Are law students who take clinics doing "pro bono" work?

New York's Chief Judge, Jonathan Lippmann, has recently announced a new requirement for admission to the NY bar: that each applicant first complete 50 hours of pro bono legal work.

As a step to find legal resources to meet the massive need for legal service for people who cannot otherwise obtain it, this proposal has a lot to recommend it. But it raises surprisingly difficult questions of definition. Many of these have recently been discussed among clinicians, and this post grows out of that discussion (in which I participated and from which I learned a lot).

"Pro bono" work, in its purest sense, is work done purely for the sake of the good -- the "public good," pro bono publico -- that it does. Generally, such work is truly admirable. (Generally, but not always: some people's understanding of the public good may be horrendously flawed; some people may do perfectly good work but harmfully disregard their loved ones in the process; and so on.)

But the more important problem is that a great deal of pro bono work probably isn't done just for the sake of the public good.  A lawyer may take pro bono cases in part to gain valuable experience, or to put his or her name in the public eye. A law firm may make itself a more attractive place to work by allowing its members to do pro bono cases; the firm's motive then is at least partly to prosper in the hiring market. As part of this strategy, firms may  (as others have pointed out) count lawyers' pro bono hours towards the annual targets each attorney needs to achieve (and may pay the lawyer's salary while she does her pro bono work). Here the "pro bono" work actually counts toward the lawyer's employment success, and compensation, at the firm.

It's worth pausing here to think a bit about the logic of defining pro bono work as solely for the public good in the first place. We might compare the work of two imaginary lawyers, unusually named Lawyers A and B.

Lawyer A is a partner in a private firm, earning $500,000 per year. Every year she devotes 40 hours to pro bono work, which we can assume (in her favor) is in no way credited to her work for the firm. It is true, and admirable, pro bono service.

Meanwhile Lawyer B is a staff attorney at a legal services clinic. She works full-time representing poor clients who cannot afford to pay for a lawyer. But she is paid, say, $50,000 per year. As another commenter pointed out, the fact that she is paid for her work means that -- if pro bono work must be done solely for the public good -- she is doing no pro bono work at all. Yet she is spending her entire working life representing poor people, and makes one tenth the income of Lawyer A.

As a general matter (leaving aside special cases of individual psychology), It's clear, isn't it, that of these two lawyers, it is lawyer B who has made a more profound commitment to public service?  And that points to a general proposition: while working without reward is certainly morally relevant, it's not the only measure of what we ultimately are concerned with: contribution to the public good. We value such contributions when they are made, and we value experiences which tend to encourage people to make such contributions over their lives.

Meanwhile, and most clearly, pro bono work isn't purely for the public good if it is required. If a lawyer must do 50 hours of pro bono work to keep her law license, or if a bar applicant must do 50 hours of pro bono work to be admitted, it is very likely that for their 50 hours they are not working solely for the public good -- because they are also working to meet the requirements for being a lawyer and having all the possibilities of income, status and power that a law degree can support.

Now I'm definitely not saying that the presence of mixed or multiple motivations makes "impure" pro bono work valueless. I really mean the opposite: most work of any kind is done for multiple reasons, and mixed-motive pro bono work can be very valuable.

All of this brings us to the question of whether students' work in for-credit law school classes should count towards New York's soon-to-be-instituted requirement of 50 hours of pro bono work as a condition of admission to the bar. I think the answer is yes, for several reasons, partly of definition and partly of underlying purpose.

First, while it's true that clinic students get a reward for their work, that doesn't distinguish them from many other lawyers whose pro bono work, as I’ve just argued, is in some way rewarded. In particular, it doesn't distinguish them from all the other applicants to the NY bar who will be rewarded for their 50 hours of pro bono work with eligibility for admission. "Pure" motivation is rare, and is not the central issue anyway; public service, and a commitment to it, are the key points.

Second, the reward clinic students receive is notably modest. Most strikingly, as a colleague pointed out to me, clinic students have to pay to get it -- because clinic courses are part of the very expensive law school education they are paying for. Moreover, students who choose to take clinics generally must forego taking equivalent numbers of credits of other courses (though to be sure some of them may be eager to make this trade-off). The paradigm case of pro bono work is work for a good cause without remuneration; typical clinic students fit all of that plus they pay out of pocket (or from loan indebtedness) for the privilege. Their work is, in this sense, the most pro bono of all.

It's worth adding, as others have pointed out, that the 50-hour requirement will fall on a group -- new law graduates -- who are already very stretched economically. We ought to avoid adding further economic burdens if we can, and one way to do that is to let students earn their pro bono hours as part of the law school study they are already paying for.

Third (and the points in this paragraph are ones others emphasized), a central purpose of most clinics is to provide effective representation to people who cannot afford to hire a lawyer. To do this is not easy; clinical teaching and learning are intense. To disregard the contribution this work makes to meeting the needs of underserved people -- to, literally, not count it -- seems to miss the value of this work towards meeting the pro bono program's goals.

Or the impact may be worse than that: not counting clinical work may actually hurt the overall pro bono effort law students make. If students cannot count their clinical work towards their pro bono requirement, presumably the result will be to discourage students, to some degree, from allocating their scarce time toward clinics -- and to push them, to that same degree, into forms of pro bono work that are not so carefully structured and guided.

In short, "pure" pro bono should not be our touchstone: pro bono work purer than clinic students' work does not often exist, and seeking it may undercut our achievement of the real goals at issue: helping underserved people, and encouraging future lawyers to commit themselves to providing such help in the many years of their legal careers.

All of this doesn't answer all the definitional questions. In making this argument, I've meant to use  the term "clinic" broadly, to include not only the classic "live-client clinic" taught at the law school by full-time faculty, but also other experiential learning such as "externship" placements in outside law offices, and other forms of guided law-related experience as well. There are many in-house clinics, externships and related programs, and it's possible that some of them -- not many -- do not involve public service work but instead involve students doing the tasks of private practice. If so, this work may not be "pro bono" (which is not a critique of its educational value). There may be other such lines to be drawn, and certainly insight to be gained from those who've focused on such issues over many years. My point is only to advocate one part of the answer to the problem of definition -- namely, that students' work in clinics, broadly understood, should count as pro bono hours.

Just how good is empathy after all?

Is empathy a good thing in judges? I would say that the answer is yes -- but that's not because it always leads judges to wise decisions, or specifically to liberal ones. If there were any doubt about these qualifications, here's the penultimate paragraph from Justice Scalia's opinion in Arizona v. United States, decided by the Supreme Court on June 25, 2012 (and available here). He writes:

        As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country's illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona's estimated 400,000 illegal immigrants--including not just children but men and women under 30 -- are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

This is the language of empathy, here directed to Arizona citizens' feel[ing] that they are "under siege by large numbers of illegal immigrants." While Justice Scalia asserts that the human realities he portrays so forcefully are not "the proper object of our attention," it is hard not to sense that in fact those realities do occupy some part of his attention. Advocates of empathy in judging would not complain of this, though apparently Justice Scalia himself might. But the familiar point that Justice Scalia's words vividly illustrate is that the impact of empathy on judicial decisions depends on who the judge empathizes with.

Even those who see empathy as a legitimate, or integral, part of judging likely agree that there is a point at which a judge's empathy obscures his or her judgment. Was that true here? It is clear that Justice Scalia is very angry about the majority's decision; he ends his opinion by saying that if Arizona can't do what it was trying to do in this case (which he describes as "securing its terrritory" and "protect[ing] its sovereignty"), then "we should cease referring to it as a sovereign State." He also refers at some length, both in the passage I've quoted above and earlier, to the President's decision not to enforce the immigration laws against a class of people who came to this country when they were under 16 (and, the point Scalia refers to in the quotation above, are not yet over 30 years old) -- a decision that was not directly at issue in the case and that was made, as Justice Scalia notes, after the case was argued to the Supreme Court. I am not sure how to measure whether any of this reflects too much feeling on Justice Scalia's part, and I'm pretty confident we could find similarly outspoken comments in the opinions of some of the great liberal justices of the past.

But in saying I'm not sure about this, I don't mean to dismiss the question. It seems to me that those (like me) who do approve of empathy in judging need to find a way to discuss, and then if possible measure, when empathy does distort judgment. Is the issue simply a matter of quantity -- too much of a good thing? Or is the quantity of empathy important only in the context of the structure of the rest of the empathetic judge's character -- so that some judges can be thoughtful and empathetic, while others can only manage one or the other? Or are there forms of empathy that support judgment and others that interfere with it? All these and no doubt other questions arise, and call out for answers, once we acknowledge (correctly) that judging isn't simply an exercise in objective reasoning.

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.

Affordable Care Act, Part III: When is a "penalty" actually a "tax"?

Is the “penalty” that people who fail to get health insurance must pay under the Affordable Care Act actually a “tax”?

Oddly enough, the Supreme Court’s answer is not that the Act did in fact create such a tax, but only that it is “fairly possible” to interpret the Act that way. Poor Mitt Romney – it’s easy to see how he could get confused, since the justices are in such disarray on the point too. Four of them (the “joint dissenters,” Scalia, Kennedy, Thomas and Alito) insist that the Act’s penalty is not a tax. Chief Justice Roberts, meanwhile, says that “[t]he most straightforward reading of the mandate is that it commands individuals to purchase insurance” (opinion at 31) – or in other words that it is a regulation of behavior, to be judged under the Commerce Clause’s authorization of the regulation of interstate commerce, and (for Roberts plus the joint dissenters) found invalid on that score.

But Roberts goes on to explore whether the law can reasonably be read instead as imposing a tax. As to this possibility, he tells us that “[t]he question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.” (32). This inquiry is based on a longstanding principle of statutory interpretation, the “canon of constitutional avoidance,” which essentially tells courts that to avoid the risk of holding a federal statute unconstitutional, they should find a way, if one is “fairly possible,” to interpret the statute that avoids the reading – even if it was the more natural reading – that posed serious constitutional problems. Ultimately Roberts says (for himself alone) that the statute can be read this way, “[g]ranting the Act the full measure of deference owed to federal statutes” (id.), and the four liberals concur in the argument he then develops to justify this conclusion (33-44). In the course of that argument, Roberts observes that “[w]e see no insurmountable obstacle” to the interpretation being defended – hardly a vigorous declaration that it is in fact the most plausible reading! (38) So actually no one seems to think the likeliest reading of the law is as a tax.

For fans of statutory interpretation (such as me), this decision is an important instance of how much difference this form of legal reasoning can make. It is fair to say that Roberts has to work to find a way to read the law this way. After all, as he points out, the statute “states that individuals ‘shall’ maintain health insurance” (id.), language which certainly sounds like a mandate of behavior or, in other words, a regulation, with the breach of the regulation punished by a “penalty,” another word from the statute itself. In fact, the dissenters point out that the word “penalty” is used to describe this payment eighteen times in the law. (Joint dissent at 21.) They also cite repeated instances of the statute referring to the “requirement” of purchasing insurance. (Id. at 19.)

Moreover, and quite remarkably, the question of whether this payment was a “penalty” or a “tax” comes up twice in the case. The very first issue in the case is whether the Court can hear the case at all, given the existence of another statute called the Anti-Injunction Act, 26 U.S.C. § 7421(a), which forbids suits to challenge taxes before they are paid. The majority position ultimately is that for purposes of this statute, the payment is not a tax, but that for purposes of assessing its constitutionality, it is. The dissent says that this result “carries verbal wizardry too far, deep into the forbidden land of the sophists.” (Joint dissent at 28.)

How does Justice Roberts manage this? The answer is that the Anti-Injunction Act is simply another statute (rather than part of the Constitution); so long as doing so doesn’t somehow violate the Constitution, Congress can define terms in statutes any way it wants. If it doesn’t want the Affordable Care Act payment to count as a tax for purposes of the Anti-Injunction Act, that’s entirely Congress’ call. So here the majority is persuaded that Congress in the Affordable Care Act made clear that the “penalty” was not meant to count as a “tax” under the Anti-Injunction Act. (Roberts at 11-15.)

But for purposes of judging the constitutionality of the statute, the question of whether the payment is a “tax” is not entirely in Congress’ hands. For purposes of the Constitution, Chief Justice Roberts and the four liberals who join him on this point declare (and maintain that precedent supports them), Congress’ “choice of label” is not controlling. (Roberts at 33) Something may be a tax even though Congress called it a penalty, Roberts writes (34-35); and he adds, quoting an earlier case, that “the ‘question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.’” (39) But the fact that Congress’ labels aren’t controlling just means it’s possible that something labeled a “penalty” could be something else; we still need affirmative reasons for concluding that it is something else. What are those reasons?

One reason has to do with the definition of a penalty. Roberts writes that it is a central feature of “penalties” that they “‘mean punishment for an unlawful act or omission’” (37), and so in determining whether the required payment is a tax or a penalty it becomes important to determine whether the failure to buy health insurance (which triggers the duty to pay) is or isn’t unlawful. In other words, is the “individual mandate” not actually a “mandate” at all? Apparently that is indeed the case. As Roberts puts it (id.), “[w]hile the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful.” Instead, it appears that “if someone chooses to pay rather than obtain health insurance they have fully complied with the law.” (As one of my sons pointed out to me, on this reading of the law the "penalty" for not buying health insurance is the equivalent of the baseball "luxury tax," the payment individual baseball teams must make to Major League Baseball when their payrolls grow too extravagant.) Congress, Roberts rather cogently points out, likely “did not think it was creating four million outlaws” (38) – the number of people predicted to choose to pay the penalty rather than buy insurance. (37)

(Here I have to add an aside on an odd feature of the case. My impression is that normally the canon of constitutional avoidance is brought to bear to determine what a statute commands or forbids. Here, the immediate question before the Court with respect to the penalty or tax payment is not what the statute directs people to do or not do as what to call those directions. People must pay money to the government if they do not buy health insurance, and nothing in the Court’s decision changes that. All that happens is that the Court determines that these payments can be interpreted as “taxes” for purposes of the Constitution. But when the Court bolsters that conclusion by arguing that the statute does not actually mandate that people purchase health insurance, it does affect the meaning of the statute in a somewhat concrete way. We now know that those who do not buy health insurance are not lawbreakers. If the duty to buy health insurance was a legal mandate, then failure to comply would have been a violation of the law – and it’s of some importance to people to know that they are, or are not, “lawbreakers.” But one last odd feature: though Roberts seems to view the question of whether it is lawful not to buy health insurance as an important point, he discusses it in somewhat tentative language. For instance, he writes, referring to the large number of people who it is predicted will pay the tax rather than buy health insurance: “That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws.” (37-38) I think one can rely on this case as firm legal authority for the proposition that those who don’t purchase health insurance are not lawbreakers – but the Court’s language on the point is a shade short of absolute. )

Roberts is able to invoke several other arguments (not all of which I’ll retrace here) to support his conclusion that the payment is actually a tax. For one thing, the “penalty” – which does have one other statutory name, the “shared responsibility payment” (33) – is collected through the income tax system. Interestingly, the IRS is barred from using its heaviest enforcement weapons, such as criminal prosecution, to collect it. (7-8) For another, the penalty is predicted to generate quite a lot of money, $4 billion by 2017, as taxes are supposed to. (33) Moreover, the penalty amount is decidedly less than the cost the penalized person would have incurred in purchasing the insurance – suggesting that it’s not much of a penalty, and therefore that it can be read as not being a penalty in the first place. (35) As already mentioned, “it is estimated that four million people each year will choose to pay the IRS rather than buy insurance.” (37) Roberts acknowledges that this tax is certainly meant to affect behavior (that is, to encourage people to buy health insurance), but “taxes that seek to influence conduct are nothing new” (36). At some point, a tax can be so punitive that it can’t any longer be upheld as a tax, but Roberts is confident that this tax doesn’t cross that line (43) – and the large number of people who apparently are prepared to pay the penalty (oops, the tax) seems to support that conclusion. (43)  

To all of this the joint dissenters respond emphatically. They write that (joint dissent at 18):

[W]e have never held – never – that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power – even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.

And, they say, this payment is “unquestionably” “imposed for violation of the law. Citing the statute’s many references to the “requirement” of purchasing insurance and the “penalty” for not doing so, they write (at 21):

[W]e have never – never – treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.”

These “never’s” may be overstated, by the way. Roberts emphasizes one case “in particular” that did interpret a payment, labeled by statute as a “penalty,” to actually be a “tax.” That earlier decision was not about the constitutional character of the payment but rather about its status under the bankruptcy statute – but it’s not clear why Congress’ label could be overridden for purposes of another statute but not for purposes of understanding the nature of the payment under the Constitution. (Roberts at 35 n.7; the joint dissenters respond in their opinion at 17 n.5.)

In any event, based on precedent and other considerations, the dissenters conclude that “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” (Joint dissent at 24.) Judicial legislation is always problematic in our system, but here the dissenters see two special concerns as well. First, the last thing courts should be doing is imposing taxes, a matter of special democratic concern. Second, once the penalty is construed as a tax, a new constitutional problem has to be addressed – the constitution’s requirement in Art. I, § 9, cl. 4, that “direct taxes” be (as the dissenters put it) “apportioned among the States according to their population.” (25) This requirement blocked the institution of the federal income tax until the 16th amendment was passed to remove the barrier, but it remains part of the Constitution, and while it wouldn’t apply to income taxes, it could conceivably apply to this tax. To figure out what the impact of the “direct tax” provision would be, the dissenters say, is no easy matter, and that’s another reason not to adopt an interpretation of the statute that requires resolving this additional constitutional problem. In fact, the government didn’t even discuss the question in its opening brief – a further sign, the dissenters suggest, of how far anyone was from really believing this statute could be read as a tax law. (25-26) (The majority, however, is undaunted and concludes that this tax isn’t a direct tax. (Roberts at 40-41.))  

Are the dissenters right? Does the Supreme Court’s upholding of the Individual Mandate rest on a judicial rewrite of the statute? My impression is that the answer is – just barely – no. It’s clear that Congress meant to present the country with something called a “requirement” (to buy health insurance), supported by something called a “penalty” for failure to do so. Congress, in other words, “framed” the law as a mandate backed up by punishment. But the punishment is too mild – it’s cheaper to disobey this law than to obey it. And it is at least unclear that Congress meant to turn the millions of anticipated non-purchasers of health insurance into lawbreakers – rather than tax-owers. Perhaps the weakness of the penalty and the ambiguity surrounding the status of non-purchasers reflect how controversial the law was; the legislators barely passed the statute, and when they did so they passed a soft version. But that ambivalence marks the space within which more than one interpretation of what Congress had done became “fairly possible.”

Even so, Roberts himself seems only just persuaded. The gossip about his having switched sides at the last moment would confirm this, but I mean to emphasize more the hesitation in the words he wrote on behalf of himself and the four liberals. They find “no insurmountable obstacle” to their decision. Roberts, for himself, says he reaches the decision “[g]ranting the Act the full measure of deference owed to federal statutes.” The canon of constitutional avoidance is a quite venerable technique of statutory interpretation, and is sometimes employed quite dramatically, but I suspect that this is one of the more aggressive acts of interpretive avoidance on record.

And what justifies that? Roberts’ answer, which I’ve quoted already a couple of times, is that he is “[g]ranting the Act the full measure of deference owed to federal statutes.” One translation of that phrase is that he is deftly avoiding a confrontation with the President and potential injury to the Supreme Court’s standing in the country – a legitimate concern for the justices, as I’ve already argued in my first post on this case. But as a matter of legal argument, Roberts is harking back to an old presumption, perhaps not so much acknowledged in recent decades, that federal statutes are constitutional. He writes, quoting a case from the 1880s, that “‘Proper respect for a co-ordinate branch of the government’ requires that we strike down an Act of Congress only if ‘the lack of constitutional authority to pass [the] Act in question is clearly demonstrated.’” (Roberts at 6, writing only for himself). This presumption is certainly rebuttable, but it rests on an important premise – namely that members of Congress and the President, who together make our statutes, are acting with fidelity to the Constitution. Maybe not, of course, but as a starting principle I think this idea has a lot to recommend it. If that is one’s starting point, then it makes sense to look, and even to look hard, for ways to square what Congress and the President have done with the Constitution’s commands. If the price of upholding their work is to reread it, even dramatically, that is a lesser price than would be overturning it.

It’s certainly possible to argue that the canon of constitutional avoidance, employed this way, is actually an abuse of judicial authority. That’s roughly what the joint dissenters would say in this very case. Sometimes that may be so. But I think its use here, to preserve what Congress and the President did while still laying out new constitutional ground rules for the future, was justified, and wise.

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.

Why did Chief Justice Roberts vote to affirm (most of) the Affordable Care Act?

A first reaction to the Supreme Court’s Affordable Care Act decision (National Federation of Independent Business v. Sebelius, decided June 28, 2012, and available at the Supreme Court's website):

Few people thought Chief Justice Roberts would supply the fifth vote to keep President Obama’s health care law on the books. What should we make of the fact that he did?

One possibility is, of course, that he simply voted his convictions about the important issues of constitutional law the case presented. He is committed, then, to finding limits on Congress’ power under the constitution's commerce clause and spending clause (and on the spending clause issue he does cut back on what the statute can do), but still he accepts that Congress’ authority under the tax power is very broad. He also  honors in full the rule of statutory interpretation that says statutes should be interpreted, if fairly possible, so as to be constitutional rather than unconstitutional -- which in this case meant to discern that the law’s “penalty” for those who don’t purchase insurance was not a regulation, which would have been beyond Congress’ power under the commerce clause, but a tax, which was within Congress’ power to tax.

I have no ground for doubting that these are in fact Chief Justice Roberts’ beliefs. But suppose for a moment that they weren’t. Suppose that what actually happened was not that he voted his beliefs but that he came to the conclusion that for the Supreme Court to overturn the Affordable Care Act would deal a damaging blow to the Court itself by calling its reputation for impartial, nonpolitical judgment even more into question than is already the case. So, while carefully laying out his views on the Commerce and Spending Clauses, he found a way to extricate the Court from the logic of those conservative principles – through the convenient medium of a flexible use of statutory interpretation to turn the law into something it might not have been (and something which could be held constitutional after all).

Did he do this? I don’t know, and I don’t know that the interesting speculation about the possibility that Roberts changed his mind late in the game helps us to decide why he did so. If he changed course late, he could have done so either because of legal argument or political calculation.

But let’s assume that it was the latter. Was that bad? That is, was Roberts wrong to consider the institutional position of the Court when he decided how to vote? I would say not. I think that there are issues of fundamental human rights on which judges must say, “Fiat justitia et ruat caelum.” (I’ve been waiting since my high school Latin classes for a chance to use those words, which roughly mean “Let justice be done and the heavens fall” – although even judges today probably would put the point in English!) But the job of the Supreme Court is not only to do justice in individual cases, but also to build the law of the land over time, and actually for both of those tasks the Court must retain the trust of the people at least to a substantial extent. The Court has no army, as has been pointed out many, many times. Its ability to enforce its judgments depends on the cooperation of the other branches of government and on the people. So if Roberts felt that he should lay out constitutional principles but find a way not to apply them so as to overturn the central legislation of the Obama presidency, he was acting in a tradition that goes back at least to Chief Justice Marshall in Marbury v. Madison in 1803 – a decision that established the power of the courts to hold federal statutes unconstitutional and by doing so actually avoided a much graver confrontation with the Jefferson Administration.

But isn’t this just a form of stealth jurisprudence, a device to further Roberts’ long-term goal of shifting the law to the right while escaping sharp public scrutiny for what is subtly underway? Maybe. That’s a good reason to criticize Roberts’ views, if they deserve criticism (and I think many of them do). But I don’t think that it’s wrong in principle for judges to seek to change the interpretation of the constitution – they may be right or wrong in their interpretations, but the fact that they’re changing past interpretations isn’t what makes them either right or wrong. It’s just not possible to say that our constitutional law is or should be fixed and changeless (even if some of the current conservatives assert its supposed unchanging, original meaning as their basis for overturning what they see as the mistakes of recent decades). The law will change.

What stops legal change from being political change pure and simple isn’t easy to define (and some people may believe there really is no distinction). But I think part of what makes law something other than politics is that it proceeds, usually (there are important and valuable exceptions), in a deliberate and incremental way. If Roberts’ views continue to command support, there will for sure be more laws overturned in the future – but it is important that we come to that point along a path that gives weight to contrary convictions, that shifts slowly rather than avulsively from past decisions, and that gives us all more time to take stock. All of that will give us more reason to believe that we are in fact observing (to use a distinction Alexander Hamilton affirmed in The Federalist Papers) the application of judges’ “judgment” rather than merely their “will.” 

So: if Roberts was acting on the basis of institutional calculation as well as legal principle, was he engaged in manipulation or statesmanship? I'd pick the latter. But in a way the question isn't a good one, because in this context there is no absolute line between these two. Here, as perhaps in many other situations as well, some measure of calculation is an integral part of wisdom.