Thursday, June 28, 2012

Fear of a Vegetarian State -- and Other Reflections on the Obamacare Decision

By Mike Dorf

I spent the better part of today reading the Supreme Court's ACA ruling and talking to the press about it.    Consequently, I had very little time to attend the sessions at the conference I happen to be attending: Vegetarian Summerfest, an annual vegan gathering that includes programs discussing the various reasons for adopting a vegan lifestyle.  These are chiefly: reducing harm to animals; mitigating environmental damage; and health benefits.  Given the much-ballyhooed prominence of the "broccoli question" in the Obamacare case, I was not entirely surprised to see that each of the three main opinions discussed the consumption of vegetables, but I did nonetheless sit up when I read the following passage in the portion of the opinion of CJ Roberts in which he concludes that the individual mandate does not fall within the Commerce Clause (with citations omitted):

[M]any Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance.  The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance.  Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.  
Amen brother Roberts, I imagine many of my fellow Vegetarian Summerfesters saying.  Not so much for the proposition that Congress might mandate vegetable purchases.  As Justice Ginsburg correctly notes in her dissent/concurrence, a "vegetarian state," in which Congress "prohibit[s] the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables," is a "hypothethical and unreal possibility."  And anyway, we vegans aim to convert, not coerce.  But still, here we have in the lead opinion of the most closely-watched Supreme Court case in a decade, an uncontradicted statement by the Chief Justice of the United States that Americans' unhealthy eating--expressly described as a failure to eat plant-based foods--imposes greater costs on our health care system than the enormous costs imposed by people going uninsured.  So I'll say it myself.  Amen brother Roberts.

What about those other observations?  I've got something moderately important to say about the Medicaid aspect of the case and then something utterly trivial to say about wording.

Medicaid.  I am not sure whether I was more mystified by the position of CJ Roberts (joined in this portion of his opinion by Justices Breyer and Kagan) or horrified by the joint opinion (of Justices Scalia, Kennedy, Thomas and Alito).  Roberts et al find the 2010 amendments to Medicaid unduly coercive because of the amount of money at stake and because compliance with the new conditions was made a prerequisite for obtaining not only (first all, then 90% of) the money to pay for insuring the newly eligible Medicaid recipients, but also a prerequisite for continuing to get federal money under the old (pre-ACA) version of Medicaid.  Yet as Justice Ginsburg (joined by Justice Sotomayor) noted, there is no "old" Medicaid in the sense of a set of reimbursement conditions on funds that the States have already accepted.  The ACA imposed conditions on future payments: If States want to get any of the funds, they have to comply with all of the conditions.  She gave what I regard as a killer hypo: Suppose Congress had simply repealed and re-enacted old Medicaid along with new Medicaid.  That would satisfy the Roberts concern about "notice," so why make Congress go through that formality?  The answer in the Roberts opinion is that there are political obstacles to repealing and re-enacting Medicaid, but if so, it's not clear why that same answer doesn't apply to his view of the taxing power, where he did reject a highly formal distinction.  After all, the whole reason Congress called the exaction a "penalty" rather than a "tax" was because of political obstacles to raising taxes.

Scalia et al avoid the force of the Ginsburg repeal/re-enact hypo because they think that new Medicaid is coercive simply in virtue of how much money is at stake.  But there's a ton of money at stake with old Medicaid too.  Why isn't that also unconstitutional under their approach?

Finally, my utterly trivial, indeed, ridiculous observation: At page 58 of Justice Ginsburg's opinion, she uses the word "foregone" when she ought to have used "forgone."  This is doubly surprising because: a) Justice Ginsburg is usually a perfectionist; and b) at page 12 of the Scalia et al opinion, one finds the term "sic" pointing out the very same mistake in the statute.

So yes, I spent way too much time with this opinion today.  Back to Summerfest!


Paul Scott said...

"And anyway, we vegans aim to convert, not coerce."


Not me. If I could outlaw the production of meat and dairy, I would. I would, in fact, treat it quite harshly as a criminal matter.

I try to "convert, not coerce" only because it is the only available option.

Jesse London said...

Speaking of demonizing diet and vegetables in the ACA case, vegans and vegetarians alike certainly got short shrift in the oral arguments back in March, 2012, from my close reading of the transcripts. The following two passages from the Tuesday arguments were the most illuminating:


GENERAL VERRILLI: ... Telephone rates in this country for a century were set via the exercise of the commerce power in a way in which some people paid rates that were much higher than their costs in order to subsidize --

JUSTICE SCALIA: Only if you make phone calls.

GENERAL VERRILLI: Well, right. But -- but everybody -- to live in the modern world, everybody needs a telephone. And the same thing with respect to the -- you know, the dairy price supports that -- that the Court upheld in Wrightwood Dairy and Rock Royal. You can look at those as disadvantageous contracts, as forced transfers, that -- you know, I suppose it's theoretically true that you could raise your kids without milk, but the reality is you've got to go to the store and buy milk.

. . .

CHIEF JUSTICE ROBERTS: ... The government's position is that almost everybody is going to enter the health care market.

MR. CARVIN: ... [T]he health insurance market is different than the health care market. .... I think everybody is in the milk market. I think everybody is in the wheat product market. But that doesn't suggest that the government compel you to buy five gallons of meat or five bushels of wheat because they are not regulating commerce.


I am no constitutional scholar, and heck, I still cannot even find a job after searching for more than 3 years in the only market I am definitely in, the legal market. I have certainly never been in the health-insurance market since I have never been able to afford health-care as a self-employed small business owner during 15 years before law school or now. But, it is pretty obvious that those writing the Obamacare law, those arguing about it, and those deciding the issues who all love their employer provided health insurance are out of touch with those who actually need health care. It is a damn good thing the Court did not buy the Commerce Clause argument that people needing care could be forced to pay insurance companies a profit on top of the profit those people paid already to their doctor. I suppose, during the short period when I was vegan instead of vegetarian, if I was forced to pay my local milk or broccoli farmer (as a requirement live in this "modern world" for things which I was deemed by the Congress to be already in the market), that would be much easier to stomach than being forced to pay for farmer's market insurance to some faceless private "provider."

I will defer to Professor Dorf and those that know better whether the taxing power argument stands on its own, but this case is really just about policy and, specifically, the failure to make any policy that goes to the root of the problem; providing care, not insurance. But, avoiding the pain of conflict is not only an American social principle, it is one of constitutional interpretation allowing the Court to swallow the tax power argument in the ACA case.

That is just the way we do things 'round here. Some Justices do not want to eat their healthy broccoli, so vegans don't have to drink unhealthy milk, and no one has to buy 5 gallons of meat.

But with the statute upheld under the taxing power, if you don't buy the meat in 2016 and have an income of $35,000, you will have to pay the government about $60/month for not having eaten your meat. I suppose this also means no pudding :(

At least no pudding for anyone but the insurance companies and the candidates whose campaigns they fund.

Joseph Simmons said...

There is speculation that the Scalia dissent was originally the majority opinion, given the lack of direct rebuttals to Roberts' opinion, among other features.

My speculation is that Roberts was alone in believing the mandate was an unconstitutional exercise of the Commerce Clause, severable from the law.

Roberts could have concurred with the conservatives (or vice versa), leaving a very messy plurality, the mandate struck down (and closely related provisions) but with only Roberts supporting that position! If you have the other 8 Justices arguing that such a holding violates the intent of Congress, its’ really ugly.

If Roberts views the conservative dissent as an overreach – which he clearly does – and the liberal dissent as an abdication – which he also clearly does – he had no alternative in his view but to find a third route.

Ginsburg’s opinion also informs my view. She expresses puzzlement that Roberts discusses the Commerce Clause reasoning if he could uphold the law as a tax.

But isn't it normal to tackle the main argument? It seems more astounding to continue onto a lesser justification after finding the law violates the Constitution so clearly as Roberts did. He could have given the tax argument short shrift, as Scalia did, based on the Commerce Clause analysis - but he instead forged on.

Certainly the Court can (and does) find alternative grounds to uphold statutes. But doing so after finding that the law upsets the balance of power in our constitutional system is exceptional. Usually, a statute is not deemed violative of part of the Constitution before the Court finds some authority for it elsewhere.

Roberts opinion is quite lawyerly and I think points to not wanting to inflict damage on the Court with a messy plurality containing a result with which only he agrees. All speculation, but that is an odd dissent. I'd appreciate your thoughts on it, I hope you're enjoying Summerfest, and I'm astounded at your catch of the grammatical issue!

Joe said...

Ginsburg makes the road to a vegetarian state harder:

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically,would enable Congress to prohibit the purchase and homeproduction 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 Congressthe power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyerslive on the slippery slope of analogies; they are not supposedto 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 provisionis sustained, then Congress could make “breathing in andout the basis for federal prescription”).

Joe said...

Why Breyer, who never has met a federal law he thinks violates federalism principles, signed on to that Medicaid section is unclear.

matt30 said...

Ginsburg is getting old. You and Scalia should lay off.

Jet Li said...

These are demonizing diet regime and also fruit and vegetables within the ACA case, vegetarians along with veges alike undoubtedly got brief shrift in the common arguments back in 03, 2012
, from my personal shut looking at of the transcripts. The next a couple of airways through the Thursday arguments had been one of the most highlighting:

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It is a damn good thing the Court did not buy the Commerce Clause argument that people needing care could be forced to pay insurance companies a profit on top of the profit those people paid already to their

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