Never Before
By LINDA GREENHOUSE
New York Times
March 21, 2012
http://opinionator.blogs.nytimes.com/2012/03/21/never-before

Journalistic convention requires that when there are two
identifiable sides to a story, each side gets its say,
in neutral fashion, without the writer's thumb on the
scale. This rule presents a challenge when one side of a
controversy obviously lacks merit. But mainstream
journalism has learned to navigate those challenges,
choosing evolution over "intelligent design," for
example, and treating climate change naysayers as
cranks.

Court cases are trickier. It's one thing to engage in
prediction that flows from analysis: which side is most
likely to win? It's quite another to let readers in on
the fact that one side's argument is so manifestly weak
that it doesn't deserve to win. Journalistic accounts of
court cases, at least in advance of a definitive ruling,
understandably tend to take the safe course and treat
the arguments on both sides with equal dignity. So it's
perhaps not surprising that just about half the public
apparently believes that the Affordable Care Act's
individual mandate is unconstitutional.

Free of convention, and fresh from reading the main
briefs in the case to be argued before the Supreme Court
next week, I'm here to tell you: that belief is simply
wrong. The constitutional challenge to the law's
requirement for people to buy health insurance -
specifically, the argument that the mandate exceeds
Congress's power under the Commerce Clause - is
rhetorically powerful but analytically so weak that it
dissolves on close inspection. There's just no there
there.

Maybe the court will agree with that assessment, and
maybe it won't. I think it will, by a wide margin, but
that isn't my point; the justices will do what they will
do. Going into as dramatic a week at the Supreme Court
as I can recall (the argument in Bush v. Gore was over
in 90 minutes, compared with the six hours the justices
have allocated to the Affordable Care Act), my concern
is that the three-day marathon may leave people muddled
and confused about something that is really quite simple
and clear. So I want to unpack the challengers' Commerce
Clause argument for what it is: just words.

Basically just one word, in fact: "unprecedented." Did
you know that the individual mandate is unprecedented?
You will after you read the brief filed by the
redoubtable Paul D. Clement, the former solicitor
general, on behalf of the 26 states that filed suit to
challenge the law. The brief uses the word
"unprecedented" 10 times, by my count - I probably
missed some - not counting such other formulations of
the same thought as "novel" and "first ever." O.K., I
get it. I'll even accept it as true: granted that
passage of the Affordable Care Act ended decades of
deadlock over how to reform the developed world's most
irrational health care system. It should have happened
much earlier.

Unprecedented is a description, not an analysis. What's
unprecedented is the singular determination of the
Republicans both on Capitol Hill and in the statehouses
to deprive President Obama of his major domestic
achievement. Republican officeholders in all 26 states
joined together in the case now known as United States
Department of Health and Human Services v. State of
Florida. In 22 of those states, the officeholder was the
attorney general. In four states with Democratic
attorneys general (Nevada, Wyoming, Iowa and
Mississippi), Republican governors filed in their own
names. If any of them noted any irony in the fact that
not so long ago, the individual mandate was an idea
cooked up by conservative policy wonks to counter more
fundamental reform sought by the Clinton administration,
they offer no sign.

The countless unprecedented things that Congress has
done over the centuries were not, for that reason,
unconstitutional. Social Security, Medicare, the
Employee Retirement Income Security Act (Erisa), and the
Emergency Medical Treatment and Labor Act, the 1986 law
passed to prevent hospitals from refusing to care for
uninsured patients in acute distress, all come to mind.
(From the perspective of today's toxic politics, it's a
miracle that any of these laws actually got passed, but
that's a separate issue.) So there must be some problem
with the Affordable Care Act other than "never before."

As I said, the rhetoric is powerful: "The Constitution
protects and promotes individual liberty, while the
mandate's threat to liberty is obvious." How so? "It is
a revolution in the relationship between the central
government and the governed." In what respect? Beyond
regulating commerce, a power explicitly granted to
Congress by Article I of the Constitution, the
Affordable Care Act gives Congress "the power to compel
individuals to enter into commerce" - a "fundamental"
distinction with "breathtaking" implications.

This is the argument that persuaded the two members of
the three-judge panel of the Atlanta-based United States
Court of Appeals for the 11th Circuit who voted to
invalidate the mandate. The government argues that, to
the contrary, the "uncompensated consumption of health
care" by those who are willfully or helplessly uninsured
is itself an enormous economic activity. The uninsured
don't exist apart from commerce. To the contrary, their
medical care results in some $43 billion of uncovered
health care costs annually and, through cost-shifting,
adds $1,000 a year to the average cost of a family
insurance policy. People who don't want to buy broccoli
or a new car can eat brussels sprouts or take the bus,
but those without health insurance are in commerce
whether they like it or not.

"No one is inactive when deciding how to pay for health
care, as self-insurance and private insurance are two
forms of action for addressing the same risk." So said
Judge Jeffrey S. Sutton of the United States Court of
Appeals for the Sixth Circuit in an opinion last summer
that rejected a separate challenge to the law. Judge
Sutton's high visibility as a star among a younger
generation of Republican-appointed federal judges made
his opinion particularly notable. The government's main
brief quotes him at least six times, by my count.

Just like their opponents, the government lawyers are
not above using repetition to hammer home their main
points. The government brief repeatedly cites a 2005
Supreme Court decision, Gonzales v. Raich, which upheld
Congress's authority to criminalize the private, non-
commercial cultivation of marijuana for medicinal
purposes. Justice Antonin Scalia wrote a concurring
opinion in that case.

Neither Chief Justice John G. Roberts Jr. nor Justice
Samuel A. Alito Jr. was on the court then. But two years
ago, they both voted with the majority in another case
the government cites repeatedly, United States v.
Comstock. That decision, a robust interpretation of
Congress's authority to pass legislation it deems
"necessary and proper," upheld a federal law imposing
extended confinement on dangerous sexual predators who
have completed their criminal sentences. (A fascinating
article in USAToday this week shows that the law, once
upheld, is scarcely being used.)

From reading the government's brief, one might conclude
that Raich and Comstock were the only two relevant cases
in the constitutional firmament. But unlike the
"unprecedented" mantra, these recent decisions really do
shed light on the contemporary understanding of the
scope of congressional authority. If the commerce power
extends to backyard marijuana growing (as it did to
backyard wheat growing in the famous New Deal case of
Wickard v. Filburn), the notion that Congress somehow
lacks the power to regulate, restructure or basically do
whatever it wants in the health care sector, which
accounts for 17 percent of the gross domestic product,
is far-fetched on its face.

Indeed, just a few years ago, the constitutional
argument against the mandate struck most people who
thought about the matter as frivolous. In 2009, the
House speaker, Nancy Pelosi, famously replied "Are you
serious?" to a question about the bill's
constitutionality.

The opponents' argument has been gussied up since then,
which brings to mind Barack Obama's remark during the
2008 campaign about putting lipstick on a pig. One of
the more depressing news items I've seen lately was the
report of a Bloomberg News national poll indicating that
75 percent of people expect that the Supreme Court's
health care decision will be influenced by the justices'
politics. Only 17 percent predicted that the case would
be decided "solely on legal merits." (This from a
majority of poll respondents who said the law should be
"left alone" or modified only slightly, presumably in
the political arena.) Now it's up to the court to prove
them wrong.

___________________________________________

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