ACA Ruling (part 1 - The One Man Majority)

The Supreme Court ruling on the Patient Protection and Affordable Care Act is, well, complicated.  One of its most interesting features is that the "majority opinion", or the opinion holding legal weight, is  held in its entirety only by one man--Chief Justice John Roberts.  In this post we'll focus exclusively on his opinion, which is as follows:

1. The Anti-Injunction Act does not impede the States' ability to bring suit against the ACA
2. The Individual Mandate cannot be upheld under the Commerce Clause or the Necessary and Proper Clause
3. The Individual Mandate, being functionally identical to a tax and enforced under the Tax Code, is within the taxing powers of congress and therefore Constitutional
4. The Federal government unduly coerces the states in its conditioning all medicaid funding on the ACA's expansion of medicaid, only new funding may be so conditioned

Basically the only thing the entire court agrees on is (1).  The Anti-Injunction Act is a law saying that people can't sue to avoid a tax until they've actually paid the damn thing.  Roberts says that congress explicitly said that the penalty associated with the Individual Mandate is not a tax, and therefore the Anti-Injunction Act doesn't apply. (This gets a little weird later on, when the Individual Mandate is determined to be a tax, but the takeaway is just that congress has the power to say what things are and aren't taxes for the purposes of the law, but not for the purposes of the constitution.  That actually makes a lot of sense, since otherwise the Feds could do anything, call it a tax, and have it be constitutional.)

Roberts joins the conservative dissent in stating (2) that the Individual Mandate is unsupported by the Commerce Clause because it regulates inactivity, rather than activity.  Frankly, I think this distinction is weird and stupid, but I'll put off arguments until after I've gone through the dissenting opinions.

Roberts, along with the liberal dissent, points out (3) that because the Individual Mandate is exercised through the IRS,  is governed by the laws governing taxation, is levied at least in part to provide revenue, and is not punitive (it never exceeds the value of purchasing insurance, and is usually substantially less), it is a form of tax for constitutional purposes, and, as such, is constitutional under the taxation powers of congress.

Finally, in agreement with a large block of both liberal and conservatives (though some Justices still dissent), Roberts rules (4).  I don't fully understand this argument, but it seems like the basic claim is that federal-state programs have to be looked at as contracts between the federal government and state government.  The medicaid expansion greatly exceeds the scope of changes the states could have reasonably expected when signing on to the program, therefore their original contracts must remain valid regardless of whether they decide to expand their programs to the new medicaid levels.  That's the theoretical justification, which I find weak.  The practical justification is much stronger.  Basically, the amount of money involved in medicaid amounts to 10% or more of most states' budgets.  Giving up that funding would be fiscal suicide for most states.  Therefore, the states have no real choice but to accept the changes to medicaid.  The Justice rightly points out that a similar tactic could be used to coerce the states to enact basically any law, even those that the federal government has no right to enact, which would pretty much defeat the purpose of Federalism.

Degeneration of debate on the HHS contraceptive mandate

Okay, so I never thought there was much principled debate going on, at least in the public sphere, but at some point I did reach the conclusion that the religious institutions had one meaningful objection--that self-insured Catholic institutions would be directly purchasing contraceptives contrary to conscience.  However, the Obama administration recently announced that self-insured employers wouldn't have to pay for contraceptives.  Instead, the managers of those plans, or separate insurers, would provide contraceptive access at no cost.  This clearly addresses the last viable concern.  In a reasoning world, objections would now cease, but of course they haven't.  I'm lucky enough to be at Notre Dame, which has a good law school and is hugely Catholic, so I get exposed to what one would imagine is the pinnacle of public debate on the issue.  And it is just SO unimpressive right now.  Look at some choice quotes from a recent forum (poached from an Observer article):

“The religious freedom of … communities like Notre Dame is not just the freedom to avoid being coerced into doing evil … [but] to bear witness of the truth of the faith and to act with integrity and to act coherently in accord with their Catholic character as they understand it,”


This is pretty clearly an admission that Catholic institutions don't have a leg to stand on anymore.  If you're not being coerced to do bad things the religious objection is done and over.


“Sometimes a democracy like ours, with ideals like ours, accommodates religious freedom even when it doesn’t have to,” Garnett said. “In this case, it seems to me, the better policy … would be to provide a broader religious freedom exemption to the preventative services mandate.”


And, indeed, there is a direct concession here that the Government has done all it has to do, but they want mega-special-extra-above-and-beyond-treatment because it's really important to allow religious institutions to impose their beliefs on their non-religious employees.  That's how America should work! Ridiculous.


“The conviction of those currently in power that contraception, sterilization and abortion-inducing drugs constitute essential preventive services that enhance the health of women … in the administration’s mind … trumps any right that religious employers might have to refuse to pay for such essential services,” she said.


So, as a matter of law, it's probably true that the rights of women to reproductive freedom are greater than the rights of religious institutions to not buy contraceptives, but the administration has decided not to test that boundary.  Instead, they set up a system where religious employers don't have to pay for contraceptives AND women still get free access to them.  This is a delightfully misleading statement.


“To have that narrow exemption codified in our regulatory apparatus, it’s like leaving a loaded gun around for a kid to pick up,


I just think this is an adorable metaphor.  In what conceivable way are those scenarios equivalent?

The 14th Amendment and the Debt Ceiling (Rory versus Harvard Constitutional Scholar, round 1)

Some people think that the Debt Ceiling is unconstitutional, others don't.  I think the others are wrong.  Here's a sample of the argument against.  I feel uncomfortable going head to head against a Harvard constitutional law scholar (though, to be fair, he'll never read this and wouldn't care about my opinion if he did, so that reduces my discomfort significantly), but I have to say that his line of thought seems to be pretty shoddy.  Let's take a look at the relevant extract:

Some have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause.

This argument goes too far. It would mean that any budget deficit, tax cut or spending increase could be attacked on constitutional grounds, because each of those actions slightly increases the probability of default. Moreover, the argument is self-defeating. If it were correct, the absence of a debt ceiling could likewise be attacked as unconstitutional — after all, the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default.

Other proponents of a constitutional deus ex machina have offered a more modest interpretation of the public debt clause, under which only actual default (as opposed to any action that merely increases the risk of default) is impermissible. This interpretation makes more sense. But advocates of the constitutional solution err in their next step: arguing that, because default would be unconstitutional, President Obama may violate the statutory debt ceiling to prevent it.

The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution

Okay, so, he's right so far as he goes.  The argument that the "increased risk of defaulting" is the reason the debt ceiling would be unconstitutional is indeed stupid, for exactly the reasons he points out.  Furthermore, his assessment that the president does not have the constitutional authority to borrow money on the credit of the United States is correct.  But he's arguing against straw men.  The real issue is this: the debt ceiling mandates a default on the full faith and credit of the united states, given certain conditions (the rising of government expenses).  Not only does it make this mandate, but forcing a default under this condition is in fact the only purpose of the debt ceiling.  It has no other function.  In the event that it actually acts, that is what it does.  This seems obviously to "question" the "full faith and credit of the United States", and must therefore be unconstitutional.

As to what the president (or anyone) can do about it.  It's hard to say.  One could argue that congress approved the spending by signing the various bills doing the spending into law, but that doesn't necessarily mean that they approved the borrowing, they could have planned to pay for it some other way.  However, since they didn't make any laws to pay for it in another way, one might reasonably assume that they meant for the money to be borrowed, because that's how it works any time we don't run up against the clearly unconstitutional debt ceiling.  Ergo, Congress has implicitly approved the borrowing and no one is usurping any legal powers by going ahead and implementing their implied will.

This is all stupid though.  We can't enact contradictory laws, and if we do, we implicitly repeal the contradictory bits of the older law.  The current contradiction is that in February of 2010, congress passed a law limiting public debt at 14.294 trillion dollars, and since then, has mandated spending and revenue such that public debt must exceed 14.294 trillion dollars sometime in early August.  Present law supersedes past law.  Problem solved.

Practical Anarchy

Last post I discussed Wolff's book In Defense of Anarchism and promised to talk about a potential way out of his assertion that no practical government can have moral legitimacy.  Now I'm following through on that promise.  So Wolff puts forth that Unanimous Direct Democracy can have authority without undermining personal moral autonomy.  Within that section, he points out that even arbitration can be codified within such a system.  Those two points are the basis for my idea of a practical form of governance by practical direct democracy.  I need a catchy term for this form of government.  Here are the ingredients I think we need to make this work.

1. Unanimous passage of items in a bill of rights.
2. Unanimous passage of a process for ascertaining the best ways to guarantee these rights.

It seems to me that the vast majority of politics isn't about the right thing to do, it's about the right way to do it.  Democrats and Republicans alike agree that people have a right to life, for instance, and that the taking of a life without due process and control is unacceptable, they disagree on the best way of ensuring that life taking is minimized.  In our government, there is no mechanism for finding the best way, testing enacted laws to verify they are in fact improving the situation, or rigorously studying the impact of our legal strategies at all.

I think that a large and diverse group of people could agree upon a significant number of fundamental rights if asked to consider merely the right thing without concern for its implications or practical significance.

Then comes the tricky part.  This group of people would need to agree on a mechanism for developing procedures to protect the rights they have codified.  This is akin to an arbitration process.  Personally, I would advocate the scientific method.  Allow people to propose mechanisms for enhancing protections of the codified rights.  Require rigor in these proposals.  In other words, place the burden on the bill writer to demonstrate that the bill does not contradict existing rights, and has a plausible mechanism for enhancing the support or protection of one of those rights, and provides metrics by which the impact of the bill could be measured.  Select several proposals at random, and apply them to test groups determined in an appropriately random and statistically rigorous manner.  If the law is found to violate existing rights by some unintended consequence it is immediately abolished.  If, after an appropriate trial period, the law is found not to significantly improve the metric(s) it provided, it is abolished.  If it succeeds in improving its metrics appropriately, its scope is progressively expanded, its impacts reverified, and its consistency with the bill of rights reevaluated, until such time as it is implemented nationwide.  Following nationwide implementation, bills are periodically reviewed for consistency with the bill of rights (though their efficacy is no longer tested as there is no control population).

I think that a large number of people could agree to this strategy or one like it, and I think that such a governance strategy would create a government capable of developing a recognizable and appropriately far reaching legal code without undermining the moral autonomy of the population.  Let's call it a Constitutional Anarchy.  This is my current best effort with regards to an ideal form of governance, and it is basically going to be the yardstick by which I judge ongoing legal and political discussions in the US.

Here are the questions I would ask of any law or political policy.

1. Does it attempt to protect or enhance a universally acknowledged right? (answer should be yes)
2. Does it impede any universally acknowledged rights? (answer should be no)
3. Does it provide rigorous support for its chosen strategy? (answer should be yes)
4. Does it provide for the measurement of its impact, and repeal if shown to be ineffective? (answer should be yes)

I think those are in order of importance, but I'd say that giving the wrong answer to any of 1-3 should be a deal breaker.