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Ethan Rome

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Meet the New Boss: Is the Court Making a Supreme Power Grab?

Posted: 04/ 3/2012 2:19 pm

First the Supreme Court handed the 2000 presidential election to George W. Bush. Then it gave corporations the green light to buy our elections with unlimited secret political spending (Citizens United). Now the Court is considering taking away the very ability of Congress to pass laws that address issues like our nation's health care crisis.

If the Supreme Court strikes down the Affordable Care Act, or key components of it, it will be saying that it's the new boss in lawmaking and that Congress should step aside.

Striking down Obamacare would be "an unprecedented, extraordinary step," as the president said Monday. It would be a turbo-charged act of partisan judicial activism by unelected, unaccountable bureaucrats.

When it comes to the "Commerce Clause," which gives Congress the authority to enact the individual responsibility requirement (the so-called mandate), the Supreme Court just needs to follow its own precedents. The Court has consistently ruled that Congress has the ability to develop national solutions to national economic problems via its ability to regulate interstate commerce. It would be reckless to take that power away now, especially in a sector that represents one-sixth of the economy.

Chief Justice Roberts famously described himself at his confirmation hearing as an "umpire" who just calls the balls and strikes. Umpires enforce the rules of the game; they don't get to make up new rules and they don't get to tell pitchers what to throw. Overturning this law would do both.

The fact that the Court even took up the Republicans' objection to the law's Medicaid expansion signaled the potential of a judicial power grab. The Republicans' argument is ridiculous. They say that Medicaid is such a good deal for states -- with the federal government picking up nearly all the costs -- that it's "coercive." But that's exactly how the federal-state partnership has worked for 47 years. Why is it suddenly coercive? It's not because of the Constitution. It's because of politics. It's because they want to defeat Obama in November.

If the Supreme Court wants to take over the role of Congress and overturn one of the most sweeping pieces of social legislation in the country's history, they'll actually have to read it. Justice Scalia made clear that he is not so inclined.

"You really want us to go through these 2,700 pages?" asked Scalia. Well, yes, we do. Is it too much to ask someone with a lifetime appointment to read a law that is already benefiting millions of people every day?

While Justice Scalia indicated that he did not read the bill, he was familiar enough with it to express a concern that striking the individual mandate alone was "going to bankrupt the insurance companies, if not the states."

Apparently he and Justice Alito had a chat by the proverbial water cooler: "What would happen to the insurance industry, which would now be in the hole for $350 billion over 10 years?" Justice Alito asked.

Neither justice said anything about how the law is helping people, or how striking it down would be devastating to the seniors, families and small businesses already benefiting from it, let alone the 31 million people who will get coverage in 2016 if the law stays in place.

Scalia or Alito also don't seem to care much about the integrity of the Court, which the public sees as driven by politics, according to public opinion surveys. That's up to Chief Justice Roberts, who reportedly cares about his legacy.

If the court fails to uphold the law, Roberts' legacy won't just be that he led the most political court in our country's history. It will also be that he led the court that struck down a solution to our health care crisis to pander to a Republican Party that's beholden to Wall Street and the insurance industry. Surely Justice Roberts can do better than that.