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The Supreme Court, nominations and the individual mandate


Now this is unexpected: In oral arguments for New Process Steel v. National Labor Relations Board, Chief Justice John Roberts and deputy solicitor general Neil Katyal got into a dispute over the three vacancies on the National Labor Relations Board. Katyal tried to explain that they're the product of Republican obstructionism: There've been holds, Katyal said, and the Senate failed to break the filibuster when it tried to vote on Craig Becker. Roberts was unimpressed. "And the recess appointment power doesn’t work why?" he asked. On that point, I share Chief Justice Roberts's confusion.

So long as I'm on the topic of the court, yesterday I argued that one reason to think a constitutional challenge against the individual mandate wouldn't work was that "the Supreme Court does not like to invalidate important laws passed by Congress." That was the consensus of most experts I've spoken to on the issue. But my colleague Charles Lane, among others, made a convincing case to me that the Roberts court has been uncommonly willing to overturn laws passed by Congress. The most recent example was Citizens United, which invalidated important elements of the McCain-Feingold campaign-finance law. So though the Supreme Court might once have been loath to interfere with legislative intent, that argument may not hold as much water as it once did.

That said, most legal experts I've spoken to think the individual mandate is easily constitutional. The brief (pdf) Simon Lazarus wrote for the American Constitution Society makes the case well. But it's a reminder that President Obama might want to be careful about getting into fights with the court: It can make his life pretty difficult if it so chooses.

Photo credit: Melina Mara/TWP.

By Ezra Klein  |  March 24, 2010; 2:50 PM ET
Categories:  Health Reform , Legal  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   StumbleUpon   Technorati   Google Buzz   Previous: Health care and the election
Next: A primer on 'too big to fail'


Politico's The Arena asks:

State AG's lawsuit against health care: Do they have a case?

Dean Baker responds:

What happened to the Republicans' opposition to frivolous lawsuits?

From what I've read, there are two points to make. First, it would be crazy to rule that the individual mandate (or any other component of the legislation) is unconstitutional. Second, we have four crazy justices on the Supreme Court.

Posted by: Lomillialor | March 24, 2010 3:38 PM | Report abuse

I just heard Wyden say in chamber to his colleagues on the other side of the aisle:

"Don't litigate, innovate!" Then he referred them to Provision 1332 of the new Law, which says that states may opt out of the individual mandate, or presumably other parts of the law, PROVIDED they're going to innovate and create some alternative health care plan for their residents (that meets some minimum standards established in the law).

Seems to me, this Opt-Out option would nullify any standing litigants might have re: the mandate, i.e., if you don't like the mandate, then opt out and create your own plan without a mandate.

Posted by: onewing1 | March 24, 2010 3:39 PM | Report abuse

"important elements of the McCain-Feingold campaign-finance law"

You wrote "important" but I think you meant "unconstitutional"

Posted by: NoVAHockey | March 24, 2010 3:47 PM | Report abuse

Also: Me thinks Obama has already p***** off the Supremes (well, the conservative ones anyway).

Concur with the idea that THIS Court might well do anything that furthers Conservative causes.

(can't help myself) Aside: In this photo, Robert's head is perfectly shaped like an egg.

Posted by: onewing1 | March 24, 2010 3:54 PM | Report abuse

This supreme court... how many divisions does it command?

Posted by: jim80 | March 24, 2010 4:16 PM | Report abuse

I'm so old, I remember back when going to court after you lost an election and litigating and litigating until you get the result you want was a terrible thing.

But then so is my cat, and he's 10.

Posted by: davis_x_machina | March 24, 2010 4:16 PM | Report abuse

Recess appointment expire at the end of the current term of the Senate. The recess appointee must be confirmed or the position is vacant once again. (Also, I thought there was some prohibition on a recess appointee being either re-appointed by recess, or being re-nominated. Perhaps that is just the practice which has been followed recently.)

Justice Roberts should understand that ANY President wants to have a full complement of staff to serve him in the operation of the Executive branch of the government. The Senate has the responsibility to "advise" the President, and provide their "consent" on certain matters where the Constitution has given them that role. It was not the intent for endless, pointless filibuster to be used as a means of crippling one branch of government by another.

With regard to Roberts and his failure to adhere to the assurances he gave the Senate when he was confirmed -- not a recess appointment, not filibustered, I might add -- that "stare decisis" (or that decided law should stand), Roberts has bent over backwards to find a way to support the conservative position on every decision that has come before "his" court and renege on that promise which allowed his bipartisan confirmation.

Should these challenges of the new HCR law come before the Supreme Court, I am concerned that Roberts will re-craft the question before the court into one which answers not the narrowest questions, but broad, vague and politically driven questions.

I foresee a very heated clash between the Executive Branch, Justice Department and the Supreme Court.

I begin to wonder if Roberts intentionally flubbed the oath of office he administered to the President hoping to give the "birthers" a leg up on challenging the legitimacy of this President. (Conspiracy Theorists Alert!) Frankly, I would not put it past him.

Posted by: jade_7243 | March 24, 2010 4:35 PM | Report abuse

The Simon Lazurus PDF Ezra links to gives us this interesting nugget. (Alas, as there is no HTML allowed, one must resort to CapsLock to highlight what I want you to note. I'm not shouting.):

"Paragraph (2)(D) states that the mandate “achieves near-universal coverage by building upon and strengthening the private employer-based health insurance system” (emphasis added). This is an especially significant point. As noted below, OPPONENTS CHALLENGING THE VALIDITY OF THE MANDATE CONCEDE THAT CONGRESS COULD LAWFULLY ESTABLISH A GOVERNMENT-FUNDED AND MANAGED (SINGLE-PAYER) HEALTH INSURANCE SYSTEM WITH UNIVERSAL MANDATORY INDIVIDUAL CONTRIBUTIONS, USING ITS POWERS TO TAX AND SPEND under Article I, §8 of the Constitution (of course, Medicare is precisely such a program). But Congress has chosen not to totally displace the existing mixed public-private system. To attain universal coverage while retaining this mixed system, Congress must mandate that individual contributions purchase private sector coverage, rather than (as taxes) pay for governmental insurance."

Those who cry "Bogeyman" and suggest this new law is precursor to single-payer -- and those Attorneys General who seek to challenge it -- may do more to advance the cause of a single-payer, Medicare-for-all plan than they realize.

Be careful what you wish for (or against in this case), you just may get it.

Posted by: jade_7243 | March 24, 2010 5:02 PM | Report abuse

It is a disgrace that it took Roberts to tell Obama to do his job. Perhaps, if Obama had decided to work on it, we might have had a healthcare bill last year.

Posted by: farrell_bill | March 24, 2010 5:13 PM | Report abuse

Let's hope the Supreme Court does choose tomake Obama's life "pretty difficult;" he is making id difficult on lots of other Americans! Just because you believe the Obama's agenda is good for America does not make it so!



Posted by: my4653 | March 24, 2010 5:30 PM | Report abuse

"Recess appointment expire at the end of the current term of the Senate."

Not so. A recess appointment expires at the end of the "next session" of the Senate. If Obama were to make a recess appointment this year, it would expire at the end of the 2011 session.

Posted by: thehersch | March 24, 2010 5:31 PM | Report abuse

It's perhaps worth noting that Bush nominated replacements to the NLRB in 2008, and Senate Democrats blocked them. Maybe Ezra can link to some of what he wrote back then about Democratic obstructionism and how it was creating a broken system of governance.

Posted by: tomtildrum | March 24, 2010 6:02 PM | Report abuse

You people speak as if the court is a political branch of government. The purpose of the court is to be exactly opposite of that.

The fact is that the Congress has the power to tax and levy fees and that essentially is what the individual mandate does. This court, as all courts, will deem this law constitutional.

As for citizens united, there is a quite clear constitutional arguement that infringing political speech is unconstitutional. Just see the 1st amendment.

Lots of people have been especially concerned about the first amendment since the Alien and Sedition Acts of 1797.

Posted by: lancediverson | March 24, 2010 6:23 PM | Report abuse

"the Supreme Court does not like to invalidate important laws passed by Congress."

This was passed by one part of one party and against the overwhelming negative opinions of the people.

I hope they see that this was a takeover done by torturing the rules and perverting the process with kickbacks, bribes and corruption and that they will give voice to the American people.

Posted by: WrongfulDeath | March 24, 2010 6:28 PM | Report abuse

This view of a Supreme Court playing flat out power politics is a really scary one that says disturbing things about what our political class currently thinks about the rule of law in this country. Just to be clear, the nugget of liberal concern here seems to be that 5 members of the Supreme Court will be so motivated by conservative ideology and personal pique that they'll knock out the ENTIRETY of the Affordable Care Act. I think this is an extreme view that's borne out of an excessive willingness to plug the Supremes into the kind of "left vs. right" frame that's taken over much of our politics.

Now of course it's true that this Court has been pretty willing to knock out important elements of Congressional laws. And it's true that Scalia in particular has driven a more vigorous interpretation of the Commerce Clause's limits (with some success getting Kennedy's crucial support). But even if this tendency indicates a willingness to find the individual mandates unconstitutional, it's important to remember that "individual mandates" are NOT "the healthcare bill."

If the court goes so far as to knock out the mandates, Congress will face the problem of avoiding an insurance death spiral. That's a difficult problem for sure, but it's HIGHLY unlikely that Congress will respond by junking the whole bill. The same logic that argues against repeal applies to that approach -- no Congress wants to be the one that brings BACK pre-existing condition discrimination. So Congress will just have to think of some other way to keep people from holding off on buying coverage until AFTER they get sick; most likely through a new entitlement program.

Posted by: NS12345 | March 24, 2010 6:43 PM | Report abuse

The actions of the Roberts court are much like the actions of Senators in our current Congress. They're willing sacrifice the legitimacy of the institution in exchange for short term political victories.

The funny thing about the Supreme Court is that the Constitution never says that the Court has the power to decide if laws are constitutional or if the rest of the government is bound by the Court's decisions. The reason we let the Supreme Court arbitrate these decisions is because of a precedent established by a compromise which was brokered by the Marshall court in the early years of this nation.

The tricky thing about this is that the Roberts court has said they don't feel particularly bound by the precedents established by previous courts. But if they don't feel bound by precedent, there is no reason anyone else should feel bound by the precedent that the Supreme Court has the power to decide the constitutionality of Federal Laws. Nor should future courts feel bound by the precedents of the Roberts court.

This might sound hypothetical, but at least once in our history, it had very real consequences. When the Supreme Court ruled that the Indian Relocation occurring during the Andrew Jackson Presidency was unconstitutional, Jackson is said to have responded "John Marshall has made his decision, now let him enforce it!"

The consequences, of course, were incredibly tragic. In my opinion the moral of this parable is that John Roberts had better be very careful with his willingness to disregard precedent, he might one day find that he traded the Supreme Court's territory away for a handful of pretty beads.

Posted by: zosima | March 24, 2010 9:14 PM | Report abuse

Your final sentence: "But it's a reminder that President Obama might want to be careful about getting into fights with the court: It can make his life pretty difficult if it so chooses."

In my view, the court began the fight with Obama when it chose to throw out law on campaign finance. I think the motivation was to further Republican electoral prospects, but undoubtedly the consequence will be to enable business interests to have more influence in election.

The Citizens United decisioin was a shot across the Obama administration bow. Obama was trained in constitutional law and is well aware that we have an activist court adverse to him. Obama opponents usually make the mistake of assuming he is a wimp who won't fight back. Obama's state of the union remarks were a clear signal to the Roberts faction of the supreme court not to make that mistake.

As other comments stated, court decisions against health care reform are likely to be pyrrhic victories. Get rid of the individual mandates? Then the insurance companies are left with no-pre-existing-condition and no minimum lifetime cap and no way to fund it. Is the healthcare industry likely to shower dollars on Republicans for taking away 30 million policy holders (backed up by Uncle Sam) while leaving them holding the bag for increased liabilities.

One mistake it seems to me that commentators make is that they look upon Democrats as liberals first and politicians second, when the reality is probably much the reverse. Brad Delong has an interesting article on how RomneyCare became ObamaCare. RomneyCare is slanted to benefit powerful Republican constituencies. By passing RomneyCare, the Democrats have an opportunity to capture those constituencies while the Republicans are currently offering them only -- face time with Glenn Beck and Rush Limbaugh?

The Republican party didn't used to be this stupid. Something happened in the 1990s. One of the earliest articles critical of George W Bush quoted the first faith based initiative director that W's White House had basically no policy arm, only a political arm.

The GWB administration got the governance idea very late--perhaps just in time to avoid total disaster in Iraq but not in time to avoid seeing the economy driving over a cliff. No one currently representing the Republican party seems to have any awareness of the causes of their most recent debacle and consequently, no fixes.

Posted by: remarksdc | March 24, 2010 9:52 PM | Report abuse

I like my right to privacy. How is this individual mandate not a violation of the right to privacy? Consider: This individual mandate says that we as private citizens have to do the private behavior of buying a certain type of private commodity or else get fined for not engaging in this private behavior. I have seen some argue along the line that this is just the power to tax, in that government has the right to say, "OK, we're going to hit you with this tax, but if you engage in this private behavior that we tell you to do, then we'll wipe out the tax." I claim that this argument is subterfuge. What? This fine is put forth as a universal tax to be "tax credited out of"? Then why not for this "universal tax" give in return a government service like oh, say, a strong public option? If this is held up as legal, then what's to keep government - including a future George Bush - from using the power to tax as subterfuge for violating our right to privacy without end?

Posted by: Keefanda | March 25, 2010 3:48 AM | Report abuse

To follow-up my post on March 25, 2010 3:48 AM: Suppose some future government dominated with religious conservatives - modern Republicans - were to put forth the individual mandate "In order to protect America's children, you shall buy and use porn filters in your TV sets and computers, or you're fined." Suppose they were to say, "Oh, it's not universal and unconditional since it applies to only those who own TVs and computers." OK then? ----- There is no end to this very slippery slope on individual mandates. ---- Where is the ACLU? Where are the true civil libertarians?

Posted by: Keefanda | March 25, 2010 10:53 PM | Report abuse

People who've said this is Constitutional are focusing on the Tenth Amendment, but the Tenth Amendment isn't what's at issue here.

The penalty for not buying insurance is done through taxes, and the Constitution places strict limits on how the Congress can tax.

The reason why the Sixteenth Amendment -- which established the income tax -- was needed was because the Congress is prohibited from passing a direct tax (vs. an indirect tax) that doesn't take in revenues evenly based on census/apportionment.

In legal terms, putting a penalty on someone for not buying a product or service would constitute a direct tax, and claiming its an 'income tax' simply because its added on top of an income tax form is dishonest. It would be like as if the government wanted to do a national property tax, and added it to the income tax form as a 'penalty for property ownership'.

If the Supreme Court rejects it, it will be for this reason.

I wrote a full post on the issue here:

Posted by: brianshapiro | March 26, 2010 1:00 PM | Report abuse

To follow up my comments March 25, 2010 3:48 AM and March 25, 2010 10:53 PM: Does a state "opt out" clause make an unconstitutional law less unconstitutional? Would that state "opt out" clause in this law containing the individual mandate make that mandate constitutional? Suppose some future federal government were to outlaw abortion or women crossing state lines to get abortions? But suppose they gave the states an "opt out clause" for these laws? ----- There is no end to this very slippery slope of violating our right to (economic) privacy using the federal power to tax or regulate interstate commerce as subterfuge. ------ Where is the ACLU? Where are the true civil libertarians?

Posted by: Keefanda | March 27, 2010 5:53 PM | Report abuse

Lazarus "Brief" demonstrates an appalling ignorance of basic constitutional law. Let me briefly mention just two points.

First, Lazarus cites United States v. Southeastern Underwriters Ass‟n, 322 U.S. 533 (1944) for the proposition that "the Supreme Court decades ago, in 1944, held that the business of insurance fell within Congress‟ regulatory authority under the Commerce Clause." This is a lie. What the Court actually said was that fire insurance policies could be regulated by Congress because "many of [them] were multistate in character, and none of which, if we accept the allegations of the indictment, could possibly have been continued but for that part of them which moved back and forth across state lines." This is not true of health insurance policies. No part of them "move[s] back and forth across state lines." Instead, by federal law health insurance policies cannot be sold across state lines. Lazarus might want to read a case before citing it.

Second, even if Congress could "regulate" health insurance policies, it would still not have the power to "mandate" that every American buy one. For example, everyone acknowledges that Congress can regulate the beef industry through the USDA. But does anyone honestly believe that this regulatory power gives Congress the authority to mandate that all Americans buy 5 lbs of hamburger each month or pay a fine? That would be ridiculous. And so is the individual mandate to buy health insurance.

Mr. Klein, before you cite someone else's writing you might want to read it first to see if it makes any sense. Lazarus's brief makes no sense.

Posted by: brentjjensen | March 30, 2010 10:25 PM | Report abuse

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