[And Also: ACS is having its national conference and various videos, including a great speech by Judge Liu taking a speech by Martin Luther King Jr. as his subject matter, can be found at its website. A panel on the Arizona case, including a Utah AG showing how the prosecution side can be reasonable here, was also interesting.]
I am a bit tired of people trying to read the tea leaves (e.g., comments in Scalia's new book, Ginsburg making broccoli jokes or talking about value of dissents, polls of former clerks) regarding the PPACA ruling. Understand the sentiment and the predictions, at times voiced with resignation at those darn conservatives. I have done it myself. For instance, the idea "mandates" will result some sort of "rational basis with teeth" requirement for Congress akin to regulations that burden certain classes of people like gays. This would be Kennedy's approach.
Turns out that there is evidence beyond Kennedy's sentiments during oral argument that requiring positive acts require a different calculus when applying the Commerce Clause and the "proper" nature of a regulation necessary and proper to advancing its ends. U.S. v Comstock is a telling case in this area, a 2010 ruling handed down after the law was passed in which Breyer (with CJ Roberts joining without comment -- in fact, he is the one who assigned the opinion) applied the NPC for a "federal civil-commitment statute [that] authorizes the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released."
Breyer provided five considerations that on balance justified it, noting how the specific law is narrow, but overall he's the one to go to give the Congress broad discretion over their own powers. Thus, Kennedy and Alito concurred in judgment. Kennedy noted (and CJ Roberts suggested this in the PPACA orals too, alluding to the "problem with Lochner") that the "rationally related" test that justifies a power not expressly enumerated but necessary and proper to the advancement of a power given to the federal government is not as easily met as the "rational basis" to uphold a state law under the Due Process Clause. States have general police powers; the federal government has more limited power and a too loose use of the term would not provide enough of a check. To wit:
Comstock involves a narrow class of people who were already in federal detention so can be distinguished from the PPACA though such is often the case, especially if you want to do so. Alito, who is seen as a lost cause here, accepted the law as necessary and proper to carry out the clearly legitimate power to have federal crimes, itself (except for a few cases) an implicit power. The class here in effect is a result of the federal government's own actions. If power can arise from legitimate but not "absolutely necessary" federal crimes, why not from legitimate but not absolutely necessary regulation of insurance companies?
A defender of the PPACA can quote Alito:
Still, the provision here in a narrow sense is novel. The majority pointed to the long (back to the 1940s) concern of the problem, but the same could be noted about national health insurance. Anyway, an approach can be imagined that recognized that a "rational basis" standard here would have some teeth, the fact that the "problem" to be addressed is partially a creation of the federal government's own making [guaranteed issue etc.] is not a barrier, the things it does not do to invade state interests can be cited and it is not "too attenuated." Other "mandates" might be.
Well, along with other matters, we shall see.
I am a bit tired of people trying to read the tea leaves (e.g., comments in Scalia's new book, Ginsburg making broccoli jokes or talking about value of dissents, polls of former clerks) regarding the PPACA ruling. Understand the sentiment and the predictions, at times voiced with resignation at those darn conservatives. I have done it myself. For instance, the idea "mandates" will result some sort of "rational basis with teeth" requirement for Congress akin to regulations that burden certain classes of people like gays. This would be Kennedy's approach.
Turns out that there is evidence beyond Kennedy's sentiments during oral argument that requiring positive acts require a different calculus when applying the Commerce Clause and the "proper" nature of a regulation necessary and proper to advancing its ends. U.S. v Comstock is a telling case in this area, a 2010 ruling handed down after the law was passed in which Breyer (with CJ Roberts joining without comment -- in fact, he is the one who assigned the opinion) applied the NPC for a "federal civil-commitment statute [that] authorizes the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released."
Breyer provided five considerations that on balance justified it, noting how the specific law is narrow, but overall he's the one to go to give the Congress broad discretion over their own powers. Thus, Kennedy and Alito concurred in judgment. Kennedy noted (and CJ Roberts suggested this in the PPACA orals too, alluding to the "problem with Lochner") that the "rationally related" test that justifies a power not expressly enumerated but necessary and proper to the advancement of a power given to the federal government is not as easily met as the "rational basis" to uphold a state law under the Due Process Clause. States have general police powers; the federal government has more limited power and a too loose use of the term would not provide enough of a check. To wit:
The operative constitutional provision in this case is the Necessary and Proper Clause. This Court has not held that the Lee Optical test, asking if “it might be thought that the particular legislative measure was a rational way to correct” an evil, is the proper test in this context. Rather, under the Necessary and Proper Clause, application of a “rational basis” test should be at least as exacting as it has been in the Commerce Clause cases, if not more soHe then alludes to the Spending Power, which is the joker in the PPACA cases, noting "limits upon the spending power have not been much discussed," a red flag of sorts that some justices are ready to discuss them. Kennedy accepts the regulation as being a "little intrusion upon the ordinary processes and powers of the States." It doesn't demand state action, relieve "the States of their own primary responsibility to enact laws and policies for the safety and well being of their citizens," nor do so much that it "intrudes upon functions and duties traditionally committed to the State." The PPACA can fit at least some of these though a more general requirement is obviously not as limited as something that is only applied to those in federal custody.
Comstock involves a narrow class of people who were already in federal detention so can be distinguished from the PPACA though such is often the case, especially if you want to do so. Alito, who is seen as a lost cause here, accepted the law as necessary and proper to carry out the clearly legitimate power to have federal crimes, itself (except for a few cases) an implicit power. The class here in effect is a result of the federal government's own actions. If power can arise from legitimate but not "absolutely necessary" federal crimes, why not from legitimate but not absolutely necessary regulation of insurance companies?
A defender of the PPACA can quote Alito:
The Necessary and Proper Clause does not give Congress carte blanche. Although the term “necessary” does not mean “absolutely necessary” or indispensable, the term requires an “appropriate” link between a power conferred by the Constitution and the law enacted by Congress. See McCulloch v. Maryland , 4 Wheat. 316, 415 (1819). And it is an obligation of this Court to enforce compliance with that limitation. Id ., at 423.
The law in question here satisfies that requirement. This is not a case in which it is merely possible for a court to think of a rational basis on which Congress might have perceived an attenuated link between the powers underlying the federal criminal statutes and the challenged civil commitment provision. Here, there is a substantial link to Congress’ constitutional powers.The insurance coverage provision -- which like the commitment mechanism here overall arguably helps the people and states whose power is delegated to Congress -- is not in place for a trivial reason, one that is "merely possible" necessary to further the regulation of interstate commerce. It might not be "indispensable," but Alito reminds that is not required. I'm shifting gears here, of course, since I'm using his words against him in a way (unlike in the case of Kennedy, who is a more reasonable chance to vote the sane way) somewhat unlikely to be used the way Alito would use them. And, he also referred to the clear long history of federal criminal law, when some note the supposed novelty of the PPACA.
Still, the provision here in a narrow sense is novel. The majority pointed to the long (back to the 1940s) concern of the problem, but the same could be noted about national health insurance. Anyway, an approach can be imagined that recognized that a "rational basis" standard here would have some teeth, the fact that the "problem" to be addressed is partially a creation of the federal government's own making [guaranteed issue etc.] is not a barrier, the things it does not do to invade state interests can be cited and it is not "too attenuated." Other "mandates" might be.
Well, along with other matters, we shall see.