Saturday, June 30, 2012
No doubt Marc D and Mark M in Rome are in one of the best locations in the world for viewing the riches of the Church’s patrimony in art and architecture, and Marc’s post (here) was lots of fun. Still the Western Suburbs of Chicago aren’t without their treasures.
What does the Latin say in the stained glass window below? The winner gets no gold stars, just the satisfaction from knowing what MOJ is all about.
Friday, June 29, 2012
The Supreme Court's Health Care Ruling: Preserving the Individual as Sovereign, Rather Than Subject of Government
If the Affordable Care Act (ACA) had to be upheld by the Supreme Court, I am grateful that its survival turned on the line drawn by Chief Justice Roberts. Chief Justice Roberts found the statute's individual mandate to purchase insurance –- a direct federal directive to take individual action rather than a regulation of preexisting individual action –- to falter when held against the Commerce Clause and the Necessary and Proper Clause. Nonetheless, under Chief Judge Roberts's analysis, the mandate passes muster when alternatively conceived of as a tax (even though Congress and the President denied that the ACA included any tax increase).
Many other scholars, lawyers, and pundits, both on the Mirror of Justice and elsewhere, have and will comment further on the text, history, and precedents pertinent to the Commerce Clause and Necessary and Proper Clause challenges to the statute, as well as the practical implications of the ruling for health care and public policy into the future.
Reading the opinions in NFIB v. Sebelius, I instead found myself searching for the Court's guidance on a broader and deeper, even venerable, philosophical question that has persisted since the founding of the Republic (and earlier) -– the right and proper relationship of the individual to the State. Resonating with me was a passage from the jointly-authored dissent (which actually was part of the majority that found the individual mandate beyond congressional power under the Commerce Clause). In refusing along with Chief Justice Roberts to read the Commerce Clause as authorizing “the Federal Government to regulate all private conduct,” the four-justice joint dissent warned that to hold otherwise would “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”
In a decision from nearly a century-and-a-half ago, United States v. Lee, 106 U.S. 196 (1882), the Supreme Court emphasized the very different understanding of the place of the individual in a political society that prevailed in the United States from that which had prevailed in monarchical Europe before the American Revolution. In the United States, “the people” are “sovereign.” By contrast, under the British Crown, the Court observed, people are “called subjects.”
If the Court had upheld the individual mandate to purchase insurance as a proper regulation under the Commerce Clause, the federal government would have been affirmed as having the power to impose an affirmative duty on a person, not because of any action taken by that person, but simply because the person lives inside the borders of the United States. If the federal government were permitted to exercise such direct power over a person based on that person’s mere existence, it would be difficult to avoid the conclusion that this person had been relegated into a mere “subject” of that government. By virtue of being born, each person would become the proper subject of intrusive governmental direction. Government would be the first principle in all matters, the first actor of that society.
If the people are sovereign, then they must be understood to precede government. In the United States, the government proceeds from the people and is directed by the people. Government must have power to act, within crucial limits, for the common good of the people. But the federal government does not assume immediate power at the moment of birth and regardless of actions and choices affirmatively undertaken by that person.
To be sure, the individual mandate in the ACA survives, but in an alternative guise that I hope and believe may prove to be more than the simple clothing of a statutory provision in different garb. Whether or not one is persuaded that Congress imposed a tax in constitutional effect when it expressly denied doing so, the power to tax individuals based on income -– and the ACA does vary the “tax” based on the income of those who have not purchased insurance -- has been constitutionally conferred on the federal government by the Sixteenth Amendment. And, looking beyond the ACA, it is hard to envision many other attempts by Congress to directly regulate individuals by virtue of their mere existence that could be formulated as a tax and enforced as a tax. Thus, the Court's approval of the ACA mandate as the equivalent of a tax is probably a ticket good for this ride only. And that’s a good thing, or as good a thing as one could hope for if the ACA were to be upheld.
As previously announced, The Most Reverend Charles J. Chaput, O.F.M. Cap., the Archbishop of Philadelphia, will deliver the keynote address at the Seventh Annual John F. Scarpa Conference on Law, Politics, and Culture. The Conference will be held at Villanova University School of Law on Friday, September 14, 2012. The topics and themes of this year's papers and discussion will be loosely bounded by Archbishop Chaput's book Render Unto Caesar: Serving the Nation by Living Our Catholic Beliefs in Political Life (2008, 2009).
Also speaking at the conference will be these distinguished scholars and public intellectuals:
-Helen Alvare, Associate Professor of Law, George Mason University School of Law
-Helmut David Baer, Associate Professor of Theology and Philosophy and Department Chair, Texas Lutheran University
-Gerard Bradley, Professor of Law, Notre Dame Law School
-Rev. Bryan Hehir, Parker Gilbert Montgomery Professor of the Practice of Religion and Public Life, John F. Kennedy School of Government, Harvard University; Secretary for Health Care and Social Services, Archdiocese of Boston
-Peter Steinfels, co-director of the Fordham University Center on Religion and Culture, University Professor at Fordham, and religion columnist for The New York Times
-Michael J. White, Professor of Law and Professor of Philosophy, Sandra Day O'Connor College of Law, Arizona State University
Please mark your calendars and plan to join us at Villanova in September. The exact conference schedule will be available in due course.
What seems to a right-direction trend towards school choice continues now in New Hampshire. (Story here.)
The Legislature . . . overrode [Gov.] Lynch's tax-credit veto for businesses contributing to educational programs. The bill is intended to help some public school students switch to private schools.
Lynch argued the bill would allow private organizations to determine the use of public education funds and would shift limited state money away from public schools because districts would lose state education aid for each student receiving a scholarship.
"No parent should be forced to send a child to school that does not meet the child's needs," O'Brien said. "This is good legislation to allow parents to give their children the best chance possible to succeed. It makes school choice a reality for many children who lack the ability to find an educational environment where they can thrive."
The U.S. Court of Appeals for the Fourth Circuit has decided, in recent days, two important decisions that should be of interest to MOJ readers. First, in this case, the court invalidated a Baltimore rule requiring that "limited-service pregnancy centers" post signs saying that they "do[ ] not provide or make referral for abortion or birth control services." The rule's defenders had argued that this speech-compulsion was a permissible regulation of "commercial speech" (which enjoys reduced First Amendment protection) and this argument was rejected. (More here.) And, as Marc reports here, the court in this case held that it does not violate the Establishment Clause to allow public-school students to receive "two academic credits for off-campus religious instruction offered by private educators." Both results, in my view, are welcome.
Thursday, June 28, 2012
"To an economist, perhaps, there is no difference between activity and inactivity . . . . But the distinction between doing something and doing nothing would not have been lost on the Framers, who were 'practical statesmen,' not metaphysical philosophers." -- NFIB v. Sebelius, Opinion of Roberts, CJ, at 24.
Economists and metaphysical philosophers can still sometimes be really nice people, though.
Today’s Supreme Court decision in National Federation of Independent Business v. Sebelius, etc. will be the subject of much discussion and debate for years to come. As we at the Mirror of Justice focus on many important issues that concentrate on the intersection of law and religion, the following observation of Justice Ginsburg and her colleagues in their partial concurrence and dissent might suggest that the debate and probably the litigation involving the legality of this legislation will continue for some time to come. As she says about the provisions of the Constitution that exist to check Congressional overreaching:
A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.
While all of these topics identified by Justice Ginsburg are of vital concern, the one addressing interference with the free exercise of religion should be of particular interest to the contributors and readers of the Mirror of Justice. It may be too early to address with particularity how the concern shared by these Justices on “Congressional overreaching” will play out, but it would appear that this subject which Justice Ginsburg, and those who agree with her, has identified may well be in the courts in the not-too-distant future.
As suggested by Michael’s earlier brief post, today’s Supreme Court decision may be construed as a blow to Congress’ authority under the Commerce Clause. Justice Roberts’ opinion for the Court held that the individual mandate is not a valid exercise of Congress’ power under the Commerce Clause and Necessary and Proper Clause. In his view, the power to regulate presupposes the existence of commercial activity to be regulated and to allow regulation in the absence of activity would grant too much power to Congress.
Although I accept that reasonable people can differ on this, I find Roberts' analysis unpersuasive here, particularly his narrow view of the Necessary and Proper Clause. (I always thought the individual mandate was a valid exercise of Congress’ power under the N&P clause - as an essential component of a comprehensive scheme Congress clearly has the authority to enact.) I also agree with Justice Ginsburg’s view that there was no reason for Roberts to rule on the Commerce Clause issue given his conclusion that that Affordable Care Act was a valid exercise of Congress’ taxing authority. He reason for doing so seems strained at best.
Nonetheless, the decision on the Commerce Clause is out there. It remains to be seen how much of a limit that analysis will impose on Congress’ authority to enact social welfare laws, but it assuredly will have some.
One unrelated observation: The dissent in the case (Scalia, Kennedy, Thomas and Alito) reads very strangely in several respects: (1) Until the last two pages, it only refers to the opinion of the Court once (unless I missed anothter reference); most of the time it refers to the briefs and arguments of the Government. (2) It numerous times refers to Justice Ginsburg's decision as the dissent. (3) It goes through an awfully extensive analysis of severability, which seems completely unncessary given the opinion of the Court. In other words, the dissent reads to me like it expected that it would be the opinion of the Court.
The inconsistency is arresting: mandate is not a tax
It is also striking, not to mention disappointing, that the dissenters are content to quibble that while Congress could have made the penalty a tax, and thus have acted within its taxing authority, Congress did not call it a tax in so many magic words, even though it is the IRS that will be collecting it.