Archive for October, 2012


✁ On John Roberts’ Opinion

It has now been 100 days since the Supreme Court ruled upon the constitutionality of the Patient Protection and Affordable Care Act (ACA), upholding a significant portion of the law, in particular, the individual mandate, as constitutional under Congress’ taxing power (but notably, not under the Commerce Clause or Necessary and Proper Clause). The country has now had time to reflect upon the significance of this ruling and much speculation has been theorized regarding the opinion of Chief Justice John Robert’s, who provided the pivotal vote upholding the individual mandate. Most notable among the analysis is the idea that somehow Justice Robert’s decision saved the Supreme Court à la Marbury v. Madison or “the switch in time that saved nine” through his “masterwork of misdirection”. Erza Klein writes:

The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn’t. If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid. “He was on-board with the basic challenge,” said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. “He was on the conservative side of the controversial issues.”
His break with the conservatives, and his only point of agreement with the liberals, was in finding that the mandate was a “tax” — a finding that, while extremely important for the future of the Affordable Care Act, is not a hugely consequential legal question.

The pretext is that, somehow, by issuing this ruling, Roberts pulled a fast one on us all through slight of hand. I don’t buy it. Well before the issuance of the ruling, public support for law, as enacted, was below fifty percent. Public opinion before the ruling widely supported overturning the individual mandate. Why would Roberts be concerned about maintaining the integrity of the court (which, by the way, has not faired so well since) if the public opinion supported overturning the controversial portion? Wouldn’t it be in his interest to protect the court in the eyes of Americans by doing what the country believed was right? (I realize that John Robert’s is not much concerned with preserving populist sentiment, but ultimately, outrage is typically that type of emotion politics.)

While this argument paints Roberts as a judicial mastermind (which may well be true) and a scathing judicial activist, it downplays the pragmatic significance of calling the penalty for not buying healthcare a tax. I have yet to see discussion of the significance on this point and most write this aspect of the opinion off as a necessary casualty. However, upholding the ACA as a permissible tax is the exact thing I find so interesting about his ruling. It accomplishes his desire for judicial restraint which many predicted would be Roberts’ hallmark on the bench. For instance, Cass Sunstein argued Justice Roberts would be a judicial minimalist, suggesting,

[His] opinions thus far are careful, lawyerly, and narrow. They avoid broad pronouncements. They do not try to reorient the law.

And at his confirmation hearing, Roberts stated of Supreme Court Justices,

[They] do not have a commission to solve society’s problems, as they see them, but simply to decide cases before them according to the rule of law.

Ultimately, Roberts’ decision was written plainly and the result, somewhat easy to digest. But his focus on finding constitutionality as a tax should have been the most significant aspect. Although he rolled back the commerce clause, the necessary and proper clause, and bolstered federalism, the tax power largely removes the politics of this debate from the Court’s hands. Whatever you think of Roberts logic supporting his decision (which is for another post), this act was not insignificant and I’m sure it was not unintentional.

No, by invoking the much less constitutionally partisan taxing and spending clause of the Constitution, Roberts may have ushered in a ‘tax era’ in American politics and jurisprudence. Surely, there’s a central tenet of American exceptionalism rooted in assailing taxes since even before our Boston Tea Party ancestors, but since the 1980s, Norquist’s Americans for Tax Reform have made low taxes the ultimate American fetish. Politicians today have transformed this word into one of the universal taboos of politics. Taxes have become toxic in American politics and have stunted serious discussion regarding the future of the Republic. Forcing the debate out of the Court may be a necessary catalyst for healthy debate to occur on the appropriateness of taxes.

Maybe this isn’t as sneaky and overarching as others suggest. Perhaps John Roberts, using his judicial restraint, is telling us to take our tax issues elsewhere and to leave the Court alone. (Surely, his political affiliation gives him some confidence that the issue of taxes is a winning issue for conservatives right now.) Consistent with his prior decisions and philosophy, he wants as many policy issues as possible to be resolved in the legislature where politicians can be held accountable for their votes. And because the word tax is so potent, it’s possible that any politician pushing for any new initiative that invokes a tax will surely feel the wrath of the voter if she acts unpopularity. But too, successful politicians will learn to sell taxes to constituents in a way that demonstrates the necessary evil.

Although Roberts ruling doesn’t sound as impressive this way, just because a ruling isn’t grandiose doesn’t make it any less brilliant. I hope this ruling has such a consequence, because America is in desperate need for a serious tax discussion and an enlightenment that cuts can’t cure all ills.


The Case For Abolishing Patents

Provocative argument from Michele Boldrin and David Levine covered by Jordan Weissman in The Atlantic.

The Case For Abolishing Patents (Yes, All of Them)

Both theoretically and empirically, the political economy of government operated patent systems indicates that weak legislation will generally evolve into a strong protection and that the political demand for stronger patent protection comes from old and stagnant industries and firms, not from new and innovative ones. Hence the best solution is to abolish patents entirely

Interesting perspective. And with the rise of patent trolls and defensive patent purchases, this argument genuinely appeals to me, despite it’s unrealistic chances to ever be taken seriously.