On the Hyde Amendment, Single-Payer, Bernie Sanders, and Socialism

Hillary Clinton recently called for repealing the Hyde Amendment, the federal law which prohibits federal funds from being spent on abortion. That is, among other things, surprisingly radical for a candidate most known for her cautious, calculating, pragmatic manner. It's also interesting because Bernie Sanders, the generally more radical candidate opposing her, has not, to the best of anyone's knowledge, come out in favor of repealing the Hyde Amendment. Which is funny, when you think about it, because Sanders is thoroughly pro-choice, and of course is most notorious these days for his proposed single-payer health care system. In which the federal government would pay for all the health care.

But if the Hyde Amendment is still around, then that won't include abortion.

At best this would lead to a market for supplemental abortion insurance, or just to women paying for abortion out of pocket. That's the at-best scenario, and it's pretty much a nightmare from a reproductive rights perspective. The worst-case scenario would be if private insurance, and maybe even private out-of-pocket purchase of medical treatment, were actually outlawed, which would effectively outlaw abortion itself. (That would almost certainly be unconstitutional under current doctrine, certainly as to abortion and maybe more generally.)

So, the first thing to say about all this is that someone needs to ask Bernie Sanders about the Hyde Amendment. Like, yesterday. But that's not really the crux of the issue: he'll almost certainly say he supports repealing it. He assuredly does support it on the merits, and there's no great political loss to admitting it.

The deeper issue, I think, is what it says about him that he didn't think of this when he was drafting his proposal. Because, it's a big issue. In a single-payer system, every aspect of medical treatment is subject to intense politicization, and this is a country where that could get seriously problematic, very fast. This is actually one of the virtues of the liberal-capitalist order: it's very good at letting people decide what they want for themselves, and having there be people willing to give it to them (so long as they can afford it--aye, there's the rub), even if other people aren't too happy about that. Single-payer, even if it allowed private insurance around the margins, would complicate that happy "live and let live (if you're not poor)" picture a lot. That doesn't mean it wouldn't be worth doing; that "if you're not poor" part is a really big problem. But it's not just a fantasy issue. It's a genuine cost to achieving an awful lot of good, and Sanders shows no sign of recognizing that it must be paid. This is for me the big issue with the fact that, at certain points in the past, he wanted to let the states administer the new single-payer system. Really, Bernie Sanders? An awful lot of states would make decisions about what should and should not be covered that you would really not like. He's backed off that position for now, but the lack of attention to the analogous issues at the federal level, e.g. the Hyde Amendment, doesn't give me a ton of confidence that he understands the real problem here, or has good ideas for what to do about it.

And then of course there's just the fact that the politicization of medicine would add an entirely different dimension to the fight. Paul Krugman has been talking a bunch lately about how it's tough to get a single-payer system from where we are because it really would impose losses on a bunch of important stakeholders. Well, once you remember that the Hyde Amendment exists we've got a whole other fight on our hands. There's been controversy in recent years about requiring employers to provide insurance that covers contraceptives. Imagine the explosion that would ensue if we proposed to have the federal government cover the full cost of abortions for everyone. Which is not to say that we shouldn't do it! We should, in an ideal world. This is a fight that deserves to be won. That's slightly different, though, from saying that it would be won, or even that the victory would be worth the fight.* 

More to the point, perhaps, is that Sanders does not seem to anticipate that fight, or the others like it that would surely come. And this has me thinking about a recent Ta-Nehesi Coates article and its discussion of the view that Sanders and his ideological comrades have toward racial justice issues:

"[Sanders sees] black people not so much as a class specifically injured by white supremacy, but rather, as a group which magically suffers from disproportionate poverty.

This is the “class first” approach, originating in the myth that racism and socialism are necessarily incompatible."

My feeling about this is that it's almost the other way around. It's not that adopting socialism would make racism and its effects disappear. It's that racism itself, as a separate and distinct ideology, is a big part of what's stopping us from being more socialistic. There was some research, which I could probably dig up if I wanted to spend a bit of time on it, trying to figure out why, descriptively, causally, why the United States has such a meager welfare system. Ultimately the study concluded that it's all about race, or more specifically racism: American whites don't have solidarity with black people, and therefore resent having their wealth redistributed to black people in a way that middle-class Germans don't resent having their wealth given to poorer Germans. (Interestingly we can see a related phenomenon playing out in the European Union right now; it turns out the Germans and the French don't have that much solidarity with the Greeks after all, and therefore experience a similar resentment and a reluctance to support the much-poorer people of Greece.)

And similarly with issues of sex and gender. There's a lot about the social democratic agenda that is deeply threatening to the patriarchy, there really is. Just as there is with white supremacy. Someone like Sanders is right about that. But he seems to assume that this means we should focus our energy on attacking Capital (capitalized for sinister emphasis, of course), and that when we defeat it, all those identity-politics fights will take care of themselves. But I feel like if you don't appreciate the independent power of the patriarchy, of white supremacy, in American political life, then you won't appreciate the true nature of the struggle to make America better. And you'll lose. Because you'll rush headlong at the one enemy you're focused on and let yourself be surrounded by the other armies in their coalition. Better to attack each of those allies--whose support Capital needs but to whose defense Capital cannot necessarily come--in turn, and then leave the main enemy weakened and alone. But defeating white supremacy, defeating the patriarchy, that's a massive undertaking. It'll take years, decades really. Maybe generations. And it's not a fight that Bernie Sanders seems to see himself as fighting. Hillary Clinton does, if in an incremental way (though her opposition to the Hyde Amendment is impressively bold).

And that, I guess, is the socialist case for voting Hillary.



*Perhaps my favorite part of that fight would be the inevitable court case arguing that covering abortion in the single-payer system violated religious freedom. Because the logic there is damn near identical to the similar claims being made about mandated private insurance in a case like Hobby Lobby, but if we move it to the context of a government program then it becomes obviously absurd. There's no right to have the government not spend its money on things you disapprove of for religious reasons; that's absurd. We can tax you, and once we tax you it's not your money anymore. (The one exception is that we can't spend it actually supporting religious institutions you don't support, per the Establishment Clause.)

What I'd Like to See

Republicans are, as we all know, currently refusing to pass an appropriations bill keeping the government funded. "Why are they doing this?" you might ask, if you were from another planet or something. Here on earth we know they're doing it because they want to repeal/defund/delay/whatever "Obamacare," also known as the Patient Protection and Affordable Care Act. In normal-person speak, one translation of that sentence would be that they are inflicting this suffering upon the world in service of the cause of denying health care coverage to poor people, and protecting rich people from marginally higher marginal taxes. To most of us, that sounds bad! But Republicans, to their, I dunno, credit, don't put it that way. They say they're doing this because Obamacare is destroying the economy. So here's what I'd like to see:

Will somebody, anybody, please just ask them how Obamacare is ruining the country?

Like, literally, go up to John Boehner or Ted Cruz or Mike Lee or Paul Ryan or whoever and just say, "how is the Affordable Care Act hurting the economy?" And when they say something like "it's destroying jobs" or whatever, keep asking, how? And don't stop until you've got an answer at least as concrete as, say, the standard Democratic explanation for how austerity is destructive in a depressed economy.

Oh wait, you won't get that. Because there isn't one. So maybe I should specify an alternate termination condition, lest this hypothetical reporter be stuck saying "but how?" forever. Let's say, until you get that kind of answer, or, more realistically, they a) tell you to fuck off, or go fuck yourself, or whatever; or b) some non-profane version of (a). In other words, until they implicitly concede that they haven't got an answer. I can't think of any other end-point. Behind all the nonsense about "job-killing regulations" or whatever, there just isn't any specific causal mechanism in mind. And that's stunning. Republicans have shut down the United States government and are prepared to create a situation in which the government has no legal way to pay its legal obligations, with the possible result of massive and irreversible global financial calamity, on the grounds that all of that is worth it to stop one terrible law that's destroying the country. And they cannot tell you how the law is destroying the country. They can only assert that it is. It's staggering.

Ban Tanning Salons

No, seriously. Ban 'em. Outright. Make their very existence illegal. I'm not sure how much that could be done by the federal government, although given the way the Commerce Clause works these days probably a lot of it, but whoever has the power should just ban them. Or at the very least mandate that tanning beds be renamed "cancer pods" or something. This is perhaps the best-ever case for public-health paternalism, where you have people doing something that is flamboyantly bad for their long-term health who probably don't have any idea of the risk. And why are they doing this? Fashion. Which is to say, because other people are doing it and will expect it of them. Think of it like steroids in baseball, except the motive isn't gaining objectively superior athletic skills, it's coming a bit closer to society's expectations for how you're supposed to make yourself look. It's like people doing beauty-steroids for a beauty pageant. But if dope was banned, the judges would stop preferring the dopers, i.e. if you banned indoor tanning people wouldn't be expected to do it anymore. And it's not like people couldn't orange their skin up, either by spraying some orangeiness onto it directly or by, you know, going out in the sun, preferably wearing some goddamn sunscreen. They just wouldn't be able to pay other people to blast their skin with cancer as a method of orangeitude. I seriously do not see the counterargument here, except basically blind repetition of stuff about libertarianism or small government. There's not even the tobacco excuse, namely that lots of current smokers are genuinely addicted so if you just eradicated cigarettes you'd leave a whole bunch of people stranded. People don't get physically addicted to tanning beds, they just get sucked up in the culture of fashion. It's terrible, and it must be stopped.

Define "No Choice"

The lynchpin of the argument, accepted by all but two (awesome) Justices of the Supreme Court, that the Affordable Care Act's expansion of Medicaid was unconstitutional is the idea that Congress cannot "coerce" states into adopting such-and-such a policy by threatening to withhold funds. It cannot leave states "no choice" in the matter. The test implied is that very modest financial incentives are okay, but larger ones are not, or, in this case in particular, that incentives involving the removal of funds currently given to states and upon which those states currently rely are not acceptable. But this criterion does not sit well with the simple fact that this case concerned very specifically federally-imposed conditions on the spending of specific federal dollars for a specific program. Yes, states rely on Medicaid funding. What do they rely upon Medicaid funding for? Medicaid! If a state fails to comply with Congress' conditions for Medicaid programs, they lose their Medicaid funding, but they also lose their Medicaid expenses, because they lose their Medicaid program. The part of a state's budget that isn't Medicaid is left untouched. Everything the state does aside from Medicaid, that is, has not been threatened.

Now, it's true, as Justice Ginsburg's awesome partial concurrence, partial dissent (and the dissent is really the best part) points out, that state officials rendering actual judgments as to whether or not to accept the new conditions and get the new funds do not actually have much of a choice. But that's just because Medicaid is such an obviously sweet deal that voters in every single state, from Vermont to Wyoming, would throw their state elected officials out of office ASAP if they decided to opt out of Medicaid. But that's not a gun to the head! This is "not having a choice" in the same way I wouldn't have a choice if you offered me $1,000,000 on the condition that I said "thank you" afterwards. It's bloody obvious that I'll be better off, and spectacularly so, if I accept. No rational person could choose to decline. Likewise, no rational state could choose to decline to accept the Medicaid funds. But Congress is not threatening, in order to get states to run the Medicaid program the way Congress wants, to make non-complying states worse off than they would have been if Medicaid didn't exist.

Now, if the federal government routinely paid for 50% of each state's budget, by simply handing over that much money and telling the states to use it to pay for stuff, and then attached conditions saying, oh, and by the way, if you don't pass laws X, Y, and Z we'll cut your funding off, that would be coercion. Those federal dollars would have become intertwined in everything the state does, and the loss of them would present the state with only two choices: double state taxes, or halve state services. That's a gun to the head. And that's why the crucial difference between conditioning funds on meeting certain requirements about how you spend those specific dollars and conditioning funds on unrelated policy is so important. A state that decides not to comply with the new Medicaid provisions will stop having Medicaid, or perhaps it could choose to raise sufficient taxes to run a Medicaid-esque program by itself. But the simple fact that the Medicaid program is such a large portion of states' budgets, and that federal funds for it are such a large portion of state revenues, does not mean that states depend on those funds. It means Medicaid is a big, expensive program. As it happens, people like Medicaid, and will want to keep it quite a lot, even if that means accepting new conditions. But it's not something they were doing before Congress came along that Congress is now threatening to interfere with.

The Strangely Particular Ruling of Mr. Chief Justice Roberts

As I continue to read the section in Chief Justice John Roberts' opinion in NFIB v. Sebelius, I'm struck by how oddly particular it is. Here's what I mean by that: with regard to both the individual mandate and the Medicaid expansion, Roberts agrees with one of the other two opinions about the relevant constitutional principles. In the first case, he agrees with Scalia and the conservatives that mandates on inactivity are invalid, while taxes on inactivity are valid. In the second case, he agrees with Ginsburg and Sotomayor that requiring states to enact certain programs on pain of losing the federal money that would have paid for those programs is acceptable, while requiring states to enact programs on pain of losing other federal monies that currently pay for other programs is not. But he and Scalia disagree over the simple issue of whether the individual mandate can be legitimately read as a tax, and he and Ginsburg disagree over the simple issue of whether the Medicaid expansion can be legitimately understood as a modification of the old program or must be seen as a new program altogether. I would say that means we shouldn't pay much attention to the results of this ruling (I mean, they clearly matter in a short-term policy way, but in a longer-term constitutional-jurisprudence way), except that labeling distinctions like these are important. Roberts affirmed, after all, that Congress can impose financial penalties on inactivity that it doesn't like, for essentially any reason whatsoever. It seems to me that one could create the Broccoli Non-Consumption Mandate, a modest fee collected by the IRS in the normal fashion and worth a small fraction of one's income, and Roberts would be bound to say yes, this is a valid exercise of the taxing power. Likewise, the Medicaid ruling signals a greater willingness to scrutinize whether modifications of federal programs are sufficiently modest as to avoid constituting a brand new program. It's kind of a weird ruling in placing its emphasis so squarely on these naming issues, rather than on the underlying principles, but I think the appropriate response to a weird ruling like that is to pay close attention to the weirdness.

The More I Read, the Less I Like Chief Justice Roberts

Today I have finally gotten around to actually reading the opinions in National Federation of Independent Business v. Sebelius, the landmark health-care cases from a week and a half ago. So far I'm most of the way through Chief Justice Roberts' opinion, and boy is it a doozy. It starts with a very long, and very boring, civics lesson about the basic idea of "limited government of enumerated powers," and how courts aren't supposed to judge the wisdom policy, etc. etc. Then there's a treatment of the Anti-Injunction Act question, which is all perfectly boring as well, though basically right as far as I can see (basically, since the AIA and the ACA are both creations of Congress, Congress' decisions as to labeling [tax/penalty] matter, whereas they don't for the constitutional question). Then there's the discussion of the individual mandate under the Commerce Clause, and it's just awful. It's not actually true that he doesn't acknowledge the existence of the Necessary and Proper Clause argument, which I consider a slam-dunk case. He mentions the fact that it's the guaranteed-issue and community-rating provisions that necessitate the minimum-coverage provision. But then, approximately a page later, he pretends like he's forgotten about that. My favorite part was where he said that not only would upholding the mandate under the Commerce Clause lead to broccoli mandates (which is apparently the definitive test for what we know not to be true), but upholding it on Necessary and Proper grounds would do so as well. I don't know why; there's a perfectly good distinction between a health-care mandate and a broccoli mandate, which is that the former is necessary not just to make the world a better place in some vague way like making people healthier (which is how conservatives always worry the broccoli mandate will be justified) but specifically necessary to carrying into execution a particular entirely valid use of one of Congress' other powers. So, you know, not impressive.

But the thing that just made me exclaim, "wait, what?!" and that is the occasion for this blog post is the following passage:

"Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage."

Ummm...? Is the entire non-elderly population with income below 133% of the poverty level not a reasonable definition of "the neediest among us"? Okay, sure, it's a broader definition of that group than certain previous ones, and it places more emphasis on the lack of resources to meet one's needs than the presence of particular adverse circumstances, such as disability, blindness, or dependent children. But still, don't people routinely refer to people as "the neediest among us" just because they're, you know, poor? Isn't that typically sort of how the phrase is understood? New Medicaid, just by itself, is clearly doing a very bad job of being a universal health insurance program, if that's what it's trying to be. Now sure, it's true that the rest of the Act includes several other programs designed to fill in the gaps left by the non-comprehensive programs Medicare and Medicaid, and it's also true that it modifies Medicaid in such a way as to shrink those gaps. But that doesn't mean Medicaid isn't still about providing health care for poor people, as it's always been. Seriously, this paragraph is jaw-droppingly bad. To all those liberals out there who are telling pollsters that you like John Roberts, you might want to read this.

The Equally Obligatory Prognostication Piece

My previous post discussed my opinion of the Supreme Court's ruling in National Federation of Independent Business v. Sebelius on the merits. This post is about discussing the likely impact of Chief Justice Roberts' compromise ruling on jurisprudence going forward. It's going to be shorter than the last one. The first thing to say is that it matters at all until a new Justice is appointed in a way that shifts the partisan balance of the Court. One liberal replacing one of the four conservatives, or one conservative replacing one of the four liberals, and the nuances of Roberts' ruling become unimportant. But assuming the Court stays the same for a while, and that each of the Justices currently on the Court sticks to their opinions from this case, here are a few things I think we can say about how much the Chief's efforts to limit Congress while upholding the law will actually change things.

The ruling regarding the Medicaid expansion strikes me as similar in some ways to Bush v. Gore: it's a completely ad hoc ruling designed for a particular temporal circumstance, and it won't really be relevant in future cases. I don't think it's really going to create a lasting precedent to the effect that Congress is basically hamstrung in its ability to change federal programs that are run in tandem with the states. Logically, if what we're worried about is the strength of the coercion Congress uses against the states in making them adopt its favored policies, then it should be that a proposal to start up a new program giving states just as much money as Medicaid gives them now, but with conditions attached that states had to follow if they wanted to see a single red cent, is just as suspect as an alteration to an existing program. But that's an unacceptable result, and not one that the Court would ever consider reaching. So I think this part of the ruling will sort of fade away quietly, causing a modest nuisance for this particular alteration of federal policy but not being of much import thereafter.

So, what about this idea that the Commerce/Necessary and Proper Clauses wouldn't have been sufficient to uphold the individual mandate? Well, the trouble with thinking this will be a big deal is that they did in fact uphold this law. Something like an individual mandate structured like this one is within Congress' enumerated powers. So the only thing Roberts really suggested would be outside of those powers, newly in this opinion, would be something similar to the mandate in its relation to the Commerce Clause but, unlike the mandate, not constructable as basically a tax. And such a thing is...? I don't know. I can't honestly think of anything that would fall into that little crack that Roberts tried to open in Congressional power. While there's no particular reason to think that this "regulating inactivity" thing conservatives have invented recently has any merit as a constitutional principle, it's certainly true that regulation of inactivity--aside from numerous tax preferences for activity as opposed to inactivity!--has not been something Congress has often felt compelled to do. And anyway, if it wants to do so, it may, so long as the penalties are expressed as a fine payable to the IRS.

So I really have no idea what the statute would look like that the precedent Roberts set today would deem unconstitutional, that wouldn't have been unconstitutional under yesterday's caselaw. Perhaps something similar to this mandate with criminal sanctions instead of a simple fine would be in that category, and of course quite honestly I'm okay with that sort of law being found unconstitutional somehow. But all in all I can't help avoiding the conclusion that, for all of Roberts' craftiness in joining the liberals and sneaking all of these limitations into his opinion despite upholding the law, he isn't actually shaping the course of future jurisprudence that much. Another way to put that is that this case just wasn't all that terribly important, considered in terms of the long arc of constitutional law. For one thing, it's obvious that the law is just sort of easily constitutional. For another, the most that's ever been claimed against the validity of this law is that, because it wasn't explicitly called a tax, it's outside the taxing power. But that wouldn't limit Congress going forward any more than Roberts' actual opinion upholding the law does: under both scenarios, Congress may do through the taxing power what it mayn't do through the Commerce Clause alone. The policy and political stakes were high, in that striking down this behemoth of social welfare legislation would've obviously changed the world circa 2015 quite a lot and there are obvious implications for the 2012 Presidential election. But as a constitutional law case, it's not that big a deal.

The Obligatory Reaction Piece

So, the first thing to say about the Supreme Court's ruling this morning in the hideously-named National Federation of Independent Business v. Sebelius, concerning the constitutionality of various provisions of the Patient Protection and Affordable Care Act, better known as "ObamaCare," is that it was basically a huge win. The law got upheld, to most people's surprise (the prediction markets at inTrade were giving a 75% chance of the mandate's being struck down as of yesterday), it was given bipartisan cover by Chief Justice John Roberts, it was a win. But I've got many more things to say than that.

The details of what happened are as follows. The Court faced four questions, of which the most important was the constitutional validity of the minimum coverage provision of the law, and on that question the Court held, 5-4, for the government. Roberts' majority opinion said that, for these purposes anyway, the so-called individual mandate was a valid exercise of Congress' taxing power, and the four liberals agreed with him; however, Roberts also opined that this provision was not a valid exercise of the Commerce Clause power, even extended through the Necessary and Proper Clause, in doing so agreeing with the Court's four dissenting conservatives. Since the mandate was not struck down, all the questions regarding severability were moot. Meanwhile, despite upholding the mandate under the taxing power, the Court rejected the argument (which neither party was making) that it was a tax for the purposes of the Anti-Injunction Act, which requires anyone suing to challenge a tax to wait until that tax is collected before doing so. Finally, the Court more or less upheld the expansion of Medicaid contained in the Act, though it said that states must be given the opportunity to accept or deny only the additional funding that would accompany said expansion. Congress could not, in other words, force states to accept the expansion or lose all their existing Medicaid funds.

The Court's four liberals, Justice Ruth Bader Ginsburg writing for herself and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, agreed with Roberts that the mandate was valid, and that it was valid under the taxing power, but not really about much else. (Well, except for the whole Anti-Injunction Act thing, which was pretty much unanimous.) They would've upheld it as a mandate directly, under the Commerce Clause. Two of them, Ginsburg and Sotomayor, also took issue with Roberts' limitation of the Medicaid expansion, though Breyer and Kagan sided with the Chief on that issue.

The dissenters, namely Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, and Clarence Thomas, would have thrown out the entire law. Basically, they rejected all of the arguments in favor of upholding the mandate, and also found the Medicaid expansion unconstitutional, and from there they simply found that those provisions were not severable from the rest of the law, or even that some sort of line could be drawn around those provisions and those directly related to them.

So, what do I think? Well, as usual, I'm with Ruth Bader Ginsburg, who is almost certainly the Justice on the Court right now whom I trust the most to reach the correct result in any given case. At the very least, in my opinion, the minimum coverage provision is necessary and proper to bringing into execution a completely valid regulation of interstate commerce, namely the guaranteed-issue and community-rating provisions preventing insurance companies from denying coverage to or giving discriminatory prices to those with pre-existing conditions, into effect. I'm not sure whether it's valid solely and directly under the Commerce Clause, but to my mind the Necessary and Proper case is a slam dunk.

As for the Medicaid expansion, as Matt Yglesias says, the logic used by Roberts, Breyer, and Kagan to limit the Medicaid expansion (which, by the way, wtf Breyer and Kagan?) is a pure invention of the moment with no foundation whatsoever in the text of the Constitution. Medicaid is a valid exercise of Congress' spending power. It has long been held that Congress may say to the states, here's some money, and here are some conditions regarding how you have to use this money, and if you don't follow those conditions then we'll take our money back. That's one of the foundations of state-federal cooperation, and has been for basically ever. The idea that, because states rely rather tremendously on Medicaid funding, Congress mayn't change the conditions attached to Medicaid is just absurd. Yeah, states rely on Medicaid funding. But surely Congress could just take that funding away, despite that reliance? And if it could do that, why can't it threaten to do that if the states don't go along with the ways in which Congress wants them to spend its money? This is not a case like South Dakota v. Dole, where Congress threatened to take away some of the highway money states relied upon if they didn't enact various policy changes, specifically a drinking age of at least 21, that Congress wanted. Oh, and the Court upheld the National Minimum Drinking Age act in that case. This should be easier still, since it's all about Congress telling the states how to spend the very dollars Congress is giving them. The idea here seems to just be that, well, this would put the states in a tough position, and hey, we like states, so it's not cool. But that's just something the Court is reading into the Spending Clause from scratch.

Finally (because I don't see much point discussing the Anti-Injunction issue), we reach the question of severability. It wouldn't be relevant if I were writing an opinion in this case, since I wouldn't strike down any of the law, but since the dissent discussed it I'll address it as well. To do so, I must (unfortunately) quote a bit of Scalia:

Some provisions, such as requiring chain restaurants to display nutritional content, appear likely to operate as Congress intended, but they fail the second test for severability. There is no reason to believe that Congress would have enacted them independently. The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which.

Now, my understanding of the "would Congress have enacted them independently?" test is quite different from the one Scalia uses here. Suppose, for instance, you take seriously the notion that the various regulations of private insurers would, in the absence of an individual mandate, create a death spiral. In that case, it's reasonable to think that Congress wouldn't have enacted the regulations if it knew the mandate wouldn't be there; there wouldn't be any point. Scalia seems, on the other hand, to be not considering Congress as a kind of abstract political institution but rather to be psychoanalyzing the details of the political compromises, log-rolling, etc. that went into passing the bill. He doesn't think, in other words, that it's very likely there would've been the votes for the law if you took out the bits he thinks are themselves unconstitutional. Or, as Yglesias puts it in his post on this same subject, the legitimate parts of the Act are deemed invalid because Antonin Scalia thinks they were "part of some kind of unseemly horse-trading."

Like I said, I would analyze this in terms of whether Congress, the institution, presumed to be basically sort of rational, would have had any plausible reason to desire to pass the law if it knew that a certain part of it was unconstitutional and would be struck down. After all, the necessary majority of both Houses did vote to enact every single provision of this law, and the President signed every single provision of this law; in my opinion, we have to take that at its word, and it's impossible to meaningfully second-guess the actions of those 270 actual human beings. And in this case, the invalidity of the minimum coverage provision would have no bearing on the reasons for which Congress might've wanted to enact, say, funding for community health centers. They're just separate policy questions.

Now, if it were well-known in a certain case that there was a specific deal made, where one faction agreed to vote for this provision in exchange for another faction voting for that provision, things might be a little different. But that's not what's going on here. There might've been a few such deals around the mandate, but not extending through the entire law. Rather, the law had a considerable omnibus aspect, with its bulk consisting of a whole bunch of little reforms to the nation's health care system that lots of people thought were a good idea. In fact, from my memory of the political debate around the Act's original passage, Republicans kept saying that, well, you know, 80% of the stuff in this law is stuff we all agree about, it's just the 20% that's causing controversy. And that 80% was the community health centers, and the dentist deregulation, and the requirement that restaurants display nutritional information. The 20% was the mandate, and perhaps also the details of the subsidies and the regulations of private insurance companies. So an actual examination of the details of the political process suggests that, far from provisions that would only have been acceptable given the mandate, all this stuff was itself the sweetener, that people might not have been able to swallow the mandate and the complex of regulations around it without.

So, basically, Scalia's wrong. Very, very, wrong. But what else is new?

EDIT: Since I haven't actually read any of the rulings, except Justice Thomas' two-page dissent, I missed this gem from Roberts regarding the Medicaid expansion:

"Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system....Spending Clause programs do not pose this danger when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds. In such a situation, state officials can fairly be held politically accountable for choosing to accept or refuse the federal offer. But when the State has no choice, the Federal Government can achieve its objectives without accountability."

I hate this kind of analysis. I think right-wingers love it. I think similar kinds of thinking are behind the so-called "non-delegation doctrine," this idea completely unsupported in constitutional text that "a delegated power may not be delegated," and so Congress can't tell the President to determine the appropriate law on some topic. And I think it's a load of bunk. The mechanisms of political accountability are spelled out in the text of the Constitution. Everyone has to be elected. It's up to the people to keep proper watch on the goings-on of their government, and it is emphatically not the province of the judiciary to police the government to make sure things don't get too complicated for us little folk to understand.

The argument in this case is that, since the federal government isn't enforcing the policies Congress has passed (states are), and since the states didn't pass the policies they're enforcing (Congress did), voters won't know whom to blame if they don't like the results. In particular, since acceptance or denial of funding is not a serious choice if Congress can take away all Medicaid funding in the case of a denial, the state government never really makes a clear choice. If the choice is serious, if denial is not met with a "gun to the head" but rather just with a continuation of the status quo, then people can fairly hold state officials politically accountable. That's the theory, anyway.

But, first of all, that's completely irrelevant, and second of all, it's wrong on the facts. I'm pretty sure that people know Medicaid is a national program. The fact that state governments do the enforcing doesn't leave people confused about what's really going on. If people don't like the Medicaid expansion in the PPACA, they'll punish Congress, and maybe also the President. And, oh look, a whole bunch of Democratic Congressmen who voted for the PPACA lost their seats in the first Congressional elections thereafter. Clearly, this state-coercing trickery made it just impossible for anyone to figure out whom they ought to blame. And that sort of gets at the point, that it's ridiculous for a Court to try and tell when an arrangement like this will make it hard for voters to know what's going on. Especially since it's not in the Constitution whatsoever, it's just some notion of fair play that Justices often like to enforce.

The truth is that Congress has the power to give money to the states, under its spending power. Obviously, it also has the power not to give that money to the states. Therefore it has the power to give money to the states if and only if the states promise to use that money in ways Congress likes. In fact, I probably think Congress has the right to give money to the states if and only if any condition regarding the state's policies are met, though that's not even important for this case. Given this ability to give money with strings attached, the idea that Congress can't change the strings attached seems patently absurd. One good way to tell that Roberts' analysis is flawed is by noticing the phrase "...States' existing Medicaid funds..." in this part of his opinion. There are no existing Medicaid funds, except in that Congress keeps appropriating funds to be given to the states as part of Medicaid.

So part of what we've got going on is inaction bias*, the assumption that any decision to not act isn't really a decision at all. But the past should be irrelevant; spending in the present should either be valid or be invalid, based on what that spending will do in the present. Congress is constantly deciding to provide the states a certain amount of Medicaid money with certain strings attached; it may at any point decide to provide a slightly different amount of Medicaid money with slightly different strings attached. So long as the new strings would be themselves constitutional if they were applied from scratch, the change in the strings should be constitutional as well.

SECOND EDIT: One thing I should add to this analysis is that there was one part of Chief Justice Roberts' opinion that I liked a whole lot. I once got into an argument with Randy Barnett, the libertarian constitutional scholar who sort of led the charge against the PPACA, about whether the fact that Congress, in writing the bill, went rather far out of its way not to call the individual mandate a tax should be controlling in determining whether or not it is a tax and therefore valid under the taxing power. Barnett said it was controlling, among other things on similar (though arguably even worse) "accountability" grounds as those I discussed above. Congress called it not a tax in order to avoid a political liability, he said; now they have to pay the price for that. Otherwise you could go around not calling things taxes that really were, and having it be okay, and then everything would just be horrible. I'm paraphrasing slightly. I, of course, said that if it acts in the real world like a tax, the Constitution shouldn't care what label has been stuck on it.

And that's where John Roberts came down. His opinion includes a nice little segment about how the way something's described in legislation just doesn't control whether or not it's within the ambit of the taxing power. That's a nice bit of anti-formalism, of looking beyond the words to see what's really going on, and I'm very pleased to see it

*Oh, and of course it's worth mentioning that the entire conservative argument against the mandate's validity as a Commerce Clause power sort of thing, which Roberts endorsed, was based on a giant pile of inaction bias. The idea that there's some great and terrible distinction between "regulating activity" and "regulating inactivity" is silly enough; the idea that such a distinction is recognized in the Constitution, which makes no reference to that concept anywhere, is even more ridiculous.

Thoughts on the Affordable Care Act Litigation

I suppose that, since I haven't posted in a few weeks and since it was the big news over the past several days and since legal/constitutional issues are sort of my specialty, I ought to comment on the recent Supreme Court litigation about the Affordable Care Act and its individual mandate. This could get long-winded; be warned! Okay, here goes:

Quasi-Liveblog

This isn't really a liveblog, since I'm not updating it continuously, but it's just a series of reactions, mainly to idiotic things Republican Congressmen say:

1. These Republicans are funny when they're about to lose. I don't think they're acting differently from usual, but when they're going to lose I can let myself find their antics entertaining.
2. Floor action, hot as it sounds, is pointless and meaningless. When's the last time a Congressman changed their mind during this kind of faux-debate? The only worthwhile part is when they get rowdy, at which point it's just good fun.
3. The government's power is the people's power. That's why they call it a democracy.
4. Yes, the idea that "Washington knows better than the American people" is part of a notion that the bill ought be passed even if the populace narrowly opposes it, or even if they did overwhelmingly oppose it (which they don't). But actually, you know, that idea was one that almost every Founding Father endorsed overwhelmingly: that's why we are a "constitutional republic," as Texas now says, rather than a direct democracy. And, of course, We the People don't particularly oppose it; several recent polls show the very bill at net-popular status.
5. Somebody said that money would be taken from students to pay for health-care reform. Uhhhhmmmmmmm, let me see, of the $68 billion in student-loan savings, $9 billion will be used to pay for HCR. So $59 billion goes to Pell Grants etc. Right. Horrible deal for students. Especially since the bill also lets us students stay on our parents' insurance until the age of 27. (It's actually a bum deal for student-loan corporations, which is pretty epic.)
6. Republicans are literally booing on the House floor. Loudly. They'd be thrown out of any golf tournament for that kind of behavior.
7. If we're so socialist, how would you like it if we did something actually socialist? Theoretically, if it wanted to, the Democratic Party could've whipped up legislation last year to institute genuine national single-payer sometime this year and passed it all by ourselves. That would've been partisan socialism. That isn't what we did.
8. lol @ the guy who, denouncing partisanship, said he had never operated on a "Republican or a Democrat cancer." non-partisan FAIL.
9. Thirty-seven states are proposing legislation to "opt out" of the Obama health-care legislation if it passes. Let me know how many of those bills pass. Also, isn't this kind of like the idea of nullification? I think I remember something about a war on the issue of nullification. Which side won that again?
10. All these people bloviating about how "we're not listening to the American people" are on really shaky factual grounds. Almost every component of the bill polls above 60%, consistently. The bill itself is around a -5% net disadvantage: that's a very narrow margin. Essentially as many people want the bill as don't want it, and vastly more people want what's in the bill than don't. So stop acting all populist. And we'll see in November whether you're right about our forthcoming electoral massacre.
11. Eric Cantor: "We believe that Americans who deeply oppose shouldn't have to pay for it." Hmmmm, why is it that this logic applies for abortion but not for the death penalty or for wars? Can I say I don't want to pay for capital punishment? Or for bombing Pakistani civilians? No? Then why, exactly, do you get to say you don't want to pay for a literally constitutionally-protected procedure?
12. The most prosperous country in the history of the world? These people make ambitious claims. According to one ranking, our current standard of living in this country is the 7th-highest in the world, behind France (France! France is literally number one on this list!), Australia, Switzerland, Germany, New Zealand, and Luxembourg. France is kicking our ass, at fucking prosperity!!!!!!!! And a WSJ/Heritage Foundation study puts the US at 5th in Economic Freedom, behind Hong Kong (dirty commies!), Singapore, Ireland, and Australia. And they're wicked conservative.
13. These people are just raising stupid, dilatory points to mess stuff up. Grow up, people. And yes, I would tell the Democrats to grow up if they were in the same position and acting the same way. It's pointless and stupid.
14. You know why the bill doesn't adequately address the rising health-care premiums, Republicans? Because you, and Democrats close to you on the ideological spectrum, would object to the kinds of things that would definitely do that. Like a public option. Or single-payer.
15. Somebody said, earlier, "We could reform health care without setting the groundwork for a move to socialized medicine." Yes, we could, but it would be such a pity.
16. Rob Andrews, D-NJ, whom I believe I may have once proudly voted against, or at least rooted strongly against prior to my 18th birthday, is making a good point. What kind of country are we? Well, we should be a country that guarantees basic health to all our citizens, that's what. It's called common kindness, and it's actually a very convincing moral philosophy.
17. Circular logic: "The bill should be bipartisan. We, the minority party, are deciding to oppose it. Therefore it is not bipartisan, and is therefore bad, and we are therefore opposing it."
18. Criticizing the bill because we're passing first a Senate bill that no one much likes and then amending it immediately, and that therefore we're "passing a bill we all know is flawed," is stupid and simplistic.
19. It is impossible to have gravitas with a name like Boehner. And evidently if you are John Boehner, it is also impossible to have charisma. Or at least it doesn't happen empirically speaking.
20. Burden every job creator in our land? Hmmmmm, isn't the employer-based system kind of doing that? So you would support single-payer, taking the burden off of small businesses, Mr. Boehner? Oh, what's that? You wouldn't support that? Why am I not surprised?
21. Since when is simply saying things that are not true a valid arguing style?
22. Wait, fail. Boehner just said "Have you read the bill? Have you read the reconciliation bill? Have you read the manager's amendment?" and the gallery kept calling out, "YES! YES!". Then Boehner was like, "Hell no you haven't!" Good job, leader of the Silly Party.
23. Speaking of which, fuck John Boehner, I'm watching Python. Also, the Republican Party is henceforth the Silly Party, and the Tea Partiers are, of course, the Very Silly Party. (Python literally has a Wood Party at one point. Seriously.)
24. Pelosi. That's more like it. She's not exactly being the most rousing of speakers, but whatever. We're gonna win. And the rhetoric itself is good, though obviously not going to move a single vote. On the other hand, she's clearly pissed about the "being a woman is a pre-existing condition" thing. As she should be. Sexist bastard insurance companies.
25. Addendum to the earlier point about bipartisanship: if there are really 200 GOP amendments in the bill, then to every Republican who complains about the partisanship: shut the fuck up. Feel free to vote against the bill, although it's still kind of a dick move to amend the bill and then vote against it, but don't complain about having been shut out of the process.
26. Aaaand, here's the vote. Debate's being over, I think I'm probably done having things to say. Obama gets a lot of Accomplishment Points for this. Pelosi jumps way the fuck up my list of Best Speakers Ever; give her another decade of controlling the House and she'll be up there with Rayburn and O'Neill. Agree with Nate Silver that she deserves Person of the Year from Time Magazine. And I don't think Republicans really believe that this passage will hurt the Democrats in November.