M2RB: Sir Elton John
I'm a bitch, I'm a bitch
Oh the bitch is back
Stone cold sober as a matter of fact
I can bitch, I can bitch
`Cause I'm better than you
It's the way that I move
The things that I do
Oh the bitch is back
Stone cold sober as a matter of fact
I can bitch, I can bitch
`Cause I'm better than you
It's the way that I move
The things that I do
"This was the first significant loss for the federal government’s
spending power in decades."
- Neal K Katyal, New York Times, 29 June 2012
By Neal K Katyal
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.
Indeed, it is becoming so commonplace for the federal courts to
invalidate legislation that a decision like the health care one is
celebrated resoundingly — even when the court has invalidated part of a
law Congress passed. In just one day, the Supreme Court struck down as
unconstitutional just as many laws of Congress as it did during the
first 70 years of its existence: two.
Obviously, health care has captured the minds of Americans — but moments
before the court announced that decision, which upheld the overall law
but invalidated a requirement that states expand Medicaid coverage in
exchange for federal financing, it struck down another law, the Stolen Valor Act, which made it a federal misdemeanor to lie about having received a military decoration.
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 is 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 extra-constitutional 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.
Even more worrisome for the federal government is the way the court
reached the result it did on Medicaid. The court had to rewrite the
statute to save it from a constitutional problem by eliminating the part
of the law that permitted the federal government to withdraw Medicaid
financing. The result, as Justice Anthony M. Kennedy warned, was
effectively to leave in place a statute that Congress never enacted.
(That is the same move that Chief Justice John G. Roberts Jr. employed in 2009 when he led the court to uphold the constitutionality of the Voting Rights Act.)
But there is a danger here too: that courts are given the power to
rewrite legislation altogether, and leave legislation in place (like
health care) in a form that Congress might never have approved and that
would be difficult to ever repeal.
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.
The court employed language that could be read to suggest that whenever
statutes are novel, they are unconstitutional. This atextual reading of
the Constitution, odd for “strict constructionists,” may later blossom
into a radical constitutional theory that could upend decades, if not
centuries, of precedent, going all the way back to Chief Justice John
Marshall’s famous opinion in the 1819 case McCulloch v. Maryland, which spoke of a flexible, adaptable Constitution.
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.
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