Thursday, June 28, 2012

Republicans win a philosophical battle on the ACA

The libertarians and Republicans won a big victory in the ACA ruling today. Five justices, including Roberts, think the mandate cannot be supported under the Commerce Clause of the US Constitution. The five justices, Roberts, Alito, Thomas, Kennedy and Scalia, have a cramped, late 19th Century view of the Commerce Clause, and had the audacity to take seriously the dumbest argument to hit the Supreme Court since it held the State of New York could not regulate bakers' hours in Lochner.

To think that broccoli is like health insurance is to be absurd. Roberts actually wrote a ridiculous hypothetical that broccoli might one day be found by scientists to stop cancer and then, if Congress mandated everyone to buy broccoli, that would be unconstitutional. The issues of access, so large for health insurance, are simply ignored. He took a science fiction hypothetical to argue against a practical way (albeit a way I have long opposed from a public policy or legislative standpoint) to incentivize people to purchase health insurance. And they also took seriously the ridiculous point about activity v. inactivity, which Mark Tushnet had demolished at least two years ago, and which, frankly, can anyone really say they never saw the inside of a hospital from birth forward?

Roberts did his usual twist of nearly overruling something and giving a small open door to wait for another day. The tax argument was arcane and narrow, and while libertarians may still object, they had a good day.

I realize corporate tee vee and ray-dio media's shallow pundits and reporters are saying it's a victory for Obama, I guess it is in that narrow short term political sense. But this was a victory for those who would undermine the deference the judiciary is to provide to the legislature when it comes to economic regulation. The decision of the five right wing justices to substitute their judgment for Congress on this important policy with regard to Commerce Clause jurisprudence is one we should watch in the coming years.

Not really any links as I am limited for time this week and frankly, I don't think it is necessary...:-)

ADDENDUM: More time than I thought. Just for fun, for others' comments, here are some links of bloggers, starting with:

Jack Balkin

Andrew Koppelman

who are two law profs, and then

Tom Sorocca, a writer who wrote an interesting article on the decision at


Goerge Zornick at The Nation.

It bothers me that Obama chose the most reactionary "solution" to the health care access and cost crisis, which enabled the right wing the opportunity it needed to limit the scope of the Commerce Clause and even worse from a short term view, deprive Medicaid to millions more people because of the way Republicans and assorted right wingers in State governments will use the portion of the decision denying the Medicaid expansion's constitutionality. Heckava job, Obammy!


At June 29, 2012 at 4:00:00 PM PDT, Anonymous Anonymous said...

You are the dumbest fucking cunt on the internet -- an arena full of young children, the criminally insane, and closet psychotics are otherwise quiet in day-to-day life.

A stunning achievement.

At June 30, 2012 at 5:42:00 AM PDT, Blogger Mitchell J. Freedman said...

Ah, I love the Internet....Not sure this is spam as it doesn't quite make sense. If it's not, oh well. We can't please everyone. :-)

At September 12, 2012 at 11:29:00 PM PDT, Anonymous Anonymous said...

thanks for sharing.


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