December 22, 2013

What a Long, Strange Trip It's Been...

Reliving -- and relitigating -- the PPACAo2010 could be tedious and disappointing. Spoiler Alert: it passes and Chief Justice Roberts applies "a saving construction" to uphold its constitutionality under the taxing power.

Despite the disappointing ending (you might wait for the Disney movie to rewrite it), the intellectual voyage of the constitutional challenges, seen through the keen minds of Volkh Conspiracy (VC) bloggers is a fascinating read. The conspirators have assembled it into a very good book: A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case by Randy Barnett, Jonathan Adler, Jonathan H.; David Bernstein, Orin Kerr, David Kopel, and Ilya Somin.

It is targeted at a "guy like me." I am very interested in Constitutional law, theory, and philosophy but have no special training or deep knowledge. I suspect most ThreeSourcers, be they guys or not, fall into or near that camp. The book is detailed and substantive, you don't feel you're getting a watered down version. But any bright and interested person can get it (for a couple of weekend afternoons, I could click the Kindle on and pretend to be much smarter than I really am).

In addition to theory, you also come away with some inside information about how these challenges progress, a rough feel for timelines, and insiders' perspectives on what is important and what is not. This goes beyond the civics-book explanation of judicial review as Robert Caro's Master of the Senate goes beyond the stock description of Article I.

Supreme Court advocates know what academics sometimes seem to forget: you simply cannot "mandate" a justice go where he or she does not want to go with a clever argument. All you can do is present your strongest case in the most compelling way. Mike, Greg, and Paul did that during oral argument in which the pressure could not have been more intense. I was supremely grateful it was them and not me who had to bear up under the strain of oral argument. Along with Karen Harned, director of the NFIB Small Business Legal Center, win or lose, I believe we fielded the "A Team" on behalf of the majority of the American people who objected to the Affordable Care Act and believed it to be unconstitutional.

Perhaps the best part of the book -- from a blog lover's perspective -- is VC's contributions to the debate. As bloggers once busted Dan Rather and reached above the monopoly of three-network journalism, bloggers [asterisk] reached above the Ivy League Professoriate, all of whom thought that only right wing goofballs would see any Constitutional problems with Obamacare.
Twenty years ago, the virtual consensus among law professors at elite schools very well may have been the end of serious debate in the academic world. The venues for law professors getting their ideas out on controversial issues of the day were few and dominated by law professors at the top schools: the mainstream media, either through op-eds or interviews with reporters, both heavily skewed toward famous professors at places like Harvard and Yale; publications at the top law reviews, which are not reviewed blindly and therefore heavily favor the already renowned; and presentations at elite law schools, to which the overwhelming majority of invitees are professors at peer institutions.

[Asterisk] These folks are not bloggers in the "pajamas" sense. These are law professors who have argued before the Supreme Court (Barnett was the attorney for Angel Raich) and file amicus briefs for big league think tanks. But there is a telling section in David Bernstien's summation.
In 2011, a law professor at Yale, defending Obamacare from constitutional challenge, claimed that only one "constitutional scholar that I know at a top 20 law school" thinks that Obamacare is "constitutionally problematic." A year later, just before oral argument in NFIB, the same professor stated that only one law professor at a top ten law school agreed that the Obamacare was unconstitutional.

The professor's math was almost certainly somewhat off, but he was right that the overwhelming majority of constitutional law scholars at elite law schools thought that the constitutional challenge to Obamacare was not just wrong, but obviously so. But there is a reason for this. The faculties at elite law schools have been able to define what was "mainstream" in constitutional law simply by who they hired to join them. And Yale, to take just one example, has not hired a conservative or libertarian professor to teach constitutional law in my lifetime.


So these poor professors, laboring away at top 14-17 law schools, yet believing in Constitutional limits to government power, were able to present, refine, share, and disseminate their ideas at blog speed. And many of these ideas start showing up in SCOTUS oral arguments and opinions.
Perhaps one contribution of our brief, and the case, to constitutional law is renewed attention to the full opinion in McCulloch v. Maryland rather than the expurgated versions in many law school textbooks. In Randy Barnett's Constitutional Law text, students can see John Marshall working his way through doctrine of principals and incidents, as he elucidates that Necessary and Proper Clause is for inferior, less "worthy" powers-- and not for a "great, substantive and independent power." Roberts's application of this long-standing rule took some of the pro-mandate professoriate by surprise, and the professors who were not surprised were dismayed.

The power of ideas and the power of new media take the challenge from then-Speaker Pelosi's "are you serious?" through a sweeping midterm election, to a nail-biting decision that, while it didn't give ThreeSourcers everything they wanted . . .
While our failure to prevent the egregious Affordable Care Act from taking effect remains a bitter pill, this should not be allowed to detract from what we accomplished legally. We prevailed in preserving and even strengthening the enumerated powers scheme of Article I, Section 8 as a protection of individual liberty. From a constitutional perspective, this is what we were fighting so hard to achieve.

But, but, but taxing power!
For those who may still not see the difference between the legal theories we defeated and that which was adopted by Chief Justice John Roberts, imagine that all the federal drug laws were enforced by the nonpunitive tax he allowed rather than as Commerce Clause regulations, which is how the prohibitions of the Controlled Substances Act are now justified. Under Chief Justice Roberts's tax power theory, the government would have to open the jails and release tens of thousands of prisoners. And any of you reading this could legally smoke marijuana under federal law, provided you were willing to pay a small noncoercive federal tax on this activity. Such is the difference between the Commerce Clause power Congress claimed justified the Affordable Care Act, and the new limited tax power the chief justice allowed it to exercise. That is a big difference.

Losing 5-4 on the mandate -- even with the de-fanging -- has also caused us to lose sight of the 7-2 win against coerced Medicaid expansion. These and the fear, uncertainty and doubt placed in thinking citizens' minds make this exercise heroic and successful.

The Colorado Avalanche lost a hockey game in LA yesterday. The Kings were up 2-0 late in the second period. The Kings are a great team; they are tough at home; they are a defensive powerhouse who rarely give up two goals in a game. They were the Harvard professors of hockey yesterday afternoon. The Avs came back, tied (gives them one point in the standings) and took the game through overtime to a shootout. Sadly for me they lost, but the announcers at the end all agreed this was a win. I agree.

Five stars. Duh.

ACA Horror Story of the Day Media and Blogging Review Corner SCOTUS Posted by John Kranz at December 22, 2013 10:17 AM
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