Friday, June 29, 2012

A Pyrrhic Victory

If you read no other analysis on yesterday's huge SCOTUS ruling regarding health care, make sure you read Neal Katyal's NYT op-ed. Decisive, instructional, and a big warning.

THE obvious victor in the Supreme Court’s health care decision was President Obama, who risked vast amounts of political capital to pass the Affordable Care Act. A somewhat more subtle victor, but equally important, was the rule of law more generally: in an era when so many people on the left and right view the justices, and constitutional questions, through the prism of politics, the court today made clear that law matters and that it isn’t just politics by other means.

But there was a subtle loser too, and that is the federal government. By opening new avenues for the courts to rewrite the law, the federal government may have won the battle but lost the war. 

The health care decision also contains the seeds for a potential restructuring of federal-state relations. For example, until now, it had been understood that when the federal government gave money to a state in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform. 

In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds. And it does so in the context of Medicaid, which Congress created and can alter, amend or abolish at any time. The states knew the terms of the deal when they joined — and those terms continue to be enshrined in the federal code.

This was the first significant loss for the federal government’s spending power in decades. The fancy footwork that the court employed to view the act as coercive could come back in later cases to haunt the federal government. Many programs are built on the government’s spending power, and the existence of an extraconstitutional limit on that power is a worrisome development. 

The government told the court that longstanding laws, like the Elementary and Secondary Education Act of 1965 and the Family Educational Rights and Privacy Act of 1974, contain clauses that condition money on state performance of certain activities. The decision leaves open the question of whether those acts, and many others (like the Clean Air Act), are now unconstitutional as well.  

Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce. There is no judicial precedent or language in the Constitution that compelled that result; instead, the majority reasoned by constitutional inference. 

Time will tell whether today’s decision foreshadows things to come. But one thing is apparent: Americans are growing increasingly comfortable, if not always happy, with the idea of nine men and women in Washington handing down rulings that remove decisions from the legislative process or even rewrite legislation altogether.

While Chief Justice Roberts wrote an opinion that was apolitical and deserves much praise for its statesmanship, he did so within a legal context that is becoming less and less democratic. That context is obviously not of his making, but it makes imperative a serious conversation about judicial restraint. 
In other words, it's a decision that goes well beyond the ACA, the 2012 presidential election, partisan politics, and whatever ideological filter you run things through. If you scroll through the 197 pages of opinions, concurrences and dissents, it becomes clear they were wrestling with much more than the issues in front of them. 

And while the big victor may be Obama (or conversely, Mitt Romney who uses the issue to ultimately defeat the president), the bigger victor is the Chief Justice and the legitimization of the court. And the biggest loser may be democracy itself. 

Read the first 45 pages of Roberts' plurality opinion and you'll see he redefined commerce and virtually ended Congress's ability to regulate said commerce between the states. Talk about unprecedented. 

While the right wing is in a lather over the ultimate outcome of health care reform, and the left is busy dancing and celebrating, the long-term implications of this decision might be institutionalization of a court that marginalizes the political process and makes the legislative process irrelevant.

A Pyrrhic victory indeed.

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