Constitutional law

Friday, June 29th, 2012 · 11 Comments »

I was shocked a few months ago to discover that a prominent political blogger had no idea how the Supreme Court worked. She did not know that the Court typically deliberates for many weeks/months after hearing arguments; she did not realize that the justices deliver written opinions. She thought it worked like a jury trial. The occasion in question was the oral arguments on the Affordable Care Act, and this blogger thought that the justices were going to go immediately into a little room, take a vote, and come back out and announce whether the ACA was constitutional or not.

Similarly, I’m discovering now that some left-wing bloggers don’t understand the Court’s job in a case like the Affordable Care Act. These bloggers believe that the ACA is bad policy; they would much rather have single-payer healthcare. I agree with them on that. However, these bloggers also seem to think that because the ACA is bad policy, it would have been better for the Court to strike it down. This is a profound misunderstanding of the Court’s role.

The job of the Supreme Court is not to determine whether laws are desirable or effective. The job of the Court is to rule on constitutionality. The Affordable Care Act was challenged as being unconstitutional: its opponents charged that Congress did not have the power under the Constitution to enact the legislation. The only way the Court could strike down the ACA was by finding it unconstitutional.

The Affordable Care Act is not unconstitutional. The legal challenges to it consisted of right-wing intellectual garbage largely cooked up in the past few years explicitly to oppose Obamacare. In contrast, the Administration’s triple arguments for constitutionality (under the Commerce Clause, the Necessary and Proper Clause, and the Taxing Clause) all fit comfortably within longstanding jurisprudence. There’s a reason that legal scholars could see no constitutional problem with the ACA when it was passed; there wasn’t any. (I again urge everyone to read Justice Ginsburg’s concurrence, which is a model of clarity on the legal issues and reasoning involved.)

Those left-wing bloggers who wish that the Court had found the ACA unconstitutional need to ask themselves: on what grounds? Do you wish that the Court had endorsed the specious, illogical, partisan reasoning in Scalia’s dissent? Or in Thomas’s? Do you wish the Court had delivered a ruling that ignores decades of settled law, ignores constitutional principles, ignores the Court’s own precedents? Because that’s what it would take.

If you dislike the Affordable Care Act, the answer is to work towards a better legislative solution. The answer is not to have the law struck down for partisan reasons by an unprincipled renegade Court acting on nothing but its own political sympathies.

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11 Responses to “Constitutional law”

  1. Riverdaughter says:

    I don’t know who you are referring to. It can’t be me because I’m not a prominent blogger.
    However, I think you may be misreading. For example, I have no doubt that the ACA is constitutional. Congress can make you pay into Medicare for years before you see a cent in benefits. To me, that’s not the problem.
    The problem is that now we have a very bad law firmly in place and while it may be just hunky dory for YOU, for the cast majority of us out here, it is still a very bad bill. It doesn’t reduce costs, there is no competition and now we are for probably a generation to come forced into paying extremely high cost insurance policies. Do you know what I pay for COBRA? I don’t have any pre-existing conditions and I’m healthy as I have been for most of my life. For my daughter and myself I pay $942.31. I know because I just sent this month’s payment off.
    And I’ve looked into it and can’t find a cheaper policy in NJ.
    If my ex wasn’t working, the kid could qualify for SCHIP. but because we’re not quite destitute, it’s almost $1000 a month.
    That’s not going to change with the ACA. The fact that health insurance costs are rising with almost no restraint and is having a significant drag on hiring, that’s not going to change under the ACA. The only thing that will change is that my story will become more common. I will be struggling to pay this stupid premium forever thanks to the ACA. The fact that I can’t be refused makes my payments even more certain.
    In a way, it would have been better to strike everything but the pre existing and non rescission clauses and start over.
    We as a nation pay almost twice as much as the next best nation and we get much less. But now we will be strapped into this program and get drained continuously while the collectors go virtually unregulated.
    I don’t think a lecture on the few merits of this bill is necessary especially now that some of us will be forced to responsibly choose between health care and funding our kids’ educations.
    If you don’t have kids, you don’t know how easy you have it.

  2. Violet Socks says:

    No, I wasn’t referring to you.

    And I think you’re misreading. I agree that the ACA is a bad bill. But that horse left the barn when it was passed.

    If the Court had struck down the ACA along the lines of Scalia’s dissent, then we would have bigger problems. Yes, the ACA would be gone, but we’d also have a renegade Court that was ready to undo the 20th century and blast us all back to the Gilded Age.

  3. Violet Socks says:

    Also: I am not healthy, I do have pre-existing conditions, and nothing is easy or hunky-dory for me.

  4. cellocat says:

    Of course, some of the recent behavior of the Supreme Court might lead people to believe that they do in fact come up with decisions based on political popularity rather than judicial research and deliberation. Not that I don’t agree about the importance of knowing how the government functions (or is supposed to, anyway.)

  5. Violet Socks says:

    Of course, some of the recent behavior of the Supreme Court might lead people to believe that they do in fact come up with decisions based on political popularity rather than judicial research and deliberation.

    Yes, they do, and that’s generally a bad thing. The last thing we need is a Court that totally ignores constitutional law and hands down decisions in line with the wingnut agenda. That’s banana republic stuff.

  6. liz says:

    This is a great post. I was feeling uneasy about the ruling, but this explains why i should be ok with it. The bill sucks but overturning it in court is worse. Thanks.

  7. gxm17 says:

    Violet, are you a lawyer? Not being snarky, because I’m not either but it’s my understanding that Roberts had to “rewrite” the law to make it constitutional. And that bothers me. This was a huge win for our corporate overlords; a huge loss for the American people. And it’s just the tip of the iceberg.

    ACA is horrible legislation. Health insurance is not health care. I really think we’re quite totally screwed. Republicans won’t fix it (hell, they invented it). Democrats won’t fix it. It won’t get better. I’m done voting uni-party. We have to get out of its shackles before it kills us.

  8. Violet Socks says:

    Violet, are you a lawyer?

    No. But I can say, with perfect accuracy, that I have the same understanding of the law as someone who graduated from a top 10 law school with A’s in constitutional law.

    it’s my understanding that Roberts had to “rewrite” the law to make it constitutional.

    No, that is a right-wing meme and it’s false. Roberts didn’t “rewrite” the law. He chose to accept the tax argument and reject the Commerce Clause argument.

    The ACA is not unconstitutional. The right-wing noise machine has generated a ton of pure bullshit on this topic. This is why it’s now necessary for them to paint Roberts as “rewriting” the law and so on.

    The fact is, the ACA fits within longstanding interpretation of the Commerce Clause (as well as the Taxing power). It always has. The only reason it was even challenged in court is because wingnuts are neoconfederate nutjobs.

    I agree that the ACA is shitty. It would have been a billion times better if we’d gotten single payer/Medicare for All. But Obama took that off the table, and so this is what we have.

    The choices going forward are:

    1. Try to improve the ACA along the lines suggested by Krugman, et al: reintroduce the public option, regulate the insurance companies so that they’re like public utilities providing a public good (rather than profit-driven blood-sucking monsters), continue to expand Medicare type coverage, and so on.
    2. Repeal ACA entirely. This is a nightmare option, because if the ACA is repealed, nothing will replace it. The Republicans won’t replace it with anything. As for the Democrats, if they wouldn’t attempt single-payer in 2009, they sure as hell won’t attempt it in the wake of repeal.

    I think it’s worth pointing out that most of the folks urging option #2 are Republicans or ratfuckers. For example, just so you know, “health insurance is not health care” is a ratfucker talking point.

    There are some genuine idealists who believe that repealing ACA will somehow make single-payer possible, but they are few. They’re also wrong, in my opinion.

  9. quixote says:

    Be fair, Violet. Just because The Ratpeople use a talking point doesn’t mean it’s not true. Health insurance is not health care. You give them control of the conversation if you let them define its terms by making it impossible to point to anything they’ve touched.

    I suspect you’re right about point #2. I don’t think there’s any chance of point #1, regulating Big Insurance, either. (Did you see the news of Wellpoint buying Ameri-something which did a lot of Medicaid insurance? Now it’s a profit center that funnels money from taxes. And the analysts are already talking about how hard this will make any Medicaid reforms because the interests of Wellpoint “will have to be considered.” There’s influence, but it’s flowing the other way.)

    In short, we’re done for.

  10. Violet Socks says:

    Just because The Ratpeople use a talking point doesn’t mean it’s not true.

    Of course it’s true that health insurance isn’t health care; those of us who were arguing for single-payer 3 years ago know that very well.

    But the ratfuckers who are currently using that talking point aren’t interested in single payer or in solving the healthcare crisis or in spreading accurate information. Their goal is simply to elect Romney. It’s a classic propaganda move: bait your pitch with something true (health insurance isn’t health care), embed it in a matrix of obfuscatory disinformation and fear-mongering (death panels! tax! boo!), and cap it off with a bogus remedy (we need to elect Mitt Romney!).

  11. Will says:

    ACA will reduce costs. The reason that it will lower costs works on the same dynamic as small businesses pooling together to get a better deal of health insurance in the private sector.

    The ACA helps in many ways. I find it very strange that so few people have any inkling of what is contained in the ACA.

    The GOP has been allowed to make outrageous claims and the so-called “liberal media” has made no effort to tell the public what the truth is in regard to ACA.

    All media is corporate, I think that is the reason we hear nothing from the media that would inform America in an honest way.