I think most liberals have moved on a long way from denial, certainly since oral arguments (except for Laurence Tribe). However, I was utterly shocked to see Tom Goldstein of SCOTUSblog just predict that the mandate will hold--is he a liberal? He did clerk for a Democrat.
The thing that depresses me so profoundly about this case, as with U.S. constitutional law generally, is that I believe in minimalism--as plutocratic and politically tendentious as I believe the Lochner-era Court to have been, and the current crop of "conservative" "originalists" to be, in principle I support their approach, since otherwise constitutional limits are just progressively swept away over time--but it is as ever deployed here politically, not legally. I haven't read Ezra Klein's documentation of the development of the anti-PPACA argument in The New Yorker yet, just Kevin Drum's post about it at Mother Jones and a follow-up by Klein at the Washington Post, but I have followed the news closely enough over the past couple of years to firmly agree that pre-2009, PPACA was unquestionably constitutional, and that it only became questionable once Obama supported it due to the dynamic of national Republicans being determined to destroy him at all costs. So who cares if it is overruled tomorrow with an impeccable legal argument? The Court would be right for completely wrong reasons.
I saw that at SCOTUSblog -- he didn't really give a reason. Anything's possible, I guess, but Obama should have known better than to hang this thing on the Interstate Commerce Clause. I don't believe regulating commerce means Congress can force parties to enter into commerce. It can regulate them once they're in but if they're not participating, then I think they're outside that clause's reach. Good policy, terrible law -- and worse strategy, as the administration's argument developed through the lower courts. The Commerce Clause ended up being all they had left.
Single-payer, on the other hand, wouldn't offend the Constitution one iota. Maybe some day.
I sympathize with (though I'm not fully convinced by) the argument that virtually everyone in the country participates in healthcare commerce, regardless of whether they purchase health insurance. Almost the only exception I can think of would be hardcore Christian Scientists. But yes, again, I think those statements can be applied broadly to U.S. constitutional history as well as the PPACA: "good policy, terrible law," and of course hanging everything on the goddamn commerce clause. It is *the* go-to excuse to enable Congress to do absolutely anything.
No question single-payer is the way to go--best policy, best law. I think it will happen eventually, but god knows how long it will take.
I think most liberals have moved on a long way from denial, certainly since oral arguments (except for Laurence Tribe). However, I was utterly shocked to see Tom Goldstein of SCOTUSblog just predict that the mandate will hold--is he a liberal? He did clerk for a Democrat.
ReplyDeleteThe thing that depresses me so profoundly about this case, as with U.S. constitutional law generally, is that I believe in minimalism--as plutocratic and politically tendentious as I believe the Lochner-era Court to have been, and the current crop of "conservative" "originalists" to be, in principle I support their approach, since otherwise constitutional limits are just progressively swept away over time--but it is as ever deployed here politically, not legally. I haven't read Ezra Klein's documentation of the development of the anti-PPACA argument in The New Yorker yet, just Kevin Drum's post about it at Mother Jones and a follow-up by Klein at the Washington Post, but I have followed the news closely enough over the past couple of years to firmly agree that pre-2009, PPACA was unquestionably constitutional, and that it only became questionable once Obama supported it due to the dynamic of national Republicans being determined to destroy him at all costs. So who cares if it is overruled tomorrow with an impeccable legal argument? The Court would be right for completely wrong reasons.
I take that back. Apparently there are still a shitload of liberals in denial:
ReplyDeletehttp://abcnews.go.com/blogs/politics/2012/06/obamacare-predictions-what-will-the-supreme-court-decide/
I saw that at SCOTUSblog -- he didn't really give a reason. Anything's possible, I guess, but Obama should have known better than to hang this thing on the Interstate Commerce Clause. I don't believe regulating commerce means Congress can force parties to enter into commerce. It can regulate them once they're in but if they're not participating, then I think they're outside that clause's reach. Good policy, terrible law -- and worse strategy, as the administration's argument developed through the lower courts. The Commerce Clause ended up being all they had left.
ReplyDeleteSingle-payer, on the other hand, wouldn't offend the Constitution one iota. Maybe some day.
I sympathize with (though I'm not fully convinced by) the argument that virtually everyone in the country participates in healthcare commerce, regardless of whether they purchase health insurance. Almost the only exception I can think of would be hardcore Christian Scientists. But yes, again, I think those statements can be applied broadly to U.S. constitutional history as well as the PPACA: "good policy, terrible law," and of course hanging everything on the goddamn commerce clause. It is *the* go-to excuse to enable Congress to do absolutely anything.
ReplyDeleteNo question single-payer is the way to go--best policy, best law. I think it will happen eventually, but god knows how long it will take.
Oh my god:
ReplyDeletehttp://www.scotusblog.com
10:08 Amy Howe: The individual mandate survives as a tax.