the decision, he found that the fine was not a tax for the purpose of deciding whether the case should be postponed under a law that says a tax can’t be challenged in court until someone has actually had to pay it, and then can sue for a refund. In that instance, Roberts reasoned, the fine was not covered by the law, called the Anti-Injunction Act,” Congress had labeled it a “penalty” and not a “tax” and Congress gets to decide whether or not the statute applies. But for the constitutional analysis, he concluded the fine was functionally a tax, whether or not Congress decided to call it so.)

“That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act,” the decision states.

The full decision is here.

During his Senate confirmation hearings, Roberts memorably said, “Judges are like umpires – umpires don’t make the rules, they apply them.” He talked about “judicial humility.” In writing the majority opinion, he emphasized the theme of judicial deference to the legislative branch in his decision – arguing that judges should look for ways to uphold duly enacted statutes if at all possible:

“Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.”

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.  Those decisions are entrusted to our Nation’s elected leaders, who can be  thrown out of office if the people disagree with them.  It is not our job to protect the people from the consequences of their political choices.”

Commerce clause analysis

Roberts drew the line at allowing the federal government to force people into commercial who aren’t already engaged in commercial “activity”:

“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem. (Page 22)

“Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.” (Page 23)

He also rejected the argument advanced by the government that everyone is in the market for health care because sooner or later they will get ill or be injured in an accident:

“The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent.” (Page 26)

Having rejected the Commerce Clause arguments, he turned to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to “lay and  collect Taxes,”  as laid out in Article 1, Section 8 of the US Constitution.

Tax clause analysis

Roberts writes that if the requirement to buy health insurance “is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.” He begins by setting out the low bar he will use for evaluating the government’s claim:

“The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one.” (Page 33)

Roberts gives several reasons for accepting the government’s interpretation as “fairly possible.”

1.  If an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. “Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.”
2. The penalty functions like a tax: It will raise money for the government, is not so high as to be a financial “punishment,” and does not require any knowledge of wrongdoing to be triggered.
3. The payment is collected solely by the IRS through the normal means of taxation.

He notes that the court has in the past found other penalties to be taxes even when Congress has not labeled them as such.

Roberts goes on to say that the federal government is free to use taxes as a means to shape individual behavior:

“None of this is to say that the payment is not intended to affect individual conduct. He noted that cigarette taxes are intended to do the same.  “Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to  influence conduct are nothing new.  Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry.” (Page 36)

In sum, he said he would not strike down the law simply “because Congress used the wrong labels.” He concludes: “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

Justice Antonin Scalia authored the dissent, joined by Justices Kennedy, Alito and Thomas – arguing that far from deferring to Congress, the majority rewrites the law. A taste of his reasoning:

“…we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.  We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.”

“…And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.

“For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling.”

“The Government’s opening brief did not even address the  question …   And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. At oral argument, the most prolonged statement about the issue was just over 50 words One would expect this to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.”

After the ruling was released, Mitt Romney vowed to repeal the law if elected president.  House Republicans also said they would hold a vote to repeal the law, but a repeal is not expected to the pass the Senate.

The court gave Obama a big legal victory, and Republicans a political rallying cry to get their voters to the polls.

Careful what you wish for, Prof. Mendes

By Colby Cosh - Wednesday, October 12, 2011 at 4:42 PM - 27 Comments

Rebecca W/Flickr

Political newspaper iPolitics.ca accidentally unearths a breaking story, as liberal law professor Errol Mendes uses its electronic pages to praise the U.S. Supreme Court’s Citizens United decision. In Citizens United SCOTUS ruled that campaign-finance law must treat corporations, unions, and other groups as though they have the same speech rights as the individual people of which they are made up. The American left cannot mention this heinous act of pro-corporate radicalism without ejecting a fount of furious spittle; the “repeal” of corporate personhood is, for example, the first and foremost demand of the Occupy Wall Street protesters and their allies elsewhere. President Obama memorably denounced Citizens United from the podium, staring the nine justices right in the eyes, in his 2010 State of the Union address. But Mendes apparently thinks corporate speech is an “important form of political expression” and that it may be protected by our Charter. Damn, Canada really is moving rightward! Continue…

A Lord resurrected

By Jason Kirby - Wednesday, December 8, 2010 at 10:20 AM - 14 Comments

Ryan Remiorz/CP

At the end of October, just before a Chicago appeals court tossed out two of Conrad Black’s four convictions, BBC Radio Four’s The Media Show aired an interview with the former newspaper baron.
In the 15-minute spot Black was asked about the state of the media today—“It’s slowly collapsing under the weight of its own substandards”—his take on the proper role of newspaper owners—“The buck stops with the proprietor”—and finally, whether he would ever get back into the news business, to which question he laid down his conditions: “Not as a chief occupation and not in a public company but it might happen.” Black’s response triggered speculation about his eventual return to the industry. But what really stood out was that Black, until recently scorned and easily dismissed as just another white-collar villain, was being asked such questions at all. It was a stunning reversal from a time when it seemed the only thing the world wanted to hear from Conrad Black’s lips was: “I did it.”

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An unlikely conspirator in Prop 8's murder

By Colby Cosh - Thursday, August 5, 2010 at 5:21 AM - 0 Comments

Yesterday afternoon a federal court struck down California Proposition 8, the successful ballot initiative that had banned same-sex marriages in the state. U.S. District Chief Judge Vaughn Walker’s Perry v. Schwarzenegger decision offers a fascinating overview of the American SSM fight. Subjecting Prop 8 to the strict and searching scrutiny that any overt act of state discrimination invites, Walker found the evidence of social harm resulting from gay marriage to be wretchedly meagre, and the evidence of any additional administrative burden on the state to be worse than nonexistent. (In a display of perversity surely more nauseating to many of us than mere sodomy, debt-addled California has been foregoing revenue from marriage licenses issued to same-sex couples and has been maintaining a distinct bureaucracy for the creation and oversight of “domestic partnerships”—a species invented in order to endow gays and lesbians with all the legal difficulties of civil marriage without entitling them to drink from the dregs of its social dignity.)

Walker, having entertained and weighed the evidence of a rational basis for Proposition 8, could find none—none beyond discrimination against gays and lesbians for its own sake, which he characterizes as a “private moral view” that, in the absence of a legitimate government interest, cannot be an appropriate subject of legislation under the due process and equal-protection provisions of the Constitution. So runs the argument. (I’m not a lawyer, but it feels to me like a rather Canadian, Oakes-y one, structurally.)

How airtight is the ruling? One objection that someone like Supreme Court Justice Antonin Scalia would make—for he has made it—is that all laws implement some “moral view”, and could be struck down by a judge the minute some protectable class were found to object to it. Laws against homicide discriminate against murderphiles, and so on. Of course, this isn’t very convincing. Even if you can show that there is such an inherent characteristic as “being a murderphile” and that people in no way choose membership in this class—which, in fact, is an argument you could probably win!—the compelling state interest in preventing murderphiles from murdering is a million times easier to show than anybody’s interest, anybody’s at all, in fretting over the nebulous effects of gay marriage.

This debate is over in Canada, except as a convenient way for kooks to define themselves, because how the heck could you possibly show that absolutely anybody’s life was affected irreversibly for the worse on the exact date of July 20, 2005? I’ve given pro-lifers generous helpings of hassle over the years, but they’ve at least got the “Abortion Stops A Beating Heart” thing to fall back on. If you were picking a similar slogan for the anti-SSM movement, where would you even start? Gay Marriage…Makes A Gorge Rise? Gets A Dander Up? Sticks In A Craw?

The punchline to all this is that Justice Scalia is so forthright, confident, and frankly plain ornery in his views that he inadvertently supplied Judge Walker with a grace note for his magnum opus. Back in 2003, UCLA law professor Eugene Volokh pointed out that the then-fresh Lawrence v. Texas Supreme Court decision annulling that state’s sodomy law featured a little sideshow he thought relevant to the future of the gay-marriage struggle.

In today’s Lawrence decision, Justice O’Connor refuses a general right to sexual autonomy, but concludes that banning only homosexual sodomy violates the Equal Protection Clause—there’s just no rational basis for such discrimination besides “a…desire to harm a politically unpopular group,” she says. What about gay marriage, one might ask her? She anticipates this, by suggesting that “preserving the traditional institution of marriage” is a “legitimate state interest.” “Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”

Justice Scalia derides this—”[Justice O'Connor's reasoning] leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples,” because “‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples” [emphasis in original]. But wait: Isn’t that the usual argument of those who criticize the heterosexual-only marriage rule?

In his tirade against “a Court…that has largely signed on to the so-called homosexual agenda”, Scalia gave the game away. Allergic to O’Connor’s cop-out, he argued that there was no need for hetero-only marriage to stand on any basis but “moral disapproval”—and took the extra step, regarded as dangerous by many in his camp, of denying that it could possibly have any other basis. It was an admission, a rather gay-friendly admission really, that any search for objective harms or administrative excuses with which to bash same-sex marriage would be nonsensical and futile.

And lo and behold, in the year of our Lord 2010, the Volokh prophecy has come to pass; Scalia’s grenade has landed right smack in paragraph 21 of Perry v. Schwarzenegger.

Lawrence v. Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting): “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”

Conrad Black’s final battle

By Jason Kirby and Luiza Ch. Savage with Chris Sorensen - Monday, July 5, 2010 at 8:57 AM - 22 Comments

AP/ Canadian Press

An ardent student of history, Conrad Black knows about the long view. His own protracted battle with the U.S. government for his freedom and his reputation is turning into the kind of epic saga that could fill one of his loquacious tomes. The former newspaper magnate has drawn comparisons to Napoleon at Elba—in exile, unrepentant, his empire in tatters. And now, like his hero, he is plotting a return.

It has been more than two years since Conrad Black was locked up in a central Florida prison. But from behind bars the former media baron has soldiered on, determined to be vindicated from the charges that he looted Hollinger International at the expense of shareholders. He’s already dramatically recast the story line that was scrawled out against him. At the outset his accusers presented a straightforward yet lurid tale of unbridled greed and excess, in which Black ran a “corporate kleptocracy” and made off with US$400 million.

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Where have you gone, Rutherford B. Hayes?

By Colby Cosh - Thursday, January 28, 2010 at 7:45 AM - 35 Comments

(AP Photo/Jorge Saenz)

I have the same reaction to every State of the Union address. It’s a vicarious Catonian revulsion, the grief and horror of the old Roman. (I’m a monarchist, but I’m a monarchist for us.) As everyone writing on the occasion of a SOTU observes, the president’s traditional harangue to the houses of Congress is said to be licensed by Article II, Section 3 of the Constitution:

[The President] shall from time to time give to Congress information of the State of the Union and recommend to their Consideration such measures as he shall judge necessary and expedient.

Even hard-bitten originalists tend to read this passage for sonority rather than meaning. All it says is that the President must furnish data to Congress and suggest legislative activity. It doesn’t say anything about doing so annually, though that became the habit almost immediately. It doesn’t say anything about giving information and advice in the form of a speech, let alone presenting oneself to Congress. Early presidents did so, but Thomas Jefferson pulled a face and refused to play ball. He fretted that a knockoff of Westminsterian Throne Speeches would “familiarize the public with monarchical ideas”, and he didn’t want representatives of the other branches of government to be intimidated by the person of the chief magistrate. Continue…

SCOTUS versus SCOTUS

By Colby Cosh - Friday, January 22, 2010 at 1:13 PM - 60 Comments

The U.S. Supreme Court’s ruling in the Citizens United case on campaign-spending limits [PDF] is pretty extraordinary. The Court was presented with the problem that an earlier incarnation of itself had licensed the state suppression of corporate-funded political speech in the Austin v. Michigan Chamber of Commerce decision of 1990. When I heard word of Citizens United I was curious to see how the Court had tried to make Austin fit more comfortably into the great jigsaw puzzle of First Amendment jurisprudence. Such farcical exercises in providing for the uglier offspring of stare decisis are always entertaining.

But the Court didn’t try to make it fit. They just said “Austin is a dud and we’re getting rid of it. Never happened. Off the books. Fuhgeddaboudit.”

The relevant factors in deciding whether to adhere to stare decisis, beyond workability—the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned— counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is also undermined by experience since its announcement. Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. In addition, no serious reliance issues are at stake. Thus, due consideration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker’s corporate identity.

The “undermined by experience” bit is the key cheat, really. What experience has demonstrated should already have been apparent in 1990. (As it was to Justices Kennedy and Scalia, who dissented from Austin and have clung to the bench long enough to taste its gore.) Ilya Somin contributes an interesting reaction to Citizens United at volokh.com.

Obama goes against conventional wisdom

By Jaime Weinman - Tuesday, May 26, 2009 at 4:37 PM - 1 Comment

President Obama’s choice of Sonia Sotomayor for the U.S. Supreme Court is most notable, of course, because (if confirmed) she will be the first Hispanic justice on the court. But it’s notable for another reason: it may be a sign of Obama’s lack of patience with the world of news punditry, which is pretty bad, but usually taken pretty seriously by political insiders. His press secretary, Robert Gibbs, has said that where the public is “may not necessarily be where cable television is,” and Obama may be trying to prove it with this nomination. Continue…

Obama's first Supreme Court pick

By Luiza Ch. Savage - Tuesday, May 26, 2009 at 11:54 AM - 1 Comment

Obama’s first nomination to the US Supreme Court is  Sonia Sotomayor, an experienced appellate judge based in New York. With only one woman (Ruth Bader Ginsburg) out of 9 on the current US Supreme Court, everyone expected a female appointment. Sotomayor,  54, was a heavy favourite because if confirmed, she would become the first Latina on the court (her parents were Puerto Rican.) She has a compelling life story: she grew up in a housing project in the Bronx, her dad died when she was young, and she went on to graduate from Yale Law School.

During her Senate confirmation hearings, which are expected to be held in July, undoubtedly there will be some questions about comments that Sotomayor once made about the impact her gender and ethnicity has on her judging.

Most relevant to evaluating her nomination is her record as a judge. Scotusblog has summed up her most important opinions here.

(Of course, first impressions can be deceiving. The somewhat brittle Samuel Alito was widely expected to be the more hard-line conservative judge, and the boyish John Roberts who so charmed senators with his talk of judges as “umpires” and not policymakers, was expected to be more moderate. But Jeffrey Toobin recently made a compelling argument in the New Yorker that things turned out rather differently.)

Here is a link to a controversial article about Sotomayor quoting unnamed detractors. And here is a website set up by conservative critics that accuses her of reverse racism in one case. No doubt much more to come. Below are the nice things that the White House had to say about Sotomayor today.

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After the detention, a betrayal

By Michael Friscolanti - Wednesday, February 25, 2009 at 9:30 AM - 0 Comments

Eight days after the World Trade Center crumbled from the New York skyline, a team of federal agents paid a visit to a small taxi-driving school in Manhattan. With smoke still billowing from the ruins of Ground Zero, the officers were searching for one specific student: a Canadian citizen named Shakir Baloch.

The FBI was anxious to know how the Toronto man, originally from Pakistan, entered the United States. They peppered him with pointed questions. Is your visa valid? Are you a devout Muslim? Do you recognize any of the men who hijacked those airplanes? Still suspicious after a four-hour interrogation, the agents escorted Baloch to a detention centre downtown. He spent that night—and the next seven months—behind bars. “I call it my death valley,” he says now, sitting in a crowded Scarborough coffee shop. “They were threatening to arrest my family and revoke my Canadian citizenship. I was very afraid.”

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Will it be election chaos?

By Luiza Ch. Savage - Friday, October 24, 2008 at 12:00 AM - 0 Comments

The “butterfly” ballots of Florida’s Palm Beach County that snarled up the 2000 presidential election with their hanging, pregnant, and otherwise perplexing “chads” have since been replaced by optical scan cards—but a recent test during a local judicial election found that new machines that count them couldn’t come up with the same result twice. As early voting gets underway across the sprawling, decentralized American election system, technical glitches and pre-emptive partisan lawsuits are putting nerves on edge in anticipation of the record throngs expected on Nov. 4. In North Carolina, voters wanting to pick a “straight Democratic ticket” have to remember that they need to vote for Barack Obama on a separate presidential ballot. In West Virginia, some Democratic voters said touch-screen voting machines literally changed their votes from Obama to John McCain before their very eyes. The state’s deputy secretary of state Sarah Bailey told the Charleston Gazette on Friday, “Sometimes machines can become miscalibrated when they are moved from storage facilities to early voting areas.” She ordered a recalibration.

And the election lawyers have been mustering. A Democratic attorney in Fort Lauderdale, Fla., Charles Lichtman, has boasted that he will effectively lead the largest law firm in America on Nov. 4 when he commands close to 5,000 lawyers who will show up at the polls to assist voters, resolve conflicts, and if necessary, sue. Republican lawyers have sprung into action in Ohio, where they sued the secretary of state, Democrat Jennifer Brunner, to provide lists of voters whose registration information does not match information in other state databases. Brunner says most differences are due to clerical errors. (Even Joe Wurzelbacher, aka “Joe the Plumber,” the now famous critic of Obama’s tax plan, has his name misspelled on Ohio voter rolls as Worzelbacher.) The case made it all the way to the U.S. Supreme Court, which found last Friday that the state party did not have standing to bring the lawsuit. No matter, others are in the works.

Distrust permeates the system. Part of the Obama campaign’s strategy is to register legions of new voters—especially among young people and African-Americans, who tend to vote Democrat. Republicans are suspicious of the groups doing the registering. One such group, ACORN, the Association of Community Organizations for Reform Now, handed in registration forms with some false names such as Mickey Mouse and addresses that turned out to be empty lots. The group, which is obligated by law to turn in all the forms, blamed low-wage workers trying to make more money by padding their numbers. But the FBI is investigating, and during the last debate McCain accused ACORN of “maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy.” He could be right—if Mickey actually gets to cast a ballot.

It was all supposed to be better this time. After the debacle of 2000, Congress passed a federal law, the Help America Vote Act, to avoid similar mishaps. It included money for new machines to replace problematic systems such as Palm Beach County’s punch-card butterfly ballots, and a system that would allow voters who believe they are wrongly deemed ineligible to cast a provisional ballot and have their cases resolved after the election. But as it turns out, since 2000 things have gotten messier. Before George W. Bush vs. Al Gore, an average of 96 lawsuits involving election law were filed each year; since 2000, the annual average has more than doubled to 231, according to Richard Hasen, an election law expert at Loyola Law School in Los Angeles. “The system wasn’t good before 2000, but in some ways it’s gotten worse,” he says. “Part of the problem is more people are looking for problems. Litigation has become an important piece of campaign strategy for both campaigns.”