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Things You Should Know About The Obamacare Decision Before It’s Made

June 27, 2012
It’ll make sense when you read the article.
Gladly, the Supreme Court’s decision to delay the release of its Obamacare decision till tomorrow has roused me to from my sluggish blogging ways. Unfortunately, it hasn’t roused me enough to write something more substantial than bullet points linking to other articles.  So, without further ado, here are some articles that tell you things that you should know about the Obamacare decision:
  • Justice Scalia is full of bull-oney, as a Little League coach would say. His opinions are based on his political leanings. In Gonzales v. Raich, Scalia wrote a concurring opinion upholding a federal law that regulated the cultivation of marijuana for private use which endorsed the judicial interpretation of the Commerce Clause that has existed since the New Deal. That case echoed Wickard v. Filburn, a New Deal-era case that upheld government regulation of wheat for private consumption. But Scalia has had a change of heart. “Wisdom,” he says in a new book, “has come with age,” and he now realizes that Wickard “expanded the Commerce Clause beyond all reason.” So, for Scalia, based on his actual decision, the federal government can regulate marijuana but not protect women from sexual assualt, keep guns away from schools, or, after tomorrow, provide poor people with healthcare. That late-coming wisdom has proven awfully convenient for our trusty originalist, hasn’t it?
  • The healthcare mandate was a Republican idea and is clearly constitutional. As Ezra Klein explains in the most recent New Yorker, “[t]he mandate made its political début in a 1989 Heritage Foundation brief titled “Assuring Affordable Health Care for All Americans,” as a counterpoint to the single-payer system and the employer mandate, which were favored in Democratic circles.” Mandate laws were proposed Senate Minority Leader and former presidential candidate Bob Dole, among others. When Obamacare was first challenged, conservative legal scholars predicted it would be upheld easily. I’m not saying Republicans have to follow the same policy forever but to say that something that once had wide support in your party is now unconstitutional turns the Constitution from a document of boundaries within which democratic debate can take place to a football within those boundaries that politicians can try to advance – and yet the Republicans say they are “originalists,” whatever that means.
  • Chief Justice Roberts is, like Justice Scalia, full of it. In his confirmation hearing, he said that as a justice he would be an “umpire” on the court who would only “call balls and strikes and not to pitch or bat.” Yet, in the Citizens United decision, he lead the Court to expand the issue under consideration in order to overturn almost 40 years of precedent allowing limits on campaign spending. If he invalidates Obamacare, Roberts would be overturning more than 60 years of precedent. Put simply, he’s no more of an umpire than Leslie Nielsen (see video above). The fact that he may not invalidate the mandate tomorrow doesn’t change that (see last point below).
  • If the law is invalidated, Americans will continue to die because of the size of their wallet. Poor people will continue to go without health insurance and, as this article about a health clinic at the University of the South shows, it’s not easy being poor without health insurance. And yet, we’re the wealthiest nation in the history of the world. It’s an embarrassment and a moral failure.
  • According to Tom Goldstein, founder of the top Supreme Court blog SCOTUSBlog, the mandate won’t be invalidated, despite the dire predictions and harsh questioning by Chief Justice Roberts and Justice Kennedy.
Of course, there’s much more to be said about the decision but those are the points that I think are worth highlighting. We’ll see what the Court does tomorrow.
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