Monday's federal court decision declaring key provisions of the health care law unconstitutional was not just a major setback for President Obama's signature piece of legislation. It was also a reminder that the courts are an even greater threat to his agenda than the new Republican majority in the House.
Crucially, it was a wake-up call for the president to jump-start his stalled judicial nomination process.
John Boehner talks about repealing the Affordable Care Act or using the power of the purse to defund the law. Yet any piece of legislation undermining health care reform that makes it through the House will stall in the Democratic-controlled Senate or face a certain veto in the Oval Office.
But judicial decisions don't face the same hurdles, as Monday's ruling shows. Even though there are good arguments for the constitutionality of the health care reform law -- which led two other federal courts to uphold the bill in earlier cases -- the law faces an uncertain future in the courts.
The most controversial feature of the law is the "individual mandate" which requires individuals to have health insurance, even if they have to purchase insurance they'd prefer not to have. Critics of the law claim the mandate is unprecedented, but even the Founders had something just like it. In 1792, the Founders enacted the Militia Acts, which required every white male of age to outfit himself with a military-style firearm, even if some people forced to buy a gun preferred not to own one. Other individual mandates in current federal law include mandatory jury service, filing of tax returns, and selective service registration.
Yet even if there's ample precedent for an individual mandate, the Supreme Court under the leadership of Chief Justice John Roberts could use decisions like the one by a lower court Monday to overturn the landmark health care law. Republicans may get from the relatively conservative Supreme Court what they can't obtain in Congress.
This dynamic is not limited to health care. The courts are hearing cases -- or are certain to do so in the coming months -- on many issues important to the administration, from immigration policy and Internet regulation to airport security screening and treatment of terrorists. Bills recently signed by the president on child nutrition and animal cruelty videos will also likely be challenged.
The courts have even been giving the president a hard time on Don't Ask, Don't Tell, striking it down against his wishes. He wants to reverse the policy, but through Congress not judicial fiat -- or at least that's what he says publicly.
While the courts turn aggressive, the president seems passive. Obama has been historically slow in sending judicial nominations to the Senate for confirmation. This despite the fact that nearly 1 in 8 federal judgeships currently sits vacant, and even conservative, Republican-appointed judges call the situation a crisis significantly harming the federal judiciary.
The fault is hardly the president's alone. Although the Senate Judiciary Committee has acted with relative speed in pushing nominees through it's hearings, few nominations are being brought to the floor for a vote. Republicans are using procedural techniques to stall the process. Still, this is a Democratic controlled Senate and other presidents have found ways to gain confirmation votes even when the opposition is control.
Monday's ruling only underscores how important the judiciary is to Obama's agenda. Many of his major accomplishments as president will end up in the courts. If Obama doesn't act soon to push through his judicial nominees, those courts will be presided over by judges selected largely by previous presidents, like George W. Bush, rather than judges he had the chance to name to the bench.
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And with the oh-so-conservative Court, we will probably have to eat a lot of unprogressive decisions and can't even squawk whereas the GOP control of Congress will show them in their true colors and the middle class will surely not allow any monkey biz and will vote for the people who are in our interests.
Engarde, GOP!
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
Regulating STATES to structure health insurance regs in such a way that there is equivalence and reciprocity "among the several States" is an appropriate use of the Commerce Clause. Requiring CITIZENS to purchase a specific product to create an influx of capital into private enterprises is hardly the intended purpose of the Commerce Clause. It's original purpose was to make sure individual States could not impose tariffs or other restrictions governing interstate commerce.
This is the Supreme Law; it is in the Bill of Rights (5th Amendment) and it is profoundly redundant in the Fourteenth Amendment; it is the essence of liberty and the protection of property; " - nor be deprived of "LIBERTY" . . . get it?
This is a critical point in protecting liberty for posterity from those who would usurp the people and claim authority to make law where there is none. This protection of liberty is sacrosanct and it requires the narrowest interpretation of powers that the federal government has over the individual.
Damn the Commerce Clause, the Constitution protects our freedoms if obeyed without sophistry. If Congress believes that the Constitution should have "positive powers" such as using taxes for special interests, then let them amend the Constitution and stop rationalizing new powers!
In most cases, the requirement to buy something (car insurance, pet liscense, PAY TAXES) is the consequence of ANOTHER, voluntary action be in own/buy a car or pet, or work for example. And, most of those requirements are from individual states, NOT the Federal government.
In this case, we ALL have to do it.......PERIOD. And, although no one disputes that it is responsible to have health insurance, does our Constitution via the Commerce clause give it the authority to do this?
Only if you believe that the government has near limitless authority to make someone due whatever it wants.
Right now everyone absorbs the cost of the uninsured.
With Obamacare we pay the same amount AND we pay a $ Trillion dollars more for the government program. WE PAY TWICE.
A mandate that every able-bodied person wanting food stamps has to be "hired" by private businesses, with the businesses issuing vouchers (in lieu of paychecks) to be exchanged for said food stamps would be a "good one" too.
As you say, "everyone no matter what his/her age has a responsibility to have (food) otherwise the taxpayers (us) pay for that person's (food). Good health (or survival) without food is no guarantee no matter what the age."
Make sense? Sure. Is it Plantation-Style SLAVERY to the Government? Yes!
What your example fails to reveal is that your cousin only qualified for Medicaid based on his income. Likewise, everyone will still not be required to purchase health insurance - based on their income.
I am reminding my state's U.S. Senators to get Congress going on confirming the Judges that the POTUS has nominated and hopefully, put all this nonsense to rest
Nor does Michael Waldman, at N.Y.U. School of Law, exaggerate when he writes that this exercise of the radical judicial activism that the rightwing claims to deplore "matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court. In that case, the court reached into the political process to hand the election to one candidate. Today it reached into the political process to hand unprecedented power to corporations."
The Court was split, with the four reactionary judges (misleadingly called "conservative") joined by Justice Kennedy in a 5-4 decision. Chief Justice Roberts selected a case that could easily have been settled on narrow grounds, and maneuvered the Court into using it for a far-reaching decision that overturned precedents going back a century that restrict corporate contributions to federal campaigns.
In effect, the decision permits corporate managers to buy elections directly, instead of using more complex indirect means,
http://www.chomsky.info/articles/20100124.htm
In the written record of the case, the court recorder noted: "The defendant corporations are person within the intent of the clause in Section 1 of the 14 amendment...." But the written statement by the court reporter was not a decision. In fact the court never ruled on this question. But because of this notation, it has been assumed that the court did in fact rule on this question, thereby opening the flood gates of money that we see today as the result of Citizens United. Read Thom Hartmann's "Unequal Protection".
As an older voter I know that the Repubs have one issue and one issue only and that is tax breaks for the rich. Yet, middle income earners and lower income earners lap it up, believing that if the rich pay their fair share, the middle/lower will have to carry the burden. It doesn't have to be that way.
people that get hit by car drivers .
So unless you have money buried in the yard or sewn into your mattress, there are ways they can get it.
Really? The same Senate that hasn't been able to pass any meaningful legislation in two years because they didn't have a supermajority? And the same White House that hasn't vetoed anything? I like the optimism but I really don't think so...