This week’s New England Journal of Medicine (NEJM) has a concise and informative overview of the US Supreme Court’s decision on Obamacare, which is well worth a look. It even includes a cool table showing how each judge decided on each of the key issues, with pictures. Consistent with all its coverage to date, the NEJM continues to be upbeat about Obamacare (though not so upbeat that they call it by its catchy handle, rather than its boring full name): they characterize the judgment as “upholding nearly all” of Obamacare, and describe the supreme court process as the “denouement” of the story. In NEJM-land, while the tea party and Republicans fume and rave, the practical folks in politics and the law have accepted the reality of a US healthcare financing landscape that incorporates Obamacare.

The article also gives some nice insights into the reach of the Court’s power, and the thinking of the chief justice. In talking about his conclusion that the individual mandate lies within Congress’s “power to tax,” the article reports:

Relying on precedents requiring the Court to give a statute an interpretation that preserves its validity, if one is possible, Roberts concluded that the mandate could reasonably be read as “establishing a condition — not owning health insurance — that triggers a tax — the required payment to the [Internal Revenue Service].” That Congress had labeled the payment a “penalty” rather than a “tax” was not determinative, he concluded, of whether it could be viewed as a tax for constitutional purposes. Rejecting the arguments of the joint opinion, he stated that Congress’s failure to use “magic words or labels” would not invalidate otherwise constitutional taxes and that unlike a penalty that punishes unlawful conduct, the payment was a tax that someone chooses to pay rather than buy health insurance.

The first sentence suggests that opponents of Congressional laws are on a wing and a prayer when they go to the Supreme Court, which is required “to give a statute an interpretation that preserves its validity,” and (as Roberts observes elsewhere in his decision) it is not the responsibility of the Court to decide on the content of legislation: Roberts observes that the Court “possesses neither the expertise nor the prerogative to make policy judgments.” He also opened his judgment with a “disquistion” on, amongst other things, the limits of the Courts power to invalidate laws. Roberts was hailed upon his accession to the court as something of an originalist, I think, and people who see originalist judges as a strong bulwark against big government should be careful what they wish for – an originalist interpretation of the constitution appears to put a lot of limits on the role of the Supreme Court, as well as the government. Those who applauded Roberts as a conservative judge are of course railing against him now after this decision, but it’s probably worth noting that judges in general aren’t particularly predictable: the supposedly most liberal judges (like Beyer and Kagan) turned on Obama over his “coercive” medicaid penalties on the states, and all seven judges agreed on their right to review the act.

On the issue of whether Obama’s threat to penalize states that do agree to Obamacare’s medicaid expansion, there was an interesting contrast between Roberts’ opinion on whether the individual mandate is coercive, and whether the medicaid expansion is. On the individual mandate, he says that “the payment was a tax that someone chooses to pay rather than buy health insurance” (in the words of the article). But about the penalty on states he argues that

by tying not only new money but also existing Medicaid payments to participation in the expansion, the policy crossed the line from encouragement to coercion, violating the 10th Amendment

So, it’s coercion when you tell a state that if they don’t pay money on A they’ll have to pay money on B; but when you make the same demand of individuals, it’s a choice that they make. There’s perhaps a difference between the two positions in terms of contracts (the states “had not agreed to, nor could they be expected to anticipate” the change in medicaid perspective that Obama is foisting on them). But surely one could argue the same about taxpayers: when I paid my taxes I didn’t do so on the reasonable understanding that at any time Obama would levy an additional tax on me if I didn’t spend a lot of money on health insurance I don’t need[1]. Maybe this is a facetious point, but it seems to me that in this judgment states are afforded more rights (against coercion) than individuals, which is a bit weird.

Given these judgments, it appears that the main disagreement between justices on this decision arose from their varied interpretations of the commerce clause, and that this ruling places limits on the expansive powers the Congress had previously been allowed, which I have written about previously. Gun nuts and 18th century re-enactment fanatics will be surprised to note that it was the Ginsburg minority judgment that came out in favour of forcing all Americans to buy guns:

Ginsburg’s dissent criticized his “crabbed reading of the Commerce Clause” as evoking “the era in which the Court routinely thwarted Congress’s efforts to regulate the national economy in the interest of those who labor to sustain it.”

But if, contrary to Ginsburg’s hopes, Roberts’s decision shows “staying power” then in future the Congress may no longer be able to mandate that all able-bodied Americans own guns, and thus will the tyranny of the Feds be complete. Perhaps if there were more democrat appointees like Ginsburg on the court instead of “crabbed” nativists like Roberts, all Americans could have the pleasure of owning a rocket launcher, whether they want one or not.

Sometimes it really does seem like American constitutional debates are stranger than fiction. When compared to Australian High Court judgments and the (generally very reasonable) response of governments to them, the Supreme court seems very weak. Our High Court is quite happy to invalidate huge tracts of tax law or 100 year legal fictions (like Terra Nullius) without so much as a by-your-leave and certainly doesn’t seem to see itself as having any requirement to lend government laws validity. It squished several years of immigration law without blinking, and nobody on that court seemed to have paused to consider whether they were over-reaching themselves. It will be interesting to see whether and how they act on the Carbon Tax, because I think every government in Australia has learnt the hard way that the High Court doesn’t consider the policy goals or the government’s political situation in the slightest when it makes its legal decisions[2]. Perhaps conservative Americans should be wishing they had Australia’s (liberal) Michael Kirby sitting in judgment of Obama…

As a final note, I’d add that the opinions of high-level judges, whether British or American or Australian, can be remarkably well written and pithy, and can be beautiful exercises in both advanced English and logic. They can be a joy to read. Because High/Supreme Court judges are largely appointed for life and completely free of political pressure, they can also be remarkably forthright in their views, and sometimes their statements can be a joy to read (Michael Kirby’s writings on discrimination and homosexuality can be very good examples of this). From the wikipedia page on Justice Roberts, I found this pithy gem from a Roberts majority opinion on a case about schools that incorporated race in their selection process, ostensibly to undo prior history of race-based discrimination: “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Whether you agree that this is the solution to ending racial discrimination, it’s a joy to see things written so directly in policy debate!

fn1: ha!

fn2: Julia Gillard (our PM) seems to always get bad luck, so just on the basis of probabilities I guess that the High Court will throw out the whole thing, and furthermore will rule that carbon dioxide is unconstitutional. Or something.

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