29 June 2012

How the Grinch meant to steal the ACA.

Scalia writes in the Obamacare dissent:
The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.
- National Federation of Independent Business v Sebelius, 567 U.S. ___ (2012) (Scalia, joined by Kennedy, Thomas and Alito, dissenting)
The "ne plus ultra of expansive Commerce Clause jurisprudence"? Damn. Nicely done.

Also, Justice Scalia, here you make a very fair and valid point.

Yes, you heard me right.

Indeed, Wickard is an atrocity. The way it gleefully traipses past the bounds of rationality and then wind-sprints into a conclusion of the purist lunacy still has the power to shock me every time I read it. As you suggest, Wickard is truly the zenith of federal legislative and regulatory narcissism, and the real how-to manual for drawing spurious legal opinions.

So in 2004 — when Gonzales v Raich presented you the opportunity to overturn Wickard — why didn't you even bother to try?


Why? Scalia Claus...why?

Indeed, who was the hardline conservative who joined the moderates that time? That was you. You all relied on what you now concede is Wickard's idiotic reasoning to reach the idiotic conclusion that NOT buying marijuana on the black market somehow constitutes "interstate commerce."

Thus, you ruined a couple of women who weren't bothering anybody, and just using some homegrown for therapeutic purposes on doctor's orders and pursuant to California state law.

So I guess that was fun.



Since you insisted in Gonzales v Raich that not buying pot from a California drug dealers is indeed interstate commerce subject to federal regulation, then it is at least as true that not buying insurance is interstate commerce subject to federal regulation.

The reasoning is shit, but it's all yours, Nino. Own it.



Having been hoist on his own petard, Scalia stamps his foot and insists:
Raich is no precedent for what Congress has done here. That case’s prohibition of growing and of possession did not represent the expansion of the federal power to direct into a broad new field.
Oh, really...?

Well please direct me to clause in the U.S. Constitution that expressly grants Congress the power to regulate recreational intoxicants, pharmaceuticals or medical treatments. The fact that it doesn't exist certainly didn't prevent Congress from entering into such a "broad new field" by enacting the Comprehensive Drug Abuse Prevention and Control Act  a breathtakingly expensive and expansive act of law-enforcement futility known colloquially as "The War on Drugs."

Hell, "war" isn't even a euphemistic term. This law legitimized becoming actively embroiled in hot wars and/or paramilitary conflicts all over the globe since the 1970s, and caused a massive expansion of the federal bureaucracy. Perversely, this law even provided the justification for federal agencies to actively participate in organized crime and drug trafficking. With respect to the public, the law features utterly irrational criminal penalties that include ruinous fines and lengthy incarcerations for even minor infractions and is the direct reason we have the worlds highest incarceration rate. By a mile.

Perhaps worst of all, in its haste to endorse and enforce draconian federal drug laws, SCOTUS and the rest of the federal judiciary has invented so many ludicrous loopholes, doctrines and exceptions to the Fourth, Fifth and Sixth Amendments the Bill of Rights is now approaching a legal nullity.

As the longest-serving member of the Court, and the one most likely to back a cop and smack down a drug user, once again this is on you, Justice Scalia.

My point here is that, by any measure, the Affordable Care Act looks like Bambi next to the uncontrollably destructive Godzilla that is the Comprehensive Drug Abuse Prevention and Control Act. So let's all have a little perspective here.

And while everyone is free to believe it's all staggeringly stupid government policy, by Scalia's logic both acts of Congress must be Constitutionally valid exercises of federal power, or neither can be.
Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced.
"Far different"? Howso?

Elsewhere you concede, "the goal of the Act is to provide near-universal medical coverage."And to the purpose of achieving that goal, in conference, deliberation and debate, the insurance industry insisted, and Congress finally agreed that the only practicable way to effectively enforce this Act was to prevent insurers from limiting their insurance pools to cherry-picked low-risk individuals. Thus Congress required everyone capable of paying into the pool to do so, enabling the public-health benefit costs to be apportioned generally across the public, with failure to do so subject to penalty.

Y'know — kinda the way taxes work.

Justice Scalia then goes on to fantasize about other ways he thinks the law could, or rather should, be effectively enforced to achieve its policy goal, attempting to substitute his notions of sensible policy for Congress' — precisely the "judicial activism"he otherwise fucking lives to mock.

Having utterly lost his way, Scalia now heads straight into the weeds:
[W]e must, if “fairly possible,” construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un-constitutional (ut res magis valeat quam pereat)*. But we cannot rewrite the statute to be what it is not.
The mere fact that Congress terms a penalty a tax, or terms a tax a penalty, or calls a surcharge an antelope is at best a semantic issue, not a legal one. Regardless of whether it's called a tax, penalty, or surcharge, Congress can enact a law which — irrespective of the verbiage — functionally taxes, penalizes, or surcharges. No, the Court may not rewrite a statute, but ferchrissakes you also may not just fucking void a law because its diction doesn't meet your lofty editorial standards.

Stop jerking off over the dictionary and cut the formalistic shit. Nonissue. Move along.
[O]ur cases have long held that the [federal] power to attach conditions to grants to the States has limits.
Well your jurisprudence, Justice Scalia, hasn't so far respected any such limits.

Indeed the landmark and controlling case you keep citing in this section is Dole v South Dakota, where you were in the majority that decided the feds are indeed free to penalize any state that failed to comply with the provisions of Congress' National Minimum Drinking Age Act through withholding 10% of highway funds. The Twenty-First Amendment expressly delegates to the states the power to regulate intoxicating liquors. But Justice Scalia, you thought it was okay for the feds to intrude on that express right and strongarm states into toeing the federal line on booze under threat of withdrawing money to construct roads and bridges — a matter utterly unrelated to drinking. Also, you may recall that in Gonzales v Raich you didn't exactly feel compelled to champion state sovereignty on California's behalf when it asserted its right to regulate cannabis for therapeutic purposes.

Every state already voluntarily participates in the federal Medicaid program on the terms the federal government determines, and Medicaid's purpose has ever been to provide medical care to the poor with qualifications indexed to the Federal Poverty Line. The ACA merely adjusts the index. Medicaid always covered poor people, and now it now covers more poor people.

That's not in any conceivable way some radical restructuring of the program.  If you blow up a balloon, it's still a balloon. If you blow in one more breath, you cannot argue it's not the same balloon, or longer even a balloon at all. And let's be real here: how can any sane American be genuinely surprised when government programs expand? It's like feigning shock and outrage the cute little puppy you bought last year turned into a dog. Really, spare me.

Then Scalia whips out the calculator to mathematically quantify the difference between "mild encouragement" and "coercion." Science! 
Withholding $614.7 million [10% of federal highway funds], equaling only 0.19% of all state expenditures combined, is aptly characterized as “relatively mild encouragement,” but threatening to withhold $233 billion [100% of medicaid funds], equaling 21.86% of all state expenditures combined, is a different matter. 
These figures are imaginative, to say the least. In Dole, the other 49 states weren't refusing to comply, and his belief that all 50 states might rebel against a Medicaid expansion is absurd in the extreme. Indeed, to apply the fact pattern in Dole, the feds would have to threaten to slash federal highway subsidies to states that resisted the ACA's Medicaid expansion. But the federal government has every right to regulate the terms by which states participate in a federal program that disburses federal funds to states, and the states retain every right to accept the terms and take the money, or not. Nothing has changed.

Once again, Scalia, judicial activist, simply substitutes his policy judgement for Congress'.

 Look, we all understand that the Affordable Care Act's Democratic pedigree renders it incapable of surviving your legal scrutiny. But doesn't the obviousness of your political-policy motivated, outcome-based legal reasoning ever give you a moment's pause?

Indeed, since you're so much better at writing laws than Congress, won't you please just resign from the bench and run for Congress? I'm sure you'd be a real hit.

* LegalLatin for "so the thing might have effect rather than be destroyed."

1 chimed in:

Anonymous said...

You have astutely pointed out the problem a growing number of independents and third party voters are having with the current right-left paradigm: regardless of whether a person aligns with the "right" or the "left", it is becoming harder and harder to avoid statism and its inevitable expansion into nearly every area of a person's life. Most people wouldn't have a problem with limits on statism, but the issue is that it never seems to stop. Those on the "right" insist on continuing to ever expand government control in the "war on drugs", empiralism overseas (i.e., never ending foreign wars whose connection to our national security is arguably thin), control over relationships, and justifying every last intrusion into personal privacy as necessary for national security. The "left" want to control and restrict other areas, like the "war on poverty" (which despite all the money thrown into social safety nets hasn't even put a dent in poverty in four decades), a person's ability to choose healthcare or not (interesting a woman has a right to choose what to do with her body when it comes time for an abortion, but somehow, cannot be trusted when it comes time to purchase healthcare or insurance), and under Obama, the largest tax hike on the middle class under Obamacare, drone strikes on thousands of terror "suspects" who are listed on a kill list without so much as the benefit of due process or a trial - all thanks to the NDAA. The liberals decried the PATRIOT Act (rightly so), which Obama renewed during his tenure, but not so much as a whimper when the NDAA was signed into law, doing away ith habeus corpus, posse comitatus, and allowing for the detention of American citizens without trial indefinitely all contingent upon an arbitrary finding someone might be an enemy of the state?

Student loans are federalized. Mortgages are almost completely federalized (have you tried getting a refi lately? Its a total nightmare. I see why folks walk away). Is there no refuge from rambling bureaucracy?

So yes, Scalia is no better than the liberal counterparts on the court he so chastizes. They're all activists in one form or another. And SCOTUS is far removed from being a conflict-free final arbiter as between states and the federal government. The ultimate problem with statism is the same as the problem with big behmouth corporations: eventually, they gain too much control, power, and wealth and cannot be tamed. Its two sides of the same coin.