APRIL 2, 2012 1:10PM

Obamacare Debate Reveals Justices as Political Hacks

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Cross Posted at Legal Schnauzer


If nothing else, last week's arguments in Washington, D.C., about Obamacare proved one thing: We have some intellectual featherweights on the conservative wing of the U.S. Supreme Court.


The dimmest bulb in the legal firmament appears to be Chief Justice John Roberts, followed closely by right-wing bomb thrower Antonin Scalia. Their comments strongly suggest that they are not taking a serious approach to deliberations on the Affordable Care Act (ACA). And that means Robert Parry, of Consortium News, almost certainly is correct when he suggests that right wingers on the court are "political hacks" who have predetermined that the health-care law will be struck down, at least in part.


Before the three days of oral arguments began last week, Parry wrote that Roberts and Company were not really interested in the constitutionality of the individual mandate--or any other portion of the ACA. In fact, Parry wrote, it's not seriously in doubt that the law, is constitutional. But GOP appointees appear willing to butcher the U.S. Constitution's Commerce Clause, and ignore legal precedent, in order to hand Obama a political setback in an election year.


What suggests that Roberts is not serious about the proceedings? For starters, he made a comment that surely ranks as one of the 10 most ignorant utterances ever made by a public official. Here is how Bloomberg News reported it:


During arguments over the insurance requirement, both justices (Roberts and Anthony Kennedy) trained the bulk of their questions on U.S. Solicitor General Donald Verrilli, the Obama administration lawyer who defended the law.


Roberts directed three-quarters of his approximately 20 questions to Verrilli during that two-hour argument. Roberts said the health plan would “require people who are never going to need pediatric or maternity services to participate in that market.”


Memo to Roberts: Insurance plans already require consumers to participate "in markets" they probably never need. When I had health coverage through my job at the University of Alabama at Birmingham (UAB) it was, like most plans, a relatively broad policy--covering my health in general. I was forced to participate in the "gynecology market," even though it was pretty clear I never would need those services. My female coworkers had to participate in the "prostate surgery market," probably not realizing there was such a thing.


This is how insurance, in general, has worked for decades. But in RobertsWorld, such policies apparently are unconstitutional. In RobertsWorld, it seems, you could get a health-care policy that covers your right arm (because you are right-handed), but not your left arm (hey, who needs it?).


Imagine this concept applied to other forms of insurance. You could get an automobile policy that covers your bumper but not your left rear door. (Why not?) Or you could get a homeowner's policy that covers your kitchen but not your bathrooms. (Got to eat, but hey, you can always take a dump outdoors!)


Progressive columnist E.J. Dionne gave Roberts the intellectual thrashing he deserves:


One of the most astonishing arguments came from Roberts, who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited “pediatric services” and “maternity services.”


Well, yes, men pay to cover maternity services while women pay for treating prostate problems. It’s called health insurance. Would it be better to segregate the insurance market along gender lines?


As for Scalia, he wondered aloud if the passage of Obamacare means the government could "make people buy broccoli." From all reports, Scalia raised this issue with a straight face. Columnist Eugene Robinson reports that Justice Anthony Kennedy appeared to be taking Scalia seriously, so U.S. Solicitor General Donald Verrilli was forced to address it:


Justice Antonin Scalia raised the specter of an all-powerful government that could even “make people buy broccoli” if it wished. Scalia’s mind seemed to be made up, but Kennedy seemed to be genuinely looking for a principle that permitted a health insurance mandate but not a broccoli mandate.


And Verrilli gave him one. The market for health insurance is inseparable from the market for health care, he argued, and every citizen is a consumer of health care. Those who choose not to buy health insurance require health care anyway — often expensive care at hospital emergency rooms — and these costs are borne by the rest of us in the form of higher premiums.


So there you have it: By virtue of being human, we all are going to need health care at some point, so Congress has a legitimate interest in making sure that everyone participates in the market, and it has the authority to create such a mandate under the Commerce Clause.


Despite red herrings raised by the likes of Roberts and Scalia, the issue really is not complicated. And as Parry reports, even conservative federal judges have found that, based on the actual law and legal precedent, the ACA is constitutional:


For instance, in a Nov. 8, 2011, legal opinion affirming the constitutionality of the Affordable Care Act, conservative U.S. Appeals Court senior judge Laurence Silberman recognized this legal reality (even though he might not politically like “Obamacare”).


Silberman, an appointee of President Ronald Reagan but a serious constitutional scholar, explained how the law – including its most controversial feature, the individual mandate requiring the purchase of health insurance coverage – fits with the Commerce Clause.


“We look first to the text of the Constitution,” Silberman wrote in his opinion. “Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (Emphasis added by Silberman).


“At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’


“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.


Is that delicious? Roberts, Scalia, and their conservative brethren claim to be "strict constructionists" who hold dear the plain text of the constitution--and a Reagan appointee already has stated that the plain text provides no support for the notion that Obamacare is unconstitutional.


Still, Parry writes, we can look for Roberts and Scalia to vote for striking down the ACA. Why? Well, they are political hacks:


At least some of the five Republicans – John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy – are expected to find some legal argument that they can use as judicial cover to strike a blow at the Democratic president, Barack Obama.


To do that – in essence to overturn the legal reasoning of Appeals Court Judge Silberman – the GOP justices will have to intuit some unstated right in the Constitution on behalf of Americans who simply don’t want to buy health insurance.


Such creative legal reasoning is exactly what the right-wing justices typically condemn. After all, the phrase “strict construction” is supposed to mean following the precise language of the Constitution and not “legislating from the bench.” But it is already clear that some of the Republican justices, such as Clarence Thomas whose wife is publicly campaigning against the law, will find whatever excuse is necessary to vote no.


Does that mean Obamacare is pretty much dead on arrival. Not necessarily, writes Parry. But the vote on the Supreme Court undoubtedly will be close--and the issue at hand is not a close call. That is just one more sign that our "justice system" is badly broken--and that's the real story behind last week's oral arguments on Obamacare. From Parry:


It appears that constitutional principles will have less to do with how the Republican partisans on the Supreme Court rule than the perceived need to advance an ideological and political agenda.


These opponents of the health-care law surely will muster some impressive “lawyering” with lots of high-brow references to various articles and clauses – just as they did in the Bush v. Gore ruling. But that will mostly be window-dressing to impress those who still believe in the integrity of this Supreme Court.


Of course, it is still possible that one or more of the Republican partisans will overlook their political loyalty to the GOP and their ideological commitment to the anti-government Right – and agree with Judge Silberman that the Affordable Care Act is constitutional.


Such a justice might even think back on how the individual mandate began as a right-wing idea and thus refuse to behave as a political hack who simply switches constitutional principles based on whose name is associated with a law.


Yes, that could happen. But I'm not betting on it.

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Comments

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I once knew someone who complained about paying school taxes because he didn't have any children. I pointed out that it was in his own interests to have an educated public around when he reached his dotage...

There's something really gone wrong in American thinking (at least among the right-wingers) who don't want to cooperate with anybody else for the common, and their own, good.
Myriad:

Good point. Another example of how we seem to have lost our sense of community. I guess we all are supposed to be "rugged individualists."
broccoli broccoli broccoli broccoli broccoli... Why is it that the Supremes already don't look much better than Chicago ward heelers. Don't they realize how much damage they're doing to their legitimacy, let alone the untold human damage to the 40,000,000 people they could deny health care coverage to.

And in the process of damaging their legitimacy, they further undermine the legitimacy of the US government. Nothing like unraveling the threads of society to the point where we can foment conditions enough to create total anarchy or dictatorship.

WAY TO GO, SUPREME COURT!
I'm neither a constitutional scholar, nor an insurance expert. However, my take on the situation is this:

Constitutionally, look closely at the Commerce Clause. It refers to the states, not to the individual residents thereof. If individual states were to pass rules that affected or conflicted with rules in other states, then the clause would be in play. This is the way it was explained to me in civics classes in the '70s

Comparing health insurance to car insurance:
Do we not choose our car insurance based on our desired deductible and level of coverage (bare minimum v. total comprehensive and collision), for example? Could we not rework Obamacare in a similar vein?
I can not separate an apple from the iPod -- nor an orange from Oralgel. The essential truth was brought home years ago, having worked for a man who -- he proudly stated, 'I'm not an American ..' -- to which I said, 'Oh, really.' He thought that I had disrespected him. He proceeds to yank out his calling card: he was not an American -- but had his Canadian citizenship card out, ready to push in my face.
'So, you plan to leave us at some point?' Laconically, he says, 'Could.' I asked him what he planned to do. He made some defensive reply about if things got crazy here ... He then proceeded to tell me that he planned to get his Social Security money back, too. He had had a suit in the Federal courts: he thought that this was an arbitrary, unfair law. He went on to mention that you do not have to pay these pay roll taxes -- that the government was holding us up. This guy wanted it both ways, I thought. But this is what we have. people are aware, accept, the social contract, or they find ways around such burdens, sending money into other countries, organizing deep, deep trusts, that would rival a pharoah's burial vault.
The court has to say, Get in, grab a seat -- or find another bus to ride. This is not to be parsed out in tea spoons of me-first measure.
Are we a society or not?