Blog Credo

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.

H.L. Mencken

Monday, March 26, 2012

Nine Black Robes

Your post ACA world...

Because it hasn't really gone into effect yet, ACA isn't terribly popular.  The Right doesn't like it because it goes too far was proposed by Obama.  The Left doesn't like it because it doesn't go far enough.

But all of that is moot today as the Supreme Court begins hearings on whether the law is constitutional.

Ezra Klein's House of Wonk goes over the various hearings here, but I will summarize.

Today, they will decide whether or not to hear the case.  Because there is an 1867 ruling that says you can only sue over a tax once you have had to pay it (and no one has had to pay the mandate fine yet), there is a fairly persuasive argument that no one currently has standing to sue over a law that isn't in effect yet.  Both the Administration and the plaintiffs want to have the hearing now.  Personally, if I were the Administration, anything that brings Clarence Thomas and Antonin Scalia closer to the sweet embrace of death before they hear this case would be OK with me.

Tomorrow, they will hear about the mandate.  Is it economic activity or inactivity and does that matter.  Five years ago, the idea that the mandate would be unconstitutional would be laughable.  But in the world of Citizens United and Bush v. Gore no one really expects that the Court will either accept stare decisis or hew to their purported philosophical positions.  The ruling on the mandate will almost certainly be political.  It will come down to Kennedy, Scalia and Roberts in that order of likelihood to uphold the mandate.

Next up is severability.  If the mandate is unconstitutional, does that invalidate the whole law?  Interestingly (and foolishly) the Administration does not want to separate the mandate from the guarantee of coverage.  Presumably they want to get rid of the "free rider" syndrome that is at the heart of the mandate.  Plaintiffs say if you get rid of the mandate, you should get rid of the whole entire freaking massive program.  If the court rules that the mandate is unconstitutional but severable, then watch the insurance companies freak the hell out. They need the mandate to cover all the other stuff ACA requires them to cover.

Finally, there's an issue of Medicaid expansion that's kind of separate from the rest of the issues.  Few expect that this part will be ruled unconstitutional.

So basically you have a flow chart.

Is there standing under the 1867 Anti-Injunction Act?  No?  Come back in three years.  Yes?  Proceed to the mandate.

Is the mandate unconstitutional?  No?  Later, haters.  Yes?  Proceed to the severability argument.

Can you sever the mandate from the rest of the law?  No?  How much of the rest of the law in unconstitutional?  Yes?  Watch the people at Blue Cross/Blue Shield have an aneurysm (and then have to prove that it wasn't a pre-existing condition).

As I say, the Medicaid thing shouldn't be a problem.

I will let the wonderful Dahlia Lithwick have the last word:

 "The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument. So that brings us to the really interesting question: Will the Court’s five conservatives strike it down regardless? That’s what we’re really talking about next week and that has almost nothing to do with law and everything to do with optics, politics, and public opinion. That means that Justice Antonin Scalia’s opinion in the Raich medicinal marijuana case, and Chief Justice John Roberts’ and Anthony Kennedy’s opinions in Comstock only get us so far. Despite the fact that reading the entrails of those opinions suggest that they’d contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn’t whether those Justices will be bound by 70 years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments." Dahlia Lithwick in Slate .

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