Understanding the ACA Arguments

Daniel Hoffman guayiya at bellsouth.net
Thu Mar 29 15:27:27 PDT 2012


Some say it's revolutionary to let government order us to do something.
How about the "Reduce Speed" signs in the interstate?
Those don't even require a purchase, so how do they regulate commerce?
--- On Thu, 3/29/12, Robert Sheridan <rs at robertsheridan.com> wrote:


From: Robert Sheridan <rs at robertsheridan.com>
Subject: Re: Understanding the ACA Arguments
To: "Miguel Schor" <mschor at suffolk.edu>
Cc: "CONLAWPROFS professors" <Conlawprof at lists.ucla.edu>
Date: Thursday, March 29, 2012, 6:05 PM



Two points:


1.  I'd thought that the Court was to have given up, in 1937, the notion that it would evaluate and rule on the wisdom of social and economic reform legislation; see Carolene and its famous Fn.-4, listing when it would not, to protect powerless minorities.  The ACA seems like social and economic reform legislation of the sort the Court promised to keep hands off.  I understand that by claiming that Congress lacks the power to pass such legislation for whatever reason, this takes the question out of that promise, but, as has been pointed out, it seems too easy to divert questions of 'wisdom' to questions of 'power.'  Manufacturing and mining were once thought to be 'local' activities regulatable only by state, not federal, authority.  That has gone by the boards as of the struggle in the '30s with the "Old Court" of Lochner Era fame, not to say notoriety.


2.  Many other issues once seen to be 'local' in nature were later understood, and deemed, to be 'national,' such as, for example, the Cumberland Road (condemned originally as an evil 'internal improvement', but see the National Defense Highway System of the Eisenhower era, 1957, let's say).  What kind of a country, nowadays, can fail to address pressing social needs such as, not only the right of labor to organize to protect itself, workplace wages, hours, & safety, protection of women, children, and men in the working environment, Social Security, and now Healthcare?


The nation, it is said, cannot regard healthcare as a national concern because the nation was not given the power, originally; the police power to protect health, safety, welfare and morals was pointedly denied the newly established central government in favor of the right and power of the states to control this themselves.  But fast forward to today, with all our moving around and inter-relatedness, and the old arguments, seen as right in their day, are arrayed against a newer thinking that recognizes healthcare as a national problem which in the view of many, Congress either has, or ought to have, the power to provide for.  


Right (old) conflicts w/ right (new), the essence of tragedy, according to Hegel, at least.  


If national healthcare loses in the Court, that is one form of tragedy, at least until corrected in some other way.   If national  healthcare wins, that is tragedy in the eyes of its opponents.  Mandatory healthcare was fine in Mitt Romney's Massachusetts when he was governor, but not nationwide where he wants to be president.  


The ACA seems to represent a substantial lowering of the walls separating the states from the federal power.  


We either need this, or we don't.  


Congress, with elected representatives, in both houses, from all the states, acted with the view that we did.  


Assuming that healthcare as a national concern is an interest that is not going to disappear with time, it seems that at some time we're going to have to deal with the problem of who it covers and how it will be administered and financed in a more effective manner than will be the case if the ACA is either gutted or tossed entirely.


rs





On Mar 29, 2012, at 12:54 PM, Miguel Schor wrote:


I would argue that the deference principle works a bit differently in this case.  One of the lessons that the Court took from the constitutional struggles of the 1930s was that it should be deferential when it came to the scope of the commerce clause because it did not want to disable the government from solving really huge national problems (the Depression then, health care today). I have yet to see anyone argue that there are no good and sound arguments as to why ACA is constitutional.  Why should a presumably bare majority of the Court be able to impose its different view of the commerce clause?  Marbury rather obviously does not answer this question.  There are reasonable political checks and balances in place that constrain Congress and the President; there are (unfortunately) no reasonable political (or legal) checks and balances that are of any practical use when it comes to the Supreme Court.  The deference principle flows from the fact that
 the Court can and does get it very, very wrong from time to time.  We are willing to live with that problem most of the time but since the 1930s we have not been willing to live with that possibility when it comes to a reasonable political construction of the commerce clause.  Perhaps our constitutional universe will change and the Supreme Court's judgment that our constitution disables the political branches from relying on the commerce clause to solve profound national problems will henceforth prevail over reasonable views to the contrary.  But the constitutional stakes are much, much higher than simply the fate of the ACA if this change occurs.  Miguel 



On Mar 29, 2012, at 2:16 PM, Conkle, Daniel O. wrote:




I’m not entirely sure that this is right, Steve.  Suppose, as a member of Congress who takes my constitutional oath seriously, I believe that the individual mandate is beyond the reach of congressional power.  But suppose now I’ve been appointed to the Supreme Court, and the issue comes before me as a justice.  (Put aside the issue of recusal.)  Am I obliged as a Justice to rule the law unconstitutional?  Or might I properly defer to the presumed constitutional judgment of the majorities in Congress who passed the law?
 
Dan 
************************************************ 
Daniel O. Conkle 
Robert H. McKinney Professor of Law 
Indiana University Maurer School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail conkle at indiana.edu 
************************************************
 
 


From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, March 29, 2012 3:03 PM
Cc: CONLAWPROFS professors
Subject: Re: Understanding the ACA Arguments
 
I don't think that deference to Congress is like stare decisis (well, perhaps a bit like it in the way Dan mentions, but mostly not).  If a justice believes the Congressional to be unwise or otherwise wrong but within Congressional power, that is the end of it.  But if the justice believes that Congress exceeded its power, then the wisdom of lack there of law simply doesn't enter into the issue and deference should not be given.

 

Here, the court should defer to Congress and the political branches because Congress has the power to pass such a law for all the reasons others have mentioned repeatedly.

 

 


On Mar 29, 2012, at 2:53 PM, Conkle, Daniel O. wrote:





I wonder whether any of the current justices is truly deferential to the political branches in the current context.  In particular, is there any justice who (a) believes that, as a matter of independent inquiry, the individual mandate (or the Medicaid expansion) exceeds the reach of Congress’s constitutional power, properly understood, but (b) is willing nonetheless to defer to Congress despite its erroneous (in the justice’s view) conclusion to the contrary?

 

(Isn’t deference to Congress in this setting a bit like stare decisis?  If a justice agrees with a particular result as a matter of independent inquiry, precedent doesn’t matter.  Stare decisis only matters if the justice disagrees with the result but is willing to follow the precedent anyway. )

 

Dan Conkle 
************************************************ 
Daniel O. Conkle 
Robert H. McKinney Professor of Law 
Indiana University Maurer School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail conkle at indiana.edu 
************************************************

 

 

 



From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Miguel Schor
Sent: Thursday, March 29, 2012 2:06 PM
To: Scarberry, Mark
Cc: Conlawprof at lists.ucla.edu
Subject: Re: Understanding the ACA Arguments

 

To argue deference the political branches is not to argue that judicial review is illegitimate.  What I don't understand (and this is a sincere question) is why those who fear that upholding the mandate will then allow Congress to enact an eat your broccoli law think that political checks and balances do not do any work in our constitutional system (or that paying attention to this somehow delegitimizes judicial review).  Congress of course is not going to enact a law requiring all citizens to eat broccoli.  More to the point, setting ambition against ambition is a crucial limiting "principle" in its own right.  There are many, many examples of constitutions around the globe that are merely parchment barriers and one thing they all lack is a workable system of political checks and balances.  


 


 







 
 



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