Politics and the SC Health Care decision

With the Supreme Court hearing oral arguments on health care reform this week, it is a great time to read Dahlia Lithwick’s great piece on how ultimately political this all is:

The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway. Linda Greenhouse makes the first point more eloquently than I can. That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, “Are you serious?” And the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects. The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument.

So that brings us to the reallyinteresting question: Will the Court’s five conservatives strike it down regardless? That’s what we’re really talking about next week and that has almost nothing to do with law and everything to do with optics, politics, and public opinion. That means that Justice Antonin Scalia’s opinion in theRaich medicinal marijuana case, and Chief Justice John Roberts’ and Anthony Kennedy’s opinions inComstock only get us so far. Despite the fact that reading the entrails of those opinions suggest that they’d contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn’t whether those Justices will be bound by 70 years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments…

The challenges to Obama’s health care initiative didn’t begin in the conservative legal academy. They didn’t even really blossom in the conservative legal media or think tanks. The real energy of these challenges arose out of those Tea Party town halls throughout the summer of 2010, in response to a longing to return to constitutional values, states’ rights, and ideas of individual liberty that have been dead for almost a century. That isn’t to dismiss the validity of the passionate public opposition to this law, or even to denigrate the truly heroic efforts of Randy Barnett, the Cato Institute, or the millions of Americans who deeply believe that this is a case about liberty, broccoli, and the short hop from the individual mandate to federal tyranny. It’s simply to say that it’s no accident that these cases were filed by state attorneys general and governors swept up in political currents, willing to make novel arguments in the form of what was always a constitutional Hail Mary pass. It’s no accident that until the lower district courts started striking down the act, none of the challengers really believed that they could succeed. And it’s no accident thatthree of the most influential and well respected conservative jurists in the land have ruled that of course the law is constitutional, even if they hate it as a policy matter. It’s no accident, either, that Charles Fried, Reagan’s Solicitor General and Harvard conservative legend, said in an interview with Dan Rather Reports this week the case would be decided 8-1—in favor of the law. The conservative legal elites don’t believe in the merits of this challenge, even if the public does.

If someone hasn’t done it already I would love to see a comprehensive timeline of opposition to the ACA based on it’s constitutionality.  Lithwick certainly suggest that you weren’t seeing much till well after the law was passed.  That certainly jibes with my own recollections (but of course I’m not reading conservative legal blogs every day).  If this law was really so obviously unconstitutional how come the likes of George Will, Charles Krauthammer and presumably all of Fox News didn’t figure that out until well after the law was passed?

You may not like it, but if the government can regulate how much wheat you can grown for your own personal consumption (Wickard v. Filburn), they most certainly can levy a tax (I know, they keep on insisting it is a “penalty” for political reasons, but a “tax” by any other name…) if you fail to purchase health insurance.

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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