When will the Supreme Court review the individual mandate?

(Cross-posted from Dukes and Wonks.)

While the big U.S. government story of the night is President Obama's new speech on creating jobs, I'd like to highlight another really big story that's probably going to be neglected. The U.S. Court of Appeals for the Fourth Circuit today rejected lawsuits brought by the Commonwealth of Virginia and Liberty University challenging the 2010 Health Care Reform law. Virginia and Liberty University argue that the individual mandate, which requires all U.S. residents to buy health insurance starting in 2014, is unconstitutional. (Liberty University also sued over a related provision that would impose a penalty on employers whose employees have to receive federal subsidies to buy their own insurance.) This is the third ruling in the federal courts of appeals on the law: On June 29, a Sixth Circuit decision upheld the individual mandate, and on August 12, an Eleventh Circuit panel ruled that the individual mandate was unconstitutional. Two decisions for the law, one against it. More cases are pending.

These decisions are significant, for two reasons. First, they set legal precedent for different parts of the country - the Fourth Circuit for the Mid-Atlantic, the Eleventh for part of the Deep South, and the Sixth for Michigan, Ohio, Kentucky, and Tennessee (you can find a circuit map here). Second the Supreme Court is likely to review these cases and decide for the country as a whole whether or not the health care reform law (or parts of it) are constitutional or not. And conflicting lower court decisions make it more likely that the Supreme Court hears these cases sooner rather than later. (The Supreme Court can pick and choose whether it hears most cases, and Rule 10 of the Supreme Court Rules specifically mentions a conflict between appeals court decisions as one of the reasons for which the Court may decide to decide a case.)

Some observers speculate that the Supreme Court will hear and decide one (or all) of the health care appeals during its next term, which will run from October 2011 to late Spring 2012. They point precisely to the conflicting lower court decisions. I am not completely convinced by these predictions, although they may very well turn out to be true.


I have two related reasons: First, the Supreme Court hears cases with lower court conflict because it enables it to review different legal viewpoints that have arisen out of real disputes. If all lower court decisions make similar arguments, it is more difficult for the Supreme Court justices to evaluate the merits of arguments that were none of the lower courts actually used for its decision. As a result, it makes sense for the Court to wait for other similar but undecided cases in the lower courts. Letting such cases "percolate" a bit will provide the justices with more legal material to make a sound decision, to consider the implications of the different legal arguments (and the real-life consequences of different outcomes).

Now, while it looks like the four (the Virginia and Liberty University cases are separate decisions) appeals court cases that have been decided so far represent the different sides of the case, this is not necessarily true. The Eleventh Circuit decision overturns the individual mandate as unconstitutional. But while the decisions in the Sixth and Fourth Circuits uphold the law, it is debatable whether they actually rule that the law is constitutional! This is clearest in the Virginia cases: The appellate court rejected the lawsuits on procedural grounds - it argued that the state of Virginia did not have standing (that is, the right to bring the case), and that Liberty University could not file a suit before the law had actually gone into effect. With respect to the Sixth Circuit, Lyle Denniston at SCOTUSblog makes the argument that the Sixth Circuit panel merely ruled that the law is constitutional on its face (that is, without considering any circumstances in which it was actually applied). According to Denniston, the circuit court indicates that the constitutionality may have to be decided again once the individual mandate is enforced, with possibly different results.

Will the Sixth Circuit's ruling that the law is facially valid be enough for the Supreme Court to find a conflict over constitutionality between the circuit courts? This is where my second argument comes in: Politically, I suspect that enough justices find it appealing to wait until after the next election before they take the case (four out of the nine justices are needed for the Supreme Court to hear a case). The argument that the issue needs more lower court "percolation" may be attractive for some of the more conservative justices. In 2012, President Obama may very well be defeated by a Republican; Congress may very well be willing to modify the individual mandate. If this happens, the Supreme Court could get around deciding the case. Why decide something now that you may not have to decide at all? Furthermore, to overturn the individual mandate, the Supreme Court would have to make an activist decision - it would have to overturn a federal statute, and doing so would require a re-interpretation (or direct rejection) of existing Commerce Clause precedent. More cautious justices may not be willing to do this if not absolutly necessary. While Justice Thomas is likely to insist on principle, even if it means overturning precedent, Justices Kennedy and Chief Justice Roberts (particularly in a Commerce Clause case), for example, may find the wait-and-see approach more palatable. The more liberal justices on the Court may decide to wait as well. If the law gets overturned or modified by Congress, upholding it now is useless; if the five more conservative justices are likely to overturn the law, waiting cannot hurt either. The arguably limited support of the Sixth Circuit decision for the law may be enough of an argument to avoid a decision in the coming term.

Obviously, this is pure speculation. We'll see soon what will happen.

Preface questions

I facilitated today a very pleasant and interesting (at least for me) Preface session. The incoming first-year students had read five articles – the first installment of Errol Morris's Anosognosic's Dilemma, Malcolm Gladwell's New Yorker article on quarterback and educator recruitment, Howard Gardner's 2008 presentation of his Five Minds argument, and a debate between Debra Satz and Eamonn Callan on the reasons for funding education. At the end of the meeting, I asked students to write whatever questions they had about James Madison University, college life, college classes, etc. on a notecard. While I was able to address some of the questions during the meeting, I promised to address the rest electronically.

It will take me several posts to answer all questions. In this post, I address a couple of important questions that I found difficult to answer: None of these questions has an answer that will be right for everybody. My answers are simply pointers that may help you find answers that work for you. Here I go:

1. Questions: "What is the best way to focus and study in college?" and "How can I avoid being overwhelmed by my schoolwork?"
   
   Answer: This depends in part on you – different study strategies and habits work for some people but not others. The same goes for strategies to plan your days and to make sure you're not overwhelmed. (But keep in mind that being overwhelmed may not be your main problem: consider this.) Here are some suggestions that I think work for most:
   
   • Study in small chunks, repeatedly. Do not just cram what you need to know right before an exam, but go over the class material shortly after class, then again a few days later, then again a week later, and so on.
   • Do not focus too much on isolated facts, but think about connections between the facts (what academics like to call the conceptual structure of knowledge). Also focus on what facts and concepts are good for: How can they help solve important problems? How can they help answer important questions? In what contexts, and for what groups of people, are they important?
   • Choose classes that you have a personal interest in. Develop a personal interest in what your classes are about.
   • Make sure you get time for fun and relaxation, but of the right kind. Binge drinking is a great way to lose focus (and get kicked off university...). (Plus, it's not really relaxing, in the long run. And not in the short run either, particularly if you spend a night in the tank.)
   • Make a schedule for the semester, and for each week, so that you keep track of what you have to get done until when. I find that Google calendar is very helpful to keep track of what I have to do (I'll have it send me reminders), and I'm sure that Outlook and similar calendar tools work as well.
   Here are some links with suggestions for how to study more effectively; if you find more good ones, post them in the comments:
   Lifehacker: Take study-worthy lecture notes
   How to Read in College
   Jakub Petrikowski: Tools for note-taking
   How to read a (good) book in one hour
   Dartmouth College Academic Skills Center: Improving Concentration, Memory, and Motivation
   Ohio University AAC Study Tips Lifehack: How to Study
   
2. Question: "What is the best way to cope with the transition from high school to college?"
   
   Answer: As in the previous point, the answer depends on what works for you, and some of the suggestions above may help. In addition, I think that you have to keep in mind that college professors expect you to take much more responsibility for your learning. You have to be more independent in your learning: find out where the gaps are in your understanding and your performance, find the resources that help you fill those gaps (that includes talking to your professors regularly as well as doing research on what you need to know). We want you to be able to learn on your own once you have your degree! What helps you cope with this transition? Talk to people - your professors, more senior fellow students, staff in the student support services, and so on.
   
   
3. Question: "Do you think the more knowledge a person has, the more problems they have compared to an uneducated person?"
   
   Answer: No. I think you may notice more of the problems that you have, or you may anticipate them before they happen, but I don't think you have more problems. But this would be an interesting question to study empirically. Maybe some psychologists or sociologists have worked on this. You may want to do a search in one of JMU's library databases and see if you can find resources on this question.
   
   
4. Question: "How important is it to search for knowledge that doesn't directly affect your life"
   
   Answer: I believe that it is important, for two reasons: First, there are many areas that are not important for you at this point in time, but they are likely to become important in the future. Math is the notorious example – you'll have to learn lots of stuff that does not seem to be relevant to anything besides math, but at some point in your life you may realize that all this basic math comes in handy when you have to learn statistics to get a job that requires stats skills. Second, knowledge that does not seem relevant for anything may shape your mind in important ways - it broadens your understanding of the world, exercises your mental faculties, makes it easier to understand things that are relevant for you. Example: In high school, my second foreign language was Latin. Not relevant at all for my life, and I've forgotten almost all of it. But studying Latin has helped me understand the structure of other European languages, and as a result I find it fairly easy to learn and understand their grammar.
   
   
5. Question: "Is it possible that through meditation, contemplation, and other methods of enlightenment, we could truly know everything?"
   
   Answer: It depends on how you define knowledge. If you define knowledge as scientific knowledge that is empirically testable, then the answer is "no". But if you define knowledge in a more spiritual sense as feeling one with everything, experiencing enlightenment, or receiving a religious revelation, then it may be possible – depending on your religion – to know everything. (But be careful – what if your spiritual inspiration tells you that you can become invisible by spreading lemon juice on your face?)
   

To be continued.

Justice Breyer on "Fresh Air"

He's currently promoting his new book, Making Our Democracy Work. The half-hour segment can be found here; you can download an mp3 version for listening on the go.

More on note-taking geekery

Couple of days ago I rambled about how to take notes (here). Now, what about all the geeky (and not-so-geeky) tools that are available to take notes? There is tons of stuff available for $$ and for free, but which tools are most useful?

Let's start with some criteria to evaluate the tools: First, I don't want to pay much for them. I can buy a paper-based notepad or notebook for little money, so I don't want to pay more for computer-based tools. Second, tagging is important. I want to mark information with keywords, tags, or the like, so that I can retrieve the info I need without reading through stacks of notes on all kinds of topics. Third, I want to synchronize my notes across computers. I use three computers in different locations – work, home, mobile. While synchronizing through flash drives is always possible, it's easier to do so online. Fourth, the possibility collaboration is a plus if you take notes in class – notes typically improve if they are the work of several brains. Fifth, I want to write about tools that I've actually tried. If you have further suggestions, please use the comments.

I haven't found the perfect tool yet, but there are several that I think fit the bill for most of the requirements that I listed:

Wikis

The classic tools for any collaborative writing are wikis. While the super-geeks can try to host Wikipedia-style wikis on their own servers (and I have no clue how to do this), there are several wiki services available for which you don't have to pay. I have worked with Wetpaint and PBWorks in the past, and I found both easy to set up and use. Both types of wikis allow tagging. Access to the wikis can be restricted, if you do not want to give the whole world access to your notes. Wetpaint and PbWiki use ads to finance themselves, but they both have programs for ad-free educational wikis. (And if you're bothered by ads, there is also always Adblock.) One downside of wikis is that all your notes are online; if you don't have a network connection, you're out of luck.

There are more wikis out there. You can find a useful comparison at WikiMatrix.

Google docs

While Google docs is not a note-taking application per se, it can be used for this purpose, and it satisfies almost all I want from a note-taking application. It is free, you can share documents (and collaborate on them) with other google users, and the documents are online and thus accessible whenever you are online (so synchronization is a given). There are no tags, but there are folders, and you can put documents in several folders - in other words, the folders function precisely as tags. The downside is that one has to be online to use Google docs. As with wikis, if you don't have access to the internet, of if the network is down, you're out of luck.

Evernote

If you don't want to collaborate with other notetakers but you work with several computers, Evernote is a great choice: You can install Evernote as a freestanding program on your computer and take notes even when you are not connected to the intertubes, but you can also use Evernote online in your browser. Synchronization is a breeze, you can tag notes, you can email notes to your Evernote account, complete with folder and tag definitions, and if you are on the go, you can also send yourself a note by SMS. (I often forget ideas or appointments that I do not immediately write down; sending myself a note takes care of the problem.)

The main downside of Evernote is that full collaboration is not possible: You can publish your notes, but you cannot easily work with others on them. This doesn't matter so much for me, since most of the notes that I take are not collaborative, but if you want to work with others on classnotes, this is a dealbreaker.

What tools do I currently use myself? I still use pen and paper a lot, particularly when I am not sure whether I am going to take notes beforehand. Paper is light to carry, it's noiseless to use, and cheap. For things I want to remember and file away, I use Evernote. It's easy to use, easy to synchronize across computers, and I have copies of the notes on my harddrive (I figure if Evernote goes under – it's a fairly new company, and you never know – I won't lose my notes). For occasions when I have to collaborate with others, I like PbWiki. And as a super-geeky lightweight (though completely offline) toy to play with, I have Vim with Viki on my slowish xubuntu netbook – perfect for some quick writing that I can easily find afterwards.