This week, the Supreme Court will take up its historic three-day consideration of the health care law. My Supreme Court class will be spending two weeks on the four insular issues before the Court, including the question of federalism.
For a prior column on my view of the federalism question, click here.
As I have previously noted, it is not simply Justice Kennedy but Justice Scalia that will be the focus of attention in these oral arguments. In order to support the states, Scalia will have to distinguish past statements embracing broad interpretations of federal jurisdiction. For all intents and purposes, this could be an argument before a court of two with the parties striving to lock in both Scalia and Kennedy.
It is a closer case because of the refusal of Justice Kagan to recuse herself. I have previously said that I believe there are strong arguments to be made for such recusal by Kagan. If the Administration prevails, her participation will always be viewed in history as problematic by many.
I have stated before that I believe that the cases favor Congress in the lower courts, but that there is strong precedent on both sides. Obviously, both challenging the law are emphasizing United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000). The Court stated in Morrison that it would not accept “the argument that Congress may regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce.” Id. at 617. In Lopez, the Court required more than what Professor Fried appears to demand in the nexus to support federal authority. In striking down the Gun-Free School Zones Act, the Court found that the claim could not be sustained “under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” Lopez, 514 U.S. at 561. Again, the question as stated by Chief Justice Marshall is whether this claim conforms with “the letter and spirit of the constitution.”
As I have stated, people of good faith can disagree on these points and the matter cannot be fully resolved until put before the Supreme Court. Most people anticipate that Justice Kennedy will be the swing vote on a close decision. In both Lopez and Morrison, Kennedy voted to strike down the laws. However, in his concurrence, Kennedy did note that the history and language of the Constitution “counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power.” Moreover, Kennedy did vote to uphold the Controlled Substances Act in Gonzalez v. Raich, 545 U.S. 1 (2005). He agreed that, absent the authority, Congress could not regulate drugs. I am frankly not convinced that the same nexus can be established here.
There is also some question over Justice Scalia’s view since he also concurred in Raich. In that decision, Scalia noted that “[u]nlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. . . . Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.” However, he also found that “[t]his is not a power that threatens to obliterate the line between “what is truly national and what is truly local emphasis added.”
I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope.
Swarthmore mom:
Lieberman comes from Connecticut, home to most of the insurance executives in the nation — the Big Money Boys; that’s why he would naturally oppose anything that would cut into the PROFITS of insurance companies.
Obama has NO such excuse for NOT fighting for the public option.
We were exhaustingly told what a “spellbinding” orator Obama was, but he never used his oratorical skills to wage even a tiny fight for the public option.
Obama is a political coward.
Not true. Lieberman has long been an opponent of a public option even before Obama ever appeared on the scene. His wife worked for Pfizer and he was in their pocket. You sound very familiar.
Newt Gingrich: I would ignore supreme court as president
Republican presidential candidate would order military to defy judges’ ruling extending legal rights to terror suspects
http://www.guardian.co.uk/world/2012/jan/19/newt-gingrich-ignore-supreme-court-president
Here is the link again, in case you missed it the first time,
http://www.huffingtonpost.com/miles-mogulescu/ny-times-reporter-confirm_b_500999.html
S.Mom, read the link. Obma sold out the public option. Read the link, Miles Mogulesco has far more compelling and substantiated evidence for the claim than simply repeating that Obama didn’t have the 60 votes. No one ever has sixty votes unless they try for them or unless they are Republican and then they don’t even need the 60 votes. And as to LIeberman, it is widely agreed he was simply returning a favor to Obama for not having him thrown out of any leadership positions.
Just a side question here:
Is it true that by claiming religious reasons, the Amish and Muslims would NOT have to pay into any mandated health insurance program?
I heard something to that effect today and I am curious.
If it is true that groups can be excluded from the mandate for religious reasons, then it is also true that (perhaps) millions of people might still turn up in emergency rooms when needing care, and the taxpayers will still have to pay for their medical care.
Healthcare Reform
Tuesday, Oct 27, 2009 1:10 PM Central Daylight Time
Lieberman will join filibuster of public option
The independent senator from Connecticut’s decision all but kills the legislation’s chances
By Alex Koppelman
Progressives didn’t even get 24 hours to celebrate the victory they won in getting Senate Majority Leader Harry Reid to include a version of the public option in his healthcare reform bill. The celebration was cut off Tuesday afternoon with the news that Sen. Joe Lieberman, I-Conn., will vote with Senate Republicans to filibuster the legislation.
“I’ve told Sen. Reid that if the bill stays as it is now I will vote against cloture,” Lieberman told Politico. “To put this government-created insurance company on top of everything else is just asking for trouble for the taxpayers, for the premium payers and for the national debt. I don’t think we need it now.”
Brooklin Bridge, There were never 60 votes. Period. If you have the names of sixty senators that would have supported a public option, please post.
Obama did not get rid of the public option. That is pure propaganda.
Oh yea, I forgot how valiantly Obama used the bully pulpit to argue for a strong public option and how much pressure he applied to a congress where both houses were controlled by Democrats. What were his words again? Oh yes, “The public option is but a tiny sliver of my plan, we can get rid of it with no problem”. That sell out took a lot of courage and a lot of people really appreciated him “at least trying.”
As for Obama making a secret deal with the insurance companies, read this. It doesn’t sound anywhere near as much like propaganda as the starry eyed version of this legislation being about making health care afordable or even available.
For the rest of it, Insurance companies have proven themselves to be masters of loop holes when it comes to people with pre-existing conditions and the co-pays for the basic “poor folks” plan are astronomical. This is pure junk-health care offered as the thinnest of excuses to establish corporate ownership of people’s meager resources and governments willingness to legitimize and facilitate that ownership.
TPMDC
Sandra Fluke Is Relevant, Say Anti-Health Reform Tea Partiers
Health Care Before The Court
Evan McMorris-Santoro March 26, 2012, 12:45 PM 3728 65
A lot of Republicans on the national stage would rather not rehash the battle over Sandra Fluke, the Georgetown Law student who galvanized the left last month when she was attacked by Rush Limbaugh after arguing in favor of contraception coverage.
Not so here outside the Supreme Court, where the justices heard the first day of arguments over health care reform. Fluke was a central topic among the several dozen tea party protesters who gathered outside the court Monday. As a much larger crowd of organized pro-reform activists from labor and other Dem-friendly groups marched in support of the law, one tea partier yelled, “Real women pay for their own birth control!” — a clear reference to Fluke and the fight over contraception access she embodies.
Others were more direct. One protester carried a sign that said, “Sandra Fluke I don’t want to pay for your birth control,” which drew criticism from the pro-reform crowd. “Do you agree with what Rush Limbaugh said?” A pro-reform demonstrator yelled into a small group of tea partiers gathered around the sign.
The Affordable Care Act has been a real gift to young people and seniors:Already more than two million young adults have gotten health insurance through their parents’ policies. More than five million seniors and people with disabilities have saved more than $3 billion on prescription drug costs, according to the Department of Health and Human Services. Millions of Americans have consumer protections that, for those unlucky to need them, have made a real difference in their lives.
Of course, it won’t be until 2014 that we see the really big changes in health insurance coverage —the expansion of Medicaid to include everybody with income below 300 percent of the poverty line, the creation of a marketplace with subsidies where individuals and small businesses can get affordable insurance without discrimination. Undoubtedly this helps explain the public’s ambivalence. I agree with Jonathon Cohn’s assessment here.I know a lot of unemployed young people that would have gone without healthcare if this legislation had not been signed into law.
Rather have this than none especially if one has a pre-existing condition and no insurance. Obama did not get rid of the public option. That is pure propaganda.There were never the votes for it. Lieberman and Ben Nelson and every single republican were against it. There was no way 60 votes could be achieved.
What about automobile insurance, aircraft insurance, or boat insurance? -Dredd
It’s less expensive and one can choose not to own a car, fly a plane or buy a boat. I hate the idea of a health insurance mandate.
Many people are already stretched to their limits, financially. And many aren’t going to want government assistance or vouchers (or whatever is being proposed). In the future, it’s my bet that not only will many go without health insurance, they’ll also go without any health care at all, if possible, to avoid paying a penalty.
The mandate is a terrible idea, but “a foregone conclusion”, as Brooklin Bridge said.
“Pompous theater. The mandate is a foregone conclusion and has been since the moment Obama got rid of any sort of strong Public Option (government regulatory pressure) in his secret dealings with the insurance giants.” -Brooklin Bridge
“Pompous theater”, indeed. If I had to bet on the mandate, I’d swing your way. More money for the insurance companies — it would seem like a no-brainer.
D.S 1, March 26, 2012 at 1:07 pm
I still don’t believe it is the right of any govt to force you to buy something, it’s completely beyond what the constitution intends.
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What about automobile insurance, aircraft insurance, or boat insurance?
Pompous theater. The mandate is a foregone conclusion and has been since the moment Obama got rid of any sort of strong Public Option (government regulatory pressure) in his secret dealings with the insurance giants.
Lyle Denniston Reporter
Posted Mon, March 26th, 2012 1:28 pm
Argument recap: Moving on to the mandate
Analysis (Updated 1:54 p.m.)
When Chief Justice John G. Roberts, Jr., commented at the end of Monday’s first day of hearings on the health care law, “We’ll continue argument on this case tomorrow,” it seemed to have a secondary meaning even if he did not intend it. The comments and questions of the Justices during the 89-minute exchange left the distinct impression that they are prepared to rule on the constitutionality of the mandate that individuals must buy health insurance, and not push the issue off into the future. The exact route they would take was a bit uncertain, but their skepticism about taking a pass now was clear.
Chief Justice John G. Roberts, Jr., soon began a line of inquiry that, he said, amounted to Long’s “biggest hurdle” to closing the courthouse to the challenges to the mandate and its penalty. Going back to the Supreme Court’s decision in Helvering v. Davis in 1936, upholding the original Social Security Act, the Chief Justice noted that that was a tax challenge and the government had waived its right to block that lawsuit. “So,” Roberts asked, “are you asking us to overrule the Davis case?”
That did not mean, of course, that the Court would ultimately uphold the mandate. That is tomorow’s question, although the Justices asked many questions about the mandate, showing they are deeply curious about its scope and meaning. But an argument that at times seemed almost to bog down in the dense complexity of the tax code pointed toward a refusal to bar the lawsuits that had challenged the mandate and had put its survival before the Court this week. One of the telltale signs of that sentiment was that not one Justice, and no lawyer at the lectern, said that it would be premature and a contradiction of the Court’s tradition against deciding constitutional issues prematurely for the Court to rule promptly on the mandate’s validity.
This case has to do with legitimizing a totally new and economically destructive relationship between the public and private enterprise and making that relationship enforceable by the government so as to save corporations the expense. Healthcare is simply a cruel and ironic way of making this relationship appear to have a humanitarian bent when current events regarding bailing out corporate behemoths with zero penalties for their illegal behavior as well as current efforts by both political parties to destroy the social safety net clearly demonstrate that nothing could be farther from the truth.
I still don’t believe it is the right of any govt to force you to buy something, it’s completely beyond what the constitution intends. Regulating commerce was supposed to simply allow free trade between states not run the economy, Obama has already shown he has no regard for the constitution & he seems to believe the govt is a cute all for everything. If, and I hope it doesn’t pass, what are all the poor people who simply cannot afford it going to do? Just another jack boot on the throat of everyone for the special interests, its interesting to watch what used to be the most free country in the world devolve into what can only be described as some facist, progressive melting pot. Big business wins but we’ll make sure everyone pays there fair share. The people who fought the revolution are rolling in their graves.
This ruling will have nothing to do with making people buy broccoli and everything to do with forcing them to empty their pockets for the profit of giant corporations. If more profit for private enterprise can be made by the government forcing its citizens to buy broccoli than health insurance, then and only then will the case in point be about broccoli.