The Ponderings of JD

"Ponder" – "To think about (something) carefully, esp. before deciding or concluding."

Obamacare – a translation from legalese (Part 1)

Obamacare. The drama – the tragedy – the triumph! I’ve already covered, in a previous post, a short overview of the peripheral drama surrounding the decision – now it’s time to look at the opinion itself and get a feel for what it actually says. I’m not trying to offer a detailed, thorough academic criticism – there are others with far more time and far more expertise in that than me. I’m not even going to address every argument and counter-argument that the Justices work through. My objective is merely to translate the legalese into something most people can understand. I will, however, offer some of my own thoughts and critiques sprinkled in, for sake of context. With that said, let’s dive right in.

 Note: I had originally planned to address both Justice Roberts’ decision and the various concurrences and dissents in one blog post. Given the size of the opinion, this has turned out to be impossible. This blog post, “part one,” addresses only Chief Justice Roberts’ opinion with regards to the commerce clause and the tax power.  Justice Roberts’ discussion of the Medicaid Expansion (easily as important as his discussion of commerce and tax) will be discussed in Part Two. The other opinions will be addressed in a “Part Three” etc., if requested.

The formal name of the case is National Federation of Independent Business v. Sebelius, but I’m going to stick with “Obamacare” or “the ACA case” here for purposes of convenience. The case itself starts with a short summary, or “Syllabus”, which is actually quite readable in its own right. It outlines the rather unusual structure of this decision. There are four major parts: The Opinion of the Court, given by Justice Roberts, a partly concurring, partly dissenting opinion by Justice Ginsberg, an unsigned dissent that carries the names of Justices Kennedy, Scalia, Alito, and Thomas, and a short 2-page dissenting opinion by “perpetual dissenter” Justice Thomas.  More confusingly, different justices have joined to different parts of each other’s opinions, sometimes as narrowly as a single subsection. The opinion itself is of little help, and doesn’t even make clear the complete picture of who voted where Here’s a simple breakdown of the structure, to the best of my knowledge:

  • Opinion of Chief Justice Roberts – “announcing the Judgment of the Court”
  • Part I – the “Opinion of the Court” – Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan
  • Part II – the “Opinion of the Court” - Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan
  • Part III – split
  • Subsection A – Justice Roberts only
  • Subsection B – Justice Roberts only
  • Subsection C – “Opinion of the Court” - Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan
  • Subsection D – Justice Roberts only
  • Part IV – Justices Roberts, Breyer, and Kagan
  • Opinion of Justice Ginsberg – concurring in part and dissenting in part
  • Part I – Justices Ginsburg, Breyer, Sotomayor, and Kagan
  • Part II - Justices Ginsburg, Breyer, Sotomayor, and Kagan
  • Part III - Justices Ginsburg, Breyer, Sotomayor, and Kagan
  • Part IV - Justices Ginsburg, Breyer, Sotomayor, and Kagan
  • Part V - Justices Ginsburg and Sotomayor
  • Opinion of Justices Kennedy, Scalia, Alito, and Thomas – dissenting
  • Opinion of Justice Thomas – dissenting

Needless to say, this is one confusing mess – and it makes the precedential value of this case (the degree to which lower courts and a later Supreme Court must follow the decision made) difficult to determine. But we’ll do our best. We’ll begin with Chief Justice Robert’s opinion. Right out of the gate, Chief Justice Roberts starts hedging his bets. As if anticipating the outcry that will immediately ensue from his decision, he states on page 2:

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

Having said that, Justice Roberts launches into a lesson on the basics of Federalism. “In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder,” and “[t]he enumeration of powers is also a limitation of powers, because [t]he enumeration presupposes something not enumerated . . . [t]he Constitution’s express conferral of some powers makes clear that it does not grant others.” The Federal government “can exercise only the powers granted to it.” Justice Roberts even goes into the distinction between enumerated powers and the Bill of Rights:

“Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government.”

He proceeds to lapse rhapsodic about the fact that only the States have a police power, the fact that the reservation of the police power to the states actually protects the rights of the citizens, and the greater accountability of local government. This all, so far, sounds very reminiscent of the traditional Christian principle of subsidiarity – the idea that the government that is closest to the people governs best.

Next, Roberts outlines the basic principles of the two (technically three) Federal powers in dispute here, which “must be read carefully to avoid creating a general federal authority akin to the police power.” The first, the “Commerce Clause”, authorizes Congress to “regulate Commerce . . . among the several States.” Art. I, §8, cl. 3. Justice Roberts recounts how this has been held, in conjunction with the Necessary and Proper clause (“make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”), to include “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce,” including how much wheat a farmer can grow, and loansharking. (Wickard v. Filburn and Perez v. US). The second power involved, the “tax and spend power”, gives Congress the authority to “lay and collect Taxes . . . [to] provide for the common Defence and general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. This “gives the Federal Government considerable influence even in areas where it cannot directly regulate” – a point that will become massively important later on.

Roberts then engages in another round of hedging his bets, speaking of “general reticence to invalidate the acts of the Nation’s elected leaders,” and a “proper respect for a co-ordinate branch of the government.” In fact, the entire tone of Roberts’ introduction can be summed up by this sentiment:

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices. Our deference in matters of policy cannot, however, become abdication in matters of law.”

With that, Roberts launches into the substantive analysis. Joining him in this part of the opinion are Ginsburg, Breyer, Sotomayor, and Kagan. Roberts recounts a basic overview of the structure and relevant terms of the Affordable Care Act’s contested provisions: the individual mandate and the Medicaid expansion.

The individual mandate requires most Americans to maintain “minimum essential” insurance, and beginning in 2014, charges uninsured Americans a “[s]hared responsibility payment” or “penalty,” which is paid with that person’s taxes. Twenty-six states and various organizations object to the individual mandate.  The Eleventh Circuit Court of Appeals struck down the individual mandate under the Commerce Clause, but the Sixth Circuit and D.C. Circuit upheld it.

The Medicaid expansion got less press but also presented a constitutional problem. Under the original Medicaid laws, the Federal government gave funds to the states in order to help them provide medical care to the most vulnerable members of society, later expanded to include pregnant women, children, needy families, the blind, the elderly, and the disabled. The cost of these programs is split roughly 50/50 between the states and the federal government, but it comprises a substantial chunk of the states’ budget. The Expansion under the ACA requires the states to give Medicaid coverage to anyone with an annual income of less than 133% of the Federal poverty level. The Federal government will bear the full cost of the expansion at first, but will eventually shift some of the burden of the extra cost onto the states. If states refuse to expand their medicaid coverage, they lose their federal medicaid funding. All of it.

So ends Section One. In Section Two, Roberts deals with the question of the Anti-Injunction Act (26 U. S. C. §7421(a)). Basically, the AIA bars any court from deciding on the constitutionality of a tax law before the tax is paid. The person challenging the tax must first pay it, then sue for a refund. In this case, this would prevent the Supreme Court from acting at all, since no one will be required to pay the “shared responsibility payment,” until 2014. Justice Roberts disposes of this problem pretty quickly – the “shared responsibility payment” is not a tax for the purposes of the AIA. The ACA doesn’t call it a tax, it calls it a “penalty,” even though it does say it will be paid along with a person’s taxes (and is enforced by the IRS). More importantly, it doesn’t act like a tax, and Congress plainly intended for it to be considered a penalty, not a tax. 

Roberts finally begins dealing with the meat of the case in Section Three – but at this point, he’s on his own. For the majority of Section Three, the court’s liberal wing abandons Roberts and sides instead with Ginsburg, so the following is the opinion of Roberts and Roberts only. Nevertheless, Roberts presses on. In his words, the health care market has a serious “cost-shifting” problem. By law, hospitals are required to treat anyone who walks in, regardless of whether they can pay. To recoup their losses, hospitals pass on the cost to insurers by charging more for care, and insurers, in turn, pass on the cost to patients through higher premiums. According to Congress, this costs the average family over $1,000 per year.

The ACA forced insurance companies to give coverage to the most expensive patients – those with preexisting conditions – while at the same time forbidding them to raise their rates. The math doesn’t work – either rates will skyrocket, or the insurance companies will go out of business. Congress’s solution was to force everyone to buy health insurance. By solving the cost-shifting problem, and by forcing healthy people (who will pay more in premiums than they will get back in medical services) into the insurance pool, they hope to offset the cost of adding numerous unhealthy people into the system. [Incidentally, which Roberts does not discuss, the mandate provides the insurance companies with a captive market - consumers who are legally required to buy their products. It's a fantastic business situation - insurance for the insurers, if you will.]

Roberts deals with the argument that the Commerce Clause authorizes Congress to force Americans to buy health insurance with several swift, poetic strokes. The Commerce Clause has been held to reach almost anything, but has always been limited to “regulation” of “activity”. Justice Roberts points out the obvious difference between “regulation” and “creation” of activity:

“The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous . . . the language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated . . . As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity.” It is nearly impossible to avoid the word when quoting them.”

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things . . . Allowing [the individual mandate] would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.

Roberts deals with some other technical legal arguments. The argument that activity is the same thing as inactivity in a modern market fails, in his opinion, mostly because it is nonsense (complete with a jab at “metaphysical philosophers” – sorry, Michael Hannon). He then dismisses the argument that regulation of a “class of activity” is the same thing as regulation of a class of people, and rejects the idea that the “inherent integration” of healthcare and insurance renders it an exception to the normal rules. He gives cursory treatment to the obvious point that unlimited federal power is not the purpose of the Constitution: 

“The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.”

Further, Roberts reiterates that the necessary and proper clause authorizes Congress to enact laws that are “incidental to [an enumerated] power, and conducive to its beneficial exercise,” not create “great substantive and independent power[s] beyond those specifically enumerated.” In other words, it means exactly what it says, and it shouldn’t be used to bootstrap unconstitutional laws onto the backs of proper ones. 

Next, Roberts moves on to his analysis of the taxing power – the most important part of this whole decision. I’m going to use a lot of quotes here, because it’s important to realize just how tentative and impartial Roberts is trying to sound here. He is bending over backward to uphold the ACA, and he wants everyone to know. At this point, the Court’s liberal wing joins him in his opinion, giving what he’s saying the force of the whole Court.

Roberts and the liberals proceed to “view the statute differently than we did in considering its commerce power theory.” The Government “does not claim that the taxing power allows Congress to issue such a command.” Instead, the Court must “read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.” Roberts emphasizes that, if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. He uses the question of whether a ban on “vehicles” in a park would include bicycles as an example of such ambiguous phrasing. Yet, Justice Roberts repeatedly emphasizes the great mental gymnastics he is employing to save the ACA: “the most straightforward reading of the mandate is that it commands individuals to purchase insurance.” Here’s Roberts, with my translation to follow: 

“The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read.”

[Citations omitted] In plain language, this is what Roberts is saying: “This isn’t a tax. It wasn’t intended to be a tax, and if you read the statute properly it clearly isn’t a tax. But there is an argument – a weak one, but an argument – that it could have been a tax, kinda, sorta. So, because this Court is so deferential to Congress, and has to use any possible excuse, however weak, to uphold a law passed by Congress, I’m upholding it as a tax. But I want Congress to appreciate the fact that I’m bending over backwards to make this work!”

This is, of course, my own interpretation, and I leave it to you, reader, to compare the quote above with my paraphrase. But a reading of the opinion shows Roberts’ numerous attempts to highlight the difficulty of his reasoning, and his deference to Congress. Nonetheless, Roberts does create a very clever argument. The penalty “looks like a tax in many respects” – it is paid on the person’s personal income tax return and is collected by the IRS. And it does provide some income to the Federal Government, which is what a tax ostensibly does.

Roberts spends relatively little time defending his argument that the individual mandate can be read to be a tax. Indeed, because there’s so little to it, there’s really not much he can say without repeating himself (as he does when he speaks of his deference to Congress over and over). What Roberts does spend a good deal of time on is defending his argument against the three obvious counter-arguments.

First, as Roberts so clearly pointed out in his discussion of the Anti-Injunction Act, this penalty was never intended to be a tax. Congress does not refer to it as a tax, labeling it as a penalty instead. Roberts does a very clever dance around this point. Construing of the individual mandate as a tax for AIA purposes is the best interpretation, whereas when deciding whether it can be read as a tax for constitutional purposes, it doesn’t have to be the best, or even a correct interpretation, just a defensible one. Second, Roberts cites several cases which state the principle that what Congress chooses to call an exercise of their power does not change, for Constitutional purposes, what it is. Otherwise, Congress could bypass the constitution by labeling unconstitutional acts as constitutional ones. Rather, acts of Congress should be judged by the Court to be one thing or another regardless of what Congress calls them. The Anti-Injunction Act, on the other hand, is a law passed by Congress, and therefore Congress can decide arbitrarily, by the use of simple labels, whether it applies. 

The principal that labels are irrelevant when deciding the constitutionality of an act of Congress is, of course, well supported. But look at the first two cases which Roberts cites to support this proposition:

“Our precedent reflects this: In 1922, we decided two challenges to the “Child Labor Tax” on the same day. In the first, we held that a suit to enjoin collection of the so-called tax was barred by the Anti-Injunction Act . . . In the second case, however, we held that the same exaction, although labeled a tax, was not in fact authorized by Congress’s taxing power.”

The problem that Roberts ignores is that these cases are the exact opposite of the result he is trying to reach. In the case of the Child Labor Tax, Congress called the law a tax, the AIA was held to apply, and the “tax” was held unconstitutional since it wasn’t actually a tax. In the case of the ACA, Congress did not call the law a tax, the AIA was held not to apply, and the “penalty” is being upheld as constitutional because it can be considered a tax! Roberts does later cite cases that support his argument better: one holding that license fees on liquor and lotteries were taxes, and one holding that surcharges on nuclear waste were taxes, and taxes on sawed-off shotguns and cigarettes.

Roberts then goes on to explain the signature characteristics of a “tax that isn’t really a tax”, but rather a penalty, and why the mandate can be considered a tax. First, the burden of the classic penalty masquerading as a tax is exceedingly heavy (he uses the example of 10% of a company’s income). The burden of the individual mandate penalty, on the other hand, is an annual $500-$600 or so, and never higher than the cost of insurance. Second, a classic “penalty tax” is only imposed on those who knowingly violate the law. The individual mandate hits people who did nothing illegal (apparently, this makes the law more defensible). Third, penalties are usually collected by law enforcement agencies such as the Department of Labor. The “shared responsibility payment” is collected by the IRS, like an ordinary tax. Roberts concedes, of course, that the individual mandate penalty is “plainly” designed first and foremost to influence behavior and not to raise revenue. But taxes designed to influence conduct are, in Roberts’ rather obvious observation, nothing new, and he returns to his central point:

Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it.

This creates an extraordinarily dangerous principle that could feasibly allow Congress to regulate pretty much anything, by “creating strict liability offenses enforced by the IRS rather than the FBI.” Roberts, aware of this objection, continues with his analysis. Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with the Constitution.

There are a couple of possible wrinkles here. For one thing, the Constitution states that: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census . . .” (Article I, §9, clause 4) Basically, any “direct tax” must be fairly divided between the states by population. The problem with this question is that no one is really sure what a “direct tax” is. We have only a few examples to guide us. Early on, Congress passed a tax on ownership of carriages. James Madison objected that it was an unapportioned direct tax, but the Supreme Court unanimously upheld the tax, holding that only two forms of taxation were direct: “capitations” (taxes paid equally by every person regardless of income or any other circumstance) and real estate taxes. In 1895, this was expanded to include taxes on personal property during the Court battle over the personal income tax (which was rendered moot by the passage of the Sixteenth Amendment establishing the federal income tax). 

The “shared responsibility payment” is, of course, neither a property tax or a “capitation”. Roberts, by accepting this exceedingly narrow definition of a “direct tax” (which, admittedly, has a basis in precedent), has dispensed with the Direct Tax clause with only a few sentences of discussion. Roberts also (correctly) dispenses with the argument that such a tax is unconstitutional because it regulates inactivity as opposed to activity – this is a problem with the Commerce Clause, but not with the tax power. In fact, the Constitution, in allowing capitations (which tax inactive people as much as active ones) expressly anticipates a tax on inactivity. Roberts, quoting Ben Franklin: “in this world nothing can be said to be certain, except death and taxes”.

Now, as far as Supreme Court Precedent goes, Roberts has a leg to stand on here. But as constitutional critic Joshua Scott points out, there’s a fair originalist argument that the idea that Congress can tax for any purpose whatsoever is wrong based on the Constitution itself. The tax power reads:

“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”

Joshua Scott points out that the term “general welfare” cannot mean “anything Congress thinks is for the general welfare:”

“If we look at the clause logically, we find that the “common defence” naturally refers to the powers listed later in Section 8 that deal with raising armies and navies, calling out the militia, etc., because if Congress can’t do anything outside those powers to “provide” defense (e.g., quartering troops in civilian homes without consent), it obviously can’t tax for any of the things it can’t do (e.g., taxing in order to recompense the civilian whose home is commandeered). By analogy, the “general welfare” is a reference to all the other powers not related to defense.”

Mr. Scott points directly to James Madison in Federalist No. 41:

“But what color can the objection [that the term “general welfare” is a sweeping grant of unenumerated powers] have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity….”

Now in fairness to Justice Roberts, Joshua Scott’s position is not exactly a majority opinion in the legal community. However, given how little precedent exists on the limits of the taxing power, Roberts would have done well to address the original phrasing of the Constitution at all. Roberts’ final substantive section deals with the most important objection to his interpretation of the “shared responsibility payment” as a tax – the danger that the tax power will become the panacea of constitutionality for essentially punitive actions of Congress. His defense against this argument is so weak, it is worth quoting verbatim at length:

“Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one. Second, Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior other- wise regarded at the time as beyond federal authority. More often and more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures. We have nonetheless maintained that ‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’ We have already explained that the shared responsibility payment’s practical characteristics pass muster as a tax under our narrowest interpretations of the taxing power. Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it.

This is astounding – Justice Roberts is essentially saying that, because (in his opinion) this particular instance does not rise to the level of what would really be a penalty, it is not necessary to set any limit on the principle he is now establishing. All he does is assert that the Court will curb any abuses of this principle. He is essentially saying “trust me”. Roberts again emphasizes that “it is not our role to forbid [a tax that the Constitution allows], or to pass upon its wisdom or fairness.”

Justice Roberts also points out that the tax power does not have the same coercive power as a criminal law – a criminal conviction results in a deprivation of civil rights, societal stigma, and harsh punishment. A tax, on the other hand, is simply a financial loss. It seems at first that Justice Roberts is simply ignoring the fact that taxes can have a crippling impact on people and businesses, and that failure to pay a tax can result in criminal conviction that carries with it all the punishment, stigma, and loss of rights that Roberts claims are not present here. But no – Roberts “do[es] not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose.” Roberts gives this “severe burden” a short discussion in a footnote on the last page of the decision:

“Of course, individuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for failing to do so (although not for declining to make the shared responsibility payment). But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the tax is predicated. Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.”

Notably, the last paragraph of Justice Roberts’ opinion addresses Justice Ginsburg’s objection that any discussion of the Commerce Clause in this case is unnecessary, given that the individual mandate can be upheld under the taxing power, by essentially re-stating his case. It’s worth quoting in full as it’s a very succinct summary of the whole decision:

[T]he statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that [the individual mandate] can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction. The Federal Government does not have the power to order people to buy health insurance. [The individual mandate] would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. [The mandate] is therefore constitutional, because it can reasonably be read as a tax. 

This is a very weak riposte to Justice Ginsburg’s objection, and further highlights the problems with Roberts’ construing of the mandate as a tax. For the conspiracy theorists among us, this suggests very strongly that Roberts used his position to a) strong-arm the liberals into allowing him to correct Congress on its overreaching under the Commerce clause, and b) both establish a very high standard of judicial restraint and emphasize just how far he was bending logic and reason to accommodate Congress’s bad judgment. 

I hope this has served as a handy reference for my layman friends to make sense of the legalese of this massive opinion. In part two, I discuss an equally important – and perhaps, in the long run, more significant – part of the Roberts opinion, the striking of the Medicaid expansion. Stay tuned!

Justice Roberts and Obamacare – my initial reaction (more to come)

Note: many friends have asked me for my “reaction” to the recent Affordable Care Act decision. This is my initial “reaction” to the sequence of events surrounding the decision, and it contains no new or groundbreaking information. I am penning a more detailed line-by-line legal analysis of the 193-page decision itself, which will be posted on this blog for any who are curious. Careful legal analysis, however, takes time, so please pardon the delay.

As soon as Chief Justice John Roberts started announcing the opinion of the U.S. Supreme Court in what was known to the breathless masses as the “Obamacare Case”, a storm of text messages, tweets, and blog posts were surreptitiously sent from the “strictly-no-cameras-or-cellphones-allowed” courtroom. Most of the listeners in the courtroom, along with the media outlets waiting with bated breath to be first to report, immediately jumped to the obvious conclusion – that the Conservative wing of the court, of which Roberts was the head, had carried the day, and “Obamacare” had been struck down. CNN and Fox News immediately ran with their pre-canned “Mandate struck down” headlines, giving a short-lived scare to President Obama. But within minutes, the shocking truth was apparent – Chief Justice Roberts had joined the left wing of the court and had spared President Obama’s signature legislative achievement from destruction.

The emotions that followed in the conservative movement ranged from shock to hysteria. Roberts was immediately branded a traitor. The decision was decried as “Absolutely Lawless!”, and many GOP governors openly pledged to defy it. Analysts immediately started to speculate whether Karl Rove had been negligent in vetting a young Roberts for the Court. Pundits such as Michael Savage went so far as to allege that the decision was a result of Roberts’ “cognitive problems” caused by the medication he takes for his extremely mild case of epilepsy.

Beyond the spin, however, doubtless lies a compelling and twisted story of inter-chambers politics. One can only imagine the initial scene…

It is early April, 2012. Three days of arguments have concluded, during which the most controversial political question in the Nation has once again been laid at the feet of the Supreme Court. The Justices gather around the table in their elegant conference room, securely locked away from ten thousand journalists who would give their right and left arms to be a fly on the wall at this very moment. The Justices are about to vote – initially not binding, just an attempt to delegate the responsibility of writing the majority opinion. The voting begins with the Chief Justice. “I will vote to strike down the whole law,” he says slowly and carefully. Then, in order of seniority, the other Justices cast their verbal votes. The positions are predictable – Ginsburg, Breyer, Sotomayor, and Kagan vote to uphold the whole law, while Scalia, Alito, and Thomas vote to strike it completely. Justice Kennedy pauses for a long moment before speaking, then announces his decision – “the whole law will fall.” All look back to Chief Justice Roberts, who graciously agrees to delegate the writing of the opinion to Justice Scalia, the court’s most senior conservative mind. This will be Scalia’s magnum opus, the greatest and most momentous action of his long and distinguished career. Justice Kennedy clears his throat. The meaning is clear. Kennedy craves the spotlight – his vote belongs to the conservatives only if it is his name on the majority opinion. Scalia, never having fully forgiven Kennedy for pulling the same stunt in Planned Parenthood vs. Casey, grumbles but concedes: Justice Kennedy will write the Decision of the Court. Scalia asks that he be allowed to contribute most of the argument structure. Kennedy smiles and agrees. With that, the Justices call the meeting to a close, push back their leather chairs and head toward their respective chambers.

Speculation abounds about what happened over the next few months. One thing seems to be becoming increasingly clear: Justice Roberts initially voted with the Conservatives and then changed his vote at the last minute. Whether it was due to bullying by President Obama, bullying by members of the media, or brilliant ethical criticism by Anthony Weiner is unclear. The strangest instance of pressure on the Court was probably a speech given on the Senate floor (after the Court had already voted) by Batman-cameo Sen. Patrick Leahy (D-Vermont) which singled out Justice Roberts specifically in frankly threatening terms. This strongly suggests that not only had the results of the initial vote been leaked, but Justice Roberts’ hesitant wobbling had been leaked as well. This is astounding for a Court which has prided itself on impeccable secrecy for centuries.

The result was a highly unusual opinion that very much sounds like it caught the conservative justices by surprise. The joint unsigned dissent issued by Justices Scalia, Kennedy, Thomas, and Alito reads very much as though it were written to be the majority opinion. It carries the triumphant tone of a winning side, not a losing side, and it speaks as “We”, the language reserved for a majority of the court. It repeatedly and incorrectly refers to Justice Ginsburg’s concurring opinion (a vote on the winning side) as a “dissent” (a vote on the losing side). It doesn’t respond to the Chief Justice’s opinion – it doesn’t even mention it in the body of the argument, whereas the Chief’s opinion deals with the dissent at length. Remarkably, the four conservative justices refused to join even in the parts of the Chief’s opinion with which they clearly agreed. The message here is clear – the Chief is on his own. The Conservative Justices want nothing to do with him. Justice Kennedy appeared visibly angry during the public reading of the Chief’s decision. Indeed, supposed “insiders” recount a strange tale of an impassioned Justice Kennedy’s month-long campaign to bring a waffling Justice Roberts back into the fold. In other news, the lunar surface has been confirmed to be a milk-based solid substance, and porcine scientists have finally achieved sustained flight.

One thing is now clear: Justice Anthony Kennedy is no longer “the decider”. Chief Justice Roberts has snatched the crown of Philosopher King from the head of Justice Kennedy. Whether it was a political calculation in an attempt to forestall a liberal onslaught on the credibility of the Court, or a power play intended to wrench the scepter of “swing moderate” from Justice Kennedy’s hands, Chief Justice Roberts has irrevocably changed the power balance. For better or for worse, this is now truly the Roberts court.

Meaning in Isolation

My sincerest apologies to anyone who actually reads this blog. The following blog post is a rather disjointed collection of insights that have come to me over the past few weeks. In that time, a good friend of mine died. As a result, my thoughts are somewhat more melancholy than usual.


I think Man is the only creature that can feel totally alone while surrounded by eight million of his own kind.

Waking down the street in Brooklyn on a breezy fall day, I am struck by the subtle, understated beauty of Man’s flawed creations. Rows of century-old brownstone houses, with cracked concrete and dirty glass. Street lamps, crosswalks, subway grates – all designed by someone, made by someone, installed by someone, and seen by a thousand someones a day. These dirty streets and cracked sidewalks are beautiful, almost despite themselves. They try so hard to be ugly, and fail. Try fail because, at their essence, despite their utilitarian construction, their worn-out materials, and their humdrum purpose, they are created. Every faded crosswalk and chipped telephone pole is there because some one made it. We have left our mark on our surroundings, and it is both beautiful and flawed, like us. The creation bears the creator’s fingerprints. What does a Brooklyn street tell us about ourselves? Could God ever forget and disregard his own creations the way we ignore the beauty of our own creations?

I think of the way I see a termite mound, or an anthill; what would aliens think looking at New York City? Would they marvel that these upright-walking creatures have made such a large nest, or would they puzzle over the fact that so many of them spend their entire lives interacting with perhaps one percent of the people around them?

The truth is, we men and women have a need for each other’s love which is deeper and more fundamental than our need to breathe. And what’s worse, our body doesn’t force us to love. Often you don’t love enough until it’s too late. A million hearts in this city are dying in their sleep. What can I do to save them? Can I even save myself?

Rest in peace, Jon Scharf. I learned many things from you in life, and I have a feeling our relationship is still at its beginning. Death is not the end – it’s the intermission. But it’s teaching me to put my heart and soul into Act One. Because there are no rehearsals, no second chances – this is our shot. Do we love like it’s our only chance?

Victory Versus Vengeance

Last night, I had the decidedly Chestertonian pleasure of sharing great conversation with a couple of new friends over great beer. As intellects connected and the Hofbräu Oktoberfest flowed, the conversation naturally turned to the Culture Wars, the epic struggle over minds and hearts which defines our time. My excellent and insightful companions had many ideas and ambitions to reclaim the soul of America, planting the seeds of Truth deep, where they can grow and bear fruit in the long term. One of them, however, voiced the opinion that we, the Culture of Life, are “losing”. In his (admittedly astute) observation, the current crop of “culture creators”, the 20-30something artists who populated the East Village in which we sat, were less pro-life than the generation before. The battle for their hearts and minds had, in his opinion, been lost by default by a Church too blind or complacent to realize where the true battle lay. His observation got me to thinking.

You see, Truth always “wins” – eventually. You can no more deny fundamental principles as you can deny gravity. The man who does so soon finds the Truth forcefully asserting itself upon him – the ground rushing up to embrace him as he falls. That’s the problem with a lie – it’s not true. The trouble with wrong is that it’s never right. The modern age secular humanist fantasy is just that – a fragile illusion which requires no less than the fantastic human capacity for self-deception to keep it intact. The fantasy can only exist for so long.

This sounds like good news – and in a way, it is. But it can also be tragic. Truth is willing to be ignored for a time, to take debts and wait, but it always collects its dues. And Truth can be downright ugly – even vengeful. The modern STD epidemic is the Truth of the dangers of promiscuity forcing its way past the fantasy of “safe sex” and “free love”. The collapse of British society is Truth shattering the lie that children can be raised without parents or principles. The fall of the European economy is the Truth defying the fantasy that robbing the working man will make him rich. Throughout history both recent and distant, Truth when defied always comes back to claim its due. The trouble is that we usually figure it out once it’s already too late.

The issue, in my mind, is not whether Truth or Lies will prevail in our age. The Culture of Death is dying – that’s what it does. The question is whether my generation will die with it – whether we will experience Truth’s Triumph or Truth’s Revenge. Will we recognize reality and act accordingly? Will the rebirth of Virtue in America be a golden age of history, or will we cling to our sins as they drag us down into the flames? The question is not who will win, it is whose side we will be on. We will experience Truth’s Victory or Truth’s Vengeance – and the choice is ours. I, for one, must choose more wisely.

The Struggle is the Sacrifice

I just got out of confession at St. Thomas church in Montague, NJ. What a wonderful feeling it is to be absolved! I received an insight today, however, which really made me think. It seems obvious, but sometimes these things escape me :) Today, as in countless confessions past, I confessed the same sins – “the usual”, if you will – that I had confessed many times before. As I sat in the pew in the little church afterwards, feeling the grace of forgiveness wash over me, I prayed once more that God would free me from the temptations that plague me.

But then I stopped. It occurred to me, for the first time, that I was praying for the wrong thing. Everyone is subject to temptation, from the moment they are born to the moment they die. Adam was subject to it in the Perfect Garden. Jesus himself was tempted thrice. Who am I to seek to be excluded? I then realized that I was trying to desert. I was like a soldier, throwing down his weapon and begging to be released from the Service, when what I should be doing is fighting the battle before me. I was asking for a discharge when I should have been asking for more ammunition. God is not pleased by obedience without choice. There is no merit in doing the right thing when it is easy.

God is glorified – and we are sanctified – in the battle. God receives his highest praise not when we say “sure, whatever,” but when we say “take this cup from me, but not my will but Thine be done.” By asking to be freed from temptation, I was asking God to take from me my opportunity to truly glorify Him. God doesn’t want me to be a blissfully oblivious child, free from temptation. He wants me to be a valiant warrior, who perseveres in battle despite bleeding from a dozen wounds. We will never be free from temptation, and that’s okay. For it is only when we are tempted that we must sacrifice to do what is right, and Love finds its perfect form in Sacrifice. Every time we die to ourselves in the face of temptation, we imitate the Sacrifice made by Love Personified. Who am I do decline such an honor?

UPDATE: As usual, God has a wicked sense of humor, and there is nothing new under the sun. Today, the following popped up in my facebook news feed:

‎”No one ought to consider himself a true servant of God who is not tried by many temptations and trials. Temptations overcome are a sort of betrothal ring God gives the soul.” – St. Francis of Assisi

Touche, St. Francis. Touche.

The power of a Name

I had the wonderful pleasure of a week of retreat and renewal at one of the Apostolate for Family Consecration’s Family Fests a couple of weeks ago. My young adult group was given the opportunity to experience Jeff Cavins’ bible study on Genesis. Jeff’s analysis is, as always, solid and well-explained. One thing that struck me particularly, however, was a brief sidenote Jeff made on the significance of a name.

When God gives Adam authority over the beasts, the first thing he tells Adam to do is name them. Throughout the Bible, God gives people new names, signifying either a blessing or a curse: an exercise of his authority. More than that, however, the name that God gives to each person is a deep and meaningful sign of that person’s essential nature and meaning. Abram (“high father” is renamed Abraham (the “father of nations”). Jacob (“the deceiver”) is renamed Israel (“he who strives with God”). The Israelites are commanded not to speak the name of God in vain. And so on. In the Bible, a person’s name is both an exercise of authority over them and a symbol of their very essence.

This is, of course, an universal human trait. In almost any culture, when a child is born, the parents name him. Names in primitive societies are attributes, labels, very literal expressions of what we are: “John [the gift of God] of [from] Judea.” They can also be aspirational, “Eagle’s son” or “He who is swift of foot.” A name is a gift, a definition, a sign of who and what we are.

But name-calling can also be a weapon. In the words of my favorite gay man, Steve Gershom: “[T]here’s all the difference in the world between a name and a label. A name is the secret of who you are, the one thing that sums you up: it is your Word, the way the Son is the Word of the Father. A name is rich and full. A label flattens, simplifies, steamrolls.” When someone names or labels us, they exercise power over us. A rebel is described as either a “terrorist” or a “freedom fighter”, depending on the viewpoint of the speaker, and it matters greatly to the rebel which one he considers himself to be.

When we are injured by someone who exercised power over us in a wrongful way, we often retaliate by naming them: “he’s a jerk,” or “she’s just jealous.” It calms us and soothes our anger to name those who hurt us. We feel like we have, in some way, exercised power and judgment over them. It seems silly, but we have. We have exercised the power of naming over them. For the same reason, we are deeply hurt when others do the same to us, when other people call us a “slut” or a “douchebag”. We may pretend not to care, but we are lying. Sticks and stones may break our bones, but words cut deeper than a two-edged sword. Names in particular.

It must come as no surprise, then, that this power to name is vitally important in the culture wars, in the to-the-death arena of ideas and arguments.The power to name one’s enemy or his ideals is the power to destroy them. Sometimes, however, we forget this fact and we allow ourselves to be labeled in ways that are destructive to both our dignity and to the success of our ideals. Do we allow others to name us? When others call us “radicals,” “anti-choicers,” “homophobes,” or “teabaggers,” they exercise power. We need to be conscious of the power of names. I, for one, will be more conscious of the war of labels in the future. I used to endure the labels of others – “arrogant kid,” “anti-choicer,” and “homophobe,” among others. I used to think that, by allowing others to label me as they wished, I was somehow “rising above it”, “turning the other cheek”, and being the better man. But there is a difference between charity and surrender. We must not allow others to label us against our dignity and against the Truth. The next time I am called a homophobe or an extremist, I am going to correct that person, in charity and courtesy. Because there is great power in a name, and great destruction in a lie.

David Beckham, Radical Environmentalism, and Self-hatred

So, I really shouldn’t be blogging four days before I take the Bar Exam, but one particular headline jumped out of my Twitter feed at me today, and I just couldn’t resist: “Beckhams a ‘bad example’ for families.” Doesn’t sound like too much of a stretch, does it? The long litany of failures of celebrity parenting have certainly given us grounds to be unsurprised at such a headline. What, you may ask, was Beckham’s crime? Drunkenness? Neglect? Abuse? No, it was something far worse.

The Beckhams had the audacity to give birth to a fourth child.

Before we go breaking out the pitchforks and Molotov cocktails, let’s get our facts straight. Here to give us some valuable context is Simon Ross, CEO of the UK-based Optimum Population Trust:

“We need to change the incentives to make the environmental case that one or two children are fine but three or four are just being selfish . . . The Beckhams, and others like London mayor Boris Johnson, are very bad role models with their large families. There’s no point in people trying to reduce their carbon emissions and then increasing them 100% by having another child.”

Now I’m not usually one to speak with authority on environmentalism – I am a proud hunter, meat-consumer, and have cut down my share of trees in my day – but this seems to me to put environmentalism in a slightly bad light. After all, if an excess of human beings is the problem, well that makes us enemies of the environment, doesn’t it? If we can’t coexist, I’d rather live, thank you. Suddenly, all my affection for the environment seems to have vanished in favor of self-preservation.

Fortunately, the Malthusian pessimism/”Population Bomb” theory has been disproven time and again. And it’s hardly a new idea – fearmongers have been saying that the world would soon become overpopulated since 200 A.D., and it hasn’t happened just yet. At least it’s just a few British “eccentrics” making such claims. Wouldn’t it be awful if the United Nations was pressuring nations to change their laws based on the same discredited theory?

Fortunately, the United Nations Population Fund does not speak for the majority of humanity. According to pro-population control UK Green Party MP Caroline Lucas: “The horrific consequences of China’s one-child policy and of other draconian efforts to regulate procreation have, for many, rendered discussion of the subject completely unpalatable.” Golly, I wonder why? Could it be because treating human beings as a disease to be eliminated violates the basic precepts of morality? It couldn’t possibly be that the idea that “I’m the problem” doesn’t resonate terribly well with most people. It is unsurprising, then, that the next generation of statesmen and diplomats is rising up to affirm inherent human dignity. And on July 26, as I undergo the Purgatory of the New York Bar Exam, these young legates will descend upon the United Nations and speak bravely in defense of basic truths. I applaud them. But I digress…

Mr. and Mrs. Beckham, be fruitful and multiply. I just hope your kids play sports as well as their father and sing better than their mother.

“Free Love”

Amen, Brother!

Dear Friends,
I was reading a good book by Chesterton today, when I came across a short passage which seemed to me to be ahead of its time, and spoke to me as if the magnificent pipe-​smoker somehow knew our world better than we ourselves do. I thought I would share it with you, and I hope you will share some of your thoughts and insights in the comments. It concerns the concept of “free love,” that ephemeral ideal which our modern culture from the 1960s on has chased after so hungrily. The term itself, “free love,” seemed to me an oxymoron, a term which defeated itself before it even left one’s lips, but I never could really express this thought in words. Enter Chesterton:
“The revolt against vows has been carried in our day even to the extent of a revolt against the typical vow of marriage. It is most amusing to listen to the opponents of marriage on this subject. They appear to imagine that the ideal of constancy was a yoke mysteriously imposed on mankind by the devil, instead of being, as it is, a yoke consistently imposed by all lovers on themselves. They have invented a phrase, a phrase that is a black and white contradiction in two words–’free-​love’–as if a lover ever had been, or ever could be, free. It is the nature of love to bind itself, and the institution of marriage merely paid the average man the compliment of taking him at his word.
Modern sages offer to the lover, with an ill-​flavoured grin, the largest liberties and the fullest irresponsibility; but they do not respect him as the old Church respected him; they do not write his oath upon the heavens, as the record of his highest moment. They give him every liberty except the liberty to sell his liberty, which is the only one that he wants.“ – G.K. Chesterton, The Defendant, ”In Defense of Rash Vows.”
It seems to me that G.K. hit on something fundamental about love that we like to forget: that love is by its very definition not free. It is the antithesis of the “freedom” that we post-​modernists so revere – the “freedom” to do whatever the hell we feel like at any moment. It seeks to bind us together, to inspire us to live not for ourselves, to swear to the heavens that we will do great things, and to do them. It takes from us the “freedom” to act alone and gives us the true freedom that comes only from denying oneself and sacrificing for another. But love is dangerous – it causes us to passionately defend, protect, and serve. It is as deadly as cyanide to a culture which seeks to control its citizens through self-​absorbed apathy. And so this culture of selfishness seeks at all costs to prevent us from loving. It seeks to satisfy our deep and primal need for love by giving us a cheap imitation which is not love at all, but merely another, more dangerous, form of self-​satisfaction. And we fall for it – and I am no exception. But I believe that the young mind, though easily fooled, is not so easily satisfied. And the young heart has a remarkable ability to sense lies and betrayal. I believe that the youth of the world can smell the stink of lies in the bill of goods that they have been sold, and are beginning to reject this false “love.” Am I right, my friends?
In Christ,


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