Friday, March 30, 2012

On the Individual Mandate, Part One: The Jurisprudence of the Court

On Tuesday and Wednesday of this last week, the Supreme Court heard oral arguments on the Constitutionality of Obamacare.  Tuesday the argument was on the individual mandate (the command that everyone in the country purchase insurance.  Wednesday the argument was over whether the rest of the thousand-plus-page law can stand if the mandate falls.  (Monday there were arguments on a technical point of jurisdiction; the Court seems clearly to think it has jurisdiction.)

My not-so-expert prediction is that Obamacare will be struck down by the Supreme Court.  Alito, Scalia, and Thomas are all considered dead set against it; the liberals are all for it.  Kennedy and Roberts, then, are the key votes.  Most believe Chief Roberts will follow Kennedy, if only to get in on writing this very significant decision.  It all rests, then, on Anthony Kennedy.

I did a little study of Kennedy’s past rulings.  I’ll spare you the details, but I’d say his jurisprudence is based on liberty.  Thomas is a radically strict constructionist: what the Constitution says, goes.  Scalia, Alito, and Roberts (probably in that order) are less strict constructionists: because they believe in the rule of law, they prefer to do what the Constitution says, but they also realize that precedent is the rule of law.  If interstate commerce, or due process, has been read in a bizarrely broad way in the past, they argue, then that reading is part of the rule of law; it will not do for the Supreme Court to make words mean something vastly different from what they’ve been understood to mean.  So they try gradually to roll things back towards a strict reading of the Constitution, but realize that this is a gradual process. 

Meanwhile, the justices of the Left, Ginsberg, Breyer, Kagan, Sotomayor, are all more or less utopianists.  Their jurisprudence is based not on the text of the Constitution, but on what it ought to be – a jurisprudence, one could say, of justice.  If they think Obamacare is just, the text of the Constitution is irrelevant.  This, I should add, is not an unreasonable jurisprudence.  I am on the side of the text of the Constitution, because I think it is key to the rule of law that we follow written texts, and I think the rule of law is key.  But it is reasonable for the liberal justices to say that the Constitution is a terribly antiquated text – in many ways it is – and that, anyway, for eighty years now, years of massive societal change, we’ve been ignoring it, so why go back now? 

There are good Catholic political philosophers, people who focus on “natural law” such as Hadley Arkes and J. Budziszewski, who agree with the liberals on this, and who strenuously reject the thinking of the Court’s conservatives.  They think the Court should rule for what is right, not what is written down.  As a student of Thomas Aquinas, I think this focus on natural law is a little naive, and I think it’s a matter of natural law, and rightness, to follow the written text (and thus the rule of law) anyway.  But it’s worth noting that the liberal perspective is not so crazy.

Nor is Justice Kennedy’s.  He has a simplified version of what’s right or good: a balance of individual liberties.  This is actually a pretty respectable view.  Instead of the utopianism of Ginsberg etc., which obviously falls into all sorts of subjectivism, he says, look, the basic principle of America, and of good government, is that the government won’t intervene unless you’re trampling on other people.  Reduced to a clear jurisprudential rule, the test is liberty.  You lose liberties only to the extent that you’re taking away other people’s liberties.

On this test, I think the Obamacare individual mandate falls because, by making people buy a product they don’t want, it unnecessarily intrudes on individual liberty. 

An interesting part of the decision will be how it’s written.  To varying degrees, Thomas, Scalia, Alito, and Roberts (in that order) will argue that the mandate is invalid because it does not match the enumerated powers in Article One, section eight, of the Constitution: specifically, a health-insurance mandate does not fall within Congress’s power to “regulate interstate commerce.”  But Kennedy, the key vote, will argue that it’s invalid for a totally different reason.  Expect him to write the decision, with significant concurring arguments from the others; maybe even a big one signed by all four.

Some further details tomorrow.