“You Are Not Special”

I finally (it has been an open browser tab for over a month) watched David McCullough, Jr.’s terrific 2012 Wellesley High School commencement address. “We have come to love accolades more than genuine achievement . . . building a Guatamalan medical clinic becomes more about the application to Bowdoin than the well-being of Guatamalans . . . climb the mountain so you can see the world, not so the world can see you.” I may assign it to this fall’s incoming freshman colloquia students.

Roberts Walks a Tightrope

The New York Times outlines yesterday’s Supreme Court’s decision upholding most of the Affordable Care Act by linking brief summaries of the components of the decision to the sections of the decision in which they appear. My previous blog posts do not address the Act’s constitutionality under Congress’s power to tax, in part because–as I said yesterday–I’m not conversant with the tax power precedent. Another significant reason I did not address the tax power arguments is that the Obama administration did not advance them, either when Congress passed the law or during oral arguments in March. Chief Justice Roberts latches onto them “because we have a duty to construe a statute to save it, if fairly possible . . . Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” In other words, Roberts is doing his damndest to construe the law as a valid exercise of Congress’s power.

The decision rejects the pro-ACA arguments resting on the Commerce and Necessary and Proper Clauses. But Roberts reaches into his hat and pulls out the rabbit, opining that the Individual Mandate is not a penalty but a valid exercise of Congress’s power to tax. It’s as close to deus ex machina as I can recall in a Supreme Court decision, legalistic ju-jitsu–because earlier in his opinion Roberts decides the Individual Mandate is not a tax for the purposes of the Anti-Inunction Act, which requires that one must first pay a tax before filing a suit challenging its validity. The Scalia, Kennedy, Thomas, and Alito dissent is having none of it: “[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”

Individual Mandate is Constitutional

New York Times 28-Jun-12: “Supreme Court Lets Health Law Largely Stand.”

I was both wrong and right about the Commerce Clause argument against the individual mandate: wrong that the better argument supports its constitutionality, right that the commerce clause argument is a close call. The Court held that the mandate exceeds Congress’s Commerce Clause power and is not valid under the Necessary and Proper Clause.  The Court instead construed the penalty imposed on individuals who do not purchase health insurance to be a valid exercise of Congress’s taxing power. I’ll cheerfully admit I’ve thought little about this argument, mostly because my insight into the Constitution’s taxing provisions is slightly better than my understanding of string theory.

My quick reading of the Court’s syllabus of the opinion showed me that a quick reading of the opinion will not suffice to understand its many components. It’s one of those opinions where I will need to map in a matrix the outcome of each of the issues. That’s not happening this afternoon. The sun is (mostly) out and my individual mandate requires completing my projects and errands.

Waiting for the Court

I’m not sure I’m ready for today’s Supreme Court ruling on the Affordable Care Act–or, more precisely, for the howls and outrage that will arise from whichever side loses the individual mandate argument. I’ve been talking about it with my coffee buddies for the past few years. Most were–are–incredulous that there’s even a question about the ACA’s constitutionality. Of course the federal government can require everyone to buy health insurance! Health insurance is a good thing, like requiring people to wear seat belts, therefore the government can compel us to buy it! (One thing I’ve learned from teaching law for 15 years–most U.S. citizens have the faintest understanding of Federalism.) I believe the better arguments favor upholding it–I think the federal government can use its Commerce Clause powers to require us to buy health insurance because when we don’t buy health insurance we always shift our health care costs to third parties (hospitals, the government, people who do have health insurance), and thus the cumulative effect on interstate commerce of personal decisions not to buy health insurance is substantial–but I also believe there are legitimate, straight-faced arguments one can make against the law. (Not a popular position in the liberal circles I frequent or media I consume.)

Despite what pundits and Supreme Court justices say, decisions like this are not about applying objective rules, about “calling balls and strikes.” Indeed it’s to our national shame that Congress and the press didn’t call Chief Justice Roberts on this fallacious metaphor during his confirmation hearings. The strike zone is not objective. Umpires do not interpret it uniformly. The best baseball players can hope for is that the plate ump applies the strike zone consistently during a game. It is the job of Supreme Court justices to interpret and apply constitutional principles, which requires making policy decisions about the relationship between the government and the governed. That’s not being an activist judge; it’s being a Supreme Court judge. It’s inevitable that a justice’s political views will shape his or her interpretation of the Constitution. The best we can hope for is that a justice’s decisions are governed by consistent interpretation of constitutional principles, by stare decisis and profound respect for the Rule of Law, and by recognition that the Constitution was intended to be a living document (this rules out Justice Thomas.) There is tremendous tension between these three forces–which is why we lawyers say reasonable people can disagree. Unfortunately, when it comes to the national political discourse reasonable people have been hunted to extinction. I’m not eager for the nasty aftermath of the ACA decision, however it comes down.


I’m leaving for a road bike trip, this year through the Cascade range in Washington. I was a novice the first time I packed my bike for one of these trips. Fitting the bike in the hard-shell packing case looked impossible. Now I do it without guidance or tsuris–although it still looks impossible to fit the bike in the box.

Dock Tales 2012: Redemption

What does one do when rain raises the lake so much it swamps the dock?

  1. Nothing
  2. Lower the lake
  3. Raise the dock
  4. Install a floating dock

I chose 3. A few years ago I chose 1. I cannot implement 2; I’ve too invested in this dock to opt for 4. It would be like switching to Macs and throwing away 25 years experience with Wintel PCs.

Dock problem resolved; now the boat won’t shift into gear.

It’s always something.

Dock Tales 2012: Fail*

We installed the dock two weeks ago. Perfectly–level, the bottom of its frame just above the lake surface. The best installation ever. A few days later it rained–the same storm that  afflicted the Best Buddies ride, except it rained harder and longer in Maine. A foot of rain over the weekend, more rain in the following days, in some places up to 18″ of rain in ten days.

Which is havoc for the dock.

*Because for some of you the dock installation story is, like robins and black flies, a sign of spring.