Former U.S. Solicitor Generals Clement and Dellinger lead panel with USC Law Prof. Brown
-By Gilien Silsby
From left: Paul Clement, Rebecca Brown, Robert Rasmussen, Lee Epstein and Walter Dellinger
The U.S. Supreme Court’s much-anticipated health care ruling, upholding the requirement that all Americans secure insurance as a valid exercise of the taxing authority, was debated and analyzed at the fifth annual “U.S. Supreme Court: A Preview,” featuring former U.S. Solicitor Generals Paul Clement and Walter Dellinger, and USC Gould School of Law Prof. Rebecca Brown.
To watch USC Gould’s 2012 Supreme Court Previewclick here.
Sponsored by USC Gould and the student chapters of the American Constitution Society and the Federalist Society, the event also included discussions of key immigration and affirmative action cases on the Supreme Court’s current docket.
Moderated by USC Provost Professor Lee Epstein, the Preview drew an audience of more than 280 alumni, law and undergraduate students, faculty, staff and local attorneys.
A wide-ranging discussion of the health care decision kicked off the event, with the panelists looking at the minimum coverage provision and Medicare expansion. They also discussed Chief Justice John Roberts’ shocking departure from his conservative colleagues in the ruling that saved the health-care law.
“There are really two things at stake,” said Brown. “What is the state of the law? And what does it mean? The Court majority ruled that requiring Americans to buy insurance is permissible under Congress’s taxing authority. The Constitution acknowledges that this could be understood as a tax. It may not sound like a tax, but it’s calculated based on tax data and enforced by the IRS.”
Clement, who was appointed 43rd U.S. solicitor general by George W. Bush, and led the challenge on behalf of 26 states to overturn President Obama’s health care law, said he is skeptical that the law will actually compel Americans to buy health insurance. He believes many may opt out and pay a 2.5 percent penalty.
“I think people will ask, ’How much is the tax? How much is the insurance premium?’” Clement said. “I think over time there will be fewer people with insurance.Another dirty little secret is it’s not clear how the IRS is going to robustly enforce the tax.”
Clement doesn’t believe the Court upheld the individual mandate. “I don’t think it’s an overstatement to say the Court stuck down the individual mandate. The Chief Justice was quite explicit… He was re-characterizing it not as ‘you must have insurance or else.’”
Dellinger agreed with Clement, but disagreed that the individual mandate could not be justified as a regulation of commerce among states.
“I always thought this was an easy case,” said Dellinger, an influential constitutional law scholar, who served as acting solicitor general for the Clinton Administration. “The sale of health insurance constitutes about one-sixth or one-seventh of the national economy…. If you go to work in the national economy, that’s a prerequisite to having to pay penalties - 7.5 percent for Social Security, another percentage for Medicare and now have to pay 2.5 percent if you don’t maintain minimum health insurance. No one would say the first two are fine, but the last one is the end of liberty as we know it.”
The panelists also debated the long-term implications of the Court’s Commerce Clause analysis for Congressional authority in the future. Many scholars have characterized the issue as a matter of federalism—protection of state authority over local matters-- but Brown believes some justices saw it as a fight for individual liberties.
“Nobody was saying, ‘leave it to the states,’” she said. “It’s not like the gun control case or the marijuana case, where the question was either the federal government does it or the states do it. People were talking about it as an individual liberties question. It was an effort to read into the Commerce Clause the idea that there are certain things we can’t be made to do as Americans. It has a substantive due process feel to it, like the right to privacy. That could actually portend changes in the future for individual rights. Maybe a revival of substantive due process in the more economic sphere might be a possibility?”
A heavy strain of economic due process was argued throughout the case, agreed Dellinger.
“We kept hearing, isn’t this a matter of the young and healthy subsidizing the older and beleaguered? They were raising the fact that there were redistributive qualities as if that was an argument in itself. That seems to have little to do with a regulation of commerce.”
Clement disagreed, pointing out that his clients were 26 states.
“I was asked, ‘Is this a state issue?’ My answer is: absolutely. Even if it wasn’t argued, states get to do it if they want to and the federal government doesn’t get to do it. In fashioning our argument for the case, we tried to show that the structural provisions are there” to prevent the federal government from crossing the line into state choices.
Epstein, the nation’s leading authority on judicial behavior, said that many Washington D.C. insiders believe that Chief Justice Roberts changed his vote at the last minute to side with the liberal majority.
“The question I get asked most often from citizens’ groups about this case is it looked initially like Mr. Clement won the whole case that the Chief Justice voted to strike the mandate but he changed his vote. So why did he change his vote? Do you see that as causing any problems on the Court?”
“I think there ought to be a rule that if this sort of thing happened – and I’m not saying it did — but if this happened, they should bring the advocates back, and give them another crack at what’s currently bothering the justices. That’s my modest proposal,” said Clement, who many believe is on the short list to become the next Republican president’s pick for U.S. Supreme Court justice.
“It’s not clear to me that there’s ever something as dramatic as a switched vote,” said Dellinger said.
Brown, who clerked for U.S. Supreme Court Justice Thurgood Marshall, disagreed.
“I clerked the year Bowers v. Hardwick was decided. It was 5-4 to strike down the same-sex sodomy statute. Justice Blackmun was assigned to write the opinion… Justice Powell decided before any opinion circulated to go to the other side. The majority opinion became the dissent… I read the dissents by Justice Scalia and the others (in the heath care decision) and it has a real tone to it that’s not characteristic of usual dissents. It looks very much to me like a majority decision that’s been changed.”
“And we won’t know until the papers are released in 30 or 50 years,” Epstein said.
The panel then turned to some of the big cases likely on the docket for the coming Term, including the affirmative action case, the case about whether corporations can be sued for human rights violations occurring overseas, and the cases involving a constitutional challenge to the Defense of Marriage Act.
“There are really two things at stake,” said Brown. “What is the state of the law? And what does it mean? The Court majority ruled that requiring Americans to buy insurance is permissible under Congress’s taxing authority. The Constitution acknowledges that this could be understood as a tax. It may not sound like a tax, but it’s calculated based on tax data and enforced by the IRS.”
Clement, who was appointed 43rd U.S. solicitor general by George W. Bush, and led the challenge on behalf of 26 states to overturn President Obama’s health care law, said he is skeptical that the law will actually compel Americans to buy health insurance. He believes many may opt out and pay a 2.5 percent penalty.
“I think people will ask, ’How much is the tax? How much is the insurance premium?’” Clement said. “I think over time there will be fewer people with insurance.Another dirty little secret is it’s not clear how the IRS is going to robustly enforce the tax.”
Clement doesn’t believe the Court upheld the individual mandate. “I don’t think it’s an overstatement to say the Court stuck down the individual mandate. The Chief Justice was quite explicit… He was re-characterizing it not as ‘you must have insurance or else.’”
“There are really two things at stake,” said Brown. “What is the state of the law? And what does it mean? The Court majority ruled that requiring Americans to buy insurance is permissible under Congress’s taxing authority. The Constitution acknowledges that this could be understood as a tax. It may not sound like a tax, but it’s calculated based on tax data and enforced by the IRS.”
Clement, who was appointed 43rd U.S. solicitor general by George W. Bush, and led the challenge on behalf of 26 states to overturn President Obama’s health care law, said he is skeptical that the law will actually compel Americans to buy health insurance. He believes many may opt out and pay a 2.5 percent penalty.
“I think people will ask, ’How much is the tax? How much is the insurance premium?’” Clement said. “I think over time there will be fewer people with insurance.Another dirty little secret is it’s not clear how the IRS is going to robustly enforce the tax.”
Clement doesn’t believe the Court upheld the individual mandate. “I don’t think it’s an overstatement to say the Court stuck down the individual mandate. The Chief Justice was quite explicit… He was re-characterizing it not as ‘you must have insurance or else.’”
Dellinger agreed with Clement, but disagreed that the individual mandate could not be justified as a regulation of commerce among states.
“I always thought this was an easy case,” said Dellinger, an influential constitutional law scholar, who served as acting solicitor general for the Clinton Administration. “The sale of health insurance constitutes about one-sixth or one-seventh of the national economy…. If you go to work in the national economy, that’s a prerequisite to having to pay penalties - 7.5 percent for Social Security, another percentage for Medicare and now have to pay 2.5 percent if you don’t maintain minimum health insurance. No one would say the first two are fine, but the last one is the end of liberty as we know it.”
The panelists also debated the long-term implications of the Court’s Commerce Clause analysis for Congressional authority in the future. Many scholars have characterized the issue as a matter of federalism—protection of state authority over local matters-- but Brown believes some justices saw it as a fight for individual liberties.
“Nobody was saying, ‘leave it to the states,’” she said. “It’s not like the gun control case or the marijuana case, where the question was either the federal government does it or the states do it. People were talking about it as an individual liberties question. It was an effort to read into the Commerce Clause the idea that there are certain things we can’t be made to do as Americans. It has a substantive due process feel to it, like the right to privacy. That could actually portend changes in the future for individual rights. Maybe a revival of substantive due process in the more economic sphere might be a possibility?”
A heavy strain of economic due process was argued throughout the case, agreed Dellinger.
“We kept hearing, isn’t this a matter of the young and healthy subsidizing the older and beleaguered? They were raising the fact that there were redistributive qualities as if that was an argument in itself. That seems to have little to do with a regulation of commerce.”
Clement disagreed, pointing out that his clients were 26 states.
“I was asked, ‘Is this a state issue?’ My answer is: absolutely. Even if it wasn’t argued, states get to do it if they want to and the federal government doesn’t get to do it. In fashioning our argument for the case, we tried to show that the structural provisions are there” to prevent the federal government from crossing the line into state choices.
Epstein, the nation’s leading authority on judicial behavior, said that many Washington D.C. insiders believe that Chief Justice Roberts changed his vote at the last minute to side with the liberal majority.
“The question I get asked most often from citizens’ groups about this case is it looked initially like Mr. Clement won the whole case that the Chief Justice voted to strike the mandate but he changed his vote. So why did he change his vote? Do you see that as causing any problems on the Court?”
“I think there ought to be a rule that if this sort of thing happened – and I’m not saying it did — but if this happened, they should bring the advocates back, and give them another crack at what’s currently bothering the justices. That’s my modest proposal,” said Clement, who many believe is on the short list to become the next Republican president’s pick for U.S. Supreme Court justice.
“It’s not clear to me that there’s ever something as dramatic as a switched vote,” said Dellinger said.
Brown, who clerked for U.S. Supreme Court Justice Thurgood Marshall, disagreed.
“I clerked the year Bowers v. Hardwick was decided. It was 5-4 to strike down the same-sex sodomy statute. Justice Blackmun was assigned to write the opinion… Justice Powell decided before any opinion circulated to go to the other side. The majority opinion became the dissent… I read the dissents by Justice Scalia and the others (in the heath care decision) and it has a real tone to it that’s not characteristic of usual dissents. It looks very much to me like a majority decision that’s been changed.”
“And we won’t know until the papers are released in 30 or 50 years,” Epstein said.
The panel then turned to some of the big cases likely on the docket for the coming Term, including the affirmative action case, the case about whether corporations can be sued for human rights violations occurring overseas, and the cases involving a constitutional challenge to the Defense of Marriage Act. 
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