How Republicans made it possible for the Supreme Court to rule against the mandate
But permission structures aren’t just for elections. Over the past two years, the Republican Party has slowly been building a permission structure for the five Republicans on the Supreme Court to feel comfortable doing something nobody thought they could do: Violate the existing understanding of the Commerce Clause and, in perhaps the most significant moment of judicial activism since the New Deal, overturn either all or part of the Affordable Care Act.
The first step was, perhaps, the hardest: The Republican Party had to take an official and unanimous stand against the wisdom and constitutionality of the individual mandate. Typically, it’s not that difficult for the opposition party to oppose the least popular element in the majority party’s largest initiative. But the individual mandate was a policy idea Republicans had thought of in the late-1980s and supported for two decades. They had, in effect, to convince every Republican to say that the policy they had been supporting was an unconstitutional assault on liberty.
When this campaign began, it was unthinkable that the Supreme Court would indulge it, even if some on the Supreme Court were sympathetic to its aims. “There is a less than one-per-cent chance that the courts will invalidate the individual mandate,” Kerr said at the time. Today, it’s entirely thinkable that the Supreme Court will indulge it, and that means that the members of the Supreme Court, who care deeply about protecting their institution’s legitimacy, are free to rule in whichever direction they want. We’ll find out what direction that is on Thursday.
Unthinkable? Ezra really needs to get out more. There were a lot of people (myself included) who thought the Obamacare mandate was unconstitutional right from the start.
This kinda pisses me off because Ezra is impugning my profession. I actually have a lot of respect for judges. SCOTUS may be a lot of things but they generally aren’t political. Ideologues, yes, political no.
I’m not saying I always agree with their decisions, because I don’t. Right now we have four SCOTUS justices that are very conservative and another that is moderately conservative. That’s no secret. But how come no one ever questions the integrity of the four “liberal” justices?
What lawyers want from judges more than anything else is consistency. In a given set of circumstances you want to know what the judge will do. That way you can make plans and give good advice.
Right now the only inconsistent SCOTUS justice is Anthony Kennedy. He is usually the swing vote in every 5/4 decision.
US v. Lopez, 514 U.S. 549 (1995) was the first SCOTUS decision since the New Deal to set limits to congressional power under the Commerce Clause of the Constitution. Kennedy, Scalia and Thomas were all part of the majority in that decision.
If SCOTUS strikes down all or part of Obamacare it will be because they decided it was in excess of the Commerce Clause. If SCOTUS upholds the individual mandate it will extend congressional power farther than ever before. Either way, it will have nothing to do with any “campaigns.”
BTW – John W. Smart stole this post from me and posted it first.
Filed under: Affordable Care Act, Law and Constitution, Media Zombies, Obamacare | Tagged: Affordable Care Act, Law and Constitution, Media Zombies, Obamacare | 94 Comments »