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.
I do NOT see it as a liberal point of view that requiring every American to buy a product, insurance, from a PRIVATE, PROFIT-MAKING corporation is Constitutional.
The right-wingers on the Sup.Ct. are probably salivating at the thought that they have the power to transfer great gobs of wealth FROM the middle class TO their corporate friends.
I would have no problem with the government mandating everyone to pay for insurance THROUGH the government, even if eventually farmed out to private companies, because then the government would regulate the premium costs and the coverage provided.
I consider myself a lifelong liberal and I hate the mandate in Obamacare because it is nothing more than a great gift to profit-making corporations. And I wouldn’t be surprised to see some of the “states-rights” conservatives on the Supreme Court “forgetting” their concerns about state government powers v. national government powers because of their zeal to help their corporate friends.
By adopting many Republican views, Obama has confused a lot of Democrats who don’t know how to be Democrats anymore.
Jack
I also see the 6-3, but I seriously see Kennedy and perhaps even Roberts joining the liberals on the side of Constitutionality. I wouldn’t even be shocked to see Scalia join in to make it 7-2.
I am calling it here: Struck down as unconstitutional 6-3, with Ginsburg in the majority. I kid you not.
Sorry Michael, I meant to say I couldn’t agree more with Ken McBride.
And I coudn’t agree more with Michael Murray,
you would think they [the Republicans] would embrace the crony capitalism of a mandate of Americans having to purchase insurance from the “For Profit!” health insurance monopolies that are an ATM for Wall Street!.
You truly hit the nail on the head! The only point you might miss is that those Republicans endowed with the ability to count the number of fingers on at least one of their hands are indeed rubbing them together in total glee and disbelief that this colossal transfer of wealth into the coffers of the plutocracy might actually be about to happen and that as a supreme irony they can blame the Democrats for it.
This individual mandate in particular, and the health care legislation in general could only have been dreamt up by the Mafia as little as forty years ago.
And that does not in anyway conflict or contradict what rcampbell said about Bob Dole who I think joined the Mafia at precisely the point where he decided that all the benefits of education etc., he obtained personally from the GI bill upon return from WWII, were far too rich a mixture for any subsequent generation of Americans to handle.
Everyone here in Taiwan has to pay for National Health Insurance, which the government runs efficiently and which costs my wife and me a grand total of $40/month. In America, I had no health insurance and would have died had I not gotten out of that bigoted, hyper-militarized, crony corporate asylum and moved to a civilized country that knows how to run a national health system that charges everyone, but spreads the risks and costs accordingly over the entire population.
If Americans really wanted a national health insurance system, they would not ask the Supreme Court or American insurance companies, but would invite some health insurance experts from Taiwan — or any other number of competently governed countries — to explain how effective governments do these sorts of things.
“Good analysis, r. c. The republicans had already gone crazy with exaggerations of Hillarycare calling it socialized medicine. Maybe they prefer Ron Paul healthcare. Just let the uninsured die rather than have the government either pay for or mandate anything.” Excellent comment, what is the Republican alternative, death? What is more absurd than the Tea Party elders who are obviously on MEDICARE protesting for the government to keep their hands off of their health insurance! Since the Republicans have created a criminal and corrupt corporate state masquerading as a democracy, you would think they would embrace the crony capitalism of a mandate of Americans having to purchase insurance from the “For Profit!” health insurance monopolies that are an ATM for Wall Street! Perhaps we should start over, how about universal health care for all Americans!
Obama Lawyer Laughed at In Supreme Court
Audio
http://nation.foxnews.com/obamacare/2012/03/26/obama-lawyer-laughed-supreme-court
Brooklin Bridge,
Excellent points. Just letting you know they’re not falling on deaf ears; despite the fact that you’ve directed them towards an Obama apologist.
Brooklin bridge, Why is Planned parenthood demonstrating in favor of it?
If you bothered to even read my comments, you might find I had already given a plausible answer to that question. Probably Planned parenthood is demonstrtin in favor of the mandate to prove that they are adults and deserve a place at the negotiating table just as AARP has done
Howard Dean on the mandate:
http://dailycaller.com/2012/03/26/howard-dean-predicts-supreme-court-will-declare-individual-mandate-unconstitutional/
“I’m not a lawyer,” Dean said. “As you know, I’m a physician. So I don’t speak about the constitutionality of the individual mandate. But it’s definitely not necessary for the bill to succeed. It was mainly put in by academics who built the program for Gov. [Mitt] Romney in Massachusetts — they had done it there — and for insurance companies who will benefit from extra customers. But the truth is that the number of so-called free riders, people who will refuse to get insurance until they get sick, is going to be very, very small.
Dean then argued, “It would have been easier for them not to include an individual mandate in the first place because mandates make people mad.””
Good analysis, r. c. The republicans had already gone crazy with exaggerations of Hillarycare calling it socialized medicine. Maybe they prefer Ron Paul healthcare. Just let the uninsured die rather than have the government either pay for or mandate anything.
I wanted to refute Brooklin’s assertion that what we’re calling healthcare reform “…has always been solely about legitimizing government use of economic force against its citizens for the benefit of corporations…” because I truly do not believe that characterizes the or a goal of the Obama administration in proposing ACA. I simply don’t believe a single payer program was doable. This was pretty hard to get done and I believe there will be some benefits of having more people insured thus cutting into the cost to the government and for those of us who pay higher premiums to cover those costs for providing medical care for the uninsured.
However, since the original idea did come from the Heritage Foundation in the early ’90’s and was in large part (including the individual mandate) proposed by Bob Dole as the GOP counter to the Clintons’ single-payer plan in 1993, it would be a fair characterization to say it feeds the “free market” view of turning government functions over to for-profit companies.
The primary issue I have with the conservative view is that where such actions may shift a cost out of the government budget, it doesn’t necessarily lower the cost of that now shifted product or service to the end user. In fact, by the mere necessity of being a for-profit firm, this cost shifting to for-profit companies virtually ALWAYS costs the consumer more out of pocket dollars in a short time period.
Brooklin bridge, Why is Planned parenthood demonstrating in favor of it?
Health care, in almost any form other than the current total fiasco, has been set back by at least a generation by the Democratic seal of approval on a purely corporate giveaway.
The legislation as signed into law by Obama has almost no provision for Federal regulation (which would be pretty strict as you can tell by the number of bankers they have sent to prison for illegal foreclosures). It makes no provision to give states the money to enforce what few rules it specifies that might actually constrain providers from ripping people off. It still leaves a huge number of people totally uninsured and it looks almost intentionally designed to be vulnerable to corrosive attack by Republicans and corporate Democrats alike(meaning most all Democrats). It has language that explicitly damages woman’s rights over thier own bodies.
No legislation at all would have been vastly better than this ritual celebration of the ownership society with a nasty twist of puritan venom thrown in to boot.
pete, Did you watch madmen last night?
OT but maybe this is why my cat is so healthy
http://www.nydailynews.com/gossip/mad-men-star-january-jones-eats-placenta-maintain-energy-set-article-1.1050641
Vengeance, “Now look at the fine mess we’ve started.” Do you think healthcare should have been left alone and not changed at all”?
Simply because one gets out in front of a lynch mob doesn’t mean it’s a parade, and simply because it’s called “affordable” health care doesn’t mean it’s about government representing the health interests of it’s citizens.
Clearly we won’t get single payer if the Supreme Court declares it illegal to force people to buy junk from ruthless sharks. But then this was never about single payer or any other form of care for the health of citizens. It has always been solely about legitimizing government use of economic force against its citizens for the benefit of corporations.