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I have heard a number of murmurs from the Romney campaign over the last few months regarding a decision not to scrap the entire ACA root and branch. Today, Romney said as much on Meet The Press.

When the show’s host, David Gregory, asked Mr. Romney what elements of Mr. Obama’s health care program he would maintain, Mr. Romney said he would still require that insurance companies cover those with pre-existing conditions, just as the president’s law has.

“I’m not getting rid of all of health care reform,” Mr. Romney said, while emphasizing that he planned to replace the president’s plan with his own. “There are a number of things that I like in health care reform that I’m going to put in place. One is to make sure that those with pre-existing conditions can get coverage.”

I wonder, just wonder, if instead of passing the massive Affordable Care Act, Obama had tried to pass a more limited act that took on pressing problems, like pre-existing conditions, and the like (this was his strategy during the campaign). Would the opposition have been as strong? Would the President have taken such a big hit to his mandate (no pun intended)? Would John Roberts have not lost so much sleep? Well, for sure, I wouldn’t have gotten a book deal. So I guess that is one plus.

Also Romney had this to say about the Supreme Court and the Constitution:

Pressed on his social views, Mr. Romney reiterated that he did not think that taxpayers should have to pay for abortions and that he wanted Supreme Court to overturn Roe v. Wade.

Reminded that he had once called himself a “severe” conservative, Mr. Romney seemed to play down that description. “I am as conservative as the Constitution,” he said.

Judge Posner is working on a piece in The New Republic about the Constitution of Mitt Romney as we speak.

Update: It seems Romney was for keeping parts of the ACA before he was against it:

In an interview Sunday on Meet the Press, Mitt Romney said we would keep parts of health care reform. The statement from Romney reflects an earlier position he held, just after health care reform was passed and before the Republican primary in which he said he “like some of the similarities” in ObamaCare to RomneyCare. Romney said he would “repeal the bad and keep the good” while mentioning the coverage for preexisting conditions, as well as the individual mandate were good aspects of ObamaCare like he mentioned today.

I really don’t think he still feels that the individual mandate is a good aspect. If you watch this video, there are only a few differences he does not like. The first is that the ACA is a federal plan while RomneyCare is a state plan. The former is bad, the latter is good. Romney says he is a “federalist” and some junk about the 10th Amendment. Second, he complains that the ACA raises taxes (paging John Roberts). So how do we keep a mandate that is a tax but is not a tax? Third, he complains that the ACA cuts medicare. Fourth, he opposes the ACA’s price controls.

So, what would that mean? If you repeal the bad about the fact that it is a federal mandate rather than a state mandate, the entire thing disappears. If you repeal the tax than the mandate is gone, though Romney likes the idea o fa mandate. So just restore funding to medicaid? The one thing the Court actually found unconstitutional is the thing Romney would get rid of. That makes some sense, I suppose.

Update: From National Review, this non-response from the Romney campaign:

Eliana, I reached out to the Romney campaign for clarification about Mitt Romney’s remarks this morning about liking some parts of Obamacare. An aide pointed out that Romney first said on Meet the Press that “I say we are going to replace Obamacare. And I am replacing it with my own plan.”

In reference to how Romney would deal with those with preexisting conditions and young adults who want to remain on their parents’ plans, a Romney aide responded that there had been no change in Romney’s position and that “in a competitive environment, the marketplace will make available plans that include coverage for what there is demand for. He was not proposing a federal mandate to require insurance plans to offer those particular features.”

Update: I always laugh when older people refer to sandals as thongs. I prefer flip flops. Speaking of which, it seems the etch-a-sketch keeps shaking:

After Mitt Romney said on NBC’s “Meet the Press” Sunday that there were certain parts of Obamacare that he liked, a campaign aide confirmed to BuzzFeed that one of the elements that a Romney health care overhaul would be a guarantee that people with pre-existing conditions can’t get kicked off their health insurance plans.

“Gov. Romney will ensure that discrimination against individuals with pre-existing conditions who maintain continuous coverage is prohibited,” the aide said.

The statement stands in contrast to a report in National Review Online earlier Sunday, which quoted an anonymous aide saying Romney would allow “the martketplace” to sort out coverage for such people.

The aide pointed to an occasion earlier this summer when Romney firmly staked out support for insuring people with pre-existing conditions.

However, without an individual mandate — which Romney has repeatedly opposed — it’s unclear how he would ensure such coverage.

Neera Tandon, Byron York, and Jonathan Chait are currently arguing on Twitter. I’ll update later.

Update: More explications from Ezra Klein how Romney would ensure deal with pre-existing conditions without a mandate:

This isn’t the first time that Romney has endorsed that position: Back when the Supreme Court was about to issue its decision on Obamacare, his spokeswoman Andrea Saul laid out a few more of the policy points.

Andrea Saul confirmed that the former governor does not support the across-the-board consumer protections for pre-existing conditions as written into Democrats’ health care law.

“Governor Romney supports reforms to protect those with pre-existing conditions from being denied access to a health plan while they have continuous coverage,” she said first in a statement to the Huffington Post later obtained by ABC News.

It makes sense, politically, to support the end of pre-existing conditions: It regularly polls as one of the health-care law’s most popular provisions.

Policy-wise, however, there’s a significant amount of space between “ending pre-existing conditions” and “ending pre-existing conditions [with continuous coverage].” Under the former scheme, insurers cannot deny coverage to an individual — no matter what. Under the latter, insurers can, in certain situations, refuse to cover some individuals.

The idea of “continuous coverage” is pretty much what it sounds like: Under the scheme Saul laid out earlier, an individual who kept buying insurance month after month could not be turned away by an insurance company. The goal is to create an incentive for healthy people, who don’t think they really need coverage, to keep paying monthly premiums — ensuring that they would have access to health insurance if their health should take a turn for the worse.

And this from National Affairs on how to cover pre-existing conditions through high-risk pools.

This approach to covering pre-existing conditions would not be inexpensive, of course. But its price tag would be tiny compared to the recent health-care bill’s. And using high-risk pools to cover people who are uninsured because of pre-existing medical conditions would not cede all power over our health-care system to bureaucrats in Washington. Nor would it disrupt insurance arrangements that are working well for the vast majority of Americans. It would leave in place the many protections already available to people in the much larger employer-based insurance market. Indeed, it would likely ease cost pressures on many Americans who are currently insured — by properly funding high-risk individuals who are now pushing insurance premiums up for everyone.

The many advantages of high-risk pools create an opening for opponents of Obama’s approach. Critics should seize the chance to present a coherent case to the public for replacing the deeply flawed new law — advancing in its place a series of targeted, incremental solutions to the specific problems plaguing our health-care system.

Justice Kagan took a very apolitical view of her Court, and sought to have the Justices vote more unpredictably.

“There is not a single member of this Court, at a single time, who has made a decision, who has cast a vote, based on do I like this president, do I not like this president … will this help the Democrats, will this help the Republicans?” she said. “It is just not the way any member of the Court thinks.”

Still, she said, “There are certain substantive matters that we divide on because we approach Constitutional decision-making in a different sort of way, because we bring different methodologies to the table, because we have different views about governing precedents and how broad or narrow those precedents are.” The Court, she added, would be better off “if we had fewer of these 5-4 cases. … I would like to have a Court where there’s more unpredictability of decision-making.”

Unpredictable votes? That would be a fantasy Supreme Court.

Kagan also had interesting remarks about cameras in the Court, the power of law clerks, and her duty on the cafeteria committee:

• aid she used to support allowing cameras into Supreme Court oral arguments, but now wonders whether that would make the institution work “less well,” in part because of her concern that a clip would end up, out of context, on the evening news
• Said that questioning by the justices during oral arguments has grown more detailed and intense in recent years, starting with Scalia, whose view was: “We’ve all read the brief.… Let’s try to make this hour of our day useful”
• Disputed a belief that clerks have too much power and influence on the Court’s decisions. “The notion that these 28-year-olds are deciding cases? They’re not.” Clerks are very helpful, though, at deciding which cases the Court should take
• Pointed out that she, as the junior justice, has to open the door when justices are in conference and a staff member for a fellow justice drops off, say, a cup of coffee or the justice’s glasses; take notes; and serve on the Supreme Court cafeteria committee (where she made the popular decision of having a frozen yogurt machine brought in).

H/T How Appealing

From the moment the ACA was enacted, most people surmised that it was on a collision course with the Supreme Court. Attorneys from Florida and Virginia filed complaints moments after the bill was signed. At the beginning, many assumed that such a constitutional challenge was farcical. How that understanding of the law changed is the subject of other works. My aim here, is to question whether there any other laws that were subject to a constitutional challenge from their very outsets.

Most of the Federalism Revolution cases from the 1990s concerned laws that were not too controversial from a constitutional perspective when enacted–such as the Violence Against Women Act, the Gun Free School Zones Act, or the Religious Freedom Restoration Act. The Controlled Substance Act–the subject of the Gonzales v. Raich, had been on the book for decades. The gun control statutes in D.C. and Chicago also had been on the books for years. These constitutional challenges were more haphazard, in the sense that the laws did not sustain a long-standing constitutional challenge.

The ACA, from even before its birth, had a constitutional bullseye on its back.

One big case comes to mind–the National Recovery Act, targeted by the Liberty League for a constitutional challenge from its beginning. Other New Deal legislation falls into this category. Perhaps the Civil Rights Act, which I know was subject to numerous filibusters, followed by constitutional challenges.

Any other cases come to mind?

The fact that a law of such magnitude was so unpopular at its enactment, passed along straight partisan lines, provided a lot of ammunition to its ultimate near-demise.

 

For some time, I have been researching and developing what I call “Assisted Decision Making” (see this presentation I gave at LawTechCamp London, and this article I authored about the future of FantasySCOTUS). Assisted Decision Making is a system in which technology can understand how courts resolve cases, and offer advice to potential litigants.

I am very pleased to see that Chad Oldfather, along with Joseph Bockhorst and Brian Dimmer, have authored an article in the Florida Law Review that explores this area. Here is the abstract of Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Methodology of Legal Scholarship:

The increasing availability of digital versions of court documents, coupled with increases in the power and sophistication of computational methods of textual analysis, promises to enable both the creation of new avenues of scholarly inquiry and the refinement of old ones. This Article advances that project in three respects. First, it examines the potential for automated content analysis to mitigate one of the methodological problems that afflicts both content analysis and traditional legal scholarship — their acceptance on faith of the proposition that judicial opinions accurately report information about the cases they resolve and courts‘ decisional processes. Because automated methods can quickly process large amounts of text, they allow for assessment of the correspondence between opinions and other documents in the case, thereby providing a window into how closely opinions track the information provided by the litigants. Second, it explores one such novel measure — the responsiveness of opinions to briefs — in terms of its connection to both adjudicative theory and existing scholarship on the behavior of courts and judges. Finally, it reports our efforts to test the viability of automated methods for assessing responsiveness on a sample of briefs and opinions from the United States Court of Appeals for the First Circuit. Though we are focused primarily on validating our methodology, rather than on the results it generates, our initial investigation confirms that even basic approaches to automated content analysis provide useful information about responsiveness, and generates intriguing results that suggest avenues for further study.

Much of the article focuses on judicial responsiveness–that is, how do courts react to things that litigants do.

Using a set of briefs and opinions from the First Circuit, we have investigated two automated measures of judicial responsiveness both of which avoid the practical difficulties associated with manually assessing responsiveness, both of which employ a notion of the similarity between briefs and opinions. The first involves assessing document similarity through analysis of textual content of briefs and opinions. The second utilizes a similar methodology applied to citations to authority; that is, we assessed the extent to which opinions cite to the same legal authorities as relied upon by the parties in their briefs. In order to test the validity of these measures, we also undertook the sort of full-scale assessment of a set of cases outlined in the preceding paragraph, reviewing the briefs and opinions in depth and coding them for responsiveness.

More importantly, the article assesses how this information can benefit litigants.

Measures of judicial responsiveness are potentially valuable in at least four broad respects regardless of one‘s preference for judicial passivity . . . .  Third, this line of research might yield payoffs to advocates. To the extent that it becomes possible to know specifics about what triggers greater responsiveness— such as, for example, whether the filing of a reply brief has an effect— lawyers will be able to adjust their efforts accordingly.16  . . . .

Finally, this line of research may yield insights that are useful to practicing lawyers, and to those who teach advocacy. One can imagine, for example, large-scale analysis of the relationships among briefs and opinions generating information about the relative utility of briefing practices and approaches. It may tell us something about whether reply briefs matter, or whether response briefs should place relatively greater emphasis on engaging with the opponent‘s arguments or developing their own. It could also facilitate quantitative assessment of lawyering skills, such as enabling assessment of the relative quality of public defenders and private counsel in criminal appeals, or comparisons of specialists and non-specialists.

Randy Barnett reviews Akhil Amar’s new book, “America’s Unwritten Constitution,” in the WSJ. Before I address Randy’s analysis of the book, I would first like to focus on some of our Godfather’s explication of NFIB v. Sebelius–as it is somewhat in line with my recent thoughts about how this case highlights a broad jurisprudential divide.

Randy echoes a theme Joel Alicea’s developed in his analysis of a break in conservatives in the last few decades. First there are the old-school conservatives, in the mold of Bickel, whose focus is on restraint, and not striking down popularly enacted laws. This is evidenced by Roberts’s opinion in NFIB. Second, there are the new school conservatives, in the mold of Thomas (and to a lesser extent Scalia) who are not as opposed to striking down a law when it is inconsistent with original meaning. Randy calls the former school “judicial conservatism” and the latter “constitutional conservatism”–most recently associated with the Tea Party.

Mr. Amar’s book arrives at a turning point in constitutional law. There is for the first time a popular political movement on behalf of the written Constitution, especially its power-constraining clauses. This “constitutional conservative” movement is famously associated with the Tea Party, but extends well beyond. Constitutional conservatives don’t yearn for a bygone age of Supreme Court rulings. They realize full well that the Supreme Court once sanctioned separate-but-equal and a host of other sins. Instead, they desire to see the whole document enforced, not just selected parts.

Take the Second Amendment. Until 2008, the individual right to keep and bear arms had never been protected by the Supreme Court. Constitutional conservatives applauded the court for upholding this right in District ofColumbia v. Heller and then, in 2010, for applying that ruling to the states via the Fourteenth Amendment in McDonald v. City of Chicago.

Such enthusiasm suggests that constitutional conservatism is quite different from the “judicial conservatism” that has dominated conservative and libertarian legal thinking for over 30 years. Rather than enforcing the Constitution, judicial conservatism emphasizes the role of judges vis-à-vis the more democratic branches. In particular, it urges “judicial restraint” and deference to Congress and state legislatures—even when what is at issue is the scope of these legislatures’ own power. Above all else, judges should strive to uphold legislation. So, for example, federal appellate Judge J. Harvie Wilkinson, a prominent judicial conservative, harshly condemned the Hellerand McDonald decisions as instances of “judicial activism.”

Judicial conservatism was most recently illustrated by Chief Justice John Roberts’s opinion in the Obamacare case, National Federation of Independent Business v. Sebelius. Having agreed with the four conservative justices that the individual health-insurance mandate was unconstitutional under the Commerce Clause, Chief Justice Roberts adopted a “saving construction” by which he eliminated Obamacare’s “requirement” to buy insurance. By converting the now infamous “individual mandate” into an “option” to buy insurance or pay the remaining “penalty,” he could then uphold the “penalty” as a tax. Then, by similarly rewriting the Medicare requirement being imposed on the states, he was able to “defer” to Congress and uphold the rest of Obamacare. In short, Justice Roberts rewrote the statute so that he could save it in the name of “judicial restraint.”

In contrast, progressive judges and professors typically emphasize a “living constitution.” By their lights, the meaning of the Constitution must evolve and grow to adjust to changing times. Living constitutionalists are famous for their elaborate rationalizations of constitutional doctrine that are unmoored from the text.

The Obamacare case exemplified all three methods of interpreting the Constitution. The four progressive justices adopted a living-constitutionalism approach in order to allow Congress, for the first time, to mandate that people engage in economic activity. The four conservative justices adopted the constitutional-conservative stance of holding Congress to its written enumerated powers. And the chief justice led from behind to agree with the conservative reading of the Commerce Clause—while ultimately “deferring” to Congress by upholding most of Obamacare.

The timing of this Op-Ed is fantastic, as just today I was analyzing NFIB v. Sebelius through these lenses. I certainly agree that Roberts fits into the “judicial conservative mold.” Though, I am not convinced that Randy’s characterization of the four conservative justices is entirely accurate.

The argument that the challengers brought against the ACA was decidedly not constitutional–at least in the originalist sense, as was in Heller. Randy and others made a very conscious decision not to bring a challenge asserting that the ACA is inconsistent with the Constitution’s original meaning. (Randy effectively conceded that it wasn’t.) Rather, the challenge was based purely on the Supreme Court’s own precedents. Even assuming that Wickard and Raich were correctly decided (a proposition that most libertarians would reject), the ACA went further than all other precedents in the past. Pardon the cliche (it never gets old for me), but this law was unprecedented.

So in this limited sense, I don’t know that the votes of Scalia, Kennedy, and Alito were constitutionally conservative in the same sense as their votes in Heller. Notice I did not include Justice Thomas in that list. His brief opinion in NFIB v. Sebelius is constitutionally conservative. He would have rolled back all precedents he viewed as inconsistent with the Constitution. Likewise, Thomas’s opinion in McDonald, jettisoning the Slaughter-House cases was constitutionally conservative. Roberts, Scalia, Kennedy, and Alito’s pathetic efforts in McDonald to maintain a precedent that everyone knows is wrong falls more into the judicial conservative mold.

Returning to the conservative Justice’s votes in NFIB v. Sebelius, I do not think they were either “Constitutional Conservative” or “Judicial Conservative.” Instead, I think the challenge launched against the ACA, which was largely grounded in what I see as a popular constitutionalist strategy, highlights a third path for conservatives on the bench. It was not grounded in some form of restraint, nor was it grounded in originalism. Of course, there is nothing novel about trying to distinguish one case from another (this case is unprecedented because it regulates activity as opposed to inactivity). However, what is novel was the popular and political support behind this challenge, from the leaders in the Republican Party, to the Tea Party, and to the American People by and large. This was a very concerted effort, closely integrated with the constitutional arguments. If the same legal argument had been presented without the groundswell of support, it would not have made it before. Rather, this popular constitutional support nearly pushed the argument over the broccoli finish line.

This third path will be the subject of a paper I am working on, aptly titled “Unprecedented.” I’ll be presenting it several times over the next few months. First, on Friday, September 14, at the South Texas College of Law. Second, on September 28 at the Medical Humanities Conference at Western Michigan University. Third, on October 19 at the Mid-Atlantic Law & Society Association at Drexel University. Fourth, on Friday, November 2 at the Loyola Constitutional Law Symposium at Loyola Chicago. Fifth, on Monday, December 3, at Larry Solum’s Constitutional Law Colloquium (I’ll post these to a Google Calendar shortly). Hope to see you around!

Oh, and going back to the review, I think this is what Judge Posner meant to write about Justice Scalia, in reverse–just with a hell of a lot more tact and grace:

Despite Mr. Amar’s best attempts to convince us otherwise, the danger of the unwritten Constitution remains. The label elevates non-constitutional authorities to a stature equal to, or even greater than, that of the written Constitution. Where Mr. Amar cannot make the written Constitution say what he wants, he can simply appeal to the unwritten Constitution to say the rest. And, judging from this book, the unwritten Constitution just happens to agree with everything Akhil Reed Amar believes is right and good.

Notwithstanding his purported textualism, in this highly engaging and thought-provoking book, Akhil Amar’s “unwritten Constitution” turns out to be just another living constitution, after all.