Wednesday, April 4, 2012

On Defending the Individual Mandate: Why getting to the meat of the issue is categorically the wrong approach to the argument

While much discussion and hang-wringing has ensued after hearing Solicitor General Veriilli's lacking performance in defending the individual mandate to the Supreme Court, a far deeper issue lurks beneath these arguments that needs to be discussed and resolved.  There seems to be an orientation and approach to arguing cases like this, where at least a part of the argument is based on tangible issues and practical outcomes.  For instance, in this case, part of the argument included the real-world ramifications of the current state of affairs, as well as projected outcomes and distribution should the mandate be upheld:
[General Verrilli] Rates, for example, in New Jersey doubled or tripled, went from 180,000 people covered in this market down to 80,000 people covered in this market. In Kentucky, virtually every insurer left the market.
And the reason for that is because when people have that guarantee of -- that they can get insurance, they're going to make that calculation that they won't get it until they're sick and they need it. And so, the pool of people in the insurance market gets smaller and smaller. The rates you have to charge to cover them get higher and higher. It helps fewer and fewer -- insurance covers fewer and fewer people until the system ends.

In too many liberal and progressive circles, there seems to be a belief that practical solutions to complex problems are germane to the Supreme Court and the Constitution.  Simply put, they are not.  General Verrilli should have never ventured down this avenue of defense, as it has simply nothing to do with the Supreme Court's job with respect to its decision making powers.

Let me clarify what I mean by this: As we all know, the Constitution is a foundational document. It is a framework for laws to live within. It conveys power as well as creates boundaries and limitations on powers.  As a result, the Constitution is, by design, completely blind to the specific issues at hand, as all frameworks are. Using a biological analogy, if the Constitution is the legal skeleton, our nation’s laws are the meat.  The meat is where the taste, nutrition and variety come into play.  The meat is what drives opinions on what tastes good or bad, what is overcooked or undercooked, or over-seasoned or not.  Very few people have strong opinions on the skeleton... it doesn't have a specific taste; it’s just there to keep the meat in place.

Solving complex social problems are supposed to be -- by design -- handled by Congress, and signed into law or vetoed by the President. And only when these passed laws don’t fit within the framework setup by The Framers do the courts get involved to judge if the law (i.e., the meat) lives within the framework (skeleton) or does it protrude beyond.

The court's job is to keep the meat from protruding beyond their skeleton -- it’s akin to avoiding a legal hernia.

It is understandable that liberal and progressive lawyers and policy wonks would not see this kind of clarity. In prior decades, the Supreme Court (and lower courts) were in fact actively getting into the meat of matters and acting as practical practitioners of legislation (i.e., Roe v. Wade and Bush v. Gore). Frankly, it’s understandable why the high courts would actually prefer to wade into the meat of matters -- we all see what happens when the “blind eye of justice” allowed Citizens United to prevail over campaign finance reform.

This wading into prescription and policy around the meat of the issues by the Supreme Court has led to a rebellion in the shape of the “strict constructionist” movement within the conservative arena.  It's a movement where justices have clung so tightly to each fragment, and have so much reverence for the original document's specificities and details, that it works against the very notion of the Constitution being a living document, designed specifically to be interpreted based on evolving contexts.

While all of this is understandable, it doesn’t make it right.  What seems clear to me as we look at the ultimate design of the American system and rules of governance is that both sides have it wrong to a large extent:  The right approach is neither the liberal/progressive prescriptive arguments over “what works best for America” in a practical way, nor is it “strict constructionist” ideology that treats the Constitution more like religious scripture than a framework. Rather, it's about establishing a clarity of thought and purpose around the Constitution as a legal framework that laws are tested against.
The Constitution (and its protectors -- the justices) should not actually know if a particular law is right or wrong for the nation.  However, the Constitution and its protectors can and should apply the multiple (and sometimes, competing) dimensions of the skeletal framework to new laws that try to manage contemporary societal and national issues and challenges. Which means that arguments to the Supreme Court need to have the focus and discipline around constructing arguments based purely on the orientation and position of the meat within the skeleton -- while staunchly avoiding discussing the details and ramifications of the specific meat in question.

The same discipline should be adopted and upheld by the Supreme Court justices. Ultimately, there will always be left- and right-leaning justices. But the difference between them should not be what it is today -- practical problems-solvers vs. strict constructionist.  It should be justices that give different philosophical weight to varying dimensions of a fairly comprehensive framework document that, by its very nature, needs to be interpreted by human beings to ensure the meat of the issues are contained within the protective skeleton of our democracy.