00:00 [Archival]: We will continue argument this morning in case number 11-393, National Federation of Independent Business v. Sebelius.

[music]

00:10 Leon Neyfakh: Hey everyone, it's Leon Neyfakh, co-creator of Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about the Supreme Court case that upheld ObamaCare.

00:21 [Archival]: The stakes only grow larger with months before an election. Will the justices be criticized for letting politics creep into the courtroom?

00:30 Leon Neyfakh: The case is from 2012, with a majority opinion written by Chief Justice John Roberts. As the hosts are about to explain, it was an opinion that people who support affordable healthcare, or any other progressive legislation, should regard with more than a little suspicion.

00:46 [Archival]: You ask really for limiting principles so we don't get into a matter that I think has nothing to do with this case: Broccoli, okay?

00:56 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

[music]

01:07 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have slowly poisoned American life, like toxic runoff into a mountain stream. I am Peter, Twitter's @The_Law_Boy, and I'm here with Michael.

01:20 Michael: Hey everybody.

01:22 Peter: And from Austin, Texas, Rhiannon.

01:26 Rhiannon: Hi fam.

01:26 Peter: And today, we are doing NFIB v. Sebelius, aka the ObamaCare decision, and this case was touted by many liberals at the time as a win because it technically upheld ObamaCare. At the same time though, a lot of academics sounded the alarm because not only did the court strike down an important part of the law, but it laid the groundwork for jurisprudence that is set to undermine healthcare, civil rights and environmental legislation for decades. And to be specific, this case was a challenge to two parts of the ObamaCare law: The Individual Mandate, which required Americans to buy health insurance or otherwise pay a penalty, and the law's expansion of the Medicaid program, to cover more of the population. The argument was for, that for various reasons, these parts of the law exceeded Congress's authority under the Constitution, and the court held that the Individual Mandate could be upheld under Congress's taxing power, but not its Commerce Clause power, and that the expansion of Medicaid as written, was a violation of Congress's Spending Clause power.

02:33 Peter: This case is a shining example, I think, of the lengths that conservatives will go to limit federal power when it's politically convenient to them, and the conservatives here do exactly the sort of shit that they claim liberal justices do, right? They pull from thin air, or perhaps somewhere else [laughter] restraints on the federal government's commerce and spending powers, they rely on arbitrary distinctions that have no basis in the Constitution or anywhere else, and they do it in order to hamper ObamaCare and lay the groundwork to disrupt the next generation of social welfare legislation.

03:08 Michael: Right.

03:08 Peter: And we return here to this podcast's natural enemy, Chief Justice John Roberts.

03:17 Rhiannon: Drag him!

[chuckle]

03:18 Peter: We talked in Shelby County about the Roberts' two-step, and that is where he sets up dangerous conservative jurisprudence, he tees it up in an earlier case, a much more harmless-looking case, and then he knocks it out of the fucking park later.

03:34 Michael: Yep.

03:35 Peter: And this is an example of the first step in the Roberts' two-step: A decision that's designed to feel impartial while serving as a vessel for his reactionary politics. And one thing I wanna note about this is, he's so aware of his audience that you can read in the first few paragraphs of this, it's like an introductory civics lesson that he goes on.

03:55 Rhiannon: Yeah.

03:56 Peter: And it's clearly aimed at journalists and people that are reading it, baby's first Supreme Court decision, and he's very interested in presenting to the public the appearance of the Court as a noble and impartial body. But like we talked about in Shelby County, that image is a veneer, it's not substantive, and what would actually improve [chuckle] the public's trust in the court would be like, if maybe sometimes he meaningfully and more consistently sided with the liberals, right?

[chuckle]

04:26 Michael: Yes.

04:26 Peter: But he will never do that, never do that, because his vision of a non-partisan court is just a shadow on the wall.

04:35 Michael: Right. I saw this, I think it was law professor Eric Segall on Twitter who said this, Roberts has sided with the liberals in a 5-4 decision three times in 15 years, which is like... Gorsuch, I think, has beat that already in the last two years.

04:52 Peter: Yeah, there's a real irony, which is that, in a lot of ways, Roberts is one of the most rigidly conservative justices. Someone like Gorsuch has their little niches where they'll branch out, but Roberts just doesn't. He's just a standard-bearer hardliner.

05:05 Michael: Yeah.

05:06 Rhiannon: Yeah, I think that's actually a kind of tricky part about reading Roberts. In NFIB, I just remember that in law school, as a law student, I struggled to understand the arguments here and the holding, it's really complicated. The legislation that's being challenged is complicated, and then the way the opinion is written is complicated, but I think that when you come to the case with the understanding that Roberts is primarily concerned with these optics, it makes the case make more sense.

05:36 Michael: Right.

05:37 Rhiannon: So I'm sure you guys remember this too, watching the news the day this decision came down, and they have [chuckle] the reporters, they're just waiting at the Supreme Court for these decisions to be issued, and they have their interns who are all wearing their little suits, but they're also wearing tennis shoes. [chuckle] They have them waiting for the opinion, which was printed out and handed to them, and then the interns sprint down and bring it to the people who are waiting and they try to read the opinion really quickly to then turn it over on the air.

[chuckle]

06:09 Peter: Incredibly embarrassing.

06:11 Rhiannon: And this decision, though, is so confusing that on the morning of, CNN and Fox News both actually call it wrong.

06:19 Peter: Yeah.

06:20 Rhiannon: They say that the Individual Mandate has been struck down when it hadn't been.

06:27 Michael: Yeah.

06:27 Rhiannon: And so, what we get from Roberts waffling on these optics, and therefore on the substance of the law, what you get is a case that's illogical and it's internally inconsistent.

06:37 Michael: Yeah, we'll get to it, but one of the reasons it's confusing is 'cause he's just [chuckle] going out of his way to be a reactionary.

06:44 Peter: Yeah, yeah.

06:46 Rhiannon: Right.

06:47 Peter: So some of the background to this is that, this is Obama's first big legislative project, what ends up being his only big legislative project, really. And it came to be a lightning rod for conservatives who thought that it really was emblematic of government overreach and everything they hated about Obama.

07:04 Michael: Right.

07:08 Peter: And the result is that the Tea Party... Whenever Republicans are out of power, they turn into temporary libertarians, right?

07:15 Michael: Yes.

07:15 Peter: So they were marching on DC, dressed up like Continental Army soldiers.

07:19 Michael: Tri-corner hats.

[chuckle]

07:22 Peter: Muskets and snare drums and shit, just looking like total fucking idiots, [chuckle] holding up signs with a bald eagle crying. [chuckle] Worth noting that all of those people are now 100% outright fascist, who want all of their political opponents in jail and asylum seekers in concentration camps, but this was their reaction to being told to buy insurance.

[laughter]

07:47 Michael: Yes.

[laughter]

07:49 Peter: That's like the political backdrop to this.

07:52 Michael: Do you remember that, at first, 'cause they're all old and they don't know slang, that they called themselves Tea-Baggers?

[laughter]

07:58 Rhiannon: Oh yeah!

08:00 Peter: Oh yeah.

08:00 Rhiannon: Oh my God! [laughter]

08:00 Michael: It was for a few weeks there, that they were like "Tea-Baggers," before someone was like, [laughter] "No, you gotta come up with something better than that."

[laughter]

08:09 Peter: Unbelievable.

08:10 Rhiannon: Somebody's son was like, "Umm, Dad... " Yeah.

08:14 Peter: Yeah. Alright. Rhi, tell me about the National Federation of Independent Businesses.

08:21 Michael: The aggrieved plaintiff.

08:23 Rhiannon: Sure.

[laughter]

08:23 Rhiannon: Yeah. So this case is brought by multiple organizations and states who are suing the federal government, but the named plaintiff is NFIB, the National Federation of Independent Businesses, and this is another non-profit organization that calls itself a non-partisan organization that defends the rights of small business owners to own and operate their businesses without undue government interference. This non-partisan organization [chuckle] has a political action committee called...

08:55 Michael: No way.

08:56 Rhiannon: The Save America's Free Enterprise Trust, and one day on this podcast, you guys are gonna let me go off about the non-profit industrial complex, but I guess...

[laughter]

09:09 Rhiannon: I've been told that that's not today. [laughter]

09:12 Peter: I wanna say, you know a case is about some weird conservative bullshit when the plaintiff is one of these organizations whose name is just an amalgamation of business buzzwords.

09:22 Rhiannon: Yeah.

09:24 Peter: If you see a case called the American Society for Capital Allocation v. Pennsylvania, someone is about to lose their civil rights.

[laughter]

09:30 Michael: Yes.

09:31 Rhiannon: Yeah, right. Absolutely, it has to be a patriotic word and an institution word, yeah.

09:37 Peter: Right.

09:39 Rhiannon: So if you're wondering who NFIB, these kind of small business wackos, are politically, in 2010, a couple years before this decision drops, 25 members of NFIB were elected to Congress, all 25 of them are Republicans.

09:54 Michael: No.

09:55 Rhiannon: And a bunch of them...

09:55 Peter: That is a crazy coincidence.

09:57 Michael: Yeah.

[chuckle]

09:58 Rhiannon: Yeah. A bunch of them, like Rand Paul and Paul Gosar were endorsed by the Tea Party movement, so... Oh, another fun fact is that the Crossroads GPS Pack, which is headed by our favorite wretched little goblin freak, Karl Rove, they give NFIB $3.7 Million to help fund this fight in the courts, so Republican money is all over this case, and I think it's important to note that not all small business advocates and consumer advocate groups are against ObamaCare at the time. There are a lot of organizations who are saying, this would be good for small business owners, this would be good for the economy. I think it's important to highlight that the money and organizations who are bringing cases to the Supreme Court, they're not just your little harmed individual party John Smith seeking their day in court. These cases come to the Supreme Court from entrenched ideological interests and big money backing.

10:57 Michael: This whole conservative ecological legal system, that includes the organization that feeds the judges that end up hearing these cases, they're coming out of the same movement.

11:09 Peter: Yeah.

11:10 Rhiannon: That's right.

11:12 Peter: So let's talk about the law, and it's important to note, as we get into this, a very basic aspect of our constitutional system, which is that the federal government does not have any power that is not granted to it under the Constitution. So if Congress wants to do something, it has to fit whatever that is under one of the powers specifically granted to it, the "enumerated powers," and there are three powers most relevant to this case: The power to tax, the power to spend and power to regulate interstate commerce. And we wanna note, going into this, there are several parts of this decision that we're gonna ignore, there's a lot going on here, and if someone replies to us on Twitter, "Why didn't you cover the Anti-Injunction Act and do half an hour [chuckle] on the Necessary and Proper Clause?" I'm gonna come to your home and I'm gonna kill you.

12:03 Rhiannon: Whoa! [laughter]

12:03 Michael: That's a parody, not a real threat.

12:06 Peter: Okay, let me try that again.

12:08 Rhiannon: And I'll defend him in court.

12:10 Peter: I'm gonna come to your home and scream at you for several hours.

[laughter]

12:14 Michael: Figuratively kill you.

[laughter]

12:19 Peter: I'm just gonna do that from the top. [laughter] If you complain to us, that we did not cover the Anti-Injunction Act in this episode, you're not a friend of mine, [laughter] I'm never gonna like you, and that shit is boring, and that's why we left it out of here. It's boring and unimportant.

[laughter]

12:43 Peter: Alright.

12:46 Michael: Alright.

12:46 Peter: So, the Individual Mandate is the first thing we're gonna talk about here. And again, this requires individuals to have health insurance or else pay a penalty. And this is designed to prevent the economic problems that are created by people being uninsured, right?

13:00 Michael: Right.

13:01 Peter: This is actually upheld by the court because John Roberts joins the liberals in saying it's part of Congress's taxing power. You know, that someone buy insurance, and it only has one consequence, if they don't buy it. They pay a tax penalty, right?

13:15 Michael: Right.

13:15 Peter: As a result, the mandate should and does survive as part of Congress's taxing power.

13:23 Michael: Right. And so, the intricacies of the Court's taxing jurisprudence is not really what this podcast is about. It's worth taking a minute to appreciate how fucking rotted your brain has to be by Fox News or syphilis or some [laughter] combination thereof, to disagree with Roberts' analysis on this taxing question and four Supreme Court justices did just that. It's fucking insane, 'cause Roberts cites precedent that's undisputed, that whether something is a tax is basically a functional analysis. It doesn't really matter whether Congress calls it a tax or not, and he has examples where they call something a tax and the Court was like, "That's not a tax," and vice versa.

14:09 Rhiannon: Right.

14:09 Michael: And he says, "Look, here are five reasons why we think this is a tax. One, individuals pay the mandate penalty when they file their taxes. Two, the mandate does not apply to individuals whose income puts them below the federal income tax filing threshold. Three, the amount owed is determined by factors used to determine tax liability, like joint filing status or number of dependents. Four, the requirement is listed in the IRS code and enforced by the IRS. And five, it has the most essential feature of a tax, in that it raises revenue for the federal government."

14:47 Peter: Right. Just...

14:48 Rhiannon: Did you guys take Tax Law?

14:49 Peter: Hell no.

14:49 Michael: No. Fuck, no.

14:51 Rhiannon: Yeah.

14:51 Peter: Fuck, no.

[laughter]

14:53 Peter: Absolutely fucking not.

14:56 Rhiannon: Those fucking nerds.

14:58 Michael: You have a law in the tax code enforced by the IRS to raise money for the government. The idea that this isn't a tax, it's ludicrous.

15:05 Peter: Yeah. So, the Individual Mandate gets upheld as a tax, but...

15:10 Michael: Simple enough.

15:11 Peter: In the process, Roberts specifically states that the Individual Mandate is not a proper exercise of Congress's power under the Commerce Clause, and the Commerce Clause says that Congress can regulate commerce, "among the several states," it's generally referred to as the Interstate Commerce Clause or the Interstate Commerce Provision and this makes sense. If more than one state has an interest in an issue, then state laws probably aren't adequate to address it, right? You need federal intervention. And moreover, the historical context of the Constitution makes very clear that the framers intended this to be a very broad power designed to empower Congress to be able to address concerns and issues that are of national import, right? It's long been a thorn in the side of conservatives.

15:56 Michael: Right.

15:57 Peter: Because they want to limit federal power, and unfortunately for them, this gives the federal government a lot of power.

16:04 Michael: Right.

16:04 Rhiannon: Right.

16:05 Peter: That's all there is to it, really.

16:05 Michael: We have a massive national economy.

16:06 Peter: Yeah and there's a very fun irony which is that, the conservatives generally subscribe to originalism, the idea that the Constitution should be interpreted based on the Founders' intent. But this is an area, where the Founders probably didn't foresee what commerce would look like in the modern age. Like in 1790, [chuckle] most interstate commerce was just like, one guy bringing a single tomato [chuckle] from New Jersey to Pennsylvania, once a week. [chuckle] And now, state lines, they barely exist, people are constantly traveling across them, goods are constantly traveling across them, and so the federal government has a huge amount of power under this clause, and it is endlessly frustrating to conservatives.

16:48 Michael: Yes.

16:49 Peter: And so, they have spent basically a 100 years now, trying to put as many arbitrary limitations on this clause, as they can possibly throw together.

16:57 Michael: Massive long-running conservative project.

17:00 Peter: Yeah, and so what Roberts says is that the Commerce Clause regulates economic activity between the states, but it doesn't regulate economic inactivity.

17:09 Michael: Ho ho.

17:10 Rhiannon: Woah.

17:10 Peter: So Congress can't use it to require people who aren't purchasing insurance to buy it and it should be noted that this is an entirely made up distinction. It has no basis in the text of the Constitution, it has no basis in the Court's precedent, it has no basis in the historical context of the Constitution, flat out made-up, period. Roberts says that, allowing Congress to regulate what people cannot do, as opposed to just what they can do, risks giving Congress too much power. [laughter] So, there's a huge amount wrong with this. First of all is a pedantic distinction, right?

17:48 Michael: It is.

17:49 Peter: He says that The Commerce Clause, "regulates commerce and therefore does not allow Congress to force people to create commerce." [chuckle] It's a very weird semantic point that clings to a shoddy definition of both the words, "regulate" and "commerce," which if you're paying attention, are the only two words in the mix here.

[laughter]

18:14 Peter: The term regulate, as I would understand it, does not exclude mandating affirmative activity or affirmative behavior, right?

18:20 Rhiannon: Right.

18:20 Michael: Right.

18:21 Peter: Textualists often go to dictionary definitions at times like these.

18:25 Michael: Yes, they... They love the Oxford Old English.

18:28 Peter: Roberts didn't do it here. [laughter] And there's a pretty good reason why, I think.

18:33 Michael: Yeah.

[laughter]

18:35 Peter: 'Cause I hit up dictionary.com for this one, [laughter] and the definition they gave me was, for "regulate," to control or supervise, by means of rules and regulations. Does that definition clearly exclude the mandatory purchase of insurance to you?

18:51 Michael: Seems like a rule.

18:52 Peter: Seems like it might be a rule.

18:52 Michael: Yeah.

18:53 Peter: Regulations on industries, for example, frequently impose affirmative obligations on those industries, right? And I've never heard anyone suggest that the term regulations was inaccurate or not adequate or something.

19:05 Michael: Right.

19:06 Rhiannon: Yeah, I think that's exactly right. And he also doesn't seem to understand either, what the word, "commerce" actually is. [chuckle] So, both words in the pivotal phrase here and the dissent actually points this out, that...

19:20 Michael: Yeah.

19:20 Rhiannon: The distinction between regulating and creating commerce or the distinction between commercial activity and commercial inactivity, that doesn't matter anyway. The reality is that everyone is a participant in the healthcare market and there's just no way around that.

19:36 Michael: Right.

19:36 Peter: Right.

19:38 Rhiannon: The dissent also uses some hard numbers showing that even 90% of uninsured people will consume healthcare services within a five-year span. Okay, completely disengaging from the healthcare system is technically, probably possible, if you're like a psycho, cuckoo, off-the-grid person [chuckle] or whatever. But even those who don't consume health care services are almost all creating some sort of burden on the health care system.

20:06 Peter: Right.

20:06 Michael: Right.

20:06 Peter: You can't create your laws around fucking recluses who...

20:09 Rhiannon: Right.

20:09 Peter: Do not use any sort of health care and by the way, no one who's doing that is paying taxes.

[laughter]

20:15 Michael: Right.

20:16 Rhiannon: Right. [laughter] Exactly. So Roberts, he says in his opinion, "The Government repeats the phrase "active in the market for health care," throughout its brief, but that concept has no constitutional significance."

20:30 Michael: I don't know about that.

[laughter]

20:31 Rhiannon: Okay. So, Chief Justice John Roberts, you suck at persuasive writing because that's just super stupid. How can the concept of activity in the market for healthcare, not be of constitutional significance, when you just said that the entire basis for your decision is that you can regulate activity but not inactivity.

20:53 Michael: Right.

20:54 Peter: Yeah.

20:54 Rhiannon: And so, the whole decision concerning the Commerce Clause is predicated on this distinction exactly, being of constitutional significance. He says another quote, "An individual who bought a car two years ago and may buy another in the future is not "active in the car market" in any pertinent sense.

21:10 Peter: Ehh.

[laughter]

21:12 Rhiannon: You're wrong. No, that's not correct, John. Mr. Chief Justice, I'm super sorry. [chuckle] If someone buys a product and is using it, they're active in that market, period.

21:23 Peter: Right.

21:23 Michael: Right.

21:25 Peter: Right. Like how simple is that?

21:26 Rhiannon: Right.

21:26 Peter: Roberts seems to think that you're only participating in a market if you're engaged in a transaction at that very moment, which is just obvious horse shit.

21:35 Michael: Yeah.

21:36 Peter: And I'm not shopping for clothes right now. Am I not a participant in the clothing market? Right?

[chuckle]

21:41 Rhiannon: Right. Exactly.

21:42 Peter: Despite the fact that I bought them my entire adult life, wear them every single day and I'm guaranteed to buy more. Does it make any sense to describe me as not being a participant in that market? Are you only a participant when you're at the fucking Gap? [laughter] Are you only a participant when you're at the cashier? And the analogy shows just shows how little he understands about insurance itself.

22:00 Michael: Right.

22:00 Peter: Health Insurance is not a discrete good in the sense that a car is. If you find yourself in desperate need of a car, you can't go to the fucking ER and get a free one.

22:08 Rhiannon: Right.

22:09 Peter: But that is how healthcare works.

22:10 Michael: Right.

22:11 Peter: And you need to account for that distinction, and he just doesn't. I wanna say that he is shitty at economics, but I don't really think that that's what's happening here. I think that he's just manufacturing whatever arbitrary shit he can.

22:22 Michael: Yeah.

22:23 Rhiannon: Yeah.

22:25 Peter: There is a real extent to which this decision emanates directly from Fox News.

22:30 Michael: Yes.

22:31 Rhiannon: Yes.

22:31 Peter: So first, the fixation on the Individual Mandate comes from conservative media, and the arguments, the arguments made at oral argument, the arguments made in briefing, by the plaintiffs are kind of broad legal reflections of the sort of outrage of the conservative base.

22:53 Michael: Yeah.

22:53 Peter: And a huge amount of this opinion, including Roberts' distinction between economic activity and economic inactivity is stuff that is just yanked from conservative culture and media. That particular argument was designed by Randy Barnett, who was just a weirdo, crank libertarian professor, who nonetheless has incredible sway on the right. [chuckle]

23:18 Michael: Right.

[laughter]

23:20 Peter: And these things are pulled directly out of someone's ass.

23:23 Michael: Yeah.

23:25 Peter: And thrown onto fucking Hannity and Tucker Carlson and Rush Limbaugh.

23:31 Rhiannon: Right.

23:31 Peter: And the extent to which there is a direct tie between that media culture and the opinions of the five conservatives cannot be overstated.

23:40 Michael: Yeah.

23:40 Peter: These are not a different type of intellectual or a different type of thinker. They are putting a fancy intellectual gloss on the thoughts of Sean Hannity.

23:50 Michael: Right.

23:51 Peter: And Roberts also states that the fact that the court has never confronted a circumstance where citizens were being made to purchase a product, implies that it might be unconstitutional, which... [chuckle] First of all, the dissent points out that that's not true. Right? That the court has upheld such affirmative impositions in the Commerce Clause context in the past but also, "What"? [laughter] I don't even understand. Like, if the court has never seen this before, then it's shady or something, like that's the argument.

24:19 Michael: Right.

24:20 Peter: So, Neal Katyal, hotshot attorney, briefly Obama's Solicitor General, has argued in front of Supreme Court, many a time in that capacity and otherwise. He wrote shortly after the decision that the reasoning used by the Court implies that any time Congress passes a statute that is unique or novel, that might be unconstitutional under Roberts' reasoning.

24:41 Michael: Right.

24:41 Peter: Great point.

24:42 Michael: Yup, you got it. You nailed it, Neal.

24:44 Rhiannon: Yeah, good job Neal. What's next?

24:46 Peter: He also says...

[laughter]

24:48 Rhiannon: Ohh...

24:48 Michael: Tell us more.

24:49 Peter: "While Chief Justice Roberts wrote an opinion that was apolitical and deserves much praise for its statesmanship,"

[laughter]

24:57 Peter: Now, I cut off the rest of that sentence, because it's not important.

[laughter]

25:05 Peter: So, Katyal also praised and supported the nominations of both Gorsuch and Kavanaugh.

25:10 Michael: Right.

25:11 Peter: And I mean, he might be one of the better examples of just how deeply poisoned the brains of otherwise smart people become, once they are lawyers' brains.

[laughter]

25:23 Peter: I wanna mention something else.

25:25 Michael: Speaking of diseased brains...

25:26 Peter: Speaking of diseased brains, Antonin Scalia... That oral argument asks the government lawyers, "Doesn't this mean that the government could make you buy broccoli?"

[laughter]

25:36 Rhiannon: Oh my god.

[chuckle]

25:37 Peter: And this caught on to the point where Roberts includes it implicitly in his opinion.

25:46 Michael: Yeah, he does.

25:47 Rhiannon: Yeah.

[video playback]

25:47 Michael: "Everybody has to buy food. Therefore everybody's in the market. Therefore you can make people buy broccoli."

25:53 Peter: And my response to that is, first of all, maybe, but probably not, mostly because the analysis should be about how connected the law is with the market, and the link between health insurance market and broccoli [chuckle] is a little more tenuous than the link between the health insurance market and fucking health insurance.

[laughter]

26:18 Peter: And also, something that conservatives love to say in these cases, when they're upholding an insane state law is they'll be like, "Look, this law might be silly and it might even be awful, but that doesn't mean that it's unconstitutional."

26:33 Michael: Right.

26:33 Peter: This is something that Clarence Thomas loves to do in gay rights cases, where he's like, "Look, I'm no homophobe. But unfortunately, they can do this."

26:39 Michael: Yeah.

26:40 Rhiannon: Right.

26:42 Peter: But here is Scalia doing the exact opposite, right? All he's trying to do is say, "Isn't this silly?" One other thing I'll throw in is, no one argues with the fact that a state could make you do it, right?

26:52 Michael: Right.

26:53 Peter: A state could make you buy broccoli.

26:53 Michael: Yup.

26:54 Peter: It would be an absurd law. Yeah, but again, not necessarily speaking to its constitutionality. Shut the fuck up, Antonin Scalia. [laughter] Maybe you should eat some broccoli sometime...

[laughter]

27:04 Rhiannon: Yeah.

27:05 Michael: Maybe you'd still be with us.

27:05 Peter: Antonin Scalia [chuckle] would be on the court [laughter] if he had eaten some broccoli, some government-mandated broccoli would have been real good for him.

27:12 Rhiannon: Yes.

27:12 Michael: Stop it with the fucking steaks and the oysters.

[chuckle]

27:18 Rhiannon: Yeah.

27:18 Michael: Get on a treadmill.

27:19 Rhiannon: This is a good example of the utility and effectiveness of a slippery slope argument. So, John Roberts is doing it in this opinion, Scalia is doing this slippery slope thing, and I think it makes it obvious that you don't have substantive legal arguments.

27:35 Michael: Right.

27:35 Rhiannon: And rules and stuff that you're sort of intellectually accessing when you're writing these opinions, if your opinion is like, "The government can't make me buy vegetables, so why try do this.

27:45 Michael: Right. It's just scoring rhetorical points.

27:48 Peter: Yeah.

27:50 Michael: It's not intellectually rigorous.

27:50 Rhiannon: Yup.

27:51 Peter: Right.

27:51 Michael: And Scalia, he's an interesting case study in this case. Because a lot of law professors and legal observers, people who write about the Court, were pretty convinced that he was gonna side with the government here.

28:05 Peter: Yeah.

28:05 Michael: And they had a reason, right? They had grounds for this, which was another recent case, Gonzales v. Raich which was like a medical marijuana case, where Scalia was like, "Yeah, of course the government can regulate if somebody's growing marijuana for themselves." And that...

28:22 Peter: Under the Commerce Clause.

28:23 Michael: Under the Commerce Clause.

28:25 Rhiannon: Right.

28:26 Michael: That might not be commerce and it might not be interstate, but there's a comprehensive scheme here that requires reaching some stuff that's not interstate commerce in order to be comprehensive and not be undercut. And people were like, "Oh, fucking Scalia, he's painted into a corner, he's got no out, he's totally confined by his own logic," and well [chuckle] how did that turn out?

28:53 Peter: Right.

28:54 Michael: How did that go?

28:54 Peter: Well, Antonin Scalia wouldn't risk being a huge fucking hypocrite, would he?

28:57 Michael: No, no.

[laughter]

28:58 Peter: Surely he will side with the government here.

29:01 Rhiannon: Surely he's more principled than that.

29:03 Michael: Yes. We say a lot that legal formalism is bullshit, but this is the point. This stuff doesn't actually confine judges.

29:13 Peter: Right.

29:14 Michael: The judges do whatever the fuck they want. And in this case, he says, "Well okay, I said that then, but you know, I can come up with some reason to ignore it." And it's not just Scalia here, it's also Roberts with what we've talked about before, which is the canon of constitutional avoidance, which roughly speaking says the court should avoid striking down laws as unconstitutional, if it can. And Roberts didn't have to do any of this commerce analysis that we've just been going through.

29:46 Rhiannon: Right.

29:46 Michael: And it's in fact, very weird that he did it.

29:47 Peter: Because he had already upheld that has a tax.

29:49 Michael: Right, exactly. And so he could have just said, "Look, it's amenable to an interpretation as a tax and that settles it, and that's the end of it." And the history and operation of the "Canon of Constitutional Avoidance," this is precisely the sort of esoteric legal formalism that we usually ignore 'cause we don't think it meaningfully constrains the Justices.

30:09 Peter: Right.

30:09 Michael: But it's worth discussing here because...

30:10 Rhiannon: Yeah.

30:13 Michael: Roberts uses it to sneak in his reactionary bullshit under a veneer of moderation.

30:18 Peter: Right.

30:19 Rhiannon: Right and the rule is actually that the court should avoid weighing in on constitutional questions if it doesn't have to. So, once you determine that the commerce issue was questionable, if there was an alternative rationale to use, to avoid ruling on that, he's supposed to take that alternative rationale. So, in this case, that's the tax rationale.

30:37 Michael: Right, exactly. This is one of the oldest principles of the court. It goes back to 1800 and back then, they used it the way Roberts does here. You start like, "Oh, is this interpretation constitutional? Yes? Okay, No? Well, then we move on to this other interpretation," and if not, then down the line, until you run out of interpretations and it's struck down, or you find one that works.

31:03 Peter: Right.

31:03 Michael: So in 1909, the Supreme Court explicitly shifted gears on this and looked at the old rule and said, "Look, that can't be right." What Roberts is doing right here, can't be the proper way to analyze these questions.

31:14 Peter: Yes.

31:16 Michael: And what we have to do instead is say, "Look, if there's one interpretation that gives rise to constitutional questions and one that does not, then we take that second interpretation, that second construction.

31:29 Peter: Avoid fucking with the Constitution where you can.

31:32 Michael: Right, exactly.

31:33 Rhiannon: Right.

31:33 Michael: And so this is like, it's fucking devious. He makes it seem like he's being non-partisan and principled and going out of his way to follow the standard practice, but what he's actually doing is really just judicial activism. There's no other way to describe it, to do something very reactionary with the Commerce Clause.

31:51 Peter: So, I think there's a broad question that a lot of our episodes and a lot of the things we say, sort of inherently asks, which is, are they faking it?

[laughter]

32:03 Peter: Like when John Roberts gives these ludicrous definitions of regulating commerce, is he snickering to himself like, "These stupid fucks," or...

[laughter]

32:17 Michael: Does he think he's like sliding one in by us.

32:17 Peter: Is he a true believer?

32:20 Michael: Yeah.

32:20 Peter: And I think the answer to that, 95% of the time, is that they are true believers.

32:26 Michael: Yeah.

32:26 Peter: Just like anyone else, they are not super conscious of their biases and they're sort of rolling with it, and part of their brain is guiding them towards the outcomes that they want, just like anyone else. If you've ever been in an argument with someone on a message board, it's not drastically different than that. [chuckle] It's a lot closer to that, than anyone would like.

32:48 Michael: Right. I mean look, it's very easy to convince yourself of something that's flattering and what you want. Like I'm sure that I'm like a 10. [laughter] If I just could talk to Emma Watson for five minutes...

33:01 Peter: Right.

33:04 Michael: I would fucking...

[laughter]

33:06 Rhiannon: You got it in the bag bro.

33:08 Peter: I believe that about you too dude.

[laughter]

33:10 Peter: I think you could do it.

33:11 Rhiannon: Yeah, yeah.

33:11 Michael: Thanks buddy.

[laughter]

33:15 Peter: Yeah, I think that there's a real, I don't wanna do too much armchair psychology, right? [chuckle] But there's a lot to be said for the ability of the human mind to convince itself of the propriety of the conclusions it had snapped to in an instant, right?

33:31 Michael: Right.

33:32 Rhiannon: Yeah.

33:32 Peter: And I don't think that John Roberts is taking a huge step back with a fucking giant white board with an evil plan on it or anything.

[chuckle]

33:41 Michael: Right.

33:41 Peter: He's just a slave to his biases and not willing to confront them in any meaningful way.

33:48 Michael: Right.

33:48 Rhiannon: Yeah, I think that's right.

33:48 Peter: And for our purposes, the distinction doesn't matter. And that's why I'm gonna never stop calling these people fucking evil and stupid or whatever, because their good faith in these situations, maybe it exists, but it doesn't matter for the fucking millions of people, that are under their yoke.

34:08 Michael: [chuckle] Right.

34:08 Rhiannon: Yeah.

34:08 Michael: Right.

34:09 Peter: Alright. So there's a part two to the ObamaCare case, and that is the Medicaid expansion. And this part of ObamaCare simply expanded Medicaid coverage, Medicaid, you know provides health insurance to the impoverished, to a broader subset of the population, up to those making 138% of the federal poverty level. The specific part of the law challenged here is not really the expansion per se, but part of its administration. Medicaid is ostensibly a federal program, but it is administered by the states who rely on federal funding to pay for it. So, the ACA, ObamaCare required that states comply with the new alterations to Medicaid or else lose potentially all of their Medicaid funding.

34:57 Rhiannon: Yeah.

34:58 Peter: And the argument is that this is unconstitutional because it's coercive. It's long been established that the federal government is allowed to attach conditions to funding given to the states, as long as those conditions are appropriately related enough to the purpose of the spending. And the definitive case on that is South Dakota v. Dole, a 1987 case which held that the federal government could require states to raise their drinking age to 21, if those states wanted to receive federal highway funds. And it said that it could, you know that those things are related enough, drinking, highways. You know, the drunk driving was the concern, but that case also had a throwaway line saying that if the feds left the states with "no practical choice other than to accept a condition, that law could be potentially struck down as coercive."

35:50 Rhiannon: In basic terms, the argument is that, the states here couldn't realistically forego all of their Medicaid spending because it's too important.

36:00 Michael: Right.

36:00 Rhiannon: So, the law is coercive.

36:02 Michael: Right.

36:03 Rhiannon: And he has a quote here on this, "In this case, the financial "inducement" Congress has chosen is much more than "relatively mild encouragement." It is a gun to the head."

36:16 Peter: It's literally free money.

[laughter]

36:19 Michael: Yeah.

36:20 Rhiannon: Yeah, calm down. In the episode on Shelby County, the voting rights case, we talked about John Roberts and his awful analogies, [laughter] and here's another one. This drama queen shit, that's not good argument. [chuckle] This is hyperbole.

36:35 Peter: To say the least. So, it's not just that the court took this throwaway line and used it to manufacture a doctrine with massive implications for the health care of millions of people, although that is important. This is fundamentally absurd, right?

[laughter]

36:52 Peter: The federal government designs and funds the Medicaid program and administration is handled by the states. States can opt out, but none currently do, because it's a huge amount of money to benefit your citizens. This is a circumstance where the federal government is saying, "Okay, here are the new terms of the Medicaid program. If you don't agree with those terms, you don't get funding for the program."

37:14 Michael: Right.

37:14 Peter: To say, that is a reasonable requirement, is to put it lightly. Right?

[chuckle]

37:18 Rhiannon: Yeah.

37:18 Peter: It's not just reasonable, it's the only conceivable way, you could run a program like this. The feds are saying, "Okay, here's the money and here's the program we want you to use it for," and the states are like, "Cool dude. Thanks for the money, but we're actually gonna go another direction with the program."

[chuckle]

37:34 Peter: And the court is saying, "Yeah, they should be allowed to do that." It's absurd.

37:38 Michael: Yeah, it can't be the case that Congress is constitutionally prohibited from ending Medicaid. Right?

37:43 Peter: Right.

37:44 Michael: And it also can't be the case that Congress would then a week later or whatever, constitutionally be prohibited from passing a new more generous version of Medicaid that looks like this.

37:55 Peter: Yeah.

37:56 Rhiannon: Right.

37:57 Michael: But the court's saying, "Well, yeah, sure, maybe you could do that in two steps, but if you wanna collapse that into one step and make it an amendment to the existing law, that's a no go." It's fucking absurd.

38:06 Peter: Yeah. Alright, so to highlight a particular absurdity here, you could using the reasoning of the court, avoid this being unconstitutional if you simply established federal administration of Medicaid. Right?

38:20 Michael: Right.

38:21 Peter: Right now, the Federal Government gives money to the states, and they're like, "You administer this under these terms." But if the Federal Government were to eliminate the state's role, create a massive sprawling federal complex spanning the entire nation, under the court's reasoning, that is a more appropriate use of federal power than delegating the administration to the states.

38:45 Michael: And simultaneously shrinking the size of all the state governments while massively expanding the size of the federal government would be more respective of the federal state balance.

38:58 Peter: Right.

39:00 Michael: Then just...

39:00 Peter: Absurd on its face. It's absurd on its face.

39:02 Rhiannon: Yeah, and so there are some definite legal implications of this decision, some consequences that we maybe not necessarily have seen totally play out yet.

39:11 Peter: No, no.

39:12 Rhiannon: But this case opens the door for absurdity all around. One area that's called into question is environmentalism. So the Clean Air Act, the Environmental Protection Agency has long denied federal funding to States who refuse to meet air quality standards. But following NFIB, this was challenged by such upstanding organizations as the Texas Pipeline Association, shout-out, and the Gas Producers Association.

39:43 Peter: Oh yeah.

39:45 Rhiannon: These guys are saying that the EPA tying those federal funds to states complying with the air quality standards, that that's coercive, just like the states are saying in NFIB.

39:58 Michael: Very sympathetic plaintiffs there.

40:00 Peter: Well, I hope that the Gas Producers Association is doing okay.

[laughter]

40:03 Michael: Yeah, that's...

40:06 Peter: More of the business jargon [chuckle] plaintiffs, Texas Pipeline Association, Gas Producers Association, start throwing in some awful commodities [chuckle] like fucking gas and shit, and it gets even worse. Just, like, the Human Blood Association.

40:22 Michael: That is very sick.

40:27 Peter: [chuckle] These people are fucking psychotic.

40:27 Rhiannon: Human Blood Association...

[laughter]

40:30 Rhiannon: Yeah, and so the challenge to the Clean Air Act that failed in that case, but a similar litigation has sprung up elsewhere. Now, another area where NFIB opens up some serious legal questions is lots of civil rights statutes are enacted under Congress's spending power, and even though they've been upheld following this kind of challenge in the past, this NFIB decision maybe opens that question back up. So, for example, Title IX prohibits sex discrimination in federally funded education programs. Title IV prohibits race discrimination in federally funded programs. And another big statute, the Rehabilitation Act prohibits discrimination based on disability in federally funded programs. All of those statutes condition receipt of federal funds on the state's agreement to follow these laws about non-discrimination.

41:27 Peter: Right.

41:28 Michael: Right.

41:29 Rhiannon: And so now if a plaintiff wants to say those things are coercive, the NFIB decision opens that up to like, "Is the court gonna agree with that?"

41:38 Peter: Right, right.

41:39 Rhiannon: And I think that's scary because our nation's history shows clearly that states can't be trusted with treating their citizens like they're human beings. States have to be...

[chuckle]

41:49 Michael: Some citizens.

41:52 Peter: And some states.

41:53 Rhiannon: Right, right. States have to be incentivized to do so or they won't.

41:55 Peter: Yeah.

41:55 Michael: Yes.

41:56 Rhiannon: And also casually, they'll start a civil war over it, they don't give a fuck.

41:58 Michael: For real.

42:01 Rhiannon: This decision in NFIB makes it easier for states to say that being incentivized to do right by their citizens is intolerable coercion.

42:10 Peter: Right.

42:11 Michael: Right.

42:11 Peter: And just, I can't stress it enough, fundamentally absurd. The government is saying, "Here's this money and here's what we want you to do for it." And the court is saying, "No, no, no, no, that's too much money. You can't tell them what they have to do with it." It's absurd.

42:28 Michael: And the key distinction that Roberts hangs his hat on is to hold this unconstitutional is he says that, "Expanding the definition of who is eligible for Medicaid actually counts as a separate and distinct program for Medicaid," which is just such obvious bullshit.

42:48 Peter: This has come to be emblematic of how political the Roberts Court is and how crafty Roberts can be.

42:55 Michael: Yeah.

42:56 Peter: Although I don't think he tricked anyone who really understands the law, he has a reputation now as someone who's willing to cross the aisle, which as we talked about before, not only is that not something he does, he does it worse than almost anyone.

43:12 Rhiannon: Right.

43:13 Michael: Right. But this case actually got him a reputation with some of the fucking stupider members of the Republican base as being like the traitor, the Republican traitor.

43:21 Rhiannon: Yeah.

43:22 Peter: They think that he sold them out because their political motivations are incredibly narrow and petty, and he has a longer standing project in mind.

43:34 Michael: Right.

43:34 Peter: One thing that we want you to take away from this, and a lot of our cases is, you don't have to accept the premise that the court presents to you, or the premises that the court presents to you.

43:42 Michael: Right.

43:42 Rhiannon: Yes.

43:44 Peter: Constitutional avoidance, textualism, legislative prerogative, judicial overreach, these aren't doctrines or concepts that the court rigidly or consistently applies. They are tools in a judge's arsenal to get where they are trying to go.

44:00 Michael: Right.

44:01 Peter: They're selectively deployed and they're often deployed in bad faith, and if you try to formalistically parse exactly why they're being deployed in one instance and not another, you're not being a good lawyer, you're not being clever, you are just a fucking mark.

44:14 Michael: That's right.

44:16 Peter: And I wanna mention one thing about this case in particular, and about Medicaid expansion, which is that, giving states the ability to functionally opt out of the Medicaid expansion, which is what this decision ultimately does, has almost certainly been directly responsible for the deaths of thousands of people and the decline in the mental and physical well-being of many, many more.

44:38 Michael: Absolutely.

44:39 Rhiannon: Yeah.

44:40 Peter: Multiple studies found that expansion was associated with significantly greater increases in overall cancer diagnosis rates, early stage diagnosis rates, and higher utilization of cancer surgeries. Recent evidence demonstrates that Medicaid expansion, in states where they did expand it, have seen improvements in access to medications and services for the treatment of behavioral health, and I'm just giving a couple of examples, right?

45:03 Michael: Right.

45:05 Peter: At the feet of all of this pseudo-formalistic gibberish lies vast amounts of actual human suffering.

45:13 Rhiannon: Right.

45:14 Peter: And that's the result of this case and a fucking million others, and a legal system that does not meaningfully reckon with that, is simply not adequate.

45:21 Michael: That's right.

45:21 Rhiannon: Tell 'em, yes.

45:24 Michael: Fuckin' preach.

45:24 Peter: It is unbelievable how many programs that are designed for the well-being of especially the poorest and most vulnerable citizens in this country are tied to programs like this, right?

45:36 Michael: Right.

45:37 Peter: And it's hard for me to imagine that, especially as the court gets increasingly polarized, in the event especially that RBG dies while Trump is president or some other fucking monster is president, you will see these arguments start to crystallize and start to encroach upon more and more federal power, which means giving power to states and taking away funding from programs that help the needy.

46:07 Michael: And it's important to emphasize the Roberts' two-step that we discussed, where he lays the groundwork in an opinion that seems pleasing to liberals and then uses that groundwork to fucking gut them, that's about appearance. That's not formally necessary. And the other conservatives of the court have shown a willingness to skip any appearance of propriety or moderation and just go right for the fucking throat. And the fact that Roberts, we strongly suspect this is just the first volley for him, we shouldn't be concerned about the specifics of this decision, because one of our points is that the actual legal arguments are really ancillary, right?

46:55 Peter: Yeah.

46:56 Rhiannon: Yeah.

46:57 Michael: It's the political agenda, and it's the movement's goals that matter. They'll find arguments to get them there, and this case isn't really different. It's just the way that Roberts slow rolls the process.

47:06 Peter: Right. So one of the lingering questions here is: Where does this leave us for the next five, 10, 20 years in terms of legislative options for healthcare?

47:18 Michael: Right.

47:19 Rhiannon: Yeah.

47:19 Michael: And in the Democratic primaries, there were a lot of different plans that were thrown out, and sort of ironically a little bit, the more moderate plans under the logic of this opinion are maybe more vulnerable.

47:33 Peter: Yeah.

47:33 Rhiannon: Yeah.

47:34 Michael: Like Medicare for All could look a lot like social security, which is definitely robust and resistant to this sort of opinion, whereas Pete Buttigieg's middle ground, where you have a public option that people are auto-enrolled in, looks a lot like a more strenuously enforced mandate, the type of thing that the court might be, under this logics, very suspicious of.

47:54 Rhiannon: Right. You wouldn't even be buying it, you would automatically be enrolled.

47:58 Michael: Right. The government would be just buying it for you with your money. [chuckle] Oh my fucking...

[overlapping conversation]

48:06 Peter: Yeah, but the other side of that though, is that if this court finds an opportunity to strike down Medicare for All, even though it's not susceptible to these arguments in the same way, I fuckin' promise you...

48:19 Michael: Yeah.

48:20 Peter: They will.

48:21 Peter: I think that's right.

48:22 Rhiannon: Oh yeah, absolutely.

48:23 Peter: And they'll probably do it in a similar way to what they did here, because this is like the Roberts' special, you don't strike it down, you gut it.

48:30 Michael: Right.

48:30 Peter: And that's what they did to ObamaCare, that's what they're going to do to Medicare for All, if the option is ever presented to them, which...

[laughter]

48:43 Peter: Hell world. So no, probably won't happen. But yeah, I think it's important to realize that they're not constrained by their reasoning, but if you look at the reasoning, it makes more sense that Medicare for All would get by it than some half-washed bullshit like Pete Buttigieg's plan.

[music]

49:03 Peter: Alright, next episode is Trump v. Hawaii, better known as the Travel Ban case, or in less PC terms, the Muslim Ban case. We're going hard, and it's our first Trump Administration case. Obviously, we're big supporters, but in this particular instance, [chuckle] we are not fans of the position his administration took.

49:29 Michael: Right. [chuckle] This one narrow case.

[music]

49:34 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.

49:57 Leon: From the Westwood One Podcast Network.

[music]