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.
Now look at the fine mess that we’ve started. Nothing quite like a vendetta to finish.
Swarthmore mom
“do you really think the republicans in Congress will turn around and vote for single payer? I don’t.”
Don’t be absurd.
The time for Obama to fight for single-payer or at least the public option was at the beginning of the negotiations.
But he didn’t even try. He gave up on both before even entering the room to negotiate.
Why do you assume criticism of Obama comes only from Republicans? Obama has been a huge disappointment to many if not most Democrats who believed him when he said all the fine things during the campaign. I never did believe him but I also never imagined he would be the disaster for Democrats that he has been.
Please don’t assign opinions to me that I have not expressed and do not hold.
Thank you.
S.Mom, this isn’t about health insurance companies; it’s about fascism. It’s about an increasingly authoritarian government constantly wrapped up in dubious wars requiring and being ready to enforce that it’s citizens participate in a pathological relationship with giant private enterprise that has a proven track record of placing profit above all humanitarian concerns and of avoiding any and all responsibility for illegal and unethical actions against those same people by the act of buying and corrupting politicians.
pete, yep.
Swarthmom
it’s true they didn’t have the 60 votes, but it would have been good to see some repubs read out of a phonebook for a few days.
firefly, If the SCOTUS strikes down Obamacare, do you really think the republicans in Congress will turn around and vote for single payer? I don’t.
brooklin bridge, I don’t like the health insurance companies. I am hoping Obamacare is just a step toward medicare for all.
Swarthmore mom:
Obama didn’t try at all for the public option. He was AWOL on the public option and threw single-payer out the window before the negotiations even began.
Perhaps Planned Parenthood, like AARP, simply wants a seat at the table. Simply wants to be part of the “grown ups” and so is willing — like the CEO of AARP — to let the masses be fooled by propaganda about “earning the right to be heard” while he secretly negotiates accepting cuts in social security and raising the age for Medicare.
Good luck with that.
Not saying Obama could not have tried harder but after Kennedy died it was numerically even more of an impossibility. Also, there was no stronger proponent of national healthcare in the Senate than Ted Kennedy. The loss was a double whammy for the cause.
S.Mom, you havn’t taken up one single link I provided.
I have shown links that provide solid evidence that Obama secretly negotiated away the public option and the same showing that Lieberman was FOR the public option in 2004 and again in 2006. Of course you’re not going to reply. You have no reply.
It’s impossible to give you sixty names and you know it because Obama never wanted 60 votes or 30 votes or 20 votes or 10 votes or even one single vote for the public option and he proved that by never giving one single solitary speech — he was so famous for — on it’s behalf. That is, once he was elected.
Evan Bayh, a blue dog, was another “no” vote.
Brooklin, That’s not 60 names. Ben Nelson was not voting for it either. Then, Kennedy died and it was all over.
Planned Parenthood is at the SCOTUS in support of Obamacare and the tea party is down there protesting against it and attacking Sandra Fluke again. I am with Planned Parenthood.
Not true. Lieberman has long been an opponent of a public option even before Obama ever appeared on the scene.
Bull. Try reading thisOR THIS
You asked me to provide the names of 60 representatives that would have voted for a public option that Obama did everything in his power to trivialize; well, perhaps you would be good enough to refute these hard links substantiating that LIberman was FOR the public option before he was AGAINST it.
The Affordable Care Act Two Years Later: #HealthcareWorks
It’s been two years since the Affordable Care Act (ACA) — the groundbreaking health care law that improves access to affordable, quality health care for millions — was passed. Already more than 20 million women are receiving preventive care without co-pays. It is the single biggest advancement in women’s health in a generation.
As a health care provider whose doctors and nurses serve nearly three million people every year through its nearly 800 affiliate health centers across the country, Planned Parenthood is committed to expanding access to affordable care. Here are seven reasons why we are celebrating the Affordable Care Act.
1. 20 Million More Women Have Received Preventive Care without Co-pays
The numbers don’t lie. It’s been two years, and 20 million women are receiving care they previously had to pay for. That’s more than 27,000 women every single day receiving coverage for preventive services, such as mammograms and Pap tests.
2. Increasing Access to Contraception
In a time when many are trying to restrict access to comprehensive reproductive services, the Affordable Care Act increases access to contraception for women. Under the ACA, insurance companies and employers (with the exception of churches and other places of worship) must cover contraception without any additional co-pays. It’s no surprise that this is one of the most popular benefits of the health reform law — maybe it’s because birth control use is nearly universal. Ninety-nine percent of all sexually experienced women and 98 percent of sexually experienced Catholic women have used it at some point in their lives. Not to mention the fact that 58 percent of women who use the birth control pill use it for purposes other than pregnancy prevention, including managing endometriosis, ovarian cysts, and other medical conditions. It’s basic preventive care and can save women up to $600 per year.
3. Expanded Access for Women (especially Young Women)
More access means more healthy women. Under the law, access to affordable health insurance will become available for the nearly 13 million women of reproductive age who will be newly eligible for insurance coverage. Young women (and men) under the age of 26 don’t need to worry about immediately being dropped from their health care plan upon graduating college. In the majority of cases, they will be able to remain on their parents plans no matter if they are married, living with their parents, still in school or looking for a job. These women and men will be able to be covered up until the age of 26.
4. Ending Discriminatory Practices Against Women
The ACA protects women from insurance companies charging higher premiums, sometimes up to 150 percent more than men. Insurers will no longer be able to deny health care coverage because of a “pre-existing condition” such as breast cancer, high blood pressure, or diabetes. This is especially good news for women who have been denied coverage because some health insurers have claimed that even pregnancy or being a survivor of domestic violence is a pre-existing condition.
5. Promoting the Health of Women by Covering Preventive Care
By guaranteeing coverage of preventive care, such as lifesaving breast cancer screenings and immunizations without co-pays, the Affordable Care Act promotes the health of women. Additionally, all new health plans will be required to offer essential benefits for women including maternity care, reproductive care, and prescription care. The law also guarantees access to their ob/gyn provider without another doctor’s referral or approval from the insurance company.
6. Your Insurance Company Can’t Come Between You and Your Doctor
Every woman knows how important access to ob/gyn providers is to maintaining good health. But, too many women have faced barriers to accessing them. Under the law, your insurance company can’t come between you and your doctor. Because of the ACA, women will have guaranteed access to an ob/gyn provider without having to wait for a doctor’s referral or approval from the insurance company. Women will have a choice of doctors.
7. Affordable Care for a Lifetime
Because of the health care law, millions of women will no longer have to worry about what happens if they get sick or have a preexisting condition. Women will be able to receive the care they need without fear of discrimination or higher premiums simply because of their gender. The ACA represents the greatest single advance for women’s access to health care in a generation. More access means healthier women and healthier families.
Planned Parenthood
S.Mom. You seem to be the one who doesn’t want to talk about the case as soon as there is any disagreement with your voluminous but uncritical support of Obama and his corporate health care.
Call facts Obama-bashing if it makes you feel better…
Swarthmore mom:
You’re the one who claimed “There were never 60 votes” as if the president has NO ability to persuade anyone of anything.
Do you imagine FDR passed all that New Deal legislation without having to persuade anyone of anything? Do you imagine FDR persuaded Congress to vote for Lend-Lease without having to persuade anyone?
Obama was pretty useless; he COULD have fought for the public option but chose NOT to.
Firefly, I hadn’t heard about religious group claiming exemption, but I would hardly be surprised. It will be taken up, no doubt, once the Supreme Court goes through the theatrical motions they are currently engaged in and come out, quelle surprise, with a ruling that legitimizes corporate control of private resources. Once that ruling makes the theft look as wholesome as apple pie, the other ducks will quickly line up. No doubt at the very least, however, Christian groups and government officials will be exempt from the mandate, though not from the benefit, just as they are from peeing in a cup.
No one wants to talk about the case – same old same old Obama bashing. Good day.