Thoughts on the Health Care Ruling

In the moments leading up to the Supreme Court’s healthcare announcement, the internet did its duty in posting hilariously prescient pictures of a sword-wielding character from Game of Thrones captioned: Brace Yourselves, Everyone On Facebook is About to Become a Constitutional Scholar.

To prepare for the ruling I made a bet with Tyler Brown several months ago. If you aren’t familiar with my bets with Tyler Brown, here’s how they work: whenever a major event is about to happen and it could conceivably go either way, I allow Tyler to decide which side he would like to take and then bet him a six-pack of craft beer that the opposite is going to happen. He typically selects the side that is deemed by most observers to be the most likely to occur (the government is going to temporarily shut down, a country will leave the EU by February, the ACA mandate will be declared unconstitutional, etc…), and he has somehow managed to lose every time. Regardless of what it means for the country, the ruling today means at the very least that I just won another six-pack of beer and my streak of winning-by-being-contrary continues.

At the risk of being one of the many unnecessary constitutional scholars of the day, let’s get into the actual issues (since I had to read all 190+ pages, I figure I may as well try to explain them). Since my job is to write things so that a high schooler can understand them, that is how I will write this post. I will try to pull out what I think are the most important passages in the main opinion by asking and answering what I think are the most common questions about what happened.  I make no promises as to the accuracy of my analysis.

But first:

Why does the Supreme Court get to be the final arbiter of the Constitution?

Immediately after the ruling came down, Senator Rand Paul (who was then echoed by MANY commentators) said this:

“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional.”

It would be easy to answer this by just saying: "No." 

The less easy answer to this is Marbury v. Madison, in which the Court inferred the power of judicial review from the structure of the Constitution. The Constitution doesn’t SAY who gets to be the final judge of what is constitutional, but SOMEONE has to be (right?). Since the Constitution is “the supreme law of the land.” (Supremacy Clause) and the Supreme Court gets to hear all cases “arising under this Constitution” (Article III powers) it can be reasonably inferred that the Supreme Court gets the final say relative to the Constitution. Now, there are also people who say that the directive that all officers of the United States take an oath to uphold the Constitution indicates that the power to interpret the Constitution was left up to ALL the branches, but this would result in quite a bit of confusion since, as we see, reasonable people can disagree as to almost every word in the document.

For the past two-hundred years the idea that the Supreme Court is the final word on the Constitution has been basically accepted by everyone. It is true that they are just men and women and do not have some sort of magical Constitution-analyzer that gives them the BEST answer for every constitutional question, but the structure of our government depends on them always having the LAST answer.

Alright, now that we’ve taken care of that, here we go (all subsequent quotations in this post are from the Chief Justice’s opinion):

What does the ruling mean?

Every functional aspect of the health care bill survived. They made it a LITTLE easier for individual states to say no to the Medicaid expansion (which I might address in another post) but everything will basically function as it would have had there not been a constitutional challenge.

So Chief Justice Roberts sided with the liberals?

No, not really. The four traditionally “liberal” justices went along with his analysis because it ended with the preservation of the law, but they completely and vehemently disagreed with almost everything he did to get it there. It goes without saying the four “conservative” justices disagreed as well. This was a 4-4-1 that turned into a grudging 5-4 majority.

So the Federal Government can force us to buy anything now?

No. Chief Justice Roberts wrote that the individual mandate was in fact unconstitutional for Commerce Clause purposes.  As the Chief Justice put it, “[c]onstruing 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.” That is to say- you can’t force people who aren’t doing anything to buy things. Now, there are legitimate constitutional counter-arguments to this in Justice Ginsberg’s concurrence/dissent, but I’m not going to get into any other opinions in this post because that would complicate things further.  

So why is the law constitutional?

The penalty that occurs due to noncompliance with the mandate is a tax, and “[t]he Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.” The federal taxing powers are QUITE strong and they can do basically anything they want through taxation. It has been like this for a LONG time so there is little reason to fear some sort of slippery slope and say “oh the Supreme Court has taken away all our liberties and now Congress is going to enact legislation that tells us how many times we can take a breath in a day!” The people on the internet who are saying that are wrong, unless my reading comprehension skills suffered some massive setbacks in the past year.

But if it was a tax why didn’t the Anti-Injunction Act stop the Court from hearing the case in the first place?

Because Congress said it wasn’t a tax.

Wait, so it is a tax AND not a tax at the same time? That sounds silly.

Yes. Okay. Congress went to great lengths to make sure that everyone knew the individual mandate was NOT a tax and that its penalty was NOT a tax. The Anti-Injunction Act (AIA) says that you can’t sue the government for a tax that you haven’t had to pay yet. For the purposes of the AIA, the government gets to decide what is and isn’t a tax because they’re the ones getting sued. If they want to allow for lawsuits early by not calling it a tax, fine. If they want to call it a tax and not be sued until after the first collection, fine. The bottom line is that the Court really doesn’t care and they’re just going to go by whatever label Congress affixes to something for the purposes of when people can sue Congress. There is an inherent assumption, I think, that this will not motivate Congress to call things that are not taxes “taxes” in order to delay lawsuits. I think that makes sense.

For constitutional purposes, though, the mandate penalty functions as a tax.

“It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question.  That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.”

It is long established that the Court SHOULD do whatever they can to construe an act of Congress as being Constitutional. “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.’” Since the penalty does not directly force a noncompliant person’s hand (as the penalty amount is significantly lower than the cost to obtain insurance) and since it is collected by the IRS on tax forms, it can be said to function as a tax more than as a penalty.

But Obamacare is obviously unconstitutional! It’s like, the worst idea ever! How could the Chief Justice uphold it?!

Look, ultimately there are some pretty convincing arguments in both directions. After reading each opinion you may have a preference as to which one was the most convincing, but I don’t think many careful readers would say that any one of the opinions was absolutely groundless. The Court is composed of nine extraordinarily smart people who are making a tiny fraction of what they could be earning in private practice. The most plausible explanation as to why they would do this (aside from ABSOLUTE POWER) is that they love their country and are each doing their best to interpret the Constitution as best they can. It is a complicated document and parsing out the legal issues is not as simple as deciding what is a good idea or not. In fact, it is pretty clear that Roberts disagrees entirely with the health care law. However, “[i]t is not our job to protect the people from the consequences of their political choices.” 

There is a LOT to say about the Medicaid coercion provision and the other opinions within this decision (to say nothing of the extended discussion around what John Roberts is doing strategically with this decision), but for now I would like to think that I hit most of the things that I have heard being discussed about the mandate portion of the decision.

Finally, this is old but sometimes necessary:

http://www.theonion.com/articles/area-man-passionate-defender-of-what-he-imagines-c,2849/

Court Camp Continued and Completed

Court Camp continues to be awesome. Today we finished with week two. The highlight of both weeks was getting to to the Court to hear some decisions and then come back later for our own private reception with a very special appearance by a Justice (Roberts for week one and Kagan for week two. Also, the late Justice Thurgood Marshall's wife, who is the best and most hilarious famous person ever.) 

When I arrived last Monday morning, the media seemed to think something interesting was going to happen... when I came back on Thursday there were even more cameras. Then when I was back this Monday... even MORE. This picture is from the first Monday.

Justice Kagan, giving the first opinion of the Court, started off with something along the lines of "this issue in this case is sovereign immunity and Indian land. Probably not the case you all came to hear." Everyone laughed. The four cases that were delivered last Monday were interesting to me only because I actually was required to read about them and explain them to the teachers. One of them had a really unexpected 4-4-1 split and came out to 98 pages. This basically means that they spent 98 pages confusing all the lower courts and setting up ways that they can quote themselves in the future when the case comes up again (as it now most certainly will, since a 4-4-1 does not establish a precedent).

I got over the 98 page opinion during the reception.

On Thursday they got rid of all the other cases that I didn't care about. It was still cool to be there, and I was very excited for week two because we were virtually guaranteed to hear a case that we studied during the institute.

This Monday I was in Court again, and as predicted we got two opinions (Miller v. Alabama and Arizona v. United States- as a side note, you can tell something about a case just from the title of the case- the first name listed is always the party that lost in the court directly below the Supreme Court- so Miller and Arizona lost to Alabama and the U.S. in the lower courts. Also, according to statistics for the past decade it is roughly twice as likely for the Court to reverse as it is to affirm a judgment. So now if someone asks what you think will happen in a given case, just say that the first name on the case will win and you'll be right about 70% of the time). The Miller opinion came down almost exactly as expected- a five justice majority decided that mandatory state sentences of life without parole for juveniles violated the Eighth Amendment. Many news outlets are confusing this for a decision that life without parole for juveniles was struck down- this is not true and reflects why it is important to read the decisions carefully.

The Arizona opinion was also mostly expected. The portions of the law that made failure to register as an alien a state misdemeanor and that fined undocumented workers for working in the state (3 and 5(C), respectively) were widely predicted to fail because they represented pretty classic examples of federal/state law conflicts. The striking of section 6, allowing an officer to arrest someone suspected of committing a deportable offense elsewhere, was more of a surprise to me because it seemed to be more of an enforcement action than a law edging in on federal immigration law. Everyone seems very focused on either celebrating or decrying the "show me your papers" provision that was left standing. It is important to recognize that the Court took no action on this simply because on its face it literally does nothing that officers aren't already completely allowed to do. That said, the Court warned Arizona pretty harshly in its opinion that if the provision is applied in a way that violates any aspect of the constitution (racial profiling would do this) they will take the case again and strike it down. A pretty reasonable opinion, I thought.

Scalia's dissenting opinion (which he read from the bench) seemed a bit lazy for him. He first spent a while explaining how the government didn't get its immigration legislative powers from the Constitution (the "naturalization" clause is often pointed to as the source of this power, but he decided that the decades-old interpretation of that clause to also apply to immigration was incorrect) and then conceded that the government did inherently have the power to control immigration (as do the states) and that the federal law would preempt any state law through the "supremacy" clause. Then he explained why the Arizona law didn't conflict with federal law. In other words, the entire first half of his opinion didn't seem to really have anything to do with his analysis as to why the law should have been upheld. If the government has the authority to enact immigration laws, then they have the authority- regardless of the origins of the authority. It was, as is always the case with Scalia dissents, a fun history lesson at the very least.

So now everyone is looking forward to Thursday, when it is expected that the healthcare decision will come down. I picked a good summer to do nothing but current term Supreme Court research.

Court Camp

I've decided to refer to the Supreme Court Institute as Court Camp, because that is a better name for it. All of the teachers got in on Thursday and were super excited- they all remind me, in their own way, of some of the best teachers I ever had. This makes sense because these are the teachers who wanted to spend part of their summer vacations doing an intensive course on the Supreme Court- you sort of have to like teaching in order to subject yourself to that, I think. They're a great and diverse group- a couple former lawyers, a cop, a woman who teaches at a juvenile detention center, people from all over the US with all their delightful accents. They came in already knowing a lot about the Court (because some of them teach ONLY constitutional law at the high school level) and so it has been an engaging experience for me as I have tried to answer their very intelligent questions without saying something completely incorrect.

This isn't from Court Camp. But I wanted to post it anyway. It's from a firm reception that I went to the day before Court Camp started. I went to the reception because the name of the firm was the same name as the name the devil chooses for himself in the Twilight Zone episode "Escape Clause." The bacon twists were as good as you would hope they could be. 

The first night of the institute we had a reception at another law firm that happens to have a giant building right next to the Mall. 

The rooftops in DC are starting to get a little ridiculous.

The next day (Friday) we did more Court Camp and then went to the Supreme Court itself. The teachers were especially keen to be in the Lawyer's Lounge to hear a talk from a couple of the longterm clerks about how the Court runs. 

No pictures are allowed in the actual Supreme Court courtroom.

Today (Saturday) we did three cases in Court Camp. I was slightly unexpectedly designated the question-answerer for one of the cases, which seemed silly to me since two of the people who wrote amicus briefs for the case were in the room with me. I kept looking at them to see if I was saying something factually wrong, even though I have read the entire case quite a few times and would have otherwise felt very comfortable discussing it.

The last activity of the day was a big moot court session- the teachers had three hours to prepare and perform a moot court and then argue in Georgetown's Supreme Court Institute, which is designed to look a lot like the interior of the Supreme Court. I got to give the "oyez, oyez" speech and bang the gavel to start it off- a great honor.

Fort

Thursday evening Kelsey showed up and we went with a mass of people to Steph's place (which is also Dan and Jason's place for the summer) for Beertrek. At the start of the week I had heard tell of an epic construction project undertaken at her residence. Apparently a group of people even lived inside this project for several days. I had no idea what to expect when I walked in.

The entire living room is a fort enclosed underneath a ground tarp and supported by hundreds of cardboard boxes. It is every childhood dream come to life. 

This is Dan giving a tour of the fort. I should have taken more pictures inside the fort, but....

Scratch that. The reason that there are no more pictures of the fort is because it's top secret and they would have to kill me if any substantial visual information about the fort were to leak out. There. I have now rationalized my laziness with a camera.

Friday I had work as usual and Kels had an interview. After work Micah and Steph (R.) came over for dinner. Kels and I made a stir-fry recipe that Noah suggested and it turned out really well. For dessert Micah and Steph made some sort of mousse out of eggs, sugar, heavy cream, chocolate, and fortified wine. It was amazingly good as only a food made out of those five ingredients could be.

Saturday we went suit-shopping for my upcoming Court Camp (that's what I'm calling it now, thanks Josh) and then went to the zoo. It was very hot and we took the long way. I think we may have ended up walking something like seven miles on Saturday. The zoo was worth it though- I still can't get over how much cool free stuff there is in this city.

I took two pictures of Kelsey with the flamingos. One of them I agreed I absolutely wouldn't post. The other one I didn't mention so that I couldn't be told not to post it. This is not the picture that I said I would not post.That one is great. This one is just sort of standard.

Saturday evening we saw Will, Selena, Cain, Davia, Sara, and an insane collection of legos. I was not allowed to touch the legos because everyone was certain I was going to break them all. 

Sunday there was a lot more walking and then brunch with Kelly, Alex and Jake (brunch is such a DC thing. I'm not sure I ever had "brunch" before coming here). Then I made Kelsey watch The Room to cap off a great weekend. 

Today (Monday) at work I wrote brief case summaries for each of the cases that the Court has yet to decide. The next couple of Mondays should be interesting. You see, when the Court is in decision-season (as it is now) it tends to hand down between two and five decisions each Monday morning. The past month we've been seeing a lot of two-decision Mondays. This means that we have two Mondays left in the "official" season and fifteen cases to decide. They won't do seven or eight opinions on a given Monday, which means they're going to have to add sessions. I'm going to be at the Court the next two Mondays so with any luck we'll see either healthcare or Arizona on one of those days. Even if we don't get one of those, though, I would say about half of the cases left could be classified as "extremely interesting." Court Camp springs into full gear starting Thursday. Time to teach some constitutional law!

Laundry- The Most Dangerous Game

My internship has continued to be excellent. So excellent, in fact, that we've been talking about things that I can potentially do for them over the school year. Things that they would like to pay me for, even. We'll see if certain contracts come through- but if they do, I might be working on a big textbook project. We had a full staff meeting today to discuss the annual budget- it's the kind of thing that would devolve into eye rolling and stupid questions at many offices, but we had bagels and cream cheese and a delightful discussion about the numbers. I really, really like the people who work with me in the office. 

They took me on a field trip today to a law firm. It was my first time in a law firm, and we were doing a presentation for their "pro bono" week. It was a good presentation and the lawyers seemed very interested in it, so that was a good experience. After the field trip I sat down outside with our executive director to go over some final changes to the major curriculum projects I've been working on for the Institute (that starts next Thursday). A very good day, in all.

That does it for the general life update- I'm writing this post because I need to tell a story.

The story begins with laundry. I needed to do my laundry yesterday, you see, so I loaded up my landlord's basket that David and I have been appropriating and hauled it downstairs (using the worst-elevator-in-the-world along the way) to the sub-basement where the laundry facilities are kept.

I put my clothes in the washer, started it, and left. Thirty minutes later I returned, transferred my clothes to the dryer, and left. All was going very well.

I returned an hour later to collect my dry clothes. As I walked into the laundry room, I gave a customarily friendly head-nod to an extremely large beefy linebacker-type guy who was also in the laundry room, presumably to do his laundry.

He did not nod back.

He did, however, stare at me. I was about to say hi or make a comment to break the tension when he spoke:

"Is this your laundry basket?" He pointed to the laundry basket.

I looked at where he was pointing, looked back at him, and replied: "... yes." I figured that would be the end of it.

"How long have you had it?" He asked. I was not sure where he was going with this.

"... I don't know. A while? I just moved in. Maybe a year?*" I replied. (*I had forgotten that I was using my landlord's basket and not my own.)

"That's interesting. I had a laundry basket that looks exactly like that one- with that broken handle there and that sticker there- that was stolen about a year ago from this laundry room. How long did you say you had it?"

And then I realized that this guy had been waiting. For me. In the laundry room. To seek confrontational vengeance over his laundry basket that had apparently been stolen by my landlord or his wife. Having met my landlord and his wife, this did not seem completely out of character for them to have done- not that they would have meant to steal something, but I can see them just taking a laundry basket and not thinking about it.

"Ah," I said, "When I said it was my laundry basket, what I meant was it is my landlord's laundry basket...." I spent another few sentences convincing him that there was no possible way I personally could have stolen his basket, and then he calmed down. He seemed disappointed that he didn't get to have his big confrontation that he had built up in his head, no doubt since the first moment he noticed his basket missing about a year ago. That's a lot of grudge to harbor. People get very attached to their laundry baskets.

He apologized for accusing me and I told him to just take the basket and give me his name and number so that I could let my landlords sort it out if it was actually legitimately theirs- he could have been lying to me just to get the basket, but I don't see why anyone would go to all that trouble to get a worn-down basket with a broken handle, especially when he could have just taken it while I wasn't down there. If ever there was a legitimate time for me to give away something that was not mine, I think this was it.

He works at a bar and told me to come by and he would get me a drink on the house for my trouble of having been needlessly accused of basket-larceny. Today, while coming home, I saw him walking in the opposite direction. We greeted each other warmly. I think we're friends now. 

Now I have an awkward e-mail to write to my landlord. How should I phrase this? "Hey... did you, by chance, ever steal a laundry basket?" 

I'll figure it out. I'm off to Union Station to meet up with David and Tim for drinks (I had drinks with Amy Reno there yesterday and it was delightful as always) and then going over to Goo's with Josh et al. Should be a fun evening. 

Team Dragon Elite

This weekend I finished write-on while also attending a wedding! (I have 46 footnotes on a seven page paper. The words supra, id, passim, and "emphasis added" are scattered throughout, which indicates to me that it is clearly a very scholarly and knowledgeable paper.) That made me the unfun person for most of the weekend, see, e.g., my inability to go out in the evenings and my self-imposed early morning wake-ups. (as a side note, it's important to use e.g. when you are referencing only some of the things that support your main proposition but when the support of the proposition is so evident that you do not need to cite additional evidence)

But enough about things that I disliked doing, I want to remember the weekend for the beautiful wedding of Will and Julia and for all of the friends both old and new with whom I got the chance to celebrate.

Since we were in Baltimore, we of course had to go to the inner harbor for dinner one night. We originally tried to find a seafood place and, being brilliant and able to use the internet, I found a great one. It was closed, of course, but I'm sure it would have been great. No one asked me to check when it was open.

After that initial failure we went to the Bubba Gump seafood restaurant, learned that it was going to be an hour wait, and left the Bubba Gump seafood restaurant. We ended up at a sushi place sitting at an outdoor table with a great view of the harbor and of a guy doing fire tricks below. (I was going to say "magic tricks" but he specifically said at one point in the performance that what he was doing wasn't magic. Then he set a rope on fire and played jumprope while standing on an exercise ball. So... yes, not magic.) The sushi was great and, as is usual, I "encouraged" Kelsey to try new food. If it is possible, I think she liked octopus even less than she liked softshell crab. I admire her for always trying, though.

Our meal completed, we scanned the harbor for our next activity. There was not really a question of what we were going to do, though, because there were people in dragon-shaped paddle-boats and of course dragonboats were going to win.

Dragonboat

Me, Kylie, Jane, and Kelsey onboard our dragonboat.

We dubbed ourselves Team Dragon Elite and made others jealous that they were not with us. 

The next day was the wedding, which was outside at Will's parents' place. It wasn't too warm and the service was very well done. Will and Julia make a beautiful couple- they're always so nice and fun to be around whenever I get the chance to see them. We did the traditional drinking and dancing (not too much of the latter and less than I would have liked of the former since I had to continue writing after the wedding) and had an excellent time.

Also, at some point during the weekend I started getting texts and facebook messages from all sorts of Woodberry people telling me that, the night before Woodberry graduation, the Dozen had performed an arrangement of "Stacy's Mom" that I had written while I was a student. I think it was the second piece I ever actually arranged for any purpose (I remember that it was the piece in which I learned it was possible to write notes that SOUND correct yet are still WRITTEN incorrectly). Anyway, I was honored and it filled me with lots of Woodberry a capella group nostalgia.

This week I think I'm going to try to rest more than anything else. In spite of my internship being full time, it feels like a vacation compared to last week.

Two Empty Drawers and a Porch

Who has two thumbs and a bed to sleep in at night? 

*points to self with thumbs* 

This guy.

David and I officially moved into our place in Foggy Bottom after my last post and we have been busy getting it set up. The couple we are subleasing from are terribly nice and have an amazing apartment but seem to have taken almost nothing with them on their three month trip to Europe. As we explored our new abode we came across two small drawers with post-it notes marked "empty." Every other conceivable storage space is bursting with either clothes or books. They have a lot of books. And pictures of themselves. Almost every inch of wall space is devoted to pictures of them. Which is nice in some ways and creepy in others. 

They left some food that they told us to finish off. That was very nice. 

I made pasta. Everyone is shocked, I'm sure.

David and I haven't had much fun as roommates yet. Our constant witty banter has only increased since the last time we lived together, of course, but we've both been so busy with work that we haven't been able to watch even one episode of Boston Legal yet. I'm sure after I'm finished with Write-On and he is settled in to his firm we will have more time.

I have continued to enjoy my internship. The commute is a bit long, but I can read on the way and I look forward to what I'm doing every day. I had a meeting with our executive director today about possible cases to use for the Summer Institute. He asked if I had taken Criminal Procedure and I said I had (though we call it Criminal Justice). He then said "oh, okay, I was wondering whether you had a course or whether you just knew all this stuff because you were smart." 

Lesson learned. From here on out when asked if I've taken a course the answer will be "no, but I know everything about that topic because I am smart."

This Sunday is Will and Julia's wedding. Should be fun. Until then I'll be in Baltimore but working on this Write-On thing. Less fun.