Now Is the Law of Their Discontent

To paraphrase Ecclesiastes, of the making of many briefs there is no end, and much study is a weariness of the flesh.

My flesh is weary after weeks of poring over the party and amicus briefs in the Affordable Care Act cases, which (in case you haven’t heard) will be argued next week. There are four overall issues in the case: (1) is the minimum-coverage requirement (or “individual mandate”) a permissible use of the Commerce Power? (2) If not, should the Court strike down the entire Act or only the minimum coverage requirement? (3) Is the bill’s requirement that states receiving Medicaid funds expand eligibility for low-cost health-care “coercive” to state governments? And (4) is the entire lawsuit against the “minimum coverage” provision barred by the federal Tax Anti-Injunction Act until after the provision takes effect in 2014 and some taxpayer has been forced to pay the tax penalty for not carrying health insurance?

If those don’t seem to flow in logical order, they don’t—(4) should be prior to (1), and would be, except that neither the government nor the challengers really want the issue in the case.

I had the insane ambition of breaking down the arguments into a series of logically linked questions. But they don’t form an orderly chain of reasoning. They are more like the imaginary solid figure topologists call a “Klein bottle,” defined as “non-orientable surface ... in which notions of left and right cannot be consistently defined.” The Klein bottle has no beginning or end, no inside or outside; its three dimensions must fold together through an imaginary fourth.

And the ACA arguments do the same. The fourth dimension to every one of the arguments is bare-knuckle politics. The real question is not whether the United States Congress has the power to regulate “commerce with foreign nations, and among the several states, and with the Indian tribes,” or even whether the United States should be the only industrialized democracy in the world without universal health care. 

It is whether Congress is a legitimate body at all.

Consider this section of the Brief for State Petitioners on Severability, entitled “The Tortuous Path to Enactment of the Affordable Care Act” (I omit the source citations in the brief):

While it took Congress nearly a year to put together the massive health insurance overhaul that the President requested in early 2009, the Senate passed the ACA a mere 35 days after it was introduced, and the Act became law only through unusual procedural machinations and by the barest of margins. The slim majority of senators who supported the Act succeeded in forcing it through on December 24, 2009, in the Senate’s first Christmas Eve vote since 1895. The process of reconciling the Senate bill and an earlier version passed by the House—and sending the reconciled bill back for passage in each—had barely begun when, in a special election on January 19, 2010, the people of Massachusetts elected Scott Brown, who had pledged to be “the 41st vote” in the Senate to “stop” the health care proposal from becoming law. With further Senate action foreclosed, leaders in the House searched for a means of addressing their considerable reservations to the Senate-passed version of the law without necessitating an additional vote in the Senate. The leadership considered and rejected a number of remarkable proposals, including one that would have “deemed” a version enacted without an actual vote on the legislation. Ultimately, they determined that the only course open to them was to vote on the Senate bill without the possibility of amendment, and address their reservations to the extent possible in later legislation on limited topics that would be procedurally privileged and exempt from the cloture rule in the Senate. The unamended Senate bill passed the House by a narrow 219-212 vote, and the President signed the Patient Protection and Affordable Care Act into law on March 23, 2010.

This would be the best-written first-year Constitutional Law exam answer ever. But I would give it a flat F. In the legal sense, the fact that many members of the Congress and the public opposed the ACA bitterly is about as relevant as the fact the Barack Obama talked the bill over with Michelle. In fact, let’s imagine the ACA is the worst bill ever passed (though having read the Patriot Act, I doubt it), passed by the sleaziest maneuvers ever (though remembering the Bush Medicare prescription-drug plan, I doubt that too). We can certainly all agree that it bears an unfortunate resemblance to Shakespeare’s Richard III:

Cheated of feature by dissembling nature,
Deformed, unfinish'd, sent before my time

Into this breathing world, scarce half made up,
And that so lamely and unfashionable
That dogs bark at me as I halt by them . . .

So what?

 The challengers to the ACA are not claiming that it didn’t really pass Congress. They are not (or shouldn’t be) claiming that it’s ugly. They are claiming it’s unconstitutional. A bill written by Solon himself, and passed unanimously, should be struck down, if it violates the Constitution; a bill drafted by Nero and jammed through Congress by hook and crook is not void unless it does the same.

The unspoken claim in all the briefs is that Congress shouldn’t be allowed to make new policy for political reasons; that the bill was designed by a legislative body and makes compromises; that it was enacted even though some Senators wanted to filibuster it; and that it is novel and in some sense ungainly.

It’s not any particular part that is unconstitutional, your honor, it’s the whole thing.

I’ve noted elsewhere that the state party brief against the minimum coverage provision uses the word “unprecedented” 19 times. The private party brief on the same provision argues that the bill must be unconstitutional because some of the premiums taxpayers will buy in obedience to the “mandate” require “inflated premiums that exceed their actuarial risk.” Again, as a legal matter, so what? “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” Justice Oliver Wendell Holmes wrote in his Lochner dissent. Nor does it, as far as I can tell, enact Mr. Edmond Halley’s 1693 treatise, Estimate of the Degrees of the Mortality of Mankind.

Here’s a quote from the state party brief on the Tax Anti-Injunction Act. That statute, I should note, provides that taxpayers who object to a tax bill can’t sue the government until they have paid it; then they can seek a court-ordered refund. The federal government itself has told the Court that the AIA doesn’t apply; the issue is being argued only at the Court’s insistence. But to hear the states tell it, even the AIA issue is one of civic life and death:

this case involves assertion of a federal power of unprecedented scope. That power is constitutionally problematic for numerous reasons, not the least of which is the mandate’s tendency to avoid the political accountability associated with straightforward efforts to increase taxes. The federal government simply cannot be allowed to assert this unprecedented power, avoid the accountability required of taxes, and then avoid judicial review for years based on a provision limited to taxes.

You are beginning to get the flavor. The challengers have very little law to plead; instead, they warn against the Great Beast of Revelation. Their briefs are elegantly written but intellectually jejune: they are the high-priced lawyers’ equivalent of the Tea Party slogan: “I want my country back.”

Consensus seems to have emerged among the deep thinkers of my trade that the Court is unlikely to invalidate the ACA. (That includes Dahlia Lithwick, whose vision is almost always clearer than mine.) Thinking through that problem, though, the case is still for me a formless, boundless solid. If the Court doesn’t view the ACA as apocalyptic, why has it created this unseemly Scopes-trial-scale spectacle of three days of argument—something it hasn’t done since 1966? Some thinkers argue that the Justices are just trying to be thorough, to deal with all the possible challenges so that the Act can either go into effect or into that good night without further uncertainty. Maybe so. It’s also possible that the Court is just enjoying the attention—the chance to cock a snook at that rude Obama (“Who’s giving the State of the Union now, Mr. Big Shot?”) and Congress (“Yes, we’re serious, Representative Pelosi.”)

But the circus next week will raise the emotional temperature even more than the overheated rhetoric of the briefs and the talking heads. A decision against the government would put the Court at risk. But so did making George Bush President; so did Heller v. District of Columbia; so did Citizens United. History shows that the conservative majority on this Court doesn’t like to say no to something the Republican right really, really wants. 

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