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Monday, March 26, 2012

If You Want to Listen to the Obamacare Arguments—Or Read the Transcrtipts...

Here’s the place to do it.  Just to preview—not having listened to it at all—what they are talking about is a law that prevents challenges to tax laws before there is an attempt to collect.  So far there has been no attempt to collect.  Whether it is a “tax” or a “penalty” is significant also to the ultimate constitutionality of the law, too—in other words, it is not just a matter of a procedural bar, but it becomes much easier to justify it in the final analysis.  But it also would have the effect of kicking the can down the road, until well after the election.

In my opinion, the analysis of Judge Vinson on the subject is the absolute best.  You can read me commenting on it in a post back in my Patterico days entitled Judge Vinson to Congress: You Really Should Read These Laws Before You Pass Them.

Via Althouse, who saved me some googling today.

I’ll be listening to it tonight and sharing my thoughts.

Update: How’s this for a biased, “breaking news” email from Cnn:

Nearly one in three Americans thinks the U.S. Supreme Court should overturn the entire 2010 health care law signed by President Barack Obama, according to a new CNN/ORC poll.

The poll finds that 43% want to strike down only some provisions of the law and 23% think the court should leave it as it is.

Got that?  The lede isn’t the fact that the overwhelming majority of Americans think that the law is at least partially unconstitutional, it’s that only a third think that the whole law should be thrown out.  And given that that question is based on a more esoteric concept in constitutional law, I am not sure how much those numbers tell us.

By comparison, here’s the lede in the article at Cnn’s site, apparently based on the same poll:

Washington (CNN) – Most Americans don't want the Supreme Court to completely overturn the landmark yet controversial 2010 federal health care reform law, but only a quarter of the public wants to see the high court leave the measure alone, according to a new national survey.

That is a lot more neutral.  And by the way, Cnn, why is this a breaking news story?  It’s not an event that just happened, it’s just a poll.  Breaking news should be reserved for terrorist attacks and the like.  Not that you are the only ones to do this, but you are the ones I am talking about right now.

Interestingly enough, if you go into the detailed results, you find out that 50% of the population believes that the Supreme Court will make its decision based on its political views, and 46% believe they will base it on their objective interpretations.

So just to do the math, 73% of the public believes that the Supreme Court should strike down at least part of the law as unconstitutional, but only 46% of the public believes that the Supreme Court will follow the law.  That suggests that the best way to convince the people that the Supreme Court is following the law is to strike down part of the law.  So if the Justice Kennedy is driven by protection of the institution of the Supreme Court as I have argued, then he will vote to strike down only part of the law.

But the dilemma is this.  Striking down only the mandate would result in a catastrophe for the insurance industry.  Yes, Congress would have time to avert it, but do you think that the parties can work fast enough to do so?  Not frickin’ likely.  So the option that will enhance the prestige of the court the most would invite economic disaster.

Update (II): So I had a chance to listen and read, and I agree with numerous commentators that it looks like the Supreme Court was extremely skeptical of the notion that this was a tax and not a penalty—including some of the more liberal justices.  Now there is some wiggle room in that they were discussing whether or not it was a tax for purposes of a statute, rather than the constitution, and literally the same word might mean different things in two different laws.  But typically the Supreme Court likes to read the language of the law in a unified way, if only to make it easier for lay persons to understand the law.

There were a few highlights I noted.  One sub-issue is whether the statute in question, the Anti-Injunction Act imposes a jurisdictional barrier to hearing a case, or a merely a “claims-processing” requirement.  This is important because if it is jurisdictional special rules apply: it cannot be waived, and the courts can more justifiably raise the issue on their own.  Otherwise it could be waived, either expressly, or by failing to raise the issue in a timely fashion and the courts will not generally correct their mistakes for them.

In that context, Sotomayor was discussing the concern about reading the statute so it can be waived:

JUSTICE SOTOMAYOR: [This] Assumes the lack of competency of the Government, which I don't, but what other types of cases?

I just thought it was funny what Sotomayor had a show of competency in government attorneys.  On the other hand, Scalia had a similar vote of confidence on Federal Judges:

JUSTICE SCALIA: Mr. Long, I don't think you are going to come up with any [negative consequence of ruling that it is a jurisdictional rule], but I think your response is you could say that about any jurisdictional rule. If it's not jurisdictional, what's going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent.

What the transcript doesn’t show is that everyone burst into laughter at that time, which is a common occurance.  I interpret Scalia’s comments as being lightly sarcastic, although I will stick up for the Federal judges I have dealt with: I have never dealt with a Federal judge who didn’t demonstrate a deep intelligence, and deep consideration of the issues before them.  Maybe I am just lucky, but I don’t think so.

Another observation is that once again, like in the Patterico piece I linked to above, all of this discussion turned on the intricacies of what Congress wrote, which is all fine and good and typical for this kind of analysis.  But like I said back then, it rests on a dubious premise—that Congress actually carefully crafted this law.

Now knowing the reality—that they seemed to have uncarefully crafted it—might lead us to question whether we should treat it as thought it was carefully crafted.  Or, it might be wise for the courts to treat it as though it was carefully crafted and let Congress pay the penalty for their carelessness, to learn to be more careful in the future.  I will admit to being of two minds on that point.  But we get at once point this line from Sotomayor, discussing about whether an exception to the penalty for violating the mandate, is also an exception to the mandate itself:

JUSTICE SOTOMAYOR: Is your whole point that this was inartful drafting by Congress, that, to the extent that there is an exemption under the penalty, it's an exemption from the legal obligation?

There were indeed several exchanges on this point.  If the mandate applied, but the penalty did not, should they interpret it as the mandate as not applying either, or not.  The government’s lawyers argued that the mandate’s duties were thus co-extensive with situations where the penalty didn’t apply and the Justice Kagan explored that a little:

JUSTICE KAGAN: The nature of the representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person who is obligated to do so under the statute, doesn't do it, pays the penalty instead, and that person finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law?

[SOLICITOR] GENERAL VERRILLI: No. Our position is that person should give the answer "no."

And Justice Alito explored that question as well:

JUSTICE ALITO: Suppose a person who has been receiving medical care in an emergency room -- has no health insurance but, over the years, goes to the emergency room when the person wants medical care -goes to the emergency room, and the hospital says, well, fine, you are eligible for Medicaid, enroll in Medicaid. And the person says, no, I don't want that. I want to continue to get -- just get care here from the emergency room. Will the hospital be able to point to the mandate and say, well, you're obligated to enroll?

Which yes, isn’t terribly compelling, but that’s just it.  Today was the part that was interesting to lawyers, to a degree, but it was not the big sexy issues of federal power that all of us are waiting to hear about.  What we take away is that so far they seem skeptical of the claim it is a tax and not a penalty, and that could be significant.  But that is about it.

But this sort of handicapping is risky.  Frankly no one is ever sure why a justice asks the questions they do.  They might be exploring parts of a case that is a weak spot to shore up a position, or trying to show others the weakness in a position.  Or they just might enjoy arguing about it.  I think of all the justices, you could make that claim about Scalia the easiest.  So treat any kind of claim that a justice seemed skeptical of X or Y with, well... skepticism.  We could always be wrong.

And frankly tomorrow the big sexy day in the argument as I understand it.  If things go well, we will be treated to an extended discussion of the relationship between the government and its people.

Finally I will share a revelation I had about Justice Kennedy the other day.  I think the easiest way to understand Kennedy is that he is a libertarian (at least on domestic policy).  Not a complete one, and he also has a strong belief in following precedents for their own sake, but that seems to be where his instincts are, especially in making new law.  Which is very bad news for Obamacare’s defenders, if I am right.


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  1. I think the "tax" issue argued today only went to the procedural aspect -- i.e., whether the Court (or any court) was empowered to even hear the mandate issue.

    My sense, from ScotusBlog and other reporting, is that everybody was eager to reach the merits of the case -- i.e., the mandate issue.

  2. FYI: I'm not sure how they are doing it, but the Alliance Defense Fund seems to be live-tweeting the hearings today.!/AllianceDefense