Legislating from the bench


Erik Kain

Erik writes about video games at Forbes and politics at Mother Jones. He's the contributor of The League though he hasn't written much here lately. He can be found occasionally composing 140 character cultural analysis on Twitter.

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48 Responses

  1. Avatar North says:

    Let’s be realistic though. The odds of this bunch of supremes pulling a Vinson strikes me as vanishingly small.Report

    • Avatar E.D. Kain says:

      I agree completely.Report

      • Avatar Koz says:

        I don’t see why not.

        The problem with this line of thought applied to the Supremes is that the individual mandate really is unconstitutional. They could extend current precedent to make it fit, but they’ll be out of touch with legal scholarship and educated opinion that the Commerce Clause jurisprudence we have is already a bridge too far.

        They could dial it back. Or, if they don’t, they could just accept the activity/inactivity business that’s been at the heart of the pleadings.

        In any case, when people say it’ll come down to Tony Kennedy that’s probably right but in that context we should bear in mind the political context that Kennedy and the other Justices and judges will be in as they rule.

        There is a strong tradition of deference of the federal judiciary to federal statutes, especially against rejecting federal statutes whole as Judge Vinson did. On the other hand, there is also a reasonably strong presumption toward upholding lower court rulings, especially if the Judge is not in the habit of sending appeals bait up the chain (and he’s not). Finally, I don’t think Justice Kennedy wants to be associated with the worst excess of contemporary liberalism at the time when the ability of big government to help the lives of the people is at its most discredited.

        That’s why I think inertia will be a very important factor in this decision. If Obamacare is not in force when the Supremes rule, I don’t think it will be restored. If it is, it has a better chance.Report

        • Avatar Jaybird says:

          That’s why I think inertia will be a very important factor in this decision.

          It’s the courts.

          The whole “our hands our tied, people were stupid decades ago and we have to be stupid too” rationale has a long, long history.Report

          • Avatar Koz says:

            That’s part of it, like you and Boonton were talking about on the other thread, but not all of it. There’s also (underrated imo) upholding institutional prerogatives and contemporary politics.

            And every once in forever there’s actual textual jurisprudence. Imagine that.Report

  2. Avatar soren says:

    1. Without the severability clause, striking just the individual mandate is more “legislating from the bench” than striking the whole law and having the legislature make a new law.

    2. “Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process” bwahahahahahaha… not going to happenReport

    • Avatar North says:

      He doesn’t mean in the short term like this particular Congress obviously.
      But if the Democrats pass a warty ugly centrist bill like this and it gets gunned down, then the blue dogs and other centrists who crafted the thing are going to be discredited badly and I have no doubt a future bill might well be more unambiguously left wing.Report

      • Avatar Michael Cain says:

        Yes, clearly any attempt to expand Medicare is DOA for at least the next two years. And in that period, we are likely to see one or more states decide to withdraw from Medicaid: states will be quite literally having to decide between Medicaid and their traditional responsibilities in education, public safety, and transportation.

        I have argued for the past few years that health insurance reform was going to be “ripe” as an issue around 2015. The Dems moved too early on this — another few years of insurance company abuses, combined with the steady decline of employer-provided health insurance, would have convinced voter majorities even in the red states that “socialized” health care was the only path forward.Report

        • Avatar Boonton says:

          States pulling out of Medicaid is often talked about but highly unlikely to happen. States pay $0.50 on the dollar, or less! Pull out of Medicaid and now you’re paying at least double to provide your poor health care. Medicaid’s benefits are already pretty poor compared to Medicare and the fees paid to providers tend to be worse. States aren’t going to achieve any savings doing it alone that will make up for the loss of Federal help.Report

          • Avatar Michael Cain says:

            “States aren’t going to achieve any savings doing it alone that will make up for the loss of Federal help.”

            When the first state cracks, it will be a decision to preserve state benefits for the middle-class — state universities and community colleges, roads and bridges — rather than provide health care benefits for the poor and disabled. They won’t save money by “doing it alone”; they’ll save money by not doing it at all. Given the political limits on state spending that generally exist, and the growth rate of the states’ share of Medicaid, Medicaid is crowding out other state services. The recession accelerated that, but even before the recession the handwriting was on the wall if you ran the numbers.Report

          • Avatar Boonton says:

            So then the amount of money states have been spending on state college must be going down over the past decade or two? Right?

            After all if increased Medicaid spending is crowding it out then it must be going down. In a contest of where to cut spending, the problem with pulling out of Medicaid remains 50%. Cutting $100 in spending only saves the state $50 while cutting, say, pension benefits for state workers $100 saves, well, $100.Report

        • Avatar Koz says:

          “I have argued for the past few years that health insurance reform was going to be “ripe” as an issue around 2015. The Dems moved too early on this ….”

          Yeah. But they did move on it, and that changes things. We got at least a decade’s worth of juice on Carter’s fkkkups. I wouldn’t be expecting any less here.Report

  3. Avatar Robert Cheeks says:

    Northie, isn’t the ‘voter’ currently moving away from the Left precisely because of our Kenyan-marxists legislative proclivities-Obamacare, spending bills, etc? If bro Barry has pushed the good old USA to the brink of bankruptcy as some say and the voters have revolted because they didn’t know he was THAT far left, what makes you think they’re flocking back to the commie-dems? SCOTUS will uphold if the voters are throwing out the commie-dems and embracing the TPers.
    I don’t know if you’re right/wrong, just wanted to read your reasoning.Report

    • Avatar Simon K says:

      The voter is moving away from the left because the voter is unemployed. What the voter will think once he gets a new job and can afford cable again is anyone’s guess. Mine would be that it’ll be just in time to see a Republican congress being burned by the iron laws of arithmetic.Report

    • Avatar North says:

      Bob, my friend, I’m no expert on voters, especially voters in this country. But I’m always happy to gab about politics so I’ll be happy to share my interpretation of the previous election.

      Now as I see it no one was particularly surprised by the outcome except perhaps some of the more imaginative right wingers who expected to net themselves the Senate as well. If you consider the Dem situation going in there are all kinds of items stacking against them. Consider if you will their base:
      -Obama was a complete squish on the wars in general. He’s been trying to extract us, sure, but as carefully as possible. Probably trying to avoid another ‘Nam. Want to laugh? Try reading mainstream right wing commentary on his foreign policy. When they’re not puckering their lips around having to approve of his behavior they mutter about him not being bellicose enough. Hysterical for me but the left isn’t laughing.
      -He was a similar squish on torture and has been pretty much a Bush clone on civil rights and human rights violations. Now there’re tons of arguments in there, one may not see those issues as pertinent, one may think that by avoiding them he prevented a conflagration from eating his entire legislative session but from the red meat loving base’s point of view these issues would have been huge wins for them.
      -He managed an impossible feat: He achieved a left wing generations old dream; healthcare reform; but somehow managed to score no points with his base for doing so. The HCR bill is a labyrinthine construct full of num-nums for the insurance industry and studded with old Republican ideas like raisins in a bagel. If this had been passed in ’94 the left would be burning Clinton in effigy and Republicans would be passed out celebratory drunk for a week.
      -He didn’t roll out squat for the various interest groups of his base. DADT wasn’t repealed until after the election and he was a chameleon on most social issues.
      -He bailed out the banks. Now I know you’re dead set that the man is a closet communist but if so he’s the most incompetent closet commie in the history of socialism. You think you can give a closet commie the Presidency, the Senate, the House and a historic bank fish-up that has the entire country screaming for blood with the GOP hiding under the bed on the subject and expect to get this is the result? No. Impossible. A commie would have nationalized the banks and maybe even hung some bankers and the country would have applauded. Maybe Rush can get stoned on Tylenol and imagine some way this is plausible but it isn’t. Obama ain’t no economic lefty and his base was sorely aware of it.

      So, you have a mightily depressed base.

      Then you have the swing voters.
      -They’re unemployed!!!!
      -The economy sucks !!!!
      -We’re still in wars!!!!11
      -Washington is as dysfunctional as ever and Obama promised (like some idiot hippie) to change the tone in Washington!!!!
      -I’M UNEMPLOYED!!!!!!!!!!!!!!
      -Our houses are dropping in value!!!
      -Obama bailed out Wall Street!!!
      -Oh yeah, and deficits are still going up too.
      -Obama passed some big HCR bill and then ceded the rhetoric to the screamers on the right so no disengaged swing voter is going to have much positive inclination towards it.

      Could Obama have done much about most of these? On a lot of em no, because they were either out of his hands or he was pretty much taking the least awful option of a bunch of sucky options presented. As for the ones he could have effected directly I don’t think their impact would have made a huge difference if they’d gone differently compared to the all important economy.

      That leaves the right.
      -They’re out of power and the Dems are trying to defend a butt load of seats in conservative districts.
      -They seem to be genuinely enraged and baffled by their losses in 2006 and 2008. It’s like history jumped from 2000 straight to Obama’s inauguration. How could this be? Some sort of perfidious liberal trick!
      -They bet all their marbles on sinking HCR and then lost hugely because somehow they forgot how legislation works. Sure the centrist Dems did most of their work for them and dragged the bill into the middle but it was one hell of a kick in the pants for them to lose on the issue.

      So they’re up in arms and raring for a fight. So a disengaged and disenchanted base. An unimpressed and economically stressed swing electorate and an energized opposition? I’m personally surprised they didn’t win bigger than they did.

      Which brings us to the now. Are voters flocking away from Obama? His approval rating has been climbing for months. Have they been flocking to the conservatives or the GOP? I haven’t seen much sign of it. Try typing with a straight face that the GOP is going to take the presidency in 2012. If anyone could do it it’d be you; you have an infinite well of faith after all. President Romney? President Palin? President Huckabee? I can’t do it.
      I certainly don’t see any kind of voter movement on HCR that’d be enough to rattle the SCOTUS on their pillars. If the SCOTUS did actually strike HCR down then kiss the War on Drugs goodbye. No way that’d survive if HCR didn’t. Heck, I might even take that trade. Especially since the GOP plan for an alternative to HCR is to start thinking about an alternative to HCR once it’s gone. Talk about not doin one’s homework.Report

    • Avatar BSK says:


      I hope that was some sort of poor form of satire…

      Kenyan-marxist? Bro Barry? Commie-dems? If you mean those seriously, I hope you realize that words have meaning beyond what you simply want them to mean.Report

  4. I guess there really is nothing worse than private enterprise.
    The stated goal, after all, is to see them gone in 7-10 years (iirc).
    You may choose statism if you wish. I John 5:21.Report

    • Avatar Rtod says:

      Wait… what?Report

      • Avatar ThatPirateGuy says:

        I’m scared too.Report

        • Perhaps I wasn’t clear. Well, likely not.
          Everything behind that statement reflects something historical. And while historicism (it seems to follow the German trend rather than the English) seems to be the rule of the day here, I find recalling the original intent of candidate Barak Obama more telling than current incidents about the legislative situation. He was quite clear that it was his goal to put private insurance out of business within a few years. Maybe it was 10-15. The issue is not so much about the sentiment of meeting needs but about the establishment of *the state as the source* for those things which make for a good life. As a Christian, that type of statism amounts to idolatry. And as one who opposes this heresy of Marxist statism (irrespective of the level of orthodoxy), I first appeal to God’s authority in opposition to statism.
          I trust that is a little clearer.Report

          • Avatar 62across says:

            You’re going to need to cite something if you want to claim Candidate Obama was “clear that it was his goal to put private insurance out of business”.Report

            • Let’s go for a “state pool” and a “transition”.

              • Avatar 62across says:

                I’m sorry. I meant to say you’re going to need to cite something that hasn’t been heavily edited and captioned to mislead.

                Obama stated during the campaign that if he was starting from scratch, he’d prefer a single payer system. Fair enough. He also said, since he wasn’t starting from scratch, that wasn’t what he would advocate for during his term. The “trojan horse” clip ends before Obama goes on to state the claim has no founding. The SEIU clip is talking about eliminating employer provided insurance which is a widely held (and market based) idea for controlling costs.

                Frank and Schakowsky do not a quorum make.

                You’re going to have to try harder.Report

              • Can’t get past the editing to the substance of his words?
                This whole process has been the process of a series of deceptions.
                Nobody can know what is in the bill until it is voted in. That came early.
                Is it a tax or a penalty. It depends on who the administration is talking to.
                Single-payer or not? Whatever he says he contradicts.
                Denial is one thing, but clarity is another. The clarity just is not there, but the socialism seems clear.Report

              • Avatar Boonton says:

                Nobody can know what is in the bill until it is voted in.

                Odd, the text of the bill was out there and is there now. More importantly many people who were paying attention to the bill seemed to know what was and wasn’t in (the scope of the mandate’s penalty for example, whether or not the public option was there).

                Is it a tax or a penalty.

                Generally a penalty is a type of tax. At least in the way we use language these days. If penalty has a specific legal definition no one has yet presented it.

                Single-payer or not?

                Not. Anyone who actually bothers to learn about health care knows the reform is not a single payer system.

                The clarity just is not there, but the socialism seems clear.</I.

                It's clear because you've defined socialism to be whatever Obama supports. Kinda like some leftists in the 80's who defined fascism to be whatever the Republican in office supports.Report

              • Avatar Jaybird says:

                It’s a quotation from Nancy Pelosi’s prepared speech on the bill.

                You’ve heard about the controversies within the bill, the process about the bill, one or the other. But I don’t know if you have heard that it is legislation for the future, not just about health care for America, but about a healthier America, where preventive care is not something that you have to pay a deductible for or out of pocket. Prevention, prevention, prevention—it’s about diet, not diabetes. It’s going to be very, very exciting.

                But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy.Report

              • Anyone who actually bothers to learn about health care knows the reform is not a single payer system.

                Again, is it only a matter of the immediate impact or of the predictable result. I’ll go with the latter.

                It’s clear because you’ve defined socialism to be whatever Obama supports. Kinda like some leftists in the 80’s who defined fascism to be whatever the Republican in office supports.

                No, not really. I get it from one of their own — Paul Tsongas’ “Call to Economic Arms” adequately defines the redistributive agenda.Report

              • Avatar ThatPirateGuy says:

                Jaybird, You and I both know that she isn’t saying that one literally can’t know what is in the bill.

                She is saying that republicans have been lying to spread fear uncertainty and doubt so much that most people won’t understand what is in the bill till they see it action. Basically she is accusing republicans of being dishonest bastards which is fairly accurate.

                Remember death panels?Report

              • Avatar Boonton says:

                Again, is it only a matter of the immediate impact or of the predictable result. I’ll go with the latter.

                People who predict highly complex systems like where US health care will evolve over the next few decades are fools. There’s no reason to confidently assume that the reform as passed would produce single payer in the future. France, for example, has basically private insurance with gov’t subsidy and no inclination towards adopting, say, the UK system. Ditto for Germany.

                No, not really. I get it from one of their own — Paul Tsongas’ “Call to Economic Arms” adequately defines the redistributive agenda.

                Ahhh yes, you discovered our Tsongas Protocols. Now you know too much. Don’t worry, we’ll make your demise quick and painless.Report

              • Avatar Jaybird says:

                You and I both know that she isn’t saying that one literally can’t know what is in the bill.

                Was the bill posted to the interwebs for a day or two before it was voted on?

                If it wasn’t, that turns what she said into spectacularly unfortunate phrasing, no?Report

          • Avatar RTod says:

            “I trust that is a little clearer.”

            Um, no, I’m still struggling to understand both what you mean, and in the one part that I do understand (Obama said his goal is to take down the insurance industry) why you believe this to be true. We in the insurance industry have no love for the guy, and often quote things that he says that make him look bad. But I have never heard of him saying he was out to take down our industry, and find it hard to believe if I had I would have heard nothing of it after all this time.

            The issues surrounding the cost of healthcare are serious issues and need to be dealt with in a serious way. Throwing those kind of tribal logs onto the fire – even if I agree with you about the wisdom of Obamacare – doesn’t help and is part of the reason we haven’t managed to deal with this issue effectively in 50 years.Report

    • Avatar tom van dyke says:

      Judge Vinson contemplates this first version of “reform” might bankrupt the private health insurance industry. Then, the door re-opens under the “Necessary and Proper” clause to “fix” the harm, and that of course would be the vision of single-payer or whathaveyou.

      “Are essentially admitting that the Act will have serious negative consequences, e.g., encouraging people to forego health insurance until medical services are needed, increasing premiums and costs for everyone, and thereby bankrupting the health insurance industry — unless the individual mandate is imposed. Thus, rather than being used to implement or facilitate enforcement of the Act.’s insurance industry reforms, the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or “necessary” the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause.”

      Not the brutish mind some are alleging.Report

      • Avatar Boonton says:

        Seems pretty brutish to me. There’s no ‘door’ that needs to be opened for a single payer system. We already have one, it’s called Medicaid. If Medicaid is Constitutional for the over 65 crowd, there’s no logical way you can conclude that any additional Constitutional hair splitting would be required to simply make it open to the 0+ yrs old crowd.

        As for a law being ‘economically disruptive’ or ‘ill-conceived’….if judges are supposed to decide this as well as a law’s Constitutionality then what exactly are legislatures for? It seems ironic to say the least that the Judge has discovered that making a law less intrusive, more individual centered and more market centered is somehow overstepping Constitutional boundaries for Federal power yet a law that’s would be much more expansive of Federal power (Medicare for all, aka single payer) is somehow cleared by the same logic.Report

        • Avatar Boonton says:

          Sorry, I mean Medicare in that post. Medicaid is also a type of ‘single payer’ program but it’s a bit more complicated since it varies from state to state.Report

        • You missed something. The current mandates for purchase and punishment for non-purchase, as cited by the non-activist (because he did not legislate a content change from the bench) go way beyond the Medicare structure. The logic does not hold because the evidence cited is incomplete.

          if judges are supposed to decide this as well as a law’s Constitutionality then what exactly are legislatures for?

          Reminds me of Schumer’s description of the three branches — Executive, Senate, and House. Barney Frank spoke publically that the process did not even consider the question of jurisdiction for this takeover. That amounted to a serious admission, and a useful oneReport

  5. Avatar Tim Kowal says:

    If I were every Republican state politician, I’d start rolling out more aggressive state health care programs so that, if or when Obamacare is repealed, there will be no political need for a national health care regime, and little political will to undo the states’ own programs.Report

    • Avatar greginak says:

      That would assume there are many R state pols who give a crap about solving the problems of people with no insurance, pre-existing conditions and spiraling costs. R’s could have been doing that for years and they could do that now, but for some mysterious reason they aren’t.Report

      • Avatar 62across says:

        Yes, I’m constantly amazed by how this is so often overlooked. The Republicans have had multiple opportunities over the last few decades to put forward their aggressive programs to address growing healthcare costs and people without insurance driving up the cost for everyone else. Yet, what do they have to show for it? Medicare Part D!Report

      • Avatar Tim Kowal says:

        In my state of California, it’s certainly not Republicans’ fault. Dems have enjoyed run of the legislature for 15 years and counting, and California otherwise has generous social welfare programs. We serve approximately 30% of the nation’s welfare cases, and host approximately 25% of the nation’s illegal immigrants. On top of our economic crisis, adding on a new welfare program isn’t going to work here. If we want new entitlements, we have to re-prioritize.

        A similar sort of analysis theoretically does happen with entitlement programs at the national level, but there’s no balanced budget requirement, it apparently doesn’t matter if the national credit rating takes a hit, the Treasury can always print more money, and you’ve got Paul Krugman waiving his arms and ranting about our anemic spending policy. There’s just a lot more economic voodoo and misdirection going on at the federal level.Report

        • Avatar Michael Drew says:

          You framed the comment in terms of what state Republicans should do, so why are you now talking about whether it’s their fault? Certainly, they could have come out for a new state health entitlement and seen what kind of cooperation they’d get from Democrats? If they were serious about establishing one, they could even have been flexible about what kind of priority-shifting they would insist on as a condition for it. How is it anyone else’s fault that they didn’t do so? Is it plausible to think they couldn’t have found enough Dems to make it a serious possibility? You seriously want to give them credit for having good intentions about doing something that they never even made a wiggle toward? The sixteen out of twenty years that there’s been a Republican in the Governor’s office couldn’t have had anything to do with it either, I suppose…

          But for that matter, why should they make such an effort? I don’t blame them, nor do I think they are wrong not to do it. Why would state politicians in populous, perennially cash-strapped states volunteer to take on service responsibilities that the feds have asserted a great amount of interest in addressing at the federal level, merely to head off even more comprehensive federal efforts at doing so in the future (as opposed to doing it out of an earnest commitment to the state’s residents’ health and well-being above and beyond the provision of the U.S. minimum, like some smaller, wealthier states with frankly more socio-ethnically homogeneous populations have done, that is)? Seriously. Do you think that state politicians keep themselves in office by making national-level ideological point-scoring the driving determinant of their decisions about their programs? That would be ridiculous! Wait…

          Until the last year or two, I’d have said that would be ridiculous, but then Republicans suddenly caught an allergy to free money from Washington (that is, Commie-Dem Washington where SDS-member federal employees attend Kenyan ceremonial festivals in the White House with Chi-Com pianists playing Maoist anthems for visiting Communist Party dignitaries) for building high-speed trains and expanding access to health care for poor people, so hey, maybe it’s the new Coke Classic.Report

  6. Avatar Michael Drew says:

    There’s actually a pretty good debate about how precedents like Raich etc. do or don’t (should or shouldn’t) tie the hands of lower courts on this matter at Volokh, among a number of other questions here. I’m actually not sure that Prof. Kerr gets the better end of it, and I’m not sure why he made the question of SCOTUS precedent binding lower courts the main thrust of his response to this ruling, as I think it isn’t actually one of his strongest arguments on the constitutionality of the mandate (or, now, I guess, of the entire PPACA).

    I also recommend all of the recent posts on the ruling at Balkinization, and especially this paper</a) that is linked in one of them. It provides what I think (as a layperson) is a really good overall primer on all the basic questions that are at issue here for anyone no matter what one's views on them might be. It lays out I think quite well just where the basic divergences in principle lie that can put people of good faith who are both committed to the constitution on opposing sides of this question, giving ample oxygen to each side of such questions (before, obviously, eventually coming to its own conclusions). If it did nothing else I think that alone would make it one of the most useful articles I've seen in the course of this debate (which, in turn, is itself I think an extremely healthy and important one for us to be having as a nation).Report