Reading The ‘Obamacare’ Tea Leaves As Ruling Looms
Health Care Before The Court
Sahil Kapur June 24, 2012, 8:42 AM 12335
With a Supreme Court decision on ‘Obamacare’ expected this week, tensions have reached a fever pitch as observers eagerly await the verdict on the law’s constitutionality.
The outcome remains unpredictable, and the deciding vote is believed to rest in the hands of Justice Anthony Kennedy — and perhaps Chief Justice John Roberts. “At the Supreme Court, those who know don’t talk; and those who talk don’t know,” Justice Ruth Bader Ginsburg said recently.
But subtle — albeit inconclusive — hints dropped recently by Justices Ginburg and Antonin Scalia have fueled a months-long shift in expectations among observers regarding the fate of President Obama’s signature legislative achievement.
Justice Ginsburg, a likely vote to uphold the law, last week foreshadowed “sharp disagreement” in the high-profile decisions to come this month. “Some have described the controversy [over the health care law] as unprecedented,” she said at a legal conference.
Ginsburg evoked “the utility of dissenting opinions” to “propel legislative or executive change.”
Meanwhile, Justice Scalia published a book this week in which he found fault with Wickard v. Filburn, the 1942 ruling .. http://tpmdc.talkingpointsmemo.com/2012/06/antonin-scalia-book-health-care-wickard-filburn-raich-constitution-commerce-clause.php?ref=fpa .. that constitutes the legal foundation for the constitutionality of the individual mandate. The decision, which granted Congress broad authority to regulate activities that have a substantial effect on interstate commerce, has since been reaffirmed and expanded, most recently by the Supreme Court in the 2005 Gonzales v. Raich case.
“[I]f the Court strikes down all or part of the president’s health care law, there will be no spiking of the ball,” House Speaker John Boehner (R-OH) wrote in a memo to his GOP members, which was also sent to reporters.
The liberal advocacy group MoveOn.org sent supporters an email Thursday titled “Supreme Court: Justices or politicians in robes?,” courting signatures for a petition demanding that the court “roadcast the proceedings” on the Affordable Care Act so that the public can “better understand how and why the Supreme Court reaches its decision.”
So what caused such a seismic shift in expectations? Part of it was the relentless attacks from Republicans and the conservative movement decrying the mandate as federal overreach, which mainstreamed a fringe legal theory.
“We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage,” the legal scholar Orin Kerr, an early libertarian skeptic of the ‘Obamacare’ lawsuits and former clerk to Kennedy, told The New Yorker. .. http://www.newyorker.com/reporting/2012/06/25/120625fa_fact_klein?currentPage=all .. “[T]here were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.”
As reporters eagerly await a decision this Monday or Thursday — although the Supreme Court could potentially postpone it — progressives are bracing for the worst.
“If the court does overturn the mandate, it’s going to be hard to know how to react. It’s been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can’t think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity,” wrote Kevin Drum at Mother Jones. .. http://www.motherjones.com/kevin-drum/2012/06/clock-ticks-down-whether-weve-entered-new-era-american-politics .. “It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don’t like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that’s pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.”
Health Care Reform: Why It's Safe From The Supreme Court
The Supreme Court will not overturn health care reform. At least if the five-justice conservative majority that brought the country Citizens United and Bush v. Gore can be stymied by the possibility of being the first court in over 75 years to strike down a sitting president's signature domestic achievement.
Congress' party-line passage of the Affordable Care Act two years ago triggered unceasing speculation over the prospect of a similarly partisan end-game at the Supreme Court. And given the litany of sharply divided conservative victories in the court's most politically charged cases, casual court watchers would not be unreasonable to expect the five Republican appointees to strike down the Affordable Care Act's individual health insurance mandate and perhaps the entire law with it.
Reasonable expectations, however, can be wrong. The battle this time is likely to be an intra-conservative conflict between the economic libertarianism underlying the mandate's challenge and the traditional principles of judicial restraint that have defined right-wing jurisprudence for more than a half-century. .. continued .. http://investorshub.advfn.com/boards/read_msg.aspx?message_id=73406527
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Impeach the Supreme Court Justices If They Overturn Health-Care Law
If the Supreme Court Justices dump the Affordable Care Act, writes David Dow, we should dump them. Tim Sloan, AFP / Getty Images
arizona1 and Stephanie, and all -- something I've pointed to repeatedly -- all 4 of the Federalists, Roberts, Scalia, Alito and Thomas, should be summarily impeached, convicted and thrown out on their butts for far worse they've already done, in the record in their own words, no trial needed cuz no defense possible, simple direct open and notorious treason to the plain meaning and intent of the Constitution (and prior case law) on habeas corpus -- be that ever politically possible or not, legally that proposition is inarguable, plain as day, could not be more obvious -- and this does not go away with time, always there -- (items linked in):
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