Why Justice Kennedy Will Rule in Obamacare’s Favor

In the immediate aftermath of the historic three-day hearings there was much buzz about the fate of the Affordable Care Act. There was a palpable sense, in the blogosphere and in the physical world of the DC area, that the ACA was in deep trouble. I kept going back to the idea that I could not see Justice Kennedy, in spite of some of his negative questions about the constitutionality of ACA, ruling with the four conservative justices against this act of Congress. Now comes a lengthy article in The New York Review of Books by the law professor Ronald Dworkin that includes this thoughtful analysis of why Kennedy will indeed rule the ACA to be a constitutional exercise of congressional power.

Do the Supreme Court’s past decisions nevertheless force it to strike the act down out of respect for precedent? No, on the contrary the precedents emphasize that the Constitution’s allocation between national and state power rests only on the subsidiarity principle I described earlier—giving Congress power to deal with national issues—and so they confirm that the conservatives’ distinction is irrelevant.

Two great chief justices set out that principle in these often-quoted remarks. In 1824, John Marshall, in Gibbons v. Ogden, said:

The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.

In 1937, in the Jones & Laughlin Steel case, Charles Evans Hughes said:

Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.

The precedent most directly in point is the Court’s 1942 decision in Wickard v. Filburn. The Agricultural Adjustment Act of 1938, which was designed to protect the market price of American wheat by limiting production, was applied to limit the wheat a farmer could grow on his own land for his own consumption. Justice Robert Jackson, for a unanimous Court, said that restricting what farmers could grow for their own use was a valid exercise of congressional power because it meant they would have to buy the wheat they needed in the market and so helped to sustain the price of that commodity. Jackson treated forcing large farmers to buy some of the wheat they need as an important part of the act: he drew no distinction between forcing them not to sell wheat and forcing them to buy it: if either had a significant impact on the national economy, it was a proper subject for congressional regulation.

By the end of the twentieth century it seemed that because local, national, and indeed international economies had become so densely interwoven, there was almost no limit to the regulatory power the subsidiarity principle gave Congress. But in 1995 and 2000, in two 5–4 decisions, conservative justices called a halt to the extension of national authority over local matters. In United States v. Lopez they denied Congress the power to forbid handguns in or near schools and in United States v. Morrison they denied it the power to provide civil remedies to battered women. Liberals deplored these decisions because they denied needed powers to the national government. But they could be defended, at least plausibly if not persuasively, as an application of the subsidiarity principle.

Kennedy wrote an instructive concurring opinion in Lopez; in view of his potential swing vote in this case, we must pay particular attention to that opinion. He endorsed a dynamic, shifting application of Congress’s power to regulate commerce. He spoke of “the Court’s definitive commitment to the practical conception of the commerce power” and he quoted this from an opinion of Justice Sandra Day O’Connor in an earlier decision:

[The federal-state balance] has been sufficiently flexible over the past two centuries to allow for enormous changes in the nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses: first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government’s role.2

Kennedy said that nevertheless the subsidiarity principle, even so broadly understood, would not permit Congress to forbid guns in school. “The statute now before us,” he said, does not have, in either design or purpose, any “evident commercial nexus.” Furthermore, it “forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term.” None of that applies to either health care or health insurance. These are both very much caught up in a national nexus of commerce and, particularly through such programs as Medicare and Medicaid, Congress has a much greater experience in those areas than any state does.

In these passages Kennedy emphasized two cardinal ideas. The first is that when Congress regulates commerce in a new way, the novelty of its mode of regulation is not in itself an objection to its power to regulate. Changing economic structures require changes in regulatory strategy. He cited the Wickard decision I just mentioned, in which the Court upheld Congress’s then novel limit on growing wheat not for commerce but for home consumption. It would therefore be surprising if he thought that the novelty of the act’s mandate requiring people to buy health insurance is in itself a ground for constitutional objection.

Second, he insisted on a “practical” test of the proper distinction between federal and state power. It does make sense to place what he called, in the oral argument of the present case, a “heavy burden of justification” on those who defend a new mode of regulation. But that burden must be understood to require them to show convincingly, not that the mode is not new, but that it is necessary to meet a truly national demand. Congress met that heavy burden by establishing, in its findings, that a national program of health care for everyone is desperately needed and that a mandate is essential to the program it designed.

4.

Even the act’s opponents concede that since the Constitution explicitly gives Congress the power to “lay and collect taxes,” it could establish a single-payer national health care system, like the British National Health Service, by imposing a special health care tax and providing medical care itself. Congress relied on the taxing power to make the Social Security program constitutional, for instance. Solicitor General Verrilli noticed the irony: the conservative justices questioned the constitutionality of the Affordable Care Act, which relies on private insurance and traditional private medical practice, while admitting that a program that gave the national government much more control over doctors and patients would survive any constitutional challenge. Of course, as the conservatives know, a single-payer system would be politically impossible in the United States now, or in the foreseeable future.

Verrilli made a further argument, however. He said that the act was already, even as adopted, a form of taxation and therefore should be held constitutional in virtue of the explicit taxing power even if not under the interstate commerce clause. The oral argument over this issue seemed largely about a question of language. The act describes what eligible people must pay if they fail to insure themselves as a “penalty,” which suggests a criminal regulation rather than a tax, and President Obama once denied that the act counted as a tax increase. On the other hand the prescribed penalty is to be calculated and paid as part of income tax, and it would be silly to think that those who are excused from the penalty, which include the very poor, are nevertheless criminals. It makes more sense to regard them as falling below a tax threshold.

In the oral argument Justice Kennedy set out the important substantive question behind the semantics:

I’m not sure which way it cuts, if the Congress has alternate means. Let’s assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power. On the other hand, it means that since…Congress can do it anyway, we give a certain amount of latitude. I’m not sure which way the argument goes.

Kennedy’s question comes to this: Is the proper balance between congressional and state power better secured by limiting what Congress can do or what it can say it is doing? Can the fate of an ambitious piece of legislation really turn on how many times the word “tax” appears in its text or on the accident of how many senators actually say, as several of them did in this case, that they were exercising the tax power rather than the commerce power? True, the American public is allergic to tax increases so that any such labeling might make some difference to a statute’s reception. But the act hardly lacked opponents who decried it as a tax increase and, in any case, it seems reasonable to ask people to judge a statute by asking what it actually does to or for them, not how politicians for and against label it. Our politics would be much improved if more citizens did exactly that.

The act could easily be recast, with no change of substance, to make it look more like what it really is: a more conservative example of using the tax power to achieve social justice, just as the Social Security Act does. It would then obviously be a valid exercise of the tax power. It seems worse than perverse to punish the nation for what its legislators happened not to say. So the act the conservative justices threaten to strike down is doubly constitutional: it is a legitimate exercise of Congress’s power both to regulate the nation’s commerce and to require its citizens to contribute to the cost of vital national programs.

Sarah Posner and the Bishops

While I have been critical of the bishops’ statement on religious freedom because  its narrow examples invite accusations of partisanship by the bishops. Of course, the same concern about narrowness and partisanship applies to critics of the bishops. As Michael Sean Winters is right to point out, Sarah Posner is guilty of both in her critique of the bishops. In this lengthy excerpt, Winters not only challenges Posner, he makes important clarifications about what the bishops have and have not said.

Here is the opening paragraph from Ms. Posner’s post at Religion Dispatches about the USCCB’s document on religious liberty last week:

As promised at their March administrative meeting, the U.S. Conference of Catholic Bishops has released its Statement of Religious Liberty, "our first, most cherished liberty." As expected, it's basically a rehash of the same arguments the Ad Hoc Committee on Religious Liberty has been making for almost a year. This document, though, is even more pointed and hostile than previous statements, expressing disdain for (and even a refusal to acknowledge) court rulings against the Bishops, vowing not to obey "unjust laws," and pledging to deploy "all the energies the Catholic community can muster" to resist "totalitarian incursions against religious liberty" this summer.

Of course, throwing around the word “totalitarian” is always sure to catch the reader’s attention. But, the bishops did not say that they were pledging the energies of the Catholic community to resist totalitarian incursions against religious liberty, although presumably they would and so would Ms. Posner. They did not suggest that the current political landscape of the nation was totalitarian. What they said this: “In addition to this summer’s observance, we also urge that the Solemnity of Christ the King—a feast born out of resistance to totalitarian incursions against religious liberty—be a day specifically employed by bishops and priests to preach about religious liberty, both here and abroad.” By neglecting the context, and playing around with selective quotations, Ms. Posner makes it seem that the bishops are calling Obama a totalitarian and planning to do something about it this summer. This is a suggestion not born of journalistic attentiveness but partisan hubris.

Posner’s tendentiousness leads her into some curious intellectual territory. She accuses the bishops of “court-snubbing,” and that “the decisions of the courts are not respected by the Bishops, but rather dismissed out of hand as further evidence of discrimination against them.” This is curious. It should come as no surprise that many Americans have questioned judicial decisions in the past. Why should court decisions be viewed as sacrosanct? I wonder if we might have Ms. Posner’s thought on, say, Bush v. Gore or Citizens United? The long history of the nation includes many instances when a prior court decision was subsequently over-ruled by the courts: Should Thurgood Marshall have simply “respected” Plessy v. Ferguson or should he have dismissed it out of hand as further evidence of discrimination?

Even when Ms. Posner finds herself in agreement with the USCCB, she is so uncomfortable with that fact she dissembles and exposes her journalistic sloth. She writes:

Among the "concrete examples" of infringement of religious liberty there's a new twist, added, no doubt, to rebut charges the Bishops are fixated exclusively on matters of sex. The Bishops object to harsh immigration laws, such as those in Alabama, which bar "harboring" undocumented immigrants, "what the Church deems Christian charity and pastoral care to those immigrants." As noble as an objection to these odious laws may be, I find it difficult to see an infringement of religious liberty of the shelterers of undocumented immigrants as their most noxious feature.

First of all, no one said the religious liberty implications of these laws was their most noxious feature. But, had Posner taken the time to do a bit of research – and she could have done it all online – she might have discovered that the USCCB showed how its religious liberty concerns are related to the spate of anti-immigrant laws in its amicus brief against the Arizona anti-immigrant law in ways that are entirely analogous to the USCCB’s opposition to the HHS mandates.

More on Neuhaus

I knew that my blog post on Richard Neuhaus and the bishops’ statement would receive criticism, and I also knew that it was, in the nature of a blog, not particularly clear or systematic. I wanted to engage in the discussion that the bishops have furthered with their statement and see what others thought. A reader commented with this:

No doubt, Richard John Neuhaus would agree that no State or Government should engage in the promotion of promiscuity and thus the sexual objectification of the human person by mandating that every Insurance Company must provide free contraception for all.

I recognize that in my post I was not particularly clear about what I meant by Neuhaus' presence in the bishops' document, but having said that I don't think this person's comment indicates a clear reading of what the bishops have said. This comment makes it sound like the bishops are presenting this as being about contraceptives. They are explicitly saying that it is about religious freedom NOT contraceptives, and that the HHS policy is just one manifestation of a much larger problem. In defining that problem they use Neuhausian frameworks like "naked public square", "civil public square" and "sacred public square" and they quote from a recent statement by the group that Neuhaus helped to found, Evangelicals and Catholics Together. I also specifically mentioned Neuhaus' "End of Democracy?" statement and the controversy that it elicited due to its intemperate and unclear calls for aggressively challenging the judicial branch/political culture. I fear that the bishops’ statement reflects that kind of bellicose approach. If the bishops merely wanted to protest what you have described, then Neuhaus would hardly be alone in agreeing with them, and it would hardly be something worthy of the scale of response that they are undertaking to lead. They have quite clearly done more than that. In so doing they have reflected a good deal of Neuhaus' wisdom, but some of his weakness as well, IMHO.

Responses to the Bishops

A vital conversation is taking place in the blogosphere about the bishops’ extraordinary statement and its implications going forward. I have raised questions of my own here, but I want to highlight issues coming from others.

Cathleen Kaveny, who teaches law and theology at Notre Dame, has a very helpful post at Commonweal examining the key case law around First Amendment issues and how the bishops’ rhetoric does not match the legal realities:

“there is nothing in the rhetoric of the bishops or their surrogates that suggests that this is a matter of discerning whether in fact, an exception is appropriate. Their rhetoric is absolute and demanding; it’s not “We -recognize-that–the normal-rule-is-this-but-we’re-entitled-to-an-exception.” That analysis requires looking at the factors on all sides of the equation, including the interests of the state in not granting an exemption, not asserting what appears to be an absolute right to religious freedom.

So we have a four step box dance that goes like this :  1) The bishops focus the attention on the absolute right to religious freedom; 2) when people say, “What about Smith” (the basic case on the matter); they respond “look at the exceptions” to Smith; and 3) when people say, well, actually, deciding whether an exception applies requires a careful balancing test, taking into account the interests of the government; 4) they respond, 'the right to religious freedom is basic and absolute.' And we’re back where we started.”

Michael Sean Winters is also concerned about the rhetorical corner the bishops are putting themselves into and, like me, sees the influence of Neuhaus in the sharp lines the bishops are drawing. He thinks that "there has been a broader narrative on the right and it was very disappointing to see it intrude into the bishops’ document…The conservative concern about religious voices being barred from the public square, the 'naked public square' is demonstrably nuts. The public square is drowning in religious arguments, assessments of the religious motivations of politicians, discussion of the political motivations of religious leaders, polling about the attitudes of religious voters, other polls about the attitudes of all voters towards religion. It seems to me that you can scarcely spit and not hit someone making a religious claim in the public square. A note to those who drafted the USCCB’s document: Just because Richard John Neuhaus said it, does not make it so."

And Mark Silk has highlighted a point that struck me as well—what exactly are the bishops threatening to do in response? They invoke a range of options, but some seem contradictory. As Silk says:

"Exactly how a religious employer is to conscientiously disobey in this case is not clear, since in its current form there's nothing short of doing away with health insurance altogether that would enable the employer not to provide the mandated coverage. And it's not against the law to decide not to provide employees with health insurance. But then, according to the bishops, consciencious objection can only provide relief from a just law, and therefore, evidently, is not an option. Since the mandate is unjust, and therefore "no law at all," you're supposed to seek not relief from it but its repeal. Well, sure, go ahead and try to get Congress to repeal mandatory contraception coverage. And meanwhile, engage in un-conscientious disobedience of the mandate, if you can figure out how to do it."

The Bishops and Sharia Law Hysteria

In their editorial criticizing the Catholic Bishops' new statement on religious freedom, Commonweal magazine made the following excellent point:

"strangely absent from the list of examples provided by the bishops is the best-documented case of growing hostility to religious presence in the United States: hostility to Islam. Unless the bishops correct that oversight, their statement will only feed the impression that this “campaign” for religious freedom has been politically tailored. This silence is especially striking in view of the parallels between anti-Muslim sentiment today and the prejudice encountered by Catholic immigrants in the nineteenth century."

The sense that failing to mention a single example of hostility to Islam indicates the bishops have issued a  "politically tailored document" has credibility when one considers that the move to install anti-Sharia legislation in numerous states has been so obviously a strike against religious freedom that the bishops' favorite religious freedom group, the Beckett Fund, has spoken out against this trend in striking language. In a commentary on the profoundly unconstitutional trend to single out Muslims in these anti-Sharia laws the Beckett blog said "Sadly, the notion of shariah, or Islam, “taking over” America in a manner somewhat akin to the Seed Pods from The Return of the Body Snatchers seems to be infecting segments of the national political discourse, despite its inherent absurdity." 


The bishops had a perfect opportunity to not only help Muslim Americans, but to demonstrate the sincerity of their cause and concern for religious freedom for all. Why did they not take it? Before, during and after the 14-day "Fortnight for Freedom", the media should be asking that question.

Bishops' Statement Shows Neuhaus Lives--For Better and for Worse

On the megabus to New York City I have had a chance to read from beginning to end the Catholic Bishops major new statement on religious freedom. It is significant food for thought, filled with some of my favorite historical figures and quotes. What will likely receive the most attention, however, is not the echoes of Richard John Neuhaus that flow through the document but its bold call to organized and determined resistance (or perhaps that too is echoing the feisty Neuhaus?). I can’t think of a document like it in recent American history (I compare it below to Neuhaus’ “End of Democracy?” statement but that did not come from US Bishops), particularly its call to a 14 day “fortnight for freedom”, provocatively scheduled around the 4^th of July and numerous dates on the liturgical calendar celebrating martyred Catholics. I anticipate fascinating debate and dialogue at my own parish and countless other places across the country before, during and after that “fortnight”. I am trying not to jump to hasty conclusions about the document. There is much to commend it as a broad statement about the importance of religious freedom for the common good, and I was very pleased to see the strong statement against the Alabama immigration law. I am also mindful of the fact that the bishops seem uniquely unified in their sense that this is a particularly dangerous time for religious freedom in the United States and around the world, a unity highlighted by the strong quote from the politically liberal Cardinal Mahony, retired archbishop of Los Angeles. As a Christian in communion with Rome I feel a special burden to listen with care to a united voice of bishops. I am pleased that the bishops reached out in the document to bloggers/writers like me and invited us to join the conversation and participate in the discussion. I plan to do so more extensively over the coming months, and while I appreciate some of the points that Commonweal has raised in their critical response to the bishops, I am not yet ready to declare myself at odds with the document as a whole like they same to be. I am certainly nowhere near as convinced as the bishops are that the Obama administration’s attempt at a compromise is, as the bishops say, “resorting to equivocal words and deceptive practices”. And I detect in some of the language a shrillness bordering on hysteria that is unbecoming of the richness of the Catholic Social Teaching (is it really necessary to urge that “the Solemnity of Christ the King—a feast born out of resistance to totalitarian incursions against religious liberty—be a day specifically employed by bishops and priests to preach about religious liberty, both here and abroad”?). But lay Catholics must be careful in how we speak in response to this document. Progressives in particular should remember that the bishops used perhaps intemperate language and simplistic metaphors in their bold resistance to nuclear weapons and economic injustice in the 70s and 80s. Is there a way for us to discern a core of concerns that we can affirm the bishops are making while trying to challenge the belligerent tone and overly provocative plans in the document? Is there a way to assure that the “fortnight of freedom” is not hijacked into a quasi-Republican rally against Obama’s supposed “war on religion”? This is where I most agree with the editors of Commonweal when they say “the tenor of the bishops’ statement runs the risk of making this into a partisan issue during a presidential election”. I can’t help but feeling like the bishops have gone down a dangerous path. I keep feeling like they have published for the issue of religious freedom the equivalent of the infamous First Things “End of Democracy?” statement on abortion and the Judicial Branch—a statement that had much food for thought, but was irresponsible in the types of actions it suggested. I also found the document misleading in the way that it implies continued unified religious support for the bishop’s resistance to the contraception policy. Reading this document one would have no idea that there are numerous religious bodies/alliances that have expressed gratitude for Obama’s flexibility and concern, including Catholic groups like the Catholic Health Association. I think there will be a justifiable backlash against this document from these religious groups and I think this will only serve to weaken the moral authority of the bishops.

There is much to commend this document, but it is a document that seems to demand obedience and action not just partial appreciation and I can not give that to it. I will respectfully participate in the discussion and I will look for ways to agree with different points, but I do not view this is a moment similar to MLK in a Birmingham jail or Thomas More before King Henry. The bishops heavy handed attempt to imply we are at a point similar to these moments raise troubling questions about the motivations and intentions of some of the documents lay and ordained authors.

Yes, Richard John Neuhaus would love this document and therein lies my appreciation and  concern for this document.

The Bishops: Between Barack and a Hard Head

(WRITTEN THE DAY BEFORE THE BISHOPS' NEW STATEMENT)

 Anyone wondering why the Catholic Bishops of the United States are in a delicate position these days need look no further than the juxtaposition between Barack Obama’s controversial contraceptive mandate and Paul Ryan’s controversial budget proposal and tortured Catholic defense of it. While I am persuaded that the bishops are correct to be challenging the president for his narrow understanding of religious organizations and for his apparently deceptive dialogue with Cardinal Dolan (see this revealing interview Dolan gave to the Wall Street Journal) during the months of “deliberation” his administration engaged in, I am also certain that Catholic social teaching is deeply at odds with the Ryan budget proposal. The challenge for the bishops is to resist both on explicitly religious grounds and to let the faithful make political judgments during this election season fully informed by Catholic social teaching. From my perspective, that means continuing to support the bishops as they seek release from the HHS mandate and continuing to support the president as he seeks to defeat Ryan’s budget and defend the constitutional veracity of the ACA. I do not share the view of many Catholic conservatives that the whole of the president’s Affordable Care Act is anathema to Catholic social teaching because of its supposed expansive funding of abortion and to the Constitution because of its mandate to buy insurance (an argument forcefully made by some of the Catholic justices on the Supreme Court). I believe there remain solid Catholic and constitutional arguments for the justice of ACA. I hope that the bishops do not allow their strong opposition to the president’s contraception policy to silence their historic arguments against the Ryan budget proposal or to lend their authority to specious pro-life and constitutional arguments against ACA.