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President Obama authored a “special communication” in the Journal of the American Medical Association titled “United States Health Care Reform Progress to Date and Next Steps.” (I chuckled because his bio line says “Barack Obama, J.D.” as if his law degree matters at this point).

The only newsworthy element of the communication is that Obama has officially endorsed amending the ACA to include a  public option–which was blocked by moderate Democrats back in 2009.

Third, more can and should be done to enhance competition in the Marketplaces. For most Americans in most places, the Marketplaces are working. The ACA supports competition and has encouraged the entry of hospital-based plans, Medicaid managed care plans, and other plans into new areas. As a result, the majority of the country has benefited from competition in the Marketplaces, with 88% of enrollees living in counties with at least 3 issuers in 2016, which helps keep costs in these areas low.57,58 However, the remaining 12% of enrollees live in areas with only 1 or 2 issuers. Some parts of the country have struggled with limited insurance market competition for many years, which is one reason that, in the original debate over health reform, Congress considered and I supported including a Medicare-like public plan. Public programs like Medicare often deliver care more cost-effectively by curtailing administrative overhead and securing better prices from providers.59,60 The public plan did not make it into the final legislation. Now, based on experience with the ACA, I think Congress should revisit a public plan to compete alongside private insurers in areas of the country where competition is limited. Adding a public plan in such areas would strengthen the Marketplace approach, giving consumers more affordable options while also creating savings for the federal government.61

Last week, Hillary Clinton’s campaign website also endorsed the public option.

Continue to support a “public option”—and work to build on the Affordable Care Act to make it possible. As she did in her 2008 campaign health plan, and consistently since then, Hillary supports a “public option” to reduce costs and broaden the choices of insurance coverage for every American. To make immediate progress toward that goal, Hillary will work with interested governors, using current flexibility under the Affordable Care Act, to empower states to establish a public option choice.

When I finished writing Unprecedented in May 2013, I fully expected the ACA’s marketplaces to be unsustainable in the long term. From the Epilogue:

If the ACA continues to result in higher premiums and the consequent price controls aimed at controlling these rates nudge insurers to exit the market (insurers are already opting out of California’s exchanges), the mandate may serve as a mere pit stop on the road to single-payer health care (what progressives wanted but did not get in 2009).

I could not have anticipated this would take less than three three years! The marketplaces opened up on January 1, 2014!  And we are already seeing so many insurers exit the markets, that its supporters are backing a public option. The faustian pact the insurers made to support the ACA will become clear as the ACA unravels.

One of my biggest pet peeves in constitutional law is the conclusory statement that the Supremacy Clause, standing on its own, gives courts the power of judicial review, and the authority to invalidate state laws that conflict with the federal constitution. Justice Alito made this assertion in his dissent in Whole Women’s Health (which I only got to today):

Under the Supremacy Clause, federal courts may strike down state laws that violate the Constitution or conflict with federal statutes, Art. VI, cl. 2, but in exercising this power, federal courts must take great care.

No, it doesn’t. The Supremacy Clause provides:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Last time I checked, the word “court” appears nowhere in the Supremacy Clause. I drill my students on this point whenever someone says the Supremacy Clause gives courts this power. The text is silent about how it ought to be enforced.

This power, if it exists at all, comes from case law, not the Supremacy Clause. Ware v. Hylton (as far as I know) was the first time the Court set aside a state law, citing the Supremacy Clause. In this 1796 decision, the Court found that a Virginia statute that conflict with the Treaty of Paris could not be enforced. Granted the court didn’t actually strike down the law, but (another pet peeve), the entire notion of striking down laws is a myth. A declaration of unconstitutionality only means that the law cannot be enforced between the parties before the court. The Court doesn’t literally cut a page out of the state’s statute books.

The decision in Ware was seriatim, with separate opinions by Justices Chase, Patterson, Iredell (actually it was a reprint of his Circuit Court decision for the case), Wilson, and Cushing. (February 1796 was after the death of Chief Justice Rutledge and before the appointment of Chief Justice Ellsworth).

Justice Chase’s decision lays out the application of the supremacy clause to set aside a local law.

If doubts could exist before the establishment of the present national government, they must be entirely removed by the 6th article of the Constitution, which provides ‘That all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme law of the land; and the Judges in every State shall be bound thereby, any thing in the Constitution, or laws, of any State to the contrary notwithstanding.‘ There can be no limitation on the power of the people of the United States. By their authority the State Constitutions were made, and by their authority the Constitution of the United States was established; and they had the power to change or abolish the State Constitutions, or to make them yield to the general government, and to treaties made by their authority. A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If the Constitution of a State (which is the fundamental law of the State, and paramount to its Legislature) must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act *237 of the State Legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made, by the authority of the United States, shall be superior to the Constitution and laws of any individual State; and their will alone is to decide. If a law of a State, contrary to a treaty, is not void, but voidable only by a repeal, or nullification by a State Legislature, this certain consequence follows, that the will of a small part of the United States may controul or defeat the will of the whole. The people of America have been pleased to declare, that all treaties made before the establishment of the National Constitution, or laws of any of the States, contrary to a treaty, shall be disregarded.

Justice Cushing made a similar observation:

And, indeed, it cannot be denied; the treaty having been sanctioned, in all its parts, by the Constitution of the United States, as the supreme law of the land. Then arises the great question, upon the import of the fourth article of the treaty: And to me, the plain and obvious meaning of it, goes to nullify, ab initio, all laws, or the impediments of any law, as far as they might have been designed to impair, or impede, the creditor’s right, or remedy, against his original debtor. …

A State may make what rules it pleases; and those rules must necessarily have place within itself. But here is a treaty, the supreme law, which overrules all State laws upon the subject, to all intents and purposes; and that makes the difference.

To effect the object intended, there is no want of proper and strong language; there is no want of power, the treaty being sanctioned as the supreme law, by the constitution of the United States, which nobody pretends to deny to be paramount and controlling to all state laws, and even state constitutions, wheresoever they interfere or disagree.

 

The Court has made other supremacy clause errors recently in Montgomery v. Louisiana and DirecTV v. Imburgia,

A wonderful take on Yates v. United States.

Among the the other things the Inglorious RBG said in her interview with the New York Times, she offered a breakdown of the votes in the four-to-four affirmance in U.S. v. Texas.

A second deadlock, in United States v. Texas, left in place a nationwide injunction blocking Mr. Obama’s plan to spare more than four million unauthorized immigrants from deportation and allow them to work. That was unfortunate, Justice Ginsburg said, but it could have been worse.

“Think what would have happened had Justice Scalia remained with us,” she said. Instead of a single sentence announcing the tie, she suggested, a five-justice majority would have issued a precedent-setting decision dealing a lasting setback to Mr. Obama and the immigrants he had tried to protect.

Justice Ginsburg noted that the case was in an early stage and could return to the Supreme Court. “By the time it gets back here, there will be nine justices,” she said.

She also assessed whether the court might have considered a narrow ruling rejecting the suit, brought by Texas and 25 other states, on the ground that they had not suffered the sort of direct and concrete injury that gave them standing to sue. Some of the chief justice’s writingssuggested that he might have found the argument attractive.

“That would have been hard for me,” Justice Ginsburg said, “because I’ve been less rigid than some of my colleagues on questions of standing. There was a good argument to be made, but I would not have bought that argument because of the damage it could do” in other cases.

I find unbecoming her phrasing about “what would have happened had Justice Scalia remained with us.” Some friend, huh.

But more importantly, we get an insight into the votes. It was widely assumed (by me) that the Court split 4-4 on standing. But maybe the Justices who were in the majority in Massachusetts v. EPA–Breyer and Ginsburg–were okay with states challenging the federal government. Eliminating the power of states to sue would do “damage,” RBG said. Maybe (as I’ve long speculated), liberals want states to have this power in the event of a Republican presidency. In any event, as she noted this case isn’t over. It’s coming back up. And she has already tipped her hand that she thinks there is standing. Texas’s case for standing was far, far stronger than Massachusetts’s.

RBG also praised the 4-4 affirmance in Freidrichs.

One of the 4-4 ties, Friedrichs v. California Teachers Association, averted what would have been a severe blow to public unions had Justice Scalia participated. “This court couldn’t have done better than it did,” Justice Ginsburg said of the deadlock. When the case was argued in January, the majority seemed prepared to overrule a 1977 precedentthat allowed public unions to charge nonmembers fees to pay for collective bargaining.

Who said this gridlock was all bad for RBG?

Ruth Bader Ginsburg has lost it. Her recent comments are absolutely beyond the pale–even for her outrageous self. The other justices should hold an intervention, and tell her to be quiet or step down. This isn’t funny anymore. She is making overtly political statements about the presidential election that are absolutely unbecoming of a Justice of the Supreme Court. She is expressly dragging the Court into a political arena they would rather stay out of. Her comments also call into question her ability to adjudicate any case involving the Trump Administration. I say this as someone who largely agrees with her prognostications of what a Trump presidency would mean. She needs to stop. But she wont, because RBG loves the limelight, and reporters are happy to write down the insane things she says.

On Thursday, she told Mark Sherman she didn’t want to think of what a Trump presidency would mean, and used the female pronoun “she” to refer to the next President (obviously referring to Jill Stein, right?).

In an interview Thursday in her court office, the 83-year-old justice and leader of the court’s liberal wing said she presumes Democrat Hillary Clinton will be the next president. Asked what if Republican Donald Trump won instead, she said, “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.”

That includes the future of the high court itself, on which she is the oldest justice. Two justices, Anthony Kennedy and Stephen Breyer, are in their late 70s.

“It’s likely that the next president, whoever she will be, will have a few appointments to make,” Ginsburg said, smiling.

On Friday, she told Adam Liptak that she couldn’t think of what the country would be like with a Trump presidency, and said she would consider retiring to New Zealand.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

Retirement to New Zealand, or anywhere else, would be a good idea for the Inglorious RBG.