Supreme Court saves Obamacare again - Scalia pulls a punch

Fan(s)™ of my Platinum Coin series surely knew where I stood on the latest challenge to Obamacare, King v. Burwell, which challenged whether federal subsidies were available in states that refused to set up their own health-insurances exchanges. In short: the plaintiffs advanced a rather hyper-textualist reading of the law, and hyper-textualist arguments almost never win if there is any decent pragmatic argument to the contrary.

And that's the best reading, in my view, of Chief Justice Roberts's opinion for the Court today. Deep down he and Kennedy sensed it would be unjust to be hyper-technical in this case, and they were able to find enough rhetorical cover to justify a departure from the "plain meaning" of the statutory text. So they did.

Justice Scalia's dissent, however, is fairly powerful on its own terms—even if it is characteristically overcooked. He has a compelling response to each of Roberts's dodges. Based on the text of the statute alone, even when viewed in context, and even taking some account for the apparent "purpose" of the legislation, the argument for the plaintiffs in King is compelling on purely interpretive grounds.

But what struck me as I read his dissent was its complete lack of pragmatism. This is no accident: Scalia is not a pragmatist -- that's Justice Breyer's gig, and it is anathema to Scalia. But ultimately Scalia's defense of his interpretive method relies on a core principle of judicial restraint: that it is Congress's job to legislate, and the judicial power does not include the power to save badly drafted legislation. That's all well and good, but when the practical effect of such restraint would be to more or less undo landmark legislation, it makes the principle itself seem suspect, even monstrous. It's strange that judicial restraint would be the principle that undermines what many consider Congress's most momentous achievement of this century.

In any event, one thing to get off my chest: the usual suspects (whom I will not name) pegged this challenge as frivolous or cynical. This grates me to no end. I urge you to forever ignore any person who advanced that argument, as they are hacks and shills. As one example, many commentators advanced the argument that this challenge was frivolous because at the very least the statute had enough ambiguity to invoke Chevron deference, which is the doctrine that courts should defer to expert agency interpretations of ambiguous statutes.

Not a single justice bought that argument. Both the Roberts opinion and the Scalia dissent rejected it without reservation. No one concurred to say, "Hey, Chevron!" So this argument that commentators said rendered the King challenge frivolous lost nine to zip at the Supreme Court.

And finally, Justice Scalia ends his dissent with a pretty great little joke:

Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare. 

I absolutely guarantee that at some point in the drafting process the punchline of this joke was ROBERTScare.

The secret principle behind all statutory and constitutional interpretation

We haven't yet discussed the latest legal challenge to Obamacare, which is now in the news thanks to conflicting decisions issued by the DC Circuit and the 4th Circuit on the same day last week.

The issue is that the Obamacare statute says that certain tax credits are available to people who enroll for health insurance on exchanges "established by the State." The act defines "State" to mean a state or territory of the United States, so this raises the question of whether the tax credits are available to people who enrolled on an exchange established not by a state but by the federal government. This is a live issue because many states have not established exchanges, so the federal government has stepped in as a backstop, and the IRS has issued regulations permitting the tax credits for people who enrolled on those federal exchanges.

The court decisions have mostly fallen down along party lines, as has the underlying commentary. Republican judges have found the language of the statute to be unambiguous: the tax credits are authorized only for people who enrolled in exchanges "established by the State" and not by the federal government. Whether or not this was what was "intended" by Congress, there's no real ambiguity in the statute, so it must be applied as written. Besides, this kind of carrot-and-stick federalism is not unheard of—the federal government often puts conditions on its statutes to encourage states to act—so the result is not absurd.

Democratic judges have found plenty of ambiguity in the statute when viewed as a whole, and believe the result—denying affordable health insurance to millions based on a poorly drafted statute—is absurd and clearly contravenes the intent of Congress and the purpose of the Act.

This suspiciously partisan split over the meaning of words has led to some consternation and cynicism. For example, liberal blogger Matt Yglesias:

The deep nature of the division is illustrated by the suspicious way in which legal opinions and policy preferences are lining up on this issue. Essentially everyone who believes the Affordable Care Act was an important step toward securing social justice also agrees that it would be absurd to construe the statute in a manner that’s plainly inconsistent with congress’ goals. And essentially everyone who believes it’s crucially important to give the crucial sentence the most straightforward possible reading rather than defer to the IRS’ efforts to make sense of the law as a whole, also believes that the law is a scandalous boondoggle.

Libertarianish economist Scott Sumner agrees, and goes further:

It’s an embarrassment that the two sides of the debate line up so predictably on a narrow technical issue. It says that intellectuals cannot be trusted to argue in good faith.

That's a bold statement. Can the principles of the Enlightenment be saved from this pit of cynicism and contempt?

I think so. Here's the secret principle behind all good faith legal decision making, including all statutory and constitutional interpretation—a principle that is deeply held by all public intellectuals and by all honest legal scholars, judges and justices of left, right, and center:

Do justice.

Well, okay, you say, but that's a pointless abstraction. Not so. It is the saving grace girding our legal system. Once you realize that people of good faith have profoundly held but deeply opposed conceptions of how to do justice, most of the world's seeming hypocrisy melts away.

Let's take Matt Yglesias, for example. In his post on the new Obamacare challenges, he starts out by stating how frivolous he thinks this legal challenge is:

I'm no lawyer, but from the first time I heard it the theory advanced by the plaintiffs in the Halbig case has struck me as laughably far-fetched and as best I can tell most objective legal observers agree that they are unlikely to prevail.

Reader(s)™ may remember, however, that Yglesias was one of the major proponents of the Trillion Dollar Platinum Coin. In that case, he applied a hyper-textualist reading to the coinage statute to find that it allowed minting of platinum coins of any denomination whatsoever. Now, however, he finds the same analysis (hypertextualism) to be laughably far-fetched. How can these positions possibly be reconciled? Isn't Yglesias just a hypocrite?

Not at all. The cases can easily be reconciled as long as you treat hyper-textualism as a tool to do justice rather than something to be achieved for its own case. In the Platinum Coin case, Yglesias was seduced by hyper-textualism because it provided an opportunity to do what he thought was just: to fund the federal government over what he thought was an insane and probably unconstitutional obstructionism by Republicans. In the new Obamacare case, however, hyper-textualism does a terrible injustice by undoing Obamacare.

There's a common principle here, that everyone can agree with: it is right, proper, and moral to use every tool at one's disposal to do justice. And this makes perfect sense of the partisan judicial split. Republicans are happy to apply a hyper-textualist interpretation of the Obamacare act because they don't think it's a just law—or at least, they don't think undoing it would lead to any profound injustice. Indeed, they probably see it as poetic justice that the law would be undone on a technicality, given the unusual and rushed procedures used to get it passed. Democrats, on the other hand, see the hyper-textualist interpretation as leading to so much injustice as to be practically absurd.

Descriptively speaking, I think there's really an underlying ur-canon of statutory interpretation: apply the plain text unless it seems really unfair or unjust. That's what both the Republican and Democratic judges are actually doing in this Obamacare case, and that's what most judges do most of the time. I don't have a problem with that, and you shouldn't either.

Citzens United and freedom from Obamacare

One thing that some lawyers like to do is to wreck the weekend of their adversary. For example, a lot of lawyers like to serve motion papers late in the day on a Friday. This is particularly true of expedited motions, like one for a temporary restraining order, that do not follow longer briefing schedules. Apparently the desire to drop bombs on a Friday does not go away when one becomes a judge. 

Was it "truly a conservative" dissent?

Mr. Torvik asked me the other day if I had a "better theory to explain Judge Posner's contrarian musings" about the dissent in the Obamacare decision.  This is Mr. Torvik's theory: 

Some Pale Reflections of Jeffrey Toobin's Brilliance

Jeffrey Toobin, a noted Supreme Court expert and famed prognosticator, has an essay on the Obamacare case in the latest issue of The New Yorker. I have some thoughts in response to a few of his statements.

Torvik and Gillette are smarter than Klein and Toobin‽

The Supreme Court has upheld Obamacare.  Mr. Torvik and I were right on the result but wrong on whether Justice Kennedy would be in the majority.  I was right that Chief Justice Roberts would write the opinion (I do not believe Mr. Torvik made a prediciton on this point but maybe he did.  I am too lazy to look.).  Kennedy, Scalia, Thomas, and Alito filed a joint dissent so my prediction about the tone of Scalia's dissent is probably wrong. 

In any event, regardless of whether you agree with the decision, I would like to think we can all agree that our March 28, 2012 post was spot-on in pointing out that the predictions that Obamacare was doomed by Ezra Klein and Jeffrey Toobin were ridiculous.   Predicting outcomes based on oral arguments is, was, and always will be a foolish exercise.

"Ultimately, I think the Supreme Court will uphold the bill on at least the taxing power ..."

--Gillette-Torvik Blog, July 18, 2010, "Constitutionality of the 'individual mandate' in the health insurance reform bill."

Always trust content from the Gillette-Torvik Blog.

Please ignore our other predictions.

Obamacare predictions

I was going to title this post "D-Day," but then I saw that Linda Greenhouse already has a post by that title up at the New York Times. That would have been embarrassing.

Anyhow, tomorrow is going to be a fun day for followers of the Supreme Court, like us, with the Obamacare decision coming down at around 9:15 central time. I thought I would point out that a few of the very first posts on this blog—almost two years ago, now!—were about the individual mandate. Back then we agreed that the Court would likely uphold the law—Mr. Gillette opined that he thought the individual mandate is "really a fairly straightforward application of Wickard v. Filburn," and I predicted the Court would reach for the Necessary and Proper clause but "there's no way Justice Kennedy is going to sign on to a decision that strikes down this bill."

Of course, what do we know? Devoted reader(s) of the blog know the answer to that question all too well. But at least Linda Greenhouse agrees with us.

For what it's worth, I'm sticking to my guns. Also, I'll reveal a policy preference. I hope the Court upholds the law on very narrow grounds. What I'm hoping for is an opinion that recognizes that the individual mandate presents a novel question of federalism, but finds that it passes muster because of the unique characteristics of the health insurance reform. That way, the decision could act as a check on federal power (by explaining that broad individual mandates will be subject to searching review) and reaffirm that the federal government has broad power to fix problems of national scope in creative ways.

Any last thoughts, Mr. Gillette? Are you going to change your prediction?

 

"If they decide [the Obamacare case] by 5-4, then yes, it’s disheartening to me, because my life was a fraud. ..."

"...Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty."

That's Yale Law Professor Akhil Reed Amar, emoting (perhaps sarcastically?) about the possibility that the Supreme Court will find the individual mandate to be beyond Congress's power under the Commerce Clause.

This gives me something to be thankful for: whichever way the Supreme Court decides the Obamacare case, my life will not be rendered a fraud. This is one of the advantages, I guess, of actually practicing law instead of sitting around thinking about it all day.

My (novel?) defense of Obamacare's constitutionality

As reader(s)™ of the Blog know well, I am kind of obsessed with the constitutional challenge to the individual purchase requirement of Obamacare. I think I have a pretty good handle on all the arguments, pro and con. But today, as I pondered the eminent Ronald Dworkin's take on the subject, an argument in favor of its constitutionality occurred to me—an argument that I haven't seen anyone else make. Here it is, in its most distilled form:

1) The individual purchase requirement says that everyone (with some inconsequential exceptions) must purchase health insurance or pay a penalty that will be withheld from any income tax refund that would otherwise be due.

2) By its very terms, then, this requirement applies only to people who have earned income in the previous tax year. A person who earns no income, or even some income but not enough to create federal income tax liability, can choose not to buy health insurance without penalty.

3) Everyone who earns income has participated in interstate commerce (as that term of art is broadly defined under long-established Supreme Court cases such as Wickard v. Fillburn).

4) Therefore, the individual purchase requirement is an exercise of Congress's power to regulate interstate commerce because it is merely a condition imposed upon citizens who choose to participate in interstate commerce. No one who refrains from participating in interstate commerce is affected by the legislation.

Here are some objections that occur to me, with my counter-arguments:

Obamacare: the untold story of what the Pope thinks.

Given that this is Good Friday (as opposed to other Fridays, those are usually just good ); and that we have been doing a fair amount of posting on Obamacare; and that a majority of the Supreme Court justices are Roman Catholic; and that some conservatives, like Rick Santorum, believe that one's faith should influence how America is governed, I wondered what the Pope thinks about Obamacare (I am not positive, but am pretty sure this is the longest sentence I have ever written).

Did Scalia regurgitate Tea Party talking points during oral arguments?

I've seen many pundits accuse Justice Scalia of spewing "well-trod Tea Party cleverisms" during oral arguments. For example, Harvard Professor Charles Fried (who was solicitor general under Ronald Reagan in the 80s, but publicly supported Barack Obama over John McCain in 2008) "was appalled to see [Scalia and Roberts, etc.] repeating the most tendentious of the Tea Party type arguments. I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it coming from the bench was depressing."

I take the charge to be that "Tea Party type arguments" are mere populist propaganda, devoid of intellectual content, spewed by the dirty Tea Party masses at their annoying marches and gatherings. Is the "broccoli argument" an example of this?

Not even close. As far as I know, the progenitor of the broccoli argument was a federal judge, the Honorable Roger Vinson, who first raised it at oral argument and then expounded on it in his written opinion striking down the act. 

Moreover, the broccoli argument was first raised at the Supreme Court in the merits briefs by the Solicitor General himself! (See page 6 of the government's reply brief.) Indeed, Chief Justice Roberts was actually quoting this passage when he asked Mr. Verrilli about the broccoli argument. So lets be very clear what Fried, Lithwick and others are doing when they criticize the broaching of the broccoli argument: they are criticizing the Justices for asking questions about arguments explicitly raised in the merits briefs.

So, my advice to Professor Fried is to take some Prozac, because your depression can't be blamed on Justice Scalia.

President Clinton has some ignorant thoughts on the Obamacare case

In an exclusive interview with ABC News, Clinton complains that the conservative justices on the Supreme Court "didn’t make the plaintiffs, the people that want to strike the law down, prove their case":

“Nobody asked, for example, do they want to overturn a case called Wickard v. Filburn in 1942,” Clinton said. “Where in the beginning of World War II, where we were still coming out of the Depression, a farmer was told and the Supreme Court upheld the ability of the federal government to limit his ability to grow food on his own farm for personal consumption. Because they said it affected the aggregate amount of food consumed in interstate commerce and the price of food.”

This is a pretty odd statement, as it rests on the idea that the litigants and justices simply forgot about the most famous commerce clause case. This is easily disproved. Wickard was specifically discussed several times in Tuesday's arguments, each time in cross-examination of the challengers of the law.  For example, here's Chief Justice Roberts questioning Paul Clement:

Well, Mr. Clement, the key to the government's argument to the contrary is that everybody is in this market. It's all right to regulate Wickard -- again, in Wickard against Filburn, because that's a particular market in which the farmer had been participating. 

Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it. 

MR. CLEMENT: Well, with respect, Mr. Chief Justice, I suppose the first thing you have to say is what market are we talking about? Because the government -- this statute undeniably operates in the health insurance market. And the government can't say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market. 

No surprise, the case was also cited several times in each of the briefs.

So, even leaving aside the merits of Clinton's argument that Wickard is controlling (hint: it is not), it seems that President Clinton doesn't really know what he's talking about. Unless, of course, this is just politics.

 

I want you to know that the challenge to the individual mandate is not frivolous

As Mr. Gillette recently pointed out, I "predicted" back in 2010 that the Supreme Court would uphold the individual mandate under the Necessary and Proper clause of the constitution. As with all my predictions, this was more or less pure speculation. I'm no expert on the constitution or the Supreme Court—I only pretend to be to make this blog more interesting and, more importantly, to annoy Mr. Gillette.

In re-reading my prediction post, however, I was struck by its discussion of an exchange between professors Jack Balkin (of the Balkinization blog) and Randy Barnett (the intellectual architect of the constitutional case against Obamacare). In short, Balkin theorizes that Barnett's arguments that the challenge to the individual mandate is not frivolous are not just arguments, but "performative utterances":

Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.

Barnett surprisingly agreed that he and others were "trying to do exactly this."

At this point, it is beyond dispute that Barnett succeeded. No one can credibly claim that an argument that has produced a circuit split and reached the Supreme Court, where it received six scheduled hours of oral argument, is frivolous (at least not without resorting to pure cynicism).

Yet, incredibly, many respectable people do continue to insist that Barnett's arguments are beyond the pale (or, if you prefer, "garbage"). How can this be? I would suggest that Balkin's wisdom works in reverse. These accusations of frivolity are also "performative utterances"—an attempt to make the arguments frivolous by virtue of the fact that they, prominent legal journalists and scholars, are saying they are frivolous.

The two big differences are: (1) these people never admitted that they were "trying to do exactly this"; and (2) they failed.

The Importance of a Limiting Principle

During oral argument in the Obamacare case, one of the most heated issues was whether the individual mandate is consistent with any "limiting principle" of Congress's power under the Commerce Clause. Libertarian opponents of the mandate argue that there is no such limiting principle, while supporters of the law argue that there is.

A third group, however, seems to think that this talk of a limiting principle is nonsense. For example, Slate blogger Matthew Yglesias asks "What Is The Limiting Principle Of The Taxing Power?":

Congress could, if it wanted to, completely vitiate economic freedom purely through the tax code. You would impose a statutory rate of 100 percent and then create deductions for the stuff Congress wants you to buy—houses, health insurance, broccoli, whatever. . . If a political consensus exists that Congress wants to financially penalize non-purchase of broccoli, Congress will find a way. 

His argument is that the search for a limiting principle to the commerce power is pointless because Congress's other powers, such as the taxing power, have no limiting principle.  In other words, Congress can already do what it wants, so objections based on federalism and liberty are hollow.

This is incorrect. Congress could surely use its taxing power to accomplish all sorts of economic goals in the way that Yglesias suggests. But there is a clear structural limit to Congress's taxing power: the power to tax is limited to the power to take people's money away. The power to tax is not a power to directly regulate behavior at all. It is not a police power.

The commerce power, however, is a general police power to regulate any behavior with a substantial effect on interstate commerce. For example, Congress "regulates" the possession of controlled substances in interstate commerce by imprisoning people for possessing them. Thus, if Congress has the power under the commerce clause to mandate that people buy health insurance, it has the power to imprison them for failing to do so. (So far, it has chosen only to fine people.) The end result is that if there is no limiting principle on the commerce power—if the simple act of being alive is a commercial act—then Congress has the power to imprison anyone for anything. In other words, a general police power.

It is uncontroversial that the constitution does not grant Congress that kind of unfettered police power. Accordingly, the lack of a limiting principle works as a reductio ad absurdum, and the conclusion is that there must be a principled limit on the kinds of behavior that Congress can regulate under the Commerce Clause.

Laughing at Obamacare: a final tally

The morning and afternoon sessions of the Supreme Court's hearing on the constitutionality of Obamacare are done.  The morning transcript is here and the afternoon transcript is here.  For reasons that should be obvious given my last post, I will not predict which side won. 

We will, however, continue our coverage over whether Justice Thomas spoke at the hearing (he did not) and whether there were any laughs at the hearing (there were).  More on that after the break.

If it is so obvious that Obamacare is doomed, why do they bother with a third day of hearings?

I first started reading Slate when I was in law school.  I don't recall how I found out about it, but the feature that caught my attention was "Supreme Court Dispatches."  The dispatches were a weekly feature that would provide a report on what happened at the Supreme Court oral argument that  week.  Eventually, the dispatches stopped coming out every week and now only come out on well-publicized cases.

I thought about the Supreme Court Dispatches yesterday when the various media reports came out about how Obamacare is doomed based on yesterday's oral argument.  For example, CNN legal analyst Jeffrey Toobin says that the individual mandate is "doomed" based on how the oral argument went.  Ezra Klien of the Washington Post suggested that the apparently inevitable striking down of Obamacare might not have happened if Justice Kagen was still Solicitor General.

Predicting how the Supreme Court would rule based on oral argument was a frequent part of the Supreme Court Dispatches.  It was also frequently wrong.  For example, when reporting on Fitzgerald v. Barnstable School Committee et. al., Dahlia Lithwick predicts that the poor kindergartner who was sexually harassed on a school bus is going to lose.  Then the opinion came out and the student won in a unanimous opinion.  Ms. Lithwick's colleague, Emily Bazelon, wrote a piece predicting that the employee in CBOCS West, Inc., v. Humpries, would lose his retaliation claim because the Supreme Court's "right flank could use this case not only to block suits for retaliation like Humphries', but also to set the stage to make it ever harder to sue for discrimination under other laws."  The Supreme Court ruled 7-2 in the employee's favor.  Ms. Lithwick predicted that the "the most business-friendly Supreme Court in decades" would rule for big business in Wyeth v. Levine.  Instead, big business lost a 6-3 decision.  Ms. Lithwick also predicted that historians would use the case of Safford Unified School District #1 v. Redding as an example of  "not getting it" because the oral argument so badly for the student who was subjected to a strip search because she brought prescription-strength ibuprofen to school.  The student won a 8-1 decision.

The point of this post isn't that Ms. Lithwick, Mr. Toobin, and Ms. Bazelon are terrible at predicting what the Supreme Court will do (at least that is not the intended point).  Instead, my point is that it is silly to try to predict how a case will come out based on oral argument and people should ignore any predictions based on oral argument.  All oral argument does is demonstrate that some of the justices like to watch lawyers respond to tough questions (and make jokes).  Fans of Obamacare (the statute, not the word) should not despair that the law will be struck down and foes of Obamacare should not be too encouraged by the fact that the Solicitor General faced some tough questions.  I am biased, but I still think the best prediction on the outcome of the case was made almost two years ago.

Obamacare oral argument at the Supreme Court

UPDATE DAY 2:  The transcript of day 2 of the oral argument is here.  Justice Thomas did not speak.  Pages 41 and 87 of the transcript are where Justice Scalia makes jokes that make people laugh.  So, Justice Scalia doubled his laugh total from day 1.  On page 88, Justice Breyer gets into the act and makes a joke.  For my money, Justice Kagen steals the show with an amusing bit of self-deprecation on page 90. 


ORIGINAL POST:
The Supreme Court posted the transcript of the first day of the oral argument about whether Obamacare, to use a word Mr. Torvik likes, is constitutional.  The transcript is here. The Reader(s) of Thursday's post about Justice Thomas may be interested to know that Justice Thomas's silent streak remains alive and well.

Also alive and well is Justice Scalia's apparent campaign to get a laugh at every oral argument.  On pages 15-16 of the transcript, Justice Scalia tried to get a laugh by pointing out that federal court judges are stupid.  The justices were asking questions about what particular rule may, or may not, give them jurisdiction to hear the case.    Justice Scalia said,

what's going to happen is you're going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent.

Note that the transcript does not contain the word "laughter" after Justice Scalia's observation.  From this, I take it that this joke went over like a lead balloon.  Perhaps the joke went over poorly because people don't know whether laughing about lower court judges is appropriate at the Supreme Court.

Justice Kennedy, possibly unhappy that the halls of the Supreme Court were not ringing with laughter, then made a joke and got a laugh on page 36 of the transcript.  Justice Ginsberg was asking Solicitor General Donald Verrilli about the government's interpretation of the Anti-Injunction Act when Justice Kennedy cut in,

JUSTICE GINSBURG: So -- so, you agree that we would not -- if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction.

GENERAL VERRILLI: There would be no reason to decide the jurisdictional issue. 

JUSTICE KENNEDY: Don't you want to know the answer?

(Laughter.) 

Justice Scalia, possibly not wishing to be outdone, then made another run at getting a laugh on page 40. The justices were asking the solicitor general whether the injuction at issue in a previous case was an injunction prohibiting the government from collecting a tax or if it was an injunction of the taxpayer preventing them from paying the tax. The exchange goes:

GENERAL VERRILLI: Well, in fairness, Justice Breyer, the United States did intervene in the -- in the Davis case and was a party, and so -- not as far as I'd like, I guess, is the answer.

JUSTICE SCALIA: Don't do it again, because I think that goes too far. I don't think that's restraining the collection of a tax. It's restraining the payment of a tax. (Laughter.)

GENERAL VERRILLI: Well - 

JUSTICE SCALIA: You don't want to let that bone go, right?

I think we can all agree that jokes like these make it pretty clear that Justices Kennedy and Scalia should curtail their plan to hit the road and become a comedy duo in the tradition of Rowan and Martin.  The jokes might also be support for the idea that lawyers are simply not very funny.

I like "Obamacare"

I call the health insurance reform legislation that President Obama spearheaded "Obamacare." I prefer this to any of the alternatives because it is simple and everyone knows what it means. The alternatives—such as "PPACA" (short for the official name of the legislation, which is "Patient Protection and Affordable Care Act") or "ACA" (short for "Affordable Care Act" which is short for PPACA)—are all some combination of unwieldy, opaque, pedantic and propagandizing.

Some people object that "Obamacare" is negative propaganda. I disagree, but I've still felt a little sheepish using it knowing that the pedants object. No more. For today I received an email from Jim Messina, the campaign manager for Obama's reelection campaign, entitled "I like Obamacare."

In it, Mr. Messina urges me to "Let everyone know: I like Obamacare."

I don't take many hard policy positions on this blog, and I'm not prepared to take such a firm stance at this time. (Plus, the natural follow-up questions if I were to take such a position would be, "Well, do you like like Obamacare?" and "Do you want to marry Obamacare?"—which would be very uncomfortable to answer.)

I am, however, prepared to say this: I like "Obamacare." The word. And since the Obama administration has now officially endorsed it, I think it is something everyone in this country, whether red-stater or blue, can get behind.

Necessary and, in the end, proper

First, I thought I'd point out an interesting back-and-forth between Randy Barnett and Jack Balkin  about the constitutionality of the individual mandate.  In a post that I linked to in my last post, Barnett argued that DOJ's reliance on the tax power means that his attacks on the commerce clause justification must not be—as some have alleged—frivolous.  Prof. Balkin responds with the obvious point that trial lawyers always make every available argument, so DOJ's making the "tax" argument doesn't necessarily mean that the attack on the commerce clause justification has merit.  Then Balkin goes on to make a rather strange (and interesting) meta-argument that people like Barnett aren't just making assertions about the non-frivolity of their position, but are actually making their position non-frivolous by the act of making the argument:

Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.

(emphasis mine).  Surprisingly, Barnett agrees!  Responding to a related point, he says, "Jack [Balkin] is right about this. I and others are trying to do exactly this."  Lots of interesting stuff in the exchange.