The Sound of Dust, Settling

Perspective takes time. You have to wait for the dust to settle. After all, we all know what happened in 1776 – Mozart wrote that Haffner Symphony – and Edward Gibbon published the first volume of his History of the Decline and Fall of the Roman Empire – and Adam Smith published his Inquiry into the Nature and Causes of the Wealth of Nations – and we started our revolution over here. That ended in October 1781, with the formal British abandonment of any claims to the United States codified in the Treaty of Paris in 1783. These things take time. And we’re still trying to figure out the nature and causes of the wealth of nations. It might have something to do with iPhones, or oil, or Donald Trump. Adam Smith knew nothing of these things. Sometimes you just have to wait.

And it’s only been a day since the Supreme Court handed down its decision on the constitutionality of the Affordable Care Act – Obamacare. The dust has hardly settled from the outcome no one expected – the ruling that the whole thing is quite constitutional, even the individual mandate that everyone buy insurance, so all costs can be covered by the largest possible risk pool. Yes, the Supreme Court ruled that you can’t invoke the Commerce Clause to do that, because somehow the massive healthcare insurance market isn’t really the kind of commerce the government is allowed to regulate in that way, but it’s fine for the government to use its taxing authority to make people who don’t buy insurance, and want a free ride when they get sick, pay a special tax for not joining in. That serves the same purpose – there’s no free lunch – and thus the individual mandate is quite constitutional too. It’s just a matter of using the appropriate authority.

And what we’re talking about here isn’t really a tax anyway. It’s not intended to raise a penny in revenue. It’s a penalty imposed on those who choose not to purchase insurance and could easily show up in emergency rooms for free care, provided for by the 1986 Emergency Medical Treatment and Labor Act – signed into law by Ronald Reagan of all people. Patients needing immediate care cannot be turned away from an emergency department because of an inability to pay. What was he thinking? This new individual mandate tax fixes Reagan’s mistake, and ideally would raise no revenue at all. Almost everyone would decide to get at least some kind of health insurance. No one likes fines. And no one likes freeloaders either.

And that was that – and the conservative right was outraged. This was their court, packed with conservatives appointed by Bush and Bush, the same Supreme Court that had stopped the Florida recount cold and had declared the second Bush president, not Al Gore, who had actually won the popular vote. Obama had only replaced two of the nine with his folks. The oral arguments went well for them – Obama’s solicitor general had been pummeled by Scalia and their guys. They’d toss out the whole Affordable Care Act, or at least they’d toss out the individual mandate so none of any of its provisions could be paid for. Obama would be humiliated. The nation would turn on him and he’d lose in the fall. It was in the bag.

And then it wasn’t. The Chief Justice, John Roberts, appointed by the second George Bush, whose appointment then-senator Obama had vigorously opposed, surprised everyone and joined the four vaguely liberal justices and said all of the Affordable Care Act was constitutional – and he wrote the majority opinion saying so, and read it from the bench. He didn’t say it was good legislation, or wise. He pointedly said that was none of his business. They had asked about its constitutionality, and they got their answer.

No one on the right knew quite what to make of this. Their champion, who had authored the majority opinion in Citizens United, allowing the Koch brothers and Sheldon Adelson and all of Karl Rove’s billionaire friends to spend hundreds of millions a week to sway public opinion in elections at all levels, had handed Obama this stunning victory. It wasn’t fair. It wasn’t right. But it was now settled law and it was hard for them to wrap their heads around that. It was hard to step back to gain a little perspective. What did this all mean? There was a lot of dust that would have to settle first.

And then the interpretations began:

Louisiana Gov. Bobby Jindal (R) said Thursday’s “frightening” Supreme Court ruling could lead to penalties for Americans whose lives are out of step with government priorities.

On a call with reporters, Jindal said that the decision to uphold the healthcare law as a tax is a “blow to our freedoms.”

“What’s next?” he said, expressing concern for people who “refuse to eat tofu” or “refuse to drive a Chevy Volt?”

This was a variation on Justice Scalia’s “broccoli” comment during the oral arguments – “Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”

Scalia had picked up that example from Fox News – but Bobby Jindal may like broccoli. He doesn’t seem to like tofu. And perspective takes time. None of this has to do with either. But presumably liberals like tofu and electric cars, so this was a bit of a dog-whistle for the base. It didn’t add much perspective, nor did this:

Mike Vanderboegh, the ex-militia blogger who calls himself one of the “midwives” of the Operation Fast and Furious scandal, recently predicted that if the Supreme Court declared the health care reform bill to be constitutional, it would lead to violent insurrection against “government tyranny.” …

“You may call tyranny a mandate or you may call it a tax, but it still is tyranny and invites the same response.” He further predicts the response of his ilk: “If we refuse to obey, we will be fined. If we refuse to pay the fine, we will in time be jailed. If we refuse to report meekly to jail, we will be sent for by armed men. And if we refuse their violent invitation at the doorsteps of our own homes we will be killed – unless we kill them first.”

Perhaps Mike should wait and see how things work out. The dust hasn’t settled yet. And Paul Waldman finds someone else in need of perspective:

When he began his still-brilliant show a few years ago, Stephen Colbert said, “Anyone can read the news to you. I promise to feel the news at you.” And there’s nobody who feels the news quite like Peggy Noonan, America’s most unintentionally hilarious columnist. Pretty much every time she writes a column or goes on television, Noonan can be counted on to tell us about a feeling out there in the land. It’s seldom a powerful feeling; instead, it’s more often a stirring, an inchoate emotion still in the process of crystallizing. It might be a yearning, or unease, or a doubt or a fear, but it lingers just out of our perception until Peggy Noonan comes along and perceives it for us.

Did you think the impact of yesterday’s Supreme Court ruling was that millions of uninsured Americans will now be able to get health insurance, and after 2014 none of us will ever need to fear the words “pre-existing condition” again?

He notes that this is not what Noonan, Ronald Reagan’s speechwriter, feels at all:

The ruling strikes me as very bad for the atmosphere of freedom in our country, the sense of freeness and lazy, sloppy liberty we’ve long maintained with some hiccups along the way. Those hiccups seem to come more and more now, and closer and closer together. From the dissent of Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito: “If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power or, in Hamilton’s words, ‘the hideous monster whose devouring jaws… spare neither sex nor age, nor high nor low, nor sacred nor profane.’” They were quoting Federalist No. 33. The language is dramatic, but the thought applies.

Waldman:

Do you feel that change in atmosphere? Can you feel the diminution of that sense of freeness and lazy, sloppy liberty? If you can’t, that’s probably because your antennae aren’t tuned in to the national mood the way Peggy Noonan’s are.

Noonan on Obama’s address after the ruling:

He stressed what he said were the program’s benefits. Those already insured will find their coverage “more secure and more affordable,” insurance companies will provide “free preventive care like checkups and mammograms,” “seniors” and “young adults” will receive benefits, those with pre-existing conditions will no longer be denied coverage. Also, the insurance companies “won’t be able to charge you more just because you’re a woman.”

It was a targeted base-greaser.

Waldman:

Indeed, because who but a silly liberal hippie could care about things like people with pre-existing conditions no longer being denied coverage, or preventive care, or the elimination of the prescription drug “donut hole,” or ending sex discrimination in insurance premiums? Stupid hippies.

You may have noticed that almost without exception, everyone who believes that the mandate to carry health insurance constitutes socialist tyranny already has insurance. Of course, if you think that you won’t ever have to worry about things like getting tossed off your coverage, then that frees you up to consider just how sloppy our liberty is. And Peggy Noonan will tell you exactly what you’re feeling, even if you don’t quite feel it yet.

But that may change over time, after the dust settles. But there’s Neal Katyal, a law professor at Georgetown who served as acting solicitor general and argued the healthcare cases at the appellate level. He argues that when the dust settled, just who won what here is not who you think:

The obvious victor in the Supreme Court’s health care decision was President Obama, who risked vast amounts of political capital to pass the Affordable Care Act. A somewhat more subtle victor, but equally important, was the rule of law more generally: in an era when so many people on the left and right view the justices, and constitutional questions, through the prism of politics, the court today made clear that law matters and that it isn’t just politics by other means.

But there was a subtle loser too, and that is the federal government. By opening new avenues for the courts to rewrite the law, the federal government may have won the battle but lost the war.

He says this is a matter of the restructuring of federal-state relations:

For example, until now, it had been understood that when the federal government gave money to a state, in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform.

In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds. And it does so in the context of Medicaid, which Congress created and can alter, amend or abolish at any time. The states knew the terms of the deal when they joined – and those terms continue to be enshrined in the federal code.

This was the first significant loss for the federal government’s spending power in decades. The fancy footwork that the court employed to view the act as coercive could come back in later cases to haunt the federal government. Many programs are built on the government’s spending power, and the existence of an extra-constitutional limit on that power is a worrisome development.

Maybe that’s too subtle, but the court did rule states can take federal funds, sent to them for specific circumstances, by law, and use the money to buy Twinkies or tulips, or whatever they please. That’s something to think about, as is this:

Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce. There is no judicial precedent or language in the Constitution that compelled that result; instead, the majority reasoned by constitutional inference.

The court employed language that could be read to suggest that whenever statutes are novel, they are unconstitutional.

Everything John Marshall wrote in the 1819 case McCulloch v. Maryland – all that stuff about a flexible, adaptable Constitution – just got tossed aside. That Commerce Clause – establishing that the federal government has the right, and the duty, to regulate commerce – was tossed aside as something that can only be applied very narrowly. You can’t expand it to cover what the founders never imagined – making restaurants serve black folks, or hotels rent them rooms, or real estate agents to sell them houses. How is that interstate commerce?

The court didn’t go that far, but the writing is on the wall now, as James B. Stewart notes:

The opinion reads like a hymn to the ideal of limited government. And by embracing the broccoli argument, it sharply limits the commerce clause – until now the source of ever-expanding legislative power since Chief Justice John Marshall wrote in 1824 that Congressional power to regulate commerce “may be exercised to its utmost extent.”

Despite Justice Marshall’s sweeping language, much of the expansion of Congressional power under the commerce clause came over a century later, in a series of court challenges to New Deal legislation. Invoking the commerce clause, the court upheld the Fair Labor Standards Act, even though it regulated companies whose business was entirely local, and it upheld the regulation of milk prices even for dairies that never sold their products across state lines. In what Chief Justice Roberts cited this week as “perhaps the most far-reaching example of commerce clause authority over intrastate activity,” the court in 1942 upheld restricting a farmer’s right to grow wheat for his own consumption.

Obama may have won, but Congress lost:

In the healthcare case, all the justices acknowledged that healthcare is a huge industry that cuts across state lines, and easily passed that test. But the conservative justices, joined by the chief justice, focused on “activity” as a factor limiting the commerce clause, ruling that commerce requires some activity, and not buying health insurance is “inactivity.” As Justice Roberts put it, the wheat farmer “was at least actively engaged in the production of wheat, and the government could regulate that activity because of its effect on commerce.”

So Marshall was wrong, and what Congress can do is now severely limited, and when the dust settled people realized things had changed:

The significance of the ruling for the commerce clause wasn’t lost on constitutional scholars from across the political spectrum. “It’s a dark day and the opinion is very dispiriting,” Charles Fried, a Harvard constitutional law professor, told me from Rome, where he was on vacation.

“The limitation of the commerce clause runs counter to 75 years of Supreme Court jurisprudence. It is a complete capitulation to the bogus logic of the broccoli argument and its proponents in the Tea Party.”

Professor Fried, a solicitor general under President Ronald Reagan, is viewed as a conservative and no fan of the healthcare law, but nonetheless has consistently argued that the law is constitutional.

He was only surprised, and appalled, by just how this court found that the Affordable Care Act was constitutional. Stewart cites many others who were troubled too.

Of course this would mean the decision was some sort of long-term win for conservatism. That’s possible – in fact George Will and Jay Cost make that argument, as do Jonathan Chait and Tom Scocca on the left – and Ross Douthat summarizes:

By affirming a limited and limiting reading of the Congress’s Commerce Clause powers even as he upheld the individual mandate for other reasons, Will wrote, the Chief Justice “rejected a constitutional rationale for the mandate … that was pregnant with rampant statism,” and laid the groundwork for a future in which the judiciary returns to its pre-New Deal habit of “viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers.”

From the left, Chait made a version of the same point, worrying that a Roberts-led Court would now be able to advance a much more limited understanding of federal power by “a process of slow constriction,” rather than “one suddenly and transparently partisan attack.”

The right lost the battle, these and other writers agreed, but thanks to Roberts’ savvy it could well be on its way to winning the larger size-of-government war.

The dust settled. Yes, Obama won, but you see, he really lost, and conservatism won.

Douthat thinks these guys are nuts:

I would find this perspective considerably more persuasive if I could envision how, exactly, this war of “slow constriction” is supposed to play out. Does anyone really believe that a Roberts-led Court is likely to revisit the constitutionality of the major post-New Deal social programs? That it’s going to overturn child labor laws and minimum wage laws, or shutter regulatory agencies? Whatever precedent was set yesterday, that kind of genuine counter-revolution seems highly unlikely.

Likewise, does anyone believe that a host of new Obamacare-style programs - crucial to liberalism’s ambitions, but vulnerable to constitutional challenge - are likely to pass Congress in the next decade or two? If we were entering an era in which an aggressive, ascendant liberalism were poised to push through more sweeping social legislation, then Roberts’ line in the sand might matter enormously for a whole series of looming debates. But the state of our finances (and our politics) makes it much more likely that the Obamacare contest will be remembered as a last lurch forward for welfare state liberalism than the first of many attempted government expansions like it. The manner in which liberals won yesterday could theoretically cost them opportunities to further expand the administrative state, but they probably weren’t going to have those opportunities anyway.

Gaining perspective can be tricky. You may step back and take a long hard look at the implications of what just happened, and see what you hope to see, or what you deeply fear, not what’s there:

In an intellectual sense, the logic of the healthcare mandate may indeed have been “pregnant with rampant statism,” as Will puts it. But in terms of practical politics, the healthcare bill was itself the most statist act that’s likely to pass Congress over the next decade at least – and maybe in John Roberts’ lifetime. And by upholding it, Roberts handed liberals a victory in the scope-of-government war that matters most to them, while at worst setting them up to lose some less important skirmishes somewhere down the road.

Face it – the liberals won, and won big – and maybe for the last time. Or maybe in the future we’ll all be forced to eat tofu and drive electric cars. But probably not. We’ll have to wait for the dust to settle.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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