General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region Forums"I Don't Trust This SCOTUS"
http://www.boomantribune.com/story/2012/3/26/95943/3780I Don't Trust This SCOTUS
by BooMan
Mon Mar 26th, 2012 at 09:59:43 AM EST
As the Supreme Court begins to hear arguments about the constitutionality of the Affordable Care Act, I have a sick feeling in the pit of my stomach. I know that pretty much every legal scholar is predicting that the Court will uphold the law, but I wonder.
If I had to bet money, I'd probably agree with the consensus and predict an 8-1 decision in favor of Obamacare, with only Clarence Thomas objecting. But I also remember Bush v. Gore. And I think about how long and hard conservatives have worked to get a functional majority on the court. Right now, they seem to have a functional majority about half the time, with Justice Kennedy siding with big business at every opportunity, but not following along on many social and religious questions.
In this case, siding with big business means siding with the individual mandate, since the mandate provides millions of new customers to the insurance and pharmaceutical industries, and also makes the whole health care reform work financially for the insurers. Striking down the mandate would be a major blow to big business and cause all kinds of confusion and chaos. For these reasons, I foresee Justice Kennedy upholding the mandate.
If Alito and Roberts realize that the administration is going to win, they'll probably fall in line. And Scalia will probably try to be as silent as possible since he won't want to ruin his reputation among the wingnut faithful.
But if for some reason Kennedy is inclined to become a radical, I expect the rest of the conservative Justices to join him in striking down the individual mandate, and maybe even gutting the entire law. Conservatives have been waging an ideological war to the death, and the Court is their greatest weapon. Will they fail to use it now?
I can't be certain. What I do feel confident about though is that Kennedy's replacement on the Court will be the most influential Justice in a century or more. If a Republican replaces Kennedy, Roe v. Wade will be struck down. And you can go down the list of cases where Kennedy has sided with the liberals in 5-4 cases to see how things will change for the worse.
CAPHAVOC
(1,138 posts)will side with big Biz. He will uphold the law. I think 5/4 or 6/3 in favor. The Liberals siding with Big Business. Amazing.
pampango
(24,692 posts)Ten minutes after this post goes live, the nine justices will enter the Supreme Courtroom and begin the first of four hearings to decide the fate of the Affordable Care Act. If the justices follow the text of the Constitution, they will have no choice but to uphold the law. Under our founding document, Congress has the power to regulate commerce . . . among the several states. This, in the words of the very first Supreme Court decision to interpret these words, includes the full power over any sort of trade that concerns more than one state. So a law regulating nationwide trade in health care clearly qualifies.
To counter the clear thrust of the Constitutions text, the laws opponents argue that Congress has gotten too big for its britches. If Congress has the power to require people to carry health insurance, their argument goes, there will be no limit on its authority and any kind of law will qualify as a regulation of commerce. Of course, this is not true the Supreme Court precedents correctly establish that non-economic laws such as federal murder, rape, assault, truancy or sexual morality laws are beyond Congress authority to regulate commerce but its worth noting that the plaintiffs argument is not a new one. In fact, it is nearly 100 years old:
The far reaching result of upholding the act cannot be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of government be practically destroyed.
These words conclude an 1918 case known as Hammer v. Dagenhart, which struck down a federal child labor law under a very similar theory to the one the Affordable Care Acts opponents press today. Then, like now, conservatives feared that enabling Congress to fully exercise its authority over the nations commerce would enable Congress to do whatever it wants and they convinced five of the Courts nine justices to join them in this fear and steal away Americas ability to ban child labor.
http://thinkprogress.org/justice/2012/03/26/451405/a-final-word-before-the-affordable-care-act-hearings-begin/