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David Brooks, Constitutional Scholar

June 29, 2012   ·   0 Comments

Source: NYTX

Above: President Obama’s signature on the SCOTUS-approved Affordable Care Act

By Marie Burns:

There has been smart commentary on the Supreme Court’s decision on the constitutionality of the Affordable Care Act from the left, the center and the right. There were also, of course, plenty of lies (Mitt Romney), hyperbole (Rush Limbaugh, et al.) and downright insanity (Mike Pence [RTP-Indiana]) from the right. And then. And then there is David Brooks, the New York Times‘ resident “reasonable conservative” polymath. In his column today, Brooks commends Chief Justice John Roberts for “modestly refraining from rewriting health care laws himself” and for exhibiting “Burkean minimalism and self-control.” Brooks is especially pleased that in all modesty, “Roberts and six colleagues also restrained the power of the federal government to sanction the states. And, perhaps most important, he restrained future Congressional power.” Restraint all around! Everyone is humming the Brooks mantra!

Okay. Not really.

David Brooks has an uncanny ability to glean, invent and disseminate false lessons from any given set of circumstances. Let’s look at that claim that the Chief Justice “modestly refraining from rewriting health care laws himself.” Even Brooks himself admits that is not true: “he had to imagine a law slightly different than the one that was passed in order to get the result he wanted,” Brooks writes. Of course, Roberts did not just “imagine” a slightly different law, as Brooks pretends. Roberts made it the law of the land. That is how a Supreme Court Justice renders real the imaginary. Neal Katyal, who once worked for John Roberts, who was President Obama’s acting solicitor general and who argued the Affordable Care case in the lower courts, explains right there on the New York Times op-ed page: “The court had to rewrite the statute to save it from a constitutional problem by eliminating the part of the law that permitted the federal government to withdraw Medicaid financing. The result, as Justice Anthony M. Kennedy warned, was effectively to leave in place a statute that Congress never enacted.” (Emphasis added.). As E. J. Dionne of the Washington Post and others have observed, the Roberts rewrite “may have effectively denied health-care coverage to a large number of poorer Americans.” Katyal says that the rewrite “leaves open the question of whether” acts as vital – and venerable – as the Elementary and Secondary Education Act of 1965, the Family Educational Rights and Privacy Act of 1974 and the Clean Air Act – all of which “contain clauses that condition money on state performance of certain activities … are now unconstitutional as well.” Yes, indeed. Who would have guessed a modest minimalist like John Roberts would have such a great imagination? A regular Walter Mitty, our Chief Justice is.

Brooks writes that “Roberts redefined the commerce clause in a way that limits the power of Washington. Congress is now going to have to be very careful when it tries to use the tax code and other measures to delve into areas that have, until now, been beyond its domain.” Some legal observers agree with Brooks. Some do not. Laurence Tribe, a leading constitutional scholar, writes in a SCOTUS blog post,

… contrary to a ridiculous allegation that Chief Justice Roberts somehow conspired to trick liberals with a win on health care into accepting newfound and exacting limits on the Commerce Clause, the dubious action-inaction distinction endorsed by today’s decision will likely do little to tie Congress’s hands going forward…. Congress rarely mandates behavior on an individual level to accomplish regulatory goals. In other words, the federal code is not littered with other individual mandates for litigious scavengers to pick apart. [Emphasis added.]

Douglas Laycock, another professor of constitutional law, agrees with Tribe. He told Brad Plumer of the Washington Post that Congress “has never needed to write a law regulating inactivity before. And that’s because health care is a special case, a market in which not buying health insurance has adverse impacts on everyone else. ‘Congress has never done this for any other industry because it hasn’t needed to,’ says Laycock.” The “practical impact” of the ruling, Laycock adds, “is likely to be limited.” Rather than stating as fact the limitations Roberts’ decision (supported by the dissents) placed on Congress, Brooks should have been honest with readers and told them that highly-qualified scholars don’t see it that way at all. Perhaps Brooks is suffering from a case of wishful thinking, but it is reasonable to suppose he is trying to poison the wishing-well. That is, he is spreading a false reading of the decision in hopes of its becoming a consensus reading, one that will cause Congress to self-restrain to avoid having its legislation overturned by the courts. Brooks ends his column by urging self-restraint upon us all. He may have been writing with Members of Congress specifically in mind.

Moving right along, Brooks once again proves he is excellent at cherrypicking data in a way designed to mislead. He writes, “According to a 2010 analysis by The Times, the Warren, Burger and Rehnquist courts overturned an average of nine laws a term, while the Roberts court has overturned an average of three laws a term.” But the gist of the article – by Adam Liptak of the Times – associated with the graphic Brooks links, is that in the first five years Roberts was Chief Justice, “… the court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.” As to overturning laws, Liptak wrote, “The Roberts court is finding laws unconstitutional and reversing precedent – two measures of activism – no more often than earlier courts. But the ideological direction of the court’s activism has undergone a marked change toward conservative results.” (Emphasis added.) Brooks’ trick of counting up the number of laws each court overturned is pure deception, as Liptak explained: “It does not take account of the precedential and other constraints that are in play or how much a decision moves the law in a conservative or liberal direction. The mix of cases has changed over time. And the database treats every decision, monumental or trivial, as a single unit.”

Brooks writes that “The decision doesn’t end the health care debate; it accelerates it.” I’m not sure about the rate of acceleration, but Brooks is half-correct in noting that liberals and conservatives agree that the Affordable Care Act is a work-in-progress. Amending major laws, by the way, is hardly unusual. All of the major social safety net programs – Social Security, Medicare, Medicaid, food stamps, etc. – have been modified and remodified and will be modified ad infinitum – if Republicans don’t kill them altogether. Congressional Republicans do not plan to debate health care; they intend to murder it. The House Republican leadership announced yesterday that they would again vote to repeal the Affordable Care Act on July 11. (And once again, they have no plans to replace it.) Since this vote-to-repeal will end up the dustbin of the Senate – a virtual end-of-life hospice for bills good and bad – Mitt Romney plans to “repeal it on Day One” of his presidency, a plan which theNew York Times editors point out today “is a vow that will be impossible to fulfill” even if Romney becomes president.

Brooks has another idea. “Personally, I think the Republicans’ defined-contribution approach is compelling. It’s a potentially effective way to expand coverage while aligning incentives so that people make cost-conscious, responsible decisions. But the truth is neither I nor anybody else really knows what works.” The “defined contribution” is essentially a voucher system. Those Republicans do come up with a lot of obfuscatory euphemisms for “voucher,” don’t they? Employees might get insurance vouchers from their employers and the needy might get vouchers from a generous Congress and the rest of us would get nothing, all of us left with the “freedom” to purchase high-cost individual policies. Unless insurance companies were stringently regulated and allowable profit margins reduced to pittances – something that will not happen here in Lobbyland – the costs of health care would rise for everyone. Unlike large employers and governments, individuals have almost no leverage when it comes to making purchases of a necessity like health insurance. An individual must take what he can get; his choices would be between Expensive Plan A and Really Expensive Plan B. As for Slightly Less Expensive Plan C, it might not be available in his state.

Brooks ends his column by suggesting we all emulate Chief Justice Roberts: “Self-restraint. It’s a good thing. More people should try it.” Yeah, so should Brooks. He can start by restraining himself from acting the role of constitutional scholar, from playing fool-the-reader and from prescribing a plan that would make health care even less affordable than it is today. In his column today, Paul Krugman writes, “The cruelty and ruthlessness that made this court decision such a nail-biter aren’t going away.” You may look into the face of David Brooks, blandly smiling out at you from the op-ed page, and see a modest, restrained man of the sort Brooks claims to see in John Roberts. But when you parse what Brooks writes, you cannot help see the cruelty and ruthlessness peeking out from behind his milquetoast mask. The cruel and ruthless David Brooks is in for the duration. He is not going away.

Marie Burns blogs at RealityChex.com

By marieburns

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