Thursday, February 03, 2011

Supreme Court Consideration Likely

Simon Lazarus, as Policy Counsel for the National Senior Citizens Law Center, and author of the ACS Issue Brief, "Mandatory Health Insurance: Is it Constitutional?", no doubt is an expert on health care law. Following the decision of Judge Roger Vinson, sitting in federal district court in Pensacola, to strike down the Affordable Care act, Lazarus observed that the ruling

in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century - since the New Deal - and, actually, dating back to Chief Justice John Marshall's expansive interpretations of the constitutional provisions directly at issue here. This decision, along with Judge Henry E. Hudson's recent decision to strike essential parts of the ACA, exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours.

Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson's decision rests are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.

The "long-dead and discredited doctrines" accepted by Judge Vinson already have been rejected by three of the five Supreme Court Justices who might vote to invalidate the affordable care act. Saint Reagan's Solicitor General, Charles Fried, who is "not sure" the ACA is "good policy," nonetheless in testimony (video below) before the Senate declared "I am quite sure that the health care mandate is constitutional." He asserted "health care insurance surely is commerce, insuring as it does something like 18% of the Gross National Product." "If health care insurance is commerce," Fried continued, Congress may regulate it.

Ezra Klein describes "a conservative legal scholar and friend" as arguing that probably no Circuit Court will affirm either of the two decisions finding the hcr mandate unconstitutional. And the unnamed friend does "not believe the Supreme Court would be inclined to take this issue up in 2012 (the likeliest timetable) if no Circuit court had found the mandate (or any other part of the law) to be unconstitutional." Further, in a recent case, Justices Kennedy, Alito, and Roberts joined a seven-judge majority in refusing to hear a case involving the reach of the Commerce Clause.

But of course it will (or so says the blogger who believed Barack Obama would win the 2008 New Hampshire primary but fail to be nominated.) The New Republic's health care expert, Jonathan Cohn, recognizes Vinson's decision as politically motivated, observing it

looks like a shout-out to the Tea Party--specifically, a reference to the American Colonists' outrage over the tax on tea. (Page 42.) There’s the gratuitous reference to General Motors as “partially government-owned.” (Page 45.) And there’s the use of President Obama’s campaign rhetoric against the law Obama now supports. (Page 68).

Finding an ideological underpinning to many judicial decisions, The Faculty Blog of the University of Chicago reported that a study undertaken at the school found "The upshot is that judicial convictions -- the policy preferences of judges -- appear to be playing a significant role in an area of the law in which such convictions are not supposed to be relevant."

Klein notes

The political scientists Jeffrey Segal and Harold Spaeth formulated what they call an "attitudinal" model of the court, which holds that the "attitudes" (political beliefs, personal feelings, etc.) of justices are the most important determinants of rulings. The model fits the data quite well, with one study of Segal and Spaeth's showing justices voting their personal views over 90 percent of the time.

But the best reason for believing the Court will rule on the Affordable Care Act may be found in the effort yesterday in the U.S. Senate to repeal the legislation. Although the GOP's move failed, it laid bare its partisan nature, with all 47 Republicans present voting for repeal (and all 51 Democrats present voting against repeal). Cohn notes that Vinson's decision was not

the first time a judge invalidating the Affordable Care Act may have tipped his political hand. Henry Hudson, the federal judge who issued a narrower ruling against the law late last year, noted in his decision that the bill was rushed through the legislative process--which is a strange way to describe a law nearly fourteen months in gestation, unless you are trying to argue there was something fundamentally illegitimate about the process that produced it.

During the national controversy leading to extremely narrow passage of health care reform, talk radio resonated with the whine that legislation was being rushed through. It was a ludicrous charge, as reflected in The Hill's remark in September, 2009 of three Democratic, and three, Republican Senators: "Members of the gang, who all sit on the Finance Committee, have negotiated for months to reach a bipartisan agreement, delaying healthcare reform in the Senate beyond a deadline set by President Barack Obama." This inconvenient characteristic of the health care reform process was ignored by the likes of Rush Limbaugh and Glenn Beck- and by federal judge Henry Hudson.

The political motivation which would prompt the Court to consider the constitutionality of the ACA hardly would be unprecedented, as Segal/Spaeth and others recognize. Consider

The ruling that stopped the Florida recount and handed the presidency to George W. Bush is disappearing down the legal world’s version of the memory hole, the slot where, in George Orwell’s “1984,” government workers disposed of politically inconvenient records. The Supreme Court has not cited it once since it was decided, and when Justice Antonin Scalia, who loves to hold forth on court precedents, was asked about it at a forum earlier this year, he snapped, “Come on, get over it.”

There is a legal argument for pushing Bush v. Gore aside. The majority opinion announced that the ruling was “limited to the present circumstances” and could not be cited as precedent. But many legal scholars insisted at the time that this assertion was itself dictum — the part of a legal opinion that is nonbinding — and illegitimate, because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case.

It was a decision issued as a per curium opinion, one that is unsigned and instead attributed to the Court as a whole, generally limited to uncontroversial cases. One can hardly blame the five Justices in the majority, however, for declining to have their name singularly identified with the ludicrous ruling.

So while there may be little reason for the nation's highest court to reconsider the Affordable Care Act, and less reason to overturn it, such an outcome is hardly inconceivable.

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