The Commentariat -- March 28, 2012 Supreme Court Edition
NEW. Part 1 of my analysis, in the New York Times eXaminer, of the New York Times' coverage of the legal challenge to the Affordable Care Act is here. The NYTX front page is here. You can contribute here. ...
... NEW. Also, be sure to read Dean Baker's takedown of the New York Times report on RomneyCare: "The NYT puts an anti-Obamacare piece in the news section."
The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statute of this magnitude and importance, and stretches so dramatically and drastically to do it. – Senator Richard Blumenthal, D-Conn., former Connecticut Attorney General
In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty.... The Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem. Maybe they were right; maybe they weren't. But this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it. And I would suggest to the Court, with profound respect for the Court's obligation to ensure that the Federal Government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question. That this was a judgment of policy, that democratically accountable branches of this government made by their best lights. And I would urge this Court to respect that judgment and ask that the Affordable Care Act, in its entirety, be upheld. Thank you. -- Donald Verrilli, Solicitor General (Read Verrilli's entire final remark, beginning on page 79 @ line 14)
Links to audio & transcripts of today's sessions in today's Ledes.
** Also, do read Ken Winkes' essay in this page's Comments.
Adam Liptak of the New York Times: "On the third day and final of Supreme Court arguments over the constitutionality of President Obama’s health care overhaul law, the justices on Wednesday shifted their attention to a question with enormous practical implications: If they strike down a key provision of the sprawling law, what other provisions would have to fall along with it?"
N. C. Aizenman & Robert Barnes of the Washington Post: "The Supreme Court began the final day of its review of President Obama’s health-care law Wednesday, considering whether all of the law must fall if part of it is found unconstitutional, and whether its proposed Medicaid expansion violates the federal-state partnership."
New York Times Editors: "By the time the proceedings were over, much of what the conservative justices said in court seemed like part of a politically driven exercise — especially because the issues addressed on Wednesday were not largely constitutional in nature. In fact, they were the kinds of policy questions that are properly left to Congress and state governments to answer, not the Supreme Court."
Jeffrey Doom-and-Gloom Toobin:
Au contraire, writes Lyle Denniston of ScotusBlog: "The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.... The net effect may well have shored up support for the individual insurance mandate itself." ...
... BUT here's Denniston's analysis of the afternoon session: "Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights. It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act. It probably would be done by a 5-4 vote." Post has been updated.
Dahlia Lithwick describes the justices' behavior in the afternoon session: "... the discussion has disintegrated again into a Morning Joe-style roundtable about states’ rights, the states’ dangerous addiction to New Deal federal programs, and the possibility of sending the states back to rehab to work out their co-dependency issues."
** Andrew Koppelman of Salon: "The judges are being asked to take away health insurance from millions of people. And judging from what they said, they just might do it. Constitutional arguments that were clear howlers a few days ago now have a chance at becoming the law of the land." Koppelman does an excellent job of explaining the anti-Medicaid argument, how ridiculous it is, and how scary it is that the conservative justices, unlike any of the lower courts -- which all threw it out -- took the argument seriously.
NEW. Greg Sargent interviews Charles Fried, the former Solicitor General to Ronald Reagan. "lThere is a limiting principle,' Fried said. 'Congress can’t regulate something that isn’t interstate commerce.' At [Tuesday]’s hearing, [Justice] Kennedy suggested that it is beyond Congress’s authority to force people to purchase something they do not want. 'Can you create commerce in order to regulate it?' Kennedy asked. Fried ... said that under the mandate, Congress isn’t 'creating commerce,' it's merely regulating how inevitable commerce will be paid for. 'You’re not compelling commerce here,' Fried said. 'That assumes the commerce is the insurance. But the commerce is the health care. You’re regulating how it’s paid for. They’re not creating commerce; they’re creating the way you pay for it.'" ...
... NEW. Greg Sargent: "... in his interview with me about the limiting principle, former Reagan Solicitor General Charles Fried was scaldingly critical of the willingness of the conservative bloc of Supreme Court justices to traffic in some of the most well-worn Tea Party tropes about Obamacare. 'I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,' Fried said. 'I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.'"
Jeff Zeleny of the New York Times: "The early outlines of the [Obama campaign's plan to deal with the healthcare issue] came into view on Wednesday as the administration aggressively promoted the more popular provisions of the health care law. That offered a glimpse of the next three months, as the court wrestles with its ruling on the most sweeping piece of domestic legislation since was created in 1965.... If the administration loses its argument, one early strategy is to run squarely against the Supreme Court." ...
... NEW. Amy Gardner of the Washington Post on the same subject.
NEW. Charles Pierce: "It's been clear for some time now that [Justice Antonin Scalia] is short-timing his job on the Supreme Court. The job bores him.... He's really just a heckler at this point."
NEW. E. J. Dionne: "It fell to the court’s liberals — the so-called 'judicial activists,' remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.... If they strike down or cripple the health-care law..., a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws."
MYOB. Andrew Koppelman of Salon has precisely the right answer to Alito's question yesterday about the limits of the Commerce Clause: "What Solicitor General Donald Verrilli evidently could not bring himself to say – and this may be why his answers to No Limits were so tangled and hard to follow — is that there is no such safe harbor. Government already forces you to buy insurance you may not want, and thereby to subsidize others, via Social Security and Medicare. The check on the abuse of this power is a familiar one: the ballot box." See also the New York Times Editors' take linked in yesterday's Supremes Edition. It's a different way of saying the same thing to the Court: MYOB. ...
... Update: In Verrilli's final plea to the Court, cited at the top of this post, he at last tells them to MYOB.
... CW: I am in complete agreement with something else Koppelman writes in the post above: "Perhaps [Justice Scalia] was just being a devil’s advocate, but let’s be clear: That’s who he was advocating for.... Here the purported champion of judicial restraint proposes reading brutal, unregulated capitalism into the Constitution. Fundamental rights are violated if government acts to keep sick people alive? The other objections to the law are merely confused. This one is evil." As I listened to the audio yesterday, that was exactly my reaction to Scalia's questions; that and the fact that Scalia so clearly takes pleasure in doing evil to the weak and needy.
David Frum, Confused Conservative, writing in the Daily Beast, is not convinced the Republican-appointed Supremes will save the Republican Members of Congress from their dereliction of duty. An interesting take, for what it's worth, which might not be much.
This country is in the grip of some people who have been so brainwashed that they have lost their relationship to reality itself. Even nations run by right wing dictators aren't this self-destructive. We are the most powerful nation on earth --- and we're basically at the mercy of a group of primitive paranoids. -- Digby
Jay Leno quizzes Willard Romney on health care (because Romney won't talk to real reporters):
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