Republican Pressuring of Justices is.... Par for the Course?

Ah, memories....

Novelist John Grisham could hardly spin a more provocative fiction: The Republican Party and its surrogates mount an aggressive campaign to intimidate the chief justice of the United States, implying ruin and ridicule for his failure to vote in a pivotal case according to the political party's wishes.

If only it were fiction.

The justice is, of course, John Roberts, and the case involves the Affordable Care Act (ACA), aka "Obamacare," which would be affordable only if the court upheld the individual mandate requiring all Americans to buy health insurance.

The right's narrative goes as follows: If the justices don't side with the Obama administration, they will be viewed as brilliant and nonpartisan. If the reverse occurs, why then, the justices are partisan, judicial activists who have delegitimized the court.

Right-wing radio personality, Bryan Fischer laid it out for Roberts, whose vote proved decisive: Roberts "is going down in history as the justice that shredded the Constitution and turned it into a worthless piece of parchment," adding that Roberts acted "more like a demolitions expert" than as an "umpire". Rep. Mike Pence (R-IN) compared the health care ruling to Sept. 11. Breitbart News editor Ben Shapiro sniffed that Roberts "was the worst part of the Bush legacy". Of course, had the Roberts court struck down health-care reform by a partisan 5-4 vote, then the chief justice's performance of his role as a conservative arbiter who puts law ahead of politics would be championed as an unqualified success.

Lest there be any lingering confusion, permit me: You didn't vote our way, Justice Roberts, so you will go down in history as having abrogated your duty; your reputation will be destroyed; and the country will hold you accountable not only for upholding legal concepts that were once embraced but now rejected by conservatives, but also for setting back the Republican political agenda.

In so many words.

Wait, the Republican political agenda? Yes, according to many on the right, including David Frum, by failing to roll back Obamacare, Republicans "will have to fight inch by bloody inch for changes they could have had for the asking in 2010". Legal scholars on the left insist otherwise, noting that lawyers for the defendants were explicit in denying any interest in judicial activism and simply asked the court to respect the democratic process.

I leave this debate to others more worthy, but the idea that decisions must be popular and/or bipartisan is silly on its face. Just because something is uppopular doesn't make it "wrong" or legally incorrect. And, difficult as this is to accept in our Twitter culture, Supreme Court justices needn't be popular.

Nevertheless, the right is pushing many such non-legal arguments, including that the court should have overturned a "constitutional" legislative act. Even the Republican notables like Rand Paul advanced this argument as recently as yesterday, arguing "Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so", although the ACA has, in fact, been held constitutional.

One could easily forget that Republican notables like John Cornyn (R-TX) and Chuck Grassley (R-IA) once argued, respectively, "Unelected and serving with lifetime tenure, and substituting their view for the views of the people’s…the people and their elected representatives. That’s not the way our democracy is supposed to work" and "Judges are not policymakers. That’s what we are in the Congress of the United States. Judges are called on to decide the facts and to apply the law".

This not-so-stealth campaign to influence the Supreme Court is obnoxious, if not unethical. It is also factually challenged. Upholding a law, even a controversial law, is not be unprecedented or extraordinary, as any first-year law student could tell you.

It happens. Yet criticizing the Supreme Court is a consistent refrain from the political right, which has spent many decades attacking judges and courts as activist and partisan. In his 2008 campaign presumed Republican presidential nominee Mitt Romney asserted, "The Bill of Rights are under constant assault from activist judges". Rep. Steve King (R-IA) speaks of "the judicial activism that’s begun to break down this civilization, and this culture".

Publicly chastising the court -- and now taunting Roberts specifically -- seems to have two purposes. One is to get under Roberts' skin in hopes that he'll rule the "correct" if not necessarily "legally correct" way. Two is to lay the groundwork for declaring the court illegitimate if Roberts again upholds legislation to which the Republican Party objects.

Either way, it's politics at its filthiest.

Mark Twain on Romney

"If you tell the truth, you don’t have to remember anything."

Silver Lining or Sow's Ear

What's that word Ilya Somin likes, again... was it "overwrought"? Here's his effort to find a silver lining in what he views as a bad decision:

I do think the ruling is a cloud over the Constitution, and I do believe that Chief Justice John Roberts’ opinion allows Congress to mandate almost anything it wants, so long as the mandate is structured as a so-called “tax” similar to the individual health insurance mandate. In addition, the ruling upholds a major unconstitutional statute.

You see, the Supreme Court isn't the final arbiter of what is or is not constitutional. Those five votes mean nothing without Somin's endorsement. Seriously, I understand why people, particularly laypeople, complain that matters deemed constitutional by the Supreme Court are "unconstitutional", but last I checked Marbury v. Madison was still good law.

One thought that comes to mind is, "Be careful what you wish for, because you just might get it." One of Somin's co-bloggers was the inventor of the "activity/inactivity" distinction and it must feel pretty good to devise an entirely new legal construct to defeat a specific major statute and, in less than two years, have five justices of the Supreme Court embrace it. But this decision would have been a lot cleaner, a lot more honest, had the Court followed a traditional Commerce Clause analysis. It would have been possible to address "activity/inactivity" within that context, and to make clear to Congress that the mandate was only permissible because of the unique aspects of the health insurance market. But with four justices embracing the newly concocted distinction as a basis to overturn the entire law, rather than producing a modest decision that clarified the limits of the Commerce Clause, Roberts ended up endorsing an extraordinary expansion of the tax power of Congress.

Somin adds, "I am also far from certain that the Court will stick to Roberts’ dubious Tax Clause analysis in future, less politically charged cases." If you take Roberts' position at face value, the expansion of the tax power is far more frightening than the "activity/inactivity" distinction. If you take the position that Roberts didn't really mean it - that he was making an argument of convenience in order to save the statute, but he'll never again support such broad tax powers - you would appear to be taking the position either that Roberts contrived a justification, to be used once and never used again, to uphold an unconstitutional statute, or that he was sufficiently embarrassed by the idea of using a specious Commerce Clause analysis to overturn a statute he believed to be constitutional that he resorted to a second specious argument to save the statute. Is there a third alternative?

The "activity/inactivity" distinction is now a footnote, about as important to future litigation as Third Amendment jurisprudence.¹ Congress will simply be careful about its phrasing, and will never again pass a mandate. Yes, it will pass taxes, subsidies, or regulate "inactivity" in a manner that is virtually indistinguishable from the regulation of activity but, as they say, same as it ever was.

Somin dreams of a future in which the Supreme Court revisits the issue, "It depends on future events such as the identity of the next few Supreme Court appointments, and whether or not Obama’s health care law can be repealed or modified." Odd, isn't it, how he doesn't see that as the job of Congress?

In my opinion, there never should have been a mandate. It would have been much more simple, for example, to impose a modest tax that would be applied toward premiums or returned as a tax credit for the insured. But that sort of thing is impossible in this era of Republican demagoguery about "new taxes", so Congress adopted the Republican idea of the mandate. And the next thing you knew, Republicans were arguing that the sky was falling. Now, as it turns out, we did get a tax - because Justice Roberts says it's a tax.

One of Somin's co-bloggers, David Kopel, wrote a post titled, "Next step: Repeal the individual mandate because it is unconstitutional". Again, he means "should have been held unconstitutional", but he gets ahead of himself, dreaming of a future court packed with justices who think like Alito or Scalia.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress.

I can only hope that, in the wake of this decision, the Repubicans get over their obstructionism and participate in the creation of a superior alternative to the mandate. Unless that happens, though, I think Kopel is dreaming if he believes the health insurance industry will stand for its repeal. If it is repealed or modified, I disagree that the impact of the mandate will be significant. Mandates seem principally to be a Republican thing - other than the Republican ideas for a health insurance mandate and Social Security privatization, what else is there? If the Republicans again push Social Security privatization they'll follow Roberts' lead and say "It's a tax, not a mandate - and we're reforming the tax to make it better." Beyond that, actually including that, it's all semantics.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

Funny, isn't it, how reliance upon the democratic process is possible, and perhaps even better than a Supreme Court ruling, once you lose your case in court. But you know, maybe that should have been the Republican Party's starting point. Winning at the ballot box, not the court. Republicans used to at least pretend they preferred that approach....

Update: Via the VC:

"I think I figured out what happened. Randy Barnett made a wish on a cursed monkey’s paw that his commerce clause argument would be accepted. It explains everything, no?"

(Randy Barnett being the inventor of the "activity/inactivity" argument).
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1. Before you go looking, there isn't any.

What Will the Candidates Say About Health Care

Jamelle Bouie reminds me of Mitt Romney's response to the ACA ruling, a trademark series of falsehoods and misrepresentations. The question now is, will he continue to argue that he's going to repeal the ACA or is he going to back away from that position? With the law upheld as constitutional, and with many of its provisions being quite popular, calling for a full repeal may turn out to be bad politics. And while lying about the impact of the ACA may work in the short-term, I don't think it's an approach that Romney can successfully sustain through November.

I've heard some argue that President Obama won't want to emphasize his legal victory because the mandate remains very unpopular. That remains the most likely avenue for political attack - unless Romney decides to stay quiet on the issue because of his past vigorous endorsement of mandates, he may continue to press the issue. "What I did as governor was completely different."

I'm wondering, though, if President Obama has been granted an opportunity to trumpet the popular provisions of the ACA. To hammer home the message, "You really don't want this thing repealed."

I am proud of our achievement in passing this legislation, in defending it from attack, in having it upheld as constitutional. I am proud that we are giving every American the opportunity to get health insurance at a fair price. I am proud that we allow young people to stay on their parents' health insurance while they are in college. And whatever my opponent may say, the insurance industry agrees that this is a good law. The CEO of UnitedHealth, one of the largest health insurance companies in the nation, has stated that this law includes changes that "are good for people's health, promote broader access to quality care and contribute to helping control rising health care costs"

My opponent says he has changed his mind since he was governor of Massachusetts, since he took the Republican idea of a health insurance mandate and made it the law of that state. Now he says that he does not like health insurance mandates. When I ran for this Office I shared that opinion. I accepted a health insurance mandate only because I was convinced, in part by arguments my opponent has made, that without a mandate this reform would bankrupt the health insurance industry.

For four years I have been inviting legislatures from both sides of the aisle to come together and create the best possible reform bill. I repeat that invitation, to them and to my opponent. If they have figured out a way for healthcare reform to succeed without a mandate, I invite them to share it. We have more than a month until the August recess begins, and we can have a bill passed within a week.

But the time for divisiveness has passed. We passed this legislation two years ago, and the courts have upheld it as constitutional. My opponent says he wants to overturn this bill. To take insurance coverage away from college kids. To tell people with pre-existing conditions, "Sorry, no insurance for you." To reduce people's access to healthcare and to increase the cost of that care. I don't accept that. It's time to stop putting politics ahead of people's health.

As he did with immigration, it seems possible for the President to put Romney on the defensive, and to hammer home the growing perception that Romney is a man who won't take a position on anything.

Using Reconciliation to Eliminate the Mandate... Won't Happen

Timothy Carney makes an argument that is technically true, that with the mandate reinvented as a tax, the Republicans have a genuine shot at repealing it through reconciliation. But that won't happen.

The purpose of the mandate is to protect insurance companies. The free rider problem is real. If we can wait to get insurance until we need expensive care, pay the same premium as a healthy person, then drop coverage the second our care is complete, health insurance companies will go out of business. Leaving aside for the moment that very few voters or contributors that the Republican Party cares about will actually be affected by the mandate, they are not going to take an action that would outrage every health insurance company in the nation.

Take That, Nancy Pelosi....

George Will believes that conservatives should view the Supreme Court's endorsement of the "activity/inactivity" distinction as a consolation prize. Maybe he's right - after all, as the issue seems to come up every two centuries or so, perhaps a couple of hundred years from now the Supreme Court will review an inartfully worded statute and find it to impose an unconstitutional mandate. And perhaps they'll again say, "But who cares, because if we call it a 'tax' it's all good".

Will takes a potshot at Nancy Pelosi:

When Rep. Nancy Pelosi (D-Calif.), asked where the Constitution authorized the mandate, exclaimed, “Are you serious? Are you serious?,” she was utterly ingenuous. People steeped in Congress’s culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle.

You know, "Ha ha ha ha, she said 'Are you serious' because she thought the mandate was permissible under the Commerce Clause. But the joke was on her because it was actually permissible under Congress's power to levy taxes. Next time she's asked that question and she again answers 'Are you serious', she'll be so embarrassed that she once gave the same answer for the wrong reason."

Brooks suggests that the proper question for the Court is "the 'legitimacy question'":

Is it proper for the federal government to do this?

As I have previously commented, I agree with that thesis - that the court should not put form ahead of substance. But unlike Will I noticed that the court answered his question in the affirmative.

You have to also love Will's argument of convenience about conservatives, democracy and patience:

Conservatives understand the patience requisite for the politics of democracy — the politics of persuasion. Elections matter most; only they can end Obamacare. But in Roberts’s decision, conservatives can see that the court has been persuaded to think more as they do about the constitutional language that has most enabled the promiscuous expansion of government.

All the right wing demagoguery against the ACA, the creation and advancement of a legal theory designed solely to target the ACA, lawsuit after lawsuit after lawsuit, trying to win through the courts a battle that they lost in the legislature... None of that was about trying to "end Obamacare" because (now that the Supreme Court has ruled) conservatives understand that "only elections" can do that.

One last question: If Will is in fact concerned about how "constitutional language" is interpreted, where can I find support for the "activity/inactivity" distinction in the actual language of the Constitution? I urge him to stop writing columns and devote every waking moment to the intense study of the Constitution. After all, it's not a long document - how long can it take?

How Justice Roberts Saved Social Security Privatization

We all know that the Republican Party loved the idea of a health insurance mandate before they learned to hate it. But it was not so long ago that a significant number of Republicans embraced another mandate: Social Security privatization. Rather than having the Social Security Administration invest in government bonds, the idea was that taxpayers would be given a list of private investment accounts and be required to put at least some of their money into those private accounts.

Before today it was difficult to see how you could reconcile the idea that a health insurance mandate was a horrendous abuse of the Commerce Clause, but forcing taxpayers to invest in private accounts remained constitutionally viable. Now, just as the penalty behind the mandate is shrugged off, "It's a tax, and the government is allowed to try to influence behavior through taxes," it seems that the same sort of distinction can be made in relation to Social Security. If there is no, um, public option - if one of the choices available is not "keep investing in government bonds" - that position may be a bit weaker; but if such an option is available, even if there is a penalty to sticking with that option (e.g., for every $1 you can put in a private account, you get only 75 cents to put into bonds), under Roberts' holding it's simply an exercise of the power of taxation.

As for justices who might try to hold Social Security privatization unconstitutional, they would have the choice of endorsing the Court's view that the "activity/inactivity" distinction is constitutionally valid, in which case Roberts would agree but assert "but this is a tax, so that's irrelevant", or they would have to work within the confines of tax law, to which Roberts could respond, "This is far less coercive than the health insurance 'tax', yet you voted to uphold that tax."

I'll grant, Social Security privatization is not imminent. G.W. pushed the idea, attempted to rebrand it when it proved unpopular, and was ultimately unable to convince a majority of the members of his own party to pass legislation. Right now it's a dream, but proponents of privatization should be grateful to Justice Roberts for keeping the dream alive.

Did the Supreme Court Make it Unconstitutional to Repeal Medicaid?

In what appears to be an unprecedented interpretation of the Spending Clause, Justice Roberts held that if the federal government makes a significant change in who is eligible to participate in a program, the states receiving funding for the original program cannot constitutionally be required to either accept the changes or end their participation - they must also be able to maintain the status quo.

Roberts introduced an analysis that derives from contract law: Medicaid is a contract between the federal government and the states and, while the federal government reserves the right to modify that contract, it is possible for a modification to be so dramatic that it transforms the program into something other than what was accepted by the states. As in Roberts' view the changes implemented by the ACA reach that point, Congress must allow states to continue the present contract, rather than forcing them to choose either to accept the expanded program or to opt out entirely.

To look at it another way, Roberts appears to be declaring that you cannot take the existing Medicaid program, dramatically change the way it works, and say it's the same program merely because you use the same name. He has a point: that would be almost as ridiculous as turning Medicare into a voucher program and pretending that you're not ending Medicare as we know it. (Cough.)

If the change to Medicaid is as drastic as Roberts suggests, you could take the position that it's not an amendment of the existing program. You could regard it as the repeal of the existing program and its replacement with a new program that simply uses the same name. Would Roberts argue that an explicit termination of Medicaid, and its explicit replacement with "Medicaid II" would be unconstitutional? If not, and Congress has the right to terminate the Medicaid program, how can the "threatened loss of over 10 percent of a State's overall budget" - the exact same loss that would result from the program's perfectly lawful repeal - prevent the federal government from asking states to accept or reject the amended program?

Activity vs. Inactivity and The Victory of Form Over Substance

One of my objections to the "activity vs. inactivity" argument, a distinction not based upon past jurisprudence or constitutional language, but instead concocted less than two years ago by a right-wing law professor specifically to target the Affordable Care Act, is that it puts form ahead of substance. In evaluating a statute proponents of that standard ask the Court to ignore both whether Congress is acting within the scope of its powers and the importance of the issue Congress is attempting to address.

Let's travel for the moment back to 1942:

"We need to regulate crop production in this time of crisis, or agricultural markets will collapse. But we have farms growing feed grain in addition to their allotted crops to feed their livestock. Let's pass a law that says if you can't feed your livestock out of the crops you're permitted to grow, you must buy your feed grain from another source."

"Horror of horrors, no! That would compel the farmer to engage in commercial activity! The next thing you know we would be forcing people to buy broccoli!"

"Let's say you're right - how do we get him to buy his feed grain from somebody else if we don't impose that requirement?"

"Simple. We simply tell him he can't grow the additional grain"

(See Wickard v Filburn). The outcome is the same, with the arguable distinction that the farmer is left with the "freedom" to either sell all of his livestock or to let his animals starve, neither of which were likely.

Now let's move back to the present:

"We want to allow universal access to health insurance, but we can't do that if we allow free riders - if people can avoid buying insurance until they're sick, insurance companies will take a loss on every customer. We need to impose a mandate. Let's require everybody to have insurance, and impose a small penalty on those who don't obey that mandate."

"Horror of horrors, no! That would compel the individual to engage in commercial activity! The next thing you know we would be forcing people to buy broccoli!"

"Let's say you're right - how do we get people to buy health insurance if we don't impose that requirement?"

"Simple. We do exactly the same thing, but call it a tax!"

The law professors who created and pushed the "activity vs. inactivity" distinction are patting themselves on the back for the court's effective 5:4 vote recognizing that distinction. But as constitutional doctrine goes, it's a one-off. To the extent that Congress is using its actual powers in a valid manner, the distinction calls into question only the language the use when drafting legislation.

"You must buy or pay a penalty...", no, that compels activity. Make it "You can't make or grow..." or "You must buy or pay a tax."

It's funny in a way that, in order to appease the factions that have created and pushed the "activity vs. inactivity" distinction. However he followed that homage by holding that the mandate was effectively a tax, and thus a noncontroversial exercise of the powers of Congress. His analysis was thus much less about whether Congress was properly exercising its powers, than it was of whether Congress used the right language when engaging in what he accepted to be a proper exercise of its power.

Roberts chose to take an expansive view of the power to tax, endorsing the idea that Congress can use a tax as a tool of coercion. That would be more significant if there were a significant chance that Roberts would take the same position in a future context and convince a majority of the court to follow his lead. I don't expect that to happen, as I believe Roberts was making an argument of convenience.

Here's the thing: If the possibility of a "broccoli" mandate is a genuine danger, if it necessitates creating a wholly new constitutional doctrine, supported neither by the text of the Constitution nor by any Supreme Court precedent, if it requires holding a valid exercise of Congressional power to be unconstitutional because some future Congress might attempt to impose an improper mandate, why wouldn't that very same slippery slope apply to a coercive tax?

If you focus throughout on the substance of the law - is this a proper exercise of Congressional power - there's no need to play that sort of game. Given the structure of the reform law, a mandate was necessary to avoid free riders. But for the newly minted "activity vs. inactivity" doctrine, this would have been a rather simple case, turning on whether Congress was exceeding the scope of its powers. Instead, as a palpably angry minority of the court wanted to overturn the entire ACA based upon the "broccoli mandate" argument, Roberts felt compelled to join the game.

In the longer term, the "activity vs. inactivity" distinction is a footnote to history. Congress will watch its wording. In one future, this entire case becomes a footnote to history. Future justices move away from the type of right-wing activism favored by those who concocted the activity-inactivity distinction, and we return to the type of Commerce Clause analysis we've seen for the past seventy years. In another world, future justices build upon other parts of the decision, refining "activity vs. inactivity" into a test that can be used on presently non-controversial issues, following Roberts' proposed lead by creating new limits on Congress's spending power, and moving us away from the legal doctrines of the New Deal era. In that future, Roberts can claim to have laid the cornerstone of the new jurisprudence. Either way, his opinion does a very good job of protecting his own reputation and eventual legacy.

Update: Richard Epstein summarizes how dramatically Roberts' position on taxation departs from precedent.

A Broccoli Tax Instead of a Broccoli Mandate?

Greg Sargent quotes a law professor on the Roberts Court's apparent expansion of Congress's authority to regulate through taxation:

Barry Friedman, a New York University law professor who wrote a brief supporting Obamacare, argued that by affirming the ability to regulate with taxing power, the decision created a precedent for future regulation along these lines.

“They can’t make you eat broccoli, but they can tax you for not eating it,” Friedman joked, by way of summarizing the meaning of the decision. This is, of course, a reference to what Jonathan Bernstein has called the Broccoli Tyranny argument....

“This is far more devastating to federalism and the balance of power between states and the national government,” he says. “You can now tax pretty much anything.”

I think Friedman is correct in his description of the logical consequences of Roberts' opinion but something tells me that, were squarely before the Court, Roberts and the dissenters - for that matter, perhaps all 9 justices - would have no difficulty distinguishing a "broccoli tax" on the grounds that the rare and compelling circumstances surrounding health care and health insurance don't exist in relation to broccoli.

"But," you protest, "Wouldn't that approach betray that the entire broccoli argument was specious from the outset?" Yes, it would. But Roberts' didn't let his embrace of the slippery slope - his treatment the "broccoli mandate" as a genuine possibility as opposed to a reductio ad absurdum of the opposition's argument - get in the way of his approval of the mandate as a tax. There's no reason to believe he won't invoke the slippery slope the next time a similar tax question comes before the court. Or he could choose a better approach, embracing the argument that the unique aspects of the healthcare market can justify or necessitate measures that would not be permitted in other contexts. Either way he gets at least five votes.

[Insert obligatory Emerson quote here.]

Photoshop of the Day

"CNN's Finest Hour".

What Is Judicial Activism, Anyway?

Yesterday I argued that an assessment of an appellate court's activism is significantly more complex than setting an arbitrary standard, even if it's one that's relatively easy to measure, determining the total number of times the court's decisions implicate that standard, and presenting the sum as a score of its activism. Specifically, I rejected as a measure of activism a simple sum of the number of times that the U.S. Supreme Court overturns precedents and invalidates federal laws.

In his resort to that standard, I'm not certain that Jonathan Adler was endorsing it, so much as making an argument of convenience in defense of the Roberts Court. I understand the temptation to try to create an objective measure of a court's activism. But as I suggested yesterday, a court can be extremely activist while avoiding issuing decisions that are counted as activist, or through a small number of decisions that have a profound impact on society.

Today, Adler's co-blogger, David Bernstein, inadverently supports my argument:

Has there been a single pundit from the liberal left who has proactively denounced the Supreme Court for undue “activism” if it invalidates the individual mandate who has also denounced the Supreme Court for activism for invalidating most of Arizona’s immigration-enforcement statute? I understand there are all sorts of distinctions one can draw between the two cases (and I heard Jeff Rosen cleverly drawing them on the Diane Rehm Show yesterday), but a presence or lack of “activism” isn’t one of them.

If we apply the definition previously shared by Adler, the invalidation of most of Arizona's immigration law cannot be regarded as activist as it neither reverses precedent nor invalidates a federal law. Conversely, applying that same definition, upholding the entire Arizona immigration law would have upset long-standing precedents on federal preemption and would thus have been an activist decision - the opposite of what Bernstein implies. It's possible that Bernstein would argue that the decision was activist no matter which side prevailed, but that would go beyond highlighting the difficulty in defining activism - it would deprive the concept of any meaning.

Bernstein basically admits that he is comparing apples to oranges. Certainly, just as apples and oranges are both fruit, two very different decisions¹ can both be activist. But in order to support that contention the proponent of the comparison should provide structure to his argument in the form of a definition of judicial activism. What distinctions between cases does Bernstein believe would help us differentiate activist from non-activist opinions? If no distinction is relevant, then isn't every opinion activist?

Bernstein continues with an argument that reinforces a point I made yesterday - that it's possible for a Court to issue a profoundly activist decision that reinterprets, narrows, or finds an exception to prior case law such that it is not technically reversing a precedent when issuing its decision:

The closest I’ve heard to a plausible distinction is that the Arizona cases weren’t “activist” because they followed precedent, but invalidating the individual mandate would be because that would involve rejecting precedent. But I’m quite confident that if the Court does invalidate the individual mandate, the majority will express agreement with the consensus of lower courts that the mandate is itself unprecedented, which naturally means that there is no prior case directly on point.

That is, after all, what the proponents of the "action" vs. "inaction" distinction have been aiming for since they invented the distinction less than two years ago, after the legislation had passed. By Adler's definition the reversal would remain activist, as it would undermine federal legislation, but Bernstein's observation highlights how reversal of precedent is meaningless as a test - how a court can be exceptionally activist yet technically uphold precedent?

The closest thing that Bernstein offers to a definition of activism is,

Either one believes in a “restrained” judiciary, or one does not.

That is, he offers a truism that does nothing to help clarify what judicial conduct is or is not activist.² Further, if the measure of activism is whether or not the court shows "restraint", wouldn't any party who calls upon the Supreme Court reverse part or all of a precedent, or overturn part or all of a federal statute, be demanding judicial activism? If so, once again the concept loses any significance.

Bernstein proceeds by proclaiming that people on the "liberal-left" don't care about judicial restraint, something belied by decades of liberal hand wringing over the manner in which the Supreme Court has chipped away at Roe v. Wade.

It’s really not much of a surprise that the vast majority of those on the liberal-left who support the constitutionality of the mandate don’t believe in a restrained judiciary. They rather simply don’t think that federalism concerns are constitutionally significant (or, if they are, that the importance of health care reform far outweighs their significance).

The latter part of Bernstein's missive about liberals is more interesting. Bernstein clarifies that it's not that the "liberal-left" doesn't care about judicial restraint, but that the "liberal-left" is not concerned about the brand of libertarianism that the Court endorsed in Bernstein's favorite case, Lochner vs. New York, but which was repudiated by the Supreme Court in the New Deal era in favor of an expansive interpretation of the Commerce Clause.

Leaving aside for the moment the fact that the Arizona immigration case deals with federal preemption, the Supremacy clause as opposed to the Commerce Clause, it is fair to say that the "liberal-left", and likely pretty much everybody who is not on the libertarian right, shows a lack of concern for federalism that Bernstein might find troubling. But if Bernstein means to suggest a measure of "judicial activism" by which "judicial restraint" can be measured by "federalism concerns", and not by how the court approaches legislation, precedent, or the text of the constitution, he's effectively defining as "activist" any decision that is not consistent with a specific aspect of his personal political beliefs. But if we allow an individual's personal political belief to be the measure of judicial activism, once again the concept loses any significance.

On other hand, they think that protecting the rights of illegal immigrants from overzealous states (or ensuring the right to abortion, or the right of gays to marry, or the protection of “War on Terror” prisoners) is exactly the sorts of things that the Court should be “activist” about.

Wow, those crazies on the liberal-left, worrying about such trivialities as "overzealous" state action that threatens the rights of the weak and powerless, government adherence to the Fifth and Sixth Amendments, and keeping the government's prying eyes out of the bedrooms and family planning decisions of consenting adults. Why, oh why, can't they focus upon more important things, like getting the Supreme Court to disregard the Supremacy Clause and reverse the New Deal?

It seems a bit odd that a champion of Lochner is concerned about the extent to which others support judicial activism. It is not unreasonable to argue that the Constitution does not expressly include a right to privacy, such that it's activist to call upon the Supreme Court to define and expand a constitutionally protected right to privacy, but by the same token there is nothing in the language of the constitution that supports or privileges the views of the Lochner court. Lochner turned on the right and liberty of the individual to contract,

The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.

but you won't actually find that right enumerated in the Constitution, nor will you find textual support for the Lochner court's position that a state has no right to regulate the length of the workweek.³ Neither the language of the 14th Amendment in general nor of its Due Process clause support the type of substantive analysis applied in Lochner - and in other contexts the conservative model is to dismiss the notion that "substantive due process" is a proper matter for judicial review. Perhaps that - the embrace of substantive due process as a proper matter for federal judicial review - is a point where Professor Bernstein and the "liberal-left" can join hands and push for... I'm not sure if Bernstein would have us call it activism, but it certainly wouldn't be restraint. Perhaps it's simply what, at some level, we all know: Sometimes judicial activism is a good thing, even if we loudly and vehemently disagree over a particular activist decision. As an illustration, I'll again point to the once controversial and now broadly accepted holding of Brown v. Board of Education. On the other hand, some activist cases such as the atrocious Slaughterhouse Cases will never look good.

Turning back to the issue at hand, although it's easy for the Supreme Court to reinterpret or narrow precedents to render them all-but-meaningless without technically reversing them, they do not enjoy the same luxury in relation to statutes. Perhaps that's where Bernstein's notion of restraint can be applied as a measure of activism. Almost two centuries ago, in writing the decision in McCullough v. Maryland, Justice Marshall observed,

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the decree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.

Given the admission of most advocates of the "action/inaction" distinction that, in the words of Professor Bernstein,

Congress can certainly pass a new law that does everything the ACA does, but this time do it as a "tax".

How would the reversal of the individual mandate on the grounds of semantics - of Congress passing a law that "is not prohibited" and "is really calculated to effect any of the objects intrusted to the Government" - not constitute an extraordinary repudiation of the judicial restraint and modesty Justice Marshall described? It's one thing to examine a law in light of the powers granted by the Constitution and hold that the legislature overstepped its bounds, as the Supreme Court did with Arizona's immigration law. It's quite another to reverse a law that the Court accepts as falling within the enumerated powers of the legislature on the premise that, although substantively proper and passed for the advancement of legitimate and compelling government interests, there are problems with its form.
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1. As previously noted, Bernstein admits, "there are all sorts of distinctions one can draw between the two cases".

2. The judiciary should be restrained by what? Deference to precedent? Deference to legisatures, state and federal? Deference to the Constitution - and, if so, pursuant to what model of interpretation? How extreme should the deference be? If deferance to a state legislature requires modifying or reversing precedent, should the court defer to the legislature or to precedent? If a court offers a disingenuous declaration that its decision is unprecedented, is it no longer required to show restraint to a legislature or to precedent?

3. My understanding is that Professor Bernstein tries to have it both ways - arguing that Lochner represents good law and policy, but declining to opine on whether the Supreme Court was correct in rejecting a maximum workweek. That seems tantamount to arguing that the Supreme Court was correct to identify a right to privacy in Roe v. Wade, but that the rest of the decision is irrelevant to your endorsement of constitutionally protected privacy rights - it appears to be an attempt to embrace the concept while ducking the controversy. In supporting a legal principle it's not unreasonable to argue that slippery slope arguments - what the Court might do if it takes the principle to its extreme - are overstated, but its something else entirely to ignore what the court has already done. And if the argument is, "I ignore both the reasoning and outcome of Lochner while endorsing the principle of its holding," your attempt to "rehabilitate" the case becomes one of politics, not of law.

Judicial Activism Can't Be Tallied Like a Baseball Score

Jonathan Adler has suggested that judicial activism can be measured simply by examining how often the court overturns precedents and invalidates federal laws. To put it mildly, that's not an adequate measure.

Were Roe v. Wade and Miranda v. Arizona activist decisions? How about Griswold v. Connecticut? Gideon v. Wainwright? Bowers v. Hardwick? Bush v. Gore? Cases that establish or curtail rights, impose prophylactic rules, or expand or narrow constitutional principles based on the interpretation of state or local laws or policies can have an impact that is more profound than the reversal of a federal law or Supreme Court precedent.

While a court that shows little restraint when it comes to reversing its own precedents can be deemed activist, there is a significant difference between a court that chooses to clarify and reconcile its past decisions and one that targets long-standing precedents for ideological reasons. Further, it's possible for the Court to interpret or narrow a past case so as to severely restrict or even eliminate its legal significance, without technically reversing the case. Similarly a Court can choose to reach radically different outcomes in two different cases by asserting a factual distinction.

The reversal of a long-standing precedent, broadly accepted and followed as the law of the land, can also be deemed more "activist" than the reversal of an obscure or recent decision upon which few rely. Brown v. Board of Education reversed Plessy v. Ferguson, ending the notion that "separate but equal" was a constitutionally acceptable treatment of racial groups. You can argue that both fireworks and nuclear bombs are explosives, but the cumulative effect of five firecrackers isn't going to approach the impact of a single nuclear blast.

Further, a court may be activist in the manner in which it approaches lower court decisions. Although more of an issue with state courts, if a supreme court develops a pattern of identifying appellate decisions it does not like, then "depublishing them" to eliminate their presidential value or summarily vacating them without hearing, it's hard not to view the court as activist. But that type of action won't show up in Adler's proposed tally.

What if a case comes before a Court, and the Chief Justice finds that the issues as briefed and argued aren't what he had hoped - so rather than deciding the case he schedules an argument in the next term of court and orders the parties to submit new briefs, raising the issue he hoped to address. Even if the case reaches only one statute or precedent, the manner in which the Court engineers the outcome is reasonably deemed more activist than a reversal without that type of machination. What if the Court chooses to ignore its own rules, and to include in its decision a holding on an issue that was neither argued nor briefed? Is that not more activist than issuing the same decision at a later date, when the issue is properly before the court?

Part of the problem with the concept of "judicial activism" is that the term has no consensus meaning and as used often translates into little more than, "The court issued an opinion with which I disagree". But I think the strongest indicia of activism are obscured by a tally of reversals, and that activism is often better indicated by the manner and extent to which a court manipulates the process in order to create the opportunity to decide certain issues, and the extent to which the court respects the ripple effect its decision may have on society.

Let's also not lose sight of the fact that an established precedent like Plessy v. Ferguson can entrench a status quo that is unacceptable. Yes, it's reasonable to be worried that an activist court might reverse precedents that establish or protect rights you hold dear, but Brown stands as an example of where the greater harm would result from allowing the precedent to stand, and how over time a once controversial decision can be accepted as the way things should be.

Republican Ideas vs. Republican Policies

On a recent episode of Real Time, Nick Gillespie of Reason.tv attempted to goad Rachel Maddow by accusing her of always taking the side of the Democrats, and insisted that she should name a Republican policy with which she agrees. Maddow appeared to have a visceral dislike for Gillespie and rebuffed his challenge. Maher interceded, stating correctly that the challenge was not a fair one. A better response by either, I believe, would have been to point out that the Republican party's better ideas are, at present, largely also held by the Democratic Party, by pointing out that the Republican ideas that are most attractive in principle are the ones they tend not to implement while in office, or simply to say, "You first," followed up with an explanation of why Gillespie's favorite Republican policy isn't all that special.

Gillespie revealed the weakness of his argument, that he was out to score rhetorical points rather than making any substantive observation about Maddow, when he later challenged her defense of the Affordable Care Act, contending that as "RomneyCare" is the inspiration of "ObamaCare" it's a Republican idea. As if it needs to be said, "RomneyCare" is so unpopular among Republicans - at least those outside of Massachusetts - that not even Romney supports it. Also, although I don't watch her show, I expect that Maddow has been a consistent critic of "ObamaCare" from the left. That she sees it as better to the status quo ante is something quite different from embracing its policies. And if we're going to pretend that any idea ever supported by a Republican is a "Republican idea", even if repudiated by the party at large, even if repudiated by the sole Republican who voiced support for the idea, Gillespie's challenge loses what little credibility or meaning it might have had if he chose to connect it to reality

My thought at the time was to take a look at the national Republican Party's website, or at Romney's website, and see which ideas I could endorse. I was reminded of Gillespie's challenge, though, by the low hanging fruit - the Texas Republican Party. Don't get me wrong, I agree that the government should keep its grubby hands off of my multivitamins, and that we shouldn't put aborted fetus parts in our yummy pink slime, but we're scraping the bottom of the barrel....

One of the problems with trying to find "Republican" issues on Romney's website is that he pretty much runs away from any controversy. To the extent that his website shares ideas it's to reassure corporate interests - he's very anti-Union, he has no coherent immigration policy but he favors H1B-type programs for skilled workers. He toes the insurance company line on healthcare reform, the financial industry's line on regulation (i.e., that despite almost taking down the world economy it should largely be unregulated), and the energy industry line on the environment. He's promising to slash taxes for the rich and pretend that he can still move the budget toward balance.

A lot of his ideas are magical - for example, he wants to retrain workers for the new economy, but has no idea for how that can be done either affordably or effectively. He believes that pretty much every foreign policy issue can be solved through sanctions, military posturing, increased military spending, supporting dissident groups even when to do so would be to undermine their goals or to invite reprisal, and if all else fails by antagonizing China and Russia. He likes block grants - after all, why solve a problem when you can punt?

All Romney's "platform" does is reinforce the impression of him as a vacuous man running for office, beholden to the millionaires and billionaires who fête him at their private back yard golf courses. You can find plenty of pie in the sky - stuff most people can agree with, like the notion that everybody should be able to attend a college that is both affordable and that matches their abilities - but what's the point of saying such a thing if you can't also articulate how you will achieve that end. The policies you will create, and how you will pay for their implementation?

I had hoped I might do better on the RNC's website, but their take on the issues is even more evasive and platitudinous than Romney's. Apparently the only place I can find specifics is through a resort to the low hanging fruit offered by the likes of the Texas GOP.

Really, if the question "name a Republican policy you agree with" simply entails embracing a platitude - "I agree that judges should uphold the law", "I agree that government should cut waste", "I agree that regulations that do more harm than good should be repealed", "I agree that kids should have access to quality education" - then it's easy to find points of agreement. But if we move past the surface and start talking policy, it becomes difficult to see how Romney and his party are in fact planning to advance the values they pretend to hold.

The classic example is, of course, the budget - Republicans talk up a storm about balancing the budget and the evils of deficit spending when they're out of power, but can't spend money fast enough when in power. We move immediately from "deficits are horrible" to "deficits don't matter". So I can say "I agree with the 'Republican' idea that we should balance the budget," but if I ask which party is more likely to achieve that goal history tells me that I have to vote for a Democrat.

I can similarly agree with the concept that regulation should not interfere with the efficient operation of businesses, operated in an otherwise lawful and ethical manner, but in practice the Republicans have repeatedly supported deregulation that is affirmatively harmful to the environment and which has caused numerous crises as the deregulated businesses run amok. It also wouldn't be honest to suggest that the Democrats don't share that concept, or that in recent decades that they don't share the Republican tendency to allow businesses to run amok. Agreement with a stated principle is only meaningful to then extent that you can trust the party to enact responsible policies and to maintain appropriate regulations.

I can't embrace Gillespie's conceit that any idea ever supported by a Republican is a "Republican idea" - "You support wage and price controls? Not only are you a socialist, you got that idea from Nixon!" If the endorsement of an idea is to have any significance, I also can't embrace the notion that a "Republican idea" can be divorced from Republican policy. The question seems like an anachronism - twenty, thirty years ago it was easier to both identify ideas that were associated with one party or the other, and to relate those ideas to actual policy proposals. Today it seems like the Republican Party doesn't want to let voters know what it stands for.

We support common-sense health care reforms that would lower costs, preserve quality, end lawsuit abuse, and maintain the health care that Americans deserve.

We believe in energy independence.

We believe that maintaining a world-class system of primary and secondary education, with high standards, in which all students can reach their potential, is critically important to America's future.

We believe a judge's role is to interpret the law.

And I expect that "we believe" that every little girl should have a pony. I expect that Maddow could agree with those "ideas", but her agreement would stand not as a vindication of the Republican Party. If the Republican Party wants vindication, it needs to stand behind its ideas - to articulate actual policies that advance the ideas.

Control Freaks vs. Commoditization

In relation to Microsoft's plan to become a manufacturer of tablet computers, Paul Krumgan observes,

[I]f you contract with other people to build equipment, they may be unwilling to invest in quality in the belief that you will use your sole-buyer status to extract the benefits.

And that, apparently, is exactly what has been going on with Microsoft; its reliance on other people to build computers using its software worked very well for a long time, but lately Apple’s control-freak approach has been winning out.

I agree with Krugman and his reference to Hart, but from my experiences in the hardware market I think Microsoft's primary difficulty emerges from the commoditization of personal computers, both desktop and notebook, and the reluctance of third party manufacturers to take a long-term, quality driven perspective through which they can profit from selling premium products.

I bumped into a friend recently and noted that he was using a MacBook Pro. I commented that he had traditionally used PC's. He responded that he is OS agnostic, and suggested that his principal motivation for switching was quality. I started to comment about the decline in the quality of the Dell notebooks I've owned and he cut me off, "Dell computers are crap!" So there he was, a guy with enough money to buy a premium computer of any brand, as long as it worked, and he was turning to Apple because, all else being roughly equal, its products are reliable.

The difficulty for Microsoft is that if it builds high-end products, sold alongside third party Windows tablets built to be sold as commodities, even if quality is accepted as a matter of faith it may have difficulty maintaining a premium price point. But perhaps Microsoft accepts that its move may alienate third party manufacturers, and that those third parties will compete more directly with Amazon and... it would appear Google as well, for the lower-end tablet market, while it focuses on a premium product that can compete with the iPad, or at least give Microsoft an opportunity to establish itself as a tablet manufacturer for enterprise customers while it fashions additional products that may have greater appeal to consumers.

Quality? If it wants to offer tablets that can truly be classified as premium, I don't think Microsoft has much choice but to make its own hardware. For any other company, such an approach would involve a significant risk with much of any eventual benefit flowing to Microsoft.

Obama's Immigration Policy: Pandering or Preemption

When President Obama announced his administrative "mini-DREAM Act", my first thought was to regard it as pandering, and as a somewhat risky move given anti-immigration sentiments in some parts of the country. But as the Republicans reveal a flat-footed response, and as Romney attempts to embrace both sides of the issue, I wonder if the move was less about pandering and more about preemption.

Although immigration reform has not been at the top of Obama Administration's agenda, the primary reason for that is the recognition that Congress is unwilling to tackle the issue. Obama attempted to lay the groundwork for reform by stepping up the identification and deportation of illegal immigrants, but that move didn't work - rather than treating him as credible and willing to enforce immigration laws, the Republican Party took the position that Obama was leaving the borders wide open and forcing states to fend for themselves - the Republican Party recognized that it stood to gain from declaring Obama's immigration policies to be inadequate, whatever the facts. Meanwhile Obama's deportation policy had the potential to reduce his support in parts of the Latino community.

Mitt Romney would have to be blind, not to see that as an opportunity. He may have hastily and haughtily dismissed the concept of the DREAM Act, but as we can presently see he was preparing his an appeal to Latino voters. Up to the administrative "mini-DREAM Act", he could have attacked Obama's immigration policy from the left.

With one administrative order, President Obama has left the Republican Party tongue tied, Romney fumbling to articulate - actually, to avoid articulating - an immigration policy, and has inspired Republicans to remind Latino voters about why, despite their overall social conservatism, they are nonetheless attracted to the Democratic Party.

There's Nothing Magical About the Separation of Powers

In his recent column about political hypocrisy, as is his wont, Douthat does not share his own opinion - whether he believes that Bush was correct and that Obama is correct to have changed his mind, that Bush was wrong and that Obama is also wrong to follow his lead, or something else. Douthat concludes by fabricating a "widespread liberal attempt to explain [Obama's] struggles by casting him as a Gulliver tied down by an antiquated system of government, concluding,

his is why it’s so remarkable that our constitutional order has lasted so long, given the perpetual incentive — common to both parties, and all three branches of government — to abandon its safeguards in order to push a particular agenda....

[The notion of a president tied down by an antiquated system of government] suggests the possibility that some of the ways this president has been baffled, legislatively and perhaps soon in the courts, reflect the genius of our constitutional system rather than its failings. It’s a system that often lacks principled defenders, but that’s designed to defend itself.

I guess Douthat was trying to end on a poetic note? To throw in a few more slams at Obama, an implied comparison to Jimmy Carter, a dismissal of concerns about Republican obstructionism and the stated goal of certain Republican leaders to put the defeat of Obama ahead of the welfare of the nation?

But at heart, Douthat's point is banal. He's simply observing that Congress exists.

Douthat appears to believe that the problem is something more than a congressional dereliction of duties, but any such belief is undermined by his own example of the Guantánamo detention center. That prison is kept open not by the wishes of the President but by an act of Congress. If Congress objects to "almost the entire Bush-era wartime architecture [that] has endured", it can pass a law imposing limits on that power, appropriate checks and balances, judicial review... If Congress objects to an executive order affecting the enforcement of immigration laws, it can pass a law that removes that discretion or that resolves the issues that the President is attempting to address by executive order. There's no mystical emanation from the Constitution that allows it to defend itself - it's the fact that should it choose, Congress can end its dereliction of duties and pass legislation.

No question about it, Presidents are happy to assume the powers that Congress grants to them, whether by action or inaction. No question about it, despite the chest thumping and alligator tears, Congress often prefers that the President act unilaterally on contentious issues such that its members don't have to take a stand or explain their votes to unhappy constituents. The cure for that is for Congress to do its job.

Political Partisanship and Hypocrisy

There's a particular brand of conservative punditry that goes roughly along the lines of,

1. Liberals used to oppose X when Republicans were in charge;

2. Liberals now support Y, or at least aren't vocally supporting it;

3. X and Y are the same thing;

4. Therefore liberals are hypocrites;

5. "Republicans rule, liberulz dr00l!"

I am going to pick on Ross Douthat, not because his is the worst example of the phenomenon - go read a random column by Mark Thiessen and you'll see he's far from it - but because it illustrates (and to an extent acknowledges) some of the problems with that type of column. I must also wonder, do columns structured in this fashion convince anyone of anything? Are their authors preaching to the choir? Phoning it in, using cheap tricks to pad out a column that otherwise wouldn't merit more than a few sentences? Hoping to tap into Ann Coulter's readership? With Thiessen I get the impression that he is incapable of perceiving that his arguments aren't well-supported, but with Douthat I get the sense that he knows what he's doing.

Douthat opens his column,

When George W. Bush was president of the United States, it was an article of faith among liberals that many of his policies were not just misguided but unconstitutional as well. On issues large and small, from the conduct of foreign policy¹ to the firing of United States attorneys,² the Bush White House pushed an expansive view of executive authority, and Democrats pushed right back — accusing it of shredding the constitution, claiming near-imperial powers³ and even corrupting the lawyers working in its service.

That was quite some time ago. Last week the Obama White House invoked executive privilege to shield the Justice Department from a Congressional investigation into a botched gunrunning operation by the Bureau of Alcohol, Tobacco, Firearms and Explosives. The previous week the White House invoked powers that President Obama himself had previously claimed to lack, unilaterally revising the nation’s immigration laws by promising to stop enforcing them against a particularly sympathetic population....⁴

[A]part from [Obama's] disavowal of waterboarding (an interrogation practice the Bush White House had already abandoned), almost the entire Bush-era wartime architecture has endured: rendition is still with us, the Guantánamo detention center is still open, drone strikes have escalated dramatically, and the Obama White House has claimed the right — and, in the case of Anwar al-Awlaki, followed through on it — to assassinate American citizens without trial.⁵

Douthat claims first that this supposed shift of "liberal" support represents "predictable hypocrisies when one side passes from critiquing authority to embodying it". There are, of course, many problems with this type of reflexive accusation of hypocrisy:

1. It's not hypocritical to change your mind. Sometimes the benefit of a policy that seems ill-advised becomes more apparent over time, the excesses that might occur under an expansive interpretation of the policy are avoided, or the cost of switching to a superior policy rejected by a prior administration exceeds the benefit of its belated implementation, so you accept the world the way it is and move on. (In the context of his essay Douthat notes, "Sometimes it was the original partisan critique that was overdrawn" - although he tends to view any criticism of the Bush as "partisan" even if it came from conservative or libertarian quarters.) If "I changed my mind" is proof of hypocrisy, the Republicans are about to nominate one of the biggest hypocrites in the history of politics. But a genuine change of heart is not hypocrisy.

2. An opponent's hypocrisy does not prove you right. Douthat's argument highlights this fact. If we're talking about "partisan about-faces", with the party in charge changing its position based solely upon its assumption of power, we're speaking of the compromise of principle in the pursuit of power. That tells us nothing about the relative merits of the competing policy positions.

3. You should not confuse issue fatigue with hypocrisy. It is not particularly difficult to muster or provoke outrage, but it's difficult to sustain outrage. As people get used to the status quo, as other issues arise, people lose track of past outrages that are no longer part of the public conversation, and are no longer being covered by the media. Were Douthat to have actually read the better critiques of Bush's expansion of political power, whether from liberal or conservative sources, he would have found warning after warning to the effect that once a controversy passes it is unlikely that any future President will give up powers obtained by his predecessor.

4. People become accustomed to the status quo. Related to issue fatigue, once a period of grief or outrage has passed, people tend to become accustomed to their new circumstances. Douthat should know that - no small part of conservatism is a resistance to change, and once you are accustomed to the status quo anything else represents a change.

One of the weaknesses of this type of argument, somewhat acknowledged by Douthat and often exemplified by Thiessen, is triumphalism: the declaration that your opponent's hypocrisy, real or imagined, somehow vindicates your position. That's a much easier approach to take than making a convincing, substantive argument in favor of your position, but from a substantive standpoint it's nothing more than hot air.

Douthat in effect shines a spotlight on the weakness of the "hypocrisy" argument when he claims,

Today those incentives are strongest for Democrats — visible in their support for Obama’s more dubiously constitutional forays, and also in the widespread liberal attempt to explain his struggles by casting him as a Gulliver tied down by an antiquated system of government.

Hyperbole aside, Douthat's observations of Obama's "more dubiously constitutional forays"⁶ are the continuation of Bush-era security policies, invoking executive privilege (with no explanation of how thet assertion might be a "dubious constitutional foray"), and "revising the nation’s immigration laws by promising to stop enforcing them against a particularly sympathetic population". That's some pretty weak tea.
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1. If by "the conduct of foreign policy", Douthat is referring to starting a war of choice in Afghanistan, creating black hole prisons, torturing prisoners in U.S. custody and the like, well, yes... that was controversial. Contrary to Douthat's suggestion, "Republican" and "conservative" are not synonyms, and this was not a context in which liberals and conservatives lined up neatly on opposite sides of the argument. There were and are plenty of conservatives who deplore Bush's foreign policy, who deplore the manner in which Congress has effectively shifted war-making authority to the President, and who don't believe that fighting wars of choice to reinvent nation states that pose no direct threat to us represents either good foreign policy or a wise use of taxpayer dollars. Douthat also knows that the Democratic Party on the whole either acquiesced or supported many of Bush's policies.

2. I expect that Douthat is referring to the Bush era U.S. Attorney scandal because, for the first time, the Obama Administration has invoked executive privilege and that was the tool Bush used to hide his reasons for firing U.S. Attorneys who for the most part appeared to be doing their jobs properly - apparently due to their refusal to initiate or bury criminal charges based upon the suspect's party affiliation. But there's nothing new about an assertion of executive privilege.

There's also nothing wrong with being suspicious of a President's assertion of executive privilege - the President is not entitled to a presumption of innocence and I think we'll enjoy a healthier political environment if the President is concerned that a resort to executive privilege will bring both attention and heat than one in which people shrug and accept that they may never learn the truth about a controversy. Arguably that skepticism is more likely to manifest itself as melodrama or demagoguery if the President comes from the other political party, but if that's the price of a healthy level of skepticism so be it.

3. The concept of "the imperial presidency" was popularized by Arthur M. Schlesinger, Jr. back in the early 70's to describe the growth in Presidential powers over the course of U.S. history. As for its more recent use, would Douthat see the following as an example of an over-the-top attack on a President for supposedly "claiming near-imperial powers":

[The President] exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, [the President] has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.

Wow - what a perfect example of somebody attacking the President as adopting policies that are not only misguided but also unconstitutional, of claiming near-Imperial powers. Except you know what? That was John Yoo, architect and perennial defender of some of the Bush Administration's greatest excesses, demagoguing against Bill Clinton at the dawn of the Bush presidency. Yoo stands as a very good example of the partisanship Douthat claims to be describing, as now that Bush is out of power he has returned to prior form.

Also, is the following an expression typical of "liberal" concern about G.W.?

The Constitution’s text, structure, and history will not support anything like the doctrine of presidential absolutism the administration flirts with in the torture memos....

As revealed by the torture memos, in the administration’s theory, Congress is powerless to prevent the president from doing whatever he believes to be necessary to win a war. And, as it turns out, Congress is also powerless to prevent the president from starting a war, if he believes that war is in the national interest. Administration officials have repeatedly advanced the claim that the president’s powers include the power to decide, unilaterally, the question of war or peace....

In fairness, the administration did eventually secure a use-of-force resolution from Congress, all the while denying that any authorization was needed. But, given the administration’s broad view of the president’s war power taken in conjunction with its arguments in the Padilla case and the torture memos, the administration’s position can be summed up starkly: When we’re at war, anything goes; and the president gets to decide when we’re at war....

The administration’s conduct in the wake of Katrina suggests that its reflexive response to any crisis—whether real or hypothetical—is the same: we need more power. That is a dangerous reflex.

Only if you believe that the Cato Institute represents liberal ideology.

4. Although Douthat later claims, "It was conservatives who pointed out the dubious constitutionality of Obama’s immigration gambit", he fails to direct us to a compelling constitutional analysis. A quick search found any number of responses from opinion and political leaders that make broad allusions to the separation of powers, but nothing substantive. Similarly, Douthat whines, "Among liberals, it was taken for granted that the worthy ends were more important than the means", but he's hollow manning. He does not, and apparently cannot, identify any significant proponent of a position he's pretending to be representative.

5. While Douthat comments in relation to rendition, drone strikes, and the targeting of U.S. citizens deemed allied with enemy forces,

[The Obama Administration's] moves have met some principled opposition from the left. But the president’s liberal critics are usually academics, journalists and (occasionally) cable-TV hosts, with no real mass constituency behind them.

Douthat seems to miss the fact that the arguments against that type of policy aren't new, and that while a new excess such as the Bush Administration's torture policy can evoke a reaction, that reaction is rarely going to be sufficient to inspire the reversal of the policy. There were many philosophical and practical arguments made against the use of torture, and while the Bush Administration initially rejected both it appeared to ultimately accept that torture was impractical. What does Douthat deem to be a "real mass constituency"? As I recall, even after being abandoned as a failure, Bush's torture policies were supported by close to 60% of the public.

Douthat intentionally omits the fact that it is Congress, not the President, that prevents the closure of the Guantánamo detention center - a closure favored not only by President Obama but, by the end of his term, by President Bush.

6. Douthat might argue that his conclusion does not necessitate his expressing an opinion as to whether the various "dubiously constitutional forays" he describes are proper or improper exercises of executive power. His language suggests that he is falling into the partisan trap that he describes - even after suggesting that past opposition to Bush's policies represents overdrawn opposition and how a new president's continuation of once objectionable policies may exemplify how power educates rather than corrupts, he can't keep himself from describing Obama's continuation of those policies as constitutionally dubious.

Is the Roberts Court Embracing a "Living Constitution"

I hardly know what to say in response to this editorial by Charles Lane, attempting to analyze why the Supreme Court might embrace a newly invented doctrine in order to reverse "Obamacare". Lane points to a bit of hyperbole from Akhil Amar, who suggests that a 5:4 decision reversing the Affordable Care Act will prove that the Supreme Court now decides cases based on politics, money, party and party loyalty, not the rule of law. He then snipes at law professors as "more liberal than the general public", adding,

Remarkably few of them have shown the perspicacity of Amar’s Yale colleague Stephen Carter, who has written: “Both sides have a point. The mandate to purchase health insurance does indeed run counter to the libertarian strain of the American tradition, and the arguments in support of federal power don’t have a logical stopping place. On the other hand, one must also recall the egalitarian aspects of the American tradition.”

To the extent that Carter's comment is fair, it's a fair statement of politics, not of law. There's nothing in the Constitution that expresses that legislation must respect this amorphous "libertarian strain" that Carter reads into the "American tradition". If you have any libertarian tendencies, you don't have to look very hard to find a Supreme Court ruling that will make you choke on your coffee. Seriously - pick a tenet of libertarianism, any tenet, and I'll find you a case that contradicts it.

The position that "arguments in support of federal power don’t have a logical stopping place" is not actually true - if you look at the policies of the various states, virtually all of which have insurance mandates of one form or another and one of which has a health insurance mandate akin to the one at issue in the ACA, you'll not find even one example of a state going beyond a "logical stopping point". What Carter is actually observing is the application of a slippery slope fallacy to the insurance mandate, in essence, "If something might occur then it will occur". The same fallacy can, of course, be applied to the regulation of activity under the Commerce Clause - or, for that matter, pretty much any constitutional argument.

It is much easier to assert a slippery slope argument, pulling an absurd example out of the air or off of a right-wing talk show, and to suggest that "If we allow an insurance mandate the government can make us eat broccoli", than it is to address the actual issues implicated by the case. But when you hear somebody resort to the slippery slope instead of addressing the realities of the healthcare market, you can pretty much take for granted that the reason they are doing so is that they are incapable of addressing the subject in a logical manner - at least without conceding most or all of the case made by the proponents of the ACA.

The counter-argument described by Carter is no better. Just as there's no "libertarian strain" clause in the Constitution, there's no "egalitarian" clause. When the Constitution speaks of equality, it is in the 14th Amendment's "Equal Protection" clause. The General Welfare Clause does not imply legislating people into some form of economic equality. Being treated as an equal by the state, by the courts and by the law, is something entirely different from a legislated economic equality.

While Carter does present two political philosophies that are in tension in relation to healthcare reform in general, they're not in conflict when it comes to the health insurance mandate. If there's a mandate in which everybody must buy insurance, the sensitivities of libertarians will be offended but people are being treated as equals by the law. If there's no mandate, but the law requires the provision of certain medical care to the uninsured whether or not they can pay for that care - the status quo - again libertarians are offended but people are being treated equally.

There are plenty of Supreme Court cases that advance egalitarianism - the line of cases that have given constitutional level protection to programs and policies that financially benefit the less fortunate (such as the right to counsel in criminal cases), or require that if the government provision of services (such as education), members of the community be treated as equals. But within the context of healthcare reform Carter appears to be speaking of altruism, the idea that the better off should provide for the poor, which is much more of a political philosophy, and much more of an argument for the subsidies that are not presently subject to a constitutional challenge, and appear to be constitutionally noncontroversial, as opposed to the mandate that is under discussion.

Lane asks, in advance of the Court's ruling, "What, then, led the academics to misread this case?" The "misreading" being that scholars did not expect the Supreme Court to be receptive to a newly invented distinction between regulating "activity" versus "inactivity", a distinction that quickly reduces the analysis of the issue to a semantic game, as opposed to precedent. And there's the answer: If you recast the analysis of the case that kicked off the modern approach to the Commerce Clause, Wickard v Filburn, you can transform it from a case that regulates activity ("You can't grow wheat beyond the legally imposed crop limit") and instead regulates inactivity ("You must buy your feed grain from other producers").

Perhaps the extent of the sophistry is lost on Lane, but fundamentally that's what Amar is describing - the extent to which opponents of the ACA are willing to invent new legal doctrines, eschew logic in favor of the slippery slope, and ignore or reverse almost a century of case law in order to achieve an outcome that is, at heart, political. Amer did not say that his faith in the court will be lost if the ACA is reversed, in whole or in part, by a larger majority - he was alluding specifically to a split along political lines, implicitly with the majority advancing a political argument as it's "legal" reasoning.

In explaining how the Court might come to dramatically change its approach to Commerce Clause cases, Lane presents an awkward attempt to distinguish law from politics:

I don’t think this history proves that “politics, money, party and party loyalty” crassly determined the decisions of the 1930s. If that were true, why accord them precedential weight today?

Rather, what it shows is that the United States periodically redefines the role of the federal government in society, in a process that is both political and legal — and, sometimes, more revolutionary than evolutionary. In that sense, we do have a “living Constitution.”

If it needs to be said, the reason you give precedents, good or bad, "presidential weight" is because - as was noted up front - they're precedents. Several members of the Court have made clear that they do not feel any reluctance to overrule cases they view as legally unsound, but even they have traditionally hesitated at reversing cases that are integral to our modern state and government. There is nothing in the Constitution that mandated the libertarianism of the Lochner era, nor that prevented the Court's shift to an expansive view of the Commerce Clause in Wickard, but let's not pretend that we could return to the Lochner era without a massive disruption of our government and society. The better approach would be for the Supreme Court to defer to the political branches on matters of politics.

When Lane suggests that opponents of "Obamacare" are embracing a "living constitution", and are "spotting [a] historical opportunity [to reinvent the Commerce Clause] and making the most of it", he's correct. They are taking the position that the objective reading of the text of the Constitution should take a distant back seat to the political issues of the day, and that if you lose at the ballot box you should attempt to get politically sympathetic judges to convolute new arguments to reverse the opposing party's legislative accomplishments. A conservative Justice might respond,

If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.

So yes, it will be interesting to see if, as Lane suggests, a 5:4 conservative majority will reject the idea that political issues should be resolved by elections, that constitutional analysis should not turn on the actual language of the Constitution, that it's less important to ask whether Congress has the power to do something than it is to look at its choice of words when drafting legislation that falls within the scope of its powers, and very much bring the Constitution to life.

If Only President Obama Were... A Coward?

Have I hinted that I'm not fond of this type of thinking?

This is the original sin of the Obama Administration — the failure to make the economic recovery its one and only priority. Why couldn’t the administration have proposed that until unemployment had fallen for 12 straight months or until it had created 8 million new jobs, it would only propose initiatives that served the goal of job growth? Instead, the president immediately embarked on comprehensive health-care reform, the same reef that had battered and almost sunk Bill Clinton.

Problem #1: The notion that government can only do one thing at a time, and it needs to steer away from anything difficult. There is no reason why a President cannot focus on two, three, four... even dozens of major issues. There are enough days in the week and year.

Problem #2: Magical thinking. What does Eskew imagine would have been changed by the President's saying, "Despite all of my promises during the campaign I'm going to drop healthcare reform until... whenever, maybe never... while I pull a John McCain and pretend that I have magic control over the economy." What more does Eskew imagine that Congress would have approved, above and beyond the stimulus bill that passed? By what magic trick would the Republicans have stopped obstructing job creation initiatives coming out of the White House, or demagoguing about how the President made the recovery his priority over all else and failed?

Problem #3: Leadership is actually a good thing. Whatever benefit Eskew sees in the notion of running away from the nation's hard, pressing problems, a philosophy of "Somebody tried to fix this twenty years ago and suffered political harm, so we should never again try" is outright craven.

Certainly the President underestimated his own party, and its willingness to be either efficient or put aside self-interest when it came to resisting lobbyists and crafting good policy. Certainly he underestimated Republican obstructionism, despite Mitch McConnell's statement that he would put Obama's defeat above all other priorities, making clear through his actions that his lower priorities included the welfare of the nation. But to put on your 20:20 hindsight goggles and complain, "I knew all along that the President should be a coward, but he stuck his neck out trying to accomplish something so don't go expecting me to criticize the guy swinging the axe"... just what sort of country, what sort of democracy do you want us to have?

A Blast From The Past: Germany is Doooooomed

Thomas Friedman in 2005, advising Germany and France to "Follow the Leapin' Leprechaun":

Germany and France are trying to protect their welfare capitalism with defense. Ireland is generating its own sustainable model of social capitalism by playing offense. I'll bet on the offense.

Do you think that offer is still good?

Robert Samuelson Blows Smoke on "Obamacare"

A few quick words about Robert Samuelson's latest drivel on the Affordable Care Act:

1. " It increases uncertainty and decreases confidence when recovery from the Great Recession requires more confidence and less uncertainty " - The fact that Samuelson's first "support" for this claim is that "44 percent of Americans now view [the ACA] unfavorably", something completely irrelevant to his argument, tells you something. The fact that his first point is one he cannot actually support tells you another. Samuelson is acting as a stenographer for a common right-wing talking point, yet he can find no evidence to support his argument.

2. " The ACA discourages job creation by raising the price of hiring " - Samuelson's complaint is not actually about the ACA. It's about employer-sponsored health care in general. And within that larger context he's correct. But he's not honest enough to admit that if this is the huge problem he claims, one easy fix would be to simply create universal health coverage independent of employment and take the cost of insurance off of the nation's payrolls. Also, there are many laws that impose thresholds for enforcement, and yet as a matter of course businesses grow their way into federal anti-discrimination laws, the ADA, the FMLA, and similar laws and regulations. To pretend that the ACA will cause employers to stop growing their businesses once they have 49 employees is counter-factual demagoguery.

3. " Uncontrolled health spending is the U.S. system’s main problem " - Here, Samuelson is stating that the "real problem" is that if sick people have insurance, they go to see doctors. It's safe to note at this juncture both that Samuelson has really good health insurance and has plenty of access to medical care for himself and his family - it's only a problem when other people see doctors. If Samuelson were truly concerned with lowering healthcare cost as a percentage of GDP he could point us to one of many industrialized nations that have universal or near-universal health care and pay less than we do at present for that care, and advise us to emulate. But, if it needs to be said, that's not what Samuelson actually cares about.

4. " Obama’s program also worsens the federal budget problem " - Samuelson offers prattle that if tax increases and budget cuts used to pay for the ACA were used elsewhere, with no new spending program like the ACA's attempt to insure more Americans, the deficit would be reduced. If it needs to be said, that's true of any government spending. Samuelson appears to be agreeing that there is a net savings, but that it could be larger if we didn't fund health insurance? Well, duh. It would also be larger if we didn't fund wars of choice - but recall, when Samuelson supports a multi-billion dollar unfunded expenditure it's "pocket change".

5. " The ACA discriminates against the young in favor of the old " - The crux of Samuelson's argument here is that as younger people tend to be healthier, if young people have health insurance it will tend to go toward the medical care incurred by people older than themselves. But he's again taking something that is not unique to the ACA and pretending that it's a new issue - his complaint is true about health insurance right now: the healthy subsidize the sick. Samuelson also pretends that there are no sick young people who can't get insurance under the present system, and that young people can't suffer catastrophic injuries that are costly to treat, such that even young people can benefit from having insurance. Does Samuelson have even the slightest inkling of how insurance is supposed to work? (In fairness, his piece is so bad that I have to write it off as shameless demagoguery - he can't possibly believe what he's writing.)

Samuelson then claims "Cost control should have been Obama’s priority", apparently forgetting that he just criticized the ACA for imposing serious cost-saving and revenue-generating measures and then applying them to fund insurance. Had the ACA included even more cost-saving measures, Samuelson would be doubling down on that complaint.

If you operate from Samuelson's apparent premise, that only the wealthy deserve good health care, that everybody else should struggle to get what they can pay for out-of-pocket, and that it doesn't matter if huge numbers of people are uninsured, it's easy to sneer that an attempt to achieve universality is an exercise in presidential vanity, or a sop to the "liberals". If you or your loved ones have struggled to obtain and maintain decent insurance and to pay medical bills, you probably have a different perspective - and I, personally, would agree with that perspective - but you're not the type of person Robert Samuelson cares about.