The One Big Issue has just been inserted into the 2012 presidential election campaign: the Supreme Court will hear a case challenging Obama’s healthcare law. The decision – whether the healthcare reform act, specifically the individual mandate requiring all citizens to purchase healthcare insurance, is constitutional or not – will come in late June 2012, in the midst of the presidential campaign.
As blogged about earlier on here, the healthcare issue is the one big rallying point for conservatives against Obama. If the Supreme Court strikes it down, we may regard Obama’s presidential term as a failure. Moreover, if this Court strikes down the individual mandate as in violation of the Commerce Clause (which allows the federal government to regulate the economy), the floodgates are open. To put it bluntly, the entire regulatory and welfare structure in America as constructed since FDR’s 1930s then comes into jeopardy. It may become the end of the New Deal.
That’s of course the wet dream of every contemporary Tea Partier and Republican. So watch out, as the US economy may be catapulted back to the late 1700s by a conservative Supreme Court…
The Supreme Court on Monday agreed to hear a challenge to the 2010 health care overhaul law, President Obama’s signature legislative achievement. The development set the stage for oral arguments by March and a decision in late June, in the midst of the 2012 presidential campaign.
The court’s decision to step in had been expected, but Monday’s order answered many questions about just how the case would proceed. Indeed, it offered a roadmap toward a ruling that will help define the legacy of the Supreme Court under Chief Justice John G. Roberts Jr.
Appeals from three courts had been vying for the justices’ attention, presenting an array of issues beyond the central one of whether Congress has the constitutional power to require people to purchase health insurance or face a penalty through the so-called individual mandate.
The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”
The appeals court went no further, though, severing the mandate from the rest of the law.
On Monday, the justices agreed to decide not only whether the mandate is constitutional but also whether, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.
A brilliant piece in The New Yorker by Jeffrey Toobin about Supreme Court Justice Clarence Thomas. Thomas, appointed by George H. Bush, is arguably the most conservative Justice on the Court since the 1930s. He adheres to a very strict originalist and textualist reading of the Constitution, meaning that he believes it should be applied to the twenty-first century the way the Founders intended it for society in the late eighteenth century (whoever came up with this comically absurd idea should receive a prize). In addition to that, unlike the other textualist Justices Antonin Scalia and Samuel Alito, Thomas has no qualm about ignoring precendent in court rulings: when he thinks a previous decision is wrong in his interpretation of the Constitution, he will overturn it. In Thomas’ case, this also means historically exploring how the inhabitants of the thirteen American colonies two-and-a-half century ago meant this or that piece of law.
Adhering to a very strict originalist interpretation of the Constitution means that you believe that only a very small, limited government is constitutionally allowed (just like it was intended back then). If if were up to justices like Thomas, the US government would have no business regulating anything in the American economy or society (although they have, of course, no qualms about executive branch overreach when it comes to military affairs or torture). This leads to predictable conservative positions on such issues as gun rights and federalism, but also – and here it comes – on healthcare. The Obama administration has relied on a ‘broad’ interpretation of the Commerce Clause, which by New Deal-era judicial interpretation has allowed the federal government to intervene in the (trans-state) economy, to mandate individuals to buy health insurance. But it is very much the question whether the current conservative Court, including Justice Thomas, will uphold this interpretation of the Commerce Clause. It is very much possible that Obama’s healthcare reform law will sometime soon be judged unconstitutional by the Supreme Court.
Why is this piece on Clarence Thomas so relevant in this context? Well, because according to Toobin, Justice Thomas’ once extreme positions on various issues he has held since his 1991 confirmation have in the past twenty years become more mainstream. Take, for example, the gun rights issue. Among conservatives today, it is commonplace to argue that the lines in the Constitution about ‘the right to keep and bear arms’ apply to individuals, allowing personal gun rights. But just two decades ago (I didn’t know this), this was considered a radical position in a legal profession that held that the lines apply to state militias only, thus warranting more strict regulation on guns. It was Thomas who came up with the former interpretation, striking down Bill Clinton’s 1999 Brady Bill, and ever since, gun rights in the US have expanded. The same thing has happened on other issues: Thomas’ positions, at first considered radical, move the borders of the acceptable and allow judicial discourse to shift rightwards.
In the era that has seen the rise of the Tea Party out of protests against healthcare reform, the same thing could happen to Obama’s laws. Or, the piece warns, even more broadly to the entire 1930s New Deal-era constellation of laws and regulation that have awarded the federal government a role in protecting the people against the worst excesses of capitalism. Clarence Thomas and his wife are frequent speakers and ardent supporters of the Tea Party and other manifestations of extreme rightwing politics. These people want to take the economy back to the 1920s law of the jungle. In the words of Walter Russell Mead at the American Interest, their goal is to bring the Blue Empire down…
So read this must-read profile of Clarence Thomas to see why he has already been compared to Lord of the Rings’ Frodo – an overlooked actor slowly but steadily moving towards his goal, not taken seriously by his opponents until it is too late.
In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.
The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”
The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.
In recent weeks, two federal courts of appeals have reached opposing conclusions about the constitutionality of the 2010 health-care law; the Sixth Circuit, in Cincinnati, upheld it, while the Eleventh Circuit, in Atlanta, struck down its requirement that all Americans buy health insurance. This conflict means that the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year. It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach.
En weer een aardig voorbeeld van dommige, kritiekloze verslaggeving over de Verenigde Staten in de Nederlandse media. Dit maal is het de NRC.
Elf Amerikaanse staten leggen zich niet neer bij de hervorming van de gezondheidszorg, waarmee het Huis van Afgevaardigden zondagavond heeft ingestemd. Ze willen een rechtszaak beginnen tegen de nieuwe wet.
In de betreffende elf staten, zijn de Republikeinen aan de macht. Zij verzetten zich tegen de verplichte basisverzekering. Die is volgens hen in strijd met de Amerikaanse grondwet en schendt de soevereiniteit van alle vijftig staten waaruit de Verenigde Staten bestaan. Zodra president Obama de wet ondertekent – dat is waarschijnlijk vandaag – , zullen de ministers van Justitie van deze staten juridische stappen ondernemen.
Het gaat om de staten Florida, Virginia, Pennsylvania, South Carolina, Nebraska, Texas, Utah, North Dakota, South Dakota, Alabama en Washington. Idaho, dat vorige week de verplichte basisverzekering verbood, sluit zich mogelijk bij ze aan.
O, o, wat nu. Never mind dat deze rechtszaken in de V.S. zelf door juristen als, nou ja, kansloos worden gezien. Artikel 1, Sectie 8 van de Constitution – de “Commerce Clause” - geeft de federale regering bevoegdheden om de nationale economie te reguleren. Hierop is (ik noem maar wat) de hele New Deal gebaseerd. En het is de constitutionaliteit van health care reform die nu door deze Republikeinse politici in de staten wordt aangevochten.
But to review, Article I Section 8 of the constitution gives authorizes congress:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
There’s long been a strain of thought which says this should be interpreted simply as a prohibition on state-level trade barriers with Commerce “among the several States” understood as basically about transporting goods across state lines. But from the beginning, the federal government’s powers have been interpreted rather more expansively than that. We had the Louisiana Purchase, the Bank of the United States, Henry Clay’s “American System,” a transcontinental railroad, land grant colleges, etc. And in particular since the New Deal the commerce clause has always been understood as granting wide-ranging authority to regulate the national economy.
Over the past 20 years the Supreme Court’s conservative majority has started to reel this authority in somewhat, declaring that the Violence Against Women Act and the Gun Free Schools Act aren’t really about commerce and that economic impacts were cited in the legislative history as just a kind of pretext. But nobody can seriously deny that health reform is a bona fide regulation of economic activity for an economic purpose. I know people who claim to seriously believe that it would be a good idea for the Supreme Court to reverse the past 75 years of jurisprudence and just enact libertarianism by fiat (I feel like these people aren’t thinking seriously about the consequences of this) but that’s a vague aspiration, not something a lawsuit launched in 2010 is going to accomplish.
The Wonk Room:
[These] lawsuits seem as frivolous as the tort cases Republicans rally against. As Professor Timothy Jost of Washington & Lee University School of Law explained this morning on Washington Journal, “under the constitution as it has been interpreted by the Supreme Court — and that is really our constitution. Everyone has their own interpretation, but constitutional law is made by the Supreme Court — over the last 80 years, I do not see any serious problem with this legislation, and Congress did not either.” Jost noted that the individual requirement, which does not apply to anyone who is under the filing limit of $12,000 for individuals or $16,000 for couples or levy a criminal penalty for those who go without insurance — will likely stand up to a constitutional challenge.