The Supreme Court & Obamacare

[Berkut]

Honest question:

OK, so if I understand this correctly, the argument here is that Obamacare is necessary and proper (assumed), and therefore it is not relevant whether or not particular portions are necessary and proper under the Constitution? As long as the whole is deemed so, the constituent parts are not separately contestable?

The argument is that Obamacare is a whole is a regulation of interstate commerce.  In particular the provisions relating preclusion of discrimination for pre-existing conditions, guaranteed issuance and community rating fall into that category.  The argument then is that regardless of whether the individual mandate is constitutional in itself as regulation of commerce, it is nonetheless still constitutional because it is necessary and proper to effectuate the rest of ACCA; i.e. absent the mandate, these other provisions will be ineffective or even counter-productive and would thwart the commercial regulatory objective of Congress.

So if in fact the entire thing being valid then justifies ignoring any potential constitutional issue with the parts and pieces, why does it matter if in fact the piece is even necessary? Why is it ok if the piece is necessary, but not proper?

If Congress decided that in order for Obamacare to work, it would be necessary for people to give up their right to freedom of speech, would that then be acceptable? It seems like this "principle" means that as long as Congress can argue that a particular item is needed, then literally anything goes. And the Court doesn't even have the right to argue that it isn't really needed at all, or there is a better way - "The policy analysis he left to the judgment of Congress."

How does this principle apply to other actions taken by the other branches of government that do not fall under the Commerce Clause? Why would it not apply to any exercise of power where the overall goal is necessary and proper, and hence the individual elements are no longer contestable?

What if they said "Well, we don't even know if it is necessary, but who cares? The pieces are not individually contestable as long as the whole is necessary and proper, so tough shit". Why should it have to be appropriate or plainly adapted? Why is the "necessary" part of necessary and proper still in play, but not the proper part?

[crazy canuck]

Now that is an oversimplification worthy of note

[Barrister]

If Congress decided that in order for Obamacare to work, it would be necessary for people to give up their right to freedom of speech, would that then be acceptable? It seems like this "principle" means that as long as Congress can argue that a particular item is needed, then literally anything goes. And the Court doesn't even have the right to argue that it isn't really needed at all, or there is a better way - "The policy analysis he left to the judgment of Congress."

At least up here, division of powers questions are treated very differently than Charter of Right questions, to the point that if you made this analogy with respect to a SCC decision it would be Marty-like.

[Berkut]

Now that is an oversimplification worthy of note

How so?

Am I missing something important in the justification here?

It seems pretty simple to me - as long as Obamacare in its entirety is a valid expression of Congresses power to regulate Interstate Commerce, then at a minimum they have the power to violate any and all Constitutional limitations on their power as long as they can claim that is is necessary in order to achieve the overall goal. And it doesn't even have to be a good means of doing so, or the only means  just "a" means.

That seems rather alarming to me - it sounds like that effectively means there is no check on Congressional power, as long as they can come up with a token justification as it being about interstate Commerce. Now, that has been a problem for some time, and I guess at this point from a practical matter we simply do not enjoy Constitutional protection any longer, but simply hope for the best based on democratic protection. Which perhaps is what Minsky meant when he said people are concerned because they haven't fully understood the implications of this interpretation, even though it has been around for some time.

If that is the case, then I would fully support any Justice willing to use whatever means are within their power to change that interpretation, or at least limit its scope.

[Barrister]

Now that is an oversimplification worthy of note

How so?

Am I missing something important in the justification here?

I believe so Berk.

As I understand it this is what we would call a "division of powers" issue.  It's not that governments can not mandate health insurance, its just a question of which level.

That's fundamentally different (and goes through a completely different analysis) than a violation of the Bill of Rights.

[Berkut]

If Congress decided that in order for Obamacare to work, it would be necessary for people to give up their right to freedom of speech, would that then be acceptable? It seems like this "principle" means that as long as Congress can argue that a particular item is needed, then literally anything goes. And the Court doesn't even have the right to argue that it isn't really needed at all, or there is a better way - "The policy analysis he left to the judgment of Congress."

At least up here, division of powers questions are treated very differently than Charter of Right questions, to the point that if you made this analogy with respect to a SCC decision it would be Marty-like.

I think in the US the issue is that the two seems to be kind of mixed up.

Personally, I've always (right or wrong) considered the basic concept of limited government and individual rights to be of more fundamental value than questions of the powers of Congress (or the Executive or the Judicial). Since it seems clear to me that the primary purpose of the Consitution is to limit the power of the federal government, any argument that some law must be allowed to violate some individuals rights, or to give the government more power than that enumerated because otherwise they cannot expres the powers that ARE enumerated in the fashion they would like is met with pretty extreme skepticism.

After all, if that basic argument is valid, it kind of kills any real concept of a government of enumerated powers at all, right? You cannot say the government can only do X, Y, and Z, and *specifically* state that anything not enumerated is NOT in their power, if you then say "Oh, by the way, as long as they make a token claim that A, B, and C are kinda sorta necessary to achieve X, Y, and Z, then they can do anything they like...". And since we don't differentiate between the federal government taking on powers not enumerated to them and them violating basic civil rights, they can do the latter as easily as the former.

[Admiral Yi]

That's not what I think of when someone bleats about judicial activism. I think of courts finding powers not stated and finding laws constitutional on those grounds.

This.

Courts overturning legislation is not activism, it's their job.

[Berkut]

Now that is an oversimplification worthy of note

How so?

Am I missing something important in the justification here?

I believe so Berk.

As I understand it this is what we would call a "division of powers" issue.  It's not that governments can not mandate health insurance, its just a question of which level.

That's fundamentally different (and goes through a completely different analysis) than a violation of the Bill of Rights.

But the argument here is that a mandate might not be in and of itself constitutional,but since it is a part of a otherwise consitutional law, it cannot be challenged on its own.

There is no division in the US between Bill of Rights issues and powers - they are all derived from the same document. And if you can violate the COnsitution in the particular in regards to taking on powers you don't have in order to further some overall goal, then you can most certainly choose to ignore the Bill of Rights in the particular as well.

I think.

In other words, if you can Constitutionally force me to buy insurance as long as you argue that it is necessary in order to regulate the health industry, then you can Constitutionally force me to testify against myself, or throw me in jail if I speak out against your health care plan, as long as you make the case that doing so is necessary in order to make your otherwise COnsitutional plan work.

And according to MM, you don't even have to argue that it is a good idea, or the best way, or even necessary - just that it is "plainly applicable".

Now, I don't think those things are going to happen...really. Because we are protected from them by a political process as well. But it does mean that if that is correct, then we no longer enjoy Constitutional protection - only political. Which I suppose one can (and plenty of people have) argued for a long time that that is exactly what has happened since what - the Civil War?

I've always been on the other side of that argument mostly, but now I wonder if in fact I was mistaken.

[MadImmortalMan]

I heard Kennedy make a statement that surprised me. He said something to the effect that they are supposed to assume a law is constitutional by default when examining a case. My admittedly proletarian reading of the constitution would assume the opposite--that all laws carry with them the burden of positively asserting constitutionality. Where does this come from and why am I wrong?

[Barrister]

And since we don't differentiate between the federal government taking on powers not enumerated to them and them violating basic civil rights, they can do the latter as easily as the former.

I find that assertion to be highly dubious, but US constituional law is not my area of expertise so I'll let it go at that.

As I said - in Canada they are treated very differently.

[crazy canuck]

Now that is an oversimplification worthy of note

How so?

Am I missing something important in the justification here?

Yes,

I will repeat what Minsky has already said in a couple of ways but this one part should answer your question.

It may not have been the only means, or the best means, or even a particularly wise choice of means, so long as it was "appropriate"  and "plainly adapted" to the end objectives.  The policy analysis he left to the judgment of Congress.

In other words your fear that "the Court doesn't even have the right to argue that it isn't really needed at all, or there is a better way" is not well founded.

On the authorities JR cited it appears the party opposing would always have the ability to argue that a particular provision was not appropriate and plainly adapted to the end objectives.
What you are missing is that the Court will not, or should not, go further and inquire whether it was the best method.  That is a policy decision that should be left to the government.  The analysis is not all different from the division of powers type argument you would find here which BB has explained.

[crazy canuck]

That's not what I think of when someone bleats about judicial activism. I think of courts finding powers not stated and finding laws constitutional on those grounds.

This.

Courts overturning legislation is not activism, it's their job.

There could be no better battle cry for the forces of judicial activism.  The job of the Court is to apply the law, not overturn it.

[The Minsky Moment]

Courts overturning legislation is not activism, it's their job.

That isn't quite accurate as a blanket statement.  The job of courts is to decide cases and interpret the law.  If you totalled up all the case filings in the federal court system and looked at the number of cases where challenging constitutionality of legislation was even raised, it would be a lot less then 1 percent.  Even at the Supreme Court level, only a fraction of docket involves constitutional challenges to the validity of legislation; statutory interpretation is more common.  The power of judicial review is and always has been the subject of controversy.  There are legal scholars and commentators today who question the validity of Marbury and the power, and even more that advocate its limitation. 

Personally I think Marbury is sound, and I don't have a problem with judicial review but traditionally the principle that courts should exercise restraint in exercising that power and give due deference to the constitutional views of coordinate braches is a key component of the critique of "activism".

[The Minsky Moment]

In other words, if you can Constitutionally force me to buy insurance as long as you argue that it is necessary in order to regulate the health industry, then you can Constitutionally force me to testify against myself, or throw me in jail if I speak out against your health care plan, as long as you make the case that doing so is necessary in order to make your otherwise COnsitutional plan work.

No you couldn't.  Even if Congress could come up with some rationale for why forcing people to testify against themselves is a "necessary" means for achieving some regulatory purpose within the scope of federal enumerated powers, it wouldn't be "proper" because the 5th Amendment forbids it.   That's a big reason why we have a Bill of Rights, because even the founding generation understood that simply putting limits on enumerated powers might not be sufficient to protect key rights.

[Barrister]

I heard Kennedy make a statement that surprised me. He said something to the effect that they are supposed to assume a law is constitutional by default when examining a case. My admittedly proletarian reading of the constitution would assume the opposite--that all laws carry with them the burden of positively asserting constitutionality. Where does this come from and why am I wrong?

I can't answer definitively, but I would think out of simple deference to the other branches of government.  No level is supposed to be superior to an other, so it makes sense the starting assumption is that either the legislature or executive is operating constitutionally unless shown otherwise.

I do know in Canada that if you assert a law is unconstitutional it is up to the party making that assertion to prove it.  However, if it has been found that a law violates a part of the constitution, the burden then shifts to the government to demonstrate whether it can be "saved" by reference to other constitutional principles.