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Friday, March 30, 2012

Healthcare and Kubler-Ross

I enjoyed Rick's post below, and Ian Bartrum's comment. Allow me to add a thought or two on what this week has felt like from the perspective of one listening to both the oral arguments and the commentary on them, especially of the Facebook variety.

I mentioned in a post yesterday the way that yesterday's crises tend to fade, if not utterly from memory, then in the urgency we attach to them. I taught Bowsher v. Synar this week, and was struck by this line in Justice White's dissent: "The Court, acting in the name of separation of powers, takes upon itself to strike down the Gramm-Rudman-Hollings Act, one of the most novel and far-reaching legislative responses to a national crisis since the New Deal." One could imagine a similar line appearing in a dissent a few months from now in the healthcare case. A line like that, and the way that it is now rendered relatively lifeless in the pages of a casebook after having once commanded headlines and similar talk about crises and disasters, seems to me to have a number of lessons to offer us.

It seems to me in reading this week's coverage that there is a kind of pseudo-Kubler-Rossian pattern that always follows arguments in the Supreme Court on hot-button structural issues. Take the pro-constitutionality side. Things begin with disbelief and dismissal: of course this law is constitutional and the arguments against it are frivolous. When those seemingly frivolous arguments become "on the wall" and gain traction, then the mood shifts to roughly what we had this week on the part of numerous commentators: If the Court strikes down the law, it is the End of the World. Government will cease to function, the Court will have shed all traces of judicial impartiality, cats and dogs will lie down together, this will be "Lochner II," and so on. If the Court does strike down the mandate, then we will, after another period of grief, shift quite quickly to a third stage: the Not a Big Deal stage. After the first wave of apocalyptic commentary, seemingly counter-intuitive articles will arrive right on time and as expected, arguing that whatever rules or limits the Court imposes won't generally apply, won't seriously threaten a host of established laws and social programs, can be gotten around through a variety of means, and so on. They will be helped in this analysis by the Court itself, which will subsequently blink when faced with other similar challenges.

Rick captured most of this, more or less, in his post, but there is a flip-side too. Consider the pro-unconstitutionality side. It follows a parallel pattern. Its first stage is the constituency-building stage. The mandate is (in the popular dialogue) incipient tyranny, the last stage of congressional arrogance, the fondest wish of Saul Alinksy, and so on, and (in the legal dialogue) clearly unconstitutional as a matter of current law and/or common sense. The second stage, which is more for elite and lawyerly consumption than public consumption, is the minimization stage. A ruling striking down the mandate is not that big a deal. This was an extraordinary law, and those who oppose it are hardly seeking to cast down the entire post-New Deal state. Modesty and restraint will be the order of the day (indeed, some of the law's most prominent opponents have been quite silent this week) for a reasonable period of time. And then stage three will begin, in which the ruling will, in fact, be employed by many of the people involved in this week's litigation to argue that much of the post-New Deal state should be dismantled as a matter of constitutional law, and anything they said in stage two will be quickly distinguished or forgotten.

This is a caricature, of course, but I have seen plenty of these stages in evidence so far, and expect to see the rest of them in due time. It leads me to a couple of conclusions. First, the week of oral argument in a controversial case is a good week to -- well, to discuss the oral argument. But it's a lousy time to discuss, or take seriously the discussions of, the potential consequences of a ruling. It will be hard to say how much of a disaster or triumph (depending on your point of view) the ultimate opinion is until we see what limiting principles the Court offers. It's way too early to talk about how disastrous a ruling in this case will be -- and not just because the pro-ACA commentators are overheated this week, but also because the anti-ACA commentators are not inclined at present to talk about just how far they will try to press any eventual ruling.

The other conclusion is that the problem with the end-of-the-world talk this week is that it tends to assume the world will end with a bang, not a whimper. If the Court strikes down the ACA root and branch, of course the Republic will still stand, just as it did after Bowsher v. Synar, Bush v. Gore, the Pentagon Papers case, Heller, Boumedienne, and any number of other cases that were accompanied by apocalyptic rhetoric about what they would mean for the country. Within a decade of Bowsher, we had (briefly) dealt with the deficit. Neither Boumedienne nor Heller have led to an unusual number, for this country, of corpses piled up in the streets. Within a mere 20 or 30 years, an entirely different national consensus on health care might emerge. And I might add that the stronger and longer that consensus, the less likelihood that anything the Court says in the next few months will do anything to prevent some law from emerging and being upheld.

So the real question is not how disastrous or wonderful a ruling striking down the mandate will be. Hell, even the Lochner era did not result in the mass invalidation of laws relative to the overall volume of progressive legislation. The real question is one of governance, not survival. Just how well or poorly will the country be governed? How much room will be left for legislative experimentation to deal with various problems that are arguably national in scope? How adaptive and responsive will the American system of government be compared to other governance models? How much longer will it take to come up with sensible governance approaches than it otherwise might -- months, years, decades?

I don't mean this too harshly. In the Constitution's barriers to lawmaking and diffusion of power, I see a long-term wisdom. At any given short-term moment, however, the United States often seems to me--a simple country boy from Canada--a remarkably badly run country with a horribly outdated governance model. I don't see a ruling in this case changing that much one way or the other, all the "judicial activism" and "Lochner II" talk notwithstanding. Conversely, whatever the fondest hopes of a few opponents of the ACA may be, the chances of this country being run on "classical liberal" or libertarian principles are nil. Passionate believers in classical principles of individual liberty are, as Us Weekly likes to say, "just like us": they really enjoy receiving federal welfare benefits. The question is not how much a ruling in this case will hobble American government; it's how much more a ruling in this case will hobble an already fairly hobbled American government.

Posted by Paul Horwitz on March 30, 2012 at 10:21 AM in Paul Horwitz | Permalink


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Matt: Great minds and so on.


Posted by: Paul Horwitz | Jun 27, 2012 4:52:56 PM

TJ, I appreciate your comment, and based on a couple other comments I received privately, I can confirm what I could tell when hastily writing this post: that part of my message was unclear. I may be wrong about the second point you make, although time will tell on that one. But on the first point, I agree that both the deficit and healthcare are big deals in terms of policy. My point was that: 1) this decision won't be constitutionally *disastrous,* in that, as with the deficit, it will certainly be possible to legislate in the healthcare arena despite any ruling this spring, depending on the precise nature of the limiting principle; and 2) it will certainly make governing more difficult, and in that sense this case is better viewed not as a constitutional disaster in and of itself but as a further complement to Sandy Levinson's complaints about the ways in which our form of governance is not all it could or should be.

Posted by: Paul Horwitz | Mar 31, 2012 8:03:07 AM

The debate is hot! for those who aren’t quite following, here’s a fairly good overview (http://www.pressdisplay.com/pressdisplay/showlink.aspx?bookmarkid=4DRVLAYF4ZE1&preview=article&linkid=78be1f15-de2d-4d08-80ea-037760782518&pdaffid=ZVFwBG5jk4Kvl9OaBJc5%2bg%3d%3d) but I’d suggest twitter/streams as an ideal source for this one. Cheers!

Posted by: Adèle Fier | Mar 30, 2012 3:01:34 PM

Paul, it strikes me that you are wrong in your initial premise. True, today most of us have no idea what the Gramm-Rudman-Hollings Act was. But the deficit is actually a big and salient issue--remember the debt ceiling last summer? I can surely imagine a liberal justice writing such a line in a dissent this summer. But to say that in 20 years or so the issue of the provision of health care would become lifeless on a casebook page seems to me absurd.

Posted by: TJ | Mar 30, 2012 12:41:10 PM

"a remarkably badly run country with a horribly outdated governance model."

You make an exception, of course, for your local school board, right?

Posted by: Kelly Horwitz | Mar 30, 2012 12:37:55 PM

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