Re: [美國] 5-4：最高法院裁定健保改革法案合憲

[ncyc (ラチェットのために)]

雖然健保改革法案被最高法院裁定合憲，但判決文內存在著一些不太引人注意，實際
上影響要更加深遠的重要細節。持此觀點的RealClearPolitics專欄作家Sean Trende
撰文指出，健保改革法案落實與否端看共和黨選舉結果不論，羅伯茲首席大法官執筆
的主文將強制購買條款視訂為國會徵稅權，實際上限縮了行政部門用於推廣政策的利
器之一、即州際通商條款的釋用範圍；獲得七位大法官同意的撤銷國會強制各州擴大
Medicaid否則會被扣減聯邦撥款亦是縮小了聯邦的影響。

亦言之，Sean Trende認為此案實際上是將保守法學觀點的聯邦黨人學社(Federalist
Society)觀念得以體現，此舉的賭注或許不下於約翰．馬歇爾首席大法官在傳奇性的
馬布里訴麥迪遜案，最高法院此舉是重新建立起他們不受黨派影響的名聲，最少羅伯
茲首席大法官不再容易受到相類似的抨擊。



http://goo.gl/IpiZ7

The Chief Justice's Gambit
By Sean Trende - June 28, 2012

In 1803, the chief justice of the United States had a problem. His hated
cousin, Thomas Jefferson, had won the last presidential election. But the
outgoing Federalists opted not go gentle into that good night. The one branch
of government they controlled was the judiciary, and they meant to keep it.
They had passed the Judiciary Act of 1801, which allowed for several new
judicial appointments.

President Adams did a remarkable job filling the appointments and getting
them hastily confirmed. The so-called “Midnight Judges” by and large
received their commissions. But not all of them did. Incoming President
Jefferson then instructed his secretary of state not to deliver the remaining
ones.

Unsurprisingly, litigation ensued. One of those who was to receive a
commission, William Marbury, filed a petition directly in the Supreme Court
under a provision of the Judiciary Act of 1789. He requested a writ ordering
the secretary of state to deliver his commission.

But Chief Justice John Marshall was a staunch Federalist. The republic was
young, the court’s legitimacy fragile, and the ability of the nation to
endure the peaceful transfer of power between parties uncertain. It was also
unclear how Marshall’s ordering the newly installed Jeffersonian Republican
secretary of state to do something would go over.

So the chief justice did something very clever. He found that Marbury was
entitled to his commission, bestowing legitimacy on those Midnight Judges who
had received theirs. But he didn't stop there -- to Marbury's detriment. He
then ruled that the Constitution only gave the court so-called “original
jurisdiction” over a small number of cases. The provision of the Judiciary
Act of 1789 bestowing the court with original jurisdiction over writs of the
type Marbury sought was therefore unconstitutional.

Jefferson had won, nominally. Madison didn’t have to deliver the commission,
Marbury didn’t refile in the lower courts, and he never became a justice of
the peace. But history remembers the case as a huge, perhaps decisive, blow
against those Jeffersonians who viewed the Constitution as nothing more than
a glorified Articles of Confederation.

In depriving the court of original jurisdiction, Marshall had installed the
Supreme Court as the ultimate arbiter of the constitutionality of laws.
Jefferson hated the idea of what has become known as judicial review. But
having won, he was powerless to act against Marshall. Over the course of his
term, Marshall would use that power to increase vastly the powers of the
federal government, and to diminish those of the states.

* * *

Thursday’s health care ruling shocked most observers. It upheld the health
care law as constitutional. But rather than find that the law was justified
under Congress’ authority to regulate commerce, it instead found it was
justified only under Congress’ power to tax. It also imposed limits upon
Congress’ ability to condition spending grants to the states upon those
states taking certain steps. To my knowledge, former Solicitor General Walter
Dellinger was the only person who thought that the court would ultimately
rule on those grounds. I certainly was surprised.

Even more surprising, the decision was 5-4, and Chief Justice John Roberts
authored the majority opinion upholding the law, rather than Anthony Kennedy.
Conservatives are flabbergasted by the chief’s decision (or, in their view,
betrayal).

But I think if you scratch the surface here, Roberts embarked upon a gambit
much like Marshall did 200 years ago. For the results-oriented -- which is to
say, most observers on both sides who have been ranting about the
Constitution for the past few months -- this is a clear win for the Obama
administration, at least in the short term. By removing most legal
impediments to the implementation of the law, the odds that the president’s
signature legislation will eventually be implemented have risen.

The loss is especially galling for conservatives because they were extremely
close to having the whole thing struck down in its entirety, immediately. That
’s what Justices Scalia, Kennedy, Thomas and Alito would have done, and there
’s some pretty good evidence that Scalia’s dissent was the majority opinion
until fairly late in the day.

But Roberts is only a few years further into his chief justice-ship than
Marshall was at the time of the Marbury decision. His tenure is likely to be
equally as lengthy, if not more so. I think the forest for him is quite a bit
different than the trees that people are focusing on. Consider:

1. The law still has a good chance of not being implemented.

Let’s start with Roberts’ presumed crass political considerations. Namely,
as a conservative Republican, he would not want the health care law
implemented. But if Mitt Romney wins the November election, it is highly
likely that Republicans will win the Senate as well. Right now, Romney
probably has no worse than a 50-50 chance of being elected. I honestly don’t
think in the long run this changes things that much. The next jobs report
will have a much greater impact on Obama’s re-election bid over the long
haul than this decision.

If Republicans win the Senate and presidency, the law is doomed. They will
use reconciliation to repeal it, or to gut it. In fact, since the court
essentially allowed states to opt out of the Medicaid expansion, there’s a
chance that the bill would no longer reduce the deficit if a large state like
Texas opted out. This makes the use of reconciliation much easier.

2. Doctrinally, The Federalist Society got everything it wanted.

But judicial conservatives who are not just concerned about the outcome got
more than they could have reasonably hoped for. Doctrinally speaking, this
case will likely be remembered as a watershed decision for conservatives.

Five justices just signaled to lower courts that, but for the unique taxation
power argument, they were prepared to rule that a major act of Congress that
plainly touched upon economic activity exceeded Congress’ commerce powers.
Right now, liberals are seemingly too busy celebrating their win, and
conservatives bemoaning their loss, to realize the significance of this.

None of the liberals’ previous arguments about the upshot of such a ruling
are rendered invalid simply because the chief justice decided that this was a
tax (and almost everyone agreed that if Congress had just called it a tax, it
would have been constitutional). The court just constricted its Commerce
Clause jurisprudence; if liberal commentators are correct, they did so by a
lot. It doesn’t matter today, but 10 years from now, it will probably be a
different story.

The most important aspect of the ruling, however, comes with respect to the
spending clause. Seven justices just agreed to real limits on Congress’
 ability to attach strings to legislation. This is significant. Until today,
these limits were hypothetical, and it was believed that Congress could, for
example, remove all Medicaid funding as a punishment for a state’s refusal
to comply with the Medicaid expansion. I did not expect the court to rule the
way it did here, much less to do so by a 7-2 vote.

To put it differently, if this ruling had a different result -- if Roberts
hadn’t decided that this was a tax -- this decision would be regarded as a
debacle for a liberal interpretation of the Constitution. It is no less so
simply because the Affordable Care Act was upheld on alternative grounds.

3. The chief justice has built up some political capital.

Barack Obama was forced to go on television and praise the court’s ruling.
In so doing, he validated -- at least implicitly -- one of the most pro-state
’s rights decisions in recent times.

Roberts has basically done what John Marshall did: Insulate the court from
criticism of bald partisan bias and infidelity to, as he once put it, calling
balls and strikes. He’s earning plaudits from the left. Though the right is
grumbling, I suspect they won’t be doing so for long

4. This matters in the long run -- a lot.

This is not the last battle to be fought on the Roberts Court. It might not
even be the most significant. In the next term, for example, the court is
being asked to reconsider its affirmative action jurisprudence. There are
almost certainly five votes to overturn court rulings from a decade ago
upholding some forms of affirmative action.

Following that, the court will face a variety of tough decisions. There are
probably five votes to uproot the entire campaign finance system, a decision
that would make Citizens United look like small fry. And there are probably
five votes to invalidate Section 5 of the Voting Rights Act.

I don’t think invalidating the ACA would have affected the court’s
legitimacy that much, at least outside of liberals in the legal academy. But
taken as a whole, this series of decisions really might have irrevocably hurt
the court’s reputation for independence.

But Roberts has something of an ace up his sleeve now. Accusations of
hyper-partisanship are much harder to make against him, and he has more
freedom to move on these issues.

All told, it is easier for the conservative wing of the court to make some
significant rulings in some other policy areas. In so doing, he actually made
significant progress for judicial conservatives while ruling against
conservative policy. And he might still see that policy repealed if
Republicans win in the fall.

UPDATE: One additional comparison has sprung into my mind.  One of the
interesting features of Marbury is that the Court didn't have to decide that
Marbury was entitled to his commission.  Indeed, it probably should have
decided the jurisdictional issue first, then left the remaining issues for
the Courts to decide upon refiling.  But Marshall wanted to get the most
favorable for Federalists that he could, while still maintaining the Court's
credibility.

Similarly, Roberts actually didn't have to reach the commerce
clause/necessary and proper issues.  Having decided the tax issue, he
actually probably could have stopped there.  That he didn't suggests that he
wanted to make sure that, even in defeat, there were five clear votes for the
conservatives' view of the commerce clause and necessary and proper clause.

//
Sean Trende is Senior Elections Analyst for RealClearPolitics. He can be
reached at [e-mail].

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※ 編輯: ncyc            來自: 114.32.131.92        (06/29 11:48)
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