The New York Times editorial page featured a great piece today on the lawsuits filed last Tuesday to challenge the constitutionality of the recent health care reforms. I have never been one to cotton to the views espoused on this page. Simply put, the views of this page frequently conflict with mine. They are liberal; I am conservative. Yet I like to think that I disagree with them based on more than reaction (liberals' oft-applied label to conservative critiques of their policy; a lot of ink may be spilled on this subject, but that will be saved for a later post).
And my reaction, this time, to the editorial page is this: the New York Times is best at reporting news, and worse when commenting on that news, but worst when analyzing legal claims.
First, I wrote off the editorial page's jurisprudential views when it recently came close to endorsing an argument based on the privileges and immunities clause of the Fourteenth Amendment. That clause, famously (if tragically) gutted in 1873 by the Slaughterhouse Cases carried NO weight in the oral arguments in McDonald v. Chicago. Justice Scalia, perhaps the closest proponent on the Court of adherence to original meaning (his recent writings would characterize his position as adherence to "meaning," not "intent," as the Times would characterize it), might as well have laughed in advocate Alan Gura's face (on whose side may very well rule) when he observed, "Well, I mean, what you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence." The Times did not outright endorse such a view, but it did seem to import some enthusiasm to Gura's argument. Such hopefulness betrays, I think, a shallow understanding of constitutional law.
So, aside from my nigh diametrical opposition to the positions that the Times advocates, I take serious issue with their theories of advocacy. Thus, when I see them submit a constitutional argument to their own critique, I give very little deference to their conclusions. But I would seek to discuss the merits of their claims.
1) Virginia's claim to nullify will fail. A lengthy piece of a lengthy article I submitted to the N.C. Law Review detailed the thorough discreditation that the oudated, hoary doctrine of nullification has received. Despite the Virginia and Kentucky Resolutions, almost no Founders would endorse nullification, or "interposition," as John C. Calhoun termed it.
2) The challenge to the exchanges will fail. The bill is deftly drafted so as not to require the states to implement Federal law (a commandment firmly laid down by Printz v. United States). The federal government will step into to provide the framework for the exchanges if the state governments fail to do so (and thus forgo Federal dollars). Conceivably, the requirement that exchanges host all policies sold in the state may very well be a violation of the Commerce Clause, but it is not.
3) The Commerce Clause challenge will fail. First, the Supreme Court has declared the sale of insurance "commerce." Furthermore, the bill is drafted to ensure that no Federal regulations impinge on the states' ability to regulate insurance. The McCarran-Ferguson Act later provided that insurance regulation remains within the purview of the states, but that still does not repudiate the 1944 decision in Southeastern Underwriters, in which the Supreme Court declared insurance a form of interstate commerce.
4) The individual mandate claim may very well prevail. Now, as a second-year law student my knowledge of the constitution is hardly exhaustive, but I cannot think of any Supreme Court opinion, or any significant doctrine of the Court, that sanctions a mandate to buy something. Indeed, the prevailing view of the guarantees of the Bill of Rights would hold that the Constitution guarantees only "negative" rights. In other words -- you are not guaranteed a right to speak (i.e. -- you may not be physically, financially able to do so), but you are guaranteed that the government may not restrain that right (at least unreasonably; this is a gross oversimplification of constitutional rights across the board, but it is generally the theory). Thus, under current doctrine -- indeed under the very paradigm of American jurisprudence -- the mandate to buy something certainly looks anomalous.
And here, beyond any other paragraph, is where I take issue with the Times. They gloss that "penalties for not buying insurance have been structured as a tax." Oh -- game over, I guess. That's actually selling the Times short; it maintains that while that's not a perfect defense, it is pretty close. That is hogwash. Any meaningful analysis of constitutional jurisprudence would immediately see the problem that this legislation proposes. First, there is no way to avoid this "tax." I either pay or I do not. It is not as if I refrain from buying tobacco, and thus protest the tobacco tax. Certainly, we have income taxes. But those are levied against property. AND -- this is the real kicker -- they are payable to THE GOVERNMENT. Here, yes, there is a tax, but the alternative is paying a private company for health insurance. Thus the mandate is "pay the private individual, or pay us."
At the very least, this makes for an interesting, but completely open question in constitutional law. The Times would pass it off only as "arguable." I cannot tell you why, but I would suspect that they so support the legislation (as I do, in some parts) that they would rather not examine the constitutional arguments against the legislation too closely. I find such a position a travesty in the nation's greatest paper. Likewise, I would posit that the Times cannot honestly opine that the Attorneys General are doing their constituents a disservice by filing this lawsuit. They honestly believe that the state budgets will be so encumbered by Medicaid expansion that they have no choice but to enjoin its enactment. Likewise, why should they not be zealous guardians of the choices and individual liberty, in the context of a mandate, that the citizens of their states enjoy? I find it odd that the Times does not at least entertain that rationale.
I make no projections as to whether the claims (found here) will be dismissed, will prevail, or will be ridiculed. I do know that at least the mandate question presents a very lively, open, and undecided constitutional argument. And I also know that the Times should not dismiss the legal arguments out of hand simply because it so loves the legislation.
Why Colonel Sartoris?
Allow me to explain the puzzling title. Colonel Sartoris is William Faulkner's greatest character. He exemplifies those values that his society cherishes, namely tradition, patriarchy, courtliness, and courage. Though modernity's slow march tries to strip him of these things, Sartoris continues to live as he always has, knowing that "the past is never dead. It's not even past." He seeks order in the honorable folkways and mores of his forbears. Let us not forget his example.