Add this to the good news/bad news mix from the Supreme Court's healthcare decision: Because of the good news (Chief Justice Roberts voted to uphold the constitutionality of the Affordable Care Act), we get the bad news that his standing among the nation's Democrats has significantly increased. This collective amnesia about who John Roberts is and what he has done is disturbing, especially since the direction of the Court is one of the most important issues upon which Democrats should be voting in November.
A new Gallup Poll shows wild fluctuations in Democrats and Republicans' assessment of Chief Justice John Roberts since their last poll in 2005, a change Gallup attributes to his role in upholding the Affordable Care Act. Roberts' approval rating among Republicans has plummeted 40 percentage points from 2005, falling from 67% to 27%. In contrast, his favorability among Democrats has risen from 35% to 54%. That the healthcare decision is a catalyst of this change is supported by a PEW Research Center poll last week showing that between April and July, approval of the Supreme Court dropped 18 points among Republicans and rose 12% among Democrats.
Yes, John Roberts upheld the ACA, but only as a tax. At the same time, he agreed with his four far right compatriots that it fell outside the authority granted Congress by the Commerce Clause, leaving many observers concerned that he has set traps designed to let the Court later strike down congressional legislation that should in no way be considered constitutionally suspect. He also joined the majority that restricted Congress's constitutional authority under the Spending Clause to define the contours of state programs financed with federal funds.
Just as importantly, Roberts's upholding the ACA does not erase the past seven years, during which he has repeatedly been part of thin conservative majority decisions bending the law beyond recognition in order to achieve a right wing political result. John Roberts cast the deciding vote in a number of disastrous decisions, including those that:
Oh, and then there's that little 5-4 Citizens United opinion that has upended our nation's electoral system and put our government up to sale to the highest bidder.
With a rap sheet like that – and this is hardly a complete a list – no one should be under the illusion that John Roberts is anything but a right-wing ideologue using the Supreme Court to cement his favorite right-wing policies into law.
Next term, Roberts is expected to lead the judicial front of the Republican Party's war against affirmative action and the Voting Rights Act. Whether he succeeds may depend on whether it is Mitt Romney or Barack Obama who fills the next vacancy on the Supreme Court.
Yesterday, the Republican National Committee released a web ad featuring the voice of Solicitor General Donald Verrilli haltingly defending the Affordable Care Act. After saying that “For more than 80 percent of Americans, the, ah, insurance system does provide effective access,” Verrilli trails off, coughing and stuttering for an incredibly long time.
But as Bloomberg News revealed, the awkward silence isn’t credible. It’s entirely doctored. In the actual audio of the case, Verrilli pauses only briefly before continuing “But for more than 40 million who do not have access to health insurance, either through their employer or through government programs such as Medicare or Medicaid, the system does not work.
Tom Goldstein of SCOTUSblog calls it “the single most classless and misleading thing I’ve ever seen related to the Court,” and he’s right. But it shouldn’t come as any surprise that this is the tack taken by the GOP. From day one, Republicans decided that the best way to oppose President Obama’s health care reform agenda was by lying about it. Whether it’s about death panels, rationed care or the Solicitor General’ performance before the Supreme Court, Republicans have made clear that there’s no lie they won’t tell in order to damage the president and frustrate his agenda.
After the Citizens United decision, we’ve seen outside groups pushing sleazy “Swift Boat” style attack ads. The fact that the RNC itself chose to push such a blatant lie only underscores how comfortable with dishonesty--and how desperate--the party has become.
Republican leaders, including presidential contenders who hope to lead the party, should renounce these dishonest attacks.
PFAW Senior Fellow Jamie Raskin went on Fox News last night to discuss the Supreme Court oral arguments on the Affordable Care Act with Sean Hannity and the American Center for Law & Justice’s Jay Sekulow. Unsurprisingly, Sen. Raskin didn’t get much time to make his case before he was hit with a wave of faux outrage from Sekulow and Hannity.
The subject of the outrage? Sen. Raskin had called some of the conservative justices’ questions “weak” – which somehow for Sekulow turned into “attacking the integrity of justices of the United States.”
The conversation starts about five minutes into this clip:
Sekulow’s attempt at outrage is rather stunning, since his organization, the ACLJ, exists in a large part to rail against the motivations – or, if you will, the “integrity” -- of judges and justices with whom he disagrees. When the 9th Circuit ruled in favor of marriage equality, he slammed it as “another example of an activist judiciary that overreached.” When the Senate was considering then-appeals court judge Sonia Sotomayor for her seat on the Supreme Court, Sekulow said, "To call her a judicial activist is an insult to judicial activists."
Sekulow has every right to criticize justices and judges with whom he disagrees. But he doesn’t exactly have the high ground for slamming those who offer mild criticism of questions conservative justices ask in oral arguments.
For more on Jamie Raskin’s analysis of the health care case, read his piece in the Huffington Post yesterday.
On the second anniversary of the signing of the Affordable Health Care Act, the Supreme Court prepares to hear arguments against its constitutionality, even though legal experts from across the ideological spectrum have concluded the Act is constitutional. Now, Americans who have been helped by the health care reform are speaking out in favor of the law.
The Affordable Health Care Act most effectively addressed three major systemic problems in American healthcare: frequent, unjustified rate hikes, discrimination against Americans suffering from pre-existing conditions, and young Americans losing coverage once they become ineligible for their parents’ insurance plan.
Prior to the Affordable Health Care Act: insured Americans spent around $1,000 caring for uninsured Americans, and paid skyrocketing premiums; insurance companies were allowed to deny coverage to those with pre-existing conditions, including children; young adults, the group most unlikely to have health coverage, was ineligible to stay on their parents’ insurance plan.
And after Obama signed the Affordable Health Care Act? Up to $1.4 million in rebates could be distributed to as many as 9 million Americans, upwards of 17 million children suffering from pre-existing medical conditions could not be denied coverage, and 2.5 million young adults became eligible to remain on their parents’ health care plan until age 26.
By 2014, every American will access health care regardless of their employment status. Fast forward to 2019, and middle-class Americans are expected to save $2,000 dollars based on the Affordable Health Care Act’s provisions. The budget deficit is supposed to decrease by $127 billion between now and 2021…
As long as the Affordable Health Care Act remains law.
If the Supreme Court does not strike down “Obamacare,” small businesses can receive tax credits to insure employees, 45 million women can easily access basic preventative care such as contraception and mammograms, and incentives for annual physician visits increase. And that’s just icing on top of the reform cake.
Or, the Supreme Court could declare the Act unconstitutional (an extremely unlikely, but nonetheless concerning possibility). In Massachusetts, Gale’s son with cystic fibrosis is not necessarily eligible for his parents’ health care plan anymore. Alice from Colorado has to start travelling to Mexico to fill her monthly insulin prescription again. And in Florida, Terry’s daughter might not survive a disease that attacks the arteries branching from her Aorta, so she most likely won’t become an elementary school teacher.
Later this month, the Supreme Court will hear arguments in one of the most closely-watched cases in its history: the challenge to the 2010 Affordable Care Act. But in the weeks leading up to those arguments, another fight will be taking place in the U.S. Senate on an issue that in many ways parallels the health care debate, and offers an even clearer view of what have become the policy priorities of the Republican Party.
Since Obama became president, Republicans in Congress have made a clear and conscious choice to kill any attempts to cooperate with him to create solutions for the American people. They have chosen instead to devote themselves to be the party of opposing President Obama - on every issue, big and small. In doing so, they have thrown out not only the trust of the people who elected them, but many of their own formerly held principles.
Even ideas that originally came from Republicans, once adopted by the president become grounds for all-out partisan attacks. One such Republican idea was the individual mandate, which is now at the center of the legal and political challenges to the Affordable Care Act.
Ironically, the judicial branch - to which Republicans are turning with hopes that the policy they came up with is declared unconstitutional - is also at the heart of another stunning turnaround. Republicans used to talk about the importance of bipartisan cooperation in ensuring a fair and functioning judiciary. But that changed abruptly in January 2009, when the political party of the president changed.
When it comes to health care reform, Republicans have chosen to ignore their previous positions in an effort to stick it to the president.
When it comes to the functioning of the federal courts, they have so far chosen to do the same.
This week, Republicans in the Senate, after three years of obstructing nominees to the U.S. courts -- contributing to a historic vacancy crisis that affects over 160 million Americans -- will have to make the same choice. Senate Majority Leader Harry Reid has announced he will file petitions to end the filibusters of 17 nominees to district courts around the country, most long-stalled and unopposed. These, plus the two Obama nominees who have already been filibustered, represent nearly ten times the number of district court nominees who were filibustered under the last two presidents combined. The cumbersome process to end these filibusters will, if Republicans don't relent, tie up the Senate through early April.
During George W. Bush's presidency, Senate Republicans were near-universal in their condemnation of the filibusters of some of Bush's most extreme judicial nominees. Many went so far as to claim that filibustering judicial nominees was unconstitutional.
Once President Obama moved into the White House, it was remarkable how fast they changed their tune. They went overnight from decrying judicial filibusters, to using them wantonly -- not just to stall nominees to whom they found objections, but to stall all nominees , even those whom they favor. At this point in Bush's presidency, the average district court nominee waited 22 days between approval from the Senate Judiciary Committee and a vote from the full Senate. Under President Obama, the average wait has been more than four times longer - over three months.
This is gridlock for gridlock's sake: once Republicans allow them to come to a vote, the vast majority of the president's nominees have been confirmed with overwhelming bipartisan support, demonstrating that the opposition to these nominees was never about their qualifications.
This is more than an inside the beltway partisan game -- it has helped to create a historic vacancy crisis in the federal courts. Approximately one in ten federal courtrooms today sits empty because of Senate inaction. These vacancies create unmanageable workloads for sitting judges, which in turn cause unacceptable delays for Americans seeking their day in court. The Republican Party has been so intent on obstructing President Obama's agenda that they've been willing to sacrifice the smooth functioning of America's courts
. The health care debate highlights the importance of appointing judges who place their duty to the Constitution over a partisan agenda. But it also crystallizes the agenda of opposition that has caused the Republican Party to go off the deep end. When a party's only principle is to be opposed to the other party's agenda, it's the American people who end up paying the price.
The Senate will reportedly vote this week on the Blunt amendment, an addition to the transportation bill from Missouri Sen. Roy Blunt that would, if it became law, throw the American health care system into chaos.
Blunt’s amendment, part of the right-wing overreaction to President Obama’s mandate that health insurance policies cover contraception, would allow any employer to refuse any employee insurance for any treatment on religious grounds. So not only could any boss refuse his female employees access to birth control, but any employer could refuse coverage for any procedure or medication he or she found morally offensive – including things like blood transfusions, vaccinations, or even treatment from a doctor of the opposite sex.
Not only would the Blunt amendment mean that comprehensive health insurance wouldn’t necessarily provide comprehensive health insurance – it would throw the country’s health care system into chaos, as each employer and each insurer carved out their own sets of rules.
The plan is bad public policy and antithetical to religious freedom, but it will probably get the votes of most Republican senators. In fact, the basic idea behind the plan is something that’s already been embraced by Mitt Romney and Rick Santorum.
A large majority of Americans think that insurance policies should be required to cover basic reproductive care – including contraception – for women. The Blunt amendment would not only deny that care to women, it would go even further in denying health care to all American workers for any number of reasons totally beyond their control.
This is straight-up extremism: and American voters know that.
UPDATE: The Democratic Policy and Communications Center estimates that the Blunt amendment could put preventative care for 20 million women at risk.
In the Tea Party, it’s all the rage these days to declare everything unconstitutional – Social Security, Medicare, unemployment insurance, disaster relief, federal civil rights laws, health care reform, basically any law that enables the federal government to take on national-scale problems.
One of the main strategies that the Tea Party has been using to push this extreme and regressive view of the Constitution is pushing aside the Commerce Clause, the clause in the Constitution that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”
The Commerce Clause, long recognized by courts as the rationale for important progressive economic programs, has come under fire from opponents of health care reform, who are arguing in the courts – with mixed success -- that the clause does not allow the Affordable Care Act’s individual health insurance mandate.
In a new report, People For the American Way Foundation Senior Fellow Jamie Raskin argues that “a powerful case can be made “that the Commerce Clause is “the most important constitutional instrument for social progress in our history.”
Without it, Congress could not have passed the National Labor Relations Act, the Fair Labor Standards Act, the Clayton and Sherman Anti-Trust Acts, the Civil Rights Act of 1964’s prohibition of race discrimination in hotels, restaurants and other places of public accommodation, the Occupational Safety and Health Act, the Equal Pay Act, the Clean Air Act, the Clean Water Act and dozens of other federal statutes protecting the environment and establishing the rights of citizens in the workplace and the marketplace.
Why, then, does the Commerce Clause seem pale and dull next to the Free Speech and Equal Protection Clauses?
Perhaps it is because these provisions clearly declare radiant principles of liberty and equality that translate into easily understood and intuitively attractive protections against arbitrary government power.
Because the Commerce Clause has been a powerful instrument of social reform over the last century, its meaning has periodically provoked deep jurisprudential controversy. This is ironic since the Court routinely and unanimously upheld congressional assertion of a comprehensive federal commerce power before broad democratic purposes entered the picture. The commerce power became the target of virulent attack by corporate conservatives when progressives and labor gained political influence and used this power as the constitutional basis upon which to regulate and improve the character, terms and conditions of the American workplace and marketplace in favor of large numbers of the American people.
Raskin follows the Commerce Clause from its origins at the Constitutional Convention, through the Lochner era, when an activist court “put the Commerce Clause in a straightjacket” to strike down federal worker protection laws and other attempts to regulate interstate commerce, to the late 1930s, when the court returned to a more expansive view of the clause, allowing progressive economic programs and civil rights reforms to flourish, to the Rehnquist Court, which again began to narrow down the scope of Congress’s constitutional regulatory power, to challenges to the Affordable Care Act, which threaten to take us back to the Lochner era.
Today's news from Wisconsin:
In a win for the millions of Americans who are set to receive health insurance through last year's healthcare reform law, the 6th Circuit Court of Appeals has ruled the Patient Protection and Affordable Care Act constitutional. The full ruling can be read here.
The ruling comes in one of several challenges to the healthcare reform law being floated by Tea Party-affiliated groups and Republican attorneys general. (This particular challenge comes from the right-wing Thomas More Law Center.) The groups all challenge the law’s individual mandate, an idea first proposed by conservative groups as an acceptable method of ensuring universal healthcare. The appeals court found that the individual mandate is well within the reach of the Constitution’s Commerce Clause, which allows Congress to regulate commerce between the states.
The 6th Circuit is the first federal appellate court to rule on the healthcare reform law, and it has been called one of the more conservative benches. Judge Jeffery Sutton, a George W. Bush nominee and former Scalia clerk, wrote a concurring opinion upholding the constitutionality of the Affordable Care Act. His concurrence offers a detailed and extremely respectful analysis – and rejection – of the claims that the law violates the Constitution because it compels people to purchase a product. He has been called “one of the nation’s leading advocates for conservative states-rights positions” yet, in addition to rejecting the Commerce Clause argument, he also gave short shrift to More’s Tenth Amendment argument.
From the court’s decision:
By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons. First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce. In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance
The ACA is clearly constitutional, but the fight is far from over. Despite the fact that this case has one of the nations’ leading conservatives ruling for the constitutionality of the ACA, there are more constitutional challenges still making their way through the courts.
The constitutionality of the Affordable Care Act is once again in the news, as a three-judge panel of the Fourth Circuit Court of Appeals heard arguments yesterday on the constitutionality of the healthcare reform law. As reported by the Los Angeles Times:
Lawyers for Virginia struggled to explain how the state had the legal standing to challenge the healthcare mandate on behalf of its citizens. The judges said precedent did not permit states to sue on behalf of their citizens to contest federal laws.
But standing was not a problem in a second case, where lawyers for Liberty University sued on behalf of several individuals. Both lawsuits said a requirement in the new law that everyone purchase healthcare was a violation of the Constitution. ...
By their comments, members of the panel of the 4th Circuit Court of Appeals sounded as though they would reverse that decision and say Virginia Atty. Gen. Ken Cuccinelli had no standing to challenge the law.
Liberty University lost its lawsuit in federal District Court and appealed to the 4th Circuit. Mathew Staver, their lawyer, said Congress could regulate commerce but not "idleness." In this instance, he referred to the refusal of his clients to purchase health insurance.
But the judges didn't sound persuaded. They noted the Supreme Court had said Congress had broad power to regulate a national market, and the mandate was an attempt to regulate insurance. It is a "practical power," Judge Davis said, to regulate effectively.
Perhaps the judges did not sound persuaded because the far right's legal argument is so weak. It cannot be repeated too often that many of those caterwauling most loudly that the healthcare law is unconstitutional were expressing the exact opposite opinion before the corporate-funded Tea Party arose. In fact, the individual mandate was a Republican idea and originally championed by many of those who now claim that it is an unconstitutional usurpation of power by the federal government. Senators Orrin Hatch and Charles Grassley – who co-sponsored legislation during the Clinton Administration that featured an individual mandate – are among the many who have shamelessly flip-flopped on the issue.
Adding to the shamelessness, Mat Staver was one of the attorneys arguing before the court today that the law is unconstitutional. His extremism has long been reported in Right Wing Watch.
In the Huffington Post today, People For the American Way's President Michael Keegan connects the extreme pro-corporate policies being pushed by federal and state GOP officials with the new liberty that corporations have to buy influence in elections:
One year after Citizens United v. FEC, when the Supreme Court opened American elections to a corporate spending free-for-all, elected officials in Washington and in statehouses around the country are pushing a stunning set of financial policies that, if passed, will provide a windfall for giant corporations at the expense of already-hurting individual taxpayers. Largely proposed under the guise of financial responsibility, these proposals threaten job creation and essential government services while ensuring the coffers of corporations remain untouched.
American taxpayers are beginning to fight back against some of the most egregious proposals, such as Wisconsin Gov. Scott Walker's attempt to bust public employee unions and the House GOP's slashing of funding for women's health care. But as long as corporations can buy unlimited political influence, these battles will only escalate and they will continue to be just as lopsided.
In the coming weeks, we will see the interests of corporate funders and the interests of individual taxpayers go head-to-head as Congress and the president attempt to hammer out a continuing spending resolution that will keep the government running for the rest of the year. The Republican House wants to block funds to reproductive health services, gut the Affordable Care Act, and even prevent the Environmental Protection Bureau from regulating pollution -- all while costing an estimated 700,000 American jobs. The winners in the House's proposal? Large corporations and the wealthy, who under the proposal astoundingly would not even be asked to give up a single tax loophole.
Read the whole thing here.
For the past few decades, Republicans have aggressively and notoriously acted as if only they love the flag, only they appreciate families, only they are religious, and only they care about national defense. In the past couple of years, inspired by the Tea Party, they've added a new object to which they falsely lay sole claim: the United States Constitution.
Of course, for many of them, it's little more than a fetish. After all, the Republican Party's Constitution has long denied the right to abortion (and, in many cases, the right to privacy altogether), denied church-state separation, denied the right to vote, and denied equality under the law for LGBT people. The Tea Party's version of the Constitution is even more removed from the real thing, as analyzed in a recent PFAW report, Corporate Infusion: What the Tea Party's Really Serving America.
So it's no surprise that House Republicans' latest effort to lay claim to the Constitution – requiring bill sponsors to submit statements specifying the constitutional authority for their legislation – has turned out to be meaningless. As reported by Congressional Quarterly (subscription required):
During a Feb. 11 subcommittee markup on a bill (HR 358) offered by Joe Pitts, R-Pa., to prohibit federal funds from being used to pay for health insurance that covers abortion, New York Democrat Anthony Weiner offered a point of order against the legislation on grounds that its "statement of constitutional authority" does not point to any specific authority for Congress to take such action.
The bill's statement says: "The Protect Life Act would overturn an unconstitutional mandate regarding abortion in the Patient Protection and Affordable Care Act," last year's health care overhaul.
The markup soon became chaotic as lawmakers clashed for nearly an hour over whether the statement passed muster, and whether the Republicans were flouting their own rule. "The rules are the rules, and the Constitution is the Constitution," Weiner exclaimed.
Eventually, Energy and Commerce Chairman Fred Upton, R-Mich., consulted the Rules Committee, which in January issued a handy guide to complying with the new rule. The Rules Committee provided guidance on how statements of constitutional authority might be phrased, but said the only requirement is that a statement be submitted.
"The question of whether the statement is sufficient is a matter for debate and a factor that a member may consider when deciding whether to support the measure," Upton said.
The committee's top Democrat, Henry A. Waxman of California, called that “a mockery” of the rules. "The ruling is that it doesn't make any difference what you say,” he said. “You could say, 'Aboogaboogaboogabooga!' and that's enough to justify the constitutionality of the proposal."
The Constitution that established a careful separation of powers, an independent court system, freedom of speech, freedom of religion, the eradication of slavery, and equality for all is far too precious a document to become just a symbol in meaningless political posturing. Shame on the House Republicans.
Once people had time to look past the headlines and actually read this week's opinion striking down a key component of the Affordable Care Act, a number of them are pointing out what they consider a serious flaw in Judge Hudson's reasoning. The key error, they claim, is when the judge wrote:
If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Calling the opinion "Amateur Hour," Talking Points Memo writes:
Legal experts are attacking Judge Henry Hudson's decision on the merits, citing an elementary logical flaw at the heart of his opinion. And that has conservative scholars -- even ones sympathetic to the idea that the mandate is unconstitutional -- prepared to see Hudson's decision thrown out.
"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.
Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology. ...
The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."
Kerr's co-blogger, Case Western Reserve University Law Professor Jonathan Adler agreed, though he cautioned that Hudson's error doesn't necessarily imply that the mandate is constitutional.
In an interview with TPM this morning, Timothy Jost of Washington and Lee University, a supporter of the mandate, called the logic on this point "completely redundant."
Steve Benen in the Washington Monthly wrote:
That's a rather bizarre legal analysis.
"Bizarre" is one way to describe it. Perhaps another way would be "outcome-based judicial activism."