Death and Justice Scalia

It is startling to find that Justice Scalia was frail, and perhaps he himself did not realize that this was so. He seemed so vital and dynamic, often maddeningly so if you didn’t agree with him. (I disagreed with him fairly often, while also admiring his bravura skill in legal argument, but this is not the occasion to revisit any of those disagreements.) A man as devoted to family as he was would not have gone on a solo vacation far from home if he thought he was in failing health. It is good to lead an active and productive and long life up till the very end, as he did, but I hope that he died in his sleep and did not have to know that he was dying alone.

No one knows what awaits us on some other plane after death. Justice Scalia, a devout and traditionalist Catholic, may have died with confidence in life everlasting. What Judaism says about this matter, according to one of my Reconstructionist synagogue’s rabbis, is quite unsatisfactory; that is, apparently the sages just haven’t sorted this one out. In the King James Bible, David says in the Twenty-third Psalm that he “will dwell in the house of the Lord for ever”; in the Reconstructionist prayerbook, he says only that “I shall come to dwell inside the house of The Eternal for a length of days.” 

But Justice Scalia’s death makes crystal clear what awaits us here. Within less than three hours of the news of Scalia’s death reaching the media, Senator McConnell had decided to go public with his objection to President Obama nominating anyone to fill Scalia’s seat, and the Republican candidates for President all concurred in their debate a little later that same evening. In other words, here on earth the living take note of the absence of the deceased, and proceed to business. The New York Times reports that official Washington “paused” yesterday to remember Justice Scalia, and that pause was respectful, but meanwhile life emphatically goes on.

Yet Justice Scalia will be remembered by many, and that certainly counts for something. He was, it seems, a gregarious man who travelled widely and spoke in many venues; his biographer will have a lot to do collecting the stories of what he said and to whom. I happened to meet him twice, once at Columbia Law School and once, more recently, at the banquet of the New York Law School Law Review, at which he was the featured speaker. Before his talk, Teresa and I went to say hello. He didn’t remember having met me before, which I thought was perfectly reasonable. But he went on to surprise us: he said something to the effect that he admired people who devoted their lives to law teaching, and recalled, self-deprecatingly, that he had felt he was growing bored in his last years of teaching, and I think he said that that weakened him as a teacher. Teresa and I felt he was very gracious to us that evening. His son’s remarks at his funeral make clear that Scalia saw himself as an imperfect person, a sinner like everyone else, and perhaps we encountered that humility that night.

I’ve read recently that he believed that he was waging a war of ideas, not a war against people. In his words, “I attack ideas. I don’t attack people.” That’s a distinction that isn’t always easy to adhere to, since it is people who hold ideas, and when ideas are attacked as silly or stupid, those who hold them not unreasonably suspect that they too are being assailed as silly or stupid. Justice Scalia’s dissents were often harsh, and I think that diminished his influence within the Court. But in principle the idea that one can sharply disagree about ideas, yet still respect and like the people with whom one disagrees, is a humane and democratic one. It must also be part of what enabled Justice Scalia to be such good friends with Justice Ginsburg.

I can’t resist adding that the distinction between ideas and those who hold them is also rather South African.  "Play the ball and not the man," Michael Corbett – the last chief justice of the old South Africa and a respected and quite progressive jurist -- urged, and that soccer metaphor made the same point. The more we play the ball, or in other words the more we engage with the ideas and reasoning of those with whom we disagree, the more we implicitly affirm that there are in fact right answers to our problems and that we are engaged in a good-faith effort, along with our adversaries, to find them. The more we affirm that there are right answers, in turn, the more we maintain that the legal (or moral) world rests on, or seeks, objective truth. Scalia certainly believed that there were right and wrong answers to legal questions; many of South Africa’s greatest lawyers and judges have believed that too. The fact that on many points Scalia and his South African counterparts today might have believed in almost diametrically opposite answers doesn’t prove that any of them were wrong in believing that right answers exist.

Affordable Care Act Part IV: When, if ever, does offering a state money amount to coercion?

After dealing with the commerce clause and the tax power, the Supreme Court in the Affordable Care Act case (available here) turned to the spending clause. (There can't be many cases that have addressed so many of the central federal powers under the Constitution.)

The text of the Constitution tells us that Congress can tax and spend for the “general welfare,” Art. I, § 8, cl. 1. Does that mean Congress can tax and spend on matters that it could not otherwise reach under the rest of its constitutional powers? The answer, the Supreme Court decided in United States v. Butler, 297 U.S. 1, 66 (1936), is yes. So Congress can raise money, and spend it, even on matters that otherwise would be the concern of the states rather than the national government. Moreover, as a general matter Congress can choose what it will spend on; that is, it can put conditions on what it spends, and if it proposes to provide money to states, it can require them to abide by such conditions.

But a year after Butler the Supreme Court suggested a limit on this authority, when it said, in Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937), that “[n]othing in the case suggests the exertion of a power akin to undue influence, if we assume that such a concept can ever be applied with fitness to the relations between state and nation.” That language is quite a bit short of a firm statement of a constitutional rule, and evidently no case until the health care decision ever found such coercion. Nevertheless, seven justices do find it here. That includes two of the court's liberals, Justices Breyer and Kagan, and their votes may have caused liberal observers a measure of the same disappointment conservatives have vitriolically expressed about Chief Justice Roberts.

What was the coercive aspect of the law? The statute provided for a dramatic expansion of Medicaid, which would now cover everyone under the age of 65 with an income up to 133 % of the federal poverty line. (Currently, Chief Justice Roberts writes, Medicaid covers “only certain discrete categories of needy individuals – pregnant women, children, needy families, the blind, the elderly, and the disabled…. There is no mandatory coverage for most childless adults, and the States typically do not offer any such coverage.” Moreover, states’ definitions of which families are “needy” typically draw the eligibility line well below the federal poverty level. Roberts at 45.) Medicaid is a program largely funded by the federal government, but operated by the states, and states can decline to have a Medicaid program within their borders. Arizona didn’t join the program till 16 years after federal law created it (opinion of Justice Ginsburg, at 59 n.26). States could also decline to take part in the expansion of Medicaid under the ACA, but if they did so then the statute authorized (though it didn't require) the Secretary of Health and Human Services to withhold from the state not only the new federal money that would have paid for the expansion but also the rest of the state's federal Medicaid funds. 42 U.S.C. § 1396c.

That's a big stick. But is it a "coercive" one?

One way to answer that is to consider whether Congress believed any states would choose not to participate in the Medicaid expansion. The answer seems to be no; state participation is an integral part of the ACA's effort to assure near-universal health coverage. But does this mean the statute is coercive or that it is attractive? After all, the ACA funds 100 % of all expansion costs through 2016, and after that “gradually decrease[] to a minimum of 90 percent.” (Roberts at 46.) What state concerned to support its people's health would want to resist such a sweet offer?

But it must be said (as the joint dissenters do, at 45) that Congress didn't just make an offer. It also added a penalty for rejecting the offer -- namely the risk of losing all current Medicaid funds, those already being disbursed by the state in existing health care arrangements. Moreover, existing federal Medicaid funds are major parts of many states' total budgets: between 10 and 15 % of the average state’s entire budget, according to Roberts (at 51); between 16 and 22 % of all total state expenditures, according to the joint dissenters (at 39 & n.14). Loss of this money would be extremely painful.

But suppose a state said "we want to run an industrial development fund with our medicaid money, and we're going to stop using those funds for health purposes." I don't think anyone would contend that the state was entitled to take the federal money and run. It is entirely legitimate, as a general matter, for Congress to say "we will spend only for X, not for Y." And that's true even though it means that the only way to get the money is for a state to use it on the programs Congress specifies. Even the joint dissenters (who are part of the majority in finding a violation of Congress’ spending clause powers) observe that “[w]hen Congress makes grants to the States, it customarily attaches conditions, and this Court has long held that the Constitution generally permits Congress to do this.” (Joint dissent at 31.)

What this points to is the proposition that what makes a financial penalty coercive is not its size per se, but its fairness. With this idea perhaps in mind (though I think not put in these term), the justices debate whether the Medicaid expansion is or is not sufficiently akin to the current Medicaid program that the expansion, and the penalties for declining it, fall within the existing law's specific declaration that Congress may enact changes at any time (42 U.S.C. § 1304). The justices seem to agree that some changes, and penalties, are covered by this provision, but they disagree about whether the very large changes wrought by the ACA were (with a majority saying they weren't).

But whether the changes were sufficiently predictable is not the whole of a fairness analysis. Congress can always change its laws, whether or not it reminds us of that in advance. Here, as Justice Ginsburg says (at pages 38 & 51 of her opinion), in theory it could have repealed "old Medicaid" and passed a brand new statute, "old and new Medicaid," and conditioned receipt of all Medicaid funds on compliance with the whole of the newly enacted law. Chief Justice Roberts responds that that would have been politically difficult (Roberts at 54 n.14); maybe so, but why does that matter -- either way -- to the measure of Congress' powers?

The justices finding a spending clause violation emphasize the idea that spending clause legislation is “in the nature of a contract” between the federal government and the states. (Roberts quotes this phrase from earlier precedents at 46; the joint dissenters use almost the same language at 33.) To my mind, however, this metaphor is quite imprecise. Congress may be setting the terms for contractual relations with the states, and it may (as cases have held) be essential that those terms be spelled out clearly. But Congress is also exercising its constitutional authority to tax and spend, and that authority should not be improperly undercut. Even with the aid of this metaphor, in any case, it remains a matter for debate just how much advance notice the states are fairly entitled to. In fact, Justice Ginsburg cites a Social Security case that invoked the same “right to repeal or amend” statutory provision that applied to Medicaid to say that “Congress put States on notice that the ‘Act created no contractual rights.’” (Ginsburg at 55, quoting Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 51-52 (1986).)

I think it is not possible to say what is unfair pressure without some baseline judgment about the respective roles of the federal and state governments. (This is an application of the insight of scholars considering the general concept of "coercion.") As Ginsburg says, the conservative joint dissenters (who are 4 of the 7 justices making up the majority on this point) at times seem to imply that a federal spending program is more likely to be coercive the larger it is: “On this logic, any federal spending program, sufficiently large and well-funded, would be unconstitutional.” (Ginsburg at 57 n.24.) This idea isn't absurd -- since state taxpayers fund the federal program, for a state to decline its share of the federal funds is a painful loss, more painful with each dollar. But it is also, from the national government's perspective, perverse – the more vigorously the government uses its spending power to achieve important purposes, the more it may run into constitutional trouble.

Meanwhile, it seems quite possible that for Justice Ginsburg essentially any spending amounts and conditions would be permissible so long as they aim at a legitimate governmental purpose and do not violate individuals' constitutional rights. She declares (at 59) that “[t]he coercion inquiry, therefore, appears to involve political judgments that defy judicial calculation.” If that is right, then the coercion test is a matter for politicians in Congress and the White House, and not the business of the Courts. At one point the Supreme Court, some decades ago, did take the view that the federal system could be relied upon to protect the states – from which all federal officials come – but that is no longer the law.

Between these two possible extremes, Chief Justice Roberts, joined by Justices Breyer and Kagan, seem to be looking for a common sense understanding of coercion – though their “gun to the head” rhetoric (at 51) obscures this point. The amount of money matters; the degree of advance warning matters; the degree of states' dependence on the status quo (here, the existing Medicaid programs and their funding) matters. Perhaps the essence of their position is that states are entitled to a meaningful choice -- a standard that is a long ways from the idea that states might be entitled to an "unfettered" choice, but also quite a ways from the idea that Congress is entitled to unfettered discretion in the conditions it attaches to its money. As Roberts puts it, at 49:

In the typical case we look to the States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace the federal policies as their own…. The States are separate and independent sovereigns. Sometimes they have to act like it.

In fact, even the joint dissenters speak in these terms, saying that the test of coercion is whether “States really have no choice” (joint dissent at 35), and affirming that “courts should not conclude that legislation is unconstitutional on this ground unless the coercive nature of an offer is unmistakably clear” (at 38) – though there is room in such language for quite a spectrum of concrete results in future cases.

In all of this, we are a long ways from the nation of our past. Chief Justice Roberts calls the states “separate and independent sovereigns,” but the “sovereignty” of the 13 original states, in 1776 when we declared independence or in 1787 when the draft constitution was put before the states for ratification, has little connection to our world. But in our world there is room for debate about just how preeminent the national government should be, just how independent the states should be. The ACA decision seems to somewhat strengthen the hand of the states. I'm not sure that's the best thing to do, but I'm not unhappy with this aspect of the case -- which strikes me as a reasonable approach to a hard constitutional issue.

The Affordable Care Act, Part II: what's broccoli got to do with it?

How strong was the commerce clause argument in the Affordable Care Act case (National Federation of Independent Business v. Sebelius)?

I have to say that I sympathize with the conservative justices’ concern that the commerce clause shouldn’t become the basis for congressional power over everything. Of course, it wouldn’t be – that is, no matter what Congress has power to regulate, it can’t regulate anything in violation of the Bill of Rights. Moreover, just at the moment Congress can hardly pass legislation at all, on any subject, and so it’s a bit difficult to say we’re all in peril of congressional overreaching right now. In fact, it’s difficult to see any Congress ever legislating in true and utter disregard of the states, from which every member of Congress is elected. Nevertheless, I agree with the basic idea that liberty is safer if no one unit of government is too powerful. Moreover, perhaps in part as a result of having studied South African law from the days before that country’s Parliament was subject to meaningful constitutional limits, I’m not entirely comfortable with trusting that Congress just won’t choose to exercise power once we’ve decided that it could if it wanted to.  

So I think the idea that there should be some limits on the commerce power has appeal. But what’s startling about this case is how implausible it is as the occasion for finding such limits. Health care is a huge part of the United States economy, the stuff of interstate commerce every minute of the day. Moreover, it seems quite clear that if the individual mandate had not been upheld, the elaborate scheme of the Act would have been greatly undercut. The various provisions of the Act designed to make health insurance available at reasonable prices to people with preexisting health problems – an essential feature of the law – would likely have been unsustainable without the premiums to be paid by healthy young people purchasing insurance because of the individual mandate. In fact, the four dissenters (Scalia, Kennedy, Thomas and Alito) were convinced that without the individual mandate and the expansion of Medicaid, the whole system would be so compromised that they would have thrown out the entire statute, every single section. So not only is health care clearly part of interstate commerce, but the individual mandate – the portion of the statute evaluated under the commerce clause – was necessary to the overall regulation of commerce achieved by the law, and so should have been seen as “necessary and proper” to Congress’ exercise of its power over interstate commerce.

Except for one thing. That was that, as the conservative justices (including Roberts) saw the matter, what Congress was regulating with the individual mandate was not activity but inactivity. There was no commerce to regulate, these justices believed, until the statute forced everyone into the insurance market by mandating that they get insurance. The conservative justices insisted that the power to regulate was not the power to create commerce but the power to manage what already existed, and that Congress had never previously been allowed to regulate the failure to engage in interstate commerce.

This argument strikes me as particularly weak. It may well be that Congress has never regulated commercial non-activity, and correspondingly that no precedent ever said that Congress could do that. It’s probably also true that no precedent ever said that Congress could not do it, and that the reason Congress didn’t regulate inactivity was that doing so wasn’t so deeply integral to a larger regulatory effort as it was in this case.

Yet one might respond that “inactivity” is simply, definitionally, beyond the range of both Congress’ commerce power and its adjunct, the necessary and proper clause. One might, but why? As Justice Ginsburg says in her separate opinion, dissenting on this issue, similar efforts were made in the 1930s, notably to limit Congress’ power to regulating activities with “direct” effects on interstate commerce, while barring Congress from dealing with activities whose effects, however large, were merely “indirect.” That idea has long been abandoned, for at least three good reasons, each applicable here too.

First, the words “direct” and “indirect” don’t appear in the commerce clause or the necessary and proper clause. However conservative the justices who employed these terms, they are judicial interjections rather than part of the constitutional text. “Activity” and “inactivity” are similarly absent from the constitutional text.

Second, and more or less by design, the concepts of “direct” and “indirect,” like those of “activity” and “inactivity,” have nothing to do with the actual impact of what people are doing (or not doing), either its impact on the economy or – the real point – its effects on their other citizens and residents of the United States. It isn’t a virtue to be deliberately disconnected from sensitivity to real impacts.

Third, these words – “direct” and “indirect,” “activity” and “inactivity” – are pretty deeply obscure. Justice Ginsburg argues at length that people who don’t buy health insurance are not inactive in the market for health care; they will, on the contrary, very likely consume health care within the foreseeable future, say 5 years. They may need that health care in a moment, since no one knows when injury or illness will strike without warning. So they are, as Ginsburg suggests, actually “active” in the market, via the route of “self-insurance.” For some, moreover, self-insurance will fail; they will wind up unable to pay for their health care when they actually need it, and these health care consumers are every day engaged in a process of free riding on the rest of us. Others – those whose premiums are so needed in order to pay for the costs of making insurance widely available to people who can’t currently purchase it – are not free riding but rather are resisting paying part of society’s bill; but they too may be seen as actively refusing to purchase, rather than simply being inactive. When is a “refusal to act” (or, to use another phrase, a “failure to act”) actually an “activity”? The constitution doesn’t say. Chief Justice Roberts says that someone who is sitting around and doing nothing is not in the “rest” market – but we’re a long ways from that case in talking about how people deal with the inevitability that they will need health care.

All of this makes me feel that it was simply a mistake to try to draw a line between what the commerce clause reaches and what it doesn’t that is based on the supposed distinction between “activity” and “inactivity.” But what about the broccoli argument? It is, after all, true that broccoli purchases, aggregated across all the consumers in the United States, have a substantial effect on interstate commerce, and so – as the conservatives said – the kind of logic I’m endorsing would suggest that the federal government could order us all to buy broccoli.

I don’t think the government should be able to make us buy broccoli. (Should it be able to prevent us from buying huge containers of sugared soft drinks? That’s actually an easier question under the commerce clause – buying soft drinks is an activity, by any lights, and so regulating that activity shouldn’t raise any of the questions that mandating insurance did.) But back to broccoli – I think that heading off this possible extension of federal power is a matter that deserves attention, and that finding a coherent rule that does this may not be easy. But broccoli is not this case, as lawyers say. We are a long ways from broccoli in thinking about how to finance health care for the American people, an issue of almost overwhelming commercial and economic import.

So it seems to me, in the end, that the conservatives picked the wrong case to draw a commerce clause limit in. Limits may be needed, but they should have been drawn so that this statute fell within them rather than beyond their bounds. And it would have been good to find limits that avoided the incoherence of the “activity”/”inactivity” line that is now apparently part of our constitutional law.