In the latest episode of the Roosevelt Institute's weekly Bloggingheads series, "Fireside Chats," Senior Fellow Mark Schmitt talks to Scott Lemieux of Lawyers, Guns, and Money and The American Prospect about the machinations behind the Supreme Court's recent health care ruling and what challenges lie ahead for the Affordable Care Act. Mark notes that while Republicans have tried to spin the ruling by claiming that they can use reconciliation to repeal the individual mandate if it's a tax, the truth is that they always could have but never will. Echoing his recent post on this subject, he maintains that they have "less than no reason" to repeal the individual mandate as long as insurance companies are lining their pockets.

Mark thinks the recent revelation of Aetna's $7 million donation to conservative groups is significant given that "overall the health insurance industry basically has staked out with the Republican Party," but insurers were forced to work with Democrats during the health care reform negotiations to get a seat at the table. He explains that the conflict for insurers has always been that "they would love to have as many customers as possible, so if you create a mandate, that's a great thing for them," but it also means that they'll have to put up with more regulation as part of an overall reform package. "If it was all regulation, no mandate, they wouldn't want it; if it was all mandate, no regulation, they'd love it; and then there's two acceptable positions. One is the status quo... pre-2010, and then ACA they were basically fine with."

Now that the Supreme Court has upheld the law, Mark notes that the worst outcome for insurers would be that "only the mandate gets struck," since they would get all of the new regulations and none of the new customers. He says that "now that these companies are fully back at the table with Republicans, the Republicans simply are not going to just repeal the mandate. It's just not an option they have with their cash constituents." As for repealing the entire law, he notes that there is plenty of internal division among Republicans about preserving the more popular provisions, like guaranteed issue and the ability for young adults to stay on their parents' insurance plan until age 26. "I think they're really stuck, and I think we should really just draw the line and say, 'Here it is, we have the Affordable Care Act. It's not going anywhere, nobody's repealing it, now it's time to make it work.'"

For much more, including Mark and Scott's take on how the Supreme Court reached its surprising verdict and why it's been leaking like a sieve ever since, watch the full video below:

Roberts's decision to uphold the individual mandate as a tax was based on solid and established legal arguments, but the dissent's justification for throwing the whole law out was pure radicalism.

CHIEF JUSTICE ROBERTS: You're telling me they thought of it as a tax, they defended it on the tax power. Why didn't they say it was a tax?

GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is — in the Internal Revenue Code it is collected by the IRS on April 15th. I don't think this is a situation in which you can say -

 

CHIEF JUSTICE ROBERTS: Well, that's the reason. They thought it might be more effective if they called it a penalty.

 

-Supreme Court arguments, March 27th, 2012 (transcript)

Last week, the Supreme Court found in a 5-4 vote that the individual mandate survives under the taxing power instead of the Commerce Clause. Here is the decision, authored by Chief Justice Roberts. I've noticed two responses from conservatives:

The first is that Roberts, by looking to the taxing power in the Constitution, found something liberals had never argued. Related is the argument that liberals took the constitutionality of the mandate for granted and never built out the framework necessary to argue for it, especially in the form of a tax.

I haven't followed health care closely, but I do try to keep up with Jack Balkin's work, and he's been on the taxing power since forever ago. Here's two amicus briefs (h/t Incidental Economist for the actual brief links, who also gives them "most influential" status) that come from the team of Jack Balkin at Yale Law School and Gillian Metzger and Trevor Morrison at Columbia Law School. Their Fourth Circuit brief covers this (Argument 1: "The minimum coverage free provision is a permissible exercise of Congress's taxing power"), as does the Supreme Court brief (Argument 1: "The minimum coverage provision falls within Congress's expansive tax power and is not an impermissible direct tax").

In "The Lawfulness of Health-Care Reform," Akhil Amar writes that Obamacare "is proper under at least six different theories, each one of which has deep roots in constitutional text and common sense." The very first one? "It is outlandish to think that [Obamacare's] provisions exceed the sweeping power that the Constitution confers upon Congress to 'lay and collect Taxes, Duties, Imposts, and Excises.'" And Andrew Koppelman, in "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," noted that "Even if you somehow suppose that the health care mandate exceeds the commerce power, it would be valid anyway as an exercise of the power to tax," which is now the law of the land. These thinkers are at the forefront of elite liberal legal scholarship, and they all made this argument. It showed up in the oral arguments as well, with Roberts paying particular attention to it, as Brian Beutler of TPM caught at the time.

The second response conservatives have is that Roberts found something Congress never intended. National Review's editors, immediately after the decision, argued that one "distinguishes, though, between construing a law charitably and rewriting it. The latter is what Chief Justice John Roberts has done." The dissent itself argues that "to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it."

But in terms of rewriting a bill and judicial activism, I haven't seem any conservatives deal with the "Christmas Tree" doctrine. Given that the dissenting judges found the mandate and related major parts of the bill unconstitutional, what should they do with the rest of the bill? For instance, what should be done about the student loan reform, a major and obviously constitutional provision that was included with the ACA?

The dissenting judges would overturn it. They'd overturn the entire bill, including the student loan provisions. But why? Here is their logic, from the dissent (my bold):

Such [minor] provisions validate the Senate Majority Leader’s statement, “‘I don’t know if there is a senator that doesn’t have something in this bill that was important to them. . . . [And] if they don’t have something in it important to them, then it doesn’t speak well of them.  That’s what this legislation is all about: It’s the art of compromise.’ ” [Quote from New York Times article.] Often, a minor provision will be the price paid for support of a major provision.  So, if the major provision were unconstitutional, Congress would not have passed the minor one.

 

The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. 

 

When we are confronted with such a so called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own.

Notice how this dissent comes up with an elaborate theory of how and why Congress passed the pieces of the bill they did, rewriting the history of how and why health care reform passed. With no previous case law, they turn to a quote from a New York Times article, of all things, to determine the constitutionality of things like student loan reform.

And this history strikes me as ideologically predicated on a third-rate "Public Choice" criticism, which is that all the minor provisions were "quid pro quo" bribes needed to secure passage. It reads like when Scalia brought up the Cornhusker Kickback during legal arguments. So it isn't derived from case law, or a theory of the courts or the law, but on an ideological, right-wing vision of how political actors behave.

Which is to say that the dissent took a maximal course of rewriting and assuming not only the intent but the counterfactual of congressional action and the ACA, including what it does, why it does it, and how it came to be, in their Christmas Tree doctrine. This is the very definition of judicial activism.

If Roberts was interested in minimizing his activism and rewriting of congressional action, as well as maintaining a baseline of presuming the legitmacy and constitutionality of congressional action, wouldn't he have gone with the liberals instead of the conservative dissent?

Now that CBS News has revealed that Roberts changed his vote from siding with the conservatives to siding with the liberals, everyone is trying to figure out why. I wonder if it is because the dissenters wouldn't back down from their Christmas Tree doctrine and Roberts called foul on its absurdity.

Mike Konczal is a Fellow at the Roosevelt Institute.

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The Obama administration's neglect did not cause this constitutional challenge to the individual mandate. Republican strategy did.

On the eve of the Supreme Court's decision, after numerous lower court opinions and treacherous questioning by conservative justices, the overwhelming consensus in the legal community remains that the requirement in the Affordable Care Act to buy health insurance is unquestionably constitutional. As recently as mid-June, Bloomberg News asked law professors at the nation's top law schools whether they thought there was any question that the Affordable Care Act’s individual mandate requiring the purchase of health insurance was constitutional; 19 of the 21 who responded replied that it was. They were only confirming the opinions of two very conservative appeals court judges, who upheld the provision last year.

But the widespread view that the only reason we have a question before the Supreme Court is their receptivity to right-wing political manipulation of the law was not the story told by the New York Times on Sunday, under the headline, "Supporters Slow to Grasp Health Law's Legal Risks." The Times's Peter Baker faulted the Obama administration and Congressional Democrats for being unprepared for the legal challenge.

Some would view the fact that the Court is seriously debating a question that is so far out of the political mainstream, even among the most respected conservative jurists, as a testament to the groundbreaking work of a small set of conservative lawyers to change jurisprudence. They would compare their work to the careful strategy that led to decisions like the Warren Court's Brown v. Board of Education. I am not so generous. The legal arguments against the individual mandate remain flimsy and there is no comparable history of carefully plotted legal strategy. What has become more solid is the ground that the arguments are being made on, a Supreme Court majority whose magnet is not the Constitution or precedents, but the U.S. Chamber of Commerce.

In drafting what became The Patient Protection and Affordable Care Act, Democrats in Congress and the White House had myriad complex policy and political factors to juggle. The implication that they should have added in the minuscule chance that the mandate would be successfully challenged on its constitutionality is as silly as the opponents' legal arguments.

What might have given the law's drafters pause was the ruling on Citizens United, in which the Court majority dynamited a century of precedent to overturn the ban on corporate campaign contributions. But that decision was handed down in January of 2010, three days after Scott Brown won election to the Senate from Massachusetts, in a seeming repudiation of health care reform, which deprived Democrats of their filibuster-proof majority. At that point, there was neither the time nor the legislative maneuverability to consider changing the structure of the mandate, even if someone had raised their head and said that this Court is capable of doing anything it wants to further the corporate agenda.

In contrast with the Times article, Ezra Klein has a piece in The New Yorker titled "Unpopular Mandate: Why Do Politicians Reverse Their Positions?" Klein points out that the question of the mandate's constitutionality on the right changed when conservative politicians jettisoned their own idea, the mandate, after Obama accepted it. He describes how the Republican message machine legitimized the constitutional challenge once Republican politicians did an about-face.

Two days from now the Court will weigh in. Many of those same law professors surveyed by Bloomberg predict the Court majority will ignore precedent and overturn the mandate. The have reached the same conclusion as many Americans that the Court is driven by politics, not the Constitution. I'm hoping they will be proven wrong, and that the Court will put our founding document and two centuries of precedent before the partisan, corporate agenda. But whatever they decide, I won't blame the fact that the case has gotten this far on Democrats in the White House or Congress.

Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Adviser to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.

The government job losses that are holding the recovery back are directly related to the Republican state legislators who were swept to power in 2010.

Last Friday, both presidential candidates had a back-and-forth over the issue of public sector jobs. President Obama said that the private sector is doing fine but the public sector needs help and is threatening the recovery, and Mitt Romney attacked the idea that "we need more firemen, more policemen, more teachers.”

This has lead to new interest in the decline of public sector workers over the past three years. Two major economists from Yale, Ben Polak and Peter K. Schott, just wrote a post at at Economix titled "America’s Hidden Austerity Program."

Polak and Schott argue that "there is something historically different about this recession and its aftermath: in the past, local government employment has been almost recession-proof. This time it’s not... Without this hidden austerity program, the economy would look very different. If state and local governments had followed the pattern of the previous two recessions, they would have added 1.4 million to 1.9 million jobs and overall unemployment would be 7.0 to 7.3 percent instead of 8.2 percent."

But why is this happening? Polak and Schott:

One possibility is that we are witnessing a secular change in state and local politics, with voters no longer willing to pay for an ever-larger work force. An alternative explanation is that even though many state and local governments are constrained not to run deficits, they can muddle through a standard recession without cutting jobs. But when hit by a huge recession like that of 1981 or the latest one, the usual mix of creative accounting and shifting in capital expenditures cannot absorb the shock, and jobs have to go.

This drop in public-sector workers is well documented, and it is great to get more economists ringing the bell on it. But I think there needs to be more research into how this has happened. As my colleague Bryce Covert notes over at The Nation, "the massive job loss we’ve been experiencing in the public sector is no random coincidence or unfortunate side effect. It is part of an ideological battle waged by ultra conservatives who were swept into power in the 2010 elections."

As we've written before (article, white paper), the 11 states that the Republicans took over during the 2010 midterm elections – Alabama, Indiana, Maine, Michigan, Minnesota, Montana, New Hampshire, North Carolina, Ohio, Pennsylvania, and Wisconsin – account for 40.5 percent of the total losses. By itself, Texas accounts for an additional 31 percent of the total losses. So these 12 states account for over 70 percent of total public sector job losses in 2011. This is even more important because there was a continued decline in public sector workers in 2011 even though the economy was no longer in free fall.

Mike Konczal is a Fellow at the Roosevelt Institute

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