Getting It Wrong

What happens when the Supreme Court gets it wrong? Because that happens.

Earlier this week was the 10^th anniversary of the notorious Kelo v. City of New London decision. That was the one that defined imminent domain requirement of “only for public use” to the endlessly broad possible future “public benefit.” So, if a city decides it would rather get the tax money from a mall, it could seize the property (compensating at current market rate) and sell it to a preferred developer who might provide more tax revenue.

All of us regular thinkers could see clearly that the purpose of imminent domain should be something necessary, such as a road. It should be used carefully and sparingly, not extending beyond necessity, and always with the value of the land at its highest (if the road would make the property more valuable, then taking it before the value is added and depriving the owner of that increased value would be wrong).

Taking property from one owner to confer it to a preferred owner is theft. Pure and simple. It wasn’t just misconstruing the term “public use”; it was also a matter of disregarding all the Court’s precedent on property rights. It so thoroughly threw out the long-held understanding of property rights, as Sandra Day O’Connor said in her dissent, only a really “stupid staffer” could fail to come up with some “public benefit” from any government taking. (There’s a good review here.)

There was public outcry—across party boundaries. And some states have amended their constitutions to address the matter, to avoid such public seizures. But the Court has not done anything to reverse itself.

January 22 of this year was the 42^nd anniversary of Roe v. Wade, which found in the “umbras and penumbras” of the Constitution a right to privacy that is construed to guarantee a woman a right to kill her unborn child. It acknowledged that a state could have an interest in its citizens, including persons-in-being, which can be at odds with the between-the-lines right to abortion. So that led to the clarification referred to as the undue burden rule. 

Following that debate-ending SCOTUS ruling, no state has been able to outlaw abortion. But there have been some movements toward progress. Pro-abortionists are revealing themselves to be callous and cruel when they oppose each and every measure. As science becomes better able to show details of a growing fetus, laws in several states—still meeting the undue burden requirement—have managed to curtail partial-birth abortion, and even third-trimester abortions, or abortions after 20 weeks, the point at which pain is proven to be felt by the unborn. Eventually this abomination will be seen for what it is—no thanks to the Supreme Court.

Today we add to the list of SCOTUS errors. The King v. Burwell decision came down, a 6-3 decision claiming that a state exchange is equivalent to an exchange through the secretary of Health and Human Services. The law doesn’t say it. The law clearly says otherwise. But Justice Roberts, in his opinion, even though he could see that the law didn’t say what it needed to say, wrote that we should keep the law from failing.

Here is Justice Roberts’ explanation[i] of the situation (section C):

The Act requires the creation of an “Exchange” in each State where people can shop for insurance, usually online. 42 U. S. C. §18031(b)(1). An Exchange may be created in one of two ways. First, the Act provides that “[e]ach State shall . . . establish an American Health Benefit Exchange . . . for the State.” Ibid. Second, if a State nonetheless chooses not to establish its own Exchange, the Act provides that the Secretary of Health and Human Services “shall . . . establish and operate such Exchange within the State.” §18041(c)(1).

The issue in this case is whether the Act’s tax credits are available in States that have a Federal Exchange rather than a State Exchange. The Act initially provides that tax credits “shall be allowed” for any “applicable taxpayer.” 26 U. S. C. §36B(a). The Act then provides that the amount of the tax credit depends in part on whether the taxpayer has enrolled in an insurance plan through “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act [hereinafter 42 U. S. C. §18031].” 26 U. S. C. §§36B(b)–(c) (emphasis added).

So, there are two types of exchanges, a state exchange and an exchange set up by the secretary of Health and Human Services. The law is clear that those who qualify for a subsidy must fit the requirement of income between 100-400% of poverty level and sign up through a state exchange. The law was written that way to pressure states into setting up the exchanges. No state exchange, no subsidy for citizens in need. It was assumed very few if any states would refuse to set up the exchanges. But they were wrong. Many states refused—34.  In addition to those refusing, some tried and failed. Several more are still trying but are on the verge of total collapse. So the secretary of HHS ended up providing exchanges for far more than expected.

And that’s why they (the IRS, directed by the administration) decided, even though the law doesn’t provide for it, to subsidize any low-income users of any exchange.

Roberts had a misguided purpose—again. He thinks it might subject the Court to disrepute to throw down a law that Congress duly passed—even though, if the Court has a purpose beyond being the final court of appeal, it’s purpose is to throw down as unconstitutional any law Congress passed that doesn’t meet the limited government standards clearly laid out in the Constitution. He knows it’s bad law. He says,

The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Cite as: 576 U. S. ____ (2015) 15 Opinion of the Court Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”).

So, knowing the law is faulty, he says, “But that does not allow this Court to rewrite the Act to fix that problem.” And yet “fix” it (i.e., put in “the fix,” meaning “to influence the outcome or actions of (something) by improper or unlawful means: fix a prizefight; fix a jury)[ii] is what he does.

If there is a bright lining to this dark historical cloud, it is Justice Scalia’s scathing dissent, joined in its entirety by Justices Alito and Thomas. Scalia pulls no punches, and he doesn’t beat around the bush. This is his first paragraph:

Justice Antonin Scalia
(photo by Pete Marovich,/ZUMAPRESS/Newscom)
found here 

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.

This exasperated explanation is on his second page:

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.

If the subsidy would be given for any exchange, then would be odd to keep referring to the subsidy coming in relation to a state exchange under §36B. There are places in the vast law, cited by Justice Scalia, that refer to both the state exchanges and those provided by the secretary of HHS, and sometimes together those are referred to as “exchanges,” but never in relation to §36B (the subsidy, dealing with the IRS). Every time the subsidy is referred to, the full phrase includes “state exchange” and the reference to the part of the law. Not just a time or two, but I believe it was seven times. That’s not an accident; it’s clearly to delineate when such a subsidy can be given.

Here is one of the more important lines:

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

Whatever else follows this decision, this is the precedent that was set: words in law no longer have meaning.

It used to be that a court would look at the clear understanding of the text—what the words mean to reasonably educated people. And if that left something ambiguous, then the court would look at context, to see if the ambiguity can be cleared up elsewhere in the law. And sometimes a law would define a term in a specific way—that would be designated in the law. (Example: for the purposes of this law, the term “duck” shall be referred to as “goat.” And then, for that law only, even if nowhere else, a waterfowl we normally refer to as a duck would be referred to as a goat.)

Roberts actually claims that he is viewing the term “state exchange” in the larger context, but Scalia schools him on that. Chief Justice Roberts just got told, “You keep using that word—state exchanges. I do not think it means what you think it means.”

One difference between Roberts and Scalia is that Roberts thinks he should “help” the lawmakers by ruling, “let’s pretend you wrote it better.” Scalia does the more natural thing: the law says what it says, and that’s all it can do. If you don’t like it, the legislature is free to change the law. As Scalia so aptly puts it:

Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” This Court, however, has no free-floating power “to rescue Congress from its drafting errors.”

And,

They made Congress, not this Court, responsible for both making laws and mending them.

Scalia may be writing the dissent, but his lines will be most memorable. Maybe especially this one:

We should start calling this law SCOTUScare.

Son Political Sphere suggests it could aptly be called RobertsCare, since it is his two bad Obamacare rulings that leave us wondering what this administration is blackmailing him with.

Scalia adds,

This Court’s two decisions on the Act will surely be remembered through the years…. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

If the Chief Justice had as his purpose retaining respect for the Court, this decision was a big FAIL. His legacy will be that any time there’s a dispute over the meaning of words in law, the Roberts precedent will be cited: if it doesn’t mean what it says, we will say it means what we want it to mean.

That may be many ridiculous things, but it is not blind justice.

No good comes from a bad Supreme Court decision. Much bad can come from it. Hold onto your hats; we’ll have more to face Friday and Monday, the final days of this Court session.

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[i] http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf

[ii] The Free Dictionary by Farlex, definition 2c:  http://www.thefreedictionary.com/fix

Marriage Rulings

It was a bad day for black robes. It is said that our freedoms are never safe when the legislature is in session. You could say something similar about when the Supreme Court is in session. Wednesday was the last day of this session, so, at least for a few more months, we can say “phew,” and stop fearing the daily onslaught.

At some future point I’d like to do a scorecard on the SCOTUS, but today the news about marriage is too heavy to cover more than that. Wednesday’s two rulings were on DOMA and Prop 8. (I wrote about the cases and issues at stake on April 1^st.) Let’s start with this declaration first, because the news is creating less than truthful headlines: neither ruling declared “same-sex marriage” the law of the land. Both rulings, while not going the way I thought they should have, were minimalist in effect. 

Supreme Court
photo from NPR

DOMA

A portion of the 1996 Defense of Marriage Act was struck down as unconstitutional. The law—which was brought forward by a Republican Congress, but was signed by Democrat President Bill Clinton, and his Democrat controlled Senate, and which Obama claimed to support until a few months ago—had definitional purposes. As far as federal law was concerned, marriage would be defined as a contract between a man and a woman, and spouse would be defined as one of the marriage partners, the opposite sex of the other spouse. The change brought about by Wednesday’s ruling is to eliminate a federal definition, meaning the federal government will use the definition allowed in any particular state. Essentially the outcome is that federal employees in states that allow for same-sex “marriage” can receive spousal benefits. There will probably be other eventual outcomes, and further confusion, but at this point that is the limit of the definition elimination.

The unfortunate part of the ruling is the reasoning. The majority opinion claims that the reason the definition needed to be eliminated was that its only purpose had been to harm certain less popular citizens. There was no legal rationale; there was only the supposition that the justices could divine the motives of the Congress, Senate, and President who codified into law what had been assumed to be true for the entire history of the country—and indeed for the entire history of civilization—and somehow discern that it was based only on hatred against a particular innocent group.

Scalia (may he live long!) wrote a scathing dissent. It was around two dozen pages; here are a couple of excerpts:

But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to "disparage," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

He’s right. The real concern is the condemnation of all of us in the majority who still hold to the age-old definition of marriage as enemies of the human race. Condemning the masses as sub-human simply for disagreeing with the current liberal cause de jour is certainly not the intended purpose of having a judicial branch. Scalia adds this:

It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.

Considering how correct the liberal court feels itself to be, they were restrained in their result. They failed to claim there was a constitutional or basic human right to same-sex “marriage,” and instead allowed continued federal government confusion at the mercy of state differences. If they thought they could have gotten away with acting more strongly against the majority of Americans, they probably would have done so. 

Prop 8

The Prop 8 ruling was, as feared by both sides, a punt. The case was dismissed because the Supreme Court preferred not to grant standing to a private organization to defend a state law. Here’s a summary, again, of the situation.

The people of California long ago (around 2001, I believe) voted to continue defining marriage as a man and a woman; the state legislature overruled the people’s will. So the people responded through the initiative process and codified the traditional definition of marriage to overrule the legislature. This was Prop 8, which won in 2008 with 52% of the vote (a clear majority, and if you look at the voting, you see that only a few urban masses voted against the proposition, while nearly all counties had majorities voting in favor). Despite the win, a few judges flouted the law and “married” same-sex couples, and a judge decided to overrule the people from the bench and say that was lawful, because he thought it should be (he was a homosexual judge with an agenda, but refused to recuse himself or even be objective). The state of California was required to defend the law against this judicial behavior, but it refused. So the organization that had supported Prop 8 asked for standing. The case has been making its way up through district and circuit courts on its way to the Supreme Court.

outcome of Prop 8 vote
graphic source: Wikipedia

The Court said Wednesday that, because the Court had never before allowed a private entity to defend a state law, it would not do so now. In the process it overturned the 9^th Circuit ruling and essentially said the law needed to be defended by the state of California. If the state continues to refuse to defend the law, that probably means judges may choose to “marry” same-sex couples afoul of the law, and there will continue to be confusion about the validity of those “marriages.”

But any way you look at it, the Supreme Court ruling fell short of approving same-sex “marriages” in California, and also gave a ruling that can only be applied to that particular state.

The aftermath isn’t good for real marriage, but it is worse for the initiative process for those states that have it. It says, “Sure, you can have an initiative process, but the outcome is irrelevant if the state government doesn’t happen to agree with the outcome.” The will of the people was seriously degraded with this ruling. 

Flotsam and Jetsam

While it could have been worse, the outcome for civilization was negative from these rulings. More than laws, however, which were only minimally affected, the opinions flamed the hateful vitriol against supporters of traditional marriage.

A comparison was brought to my attention, in a piece by Ben Shapiro for Breitbart. It was a case with Bob Jones University, back in 1983. That private university, a religious institution, had a rule against interracial dating. I never understood the belief against interracial dating or marriage. It seems odd and archaic today, but there were parts of the country (mostly southern) that held to separation of races longer than other places. So, while we may clearly disagree with Bob Jones University’s beliefs on that issue, they weren’t unheard of at the time. Their non-profit tax-exempt status was removed—not because they suddenly became a for-profit organization, but because their beliefs weren’t politically correct:

Government has a fundamental, overriding interest in eradicating racial discrimination in education … which substantially outweighs whatever burden denial of tax benefits places on [the university’s] exercise of their religious beliefs.

The Court decided against the University based only on its beliefs. So the question is, could the Court do the same with churches, schools, businesses, and other organizations that hold what they deem is an “enemy of the human race” belief?

The tactic of the tyrannical hemisphere has been to control the language, the message. To move popular opinion until people think what they used to know instinctively isn’t so anymore. And anyone who still has the old common sense are labeled the “enemies of the human race.” At least we have a Supreme Court justice who spelled out what is happening, so there’s a record for historical anthropologists to someday dust off and discover.

I tend to consider the relationship to civilization when history happens before our eyes. I came across this quote during the days’ post-decision reading, and it seemed apt:

This time, however, the barbarians are not waiting beyond the frontiers; they have already been governing us for quite some time. And it is our lack of consciousness of this that constitutes part of our predicament. We are waiting not for a Godot, but for another—doubtless quite different—St. Benedict.  —Alasdair MacIntyre, After Virtue 

Hopeful Extra

Thursday the 10^th Circuit Court ruled in favor of Hobby Lobby, which refused on religious grounds to provide medical coverage for abortifacients (abortion inducing drugs), just in time to keep them from having to pay fines of $1.3 million a day, that were set to start July 1^st. Courts don’t always go wrong. Not yet.

Unique Markets

During last week’s Supreme Court oral arguments concerning Obamacare, last Tuesday the discussion covered why health insurance would be a unique market and therefore in need of government intervention. So we’ve been discussing this definition at home the last few days. And my son Political Sphere, as an exercise, took the definition for unique market and applied it to yet another “unique” market. Let’s lay some groundwork for the definition first. Page numbers refer to the official transcript.

Verrilli (the government lawyer defending Obamacare) says healthcare insurance unique because it is characterized by the fact that virtually everybody “is either in that market or will be in that market, and the distinguishing feature of that is that they cannot—people cannot generally control when they enter that market or what they need when they enter that market (p. 5).

Justice Roberts answers:

Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever.

You don’t know when you’re going to need it; you’re not sure that you will….

So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? (pp. 5-6).

Verrilli responds that the difference is that insurance is a market, which isn’t a particularly helpful distinction. So Justice Alito adds another analogy:

Do you think there is a market for burial services?.... Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and said: You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money to pay for it, you’re going to shift that cost to somebody else. (pp. 7-8)

Justice Scalia helps refine the definition by asking about food: “Could you define the market—everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli” (p. 13).

Verrilli responds that, while everyone participates, “it is not a market in which your participation is often unpredictable and often involuntary” (p. 13).

A couple of pages down, Verrilli responds overall to these other markets: Verrilli (p. 15-16):

I would have thought that your answer—can the government, in fact, require you to buy cell phones or buy burial that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn’t the answer be, yes, of course, they could (pp. 15-16).

So, in sum, the health care market is unique because

·         Everyone participates at some point.

·         Timing of need is not necessarily predictable.

·         There is a primary system of paying for the product/service, which is therefore subject to commerce regulation.

·         There are free-riders who affect the cost for participants in the market.

If healthcare insurance is unique, then it is the only market that meets the criteria, so we wouldn’t have to worry about encroachment of government in other markets. But Verrilli already admitted other markets could be construed to also be unique.

So, here is Political Sphere’s application  of the definition on yet another market: housing.

Does the housing market have free-riders? Absolutely, in more numerous ways than the health care market. You have various versions of squatter laws; you have rent controls limiting price increases on those already renting; you have delinquencies and defaults on mortgages. And laws generally make it a long process to kick out someone that has current residence in a property.

Does almost everyone use it at some point in their life? Again this is an obvious yes, perhaps even more true than health care, because even people who, by choice, live on the streets often lived in a house once.

And because these two items are true, what can be mandated? The payment mechanism for the majority of housing (all housing, not just private residences) is to have a mortgage. So by this argument, if the Congress can mandate that everyone has health insurance to pay for their health care, then it only stands to reason that Congress can mandate everyone have a mortgage to pay for their housing.

Since there are four items on the list, let me add, just to be thorough, that choice about needing shelter can also be somewhat unpredictable, even for the homeless; severe weather makes the need urgent, and weather, while seasonable, can be unpredictable. But since ancient times, shelter has been considered a basic need, up there with air, water, food, and clothing. You can choose to go without for a while, but when the blizzard hits, you might suddenly find camping under open skies untenable.

Unique still means one of a kind, unike all others, right? As Inigio Montoya would say, “You keep using that word. I do not think it means what you think it means.”

Eventually, Justice Kennedy pointed out our mistrust of the “unique market” argument: “And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique” (p. 104).