Thursday, June 28, 2012

Drum on Roberts

Now Kevin Drum has something semi nice to say about John Roberts. I lose it again in comments.

I think that if Roberts were to accept Roberts's ruling as a precedent (and pigs fly) then he would have to declare a repeal of the Medicaid expansion by a future congress to be unconstitutional. The principal appears to be that what a previous congress has give the current (or in this case the just past) congress can't take away. Of course I'm sure that he wouldn't dream of this.

Consider an example. The welfare reform act of 1996 placed new requirements on states required for them to get funding. They did not have the option to stick to old welfare with 50% Federal funding. How is it possible that the ACA is unconstitutional but Welfare reform was Constitutional ? In each case States used to get money under some conditions and later had to change things in order to get that money. Why can Congress compulsively reform Welfare but not Medicaid ? I think it is obvious that Roberts will not find welfare reform to be unconstitutional (and would refuse to even hear such a case). I think the reason is that the ACA expands social insurance while welfare reform contracted it. The constitutional argument (with which Kagan and Breyer agreed) is so absurd that I have no doubt that it was made only to support a political decision -- I'd guess a perceived need to balance the finding that the mandate taxes on people without insurance are constitutional.

I think it is obvious that Congress could have repealed Medicaid and replaced it with expanded Medicaid. The allegedly unconstitutional bill does just exactly that. I don't see how you can find Roberts's argument compelling.

You provide no explanation of your judgement which I think is inexplicable (Roberts certainly didn't explain his). This time I ask politely for information how the argument that Congress can't repeal an act of an earlier Congress (or that it must explicitly write that the previous act is repealed when, in effect, it supersedes it in a new act under pain of invalidation of the newer law based on caluse it isn't anwhere or article I don't you have in mind of the US Constitution).

Well I made a good faith effort to be polite and I really want to know. Do you think that Congress can't repeal Medicaid on the grounds that that would be unconstitutionally hard on states ? Or do you think that it must explicitly saying it is repealing and replacing an old bill and the absence of the words along the line of "the old Medicare act is repealed and replaced with this new expanded medicare program" rendered an otherwise constitutional bill unconstitutional ? Or is there some compelling logic which I haven't even imagined ?

No comments: