There’s an interesting story in today’s Globe about how two of the architects of Romney/Obamacare were just so startled that the constitutional challenges to the federal law got as far as they did.
After countless hours crafting the universal health care law in Massachusetts as an adviser to Governor Mitt Romney and then on the national level for the Obama administration, MIT economics professor Jonathan Gruber couldn’t believe that any judge would seriously entertain arguments against the central plank of both plans.
“I remember a few meetings where someone raised the question of a constitutional challenge,” he said of his time in Washington helping to create the Affordable Care Act, with its requirement that people have health insurance or pay a penalty. “Everyone would say that expert lawyers had been consulted, and that there was no issue.” …
“The oral arguments were like living in an Ayn Randian nightmare,” he said, referring to the late author revered by conservatives. “They were taking these wacky theories seriously.” …
The belief was the Commerce Clause precedent was robust and provided ample justification for what was being done,” [John] McDonough said. “We were advised by constitutional lawyers to make clear why we were doing what we were doing, and what our justification was. The bill presented the rationale for why were acting rationally.”
He said administration lawyers and constitutional scholars argued that while there would probably be legal challenges, it was laughable to think that the Supreme Court would take seriously any challenge to Congress’s authority to regulate commerce….
Gruber said he was surprised that a majority of the court “disagreed with so many constitutional experts” on the Commerce Clause. “I was quite frankly stunned that what were considered nuisance arguments got as far they did.”
“Wacky theories.” “Nuisance arguments.” Astounding, really, in light of the fact that those theories just picked up five votes on the Supreme Court, and so are now pretty much the law of the land (thanks for that, guys). The only way these folks could have been as blindly and foolhardily confident as they were is if they were only talking to people who already agreed with them that the mandate approach to a national health care law was a good idea. Because the argument that the Commerce Clause doesn’t authorize an individual mandate has, in my view at least, always been a credible one. And it should have been perfectly obvious to anyone who studies the Supreme Court that, given the makeup of the current Court, that argument would have pretty good traction there.
Let this be a lesson to those crafting complicated, boundary-pushing legislation: you might want to talk with someone outside your cocktail party circle before you conclude that your project is on legally solid ground.
dave-from-hvad says
book, “Thinking in Time, The Uses of History for Decision Makers.” Those authors, who advised a number of presidents, would have agreed with you that the presumption that the individual mandate would pass constitutional muster had not been carefully analyzed or questioned.
For every situation demanding a decision maker’s attention, Neustadt and May advised that person or those persons to identify the underlying concerns that are “known, unclear, and presumed.” Factors that are presumed often need special attention because presumptions can be based on faulty perceptions; and those perceptions can result from failing to “talk with someone outside of your cocktail party circle.”
I tried, I hope successfully, to adapt Neustadt and May’s advice about questioning presumptions to planners and managers of public projects. It sounds like the crafting of the universal health care law could have made a good case study for either of our books!
gregroa says
… let’s play a bit of “What if” history.
What if “Hillarycare” had gotten more traction in ’94 and, in reaction, the ensuant GOP congress passed the Heritage Foundation’s 90’s healthcare plan, which looks almost exactly like Obamacare?
Would any of the GOP states brought suit?
Would any conservative judge rule against a GOP passed law on the via the Commerce Clause?
Would there even be a question of its constitutionality?
I maintain that what the legal supporters of Obamacare failed to take into account was not the legal arguments, but rather the reactionary nature of the right wing at both the state level and in the courts. The remarkable unsigned dissent representing the conservative four makes it very clear that this was not a typical legal argument in their eyes, but rather a chance to undo 70+ years of liberal policy. It reads like a road map on how to challenge almost every federal program that is not the actual shipping of goods across a state line. Everything from the Dept of Education to the USDA would have been ripe for court order changes.
Stare decisis is no longer a reality at the SCOTUS for any legislation, past or present, that has a Democratic or even bipartisan stamp. That is what every “legal expert” needs to keep in mind until the makeup of the bench changes.
David says
But my point is that it was extremely foolish of these allegedly smart law profs not to take into account who was sitting on the Supreme Court at the time they gave their advice.
afertig says
David, I love all your posts. But this one doesn’t quite seem on the mark. I would highly recommend a recent New Yorker piece by Ezra Klein on this, which examines how it came to be that, in just 2 short years, we went from a constitutional debate that hardly took challenges to the individual mandate seriously to that 5-4 decision. This was written just before the Supreme Court made the decision. Here’s how it starts:
Read the whole thing here. (Emphasis mine.)
I get that some people saw the challenge coming before others, certainly. But this wasn’t about being in some sort of elite “cocktail party circle” of people who only think one way. This was about an intentional attack on basic constitutional principles, a media that went along with it, and a hyper-political court.
David says
All due respect to Ezra, that is simply not true. I can reel off a half dozen well-known law profs who either took the argument seriously, or actually were advocates for it, off the top of my head; no doubt there are many more out there. So I do think it’s an echo chamber/cocktail party problem.
And whatever label (“hyper-political,” if you like) anyone chooses to place on the current Court, its makeup on the conservative side has been stable since Alito was appointed. Nobody should have been surprised.
judy-meredith says
Super lawyers muster brilliant and elegant arguments on every facet of complex issues and love splitting baby fuzz over obscure points of law and as Ezra Klien pointed out in his wonderful article Ari referred to, us uninformed partisans believe the opinion leaders we trust.
You and I both know that Gruber and McDonough were not just talking to each other they had access to and advice from some of the best constitutional lawyers in the country and they trusted them. Maybe they should have talked to you?
David says
who Gruber and McDonough did or did not talk to. But it seems highly unlikely that they sought out conservative-leaning small government advocates, although there are plenty of them within the ranks of the faculty at elite law schools. If they had, I don’t see how they could have been so confident. A phone call to Larry Tribe doesn’t exactly count as canvassing the field.
David says
lawyers are partisans too. Maybe they failed to appreciate that.
afertig says
I’m not going to try to call you out and ask you to name the professors who took the argument seriously or were the ones advocating them. I am sure that’s true. But the issue is that, post 1937 case law suggested that those professors who advocated those positions simply wouldn’t have much of a leg to stand on. You can take the argument seriously as a serious right-wing legal challenge — but to do so you had to either chip away at or overturn outright decades long case law. So, certainly, the argument was there. But the case law wasn’t — and what’s surprising is how willing the right-wing members of the court are to overturn case law to advance their own ideology. If the court acts as it should, this simply wouldn’t have been close.
David says
that’s certainly one opinion, and it was probably the majority opinion among legal academics. But the fact is that, perhaps aside from some colonial-era statute about muskets, Congress had never before required that people buy something; certainly, the issue had never been litigated before. I always thought the Commerce Clause argument was plausible, and I’m reasonably familiar with the post-1937 case law you’re referring to.
Trickle up says
It’s not about talking to different cocktail parties. It’s about how the whole model of the American Republic no longer works the way were were taught in school. Two party system, judicial restraint, checks and balances, all shot to hell.
We (and I include myself) continue to write and behave as if these institutions had not been fundamentally subverted by a vast right wing conspiracy. Habit or sentiment, maybe. Or cowardice.
Tempering legislative strategies against some new judicial set of principles is a sucker’s game. There are no principles, just opportunism, and it’s a receding target.
SomervilleTom says
Our government has been acquired, in something akin to a leveraged buyout, by the right wing. Ms. Clinton’s “vast right wing conspiracy” observation was accurate then and remains so now.
The question is what, if anything, we’re going to do about it.
jconway says
Is to ask the question what would Goldwater do? What would Buckley do? What would Reagan do? This is not to say that those three individuals have the right political priorities, but they knew how to play the long term game of establishing a movement that worked outside of the traditional two parties to prod one or both of those parties to adopt its positions. By doing so they were able to create a permanent conservative movement that forced the Republican party to the right from the center-right, purged it of moderates and liberals, and gave it a cohesive ideological bent. Seeing the House vote by party on the Affordable Care Act shows you that every Republican had bought into this program.
We need a progressive movement unafraid to call itself progressive, dare I even say liberal, and to advocate for strong social liberalism and work outside the Democratic Party. For far too long we have tethered our movement on specific candidates, specific elections, and short term goals. It is time to start playing the long game and that is how we compete. Its also time to be unafraid to play the money game either to build that movement. We need a strong presence in universities, particularly in law schools, a strong presence within religious institutions, and a strong presence in government service. We also need to revitalize and integrate the trade union movement into the progressive movement as well. These are the long term goals, and focusing all of our efforts on re-electing the President or taking back Congress are short term efforts. We have to be willing to put, as Goldwater and Buckley did, a dyed in the wool progressive candidate and risk losing with them to take the party from the economic center-center right and back to the left and take the movement with us.
Christopher says
…is that Goldwater, Buckley, and Reagan could well be eaten alive in today’s GOP. Goldwater was moderate on social issues, Buckley insisted on keeping the John Birch Society out of the conservative movement, and we have Reagan on tape seeming to be sympathetic with the principle behind what we now call the Buffet Rule.
jconway says
Buckley and Goldwater were smart enough to know they would lose on the Goldwater platform, ironically far too social liberal (save for civil rights, but pro-choice and anti-draft before those positions were in vogue) and fiscally conservative for any era then or now, but they knew it would inspire younger voters to build a movement behind a more marketable candidate in Reagan while also electing slate after slate of candidates from the local level on up. Buckley may have ditched the Birchers but he helped make the religious right mainstream (Goldwater infamously parted with the movement and Reagan when it came to that alliance) and part of that involved stepping outside of the party, most successfully with the NY and CT Conservative Parties, as well as putting influential conservatives on school boards and gradually within state houses and Congress and eventually the White House, with the Fed Society providing a great judicial talent pool as well and think tanks and periodicals providing academic legitimacy and intellectual capital.
Buckley got his start when conservatism was at its nadir, infamously derided in the Trilling phrase calling it ‘irritable mental gestures masquerading as ideas’. Ike was forced to govern as a moderate liberal and his New Republicanism was rightly derided by Goldwater as a dime store New Deal. Progressives are in the same place today, with a liberal President being forced to make neoconservative attitudes towards civil liberties and war powers permanent, his signature domestic accomplishment the passage of the Heritage Foundations healthcare plan once proposed by Senator Dole. Unionization at its lowest level since the Gilded Age and with Ryancare threatening the future of the Great Society and eventually the New Deal itself. We have been on defense for far too long. Its time to change the conversation and move forward as a movement. And its time to make working families our top priority again, we cannot simply be the socially liberal neoliberal party anymore.