Two Conceptions of Liberty in ACA

March 28th, 2012

From Florida v. HHS.

From the Solicitor General, quoting “blessings of liberty” from the Preamble

There is an important connection, a profound connection between that problem and liberty. And I do think it’s important that we not lose sight of that. That in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.
And the same thing will be true for — for a husband whose wife is diagnosed with breast cancer and who won’t face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone and I can multiply example after example after example. In a very fundamental way this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. 

From Paul Clement:

Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism

And that right there is the difference between the inevitable majority and dissenting positions.

Update: David Bernstein write’s about Verrilli’s reliance on the Preamble:

I find this an odd strategic choice for Verrilli to have made in his very last remarks to the Court.  It’s not uncommon for liberals to refer to the Constitution’s preamble–We the People, in order to form a more perfect Union, establish Justice, ensure domestic tranquility, provide for the common defense, promote the General Welfare and secure the Blessings of Liberty–as a counterweight to the notion that the federal government’s powers are significantly limited by their enumeration.  But I’ve never heard of a conservative buying into the idea that the goals set forth in the preamble have any particular weight in constitutional interpretation, at least not when set in opposition to specific constitutional provisions.  Indeed, if anything, I think a typical reaction of Federalist Society types is that reliance on the preamble of the last refuge of those who don’t have a serious constitutional argument to make; “you mean you’re not an originalist or a textualist and you want us to engage in ‘living constitutionalism’ with regard to all sorts of very specific and substantive constitutional provisions, but then you want us to take the preambleseriously?”

This strikes me as part of a pattern I detect throughout this litigation and especially in the SG’s oral argument: the government’s lawyers seem to have no idea how conservative jurists typically think about  the Constitution.  Instead, they make arguments that would get almost unanimous nods of approval in the Harvard (or Columbia, the SG’s alma mater) Law School faculty lounge, but are not remotely persuasive to the other side.

I had a similar reaction to David. Verrilli was articulating the positive liberal view of liberty (which Dahlia Lithwick captures in this piece). I recognize that it is usually bad form to address arguments to a specific Justice, but if there was ever a case, this was it. He should have been articulating a conservative/libertarian explanation. However, he did not. Is it because he was unable to do so? Certainly not. Lawyers take cases they do not agree with. Rather, I think the Solicitor General simply was speaking from his heart, and this was the best he could muster, because this is what he had always been taught, and what he believed. Clement argued the conservative/libertarian view of negative liberty.

Look how Dahlia described Liberty:

This morning as the justices pondered whether the individual mandate—that part of the Affordable Care Act that requires most Americans to purchase health insurance or pay a penalty—is constitutional, we got a window into the freedom some of the justices long for. And it is a dark, dark place. It’s always a bit strange to hear people with government-funded single-payer health plans describe the need for other Americans to be free from health insurance. But after the aggressive battery of questions from the court’s conservatives this morning, it’s clear that we can only be truly free when the young are released from the obligation to subsidize the old and the ailing. . . .

Freedom also seems to mean freedom from the obligation to treat those who show up at hospitals without health insurance, even if it means letting them bleed out on the curb. . . .

Freedom is the freedom not to rescue. Justice Kennedy explains “the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.” . . .

Freedom is to be free from the telephone. . . . Freedom is the freedom not to join a gym, not to be forced to eat broccoli. It’s the freedom not to be compelled to buy wheat or milk. And it’s the freedom to purchase your health insurance only at the “point of consumption”—i.e., when you’re being medivaced to the ICU (assuming you have the cash).

But we seem to want to be free from that obligation as well. This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

The emphasized passage sums it up nicely. Lithwick, and likely Verrilli, probably could never conceive how anyone could hold a negative view of liberty–to them, positive liberty is where it is at.

Liberty, in so many respects, has become a cliche. A trite saying used over and over again, without much meaning.

But here, the inability of supporters of the healthcare law to grasp what liberty means for its opponents was an abysmal failure on their part.

Update: More from Adam Liptak:

The way to frame a Supreme Court argument meant to persuade Justice Anthony M. Kennedy is to talk about liberty. It is his touchstone and guiding principle, and his conception of liberty is likely to determine the future of President Obama’s health care law.

If the administration is to prevail in the case, it must capture at least one vote beyond those of the court’s four more liberal justices, who are thought virtually certain to vote to uphold the law. The administration’s best hope is Justice Kennedy.

The point was not lost on Solicitor General Donald B. Verrilli Jr., who concluded his defense of the law at the court this week with remarks aimed squarely at Justice Kennedy. Mr. Verrilli said there was “a profound connection” between health care and liberty.

“There will be millions of people with chronic conditions like diabetes and heart disease,” he said, “and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”

Paul D. Clement, representing 26 states challenging the law, had a comeback. “I would respectfully suggest,” he said, “that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”

Justice Kennedy’s understanding of liberty is idiosyncratic, and there is every reason to think that both lawyers’ arguments in the concluding minutes of the argument on Wednesday afternoon resonated with him, said Helen J. Knowles, the author of “The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty.” (The title is telling. Another book on the justice, by Frank J. Colucci, is called “Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty.”)