If (as looks likely) a significant number of states decline to participate in Obamacare’s “exchanges” or in its Medicaid expansion (or both), I wrote last week, the Affordable Care Act may well crumble and collapse within the President’s term in office. Herewith a few additional thoughts, occasioned by news from the Beltway swamp.
The Pesofication of America
Now available in print: Michael S. Greve, “Our Federalism Is Not Europe’s. It’s Becoming Argentina’s,” 7 Duke Journal of Constitutional Law & Public Policy 17 (2012). Alternative title: “We will pay our debts—in pesos.” Among the more salient points and predictions: bailouts of lower-level governments in the U.S. won’t take the form of rescues of individual states (this isn’t Europe). Rather, they will take the form of across-the-board—and in that minimalist sense programmatic and rule-like—financial assistance, probably under some already existing statutory framework. A bailout of teacher pension funds under No Child Left Behind is an option, as is the federal…
Yesterday
The decision and opinions in the health care cases were bound to be shaped by considerations outside “pure” legal principle—by politics or statesmanship, call it what you will. As it happens, I have a relatively high tolerance for that sort of thing. What strikes me as disappointing about NFIB v. Sebelius is that the statesmanship and politics are so bad.
Severance & Severability, Part III
In Part I of this series, I wrote that “while the left’s handwringing over the future of Wickard v. Filburn could be dismissed as hysteria or histrionics, its concern about the outcome of the severability issue [in Florida v. HHS] is firmly grounded in reality.” I owe readers a few words supporting that conclusion. * * * In Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U.S. 210 (1932), the Court said, Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may…
Widows, Orphans, and Severability
At balkinization, Gerard N. Magliocca poses an intriguing question: Suppose Congress knows that a certain provision (say about campaign finance) will be constitutionally suspect. They could bundle it with lots of unrelated matters and insert a non-severability clause providing that: "If any portion of this legislation is found unconstitutional by the Supreme Court, then every other portion becomes inoperative." In that case, the SG would solemnly tell the Justices that striking down the contested provision would deprive orphans of milk, stop the construction of a dam in Utah, and so on. This doesn't preclude the Court from acting. It just makes…
Federalism’s Hope: Analysis and Speculation
Yesterday’s post described a sharp sectional divide in contemporary American federalism: pro-competitive states versus pro-cartel states. The divide holds across Obamacare/Medicaid, labor, environmental, tax, and cultural issues. Here is the basic map again (the competitive coalition appears in red, the cartel cabal in blue):
Today, as promised, some thoughts on what the sectional divide might mean for American politics and federalism.
Federalism’s Hope
This post (lengthy, but with lots of pictures) strikes an uncharacteristically cheerful note: there is a chance to revive a sensible, efficient, competitive federalism. That hope does not rest on the libertarian pipedream of a Supreme Court that at long last restores our “lost Constitution” and overrules the New Deal. Nor does it rest on a hankering for a November victory for a GOP that promises to “devolve” power to the states. (The stupid party has no coherent federalism program; and in any event, for federalism purposes, federal election outcomes are epiphenomenal.) Rather, competitive federalism’s hope rests on one of the most resilient forces in American politics: sectionalism.
By “sectionalism,” I mean a division among states that is too deep and profound to be overcome by congressional compromise and techniques to produce state consensus at an administrative level (such as fiscal transfers, bureaucratic discretion, and intergovernmental networks). Sectionalism is essential: it is only if and when the central government cannot generate a consensus or compromise among the states that the federal system adheres or reverts to the constitutional baseline: competition among the states.
“Hope” does not mean “certainty.” Sectionalism, to be effective, must be organized and translated into a viable political strategy and program. It is far too soon to tell when or even whether such a strategy and program will materialize. It’s not too soon, however, to think about the possibility. The potential rewards are too great to be left on the table. Today’s post covers the empirics; tomorrow’s, some casual analytics.
The Triumph of Constitutional Argument
The legal professoriate and commentariat are completely unhinged over the impending demise of the individual mandate, the conservative justices supposed infatuation with Tea Party nostrums (see, e.g., Charles Fried’s pathetic tut-tut), and General Verrilli’s supposedly incompetent defense. So let’s go to the transcript and try to explain this one more time, in terms that even the Harvard crowd may be able to comprehend.
The Bounds of Swinishness, At Last
The brawl over HHS’s rule requiring religious employers to cover contraception has yet to be resolved, and the fate of ObamaCare’s “individual mandate” is awaiting the Supreme Court’s verdict in June. Here is another thing those two abominations have in common: they have run into trouble because the country, and hopefully the Court, is waking up to the realization that the difference between government benefits and gutter politics has become dangerously elusive. Contraception: Putting aside the sheer absurdity of contraception as “preventive health care,” a requirement to cover a minor, routine, predictable expense isn’t “insurance” at all; it’s a simple wealth…
ObamaCare Update
Prediction: after today’s oral arguments over the Patient Protection Act, the individual mandate is in very deep trouble and quite probably as good as gone. While Paul Clement’s argument probably did not swing any wavering justices, it likely settled whatever doubts they may have entertained. In any event, it was absolutely brilliant. Personal favorite: a polite but firm dressing-down of Justice Breyer, in one of his increasingly frequent demagogic moments (pages 60-64 of the transcript). The mandate’s impending demise lends additional interest to tomorrow’s argument over (1) the mandate’s “severability” from the remainder of the statute and (2) the question of…
