Reply With Quote
Of course not. It would transmorgify to the "reasonable wing for the Democrats".
Not really. This article from 5 years ago seems to disagree.
http://writ.news.findlaw.com/lazarus/20060525.html
Most cases carry a strong majority 6-3 or better. However, the hotly contested social cases do tend to be 5-4. Each justice tending to break along party lines.
You probably would not refer to the court as the reliable wing of the Democrats if they carried the 5 majority. Not that it really matters.
Of course not. It would transmorgify to the "reasonable wing for the Democrats".
http://www.calbarjournal.com/August2...lines/TH4.aspx
Here are some more recent numbers.
LOL...
I thought he was suppose to be a cons utional law expert. Should we start calling him Barack "D-Student" Obama?
Maybe he didn't read the bill, because he didn't want to know what was in it till after it was passed.
I think his adviser was Nancy Pelosi.
Eh, the Heritage Foundation and Newt Gingrich thought the mandate would be cons utional when they were pimping it.
Good enough for me.
Analysis: Why Supreme Court may uphold healthcare law
Conventional political wisdom holds that the Supreme Court, scheduled to hear a challenge to President Barack Obama's healthcare law beginning on Monday, is likely to strike it down on partisan lines. The court's Republican appointees enjoy a 5-4 majority.
But a review of lower court rulings by conservative judges, subtle signals from individual justices, and interviews with professors and judges across the ideological spectrum suggest that presumption is wrong - and that the court will uphold the law.
Not that conservative court-watchers like to broadcast such a view in this combustible atmosphere.
"It's almost like they're confessing to some secret vice when they say they don't think (the law) should be struck down," said former U.S. Court of Appeals Judge Michael McConnell, a George W. Bush appointee who now teaches at Stanford Law School, referring to some fellow conservatives.
Several legal experts who do not necessarily favor the law, but bet it will survive, point to the decisions of two leading conservative federal appellate judges who already have sided with the Obama administration. The core of its healthcare law is a requirement that most people in the United States buy insurance by 2014.
In decisions upholding that so-called individual mandate last year, those judges stressed the classical conservative regard for judicial restraint and deference to Congress. While they wrote that the healthcare law might be flawed as a policy matter, they said decisions on how to reform the system were best left to legislators.
By contrast, three conservative judges who rejected the law took what some critics said was a more activist approach and said they were compelled to strike down the law because it exceeded congressional power. One invoked the 18th-century Boston Tea Party, in a decision widely viewed as a salute to the modern-day Tea Party movement's advocacy of less government involvement in people's lives.
In an interview, U.S. Appeals Court Judge J. Harvie Wilkinson, who was appointed to the 4th Circuit in Richmond, Virginia, by President Ronald Reagan, spoke of the philosophical division among Republican appointees to the federal bench.
"There's a real tension now in conservative ranks between those who want to use (the Cons ution) to limit the scope and size of federal government," Wilkinson said, "and those of a more traditional strain of conservatism that believes that these epic battles should be left to the political branches to fight out."
Wilkinson, who was on George W. Bush's short list for the Supreme Court, has not presided over any of the challenges to the healthcare law that have made their way through U.S. courts.
But he suggested in a recent book on cons utional theory that the law was valid, subject to Congress' power to regulate commerce in the states: "The idea that Congress is cons utionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy strikes me as a heavy lift." Healthcare spending totals more than 17 percent of U.S. gross domestic product.
TWO LIKELY CANDIDATES
If the four liberal justices vote to uphold the law, as legal analysts overwhelmingly predict, only one of the conservatives would be needed to make a majority. One likely candidate is Chief Justice John Roberts, who is generally seen as a more traditional conservative.
A 2005 appointee of George W. Bush, Roberts has often deferred to Congress. Most notably, he voted with liberals in a 2010 decision that endorsed congressional authority to require "sexually dangerous" prisoners to remain in state custody after completing their sentences. That decision in United States v. Comstock is among the cases the Obama administration relies on to defend the individual mandate.
Another conservative justice who could defy political-based assumptions is Anthony Kennedy. More than any current member of the court, he has straddled the middle and been the swing vote when the liberal wing has prevailed. That was seen as recently as Wednesday, when he joined the four liberals and wrote the decision extending the cons utional guarantee of effective legal assistance to defendants at the plea-bargain stage, not just at trial.
Kennedy's decisions relating to Congress' power to regulate interstate commerce - which will be key to the healthcare case - have been mixed. But in recent years, he has ruled for broader federal authority. In 2005, for example, Kennedy with four liberal justices - and conservative Antonin Scalia - declared that federal law trumped state policy allowing the cultivation of marijuana for medical use. That decision expansively interpreted federal commerce power and has become a major component of the Obama administration's legal defense of the healthcare law.
The Obama administration highlights that ruling, Gonzales v. Raich. In what some court watchers see as an attempt to speak to Kennedy, administration lawyers even quote him in a separate case where he voted to strike down the federal law at issue - banning guns at local schools - but stressed in his opinion that Congress had great regulatory power in national markets "to build a stable national economy."
CHALLENGING A MANDATE
At the heart of the healthcare law signed by Obama in March 2010 is the mandate that people buy insurance or face a tax penalty. That requirement is intended to bring more healthy people into the U.S. medical system, to share costs and offset the burden the uninsured put on the system when needing emergency care.
The challengers, 26 states and the National Federation of Independent Business, say such a mandate wrongly forces people who have opted out of the insurance market to spend money for a policy and, as a cons utional matter, exceeds Congress' power to regulate interstate commerce.
The Cons ution gives Congress authority to regulate commerce "among the several states" and the Supreme Court has expansively interpreted that over the years to cover a range of local activities that affect a broader national market.
After the Supreme Court agreed to take up the healthcare litigation last November, many political commentators predicted the law was doomed, based partly on the makeup of the bench.
The nine justices often divide along ideological and even partisan lines, particularly in cases involving social policy questions such as racial discrimination, abortion rights and campaign finance. On the conservative side are five Republican appointees, Roberts and Justices Kennedy, Scalia, Clarence Thomas and Samuel Alito. On the liberal wing are four Democratic appointees, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Unlike the 5-4 social policy cases, the healthcare dispute involves a structural question of the Cons ution's grant of federal power.
The decisions of the two lower court judges who sided with the administration could provide a roadmap. Both Jeffrey Sutton, of the Cincinnati-based 6th U.S. Circuit Court of Appeals, Circuit, and Laurence Silberman, of the U.S. Court of Appeals for the Washington, D.C., Circuit, are highly respected conservatives who have worked closely in the past with current justices.
In separate rulings last year, Sutton and Silberman found that Congress' power to regulate interstate commerce could cover the individual insurance mandate. Most people will eventually enter or affect the insurance market, they observed.
Sutton, a former law clerk to Scalia and Ohio solicitor general appointed to the bench by President George W. Bush, wrote that "time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation" and that any determination on whether it stands should be left to Americans' "political representatives, rather than their judges."
Silberman, a Reagan appointee who was a colleague to four of the current justices when they were on the D.C. Circuit, stressed that judges must "presume that acts of Congress are cons utional" and he cited opinions by Roberts and Kennedy in his decision upholding the individual mandate.
The conservative judges who voted against the law, on the other hand, were more ardent in their analysis and language.
In his decision invoking the Boston Tea Party, a forerunner to the American Revolution, U.S. District Judge Roger Vinson, based in Florida, wrote: "It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place."
U.S. District Judges Henry Hudson in Richmond, Virginia, and James Graham, sitting with the 6th Circuit appeals panel, called the healthcare law "legally stillborn."
AVOIDING CONTROVERSY
Other considerations suggest Roberts as chief justice might be inclined to uphold the law. He has spoken generally about the benefit of avoiding split decisions that could hurt the court's reputation and legacy in the American mind. In an interview with C-SPAN soon after he was appointed, Roberts said, "I think the most important thing for the public to understand is that we are not a political branch of government."
Roberts "seems sensitive to how he and the court are perceived," said Lawrence Baum, an Ohio State University political science professor who has studied judicial behavior.
Baum said Roberts and his fellow conservatives were likely aware of lingering criticism from the 2000 Bush v. Gore decision, ending the recounts in the Florida presidential election dispute, and in the 2010 Citizens United v. Federal Election Commission, lifting restrictions on corporate and labor money in elections.
"Given the decisions in which the court favored what are perceived as Republican interests," he said, "I think that at least some of the conservative justices welcome opportunities to appear to be above partisanship."
Several legal analysts also suggested that Roberts and Kennedy would seek to avoid a confrontation over a sitting president's signature domestic achievement. Law professors note that the Supreme Court has rarely voided a central plank of the president's agenda, the major exception being the early years of President Franklin Roosevelt's New Deal.
"This is not an ordinary law," said Akhil Amar, a law professor at Yale University who believes the healthcare law to be valid. This is a trademark piece of legislation."
http://www.reuters.com/article/2012/...=Google+Reader
The truth about healthcare reform
Provisions of the 2010 healthcare reform have already changed the lives of millions of Americans for the better. It has brought insurance coverage to more than 2.6 million previously uninsured young adults, cut prescription costs by a total of $3 billion for millions of seniors, eliminated co-pays on preventive services such as child immunizations and cancer screenings and eliminated annual and lifetime claims caps for more than 80 million policyholders.
When its broadest provisions are triggered in 2014, millions more Americans will be relieved of the threat that their insurer can dump them or jack up their premium to unaffordable heights just because they've fallen ill or been injured.
"No longer will people be bankrupted because they have a bad gene or a bad traffic accident," says Jonathan Gruber, a health economist at MIT who helped fashion the pioneering healthcare reform act in Massachusetts.
Did you know any of that? If so, you're in the minority. Only 39% of respondents to a Kaiser Family Foundation poll released this month thought they had enough information to understand how the law would affect them personally — and that figure had declined over the last year. Only 1 in 4 respondents knew that the act already has eliminated co-pays for preventive care and lowered prescription costs for Medicare members.
http://www.latimes.com/business/la-f...,901197.column
======
The Repugs/Fox/right-wing-hate-media ENDLESSLY REPEATED LIES about health care have been effective. Repugs/Fox/etc value political/financial victory for themselves (defaeating Hussein/Dems) way above advancement for Human-Americans.
Obama Lawyer Laughed at In Supreme Court
On the first day of health care reform arguments before the Supreme Court, two justices needled a top Obama lawyer for simultaneously calling the fine that will be paid under the law for not purchasing insurance a “penalty” and a “tax.”
The confusion arises because of the administration’s argument that the power to enforce the individual mandate is rooted in Congress’ taxing power — but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.
The narrow but important distinction created a communication challenge for the lawyer representing the Obama administration.
U.S. Solicitor General Donald Verrilli used the phrase “tax penalty” multiple times to describe the individual mandate’s backstop. He portrayed the fee as a penalty by design, but one that functions as a tax because it’s collected through the tax code.
“General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” said Justice Samuel Alito, in one of the few laugh lines throughout the 90 minutes of argument Monday.
The remark underscores the fine line the White House is walking in its argument. On one hand, it says the backstop is not a tax, because that could subject it to the Anti-Injunction Act — the focal point of Monday’s arguments — and delay a ruling to at least 2015. On the other, they claim that the power to impose a penalty derives from Congress’ broad taxing power. That’s in part because calling it a tax makes defending the mandate easier — Congress’ power to levy taxes is less in question than its power to require people to do things.
Justice Elena Kagan asked whether refusing to buy insurance would cons ute breaking the law, to which Verrilli responded that if people “pay the tax, then they are in compliance with the law.” That caught the attention of Justice Stephen Breyer.
“Why do you keep saying tax?” Breyer interjected, to more laughs.
The justices, particularly the four Democratic-appointees, and Justice Antonin Scalia, appeared skeptical that the fine cons utes a tax.
The distinction is nuanced, but key to one of the administration’s arguments.
Alito to Verrilli: Is it a tax or isn't it?
ouch
So what's the verdict...
gona have to wait until June for that
I can tell you it's not good when they laugh out loud at your legal argument...
http://www.outsidethebeltway.com/how...idual-mandate/Yesterday’s decision by Judge Roger Vinson has once again revived the ongoing legal battle over the cons utionality of the individual health insurance mandate. In that regard, it’s worth taking note that a concurring opinion by one of the Supreme Court’s most conservative justices may end up being the argument that saves Obamacare:
Lawsuits from 14 states challenging the cons utionality of the new national healthcare law face an uphill battle, largely due to a far-reaching Supreme Court ruling in 2005 that upheld federal restrictions on home-grown marijuana in California.It’s worth quoting at length from Scalia’s concurrence in that case, Gonzalez v. Raich:
At issue in that case — just like in the upcoming challenges to the healthcare overhaul — was the reach of the federal government’s power.
Conservative Justices Antonin Scalia and Anthony M. Kennedy joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients.
They said the Cons ution gave Congress nearly unlimited power to regulate the marketplace as part of its authority “to regulate commerce.”
Even “noneconomic local activity” can come under federal regulation if it is “a necessary part of a more general regulation of interstate commerce,” Scalia wrote.
The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.Applying that reasoning to the individual mandate would give a Justice a very easy way to find something that is seemingly not authorized by the Cons ution to be completely acceptable:
(…)
Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general cir stances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36—37 (1937). That is why the Court has repeatedly sustained congressional legislation on the ground that the regulated activities had a substantial effect on interstate commerce. See, e.g., Hodel, supra, at 281 (surface coal mining); Katzenbach, supra, at 300 (discrimination by restaurants); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964) (discrimination by hotels); Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 237 (1948) (intrastate price-fixing); Board of Trade of Chicago v. Olsen, 262 U.S. 1, 40 (1923) (activities of a local grain exchange); Stafford v. Wallace, 258 U.S. 495, 517, 524—525 (1922) (intrastate transactions at stockyard). Lopez and Morrison recognized the expansive scope of Congress’s authority in this regard: “[T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” Lopez, supra, at 560; Morrison, supra, at 610 (same).
(…)
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted abovesuggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
Legislators argued that the “individual mandate” was necessary because it would undercut the insurance market if individuals could just opt out of having health insurance. Freeloaders could wait until they were hurt in an accident or contracted a disease and then demand insurance coverage for their “preexisting condition.”Some what wondered whether Scalia will be able to square a ruling against the mandate with his concurrence in Raich, but even if he can the reasoning stands as as powerful argument for a Justice like Anthony Kennedy to hang their argument on if they wished to uphold the mandate.And we’d have the most conservative “originalist” on the Court to thank for it.
The court’s ruling in the 2005 case, Gonzales vs. Raich, “is an enormous problem” for those who contend that the healthcare mandate is uncons utional, said Simon Lazarus, a lawyer for the Washington, D.C.-based National Senior Citizens Law Center.
“It clearly says Congress has vast regulatory authority over interstate commerce,” he said.
Rachel Maddow absolutely destroys the Repugs by videos of many of them from 1993 strongly supporting the "individual mandate" for health insurance, and they say it would be "Cons utional", and just like the individual mandate for auto insurance, individuals forced to buy, under pain of penalty, from a for-profit corporation.
http://www.msnbc.msn.com/id/26315908/#46862948
proves the Repgs don't GAF about Human-Americans and America, but only about obstructive/destructive/polarizing All Politics All The Time.
Last edited by boutons_deux; 03-27-2012 at 08:27 AM.
Are the GOP Justices Political Hacks? Part One
Exclusive: The “Obamacare” debate will test whether the U.S. Supreme Court’s five Republican justices are political hacks. After all, a right-wing think tank devised the individual mandate, which was embraced by GOP front-runner Mitt Romney, but it’s now anathema because it was passed by a Democratic president, Robert Parry writes.
By Robert Parry
Does anyone doubt that if a Republican president had enacted the Affordable Care Act – with its individual mandate devised by the right-wing Heritage Foundation and with Mitt Romney denouncing “free riders” not paying their share of health care costs – the U.S. Supreme Court’s Republican majority would be lining up to declare it cons utional?
Indeed, if the Heritage Foundation, which did dream up the individual mandate, were submitting supportive friend-of-the-court briefs – instead of denouncing its own idea – and if Romney were still deriding those “free riders” who palm off the costs for their emergency health care on others, the odds would be that the Court would vote overwhelmingly for the cons utionality of the health reform law.
U.S. Supreme Court
After all, the Commerce Clause – upon which the Affordable Care Act is based – represents a virtually unlimited authority for Congress to enact laws to regulate interstate commerce, a power which can require individuals and companies to either do something or not do something.
For instance, in a Nov. 8, 2011, legal opinion affirming the cons utionality of the Affordable Care Act, conservative U.S. Appeals Court senior judge Laurence Silberman recognized this legal reality (even though he might not politically like “Obamacare”).
Silberman, an appointee of President Ronald Reagan but a serious cons utional scholar, explained how the law – including its most controversial feature, the individual mandate requiring the purchase of health insurance coverage – fits with the Commerce Clause.
“We look first to the text of the Cons ution,” Silberman wrote in his opinion. “Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (Emphasis added by Silberman).
“At the time the Cons ution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’
“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is uncons utional.
Silberman’s last point bears repeating: There is “no textual support” in the Cons ution for people challenging the Affordable Care Act’s individual mandate.
So, for “strict constructionists” – as the Republican justices claim to be – it would seem to be a simple case. The Cons ution grants Congress the power to regulate interstate commerce; health insurance has a substantial impact on interstate commerce; ergo, a legally enacted congressional statute regulating the sale and purchase of health insurance fits within the Cons ution.
However, almost no one expects the bloc of five partisan Republicans to abide by their purported principles of judicial restraint and strict construction when the Affordable Care Act is debated before them this week. The reason for that skepticism is the recent history of these justices making a mockery of their judicial philosophies when they collide with GOP partisan needs.
Hitting Obama
And, even though the individual mandate was initially a conservative Republican idea – an alternative to Democratic plans that would have required employer-supplied insurance or a single-payer system run by the government – the GOP and the conservative movement have now turned against their own concept en masse. Not a single Republican voted for “Obamacare.”
Therefore, at least some of the five Republicans – John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy – are expected to find some legal argument that they can use as judicial cover to strike a blow at the Democratic president, Barack Obama.
To do that – in essence to overturn the legal reasoning of Appeals Court Judge Silberman – the GOP justices will have to intuit some unstated right in the Cons ution on behalf of Americans who simply don’t want to buy health insurance.
Such creative legal reasoning is exactly what the right-wing justices typically condemn. After all, the phrase “strict construction” is supposed to mean following the precise language of the Cons ution and not “legislating from the bench.” But it is already clear that some of the Republican justices, such as Clarence Thomas whose wife is publicly campaigning against the law, will find whatever excuse is necessary to vote no.
For anyone who thinks that such a su ion is overly cynical, you should think back on the unprincipled behavior of Justice Scalia, who was a prime mover in the U.S. Supreme Court shutting down a Florida state recount of the presidential vote in 2000 with the explicit intent of protecting George W. Bush’s “legitimacy” once the Court decided to hand him the White House.
In Bush v. Gore, Republican partisans on the Court, then including Chief Justice William Rehnquist and Justice Sandra Day O’Connor (who was considering retirement to care for her ailing husband), assembled a 5-4 majority on the key issue of rejecting the Florida recount standards and preventing them from being fixed.
It didn’t seem to matter that the Court’s intervention violated many of the supposed principles that the justices claimed to embrace, such as judicial restraint, respect for state privileges and refusal to divine meanings in cons utional provisions not explicitly stated by the Framers.
The five GOP partisans applied the 14th Amendment’s requirement of “equal protection” under the law, essentially turning this important post-Civil War principle on its head. After all, the recount was an effort to recover legitimate ballots cast on antiquated voting machines mostly by poor and minority citizens while voters from richer and whiter precincts had their ballots counted in a higher proportion on state-of-the-art equipment.
But the GOP Five didn’t mind perverting the 14th Amendment because they were looking toward a political higher cause: an excuse to “elect” Bush and thus give him the power to appoint future federal judges. What really mattered was continued Republican control of the Supreme Court, so the Cons ution was treated as a malleable weapon for partisan purposes.
Scalia’s Turnabout
Though O’Connor may have had the most pressing concern about Bush’s appointment power – so she could leave her seat to another Republican – the hypocrisy was perhaps most striking for Justice Scalia, an advocate for an “originalist” interpretation of the Cons ution, i.e. that the courts must follow the original intent of the Founders or those who approved cons utional amendments.
Thus, Scalia has argued that the 14th Amendment could only apply to black males because in 1868, when the amendment was passed, it was intended to grant full citizenship to black males who were recently freed from slavery.
However, the amendment’s language is much broader. It states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
During the 20th Century, courts increasingly interpreted the clear wording to guarantee fairness for women, gays and other people facing legal discrimination. However, Scalia has ridiculed such rulings as violating the “original intent.”
“In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation,” Scalia said in an interview with the legal magazine California Lawyer. “So does that mean that we’ve gone off in error by applying the 14th Amendment to both? Yes, yes. Sorry, to tell you that.”
However, if the “original intent” of the amendment’s drafters was so determinative – that the 14th Amendment supposedly was only meant to apply to black men at the end of slavery – it might be safe to assume that the drafters weren’t thinking about protecting a white plutocrat like George W. Bush from possibly losing an election in Florida in 2000.
Yet, the 14th Amendment was precisely what Scalia and four other partisan Republicans on the Supreme Court cited to justify shutting down the Florida recount and handing the White House to Bush, despite the fact that he lost the national popular vote and apparently would have come out on the short end of the Florida recount if all legally cast ballots were counted.
In other words, Scalia and other right-wing justices operate with a situational ethic when it comes to “originalism” and “strict construction.” If their partisan and ideological interests require the abandoning of those precepts, the principles are unceremoniously dumped overboard.
No Politics?
Of course, after the Court’s Bush v. Gore ruling — and Al Gore’s gracious-but-pained concession speech the next day — Justice Thomas insisted that politics played “zero” role in the court’s decisions. Later, asked whether Thomas’s assessment was accurate, then-Chief Justice Rehnquist answered, “Absolutely.”
In later comments about the Court’s role in the case, Rehnquist seemed unfazed by the inconsistency of the Court’s logic. His overriding rationale seemed to be that he viewed Bush’s election as good for the country – whether most voters thought so or not.
In a speech on Jan. 7, 2001, Rehnquist said sometimes the U.S. Supreme Court needed to intervene in politics to extricate the nation from a crisis. His remarks were made in the context of the Hayes-Tilden race in 1876, when another popular vote loser, Rutherford B. Hayes, was awarded the presidency after justices participated in a special election commission.
“The political processes of the country had worked, admittedly in a rather unusual way, to avoid a serious crisis,” Rehnquist said. Scholars interpreted Rehnquist’s remarks as shedding light on his thinking during the Bush v. Gore case as well. [For more details, see Consortiumnews.com's "So Bush Did Steal the White House" or the book, Neck Deep.]
A thankful Bush then used his authority over appointment of federal judges to further stack the Judiciary with right-wing ideologues, including later replacing Chief Justice Rehnquist with John Roberts and Sandra Day O’Connor with Samuel Alito.
So, with the presidential appointment power at stake again in 2012, the current Republican bloc of Roberts, Scalia, Thomas, Alito and Kennedy can be expected to be tempted once more with not just legislating from the bench but trying to tilt the political balance to the GOP.
For instance, their 2010 ruling on the Citizens United case – allowing billionaires to pour unlimited money into negative campaign commercials – was viewed as an advantage to Republicans and was condemned by Obama. Now, the same justices have a chance to deliver a body blow to the President who spent enormous political capital pushing through the Affordable Care Act.
Since many Americans still view the Supreme Court as the impartial arbiter of what’s legal, they are likely to react to a judgment striking down “Obamacare” as reinforcement of the belief that Obama had wasted a year of the country’s time getting the law passed.
Extracting a New Right
The expectation on the Right is that the five GOP justices will extract from the Tenth Amendment some previously unidentified “right” of a citizen not to have to submit to the broad congressional power embedded in the Commerce Clause.
On its face, the Tenth Amendment would seem to be irrelevant to the issue since it simply reserves for the states and individuals “the powers not delegated to the United States by the Cons ution.” Because the Cons ution does grant Congress power to regulate interstate commerce, the five Republicans would have to first conclude that the Commerce Clause does not cover regulation of the health insurance market despite its obvious significance to interstate commerce.
As Solicitor General Donald B. Verrilli Jr. noted in the U.S. government’s court brief, uninsured Americans consumed about $116 billion in health-care services in 2008, meaning that those costs were either paid by health providers or passed on in higher premiums to other consumers, adding up to about $1,000 per family.
Given this undeniable impact on national commerce by uninsured Americans, the only serious legal issue remaining would seem to relate to the novelty of the solution, i.e. the individual mandate. Judge Silberman’s ruling also addressed that point, concluding again that the law appeared to fall within cons utional precedents.
“Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible,” Silberman wrote.
Neither limitation applied to the health-care law, Silberman noted, because medical insurance was clearly an economic activity and surely had sizable interstate implications.
As for the claim that people had a cons utional right not to participate in the purchase of health insurance, Silberman was not persuaded. For instance, he cited a Supreme Court precedent that a farmer who wished to raise wheat for his own consumption could still face federal restrictions because his production (and that of other likeminded farmers) could affect the overall supply of wheat and thus undermine federal policy regarding the wheat market.
=========
SHORT ANSWER: YES
Are the GOP Justices Political Hacks? Part Deux
Congressional Powers
Silberman also recognized Congress’s power to address difficult national problems, like the tens of millions of Americans who lack health insurance but whose eventual use of medical services would inevitably shift billions of dollars in costs onto Americans who must pay higher insurance rates as a result, what courts have described as “substantial effects.”
“The shift to the ‘substantial effects’ doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce,” Silberman wrote.
“Its very premise is that the magnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce. …
“It is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s cons utional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities.
“Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence.”
Silberman wrote that “Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services – as rather useless as that would be – is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.”
He noted that since those challenging the health-care law “cannot find real support for their proposed rule in either the text of the Cons ution or Supreme Court precedent, they emphasize both the novelty of the [individual] mandate and the lack of a limiting principle,” i.e. some example of when the government could not require citizens to purchase a specific product.
Silberman acknowledged that “the Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s cons utional bounds,” but added that “we are obliged – and this might well be our most important consideration – to presume that acts of Congress are cons utional” absent “a clear showing to the contrary.”
Silberman also addressed the core political objection to the health-reform law, its supposed intrusion on individual liberty. He wrote: “That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before – but that seems to us a political judgment rather than a recognition of cons utional limitations.”
He added: “It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.
“The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local – or seemingly passive – their individual origins.”
So, even a very conservative legal scholar examining the Cons ution and precedents could not find a convincing argument to overturn “Obamacare” – and that is because the Founders intentionally and broadly empowered Congress to address national economic problems through the Commerce Clause.
Among the principal advocates of the Commerce Clause were James Madison, the architect of the Cons ution, and George Washington, who presided over the Cons utional Convention in Philadelphia in 1787. [See Consortiumnews.com’s “Madison: Father of the Commerce Clause.”]
Partisan Agenda
But it appears that cons utional principles will have less to do with how the Republican partisans on the Supreme Court rule than the perceived need to advance an ideological and political agenda.
These opponents of the health-care law surely will muster some impressive “lawyering” with lots of high-brow references to various articles and clauses – just as they did in the Bush v. Gore ruling. But that will mostly be window-dressing to impress those who still believe in the integrity of this Supreme Court.
Of course, it is still possible that one or more of the Republican partisans will overlook their political loyalty to the GOP and their ideological commitment to the anti-government Right – and agree with Judge Silberman that the Affordable Care Act is cons utional.
Such a justice might even think back on how the individual mandate began as a right-wing idea and thus refuse to behave as a political hack who simply switches cons utional principles based on whose name is associated with a law.
For instance, here is a Q and A by the magazine, This Week:
“Who first proposed making health insurance compulsory?
“The Heritage Foundation, a conservative think tank. In the late 1980s, when Democrats were pushing to require employers to provide health insurance, the foundation started thinking about ways to achieve universal coverage without placing a heavy burden on business. Its experts soon encountered the ‘free rider’ problem: In a system where insurers are barred from refusing applicants with pre-existing conditions, many people — especially the young and healthy — would only buy a policy when illness struck.
“But if only sick people bought coverage, insurers would pay out more in doctors’ bills than they received in premiums, and quickly go bust. To overcome this death spiral, the Heritage Foundation suggested that every American be required to buy health insurance, a requirement known as the individual mandate.
“Which politicians took up that idea?
“Many Republicans did in the early 1990s, after President [Bill] Clinton introduced a plan that would have forced companies to cover employees. ‘I am for people, individuals — exactly like automobile insurance — having health insurance and being required to have health insurance,’ said Newt Gingrich, then House minority whip, in 1993.
“When the Clinton plan collapsed in 1994, talk of the individual mandate died with it. But a decade later, Mitt Romney, then the governor of Massachusetts, resurrected the concept for his state health-care plan, which requires residents to buy health insurance or pay up to $1,212 in annual penalties.
“‘It’s a Republican way of reforming the market,’ Romney said when the law debuted, in 2006. ‘[To have] people show up [at a hospital] when they get sick, and expect someone else to pay, that’s a Democratic approach.’”
During Campaign 2008, Obama opposed the idea of an individual mandate while Hillary Clinton supported it. After taking office, Obama changed his mind because he judged that adopting the Republican approach was the only way to win passage of a health-care bill. He also favored a “public option” as an alternative to private insurance.
However, with every Republican now voting against health reform, Obama had to jettison the “public option” to secure the 60 votes needed in the Senate to stop a GOP filibuster. When the bill was signed into law two years ago, Republican state officials immediately began filing legal challenges and the Right rallied Tea Partiers and other Americans against the law’s supposed intrusion on their “liberties.”
It quickly became an article of faith on the Right that the law was “uncons utional.” However, the law will likely only be judged so if the five Republican justices do what a similar bloc of GOP justices did in December 2000 – put their political interests ahead of the law.
http://consortiumnews.com/2012/03/25...litical-hacks/
Republican idea...greatest thing since sliced bread...Democratic idea...uncons utional...
From what I'm hearing the Affordable Care Act is in trouble.
SCOTUSBlog, for one, is suggesting pretty strongly that Justice Kennedy will (as usual) end up deciding this dispute and that there's a reasonable chance that if he can find a limiting principle -- something that will allow this law to withstand cons utional muster without opening the floodgates to broad regulation -- there might be a unique facet to this sort of market that justifies upholding the law.
It's difficult to ever discern what judges mean by their questions/statements during oral argument; some have an idea and use their questioning time to test the logic of it, offering seemingly hostile questions to an advocate to see what someone else thinks of it.
It's also rarely true that anything said at oral argument will ultimately change the position of a justice (other than, perhaps, how counsel deals with devil's advocate questions). Good briefing wins and bad briefing loses. That may prove to be a fortunate thing for the Government, since the Solicitor General did not -- apparently -- distinguish himself in his oral argument this morning.
OK, report and transcript for today are out...
http://www.usatoday.com/news/washing...ate/53801274/1
Looking forward to the ruling after todays arguments...
Once you're into interstate commerce and can regulate it, pretty much all bets are off," Roberts said. Added Justice Antonin Scalia: "What is left? If the government can do this, what else can it not do?"
Yes, we need to have Obamacare struck down to place limits on what the government calls interstate commerce.
I think our founding fathers are all turning in their graves over what the government does under the commerce clause. It does far too much.
"If the government can do this, what else can it not do?"
asshole, anything regulating interstate commerce. Read the Cons ution "strictly".
an individual mandate "to eat broccoli" is a silly, spurious, and partisan as you are a troll and shill for the VRWC.
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