I began my legal career working as a briefing attorney (called law clerk in some places) for a court of appeals. In that job one learns how appellate courts work and how the judges come to decide points of law and write opinions. For those non-lawyers in the audience, appellate courts, that is intermediate ones and courts of last resort (usually called supreme courts) do not determine facts. They only decide what the law is as applied to the facts in the appellate record. If it’s not in the record, it didn’t happen. Constitutional questions, federal or state, are rare. As is usually the case, if a controversy can be decided without having to decide the constitutionality of a statue, an appellate court will pass. Also, no matter how eloquent the advocate, the oral arguments before an appeals court do not usually determine the outcome. That is accomplished ahead of time by making the record in a trial court and good briefing of the argument. The purpose of an oral argument is ostensibly answer questions raised but not satisfactorily answered by the briefs, and test the arguments. Questions to advocates do not necessarily signal the way the particular judge is leaning, and quite often can be misleading.
The Supreme Court heard oral arguments on the controversial Patient Protection and Affordable Care Act, “Obamacare” for short, this past week. I can tell you what will happen, but I cannot tell you the outcome. On Friday, the justices conferred and probably voted a tentative decision; one was assigned to write an opinion. If the Chief Justice was in the majority, he assigned the writer, which may have been himself. If he was not, the senior justice in the majority assigns. A justice in the minority will likewise be assigned to write a dissenting opinion. Once drafts are completed, they will be circulated among the justices for review and comment. Ultimately a finished opinion or opinions and judgment will be released and published.
Is it possible that there will be a leak so special interests and speculators can get a head start in knowing what the Court is going to do? I’m sure traders in stocks like United Health Care and Aetna would pay a pretty penny to know. Not likely. The justices and their law clerks are the only ones who really know, and they have no incentive whatsoever to leak. The justices are there because they have a vested lifetime interest in the law and Constitution. The very fact one has been a Supreme Court law clerk opens numerous doors in a legal career, to say nothing of the salary one can command. Leaking a Court confidence would destroy such opportunities and ostracize the leaker for life.
Regardless of what the Court does, there will be world class wailing and gnashing of teeth, and choice profanity from the losing point of view.
Commentator Walter Russell Mead, writing in The American Interest, as well as many other observers, have opined that, whatever the outcome the, statute and its scheme are in serious trouble. I tend to agree, and believe Mead, who tends to lean slightly left of center, provides a rather enlightening analysis.
Mead says that what he calls the “blue social model” of American progressivism, which calls for a certain amount of centralized government intervention in socio-economic affairs, is broken:
“[T]he health care law’s troubles shed some further light on the crisis of American progressivism and the blue social model it has built. Those who believe in the blue model and want to extend it have lost their touch; the dream machines of the blue social engineers don’t sail serenely across the azure sky anymore. Think of the various carbon exchanges and environmental planetary schemes; think of high speed rail proposals like California’s $100 billion train to bankruptcy; think of Obamacare. These days the experts, “social entrepreneurs” and smart young blue twenty somethings fresh out of the Ivy League whomp up social programs with as much verve and dedication as their New Deal and Great Society predecessors, but the new Dreamliners don’t take off. At most they roll around the runway, emitting clouds of noxious smoke; wings fall off, windows pop out, turbines misfire and the tires go flat.”
He continues: “Obamacare was supposed to be the capstone in the arch of a new progressive era. The Dems were going to show us all that government really does work. Smart government by smart people, using modern methods and the latest up to the minute research from carefully peer reviewed articles in well regarded social science journals can solve big social problems. Obamacare was going to be such a big hit that even the bitter clingers would have to put down their guns and their Bibles long enough to thank the Democrats for this wonderful new benefaction.”
Mead goes on to say: “The public hates it, and the longer it’s on the books the less popular it gets. This isn’t like Social Security, a program the public fell in love with early on and still cherishes today. It isn’t like Head Start, which remains dearly beloved even though there doesn’t seem to be much evidence that it helps anybody other than the people it employs. Obamacare is only marginally more popular than the Afghan War; already its estimated cost has doubled and we all know these numbers are likely to continue to increase. Obamacare so far is a political flop and shows ominous early signs of being a policy misfire as well. The benefits don’t seem to measure up to the hype, more people are going to lose their existing insurance, premiums are going up and the impact on the deficit is going to be worse.”
But the public was supposed to like it once it passed, Bill Clinton said. Former Speaker Nancy Pelosi, who probably lost her job because she did shepherd it though the House, indicated that it had to be passed so we could find all the goodies in it.
“This is a horrible piece of legislation — as misbegotten and useless to its friends as it is menacing to its enemies. The question is: why? Why did the blues write such a bad law? Why, given a once in a lifetime chance to pass a program that Dems have longed to achieve ever since the New Deal, did they craft a sloppy mess that nobody understands and few admire, and then leave their law so unnecessarily vulnerable to constitutional challenge?”
“The answers tell us much about why blue progressive thinking is losing its hold on the body politic — and why blue methods generally aren’t working as well as they used to.”
Mead suggests the complexity of the health care system is the first problem. He uses the rain- forest analogy. Tweak something at one point, and you start a chain reaction, unpredictable and even unknowable until the disastrous results appear. Secondly, as he puts it, “the throngs of cooks that spoil the broth of progressive legislation these days. As the system to be regulated becomes larger and more money flows through it, the ‘legislative space’ is suddenly populated with very effective and sophisticated lobbies. Everybody from the AARP to the NOW, the NCAA, the NAACP and the Catholic Church wants a bite at this apple.”
The Act has 2700 pages because every lobbyist on K Street (and their staff members, and possibly the help in their mansions) had to have one. Most of the goodies in the statute are for the insurance industry, and other lobby constituents.
More than that, those who drafted the bill came from the ranks of academia – the “smart young blue twenty somethings,” the intellectually celibate and cloistered – rather than those from the real world of experience. The exasperation Justice Scalia expressed at the oral argument about really expecting the justices to read over 2700 pages – or give it to their law clerks to read, demonstrates the absurd complexity of the statute. Where there are ambiguities and contradictions, the Act gives unelected bureaucrats in this Administration’s hermetically sealed inner circle to resolve.
In fact, a Representative or Senator who voted for it without reading is guilty of gross malfeasance, as almost all of them are. But one cannot expect a Congressman, or ever their staff, to read, understand, and foresee the consequences of proposed legislation that detailed and complex. Thus, it has no business enacting such a statute at all. Doing so creates a government by apparatchiks.
Mead believes that the “third problem that makes it hard for blue methods to work well in health care has to do with the state of the system. Government regulation and centralized organization work best when an industry is in a steady state.” That is, a workable and sustainable system that already exists. That is not the health care system that exists today. A workable and sustainable system for providing medical services, or any other services consumed by the public, must necessarily arise from the marketplace, not imposed from top down. This it has been prevented from doing by government tax and other policies. The employer provided coverage, which originally was hospitalization only, evolved into the third party payment for most of nearly all medical and other health care services. The consequence is that no one really knows what the market price for those services is. Hence, a system that is not workable or sustainable.
Mead concludes that “The question before the country isn’t whether the law will stand. It is headed for failure; the question is whether the Supreme Court will kill it quickly and at a relatively low cost, or will it impose huge costs and inefficiencies across the country as its contradictions and inadequacies are successively revealed. . . . If the Supreme Court finds the law unconstitutional and sends the whole thing back to the Congress to have another try, it will do us all a favor.”
For Mead’s complete essay see here.