Thursday, July 5, 2012

Obamacare & The Supreme Court (Thursday LINKS)

Now that we're over a week from the landmark Supreme Court decision, and I've actually had a chance to read the opinion, it may be safe to comment on what has become a very controversial set of legal arguments.  Preliminarily, I have no interest in discussing the merits of universal health care.  I've made my position quite clear before that I think that any law that helps provide health care coverage to cancer survivors, patients with MS and cystic fibrosis, and other pre-existing conditions, when that coverage had previously been unavailable, is good law.  The financial component will be left open for debate, but hopefully only with the knowledge that this area of the economy is very difficult to predict due to the manner in which we've paid for health care services for the last century.

As for the decision, I will quote from an e-mail I sent to a friend shortly after the decision came out:

Roberts had a false choice.  If he ruled against the mandate, effectively putting the Court's thumb on the scale for one of the most politically charged issues of the modern day, he would have critically wounded the legitimacy of the Court.  The third branch would be irrevocably weakened and the Presidency would become an even bigger game of "capture the flag" to see who can put their politicians in black robes. 
He rules in favor of the mandate and a conservative Court upholds a Democrat crown jewel.  All of his smaller decisions, from here to eternity, are given additional legitimacy in a way that no other Court since Marbury v. Madison has achieved (whereby they made the Court into the third check and balance).
While the discussion up to this point has rightfully been about Obamacare (a title I will never get used to), the alternative would have been much more interesting.  In fact, I would expect an alternative state of politics where the embodiment of Congressional-Court tension appears in frequently proposed constitutional amendments with the President looking, yet again, to add more justices to the Court.  Even more shattering would be Court precedent weighed in terms of the ideology of the deciding Court as opposed to the applicability to the facts at hand.  ("Yes, there is a decision applicable here, but it was from the Warren Court, so we don't expect the justices to give it much weight.")

You may not like the decision, but there was something in it for both sides.  Randy Barnett, a constitutional scholar opposed to Obamacare, writes that although the decision was not what he would have preferred, the Constitution was preserved by the manner in which Roberts wrote his decision.  He also suggests, which I find difficult to believe, that Justice Roberts's rejection of the Commerce Clause as a constitutional basis is binding precedent because he uses a joinder suggesting that the reasoning is his basis from coming to the conclusion that the penalty is a tax.  If that is correct, this decision is a significant loss for those in favor of a strong central government.

So overall, this decision should not be praised or dismissed too heartily by either side.  It is an impressive decision that reflects significant thought by a profound legal mind.  In many ways, it is genius.  In other ways, it is unfortunately political.  But there is a reason why we don't have a Justice Richard Posner and never had a Justice Learned Hand.  Progeny of a political system cannot be expected to be apolitical.  The closest we get to nonpartisan is the evolution of views by Justices over time, tempered by their respect for precedent.  This decision crystallized that balance.


The Flier writes that as of yesterday, there were still 5,000 homes without powerGreg Fox posted on Facebook that there were 3,309 homes without power as of last night, with his being one of the last houses put back on "the grid".

Scientists at CERN believe they have found one of the "building-block particles" of our universe.  That has to be a fun day at the office.

Baltimore City "activists" are fighting a proposed change to move Mayoral and Council elections back one year to line up with gubernatorial elections.  What is most interesting is that the General Assembly has already voted to approve this change, meaning that the outcome of the November ballot initiative is moot, at least according to the Attorney General.  The interplay and delegation of powers between the General Assembly and the local jurisdictions is always difficult to communicate, but in sum, we are not a federalist state.  The counties and municipalities have little, if any, sovereignty under law.

Despite signs of a big crab harvest this winter, that boom is not showing up at the cash register for Marylanders, as the crabs making their way to shore are far short of what had been predicted.  Try harder, crab-fishermen!  Try harder!

Featured Blog Post of the Day: HowChow notes that El Nayar may have closed, but after a little investigation by one of my El-Nayar-loving-friends, he suggested that they will be reopening later this week.  One less Mexican restaurant in Howard County would be a tragedy for all, particularly since El Nayar is run by some of the nicest people I've met in the restaurant biz.

Some additional thank you's:
Roy Appletree
Matt Stendardi
Ian Kennedy

That's all for today.  Have a great Thursday doing what you love!