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On Obamacare, the math beyond 5-4

When it comes to the future of the Obama administration's health care plan, the judicial math can seem simple. • So far in three lawsuits against the plan, two federal judges appointed by Democrats have upheld the law; one Republican-appointed judge has declared an important part of it unconstitutional. Use party as your measure, send the cases up the appeals ladder, and you quickly get to a 5-4 decision at the Supreme Court: The justices appointed by Republican presidents will vote to strike down the law. Game over, thanks for playing.

But the votes of the Supreme Court are not that easy to divine, and while political considerations can creep into any judge's views, deeper factors are at play, said Mark Tushnet, a professor at Harvard Law School. Supreme Court justices, for the most part, "are attuned to their reputations as individuals in history, and their overall place in the government as a whole," he said.

Supreme Court justices work differently from judges at the District Court level, noted Jack Balkin, a constitutional scholar at Yale. "Federal District Court judges do not have to deliberate with anyone else," he said. "Multimember courts are affected by who sits with them," and "this is especially true of a nine-person Supreme Court."

Predicting how justices will vote, and especially the reasoning they will use to get there, becomes especially dicey when questions concerning the extent of government power come up.

Take this year's decision in United States vs. Comstock. A Supreme Court majority supported the power of Congress to order the confinement of "sexually dangerous" prisoners — to many observers, an enormous extension of state power. Justice Stephen Breyer, of the court's liberal wing, was joined by Chief Justice John Roberts and Justice Samuel Alito, who are among the most conservative of the nine.

In the history of congressional power and the court, one struggle stands out: the New Deal. President Franklin Roosevelt and Congress took on a Supreme Court that was overturning their reform initiatives.

Eventually, they prevailed and the fight left justices reluctant to overturn congressional action, especially if the legislators could themselves repeal the measure, said Eric M. Freedman, a constitutional scholar at Hofstra University Law School.

Randy Barnett, a law professor at Georgetown University who opposes the health care bill, agreed that the fight over the law was best understood in the context of the Roosevelt administration. While the court retreated from its efforts to overturn New Deal legislation, Barnett said, those later opinions should not be interpreted as having fully abdicated power to Congress.

The power of the courts to restrict Congress never ended, he said. "The New Deal cases have been misread by wishful thinking."

Barnett acknowledges that his overall view is in the minority of legal scholars. But, he said, "we're not refighting the New Deal here."

The Obama administration, he said, is "trying to go beyond the line drawn by the New Deal."

Opponents of the law insist that Congress has never ordered people to buy something — that is, to regulate inactivity as opposed to activity.

But Congress has successfully regulated inactivity, said Tushnet of Harvard. In a famous 1942 case, Wickard vs. Filburn, the Supreme Court ruled in favor of federal quotas, meant to support wheat prices, that restricted how much farmers could grow. In the case, Roscoe Filburn grew more wheat than permitted; he argued that the wheat was for his own use.

Tushnet noted that Filburn's actions could be described as a failure to purchase wheat in the general market — a situation similar to that of people who do not buy health insurance.

"If the constitutional challenge has any legs, it is on the ground that it is unprecedented — Congress has never done it before," he said. "Well, it turns out that Congress has done it before."

Michael McConnell, a senior fellow of the Hoover Institution and director of the Constitutional Law Center at Stanford, said the health care bill "is the first time that regulation of commerce has been taken this far." Even so, he said, "that doesn't make it automatically unconstitutional." McConnell said the New Deal had been misunderstood — but not necessarily in the ways that Barnett argues it has.

In his view, McConnell said, the Supreme Court's initial resistance to the New Deal legislation sent Congress back to the drawing board to fashion better legal approaches.

"By the time the Supreme Court started sustaining most of the New Deal legislation, the character of it had changed and become much more economically defensible," he said. "You can say that the Supreme Court actually helped save the Roosevelt administration from some of its mistakes."

The chief justice at the height of the court crisis, Charles Evans Hughes, would say that the problem with the early New Deal legislation was not its political slant but its legal quality.

In Rethinking the New Deal Court: The Structure of a Constitutional Revolution, the legal historian Barry Cushman wrote that Hughes complained to a U.S. senator, "The laws have been poorly drafted, the briefs have been badly drawn and the arguments have been poorly presented."

McConnell, who pronounced himself no fan of the individual mandate, said similar things could happen with the health care law. "It's not impossible that some kind of interplay between the administration, a more skeptical Congress and a somewhat more skeptical judiciary could lead to improvements in the legislation."

Freedman noted that even if the justices were reluctant to accept the government's primary argument that inactivity can be controlled under the Commerce Clause, there are other grounds for finding the health care law constitutional. The most attractive to the court, he suggested, might be categorizing the fine for not buying health care as a tax. He noted that while only a handful of cases had restricted the power of Congress, under the Commerce Clause, the power to tax has almost always been upheld. The Obama administration has made the tax argument in court, despite having argued during congressional debate that the financial penalties under the individual mandate were not a new tax.

That seemingly uncomfortable conflict for the administration might suggest a path to upholding the law. A finding that the mandate is in fact a tax — and thus constitutional — could mean "the Obama administration might gain a long-term legal victory at the cost of a short-term political loss," Freedman said.

In the world of sports, that's called winning ugly. But the Obama team would probably be happy to win any way it can.

© 2010 New York Times News Service

On Obamacare, the math beyond 5-4 12/25/10 [Last modified: Monday, November 7, 2011 1:43pm]
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