If the Supreme Court justices decide to throw out the Affordable Care Act, even partially, we should be clear about the reasons for the failure. It won’t be because Justice Department lawyers bungled their job. Rather, the case will have been lost outside the courts. The White House and its allies in Congress are the ones who failed to do a critical part of their job: to explain and defend to the public not only how the law works, but the constitutional case for upholding it. Leading Democrats didn’t just fail at this task.
In the current issue of TNR, I suggested that the health care decision represents a “moment of truth” for John Roberts because, if the Supreme Court overturns the Affordable Care Act by a 5-4 vote, Roberts’s "stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.” This observation was intended as nothing more than a statement of the obvious. It has nonetheless provoked an outraged reaction from conservative commentators.
For the past few months, the legal discussion in Washington has centered around the Supreme Court’s upcoming ruling on health care reform. Far less attention has been paid to a decision issued by the U.S. Court of Appeals for the D.C. Circuit on April 13—even though it may prove, in the long run, to be similarly significant. At first glance, the case, Hettinga v. United States, doesn’t seem to merit much attention, since it concerns a less-than-scintillating subject: the production and distribution of milk.
Last week, I wrote an article describing several purchase mandates adopted by the framers in early Congresses, including two medical insurance mandates imposed on shipowners and seamen. These examples rebut the claim by challengers to Obamacare that purchase mandates are wholly unprecedented in a way that allows us to infer they are unconstitutional, a claim on which they rely heavily because there is no text, history, or case law that affirmatively supports a ban on purchase mandates. Not everyone agrees with me.
As everyone knows, the health care reform lawsuits that are currently making their way to the Supreme Court are being shepherded and applauded by conservatives. But how conservative is the judicial philosophy behind the suits? The answer turns out to be complicated. In fact, once the lawsuits end up at the Court, they will likely expose ideological fissures in the conservative legal movement that may unsettle those on both the right and the left. To understand why, consider what these lawsuits are actually about.
In case you haven't checked the front page today, my TRB column is up, about the whackadoodle attempt to overturn the Affordable Care Act on Constitutional grounds: When U.S. District Court Judge Roger Vinson ruled last week that the individual mandate—and hence, the entire Affordable Care Act (ACA)—violates the Constitution, right-wingers were entitled to feel giddy. But they want more than giddiness at the prospect that ideologically friendly judges may win for them what they lost at the ballot box in 2008. They want intellectual respect, too.
When U.S. District Court Judge Roger Vinson ruled last week that the individual mandate—and hence, the entire Affordable Care Act (ACA)—violates the Constitution, right-wingers were entitled to feel giddy. But they want more than giddiness at the prospect that ideologically friendly judges may win for them what they lost at the ballot box in 2008. They want intellectual respect, too. Most of the legal profession had, until recently, dismissed lawsuits against the ACA as nutty, a fantasy of right-wing judicial activism.
WASHINGTON -- The nation owes a substantial debt to Justice Samuel Alito for his display of unhappiness over President Obama's criticisms of the Supreme Court's recent legislation -- excuse me, decision -- opening our electoral system to a new torrent of corporate money. Alito's inability to restrain himself during the State of the Union address brought to wide attention a truth that too many have tried to ignore: The Supreme Court is now dominated by a highly politicized conservative majority intent on working its will, even if that means ignoring precedents and the wishes of the elected bra