Saturday, July 14, 2012
Parsing Out The Obamacare Decision, Part Two
I've noted before that protesting outside of the Supreme Court appears to be either ignorantly or willfully misunderstanding how the Courts are to work: the role of a lifetime appointment for a judicial officer (all federal judges are appointed for their lifetime, including Supreme Court justices) is to insulate them from public pressure and let them make decisions that are unpopular... but correct.
(The Obamacare decision was not both of those things).
The longer the term granted an office under our Constitution, the more the person holding that office was to be buffered from the whims of the public and the impositions of the factions. That is why all tax bills must start in the House of Representatives, after all: because with two-year terms, Reps are the most subject to public pressures and therefore least likely to raise taxes without a very good reason.
There were other failsafes built into the system to remove the influence of the short-minded, easily-swayed public, but we've removed many of them. Senators, with their 6-year terms, were to be picked by state legislatures, and so would be answerable to the control of the States, not the public directly. Presidents, originally unlimited in their terms, were to be picked by smart people -- electors -- we would pick to make a decision for us. We got rid of both of those protections, and are now surprised the the Senate and the Presidency are battered by the currents of public opinion. We then decided that no president can be elected more than twice, thereby creating a lame duck for the final four years of the President's term of office: A president can use his popularity (and that of his programs) to get a second term, or to threaten Congress into having to run against programs, but what of a President once he gets that second term? Has there been a second term of a presidency since 1950 that was good?
(Obama is already setting the bar low for Obama 2.0: if re-elected, he said recently, he will make sure that we escalate the "War On Drugs"... presumably by dusting off all those Just Say No banners Nancy left in the closet.)
I digress, but only a little, because one point to take away from the Obamacare decision is that it marks a low-water moment for conservatives and reporters in more respects than just "we lost" and "we didn't understand." In the run-up to what should be called the "It's A Tax!" Day, a great many commentators and reporters speculated about how the Roberts court would rule -- would they undermine the legitimacy of the court (not my term) by ruling against Obamacare, making a partisan decision? some wondered, while others said that ruling for Obamacare would mean that the Court would be free to make extremely conservative decisions in the future without seeming partisan.
Which is to say: "distinguished" commentators and court-watchers and lawyers and jurists all suspected that the Court would rule not on the merits of Obamacare but instead would rule with an eye towards how the Supreme Court was viewed and how that would affect future decisions.
Which is to say: those people viewed the Court not as a judicial body, but as a political body, concerned with how the public perceives it and wondering whether it can do some horse-trading and logrolling: we'll give you Obamacare but then watch out, people who don't want the 10 Commandments on Courthouse steps!
The media's feeding the public that idea -- the Court can be swayed by your opinions!-- helps fuel the protests outside the Court, protests joined by people like John McCain, who protested the Citizens United decision in hopes that he could sway the Court to rule in favor of his law, and if Senators don't understand how the Courts are supposed to work, then how can we expect the media or the citizen to understand that?
I haven't even started reading the decision yet, and I'm upset with it and the Court and our society; that's how bad things have gotten.
This warped view of the Court isn't as warped as it might seem. I pointed out that originally John Marshall granted to the Supreme Court a power not found in the Constitution: it is emphatically the province and duty of the Court to say what the law is, he said, more or less, and in doing so made the Constitution come alive with inherent powers and a little less tension between the parties. Did the Framers intend that the US Supreme Court be the arbiter of what is Constitutional?
Nevermind: It's enough that we do, because someone has to say "This law is constitutional or not" and our society has decided that the Court can do it; we've accepted that premise, on the right and the left (and everyone is on the right or the left, even you people who say you're not; claiming to be moderate is being afraid to admit you have a position) and so we have granted the Court the power to be the final arbiter, even when we don't really think the Court should be the final arbiter (see, e.g., Bush v. Gore, 2000).
A long time ago, I asked a conservative fellow student of mine who had filed a lawsuit seeking to invalidate distribution of fees by a student government whether she had first gone to the legislature -- the student government itself, or the state legislature -- to seek to pass a law outlawing the complained-of distributions.
"No," she told me.
"Isn't running to the Courts to get a law overturned what conservatives dislike about liberals?" I asked her.
She tried to assure me things were different in her case, but were they?
Isn't running to the Courts to get a law overturned what conservatives dislike about liberals? Well, sure -- but when the liberals do stuff conservatives don't like, what are they supposed to do? Run for office and win and vote the law back? That takes time! And so they sue. The NRA started suing a while back. Conservatives groups began suing to overturn abortion rulings. Right-wing groups sued to overturn McCain-Feingold, and now a bunch of conservatives sued to overturn Obamacare, all because judicial activism isn't activism if it's the outcome you want.
Justice Potter Stewart knew pornography when he saw it; to paraphrase him, we could say that when it comes to judicial activism in the courts, it ain't pornography if we like what we're looking at.
And so we come to the caption of the Obamacare case and the syllabus, the first things I noted about it: there are three cases combined here, and the Court notes that the opponents of the law include twenty-six states, some individuals, and the National Federation of Independent Business.
Do you know why businesses provide health insurance as a benefit to their employees? Because of taxes, ironically enough. Back in the olden days when businesses weren't so overburdened by regulation that they couldn't possibly think about creating jobs, the taxes were higher and it became difficult to pay employees enough money to reward them properly. Clever businesses were looking for ways to pay their employees without incurring a higher tax on that payroll, and they hit on the idea of providing health insurance as a benefit: they would pay the benefits for the employee and that way the employee would not be taxed on that payment. So the business could provide an incentive for its workers, who then would have more money in their own pocket by not paying the premiums for their health insurance.
We never think about the unintended consequences of our policies. No other insurance is routinely provided by an employer. As an employer myself, I'm not looking to offer car insurance as a benefit, or homeowner's insurance. But we provide health insurance, which meant that a few years back, when the premiums went up, we had to sit down and have our office manager become an expert on health insurance so she could summarize for us what the options were so we, a select few lawyers in charge of 35 people, could decide what insurance plan would best suit them.
Let's hope we got it right!
I'm almost out of time today, so let me preface the next segment of this series by noting this:
The Supreme Court didn't really decide that Obamacare was okay, not the way we think it did.
What!?!?!?!? More on that later.