The uncensored version of Part I is here.
Turn your profanity filter on. Now. Some of the language below is so filthy I had to turn it on myself just so I could proofread this. Three reasons for that. First, some of the stuff in the opinion ticked me off. Second, for comic effect. Third, I read the total Supreme Court published opinion(s) line-by-line twice—193 pages including Chief Justice Roberts's holding, Justice Ginsburg's part concurrence, part dissent and the joint dissent by Justices Scalia, Kennedy, Alito and Thomas (hereinafter "Scennedy" or The Scennedy Brothers since many observers have suggested that Scalia and Kennedy wrote the bulk of the joint dissent). Took me eighteen hours. Plus, then I had to read the full text of some of the critical references, such as the Obama Administration's brief. So my head is stuffed full of several hundred pages and 30 or 40 hours' worth of legal jargon—the cussing functions as a palate cleanser.
Speaking of the critical references, the Supreme Court's decision is here (.pdf). In my usage below, the first number references the page number of the printed opinion, the number in parentheses is the Adobe Reader page number. All of the briefs are available here, here and here, courtesy the American Bar Association. Some of the highlights are the Government's Brief in defense of the Affordable Care Act (.pdf), and the Brief of the Commonwealth of Massachusetts (.pdf), aka, Martha's Revenge. Massachusetts Attorney General Martha Coakley may have lost the Senate race that didn't end up killing the ACA that the Supreme Court didn't end up killing either, but the delicious use she makes of Governor Mitt Romney in her brief shouldn't be missed.
I'm biased. I'm an Obot Democrat lib/lefty with a longstanding crush on Nancy Pelosi , a committed supporter of the ACA who remains convinced that it is Constitutional under the Commerce Clause, as Ginsburg argues. Nevertheless, I strive for objectivity in my paraphrases and summaries below, and I kept an open mind when reading the opinions and briefs. In fact, to my surprise, I was two times persuaded to a view I had previously rejected. Like many observers who relied only on the empty soundbytes spouted by the mainstream media or the tendentious mockery of conservative pundits, I began convinced that there was no way Roberts could rule that the mandate was not a tax for purposes of the Anti-Injunction Act while ruling that it was a tax for purposes of the Constitution. I was wrong, he was right. Moreover, I was not just convinced but utterly certain beforehand that regardless of the outcome of the decision, that the Individual Mandate was severable and should be severed if it was ruled unconstitutional. Scennedy persuaded me otherwise.
Thus, the following essay includes objective analysis, forthright polemics, and comedy. If you, dear reader, cannot tell the difference, you're too darn stupid to have read this far anyway.
Glory be, is this tedious. I wanted to include enough of every quote to give fair context to whoever I was explaining, arguing about or ridiculing and I wanted to include enough quotes to deal with the issues raised in the various arguments. So yeah, this turned out to be really long. [So long I gave in and decided to publish in parts.] I tried to make it more readable by commissioning graphic accompaniment so you won't be confronted by a tsunami of text. I stripped all the internal notes as to square brackets, emphasis, ellipses and omitted quotation marks, although such punctuation remains; unless I tell you I did it, they did it. I also stripped the internal citations out of the blockquotes. I don't think any of the Justices of the Supreme Court faked any of their footnotes and if they did, it should be some assistant professor at some law school who discovers it, not me. Maybe they'll get tenure for that. Still, this is tough reading. No hard feelings if you give up.
Everybody Loves Alex:
The thing that leapt out at me after finishing my first reading is that, it turns out, everybody loves Alexander Hamilton. All three authors claimed his authority in defense of their arguments:
Roberts 3 (9):
As Alexander Hamilton put it, "the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS."
BORRRR-ring. Roberts started off with an 8th-grade civics lecture. Yeah, yeah, yeah, we've heard this crap before, bring the meat man, c'mon.
Roberts 28 (34) [square brackets added]:
Rather, they are, "in the words of [Hamilton], 'merely acts of usurpation' which 'deserve to be treated as such.'"
We've heard this crap from Federalist 33 before, too, but at least by this time Roberts is using it to make an actual argument about the Commerce Clause.
Ginsburg 13 (78) fn 3:
Alexander Hamilton described the problem this way: "[Often] it would be beneficial to all the states to encourage, or suppress[,] a particular branch of trade, while it would be detrimental . . . to attempt it without the concurrence of the rest." Because the concurrence of all States was exceedingly difficult to obtain, Hamilton observed, "the experiment would probably be left untried."
In my view (polemics alert), Ginsburg got much the best of the Hamilton references. For one thing, I hadn't seen the above before because it's buried in his Collected Papers rather than having been from the Federalist, so at least it was fresh. But, more importantly, if we overlay the current spectrum of political conflict with the historical spectrum of conflict of the Founders and Framers, it's pretty obvious that it would be Ginsburg/Hamilton on one pole with Scennedy/Madison or Jefferson on the other, at least with respect to political economy and state versus national regulation of commerce. Hamilton is a much more natural authority for Ginsburg than for the authors of the joint dissent. But, as I said, he seems irresistible to all the arguers. Maybe it's those deep, dark, soulful eyes.
Ginsburg 14 (79):
"Nothing . . . can be more fallacious," Alexander Hamilton emphasized, "than to infer the extent of any power, proper to be lodged in the national government, from . . . its immediate necessities. There ought to be a CAPACITY to provide for future contingencies[,] as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity."
Although it's from the Federalist, the critical point above hasn't been as widely quoted as . . . . .
Scennedy 8 (134):
If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton's words, "the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane."
. . . this very famous quote. Despite what I claimed above, the Scennedy Brothers' application here is more than apt, it's perfectly apt, but in a way that needs more extensive discussion in the context of the overall debate. Just keep that hideous monster in mind because … I'll be back!
Scennedy 30 (156):
Hamilton "maintained the [General Welfare] clause confers a power separate and distinct from those later enumerated [and] is not restricted in meaning by the grant of them."
The Court . . . . adopted Hamilton's approach and found that "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution."
Now this I don't understand. The case referenced is Butler, which might fairly be regarded as the last of the restrictive holdings on Federal power or the first of the expansive holdings (in 1936 it struck down a New Deal program by majority, but also by majority adopted the doctrine quoted. So, yeah, we've been through things like this before when the Supreme Court says things that seem to be downright ridiculous). However, the Hamiltonian position, which the joint dissent is concerned with, posits expansive Federal power, not restrictive.
The point they are making here, related to the Medicaid Expansion provision—they have to defend the Medicaid Act as a proper use of Federal Power while rejecting the Medicaid Expansion as an improper use—fails anyway, for another reason which I'll discuss below. Hint: I warned you not to forget that hideous monster, he's a comin' to git cha!
Obscene Translation #1:
Roberts 24 (30):
To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were "practical statesmen," not metaphysical philosophers.
In other words, "The Framers were men of action, not a bunch of little pupils sitting around playing childish word games . That's my job. Top this":
A Tax by Any Other Name Would Smell as Sweet:
Although I support the Commerce Clause defense of ACA, unlike many others, I have always and steadfastly defended the Individual Mandate as authorized under the Taxing Power. Regular readers know that when I was challenged by quotes from Obama or other Democrats claiming it's not a tax, I habitually replied something like, "I'm not an elected official so I don't have to lie about it."
But, of course, I had never heard of the Anti-Injunction Act, so when I did hear about it, I felt sick. I wanted the ACA in place and working, not sitting on a dusty shelf at the Supreme Court for three years. At first. Then when it looked like the ACA was doomed, I wanted it on that shelf for three years. Either way, I thought it applied, so I was boggled when I heard that Roberts had ruled it did NOT apply, even though it WAS a tax. You gotta be kidding me. Here's a core excerpt from the holding pertaining to the Anti-Injunction Act. Might even be the core excerpt. Heck, it might even be the core excerpt of the entire decision, parties' briefs, holding, concurrence, dissents and all, so when I tell you to pay attention, pay serious attention. Now read this:
Roberts 12 (18) [silently corrected]:
Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions like a tax. It is true that Congress cannot change whether an exaction is a tax or a penalty for purposes simply by describing it as one or the other. Congress may not, for example, expand its power under the Taxing Clause, or escape the Double Jeopardy Clause's constraint on criminal sanctions, by labeling a severe financial punishment a "tax." See Bailey v. Drexel Furniture Co.
The Anti-Injunction Act and the Affordable Care Act, however, are creatures of Congress's own creation. How they relate to each other is up to Congress, and the best evidence of Congress's intent is the statutory text. We have thus applied the Anti-Injunction Act to statutorily describe "taxes" even where that label was inaccurate. See Bailey v. George.
It was not immediately obvious to me what was going on there when I first read it, and it didn't even begin to dawn on me until hours later as I read the ultimate holding that the Individual Mandate was a tax. It just looked like he's saying he'll use one definition when he wants to and another definition when he wants to. An essentially arbitrary and fundamentally dishonest mode of discourse. In fact, I got all the way through all the opinions, including Scennedy's ungodly shrieking about Congressional intent being demonstrated conclusively by the statutory text, and I still didn't understand why their rejoinder failed. I hated to think that all those dumb right-wing radio show and Fox News Channel hosts were correct, but I couldn't figure out why they wouldn't be.
I'm not going to make you suffer for hours like I did; I'll get right to it after a brief digression to discuss the literary experience of reading this 193-page text. I do this in part to allow the excerpt above to imprint itself more deeply in your consciousness and in part to rationalize to myself how I could have been so bleeping stupid.
As an intellectual experience, reading and absorbing this all was a thrill, but even though I'm very smart, I'm not a lawyer. I'm trained in literature and expert in composition, and let me be the first to say that the literary structure of this text is terrible. Even though arguers at times are directly addressing each other, the "conversation" can be a hundred pages apart. And out of sequence. Roberts, for instance, responds to Ginsburg in a footnote that reading normally occurs long before she says what he's responding to. And key principles go where they apply, not where they're convenient for developing a composition.
By legal rule, also, the Anti-Injunction Act argument had to occur first because if it applied it would bar consideration on the merits. But the holding under the taxing power occurred much later in the text even though those two arguments are inextricably related in popular understanding. I had to read through all Roberts' Commerce Clause junk before I got to the ruling on the tax power.
Oh, and speaking of grading papers. About the "silent correction." I pasted in what I just claimed might be the single most critical passage in the entire text when I noted the only typo I found in the entire text (there may be more, I won't swear to perfection). So now what heck am I supposed to do? "Sic" the Chief Justice of the United States in what might be the most important passage in the most important decision of the Court in fifty years? So I fixed it for him.
Okay, enough diddling around. First I'm going to explain what he said in the excerpt above, then I'm going to toss in an excerpt from the ACA holding, then extend the explanation. What he means above is this:
The Supreme Court makes two kinds of interpretations, one for statutory purposes, one for constitutional purposes.
Oh my dear, he even added italics just like that to highlight the point. Now as a stylistic matter, had he also italicized "statutorily " in the second paragraph, I might have been quicker on the uptake. But, hey, like I said, I'm not a lawyer. But you know who is a lawyer? EVERY ONE OF ABOUT UMPTY-NINE-THOUSAND LAMEBRAINS WHO SHOWED UP IN THE MEDIA ON THURSDAY, FRIDAY and SATURDAY after the opinion was released. Let me repeat that explanation again:
The Supreme Court makes two kinds of interpretations, one for statutory purposes, one for constitutional purposes.
Now. I ask you people. Is that all that hard of a concept to understand? Hey, Jefferey Toobin, you nitwit, you're a lawyer whose job it is to get on tv and explain this stuff to us non-lawyers. Do you think you could've done, you know, your job instead of grinning at us for three days for being glad you were wrong in your predictions? And you, Greta Van Susteren, you silly goose, I know your Fox News viewers probably didn't want to hear it, but do you think that, you could have, you know, informed them of something? Something that simple to understand?
Gol' durn it. I had the news on for three days straight all through my usual sports viewing time (No, I haven't given up on the Red Sox, they're on the West Coast so they don't come on 'til late) and spent ten hours reading this text in one sitting just to have to figure this out myself? Man am I ticked.
Anyway, as all of that seeped in I kinda remembered something Roberts had said about "two rulings in one day," or something so I did a text search and read backwards up the page from this:
Roberts 33 (39):
Our precedent reflects this: In 1922, we decided two challenges to the "Child Labor Tax" on the same day. In the first, we held that a suit to enjoin collection of the so called tax was barred by the Anti-Injunction Act. Congress knew that suits to obstruct taxes had to await payment under the Anti-Injunction Act; Congress called the child labor tax a tax; Congress therefore intended the Anti-Injunction Act to apply. In the second case, however, we held that the same exaction, although labeled a tax, was not in fact authorized by Congress's taxing power. That constitutional question was not controlled by Congress's choice of label.
Roberts 33 (39) [square brackets added]:
It is of course true that the [Affordable Care] Act describes the payment as a "penalty," not a "tax." But while that label is fatal to the application of the Anti-Injunction Act, it does not determine whether the payment may be viewed as an exercise of Congress's taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress's choice of label on that question. That choice does not, however, control whether an exaction is within Congress's constitutional power to tax.
Now let me explain what he said in full in plain English so everyone can get it. I'm not defending what he said, I'm explaining it (although I do agree with it and will defend it later). We'll start by repeating the principle stated above.
The Supreme Court makes two kinds of interpretations, one for statutory purposes, one for constitutional purposes. A statutory interpretation is called for when the Court's task is to determine how an Act of Congress fits with another Act of Congress. A constitutional interpretation is called for when the Court's task is to determine how an Act of Congress fits with the Constitution. Those are different tasks with different standards of judgment. Although they share many doctrines of jurisprudence, they do not share all, and the ones they do share may be of different ranks of priority.
Okay. Got that people? The Court has two jobs. Those jobs are not identical and the criteria of judgment are not identical. Thus, identical questions can lead to contradictory holdings. In a nutshell, the difference is this. The answer to the question, "What did Congress say?" controls a statutory interpretation. The answer to the question, "What does the law do?" controls a constitutional interpretation. When Congress says one thing but means another, what they say counts in the first instance, what they mean counts in the second.
And then . . . . Chief Justice William Howard Taft blew my mind. And that's a sentence I never imagined I'd ever write. I had finally figured out what Roberts was saying and why, so I was all like "Gotcha back, Chief," but then I pondered. That "two challenges on the same day" haunted me. What the heck is this, a Scott Turow novel? The lawyer part of a "Law and Order" episode? It was just too darned neat. I know I already told you I didn't think a Justice of the Supreme Court would fake their footnotes, but--I checked his footnotes. He did have a typo, after all.
The Drexel case, it turns, is pretty famous. Had its own Wikipedia article long before the ACA ruling this week because it had important consequences for constitutional law, tax law and labor law. The George case, not so much. Pretty routine, in fact. So I was sitting there reading the summaries of both cases and then it hit me. What the HECK was Taft doing? He didn't need to decide "two challenges that same day" at all, he only needed to decide one, the constitutional case. Once he issued Drexel, George would have been moot. What on earth was the point of remanding a case that wouldn't exist thirty seconds later?
Obviously: To set the precedent that the identical question may reach contradictory holdings depending on whether it's statutory or constitutional. The precedent Roberts used to save the ACA. Holy Moly. And Taft must have planned it. That's a story that has literary merit.
That "same day," by the way, was May 15, 1922, which Democrats should celebrate every year by drinking a toast to our fattest President AND our fattest Chief Justice, even though he was a right-wing Republican. He probably should've eaten more green vegetables, though. Like broccoli.
TO BE CONTINUED