The fight over a Supreme Court nomination that we are likely to see begin in a month or so with the reported impending retirement of Justice Stevens could be a major teachable moment for progressives about the underlying belief system of contemporary conservatives and of Republicans who have let themselves get radicalized to an extraordinary degree since the latter stages of the 2008 presidential contest.
As we speak, conservatives all over the country are demanding legal action by states to challenge the constitutionality of health reform legislation (in my home state of Georgia, there's even talk of impeaching the Democratic Attorney General, Thurbert Baker, for refusing to waste taxpayer dollars by launching a suit). Yet the basis for such suits -- typically a denial of the power of Congress to legislative economic matters under the Commerce and Spending Clauses of the U.S. Constitution -- is a collateral attack on the constitutionality of a vast array of past legislation, including the New Deal and Great Society initiatives, not to mention most civil rights laws.
And that questionable proposition is completely aside from other conservative efforts, many of them backed by major Republican officeholders, to "interpose" (to use the term for this strategy when it was deployed by segregationists in the 1950s) state sovereignty to block the implementation of health reform and other federal laws. And beyond that we have the even more radical nullification and secession gestures that have become standard features of conservative Republican rhetoric over the last year or so.
In other words, a debate that revolves around constitutional interpretation is not necessarily one that will help the conservative movement at this particular moment. Indeed, it could actually help progressives raise suspicions that Republicans are contemplating a very radical agenda if they return to power, one that could include (particularly given the stridency of their fiscal rhetoric lately) a direct assault on very popular programs like Social Security and Medicare.
Moreover, we can anticipate that a Court nomination fight will renew noisy efforts by the Christian Right, which has good reason right now to remind the news media and Republican politicians alike of its continuing power in the GOP, to advance its own eccentric views on America as a "Christian Nation" whose founders never intended to promote church-state separation, not to mention their demands for an overthrow of legalized abortion and same-sex unions. At a time when many conservatives are trying very hard to submerge divisive cultural issues and create a monomaniacal message on limited government, a Court fight will unleash cultural furies beyond control.
And finally, if it really gets vicious, a Court fight could cast a harsh spotlight on the drift of the conservative movement towards a general attitude of defiance towards the rule of law. As I discussed in a post yesterday, the downside of the libertarian energy given conservatives by the Tea Party movement is its tendency to treat every major government institution, the presidency, the Congress, and the judiciary alike, with contempt as threats to liberty and "natural rights." As much as Americans love liberty, they also love order and stability. They aren't likely to react well to the spectacle of conservatives screaming for a virtual revolution against a popularly elected government, the social safety net, and constitutional doctrines that have been in place for 75 years.
So: bring on the Court fight, and bring it on with all the rhetoric Tea Party folk and other radicalized conservatives have been using about Obama's "socialism" and the Nazi-like tyranny of universal health coverage! Before it's over, Republicans may wish they had just picked a different fight.
This item is cross-posted from The Democratic Strategist.
Rev. Romal J. Tune: You Can Be Pro-Choice Politically And Be A Pro-Life Advocate In Your Community
As a Christian, you can support choice politically and for those children that are already here you can choose to be a pro-life advocate for them to live life abundantly.
someone who understands a computer chip from a poker chip, someone who understands a genome and doesn't believe genes should be patented.
I hope Obama puts forward Kathleen Sulliavan or Pam Karlan
If Ginsberg also retires, then let Elena Kagan, Diane Wood, Napalitano, or Hillary fill the seat.
J
I would just like to say that case law is law. Legislators cannot anticipate absolutely every situation that might arise in a case; they cannot make statutes perfectly unambiguous. When they must decide a case where the statute does not determine the outcome, judges must make law. The alternative would be for them to exercise power arbitrarily. In order for the legislative branch to wield legislative power, legislators must be able to predict how a proposed statute would be construed. With case law, they can. With judicial arbitrariness, they would not be able to.
I don't really think this lesson will be taught in any nomination fight in my lifetime, but it would be nice.
There will not be a mass exodus of the medical professionals, you are right. Not right now. But more will start to leave, and fewer will enter the field.
These challenges are necessary. If an unlawful piece of legislation can be stopped before it becomes entrenched, like Social Security, we can work on legislation that is both helpful and lawful. The two can co-ecist, despite the warm and fuzzy sob stories that are marched out to support unlawful legislation.
- Individual mandate does not tax income (rather it taxes lack of insurance), so is not covered by 16th amendment, and therefore must be apportioned which it is not.
- Individual mandate attempts to coerce action, rather than merely encourage. Coercion is a police power which the federal government does not possess (outside of specifically enumerated things like taxes, jury duty, military draft).
- Administration of the overall health care legislation is assigned to states, again crossing the line between coercion and encouragement.
- Requiring insurance violates right to privacy as insurance companies can view medical records.
None of these issues apply to Social Security, Medicare, or anything else that I am aware of.
BTW, Wickard v. Filburn, 317 U.S. 111 (1942), : A farmer, Roscoe Filburn, was growing wheat to feed his chickens.
because Filburn's wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn's production of more wheat than he was allotted was affecting interstate commerce, and so could be regulated by the federal government.
In effect, the federal government FORCED Filburn to buy wheat instead of growing it
Wickard v Filburn did not force anything. He could have easily just sold off some animals and limited his consumption of wheat, or he could have bought the wheat, or he could have substituted wheat for a different food. Note he was never left with a single choice of do X or be penalized.
A public option and a tax ( like a premium but cheaper due to efficiencies of scale and lack of profit motive ) to fund your participation are absolutely constitutional. Furthermore, you could allow tax exemptions to various groups ... say those who have purchased a private plan to provide all their coverage ( you might purchase a private *supplemental* coverage plan and still want to be on the public one for nuts and bolts care ).
So while I think there is a strong technicality argument to be made against what they have done, the problem is that the mandate is to buy a *private* product. This is made especially intolerable given that the vendors in question have been price gouging rampantly while delivering poor service.
You don't even need to go that far though. If the existing bill were passed with an extra tax and a credit (equal to the fine from the individual mandate) for purchasing insurance, there would be no real constitutional challenge to the individual mandate. The state administration imposed by a federal program might still be challenged, but I'd honestly guess it probably wouldn't.