BeldarBlog

Is it okay for Obama to tell voters that Obamacare's individual mandate is not a tax, while telling the federal courts that it is?

I have been following the ongoing litigation about the constitutionality of Obamacare, and I have very strong opinions about it. But I haven't written much about it here because there are so very many other conservative and libertarian law-bloggers who are doing such a good job — including many of them who are directly involved in the litigation — that I haven't felt I had anything novel or useful to add. However, I was much struck by the concluding paragraphs of Wisconsin conlaw professor Ann Althouse's post today entitled "The Obama Administration clearly states that the individual mandate is not a tax" (all emphasis hers):

Well, I suppose it depends on what the meaning of the word "tax" is. It's one thing for the purpose of political argument: Democrats in Congress didn't want to call it a tax when they were jamming it through, and Obama doesn't want to call it a tax now as he's promoting a budget with no new taxes for those making less than $250,000 a year. But for the purposes of legal argument, you might want to characterize it as a tax. The serious question is whether the Supreme Court will accept that characterization for the purpose of upholding the law, even though for political purposes the word was not — and is not — used.

And the answer to that question depends on whether the Justices think that analysis of the political dynamics matters in the interpretation of the scope of Congress's enumerated powers. Whatever the vigor of the Court's role here — and obviously much is left to Congress's political will — it is crucial for the people — exercising their political pressure on the Congress that works its political will — to see what is happening. Even in the thrall of judicial restraint, the Court should reject an argument based fooling the people about what Congress is doing. The people are especially vigilant about new taxes, so denying that something is a tax is an important maneuver in the political arena. If that move is made to ward off public outrage, it should not be easy to turn around win the favor of judges by calling it what you did not dare tell the people it was.

As I said in a comment to her post (reprinted here without blockquoting, slightly edited and expanded here for clarity):

Every statute passed by Congress and signed by the POTUS (or passed over his veto) must be justifiable by some provision of the United States Constitution. That is essential to the maintenance of our Republic as a government of limited, enumerated powers — a government subordinate to, not the dictator over, its people.

Flacks for the Obama Administration, including many lefty lawyers and law professors, would love to persuade you, the people, that they're entitled to rely on one part of the Constitution, the taxing and spending clause, as a justification for Obamacare while they're arguing in the federal courts over its constitutionality, and yet to deny elsewhere that Obamacare involves any "taxes."

"This is complicated lawyer-stuff that only us high priests of penumbras and the living, breathing Constitution can possibly comprehend," they suggest. "Go back to your circuses — look, look, they're handing out more free bread! FREE BREAD!"

(Or maybe just free condoms and birth control pills.)

Democrats are the masters of cognitive dissonance. That's not in dispute and won't change. What might change — as between November 2008 and November 2012 — is the number of rubes who remain enthralled by their shameless hoaxes.

Duty, breach, and bottle rockets

Librarians, taxonomists, cartographers, philosophers, priests, lawyers — many professions categorize things, trying thereby to define and explain them. One of the first times I got a sense of the sweep of the law, and its elegance, was when I learned the definition of "tort."

A tort is a noncontractual civil wrong.

A client, Paul, comes to a lawyer and says, "Doug hurt me and I need justice!" Paul's lawyer must not only decide what he can do for Paul, but what sort of law will be involved in getting Paul the relief he seeks from Doug. How did Doug come to hurt Paul? Was a contract involved? No? Was a crime committed? No. Then it must have been — a tort!

As legal reasoning goes, this is roughly the equivalent of the great chef boiling a pot of water: basic, basic.

Of course, Paul's and Doug's respective obligations toward, and rights against, one another depend on their respective positions and relationship. If Doug was Paul's next-door neighbor in a condo complex, Paul may have different expectations of Doug than if Doug had been, say, a business competitor from another continent. But one of the law's lowest common denominators — and therefore one of law's most commonly applied classifications — is simply that of the "reasonable person" who coexists with other reasonable people in the society subject to our laws. The civil law — tort law in particular, and negligence law even more particularly — implies a duty upon each of us, as a reasonable person, to use due care not to harm the people or property with which we interact. If one breaches that duty, one has committed the tort of negligence.

When tort lawyers plead their clients' cases in written petitions to the relevant court, then, those lawyers have, for centuries, been careful to touch all these bases: duty, breach, resulting injury.

And such is the magnificence of the law that almost anything you can imagine a person doing that might hurt some other person — so long as we're not talking crimes or contracts — can be dealt with through civil tort law. It's all about how you frame the legal issues to fit your particular factual setting, and, in particular, how you identify the relevant duty, breach, and injury.

That, I think, fully explains this case, in which the plaintiff alleged that the defendant owed, and breached, a duty to use reasonable care "not to fire bottle rockets out of his anus."

That would be the defendant's anus; sorry for the imprecision, but of course you can imagine a slightly different set of facts where a parallel duty and breach might arise with respect to the plaintiff's own anus. Law professors delight in setting up factual hypotheticals like this, and then selectively varying one fact at a time to see when and why the outcome might change. At some point during the variations on this particular hypothetical, there's a near certainty that flying monkeys will become involved.

Majestic and subtle is the law. Isn't it? (Hat-tip: InstaPundit.)

Beldar congratulates the PhilBob & bride

I didn't have the famous Philip Bobbitt as a professor at UT-Law. But when I was the book review editor for the law review, he was one of my favorite faculty resources — good-naturedly sharing on request (and my requests were frequent) his opinions about which just-released books were worth reviewing and who, among the law faculty members of the country's best law schools, might be an appropriate target for us to solicit to write a particular book's review. He never steered me wrong. Indeed, I'm confident that "You should talk to Bobbitt, a lot" has been advice handed down to generations of incoming Texas Law Review book review editors by their immediate predecessors.

A gregarious intermingler with the law student body, it was common to find Professor Bobbitt sharing (and occasionally even buying) pitchers of beer at the Posse-East near the law school. And when I was touring Europe after graduation and clerkship with a fellow UT-Law grad, my late and dear friend Craig Youngblood, we dropped in — unannounced, or maybe announced with a phone call that resulted in an immediate invitation, but in any event on little or no notice — on Prof. Bobbitt at his summer flat in London, where he served us a quite passable afternoon tea. (My recollection is that we talked about the then-just-concluded SALT-II missile treaty, which is to say, by the end of the session Craig and I had learned a great deal about an important topic on which we previously had known essentially nothing.)

Professor Bobbitt is a vivid individual, the sort of person who's clearly remembered decades later by even those who, like me, had only a somewhat passing acquaintance with him. 

I was pleased, then, to read this charming tale of his recent courtship and new marriage. (Hat-tip Prof. Kenneth Anderson at the Volohk Conspiracy.)

Congratulations and best wishes to Philip Bobbitt and his new bride, Maya Ondalikoglu Bobbitt!

In 9/0 ruling, SCOTUS smacks down 3-judge federal court that redrew Texas' Congressional districts; stresses state government's superior role over federal courts in determining the interests of Texas citizens

I've just read today's unanimous, per curiam (unsigned) opinion by the United States Supreme Court in Perry v. Perez. The media reports I've read so far are, unsurprisingly, either clueless or filled with Democratic Party spin (but I repeat myself), and they're working hard to paint this as some kind of "split" or "mixed" result in which the SCOTUS produced something for both sides to like and both sides to hate.

That's wrong. This is an amazing decision that, fairly interpreted, was a brutal smack-down of a special three-judge federal district court. And the smack-down was delivered because that court had thoroughly ignored the wishes of the voters of Texas — as expressed by their duly elected representatives in the Texas House, the Texas Senate, and the Governor's Mansion — about how to redraw Texas' electoral maps to accommodate the 2010 Census results, in which four additional seats in Congress were apportioned to Texas.

This whole area of the law is highly technical, with a complicated and sometimes internally inconsistent set of judicial, legislative, and historic precedents involved. So even though this opinion is comparatively short and clearly written, it's rough sledding for most non-lawyers to follow, especially when one starts getting into the tall grass of mandatory direct SCOTUS jurisdiction, Section 5 preclearance requirements of the Voting Rights Act of 1965, and relative standards of proof in preliminary injunction hearings. But here's how the opinion tees up the stakes and the big-picture issues:

[H]ere the scale of Texas’ population growth appears to require sweeping changes to the State’s current districts. In areas where population shifts are so large that no semblance of the existing plan’s district lines can be used, that plan offers little guidance to a court drawing an interim map. The problem is perhaps most obvious in adding new congressional districts: The old plan gives no suggestion as to where those new districts should be placed. In addition, experience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment....

(Even casual students of voting rights cases like me can appreciate the ironic understatement of that last sentence. Indeed, it's been so hard to find "neutral legal principles" that even the Supreme Court has frequently fragmented into multiple small voting blocs in these cases, quite commonly failing to produce any single written opinion that speaks for a majority of the Court. This is the kind of droll observation that John Roberts, as Chief Justice, can put in without it bugging any of the left-leaning Justices enough that they ask him to take it out, and one or two of them aren't completely humorless anyway.)

The Supreme Court continues:

... Thus, if the old state districts were the only source to which a district court could look, it would be forced to make the sort of policy judgments for which courts are, at best, ill suited.

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying” a state plan — even one that was itself unenforceable — “to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.”

So you don't throw out democracy and mount a judicial coup d'état just because some small part of a redistricting map is, or might be, problematic. Instead, to paraphrase today's opinion, what the Legislature passes and the Governor signs — what Texas' own duly elected government does for itself in the exercise of its solemn duties under both the state and federal constitutions — should, as much as possible, trump federal judges who think it's their job to just dive in and fix whatever they think they can improve upon.

After more analysis along these same lines, we get to the meat of the decision, which also conveys the smack-down (citations omitted, boldface, highlighting & first bracketed portion mine):

In this case, the District Court [that comprehensively redrew the Texas Legislature's map] stated that it had “giv[en] effect to as much of the policy judgments in the Legislature’s enacted map as possible.” At the same time, however, the court said that it was required to draw an “independent map” following “neutral principles that advance the interest of the collective public good.” In the court’s view, it “was not required to give any deference to the Legislature’s enacted plan,” and it instead applied principles that it determined “place the interests of the citizens of Texas first.” To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of “the collective public good” for the Texas Legislature’s determination of which policies serve “the interests of the citizens of Texas,” the court erred.

Wait, wait ... You don't think that's a smack-down? You expected maybe something snarky, maybe something like Justice Beldar would have written?

Actually, the dry and unemotional language used here again makes me think that Chief Justice Roberts is the likely unacknowledged author. Regardless, here's my translation, in plain English and without the restraint with which judges talk about each others' screw-ups in print:

Whoa! Just WHOA now! Just who do you three judges on the special district court think you are? Who made you the boss of the Texas state government and Texas voters? You're not!

And you may think that you have some judicial Magic 8-Ball which tells you what's best for the citizens of Texas, but we have these Constitutions — one federal, one state — which actually limit your whole role in this fight to way, way, way less than you guys think you're supposed to be doing. So cut it out, right now!"

The rest of the opinion mostly comprises specific examples of things the three-judge special district court got absolutely wrong because they thought, at least in this particular case, that they were philosopher-princes who rule the cosmos instead of federal judges. (Umm, again, that's Justice Beldar's characterization, not from the per curiam opinion itself.)

So this case is already going back, in a big hurry ("judgment shall issue forthwith," sez the SCOTUS, so no motions for rehearing or such), to the special three-judge district court. Their job — now that their attitudes (and legal standards) have been appropriately readjusted — will be to take the map passed by the Legislature and signed into law by the Governor, and to then make the absolute minimum number of changes that are absolutely necessary to fix, temporarily (for 2012 only), only those specific things that the plaintiffs in the case actually demonstrate to be pretty darned likely to be found illegal or unconstitutional.

That's likely to end up looking an awful lot, then, like what the Legislature passed. And that means the Democrats have lost this round in Texas for all practical purposes.

But do you want to know what actually got my motor racing the most when I read through this per curiam opinion? It was this (bracketed portions mine):

This Court recently noted [in the Northwest Austin MUD No. 1 v. Holder case, a 2009 Roberts opinion,] the “serious constitutional questions” raised by [Voting Rights Act] §5’s intrusion on state sovereignty. Those concerns would only be exacerbated if §5 required a district court to wholly ignore the State’s policies in drawing maps that will govern a State’s elections, without any reason to believe those state policies are unlawful.

Friends and neighbors, that's what my tenth grade English teacher at Lamesa High School, Mrs. Koger, trained me to recognize as "dramatic foreshadowing." And since I would very much like to see the SCOTUS agree that it's now time to quit presuming, as a matter of federal law, that today's Texans are racists just because 1965's Texans were racist, I'm very eager to see this play out.

The four liberal Justices likely read that same paragraph, though, and thought (to themselves; they wouldn't quibble about this with the Chief, or decline to concur over it): "Yeah, we'll just see about that when the time comes." But the Beldar SCOTUS Tea-Leaf-o-Matic™ says Chief Justice Roberts is signaling that he has the votes for what will be a monumental decision in American constitutional law and, indeed, American history.

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UPDATE (Fri Jan 20 @ 10:30pm): The PBS NewsHour actually does a pretty good job reporting this story, in large part because they interviewed and relied upon election law expert Rick Hasen. Prof. Hasen has been very gracious in some previous blog discussions with me about Texas redistricting. He's a reliable leftie, but he's wicked smart, and he tries to be (and mostly succeeds in being) intellectually honest (even when he's wrong). Prof. Hasen also picked up on the broader Voting Rights Act implications. The NewsHour headline (which Prof. Hasen links and republishes without demurrer on his own blog): "Supreme Court Ruling on Texas Electoral Maps 'Huge Setback' for Democrats." And yes, that's exactly right.

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UPDATE (Sat Jan 21 @ 3:10pm): The Wall Street Journal's editorial page also mostly gets this story right, including the implications for future litigation on the continuing constitutionality of Section 5, in "Holder's Texas Defeat: The Supremes deliver a unanimous drubbing on redistricting." (But you won't learn anything there I didn't already say here; and the Journal's admirably concise telling leaves out some details I tend to savor.)

A lot of the other commentary I'm reading about this decision completely misses the parts of the opinion in which the SCOTUS stressed that there can't be any map re-drawing without the required evidentiary showing of a legal violation to justify it. Even some conservative bloggers I've read seem to be assuming that the three-judge court can still produce, if it's so inclined, another map that suits the Democrats better than what the Legislature passed and the Governor signed.

That is emphatically wrong. For that to happen, at least two of the judges of the three-judge special court would have to publicly defy the SCOTUS. The last time something like that happened on a really important case was in 2000, when the Florida Supreme Court pointedly ignored the SCOTUS after the SCOTUS had already said, "Hey, you can't do that, so cut that out, and don't make us come down there and smack you!" The Florida court's institutional reputation has still not recovered, and the reputations of the individual judges who'd led the defiance simply vaporized because they were exposed as lawless partisan hacks. 

No, sir or ma'am, these three judges will indeed now understand that every single alteration they make from the Texas Legislature's map is going to be scrutinized under a SCOTUS microscope. Indeed, they've been given a list of specific (and otherwise likely) screw-ups that they have been publicly warned not to repeat. And the whole point of this unanimous, per curiam opinion was to send an unambiguous set of directives: There are no concurrences or dissents to muddy the water, and these three judges now know that what they did the first time couldn't find a single supporter on the SCOTUS. Repeat: these judges couldn't get so much as a kind word even from Justice Ginsburg, the long-time general counsel of the ACLU, on this one. That's such a harsh reality that it can't escape notice.

So these three judges would have to be utter fools to defy the Supreme Court. As I wrote in a comment below, there's no shame in being reversed, nor even in being reversed by a unanimous SCOTUS. There is, though, shame in being reversed twice in the same case on the same issues; and these three judges are going to take lots of care to see that doesn't happen.

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UPDATE (Sat Jan 21 @ ~5:00pm): This post is a fine example of why I complimented Prof. Rick Hasen for trying to maintain his intellectual honesty despite his partisanship. He admits to having "gotten a fair bit of pushback that the outcome after remand is far less certain" after his description of yesterday's decision as a "big win for Republicans." But he gives three reasons for why he "think[s] it is unlikely that whatever maps come out of the Texas court (and face a possible second emergency appeal to SCOTUS) are not likely to be nearly as good as the maps which came out now." (By "good," Prof. Hasen means, "pro-Democrat.")

His first and third points, I've already made here. He's correct that it's the Texas Legislature's maps, "(rather than starting from scratch maps) which will govern what the final maps look like." He's also correct that "The three-judge court is likely to be chastened by the unanimous Supreme Court decision."

His second point amplifies on something I've noted in a way that I think is also probably correct (emphasis mine):

In drawing those maps, the Supreme Court went out of its way not only to say that the three-judge court should not deviate from Texas’s plan any more than necessary to solve any constitutional/voting rights violation. The Court specifically pointed out that the court should not draw any minority coalition districts to achieve voting rights results. This makes it more likely that the majority-minority districts will have more minority voters in them and will not lead to the creation of extra Democratic seats.

I'm sure Prof. Hasen would protest and disagree, but I respectfully submit that that paragraph contains an inescapable but implicit acknowledgement that what this is all about is partisan politics, not remedying of racial discrimination. And its premise is that only Democrats can reflect the views of minority voters — an offensive and, indeed, a racist premise. (Again, he would protest and disagree.) But as always, the Dems want to win in federal court what they can't win at the electoral polls. They haven't won a state-wide race in Texas since 1994, and they've lost their majorities in both chambers of the Legislature, because Texas voters have rejected them — repeatedly, comprehensively, at every level and despite all their class- and race-warfare. The likely composition of the Texas Congressional delegation in January 2013 will now, correctly and fairly and legally, reflect that rejection.

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UPDATE (Sun Jan 22 @ ~5:40pm): I thank Prof. Hasen for this gracious cross-link to this post. (I'd sent him an email "ping" as a courtesy since I don't think his blog uses trackbacks and his comments are disabled.) In it, he writes (briefly, and not tendentiously but, I hope, with good humor):

For the record, I hardly think it racist to note that minorities, especially African Americans (but aside from Cuban-Americans in Florida) tend to vote for Democrats by very lopsided margins.

To which I'd respond, not quite as concisely:

Of course it's not racist to merely note it, especially as history. But it's a racist judgment (i.e., an act; I'm not indicting people but rather conduct and decisions) to assume or presume that so it must always remain. And partisan race-based politics is an illegitimate basis to strip state legislatures (and, ultimately, their constituents) of their constitutional rights and obligations to redistrict. In Chief Justice Roberts' inarguable formulation: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

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UPDATE (Sun Jan 22 @ 8:10pm): Concision is definitely something I lack, but I haven't vented about this for a few years. So, expressed slightly differently:

1. Democrats believe as a matter of political faith that, by definition, their party includes no racists and can commit no racist acts; rather, Democrats are merely people who insist that government, and especially the federal courts, trample democracy to reorder society (including Texas' Congressional districts) in order to dictate winners and losers on the basis of skin color. Nuance: I learnt it from that "Animal Farm" book ("four legs good!").

2. (a) Partisan gerrymandering is one of democracy's most unappealing, raw aspects. Democracy itself is a terrible system of government with many historically demonstrable failings, redeemed only by the fact that it's nevertheless the least worst form of government ever yet invented and implemented.

(b) The Democrats are complaining bitterly that in the Texas redistricting, Republicans discriminated against Democrats and in favor of Republicans. Well, duh. That's not disputed; that is the essence of gerrymandering, which is about sorting voters into districts based on how those voters are likely to vote. Every alternative to gerrymandering comes at a cost to small-d democracy; I haven't yet seen one which was worth that, and I don't believe any such alternative exists. The Founders' decision to put the responsibility for redistricting at the most organic, grass-roots level of government, the state legislatures, was indeed a choice of the least-worst alternative.

(c) However, proof that Republicans simply discriminated against Democrats also wins them no relief in federal court. So Democrats have to engage in this fiction that by discriminating against Democrats, the Republican majorities in both chambers of the Texas Legislature and the Texas Governor were all actually discriminating against racial minorities.

(d) That's counter-factual; the Democrats claimed that in 2003-2004 too, and were ultimately laughed out of court because all they had to support those claims was wild speculation and innuendo.

(e) In fact, neither Republicans nor Democrats have any need to discriminate anymore on the basis of so crude and statistically inaccurate metric as race. They can draw more useful, better-gerrymandered maps using other, much more precise data on who's likely to vote Democratic and who's likely to vote GOP.

(f) Nevertheless, absent actual evidence of discrimination on the basis of race (which doesn't exist, because that's not what's been happening), the Democrats' proof of an alleged voting rights violation depends entirely on their ability to win a purely legal argument (unmoored from evidence) that conflates "Democrat" with "racial minority." Without that presumption and assumption, their legal position falls to pieces, and is exposed as an accusation that Republicans are (gasp!) political.