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News & ArtsThursday, June 28, 2012
News McKenna Declares Victory: "We Achieved Our Goal of Defeating the Mandate on Commerce Clause Grounds"
Posted by Goldy on Thu, Jun 28, 2012 at 9:02 PM
- Goldy | The Stranger
- Attorney General Rob McKenna at a press conference earlier today, just before I tore off all my clothes and made a scene.
Well wasn't that anti-climactic. Shortly after the US Supreme Court released its historic 5-4 decision upholding the Affordable Care Act, mandate and all, I headed down to his Seattle offices to watch Attorney General Rob McKenna eat crow. But after they finally let me into the press conference (more on that tomorrow) I was in for a disappointment. McKenna declared victory. Or so it seems.
"We achieved our goal of defeating the mandate on commerce clause grounds," our state's top lawyer told a confused press corps. "It was a clear victory for federalism."
Really.
Huh. And all this time I thought the lawsuit was about health care reform or something, when McKenna's real goal was just a principled defense of a technical interpretation of the commerce clause. Who knew? (Talk about making lemonade out of a shit sandwich.)
Taken out of context, you might have had a hard time telling which side of the health care lawsuit McKenna was on. If elected governor he said he would move forward with expanding Medicaid and implementing Washington's health insurance exchange. "This is a good model," insisted McKenna. And no, contrary to his party's rallying cry, McKenna said he does not support efforts to repeal the ACA. "The mandate will have to be maintained," said McKenna, calling repeal "completely politically unrealistic."
It was the most miraculous conversion since Emperor Constantine embraced Christianity.
So there you have it. A Republican attorney general who led the charge to overturn "Obamacare" claims victory on the heels of his ill-conceived lawsuit's defeat. If nothing else you gotta admire his chutzpah.
1
Let's play his game. Is this how it works?
"Japan circa 1950: by attacking Pearl Harbor we won World War 2."
"Japan circa 1950: by attacking Pearl Harbor we won World War 2."
3
McKenna and Romney are totally cut from the same cloth: "Hey, 30 years ago, everyone trusted moderate Republicans to run everything. What the hell? I mean, just because we're now aligned with a bunch of radical crazy jillionaires who have no concept of the peoples' interests, we played the game, so we deserve to govern! Right? Right? I mean, you're not gonna let a n***** run the country, right?"
5
"It was the most miraculous conversion since Emperor Constantine embraced Christianity."
He gazed into the heavens and beheld a vision of the Affordable Care Act as re-interpreted by Chief Justice Roberts and heard the words "In this sign, conquer!"
He gazed into the heavens and beheld a vision of the Affordable Care Act as re-interpreted by Chief Justice Roberts and heard the words "In this sign, conquer!"
6
It was the most miraculous conversion since Emperor Constantine embraced Christianity.
Insert Kim Fuqua joke here.
Insert Kim Fuqua joke here.
7
Is Justice Roberts commerce clause argument law or dicta? He had his own opinion. Four justices concurred with it EXCEPT for the commerce clause argument.
Scalia, Kennedy, Anito and Thomas dissented. In their dissent they agreed with the commerce clause argument, but they did not concur with J. Roberts. So, does the dissent have any force of law?
If these dissents have no force of law, then I'd argue that J. Robert's Commerce Clause argument is merely dicta. Any constitutional professors out there who can help me out?
Scalia, Kennedy, Anito and Thomas dissented. In their dissent they agreed with the commerce clause argument, but they did not concur with J. Roberts. So, does the dissent have any force of law?
If these dissents have no force of law, then I'd argue that J. Robert's Commerce Clause argument is merely dicta. Any constitutional professors out there who can help me out?
9
So, did you reporters not ask any questions? Such as "oh, didn't you hear, the 5-4 decision actually supported, not defeated, the mandate on commerce clause grounds?"
10
All this spinning is making my head hurt.
Why doesn't Comrade McKenna refund us his fee for wasting our tax dollars on an unconstitutional appeal?
I'd like it in two dollar bills.
Why doesn't Comrade McKenna refund us his fee for wasting our tax dollars on an unconstitutional appeal?
I'd like it in two dollar bills.
11
The Commerce Clause distinction is hardly a technical one. It's actually a Big Deal and will have consequences for a lot of cases down the road
12
Still not as bad as the Republican candidate for Governor of Indiana, Representative Mike Pence, saying that the decision was as bad as the 9/11 attacks.
Or former Michigan Republican Party spokesmodel Matt Davis calling for an armed rebellion.
Or former Michigan Republican Party spokesmodel Matt Davis calling for an armed rebellion.
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not so much embraced it, as stopped the persecutions. he finally gave it a great big hug on his deathbed, after he'd killed various family members. look it up.
16
Wow. You knew, of course, he'd try to spin it in the best way possible, no matter the outcome. But this is quite, um... imaginative.
18
Constantine (not Dow, the Roman) wasn't converted; he declared Christianity as the state religion for strategic reasons: to bind the empire together.
McKenna wasn't converted; he declared this was what he wanted all along so it wouldn't seem as though he lost.
Roberts didn't support the mandate in the sense that he agreed that people could be forced to buy insurance; he supported the commerce clause's ability to make people pay a "tax" if they didn't.
McKenna wasn't converted; he declared this was what he wanted all along so it wouldn't seem as though he lost.
Roberts didn't support the mandate in the sense that he agreed that people could be forced to buy insurance; he supported the commerce clause's ability to make people pay a "tax" if they didn't.
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The ACA 'debate' was grand political theater. The teabaggers' bloviating against it was red meat for the rubes. So is liberal crowing about 'victory.'
As a corporate-approved effort, there was no way ACA would be overturned, and the faux drama surrounding John Roberts' alleged change of heart is a joke. Nevermind his choirboy looks; he's always been a Chamber of Commerce soldier. The reason he's on the Court is to vote for the money. (Check out the New Yorker's expose on him from a few years back.)
This bill always was shyte. There is no substitute for single payer, and spare me the "we're on the way there" nonsense. Now the insurance industry will start playing defense. Bend over, America, and get out your checkbooks. Insurance corporations are counting on you.
As a corporate-approved effort, there was no way ACA would be overturned, and the faux drama surrounding John Roberts' alleged change of heart is a joke. Nevermind his choirboy looks; he's always been a Chamber of Commerce soldier. The reason he's on the Court is to vote for the money. (Check out the New Yorker's expose on him from a few years back.)
This bill always was shyte. There is no substitute for single payer, and spare me the "we're on the way there" nonsense. Now the insurance industry will start playing defense. Bend over, America, and get out your checkbooks. Insurance corporations are counting on you.
21
"Insurance companies are counting on you?" - you sound like someone entirely unfamiliar with how the health industry works and solely intent on not giving Obama any credit. Getting rid of pre-existing conditions alone is a big fucking deal. Well done Obama! Well done Roberts!
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And now we are gloriously free from hypothetical and nonsensical things like mandates to buy broccoli or guns.
And fuck commerce or taxing, this is nothing more than the fact that a mandate to buy something like health insurance makes sense, where as one to buy broccoli does not. Simple as that.
We learned what we already know, that the government cannot micromanage our lives, but at the same time sometimes it just makes fucking sense for them to be involved so we create some exception and our lives all get better to the point that we treat the once exception as though it is a self evident truth.
Then things happen like the Republican nominee claiming that cutting socialized health insurance for the elderly to help people buy private insurance(aka the Ryan Plan) is an expansion of government.
And fuck commerce or taxing, this is nothing more than the fact that a mandate to buy something like health insurance makes sense, where as one to buy broccoli does not. Simple as that.
We learned what we already know, that the government cannot micromanage our lives, but at the same time sometimes it just makes fucking sense for them to be involved so we create some exception and our lives all get better to the point that we treat the once exception as though it is a self evident truth.
Then things happen like the Republican nominee claiming that cutting socialized health insurance for the elderly to help people buy private insurance(aka the Ryan Plan) is an expansion of government.
28
Well one thing we know for sure. Many uninsured hipster Stranger readers will be buying insurance or the IRS will be on their ass.
Get your check books out.
Get your check books out.
29
I don't know much about this guy except what I read in the Stranger, but he sounds like an incredible loser. So for that reason, comparing him to Constantine the Great is considerably kinder than he deserves. I think the better comparison would have been Saul on the road to Damascus. Saul also went on to achieve great things, undeniably, but if you read his letters, you'll see that through it all, he remained the hateful prick he had always been. So, a closer match to this guy.
31
Are there really people in this state who think this is the kind of stupidity we need running the government? I mean, what a freaking fool!
32
I want a governor who's going to fight for a progressive state income tax and single-payer health care. Most of the state's billionaires and multimillionaires apparently don't -- if they did, we'd already have them -- so I guess that's off the table.
It's nice that Inslee supports marriage equality, although he's unlikely to have much of a say in whether we retain it or not. I suppose he could veto an eventual legislative repeal. It's nice that McKenna says he supports increased funding for education, although without adequate state revenues it's probably just lip service. I guess for the rest I will have to wade through their campaign contribution reports, and try to figure out who is funding their "independent, uncoordinated" PACs, to get a better sense of who owns them. Or I could just do a Bill Douglas*, wait to see who the Seattle Times endorses, and then vote the other way.
But seriously, although I'm one of those single-payer advocates who thinks that Obamacare is not so much an intermediate step to single-payer as it is an extremely costly delay on the way to single-payer, I can't see myself voting for McKenna. People who oppose marriage equality are dicks.
It's nice that Inslee supports marriage equality, although he's unlikely to have much of a say in whether we retain it or not. I suppose he could veto an eventual legislative repeal. It's nice that McKenna says he supports increased funding for education, although without adequate state revenues it's probably just lip service. I guess for the rest I will have to wade through their campaign contribution reports, and try to figure out who is funding their "independent, uncoordinated" PACs, to get a better sense of who owns them. Or I could just do a Bill Douglas*, wait to see who the Seattle Times endorses, and then vote the other way.
But seriously, although I'm one of those single-payer advocates who thinks that Obamacare is not so much an intermediate step to single-payer as it is an extremely costly delay on the way to single-payer, I can't see myself voting for McKenna. People who oppose marriage equality are dicks.
* After a stroke that left him both physically and mentally disabled, Justice Douglas initially resisted exhortations to resign, saying "I'll just see how [Chief Justice Burger] votes and vote the other way."
33
@7, it was dicta, but it also shows that there are five votes on the court to strike down a law that "regulates economic inactivity." It was dicta for two reasons. First, it wasn't necessary to the decision, so regardless of how many justices did or did not sign on to that portion of Roberts opinion, it doesn't control. This is true despite the crafty wording used by Roberts, which said something to the effect of, "since the law cannot be upheld on Commerce Clause grounds, it is necessary to determine if it is a constitutional exercise of Congress's taxing power." Roberts didn't need to address the CC issue once he found a valid means of upholding the law. But the CC portions of his opinion give some red meat to the Federalist/Libertarian crowd (see McKenna's "We Won!" which is being echoed by many others).
Secondly, the CC interpretation is dicta because Roberts was writing for himself and only himself in that portion of his opinion. The liberal justices didn't sign on to that portion (section III-C) nor did the dissenters. One justice does not a majority make, therefore there is nothing binding about this interpretation of the CC. If the CC issue were an independently necessary part of the opinion, the dissenters could have signed on to that portion of the opinion and been concurring in part, dissenting in part. But it wasn't necessary, so they were left with no ability to concur with an opinion which reached a different judgment than their own.
But (and there is always a but), there are clearly five votes on the court, as presently comprised, to say that the CC cannot be used to "compel economic activity." Some academics and constitutional scholars use what they call a realist, or predictive, theory of precedent. And in that sense, this is precedential because the votes are there to rule against Congress's power on this narrow set of facts.
The important takeaway is that, more than any specific precedential force of the CC portion of the opinion, this is another data point. CC jurisprudence was dormant for fifty years until the Rehnquist court stirred things up a bit in Lopez and Morrison. Then, a decade ago, Gonzalez v. Raich seemed to indicate that the Court was still comfortable with the existing contours of its CC jurisprudence. The fact that five justices were willing to go against the conventional academic wisdom of the CC (see the NYT survey of top Con law professors) indicates that there may be traction for future CC challenges along the lines of Lopez, Morrison, and Raich. This is reinforced by Scalia's new book which, from the reviews I have seen, somewhat recants his Raich decision and calls into question Wickard, which Con law scholars would find to be a pretty radical view.
One final thought (if there is anyone still reading at this point), the argument pursued by the challengers of the ACA may ultimately work against their goal of limiting the CC. They took pains to frame the ACA as an unprecedented move by Congress. The goal of that strategy was to give the Justices cover to rule against the law without having to overturn existing precedent. This was a calculated decision since there are not five votes on this court to overturn Wickard. But in order to frame the argument this way they relied almost exclusively on the "regulation of inactivity"/ broccoli aspect of the ACA. And that simply will not be an issue in future CC cases.
More...
Secondly, the CC interpretation is dicta because Roberts was writing for himself and only himself in that portion of his opinion. The liberal justices didn't sign on to that portion (section III-C) nor did the dissenters. One justice does not a majority make, therefore there is nothing binding about this interpretation of the CC. If the CC issue were an independently necessary part of the opinion, the dissenters could have signed on to that portion of the opinion and been concurring in part, dissenting in part. But it wasn't necessary, so they were left with no ability to concur with an opinion which reached a different judgment than their own.
But (and there is always a but), there are clearly five votes on the court, as presently comprised, to say that the CC cannot be used to "compel economic activity." Some academics and constitutional scholars use what they call a realist, or predictive, theory of precedent. And in that sense, this is precedential because the votes are there to rule against Congress's power on this narrow set of facts.
The important takeaway is that, more than any specific precedential force of the CC portion of the opinion, this is another data point. CC jurisprudence was dormant for fifty years until the Rehnquist court stirred things up a bit in Lopez and Morrison. Then, a decade ago, Gonzalez v. Raich seemed to indicate that the Court was still comfortable with the existing contours of its CC jurisprudence. The fact that five justices were willing to go against the conventional academic wisdom of the CC (see the NYT survey of top Con law professors) indicates that there may be traction for future CC challenges along the lines of Lopez, Morrison, and Raich. This is reinforced by Scalia's new book which, from the reviews I have seen, somewhat recants his Raich decision and calls into question Wickard, which Con law scholars would find to be a pretty radical view.
One final thought (if there is anyone still reading at this point), the argument pursued by the challengers of the ACA may ultimately work against their goal of limiting the CC. They took pains to frame the ACA as an unprecedented move by Congress. The goal of that strategy was to give the Justices cover to rule against the law without having to overturn existing precedent. This was a calculated decision since there are not five votes on this court to overturn Wickard. But in order to frame the argument this way they relied almost exclusively on the "regulation of inactivity"/ broccoli aspect of the ACA. And that simply will not be an issue in future CC cases.
34
@ 33, I read your whole comment because it's a rare example of someone explaining a complicated topic in a way a lay person like myself could follow. Well done.
35
@33, Your point that regulation of inactivity is not likely to be a further issue is important, as it clearly undermines claims that this is some sort of strategic long-term victory for the right. There may or may not have been some narrowing of the CC, but it's not a use of the CC that has much been attempted, so such a narrowing has no practical impact. Further, by upholding the mandate on the taxing power, the court has pretty much given Congress a roadmap to how to regulate inactivity should it choose to do so in the future.
37
The next trick will be for the Republicans to continue to trash "Obamacare" while taking credit for each of the provisions of it individually.
You like the preexisting condition clause? Republicans.
You like being able to carry your kid until 26 (unless you're gay)? Republicans.
You like any and every other aspect of it? Republicans.
But of course, the whole thing? Socialist overreach.
You like the preexisting condition clause? Republicans.
You like being able to carry your kid until 26 (unless you're gay)? Republicans.
You like any and every other aspect of it? Republicans.
But of course, the whole thing? Socialist overreach.
38
two can play word games.
we could simply tie the individual mandate to "activity," defined as (a) working in any job affecting interstate commerce, (b) going to any hospital that ever got $1 of federal fundsor (c) ever stepping onto a bus that ever got $1 of federal subsidy to its agency running it.
the activity/inactivity distinction is rather semantic. btw don't state government require us to bury the dead, buy food for our kids, and wear clothes or hook up to a sewer system? gummint requires us to buy stuff alla time, it's no innovation. nothing in the commerce clause promised in writing that the feds couldn't regulate inactivity anyway.
we could simply tie the individual mandate to "activity," defined as (a) working in any job affecting interstate commerce, (b) going to any hospital that ever got $1 of federal fundsor (c) ever stepping onto a bus that ever got $1 of federal subsidy to its agency running it.
the activity/inactivity distinction is rather semantic. btw don't state government require us to bury the dead, buy food for our kids, and wear clothes or hook up to a sewer system? gummint requires us to buy stuff alla time, it's no innovation. nothing in the commerce clause promised in writing that the feds couldn't regulate inactivity anyway.
39
Didn't McKenna claim all along that he was fighting the mandate and only the mandate? Wasn't his argument always that Congress can't regulate economic inactivity? Don't get me wrong, I can't stand McKenna, but I'm not getting the outrage over him supposedly switching his stance since I think that was actually his stance all along. Am I wrong?
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