A "Bush v. Gore" What If....

Courtesy of Sandra Day O'Connor, Scott Lemiuex shares his memories of a horrible series of Supreme Court decisions.

And, again, it’s not just that justices notably unsympathetic to broad equal protection claims claimed to accept an innovative equal protection argument. Where Bush v. Gore immediately falls apart and becomes a historic disgrace is that the completely lawless remedy left an election count with all of the alleged equal protection defects of the court-ordered recount (and the “mess up” job of the Florida authorities) in place.

Here's a thought experiment: What if, rather than tampering in a poorly conducted state election the Supreme Court had let the result stand. Even in the worst of circumstances the Constitution provides a remedy, specifically that the House of Representatives would elect the President.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

Had the election come down to that, we might as a nation have taken a hard look at how elections are conducted, inconsistent approaches to taking and tallying votes, and similar flaws and set about fixing them. Instead the Supreme Court allowed the nation to bypass that type of difficult work, and subsequent concerns about election technology, fairness and potential for actual fraud have largely been either ignored or have gained attention based not on the genuine flaws reveled by Florida, but based upon demagoguery about largely imaginary allegations of voter fraud. Rather than having remedies directed at improving elections, legislatures have largely focused on making it difficult for certain classes of voter to reach the polls and vote.

Maybe it wouldn't have made a difference. But....

The ACA and the Legacy of Chief Justice Roberts

Scott Lemiux offers a short analysis of how he expects various Supreme Court Justices might rule on the Affordable Care Act. He references his earlier argument that the ACA is constitutional; I personally agree that the attempt to distinguish the regulation of "action" from "inaction" under the Commerce Clause is not justified by history, precedent, or the language of the Constitution. But as Lemiux argues, "The fact that the arguments asserting the unconstitutionality of the Affordable Care Act are weak, alas, doesn’t mean that the Court will reject them".

It's interesting to me that Lemieux gives almost no attention to Chief Justice Roberts,

Ruling that the mandate can be severed from the rest of the ACA would appeal to Kennedy and Roberts for two reasons: They like “minimalist” opinions that don’t go beyond what is necessary, and striking down the relatively unpopular individual mandate would probably not attract a great deal of public opposition.

Of all the Justices, Roberts has the most at stake here. You can view any other sitting Justice as a partisan, a hack, an incompetent, or the greatest legal genius on the court, but it is unlikely that any other sitting Justice will ever gain the title of "Chief Justice". Roberts is young and is apt to be on the court for decades to come. The same political considerations that led to his being nominated and made Chief Justice are not going away - his successor is apt to also be a new or newer, young appointee, who is anticipated to support the then-President's agenda for decades to come.

The decision in this case will be a large, if not overshadowing, part of Roberts' legacy. Will he be viewed by history as an activist, partisan hack who trashed health care reform, as a uniter who led the court through a difficult case and engineered a 9:0 (or 7:2) majority, or as the guy who oversaw a messy plurality that required years of additional litigation to parse. Lemieux doesn't actually state that there will be a clear majority opinion, but he also doesn't discuss the possibility of a plurality, possibly 4:3:2, or 4:3:1:1, or perhaps even more fractured with Justices joining parts of various opinions while dissenting from other parts and also writing their own dissents or concurrences.

Although some in the Republican Party appear to believe that the total failure of healthcare reform, and even the notion of universal access to health insurance, is misguided, the fact is that most Americans want decent health insurance. While shooting down the ACA may provide the "anti" faction of the Republican Party with a "feel good moment", it puts the nation right back on track to the disaster reform was hoping to avert - continued health insurance premium increases of 8% - 15% per year, rendering health insurance unavailable to more and more Americans. Strike the ACA and its various cost control measures and you place responsibility for that probable future squarely at the feet of the Supreme Court and the Republican Party. If you assume that Roberts is motivated either by his own legacy or by a wish to advance the Republican Party (as opposed to his personal legal philosophy that largely overlaps with the Republican Party's agenda), that has to give him pause.

The issue here goes beyond the mere appearance of creating a new constitutional doctrine in order to strike down a major piece of legislation, passed after extensive debate and controversy. Acceptance of the "action" / "inaction" distinction creates a line of argument that can be raised in pretty much any Commerce Clause case, including those that have largely been viewed as settled. Lemieux references the opinion of Laurence Silberman,

We think the closest Supreme Court precedent to our case is Wickard v. Filburn, 317 U.S. 111 (1942). There, a farmer ran afoul of his allowed wheat acreage under the Agricultural Adjustment Act of 1938 by growing additional wheat, not for sale, but to feed his family and his livestock. Id. at 114-15, 118- 19. Filburn argued that the Act was unconstitutional as applied to him because he was not using the excess wheat for any activity in the interstate market. The Supreme Court unanimously rejected this claim. It held that even growing wheat for personal consumption, not for sale in any market, could affect the national price, and therefore was within Congress’s commerce power. Id. at 127-28. This conclusion was not only because his wheat might be diverted into the national market, as was recognized in Gonzales v. Raich, 545 U.S. 1, 18-19 (2005). Justice Jackson said even “if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” Wickard, 317 U.S. at 128 (emphasis added). Justice Jackson thus recognized that the Act “force[d] some farmers into the market to buy what they could provide for themselves.” Id. at 129. Although a regulation limited the size of the farms covered, the logic of the opinion would apply to force any farmer, no matter how small, into buying wheat in the open market. See Raich, 545 U.S. at 20. Wickard, therefore, comes very close to authorizing a mandate similar to ours, at least indirectly, and the farmer’s “activity” could be as incidental to the regulation as simply owning a farm.

Indeed, were “activities” of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such “activity.” For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. Thomas More, 651 F.3d at 560-61 (Sutton, J., concurring). The Supreme Court has repeatedly rejected these kinds of distinctions in the past–disavowing, for instance, distinctions between “indirect” and “direct” effects on interstate commerce–because they were similarly unworkable. See Wickard, 317 U.S. at 119-20; see also Lopez, 514 U.S. at 569-71 (Kennedy, J., concurring). [footnote omitted]

I recognize that the small faction of the political right that would love to see all of the New Deal decisions reversed would rejoice at the idea of the Supreme Court revisiting that era's Commerce Clause cases, but the implications of such a decision, both in terms of political consequence and judicial economy, are enormous.

I would like to tell you that none of this matters, or none of this should matter, but I would be wrong on both counts. Chief Justices (really, all of the Justices) do consider their legacies. And it is appropriate for the Court to weigh the impact of a decision on society, and the availability of remedies at the ballot box, when asked to invent new rules of law in order to strike major pieces of legislation. Chief Justice Warren knew the importance of public perceptions when he engineered a unanimous decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). If he wants to demonstrate that he was a good choice for his position, Roberts would do well to work behind the scenes to obtain an opinion that is supported by a clear majority of the Court and rests firmly on established precedent.

Strategizing Without Overthinking

Tom Ricks is continuing to emphasize a nation's limited ability to achieve strategic clarity before going to war:

These notes I get from military officers demanding clarity of goals and stated strategic purposes puzzle me. The nature of war is ambiguity and uncertainty. I worry that such demands are really a fancy form of shirking.

Ricks believes that the intervention was a necessary and appropriate for humanitarian reasons. If you accept, as he does, that but for President Obama's decision to proceed with the intervention "we would indeed probably now be looking at Benghazi as [President Obama's] Srebrenica", you can state that your goal is to stop that from happening and that, although you haven't given much thought to how you might extricate the U.S. military after the intervention, the cause is sufficiently urgent to justify the risk and expense of a long-term military commitment. But you should be prepared to explain either how you anticipate extricating the military from its commitment or that it's an open-ended military commitment.

The President has, in my opinion somewhat belatedly, spoken on the intervention:

The U.S. "exit strategy" as such appears to be to try to hand off as much responsibility as possible for the continued military intervention to "our NATO allies", which seems to translate into Britain and France. The President states that we're "offering support to the Libyan opposition"; but that appears to be an understatement. It isn't clear to me what degree of regime change is going to end the intervention, but it does seem clear that the present goal is to send a very clear message that it won't end while Qaddafi remains in power.

Juan Cole, a proponent of the intervention, has penned an "open letter to the left" that overlooks, in my opinion, both the fundamental reasons to be concerned about the commitment and that those concerns should not be presumed to be borne of political ideology or to be predicated upon anything other than a reasonable analysis of the situation, its knowns and unknowns.

Among reasons given by critics for rejecting the intervention are:

1. Absolute pacifism (the use of force is always wrong)

2. Absolute anti-imperialism (all interventions in world affairs by outsiders are wrong).

3. Anti-military pragmatism: a belief that no social problems can ever usefully be resolved by use of military force.

Cole admits that almost nobody fits into his first category. The question thus becomes, as Scott Lemiux suggests, how representative are his second and third categories and why no mention of other possibilities? You can reject the notion that this is somehow an exercise in imperialism - you can even reject the concept that U.S. imperialism would be a bad thing - and accept that some problems can be addressed, if imperfectly, through military force, while nonetheless questioning the wisdom of a specific military venture. As John Casey notes, Juan Cole supported the war in Iraq. The circumstances of the action in Libya and the magnitude of the intervention to date are markedly different than those the U.S. faced in deciding whether to enter the Iraq War, but between the underestimated difficulty of that war and the duration and cost of occupation, it's not unreasonable to worry about getting sucked into something much more complicated than what was initially suggested as a planned "no fly zone".

In retrospect, while looking at the same facts, it's possible to argue that George H.W. Bush's decision to end the first Gulf War while leaving Hussein in power was either one of the most cowardly acts of a modern President or one of the most insightful. You can take the position that to depose Hussein would have split the coalition and, although Hussein's defeat would have been inevitable, would have required a massive investment of money, cost a lot of lives, and would have required a lengthy military occupation. Actually, that's the position that George H.W. Bush's administration took - and while you can argue "It still would have been worth it," on the whole they were correct. You can also argue that his approach - supposedly being duped into letting Hussein militarily crush a Shiite uprising, then trying to lock Hussein in a box while his country suffered - created a great deal of human suffering while effectively shifting responsibility for "finishing the job" to a future President. There's truth in that critique, as well. It's not a phenomenon unique to the Presidency, but sometimes no matter what choice you make "you can't win". (And "if you choose not to decide you still have made a choice.")

Some advocates of intervention make an assertion that, between the improvement in Qaddafi's military position, his rhetoric about taking revenge against those who rose against him, and now-documented facts about his military strategy (e.g., indiscriminately shelling the occupants of rebel-held cities) we were on the verge of a humanitarian disaster. That the rapid shift of facts on the ground necessitated immediate action. That, unlike situations like Rwanda in which air strikes would have been useless to stop the violence and a full understanding of the situation is said to have come too late for a meaningful intervention, air strikes actually could stop the advances of Qaddafi's forces and stop the shelling of and potential slaughter in major civilian centers. I expect that will be the case the President lays out tomorrow. I also expect that the delay in the President's making a speech is that he didn't want to address the public before there was a firm plan for a hand-off of responsibility for the continued intervention, or perhaps with the hand-off already a fait accompli.

Juan Cole writes,

Assuming that NATO’s UN-authorized mission in Libya really is limited (it is hoping for 90 days), and that a foreign military occupation is avoided, the intervention is probably a good thing on the whole, however distasteful it is to have Nicolas Sarkozy grandstanding.

Let's assume that at the end of 90 days Qaddafi is out of power and neither his successor nor the rebel factions are actively engaged in warfare. How is military occupation avoided? If the country remains divided, would you not expect the national government to at some point seek to unify it? How will reunification occur, and why should we expect in the absence of any form of occupation that it will be peaceful? Why should we not be concerned that each side will violently purge its territory of anybody it believes is loyal to the other side? If those questions cannot be answered, Cole is with Ricks - the situation was urgent enough to intervene without having an exit plan - but he's using a theoretical 90-day time table to avoid admitting the possibility that the incursion could turn out to be much more complicated and much more long-term than NATO hopes. While it's true that the worst-case scenarios almost never come true, on the whole it seems to me that the "candy and flowers" faction doesn't fare much better. Hope for the best, plan for the worst.