Sunday, July 1, 2012

If it had been otherwise....

I have made no secret of the fact that I approve of Obama's health insurance reform (the ACA), nor that I am happy with the outcome of the case.  But as I've repeated in what was probably already a cliche by the time I was born, the devil is indeed in the details.

Now, I look at the many efforts by the writers of the Volokh Conspiracy to consider the meaning of the decision.  Almost all of them certainly dislike the result and are either surprised or upset at the ruling.  The possible exception is Orin Kerr, who if I'm not mistaken opposes the law on policy grounds, but believed that it was constitutional under existing precedent, even insofar was the mandate be considered a regulation of interstate commerce and not as a tax.

It is possible to adopt a perspective of Schadenfreude.   They "lost," and contributors there are struggling to find silver linings or to analyze the policy implications.  Sometimes, they venture into arguments that I find unpalatable.  See, for example, David Kopel's argument that Congress ought to overturn the "unconstitutional" mandate.  Now, I fully admit that a law can be unconstitutional even if the Supreme Court refuses to condemn it as such, and it is fully within the prerogative of the legislative branch to change the law for any reason, including its perceived unconstitutionality.  What I find unpalatable, however, is his invocation of the example of Andrew Jackson, who illegally pulled money from the Bank of the U.S. in order to "destroy" it and (not merely coincidentally, although Kopel doesn't mention this part, pay off his cronies at state-level "pet banks").

Anyone who champions the rule of law and the rule of the constitution ought to be disturbed at Jackson's easy flouting of the law, even an unconstitutional one.  I admit that some unconstitutional laws might indeed deserve to be flouted or disobeyed by the president, but it is hard to argue that one that was so complex and, in some ways, such a close call as the Bank of the U.S. issue, qualifies.  Would Kopel similarly champion a decision by Truman not to return the Youngstown Steel Mills, or a decision by Obama to say "fish it, I'm sending in my U.N. helicopters to imprison people indefinitely if they choose not to purchase a qualifying insurance plan"?

One might also wonder if Kopel would approve of a president who, say, agrees to use the U.S. military to violate America's treaty obligations to Cherokee Indians, even after the Supreme Court tells him not to?  An person unsympathetic to Kopel's argument might be tempted to say, "John Roberts made his decision, now let Sebelius enforce it."

But most of the posts at the Volokh Conspiracy are not like that.  Most of the posts reflect the intellectual curiosity and intellectual honesty that make the site such a joy to read.  I'd much rather read their after-the-fact diagnoses of what happened than the gloating at "paralegals, knives, and i.o.u.'s," one post of which says simply, and I quote verbatim:  "Gosh, I haven’t seen conservatives this mad at the Supreme Court since Brown v. Board of Education."  Apparently, the moral gravity of the ACA is exactly comparable to a state law forcing schools to deny persons of color the same advantages enjoyed by whites.

I'm glad that's cleared up.  Now I don't have to feel any trepidation that the law in its implementation might be a bad policy, or that the expansion of the federal government's prerogative might lead to a precedent I shall later find unsavory.

On the other hand, one might point out that Roberts's decision, while not based on the same reasoning or same part of the constitution, is part of the same trajectory that assures us the feds can imprison a terminally ill person for growing his own marijuana that he believes he needs as a pain reliever, even if he doesn't have mens rea intent to sell it or distribute it.

A question I have is what would the esteemed liberals at that site be writing if Roberts, as Mark Thompson at the League put it, had a bad hair day?  I suspect that we would not see informed comparisons to, say, the court's invalidation of the National Industrial Recovery Act in 1935.  (I say "informed," because in retrospect, the temporary emergency measure that was the NIRA was, if you look into the nuts and bolts, an awful (in the bad sense) policy.  And I say "awful (in the bad sense)" to mean, pretty much the exact opposite of what loominaries at that site would support.  Of course, at least one of them is a historian, and he probably knows better.)

Another question I have is what would I have written?  Under my "posts" tabs here at my blog, I already have a rough draft of a post excoriating Obama for not relying on the tax argument.  I wrote that draft in full anticipation that the Court would strike down the law on commerce clause grounds.  At the time of writing that draft, I bemoaned his and his solicitor general's apparent refusal to rely on the tax argument (I hadn't realized they kept it in reserve as a "just in case" that I've read the decision, I know better).  I was going to criticize Obama for not, as he claimed in 2010, "stak[ing] his presidency on it."  If he was willing to "stake his presidency" on the ACA, my reasoning went, he would  have 'fessed up that it was a tax, and he had signed into law a new tax that in effect raises taxes among some people who earn less than his campaign-promised $250,000.

What else might I have written?  I don't know, but I might have had some bitter, Kopel-esque moments.  I would have railed against what I imagine would have been the widespread self-congratulation among some of the libertarians who opposed the law and whose arguments I found so distressingly convincing.  In the lead-up to the case, I certainly wasn't adverse to engaging in ad  hominem attacks against those same scholars.  I imagine I would very likely have indulged my own self pity.

As a famous leader once said a while back, if something really bad happens, and it takes something even worse to remedy it, and if that remedy hurts people who in some way were responsible for that really bad thing, then it's probably overall a good thing.  But we ought to also express a little bit of empathy and even love toward those who saw things differently, even if they were in the wrong, because we might not have been clearly in the right, either.  I insist that as hopeful as I am about the decision, the issues at stake with the ACA are not as fundamental and astounding as what that person was referring to, and the side of the right as we're given to see it is not that clear.

But it's still good advice.

No comments: