Confusion over Compulsion

In the first third of the twentieth century, the Supreme Court occasionally was inspired to state that certain acts of Congress which were undeniably exercises of its enumerated powers, like the power to tax and spend for the general welfare or the power to regulate interstate commerce, were nonetheless unconstitutional because they touched upon subject areas inappropriate for federal consideration. For instance, a tax on the interstate shipment of goods manufactured using child labor was unconstitutional, notwithstanding Congress' clear power to tax things that get shipped across state lines, because (apparently!)

regulating child labor was just something Congress wasn't supposed to do. Likewise, the Agricultural Adjustment Act was struck down in 1936 because regulating agriculture was something Congress wasn't supposed to do, and a certain bundle of taxes and spending were considered to be regulations of agriculture. This approach was, of course, pretty much abandoned after 1937 in all post-New Deal jurisprudence, and for good reason: it was silly, it was confusing, and it lacked any foundation in Constitutional text. How is one to know, looking at the text of the Constitution, which subject areas are or aren't appropriate for federal treatment? Moreover, if Congressional exercise of its enumerated powers is subject to such censorship on the basis of old-fashioned notions of propriety, the government will be perpetually unable to meet the needs of a changing world, not because it lacks the authority to do so under the Constitution, but because the needs are new and people are unaccustomed to thinking of Congress using its powers in that way. Categorical federalism, as it was called, was a mess, and was rightly abandoned.

But in the last third of the twentieth century, and continuing right through June 28th, 2012, the Court has developed a new standard by which to judge Congressional exercise of its taxing, spending, and regulatory powers against some notion of state sovereignty: the compulsion test. The basic idea is that Congress may not compel or coerce states to behave a certain way. South Dakota v. Dole, among other cases, upheld a law in part by finding that it wasn't coercion. New York v. United States struck down one provision of a law on the grounds that it was compulsion of state legislatures. Printz v. United States held that Congress couldn't conscript state law enforcement officers into the administration of federal regulations. And, a few weeks ago, the Court in National Federation of Independent Business v. Sebelius held that changing the conditions of a federal/state jointly-administered spending program could amount to coercion, if the dollar figures involved were big enough. In my opinion there's a tremendous amount of confusion in this whole area, mostly because the Court has declined to pursue one of the two clear, coherent paths of reasoning on the issue.

The Mets Are Idiots

Finally, a break from con-law! Unfortunately, it's not a particularly refreshing break. The news today is that the Mets fourth starter, Dillon Gee, has been hospitalized with numbness in his fingers, then was discovered to have a blood clot in his pitching shoulder, and then hit the disabled list. This is bad; Gee has sported a 4.10 ERA thus far this year, but as that's around his career ERA and his strikeout and walk rates have both improved dramatically this year, it looks like he's really been pitching better than that. For instance, SIERA, considered by many to be the most sophisticated peripherals-based ERA estimator, pegs Gee as a 3.53 pitcher this year. That's what we call "good." The Mets have already been dealing with one rotation spot whose designated occupant, Mike Pelfrey, is out for the year, and while Chris Young has filled it rather well so far it's a real shame to have another one. (Obviously, the more major concern goes something like "blood clot?!? Eeeep!" with the focus being on his own personal health.) The Mets' plan is apparently to use Miguel Batista as Gee's replacement; Batista has a 4.92 SIERA to go along with his 4.20 ERA this year. This will not end well, although I guess it has the upside of getting Batista away from the eighth innings of games started by R.A. Dickey, Johan Santana, or Jon Niese.

But consider that it didn't have to be this way. The Mets have, after all, a highly regarded pitching prospect who has prospered this year as a starter for their AAA team, the Buffalo Bisons. No, I don't mean Matt Harvey, although that description fits him too; he's widely regarded as not quite ready yet, and I have no way of second-guessing that judgment. I mean Jenrry Mejia, rehabbing from the Tommy John surgery that knocked out his 2011 season. Overall, in his journey from the High-A St. Lucie Mets to the AA Binghamton Mets to the AAA Bisons, Mejia made 7 starts this year, with a combined line that looks something like 35.0 IP, 26 H, 15 R, 10 ER (although admittedly the 5 unearned runs were on his throwing error), 9 BB, 23 K, 3 HR. That's a 2.57 ERA, a 5.9 K/9 rate, a 2.3 BB/9 rate, an 0.8 HR/9 rate, and a 2.55 K/BB rate. All of that is pretty damn good. His strikeout rate was lower at Buffalo, but that's largely because he appeared to be working on pitch efficiency, getting through his short-ish starting assignments with sparklingly low pitch counts and dozens of ground ball outs. Pitch efficiency, of course, is something you look for in a starting pitcher. As is the possession of multiple effective pitches, which Mejia has.

So, what did the Mets do with poor young Jenrry? They converted him to a reliever, of course! The thinking behind this was something about how the Major League team's bullpen has sucked this year, and they want help there, and people have always been tempted to think of Mejia as a reliever anyway, for some strange reason. Anyway, it hasn't gone very well. In ten relief appearances with Buffalo, Mejia's thrown 11.2 innings, allowing 11 runs, 10 earned, on 16 hits, 2 of which cleared the fence, walking 8 while striking out just 6. Those numbers make Miguel Batista look like a good pitcher. And now, of course, that they've put Jenrry in the bullpen, he's not available, not immediately anyway, to come up and start games for the Mets. Which they could use him to do. Because the alternative is Miguel Batista.

In any event, I do see Mejia as a starter down the road, so here's hoping they realize that just because the bullpen has been so awful and just because they had been having a period of relative rotation stability doesn't mean they should mismanage their players. That means stretching Mejia out to be a starter again, and then down the road when Batista's struggles have reached the point where they can't be overlooked any longer, bring him up. As things are, though, I'm having trouble not considering this a big fat error on Sandy Alderson's part.

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.

Getting the "Marbury Syllogism" Right

People sometimes refer to the "Marbury Syllogism," a particularly simple justification of judicial review in the American constitutional system. It goes something like this:

• The function of courts is to interpret the law.
• The Constitution is law.
• Therefore, the function of courts includes interpreting the Constitution.

A lot of people find this unconvincingly simplistic. It's kind of circular, anyway: how do we know that the function of courts is to interpret the law, if that task includes striking down laws passed by democratically-elected legislatures? The text of the Constitution does not give the courts this function, just to read it. Maybe the function of courts is just to interpret the laws, like courts around the world do in contracts disputes or whatever, not to go around judging those laws against the Constitution. Maybe interpreting the Constitution is up to the elected branches, and the Court oughtn't second-guess them.

Well, maybe, but I think that there's a much stronger syllogism than the conventional one that does amply justify judicial review. It goes like this:

• The function of courts is to enforce the law and apply it to particular cases.
• Legislative acts in contravention of the Constitution are not law.
• Therefore, the courts should not enforce such acts, or apply them to particular cases.

And that, in fact, is how judicial review works. In the course of considering a particular legal dispute, the Court will simply not apply a law that it believes to be unconstitutional. And this really does seem to follow from the Constitution's own declaration that it, and "the Laws of the United States which shall be made in pursuance thereof," are the Supreme Law of the Land. Implicitly, any so-called law which is made not in pursuance thereof but in violation thereof is not the supreme law of anything. It doesn't exist, because the Constitution does not permit it to exist. For a court to nonetheless enforce such a nonexistent law would be highly improper. Therefore, courts must operate on the assumption that any laws which are in fact unconstitutional do not exist, and that they ought refuse to enforce them. Doing this, of course, requires those Courts to have an idea of what the Constitution means, which requires interpreting that document. And there you have judicial review. I don't see how there are any holes in that case, if we're talking about debating whether the Constitution does in fact provide for judicial review. Of course, one could make a philosophical argument in favor of legislative supremacy, but that's a different question. Our Constitution rather plainly does not provide for Congressional supremacy. There are many things which Congress lacks the power, or more accurately the legitimate authority, to do. If Congress tries to tell people it did some of those things, it is wrong, and those people should not go along with it. It really is that simple.

No, Roberts Did Not Say the Mandate Violated the Commerce Clause

A lot of people, in describing the recent health care ruling by the Supreme Court, say things like, "Chief Justice Roberts' majority opinion ruled that the individual mandate violated the Commerce Clause, but that didn't matter because the mandate was a valid exercise of Congress' power to levy taxes." Jon Stewart said something similar in his segment on the Court's ruling, or more specifically on news coverage of that ruling. But the thing is, this isn't true. You can't "violate the Commerce Clause." The Commerce Clause is not a prohibition on anything. It's a grant of power. Now, you can fail to be within that grant of power, but that's a different thing. If it weren't, here's a partial list of things that would "violate the Commerce Clause": the issuance of federal debt, coining money, punishing counterfeiters, establishing the Post Office, creating patents, creating the lower federal courts, declaring war, creating the military, and governing the District of Columbia. Now, all of those things are constitutional, and obviously so: they're each pretty much the central application of one or more of Congress' other enumerated powers. But declarations of war, for instance, are in no conceivable way supported by the Commerce Clause itself. This doesn't matter, because that Clause is only one part of a broader grant of power to Congress. To fall outside of Congress' enumerated powers, you need to fail to be supported by all of them at once. Essentially no act of Congress is ever supported by more than a handful.

What Roberts ruled was that the individual mandate fell within Congress' enumerated powers, along with the rest of the Affordable Care Act. He also clarified that, in his opinion, the mandate was justified by the Taxing Power but not by the Commerce Clause. That doesn't mean it was "unconstitutional under the Commerce Clause, but valid under the Taxing Power," or something. As far as I know, if an act of Congress actually does violate one of the provisions of the Constitution, in a manner deserving that term, it is unconstitutional. For instance, many things might be within the meaning of the phrase, "The Congress shall have the power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes," but also be prohibited by the phrase "No Tax or Duty shall be laid on Articles exported from any State," from Article 1, Section 9. Such an Act would be valid under the Commerce Clause but invalid under the "not taxing exports from a state" Clause, which doesn't really have a name because it hasn't been very important in constitutional jurisprudence, and it would be unconstitutional and get itself struck down. But going the other way doesn't happen. If you fall outside of one of Congress' enumerated powers, but within another, you're valid. If you fall outside of any of Congress' enumerated powers, then you violate the Constitution by being unsupported by anything in that document. But you can't "violate" one part of a grant of power; it's just not what the words mean.

A minor point, but it's kept bugging me in the coverage of this whole affair.