All the way back in the distant misty past of 2005, Supreme Court Justice Antonin Scalia found himself espousing a rather broad interpretation of the Constitution's Commerce Clause in the case of Gonzales v. Raich, as a way to justify strict federal regulation of marijuana. He wrote that, "... where Congress has the authority to enact a regulation of interstate commerce, 'it possesses every power needed to make that regulation effective,'" including regulating things that "substantially affect" commerce, even indirectly.
Last week during the oral arguments in the Affordable Care Act case, his view of the breadth of Congress' power to regulate interstate commerce seemed to be somewhat narrower. He mocked Solicitor General Donald Verrilli's arguments that the individual mandate, which would demonstrably affect tens of millions of people within a sector that controls 17% of the economy, met the same test he had just applied a few years ago to people who grow medicinal marijuana in their backyards.
Consistency being the hobgoblin of small minds, it's probably too much to ask that the considerable intellects of the Court's right wing espouse the same principles from one case to the next. But in reality, legal flip-flopping is not the biggest potential problem in the Supreme Court's consideration of the Affordable Care Act.
The true crisis of this case is the emergence of the broadly held view that this is a political Court with an ideological agenda. No one should be surprised. The five conservatives are doing precisely what they were chosen to do -- take the country back to the days before 1937, the last period when a Supreme Court posed a willful challenge to the economic polices of the elected government. Listening to the conservative justices during oral arguments, and considering other trends in the Court's decisions, it's easy to come to the conclusion that some justices are trying to bring us back to an era where business interests rule, the interests of everyday people are secondary to profit, and economic and social power is limited to a powerful few.
Clearly, the health care case carries enormous stakes. Future cases built on the principles established by a full repudiation of the ACA would threaten the progress made since the New Deal.
The threat of an overtly political Court has provoked President Obama to remind the American people that judicial restraint is supposed to be a conservative value, and to state the rather common-sense hope that "the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
Apparently, this fairly tame expression of concern has sent some conservatives into a tizzy. We now have the remarkable spectacle of Fifth Circuit Court of Appeals Judge Jerry Smith going into full schoolmaster mode, sending Attorney General Eric Holder to detention where he is instructed to write a three-page, single-spaced essay on the principle of the absolute rightness of judicial review. Maybe the next time he feels like needling the president, Judge Smith can save some time and simply send the government lawyers to a blackboard to write a thousand times, "We will never say a mean word about Antonin Scalia again."
Oh, and who is Judge Smith? He is a former chairman of the Texas State GOP Executive Committee who once characterized the League of Women Voters as the "plague of women voters," and referred to the International Women's Year Conference as a "gaggle of outcasts, misfits, and rejects," with "perverted views." He was also an oil-industry lawyer, specializing in federal energy litigation -- a category of cases he now frequently hears as a judge in the oil-soaked Fifth Circuit.
It's a good thing politics has no place in the courts or someone might think this was a judge on a mission.
Speaking of missions, who could fail to be struck by the widely reported use by Justice Antonin Scalia and other conservative justices of chewed-over Republican talking points during oral arguments, and the astonishing lack of discussion of actual case law or Supreme Court precedents? The Republican bugaboos were all there: Broccoli! Cornhusker Kickback! Too much to read! Luckily, they forgot the "death panels."
Sometime toward the end of June we'll find out if this is a Supreme Court that is severely out of touch and out of line. Let's hope the president is right and that in the end a majority of the justices will recognize the stakes, turn faithfully to the Constitution and precedent, and vote to uphold the law. If they don't, neither the Court nor the country will be the same again.
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He replied, "Medicare For All."
Anyone who is surprised by recent developments on this court hasn't been paying attention. The four right wing extremists (often with the assistance of Justice Kennedy who is not an idealogue but nonetheless views the world through a very conservative prism) have a distinct agenda in mind, which was developed when they served in the Reagan administration and honed by the Federalist Society, the Heritage Foundation (and probably ALEC). They don't care what anyone thinks about their (lack of) respect for precedent, and they brazenly make no secret of their alliances (as in Scalia and Thomas attending Koch Brothers' "retreats.")
Their concern for justice, fairness, and respect for precedent are best summed up by the stock response Scalia gives each time he's asked about the most intellectually dishonest, "activist" decision ever issued, Bush v Gore:
"Get over it."
If you want to tax me and provide a service, I can honestly live with that -because if I am unemployed, I don’t lose that service. I don’t lose access to the roads, fire departments, or police protection if I am unemployed, but I do if I had to pay for each of them independently.
Universal healthcare is such an easy and simple answer (comparatively). It is why so many other governments use it.
Why should I care about early detection and treatment of cancers and diabetes and heart disease for those people unwilling to purchase health insurance. Let them all die I say, they are getting what they voted for.
Why should I care about the people who this would benefit the most when I would get zero benefit from the ACA?
Why should I try to convince people that while the idea of the ACA is unpopular, most of the benefits are extremely popular like the cannot be dropped once you get sick part and no lifetime limits on insurance payouts ban?
In short, I'm tired of fighting for things that aren't even going to benefit me, but that I believe will benefit the country as a whole. If these dirt-poor uneducated riff-raff from the poorest, unhealthiest, least educated states don't want baseline access to heathcare, fine. Just don't go to the emergency room right before you die in the gutter... that just drives up my premiums.
Why did you cut me off? I am poor, reasonably educated, and did not support or vote for those policies that left me without health insurance. So I have to die in the gutter because others, swayed by the overpowering message of those with money, decide to vote for things that hurt me?
What can I do to make it up to you? I apologize for failing you by not voting harder or screaming louder than the full court commercial onslaught that fooled the others. Please do not cut me off. What will you use to smell your superiority with?
Sincerely,
Your Nose
Anyway, I am proud to become your first fan.
Nailed it!
Look what they did with Citizens United - overturn precedent and created new laws to benefit corporations giving them unfettered permission to spend obscene amounts of money to buy elections.
Whether the ACA is struck down depends on which corporation loses the most from enactment of the law. I say the insurance industry is the biggest loser since they are pissed that included in the ACA all those consumer protections and that they have to spend $.80 on the dollar on health care.
Justice Stephen Breyer tried to rescue the hapless Verrilli by suggesting that by virtue of being born, one enters into the “market for health care.” To which plaintiffs’ lawyer Michael Carvin devastatingly replied: If birth means entering the market, the Congress is omnipotent, authorized by the Commerce Clause to regulate “every human activity from cradle to grave.”
What? You made that up out of thin air. It's as though you are trying to say that, if some power is not explicitly laid out in the Constitution, down to the last detail, it doesn't exist.
That's like saying that, since the Constitution doesn't provide for the creation and upkeep of an Air Force, the Air Force is unconstitutional.
You are right that the insurance mandate was the result of collusion between (republican) legislators and the powerful sickness-profit industry.
Time to get rid of the insurance mandate, institute universal health care, and pay for it from general revenue funds.
One approach is an individual mandate to purchase insurance. The other approach (assuming we don't go back to letting insurance companies swindle people) is the REST of us are mandated to purchase healthcare for the free riders.
There are many other ways the healthcare problem can be addressed.
You know this is the first I've seen someone put it in words like you. The financial "commerce" is big and impacts all of us. Same argument can be made if this mandate stands that the government could force us to have an account at BofA, for example. If a large company is in trouble - what better way to bail them out by forcing us to buy a product.
Think of it this way: Every time you are taxed you are buying something. Be it military protection, police, public schools, whatever. Taxation is essentially forced purchasing of services.