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Eric Segall

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Ten Fun Facts (and Morals) About the Affordable Care Act and the Supreme Court.

Posted: 07/02/2012 2:59 pm

1) The Court upheld the individual mandate as a tax even though both the Congress, which passed it, and the president, who signed it, repeatedly said that the mandate unequivocally was not a tax.

Moral: Both our elected officials and our unelected Justices can obviously be counted on to tell the truth.

2) There is a federal law that says that no one is allowed to challenge a tax until he or she pays the tax. This is why the Fourth Circuit Court dismissed the case. The Supreme Court said that the mandate was a tax for constitutional purposes but not a tax for the purposes of the jurisdictional law.

Moral: The Supreme Court often reaches conclusions only lawyers could possibly attempt to justify. This moral may come up again.

3) There is a federal law that says that judges cannot hear cases if they served as an "adviser" or "counselor" on the case while working for the government. Justice Kagan was the head of the legal office that ran the litigation in the lower courts, and she was directly asked whether her office should be involved (normally it wouldn't be) and she said yes. If she had followed the law and recused herself, the mandate would have been invalidated. Also, in the face of an official request for a hearing on recusal, the request was denied with one word and Kagan has never explained how she could sit on the case.

Moral: When you have nothing valid to say, just say "Denied." Wouldn't it be great if we all, especially parents, had this power?

4) Justices Breyer and Kagan joined the conservatives to hold unconstitutional under the Spending Power a part of a federal law for the first time since before the New Deal. Justice Breyer had consistently been a strong advocate for broad federal power. No one has yet explained why these two Justices voted this way.

Moral and Unsupported But Probably True Allegation: We never, ever know what Supreme Court Justices are going to do, and some serious vote trading was going on in this case among the Chief and these two Justices.

5) Neither the oral arguments nor the announcement of the decision were televised or videotaped in any manner.

Moral: The Supreme Court likes its privacy. Too bad for democracy and the rest of us.

6) Although the formal rule announced by the Court that the individual mandate was really a valid tax, not a valid regulation of commerce, was really believed by only one Justice, it became the rule of the case for reasons having nothing to do with anything other than the Chief's desired political outcome.

Moral: Maybe the rule of outcomes means more to the Supreme Court than the rule of law.

7) The federal government said to the states, you can participate in Medicaid or you don't have to participate in Medicaid, it is totally up to you. If you decide you don't want to participate, then you can't have our (the federal government's) Medicaid money. Seven Supreme Court Justices somehow said this unconstitutionally deprived the states of a choice that that was lawfully theirs to make.

Moral: The Supreme Court often reaches conclusions only lawyers could possibly attempt to justify.

8) Justice Kennedy, who voted to strike down the entire law, has voted in the past for gay rights, for gun rights, for the rights of students not to have to hear prayers at graduation ceremonies, for the rights of the mentally ill and juveniles not to be executed and subject to life without parole. Justice Kennedy is a true libertarian who loves rights.

Moral: Justice Kennedy is a true libertarian whether or not the Constitution is best read that way. He can read the Constitution the way he wants to because the Constitution is vague, because Justice Kennedy has the power, and because he has life tenure. Justice Kennedy's libertarian views explain his constitutional views not the other way around and this is true of the views of all the Justices.

9) In the most important Supreme Court case since Bush v. Gore, Justice Thomas decided once again to say nothing. He has not spoken in Court in six years.

Moral: No comment.

10) In his last four commerce clause cases, Justice Scalia reached the following results:
A. The comprehensive regulation of a trillion dollar commercial industry that affects every state is not "commerce among the states."
B. A law dealing with the economic effects of domestic violence which Congress documented to be billions of dollars every year nationally in missed work days, medical care, increased insurance costs, etc., was not a law dealing with "commerce among the states."
C. A law prohibiting the possession of guns around schools was not a law regulating "commerce among the states," even though such possession severely impairs the educational process and effects our national economy in a myriad of economic ways. BUT, BUT, BUT:
D. A law criminalizing the use of homegrown marijuana by two people in the privacy of their own bedroom when the government conceded the pot was homegrown, was never bought or sold, and had never moved in interstate commerce, was a valid regulation of "commerce among the states."

Moral: Justice Scalia's righteous indignation so often conveyed in his dissents about the lack of consistency in other Justices' views is tragic in the Shakespearean sense.

Bonus Fact: The ACA litigation once again proved that the Supreme Court decides cases like politicians not judges.

Moral: It is time to abolish life tenure.

 

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