Of Jokers and Cheshire Cats

“Words had lost their ordinary meaning... and Athenians had lost the capacity for simplicity of speech which is the mark of a noble man.”  -- Thucydides, Peloponnesian War.

The Supreme Court has upheld the core provisions of Obamacare.  The predictable result will be a lot of crowing and scrambling from the usual quarters; but whether the cause of constitutionalism has much to crow about is another matter.

As heard by the Court, National Federation of Independent Business v. Sebelius   involved two substantive questions: (1) whether Congress could require people to buy medical health insurance and penalize them if they failed to do so, and (2) whether the Federal Government could force the states to participate in the expanded provisions of the Medicaid program by taking away their existing funding if they failed to do so.  In a fragmented decision, the Court upheld the law, more or less five to four on the first question and 3+2-4 on the second.

Since most people are swayed by the objects of their desires, there is bound to be a storm of blustering outrage from the right met with vindictive exultation from the “leftish” media over Justice Scalia’s supposed defeat.  Without doubt the providing of health care is one of the most pressing social and economic issues of the day and the arguments on how to do so are well delineated by now. But as important as any result is how the Court gets there and, in this light, the Court’s opinion is yet another step onward in its ongoing destruction of language and hence what we call “the rule of law.”

This article is not so much about health care as about jurisprudence and about how a thicket of evasions, equivocations and idiomatic devices have hollowed out guided discourse.

Artifice all but reeks and drips from the very first sentence of the opinion. A preliminary question the Court had to face was whether it could hear the case at all.  The Government had urged, as one of its arguments, that the individual mandate was really just a kind-of tax that should be upheld under Congress’s indisputable power to levy taxes.  The problem with this argument was the long standing and equally indisputable rule that a tax cannot be challenged in court until it is actually imposed.  Since the individual mandate does not take effect until 2014 there was nothing to hear, yet. 

The Court’s majority opinion, written by Chief Justice Roberts, neatly killed two birds with one stone: the mandate was a lawful tax under the Constitution’s Tax & Spend Clause but it was not a tax for purposes of contesting the matter in court.  Such a two-faced argument, however it is turned, is simply too clever for honesty. 

But even with respect to the substantive question of whether the mandate was a tax the majority’s argument was specious. In sustaining the individual mandate on its merits, Chief Justice Roberts framed the issue thus:

    “The most straightforward reading of the mandate is that it commands individuals to purchase insurance. .... After all, it states that individuals “shall” maintain health insurance. ....   Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. .... That, according to the Government, means the mandate can be regarded as establishing a condition —- not owning health insurance -— that triggers a tax -— the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.  (Opn. pp. 31-32 [emph. added].)

The Court smiled upon the theory and in support of this cleverness cited Crowell v. Benson, (1932) 285 U. S. 22, for the proposition that  “[t]he question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.” (Id., at p. 62.)  Among lawyers this is known as the “laugh test”  -- can you say it with a straight face?  Apparently so, since the Chief Justice did not dissolve into convulsions of uncontrollable mirth when he read his opinion from the bench.

The attentive reader might notice the broken analogy between “buying gasoline or earning income” and “not buying insurance.”  The reader might wonder if this means that the government could tax “not earning income.”  The question can be asked with a straight face given that for many years England did in fact penalize poverty (Vagabonds and Beggars Act 1495) and such legislation survived in the United States until 1972.

Could not the Court have come up with a better theory, one that did not put such a strain on facial muscles? After all most everyone thought that the decision would hang on  a straight up or down reading of the Commerce Clause.

The jurisprudence of the Commerce Clause is nothing less than the domestic history of the United States in legal form.  The clause grants Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”  As it applied to the “several States” it was most likely intended to prevent the states from enacting protective tariffs against one another as they sought to become economically autarchic to the detriment of general prosperity.  But it very quickly became evident that a country which was half pluribus and half unum was embroiled in numerous and varying inter state contacts. As the nation became more and more economically developed and entangled so too did the Commerce Clause which, through a variety of jurisprudential “theories,” sought to accommodate economic necessities.

At first the clause was held to authorize regulation of commerce that directly inter-coursed between two states, such as ferryboats and railways. (Gibbons v. Ogden (1824) 22 U.S. 1.)  It was then held to authorize legislation over indirect impacts on inter-state trade, as for example price fixing among meatpackers in stockyards which, the Court said, "are but a throat through which the current [of commerce] flows.” (Stafford v. Wallace (1922) 258 U.S. 495; also Swift v. United States (1905) 196 U.S. 375.) Lastly it was held to authorize regulations over local activities which had an indirect effect on the flow of commerce.

The high water mark of federal commerce clause regulation came in 1942 with the decision in  Wickard v. Filburn, 317 U. S. 111 which Justice Scalia’s dissent called “the ne plus ultra of expansive Commerce Clause jurisprudence.” (Opn. p. 3.)  It was also the ne plus ultra of judicial sophistry.

There is no dispute as to what Wickard held.  Roscoe Filburn was back-country Ohio farmer who grew some wheat for his own consumption.  He asserted that, as a purely local and non-commercial grower, he was exempt from federal regulation.  Nope.  The Court held that by not participating in interstate commerce Filburn affected interstate commerce as much as if he had participated in interstate commerce and was therefore subject to federal regulation.  

In holding that “out” means “in” the Court announced a rule that could be used to justify anything. Indeed, those who favored federal intervention and regulation regarded Wickard’s Joker as an all purpose rationale  -- one merely had to string together a series of potential “impacts” on commerce.

It was no surprise that the Administration and those in favor of Obamacare, argued that the individual mandate was lawful under Congress’s power to regulate interstate commerce.  If government can destroy gallons of milk to support the price, why can’t it require the purchase of milk to drive the price down?  Liberal commentators excoriated Justice Scalia’s evil simple-mindedness when he asked during oral arguments whether the government could force a person to buy broccoli.

However, in the denouement, except for Justices Ginzburg and Sotomayor, the Court agreed with Scalia. As Chief Justice Roberts wrote,

“Congress thought it could enact such a [mandate] under the Commerce Clause, and the Government primarily defended the law on that basis. But, ... the Commerce Clause does not give Congress that power.” (Opn. pg. 32.)

In so holding, the Roberts-Scalia opinions continued a tepid retreat from Wickard that began under Chief Justice Rhenquist, when the Court held that the rule in Wickard did not apply to purely social or anti-social activities but required at least a true economic nexus. (Printz v. United States, (1997) 521 U. S. 898, 933-935.) 

In the present case, both the majority and the dissenting conservatives sought a further limitation on Wickard’s reach. They agreed that the Commerce Clause authorized regulation over existing economic activity but could not be used to compel an activity.

 “Our precedents recognize Congress’s power to regulate “class[es] of activities,” .... [W]e have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce. Each one of our cases,....involved pre-existing economic activity.” (Opn. pp. 25-26.)

Given this part of the majority opinion, most of Scalia’s opinion could be described as “dissenting to the choir.”    The true dissent came from Ginzburg’s concurring opinion scolding the choir. 

Justice Ginzburg argued that Congressional power under the Commerce Clause was “plenary” and “practical” (Conc. p. 14). Even before Wickard its “capacious power extend[ed] even to local activities” (p. 15) and certainly since Wickard cultivators had been ordered to curtail or cease production (p. 22).  As to how “ceasing” included “starting” -- and to Roberts'  incredulous impatience -- Ginzburg cited an antiquated, albeit possible, 18th century definition that “to ‘regulate’ meant,” among other things, “to require action.” (Conc. p. 23.)

Her opinion included a lengthy recapitulation of all the medical and economic needs and defects involved in the U.S. health care system, at the end of which she concluded that Congress had “acted reasonably in requiring uninsured individuals to purchase insurance” and that the Court could not gainsay a “regulatory scheme” that had a “rational basis.” (Conc. pp. 17-18.)

In so arguing, Ginzburg incorporated equal protection concepts into the Commerce Clause.  Under the Equal Protection Clause, when a law treats similarly situated persons in unequal ways, the court asks whether there is a “rational basis” for the discrimination; for example, is it reasonable to exclude old people from military service. 

The defect in Ginzburg’s argument was that the rational basis “test” looks to see if the law has unconsitutional effect but it presupposes that the law flows from a constitutionally authorized source.  The Constitution itself is a subset of all reasonable alternatives.   Something may be reasonable and still not constitutional which is why justices of yore spoke of “constitutional reasonableness” -- that is, logic and common sense within the parameters of the Constitution.   Rational Basis as a test of constitutional authority is a simply a maleable device which adds another Joker to the deck.

The same might be said of the Necessary & Proper Clause.   Needless to say, Justice Ginzburg was of the view that, in addition to doing anything “reasonable” Congress also had the power to do anything it might deem “necessary.”   Certainly, if Congress has jurisdiction over an enumerated subject matter (e.g., “commerce,” “taxes” or “defense”) its jurisdiction includes a subsidiary power to use any necessary and proper means to implement the authority given. But, as Roberts reaffirmed, the clause does not allow Congress to do anything it thinks is necessary and proper for the general welfare.  If it did, there would have been no point in enumerating the specific powers granted to Congress. 

Thus far, the battle lines were rather clearly drawn. The Ginzburg faction was of the view that the Commerce Clause (as interpreted in Wickard) granted Congress a plenary power “to bind and to loosen” on Earth if not in Heaven. The only limitation was a measure of reasonable expediency in choice of legistated policy. In contrast, the Roberts Scalia faction was determined either to limit or at least not to extend Wickard so as to include a mandate to engage in commerce. 

But between the two lines, lay a field of question marks.  As Ginzburg put it: Why should Roberts “strive so  mightily” to limit congressional power under the Commerce Clause only to uphold the law as a non-tax tax under the Tax & Spend Clause?  She found this “puzzling” and confessed, “I find no satisfying response to that question in his opinion.” (Conc. p. 37.)  

An answer may be perhaps be puzzled out by focusing on what Roberts and Scalia actually did, which was to make explicit a limitation on Wickard which had hitherto never been expressly articulated.

In reaching its conclusion that Obamacare could not be justified under the Commerce Clause, both the majority and the dissents stepped lightly over some singular precedents. Asserting that commerce clause regulation only applied to a pre-existing activity,  Chief Justice Roberts cited Heart of Atlanta Motel, Inc. v. United States (1964)  379 U. S. 241 (prohibiting discrimination by hotel operators) and Katzenbach v. McClung (1964) 379 U. S. 294 (prohibiting discrimination by restaurant owners).

In point of law, both the Roberts majority and the Scalia dissenters were wrong.  What Roberts omitted to note was that both those landmark civil rights cases required hotel and restaurant owners to enter into contracts with persons they preferred not to have economic activity with.  The whole and sole basis of both decisions was that not serving African-Americans diminished the overall level interstate commerce.  In  Ollie’s Barbecue Case (Katzenbach) the court went so far as to detail the number of pounds of interstate hamburger meat at stake. It was a pure Wickard “analysis” applied to engineer a result.

It did not hold water to distinguish Katzenbach and Heart of Atlanta on the grounds that they only regulated “pre-existing” economic activity.  Indeed both the frying of burgers and the providing of beds pre-existed as much as the “selling of medical insurance” pre-exists.  What does not pre-exist in all three instances is a particular contract between two parties. Of course, by virtue of traveling, African-American customers were not themselves engaged in a "pre-existing business activity" but neither was farmer Filburne.  The whole point of his case was that he was not engaged in commercial activity pre-existing or otherwise; and the whole point of Wickard was that it did not matter.   Had the majority wanted to uphold the ACA under the Commerce Clause it could have.

Although Ginzburg refrained from pointing out these non-distinctions, she was correct to note that Katzenbach had already imported the rational basis test into Commerce Clause law.  Ginzburg’s opinion was far too overly larded with practical, legislative considerations but her reading of precedents was correct and it would have sufficed to argue for the mandate under them.

On the other hand, what Roberts managed was to uphold the mandate while imposing an explicit limitation on the Commerce Clause without calling into question two of the most important civil rights cases of the last century.

Whether or not one agrees with the outcome, the jurisprudential result is that we now have a ne plus ultra plus one.  In addition to Wickard’s Joker of outs which are in, we now have the Cheshire Cat of non-tax taxes which may be enforced by the Internal Revenue Service turned into policing agency. 

Like Wickard before it, National v. Sebelius is a brutal example of what is known in legal parlance as “outcome determination” -- the sum and substance of which is the view that jurisprudence consists in rustling up whatever congeries of words provides a “rationale” for the result. 

For most of the 20th century, outcome determination was the standard official doctrine of American jurisprudence. It derived from dean Roscoe Pound’s theory of “sociological jurisprudence” which redefined law as a “tool of social engineering.”  In his view, the law itself did not inherently lead to any result but was rather an array of so-called functions, rationales and tests aimed at achieving any desired purpose. 
 
In Germany, outcome determination was known as “teleological jurisprudence.”  Although the “method” was not developed by the Nazis, it was enthusiastically embraced by them.  In the Third Reich, the function of law was to “legalize” the chosen policies of the state. Law would mean what it needed to mean in order to promote the health and safety of Volk Gemeinschaft or Folk Community, as determined by the Fuhrer and the Party. 

Result-oriented jurisprudence is the dirty little secret of American caselaw.  Justice Ginzburg let it slip when she criticized Justice Roberts’ mighty labors stating that she saw “no reason to undertake a Commerce Clause analysis that is not [sic] outcome determinative.”  (Conc. p. 37, fn. 14.)  Roberts’ decision was outcome-determinative, it just wasn’t outcome-determinative in the way Ginzburg wanted. 

Ginzburg’s Footnote provides a glimpse into the methodological habits of the Court. As we have shown, Ginzburg had precedent on her side.  Put another way, Katzenbach and Heart of Atlanta had already done the outcome-determinative dirty work.  All Ginzburg had to do was invoke stare decisis -- the rule that, whatever disputes preceded it, a precedent, once decided, stands. Instead, rather than conforming themselves to precedent, both sides engaged in choosing their desired result and arguing over  how to rustle up the words to “legalize” it.

There are those, both in academe and the press, who are fond of sagely and cynically intoning that Supreme Court decisions are “just politics.”   Of course they are politics; the Court has no jurisdiction in Heaven.  The more salient question is: what kind of politics? The traditional answer has been: that kind of political decision which is guided by the sound and sense of words.

“Law” has no physical reality apart from the shape of words. In the tradition of the Common Law, rule of law or due process de loi  referred to “custom and usage” in the way we talk about things. In England, law students “read law” in order to familiarize themselves with the conversation that has taken place over two thousand years. In this light, jurisprudence becomes a qualitative politics which achieves consistency by adhering to the plain meaning of words while accommodating change through adaptive analogy and nuance. 

Of course, there is no one way to read words which, after all, are not numbers.  Words have a range of “values” depending on context and interpretation, which is why the Supreme Court has nine judges instead of just one. The idea was that a filtration of words which was agreed upon by all was apt to be the better reading of our custom and usage.  The better reading depends on conforming one's self to the gentle constraints of language.  The near permanent division of the Court into 5-4 splits is simply an reflection of the bankruptcy of sociological jurisprudence which has, indeed, reduced the court to the most vulgar sort of politics... the kind which is guided solely by expedience.

None of this matters to those who simply want to achieve a result.  But the reason the court upheld Obamacare had almost nothing to do with anything it said and this, in itself, has serious political consequences. 

A rule of law based on objects of desire is no law at all but simply heteronomy of will. Instead of an unfolding from a consistency of speech, we are left with Jokers and Cheshire Cats. Instead of an instructive discourse between the Court and the public, people are left to speculate as to the private motivations justices might have had for choosing a result which they propped up with a heap of meaningless “rationales.”  [FN 1]

It is true that the genius of the American system is that  it prefers to chop logic instead of heads.  That is nothing to sniff at and the Roosevelt Court’s “switch in time” saved more than just nine.   The rhetorical devices of analogy, metaphor and equivocation are the means by which the law adapts and innovates.   But to say that judges live on the slippery slope of analogy doesn’t mean they have to ski to the bottom.  Too much slipping and chopping confuses thought and reduces discourse to nothing more than articulated howls -- words which mean nothing except for their emotive content. At that point uniquely human society ceases to exist. (Aristotle,  Politics, Bk. II.)  In my opinion, the Court’s decision dis-served the rule of law which first and last  presupposes a spirit of candor and simplicity in the use of speech.

©Woodchip Gazette, 2012.

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