November 8, 2011 will be remembered as the day conservatives broke with the tea party. It's too early to know whether this is a short term separation or the beginning of a long-term divorce, but one thing's already clear, yesterday was a tea party disaster, both with political losses and with a pointed rebuke by a prominent conservative judge that lays bare the fundamental flaws of the tea party's constitutional vision.
The day started with a ruling by the United States Court of Appeals for the D.C. Circuit rejecting claims challenging the constitutionality of the Patient Protection and Affordable Care Act, known, derogatorily in tea party circles, as "Obamacare." It's nothing new for a court to reject these light-on-the-merits claims -- three of the four appeals courts to have heard these claims rejected them. But yesterday's ruling was still stunning, given the makeup of the panel of judges -- including two very prominent and respected conservatives, Judges Laurence Silberman and Brett Kavanaugh -- and the collective force of their opinions rejecting the tea party arguments against the Act.
Indeed, these opinions seemed intended to resonate with members of the conservative majority on the U.S. Supreme Court. The D.C Circuit's majority opinion, written by Judge Silberman, reads like a template for an opinion by Justice Scalia upholding the Act. Most important, Silberman's opinion starts with the text and original meaning of the Commerce Clause and finds "no textual support for Appellants' argument." That's a very big deal, considering the source.
The opinion written by Judge Kavanaugh, a conservative firebrand appointed by President George W. Bush is, in some senses, even more surprising. Judge Kavanaugh wrote separately and opined that courts should not even be hearing challenges to the health care reform law because of an 1867 federal statute known as the Anti-Injunction Act , which prohibits pre-enforcement challenges to federal taxes. The most remarkable portion of Judge Kavanaugh's opinion comes near the end, where he gives a ringing endorsement of the Affordable Care Act's individual mandate as a conservative idea (which was, after all, first proposed by the Heritage Foundation). As Judge Silberman's opinion is likely to resonate with the Court's originalists (most notably Justice Scalia) Judge Kavanaugh's opinion should resonate with the Court's more results-oriented conservatives (most notably Chief Justice Roberts).
It is hard to imagine a worse set up for the tea party for the Supreme Court's conference, scheduled for tomorrow, at which the High Court will likely decide to review the challenges to the Affordable Care Act. While the Court almost has to review these cases, yesterday's ruling reinforces the very real possibility that the Court will reject the challenges to the Act in a lopsided fashion, and that it will be conservatives on the Court, not just the Court's more liberal members, dealing a devastating blow to the tea party's claims about the limits of the federal government's power. If that's what happens in June 2012, when a Supreme Court ruling can be expected, yesterday's appellate ruling will rightly be viewed as a turning point.
As bad as yesterday began for the tea party, it surely ended worse, with the first successful effort in the history of Arizona to recall a state elected official. Russell Pearce, a tea party favorite who, until last night, served as President of the Arizona Senate, was known nationally for his demagoguery about the Constitution and his assault, particularly, on the rights of immigrants to this country and their children. The decisive vote by his very conservative district to replace Pearce with a more mainstream Republican candidate, coupled with the ruling yesterday by conservatives on the D.C. Circuit, suggests that some measure of constitutional sanity remains in this nation, even in the most conservative circles.
With big victories by labor in Ohio, for women's rights in Mississippi, and for LGBT advocates in races around the country, yesterday was a good day for progressives. Just as clearly, yesterday was a disaster for the tea party.