Althouse: "Given the potential for chaos in the Obamacare scheme if the states decline to participate, it's surprising that Justices Breyer and Kagan went along with the Chief Justice's opinion on the spending power."

July 23, 2014

"Given the potential for chaos in the Obamacare scheme if the states decline to participate, it's surprising that Justices Breyer and Kagan went along with the Chief Justice's opinion on the spending power."

"The original legislation had the states locked in, because they'd lose all their Medicaid funding if they didn't participate. That was held to be coercive, and thus not supportable by the spending power, which requires that states be given a choice whether to run federal programs and accept various related conditions. Under the Court's ruling, the states only lose the funding for the expansion of Medicaid, which makes it possible for them to say no, as many seem to be doing. There's an elaborate set of moves in the future, and I wonder how far ahead the Chief Justice looked when he chose his position. Perhaps Obamacare is doomed by the seemingly modest, miminalist hit it took on the spending power issue. But wouldn't Breyer and Kagan have seen ahead too? Why did they join him? I'm not ready to give him genius points for skillful playing of the long game."

Just something I wrote on July 5, 2012 that should be useful in thinking about the new Court of Appeals cases.

14 comments:

Nonapod said...: Have we ever lived in a time when political power didn't trump rule of law? It seems like there may have been some point in the past when what was written as law would generally be upheld by the courts regardless of the personal passions of the Justices. Maybe that never happened though.; 7/23/14, 2:35 PM
khesanh0802 said...: Give Ann an A for perception. Hard to see how one can interpret "states" as the State. In France, perhaps, "l'etat, c'est moi" but not here. Kagan and Breyer are definitely stuck on the proverbial horns.; 7/23/14, 2:57 PM
Michael K said...: The long view is not common among politicians. It should be in the Supreme Court but they are constrained by the arguments. Roberts really reached in the decision to call the penalty a tax. I doubt he'll do it twice. The Medicaid ruling was like pulling one piece out of the Rube Goldberg machine that is Obamacare.

Complexity and politics are not good bedfellows.; 7/23/14, 3:00 PM
FleetUSA said...: I remember Taranto made the point by keeping the law (via the tax issue) Obamacare would suffer the hatred of the populace in the long run jeopardizing big government programs in the future as well. If Roberts had killed it the Dems would have continued to press for government insurance - as nirvana. Now they own the mess and have to live with the multiple bad consequences.; 7/23/14, 3:07 PM
Dust Bunny Queen said...: Roberts' quotes

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

Yes. I think he did take the long view.; 7/23/14, 3:17 PM
SteveR said...: It was "designed", by virtue of being too complicated to work or survive legal battles, to fail. Bring on Single Payer. We'll call it Hillary Care; 7/23/14, 3:23 PM
Lance said...: Have we ever lived in a time when political power didn't trump rule of law?

Yes. All of BHO's controversial tactics (court-packing, administrative legislation, selective enforcement) were tried by FDR. Some of it he got away with, but he was famously rebuffed by members of his own party when he tried to expand the Supreme Court to eleven justices.

On the other hand, Lincoln also used many of these same tactics (including court-packing), and he largely succeeded.; 7/23/14, 4:43 PM
H said...: In case anyone thought that any reasonably intelligent person could be a law professor, here is an excellent example of why that is wrong. Prof. Althouse sees the logical implications (the precedent value) of a decision where the rest of us were clueless.

But I have one additional observation: Obama's appointments were undeniably liberal, but (especially in the case of Kagan) they were intellectually honest (and smart). Therefore they were much less likely (compared to liberal justices such as Douglas or Brennan) to first choose the result and second find the reasoning that is the best apparent support for that result. Rather, they do think about how the decision relies on consistent set of principles.; 7/23/14, 5:03 PM
Nichevo said...: H, I'm afraid that if they were fine honest people Obama would not have selected them.; 7/23/14, 5:32 PM
Bill said...: Maybe if they hadn't gone along with Roberts on Medicaid spending issue, he wouldn't have gone along with them on the tax/penalty issue, and would have killed the whole thing?; 7/23/14, 5:54 PM
RecChief said...: maybe he was just calling balls and strikes. but since the Left has so politicized every SCOTUS decision, that every SCOTUS decision is now viewed through a political lens, rather than a judicial one.; 7/23/14, 9:57 PM
Unknown said...: Why should the Supremes consider the potential for chaos now? "At this point, what difference does it make?"; 7/24/14, 8:47 AM
Sigivald said...: Why did they join him?

I love how there wasn't even a thought expressed to the mere possibility that they considered the law and the Constitution and weren't primarily concerned with Party Politics.; 7/24/14, 5:04 PM
Sigivald said...: (To clarify, that's not a rebuff at Althouse, so much as a comment on the assumptions commonly held about the motives of the Court.

And about the Court's actions that so often seem to justify those assumptions.); 7/24/14, 5:05 PM