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Saturday, September 19, 2020

A Tribute to Justice Ginsburg

 As I began thinking last night and today about the death of Justice Ruth Bader Ginsburg, I thought of the opinion which, for me, represented her finest hour: her dissenting opinion in the first case challenging the Affordable Care Act in 2012.  Justice Roberts, writing for a 5-4 majority, argued that the act was not a valid exercise of the federal power to regulate interstate commerce, although he upheld the individual mandate as an exercise of the taxing power.  In so doing, he repudiated approximately 75 years of jurisprudence and attempted to return to the dogma of the late nineteenth and early twentieth centuries.  I have decided to repeat that post, with some editing, as an example of her jurisprudence at its best--and of the approach of the Silent generation, of which Justice Breyer is now the only representative on the court.  Sadly, my final paragraph has turned out to be much too optimistic.  We shall all miss Justice Ginsburg.

Here it is, without quotation marks.

The decision upholding the Affordable Care Act was  a welcome exercise of judicial restraint. More importantly, it made the President's re-election, in my opinion, far more likely, because the overruling of the law would have definitely branded his administration as a failure. He still has a long way to go, but the analyses at fivethirtyeight.com suggest that the odds are in his favor, and this will help. But at the same time the decision's logic represents yet another huge step backward for America and another symptom of the intellectual degradation of what passes, nowadays, for "conservatism." It also illustrates one of my favorite points:the extent to which my own Boom generation has undone the political and intellectual achievements of our forbears in favor of its own prejudices. To make this point, I would like to quote at some length from key portions of the opinion of Justice Roberts, now the most powerful Boomer in the country, and of Justice Ginsburg, arguing, respectively, that the Health Care act's mandate was not, or was, a valid exercise of Congressional power.

Roberts and Ginsburg agree that there is a market for health care in this country, which in theory makes the industry a proper target of regulation under the commerce clause. I have argued earlier here that that is our real problem: we the only major industrial nation that treats health care as a commodity and a source of profit, and that's why our system is in the mess that it is. But however we feel about this, it is nonetheless a fact. The critical question upon which the controversy turned, and upon which Roberts carried the day against Ginsburg, Breyer, Sotomayor and Kagan, is how to understand individual participation in that market. Here are key passages from each of their opinions, beginning with Roberts. As you probably know, he claimed that people who chose not to buy health insurance could not be subject to regulation because they were not engaged in any commercial activity. Here is the crux of his argument.

To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers. Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 673 (1980) (Rehnquist, J., concurring in judgment). As we have explained, “the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was to take.” South Carolina v. United States, 199 U. S. 437, 449 (1905). The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.

The Government sees things differently. It argues that because sickness and injury are unpredictable but unavoidable, “the uninsured as a class are active in the market for health care, which they regularly seek and obtain.”Brief for United States 50. The individual mandate “merely regulates how individuals finance and pay for that active participation—requiring that they do so through insurance, rather than through attempted self-insurance with the back-stop of shifting costs to others.” Ibid. The Government repeats the phrase “active in the market for health care” throughout its brief, see id., at 7, 18, 34, 50, but that concept has no constitutional significance.An individual who bought a car two years ago and may buy another in the future is not “active in the car market”in any pertinent sense. The phrase “active in the market”cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s effort to “regulate the uninsured as a class.” Id., at 42. Our precedents recognize Congress’s power to regulate “class[es] of activities,” Gonzales v. Raich, 545 U. S. 1, 17 (2005) (emphasis added), not classes of individuals, apart from any activity in which they are engaged, see, e.g., Perez, 402 U. S., at 153 (“Petitioner is clearly a member of the class which engages in‘extortionate credit transactions’ . . .” (emphasis deleted)).

The individual mandate’s regulation of the uninsured as a class is, in fact, particularly divorced from any link to existing commercial activity. The mandate primarily affects healthy, often young adults who are less likely toneed significant health care and have other priorities for spending their money. It is precisely because these individuals, as an actuarial class, incur relatively low healthcare costs that the mandate helps counter the effect of forcing insurance companies to cover others who impose greater costs than their premiums are allowed to reflect.See 42 U. S. C. §18091(2)(I) (recognizing that the mandate would “broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums”). If the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature.

Now compare Justice Ginsburg, who took a broader view of what participation in the health care market means.

In enacting the Patient Protection and Affordable Care Act (ACA), Congress comprehensively reformed the national market for health-care products and services.By any measure, that market is immense. Collectively,Americans spent $2.5 trillion on health care in 2009, accounting for 17.6% of our Nation’s economy. 42 U. S. C. §18091(2)(B) (2006 ed., Supp. IV). Within the next decade, it is anticipated, spending on health care will nearly double. Ibid.

The health-care market’s size is not its only distinctive feature. Unlike the market for almost any other product or service, the market for medical care is one in which all individuals inevitably participate. Virtually every person residing in the United States, sooner or later, will visit a doctor or other health-care professional. See Dept. of Health and Human Services, National Center for Health Statistics, Summary Health Statistics for U. S. Adults: National Health Interview Survey 2009, Ser. 10, No. 249, p. 124, Table 37 (Dec. 2010) (Over 99.5% of adults above 65 have visited a health-care professional.). Most people will do so repeatedly. See id., at 115, Table 34 (In 2009 alone, 64% of adults made two or more visits to a doctor’s office.).

When individuals make those visits, they face another reality of the current market for medical care: its high cost. In 2010, on average, an individual in the United States incurred over $7,000 in health-care expenses. Dept. of Health and Human Services, Centers for Medicare and Medicaid Services, Historic National Health Expenditure Data, National Health Expenditures: Selected Calendar Years 1960–2010 (Table 1). Over a lifetime, costs mount to hundreds of thousands of dollars. See Alemayahu & Warner, The Lifetime Distribution of Health Care Costs, in 39 Health Service Research 627, 635 (June 2004). When a person requires non-routine care, the cost will generally exceed what he or she can afford to pay. A single hospital stay, for instance, typically costs upwards of $10,000. See Dept. of Health and Human Services, Office of Health Policy, ASPE Research Brief: The Value of Health Insurance 5 (May 2011). Treatments for many serious, though not uncommon, conditions similarly cost a substantial sum. Brief for Economic Scholars as Amici Curiae in No. 11–398, p. 10 (citing a study indicating that, in 1998, the cost of treating a heart attack for the first 90 days exceeded $20,000, while the annual cost of treating certain cancers was more than $50,000).

Although every U. S. domiciliary will incur significant medical expenses during his or her lifetime, the time when care will be needed is often unpredictable. An accident, a heart attack, or a cancer diagnosis commonly occurs without warning. Inescapably, we are all at peril of needing medical care without a moment’s notice. See, e.g., Campbell, Down the Insurance Rabbit Hole, N. Y. Times, Apr. 5,2012, p. A23 (telling of an uninsured 32-year-old woman who, healthy one day, became a quadriplegic the next due to an auto accident).

To manage the risks associated with medical care— its high cost, its unpredictability, and its inevitability—most people in the United States obtain health insurance. Many (approximately 170 million in 2009) are insured by private insurance companies. Others, including those over 65 and certain poor and disabled persons, rely on government-funded insurance programs, notably Medicare and Medicaid. Combined, private health insurers and State and Federal Governments finance almost 85% of the medical care administered to U. S. residents. See Congressional Budget Office, CBO’s 2011 Long-Term Budget Outlook 37 (June 2011).

Not all U. S. residents, however, have health insurance. In 2009, approximately 50 million people were uninsured,either by choice or, more likely, because they could not afford private insurance and did not qualify for government aid. See Dept. of Commerce, Census Bureau, C.DeNavas-Walt, B. Proctor, & J. Smith, Income, Poverty,and Health Insurance Coverage in the United States: 2009, p. 23, Table 8 (Sept. 2010). As a group, uninsured individuals annually consume more than $100 billion in health- care services, nearly 5% of the Nation’s total. Hidden Health Tax: Americans Pay a Premium 2 (2009), avail- able at http://www.familiesusa.org (all Internet material as visited June 25, 2012, and included in Clerk of Court’s case file). Over 60% of those without insurance visit a doctor’s office or emergency room in a given year.See Dept. of Health and Human Services, National Center for Health Statistics, Health—United States—2010, p. 282, Table 79 (Feb. 2011).

The large number of individuals without health insurance, Congress found, heavily burdens the national health-care market. See 42 U. S. C. §18091(2). As just noted, the cost of emergency care or treatment for a serious illness generally exceeds what an individual can afford to pay on her own. Unlike markets for most products, however, the inability to pay for care does not mean that an uninsured individual will receive no care. Federal and state law, as well as professional obligations and embedded social norms, require hospitals and physicians to provide care when it is most needed, regardless of the patient’s ability to pay. See, e.g., 42 U. S. C. §1395dd; Fla.Stat. §395.1041(3)(f) (2010); Tex. Health & Safety Code 6 NATIONAL FEDERATION OF INDEPENDENT Ann. §§311.022(a) and (b) (West 2010); American Medical Association, Council on Ethical and Judicial Affairs, Code of Medical Ethics, Current Opinions: Opinion 8.11—Neglect of Patient, p. 70 (1998–1999 ed.).  As a consequence, medical-care providers deliver significant amounts of care to the uninsured for which the providers receive no payment. In 2008, for example, hospitals, physicians, and other health-care professionals received no compensation for $43 billion worth of the $116billion in care they administered to those without insurance. 42 U. S. C. §18091(2)(F) (2006 ed., Supp. IV).

Health-care providers do not absorb these bad debts.  Instead, they raise their prices, passing along the cost of uncompensated care to those who do pay reliably: the government and private insurance companies. In response, private insurers increase their premiums, shifting the cost of the elevated bills from providers onto those who carry insurance. The net result: Those with health insurance subsidize the medical care of those without it. As economists would describe what happens, the uninsured “free ride” on those who pay for health insurance.

The size of this subsidy is considerable. Congress found that the cost-shifting just described “increases family[insurance] premiums by on average over $1,000 a year.” Ibid. Higher premiums, in turn, render health insurance less affordable, forcing more people to go without insurance and leading to further cost-shifting.

And it is hardly just the currently sick or injured amongthe uninsured who prompt elevation of the price of health care and health insurance. Insurance companies and health-care providers know that some percentage of healthy, uninsured people will suffer sickness or injury each year and will receive medical care despite their inability to pay. In anticipation of this uncompensated care, health-care companies raise their prices, and insurers their premiums. In other words, because any uninsured person may need medical care at any moment and because health-care companies must account for that risk, every uninsured person impacts the market price of medical care and medical insurance.

"The distinction between doing something and doing nothing," Roberts wrote, "would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers." Yet who could possibly read the two excerpts above without concluding that Roberts is speaking as a metaphysical philosopher entranced by the beauty of free markets and individual choices, whereas Ginsburg, and the government briefs which she often cites, are exhibiting the essence of practical statesmanship? Who can seriously contest any of her facts? Health care is a market in which we are all destined to participate, and which 99% of us can pay for, in serious cases, only with insurance. If we don't have it, other participants in the market will pay. Putting an end to this situation is the essence of practical statesmanship, and federal legislation is, for reasons she makes very clear, the only way to do it.

Other passages from Ginsburg's opinion echo some of the points I've made here, even in my last post. She makes it clear that there is ample Constitutional and legal precedent for measures like the Act. She also quotes Alexander Hamilton to the effect that one could not possibly define the powers of the federal government based upon its functions at the time it was created, since they would inevitably change to meet future contingencies that could not be anticipated--a critical corrective to the current obsession with "original intent." “'[W]here we find that the legislators . . . have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.' Katzenbach, 379 U. S., at 303–304. Congress’ enactment of the minimum coverage provision, which addresses a specific interstate problem in a practical, experience-informed manner, easily meets this criterion." She deals succinctly with Roberts's attempt to argue that the powers claimed by the government would allow it to force consumers to purchase cars or broccoli. "Maintaining that the uninsured are not active in the health-care market, THE CHIEF JUSTICE draws an analogy to the car market. An individual “is not ‘active in the car market,’” THE CHIEF JUSTICE observes, simply because he or she may someday buy a car. Ante, at 25. The analogy is inapt. The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price."

Justice Ginsburg does not mince words regarding the place of Roberts's doctrine in the history of the Court: is is a clear repudiation of a century of precedent and a return to Gilded-age jurisprudence. "This Court’s former endeavors to impose categorical limits on the commerce power have not fared well. In several pre-New Deal cases, the Court attempted to cabin Congress’ Commerce Clause authority by distinguishing “commerce” from activity once conceived to be noncommercial, notably, “production,” “mining,” and “manufacturing.” See, e.g., United States v. E. C. Knight Co., 156 U. S. 1, 12 (1895) (“Commerce succeeds to manufacture, and is not a part of it.”); Carter v. Carter Coal Co., 298 U. S. 238, 304 (1936) (“Mining brings the subject matter of commerce into existence. Commerce disposes of it.”). The Court also sought to distinguish activities having a “direct” effect on interstate commerce, and for that reason, subject to federal regulation, from those having only an “indirect” effect, and therefore not amenable tofederal control. See, e.g., A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 548 (1935) (“[T]he dis- tinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one.”).

These line-drawing exercises were untenable, and the Court long ago abandoned them. “[Q]uestions of the power of Congress [under the Commerce Clause],” we held in Wickard, “are not to be decided by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon interstate commerce.” 317 U. S., at 120. See also Morrison, 529 U. S., at 641–644 (Souter, J., dissenting) (recounting the Court’s “nearly disastrous experiment” with formalistic limits on Congress’ commerce power). Failing to learn from this history, THE CHIEF JUSTICE plows ahead with his formalistic distinction between those who are “active in commerce,” ante, at 20, and those who are not.

Returning once again to a principle enunciated by Justice Story, Justice Ginsburg makes it quite clear that ample reasons exist to distinguish a health care mandate from mandates against personal behavior, and then, like Story, gets to the heart of the matter. "Supplementing these legal restraints is a formidable check on congressional power: the democratic process. See Raich, 545 U. S., at 33; Wickard, 317 U. S., at 120 (repeating Chief Justice Marshall’s 'warning that effective restraints on [the commerce power’s] exercise must proceed from political rather than judicial processes' (citing Gibbons v. Ogden, 9 Wheat. 1, 197 (1824)). As the controversy surrounding the passage of the Affordable Care Act attests, purchase mandates are likely to engender political resistance. This prospect is borne out by the behavior of state legislators. Despite their possession of unquestioned authority to impose mandates, state governments have rarely done so. See Hall, Commerce Clause Challenges to Health Care Reform, 159 U. Pa. L. Rev. 1825, 1838 (2011).

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically,would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”). But see, e.g., post, at 3 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) (asserting, outlandishly, that if the minimum coverage provision is sustained, then Congress could make “breathing in and out the basis for federal prescription”).

Justice Ginsburg, who attended both Harvard and Columbia Law Schools and made both their Law Reviews long before the days of affirmative action and began her career in the days of the Warren Court, has written a brilliant defense of the jurisprudence of the first two thirds of the twentieth century. But  she lost the argument within the court, and the Boomers on the court voted against her by a margin of 3-2 (Roberts, Alito and Thomas against Kagan and Sotomayor.) She is, sadly, the least healthy of the nine justices, and should Mitt Romney win election her replacement will very likely be a Republican conservative. In that case little or nothing will stand in the way of the unraveling of the Progressive Era and the New Deal through the courts.

When I heard the news of the opinion I was elated because I hoped that it might mean the end of extremist Republican dau tranh (see earlier post) at all levels of government. Were Obama re-elected and were the implementation of the law to proceed, we might have a reasonable consensus on where the country is. We would still be bidding farewell to the days of the New Deal for the foreseeable future and we would still have huge structural economic problems, but perhaps a calmer tone might begin to prevail. Having read the opinions, I'm afraid I was too optimistic. Republican governors are pledging to fight the law. Republican legislators are dreaming of repealing the mandate through reconciliation, if they win majorities in both houses, because Roberts defined the penalty as a tax. (For the record, he did not define the mandate itself as a tax.) The struggle, for the moment, goes on, but the battle has not been lost, as it might well have been had Justice Roberts decided to side, as he usually does, with the three conservatives and Justice Kennedy.


Bozon said...


Thanks for this post.

Scholars have argued for generations about dual federalism, and the commerce clause, when it ended, what it meant.

Lodging in Congress authority for regulating commerce meant one thing to founders, or maybe not; let's say that it actually meant many different and inconsistent things even to them, in all probability.

Then it morphed, with the passage of time, into many other kinds of things both unanticipated and unintended.

Congress regulates commerce among states but the President gets to dominate international trade and international commerce agendas, and gets to trade strategic advantages or disadvantages, carrots or sticks, for access to American commercial markets, across and totally ignoring and insulting state commercial or industrial lines.

Does it start to look a little ridiculous yet?

All the best

Ed Ciliberti said...

Aloha Professor,
The logical end of the Roberts' opinion is to legislate an end to the 1986-passed requirement that medical facilities, mainly emergency rooms, treat all comers, regardless of ability to pay. No ticket? No shirt! Cruel? Of course, but today's Trump Republicans and other Ayn Randians should cheer it on.

If the new Supreme Court should kill Obamacare in coming months, (and Democrats hold the presidency, Senate and House, a tongue-in-cheek bill should be put forward in Congress called the "Chief Justice John G. Roberts No Free Rides in Medicine Act" that repeals the 1968 requirement that emergency rooms treat all comers regardless of their ability to pay.

At the same time they should reintroduce the ACA verbatim except to change the language of mandated coverage section to relabel the penalty as a tax to be paid each year for non compliance.

No Aloha!

And, for something more timely...

The next 43 days of the 2020 election season are bound to become a dog-cat-cock fight of unbelievable ferocity over the filling of the Supreme Court seat left vacant by the death of RGB. Trump and McConnell seem bound and determined to push a nomination through the Senate instanter.

Let’s say they do that prior to the election, which they probably have the time and maybe the votes to do so. Let’s say Joe Biden wins the election and the Democrats win the Senate and hold the House. It is foreseeable the Democrats will legislate and pass new a Judiciary Act that chops up the Ninth Circuit (at least), raising the total number of appeal and special circuits from the current 13 to 17 and adding 4 new justices to the court to rebalance the workload. How ‘bout The Democrats offer statehood to DC, to Puerto Rico/Virgin Islands, and to Guam/Northern Mariana Islands? It’s a cinch that the filibuster is a dead thing very quickly. After all, Minority Leader Schumer said “Nothing is off the table!”

One way to avoid all that is for Trump to nominate his candidate and for the Senate to sit on the nomination until the result of the election is known (yeah, easy to say). If Trump wins, move on the nomination immediately. If Biden wins, offer Trump’s nominee a “Thanks for Participating” trophy and close up shop until January.

Of course, the really smart thing is for nobody to do anything about the seat until the winner of the November 3rd election is certain. But, who’s smart these days?

BTW, doesn’t the notion of statehood of Guam (with or without the Northern Marianas) simply sparkle with delicious implications for the Western Pacific?

Ed Ciliberti

(Please ignore my earlier submissions under last week's topic. Xin loi!)