Researchers at People For’s Right Wing Watch were watching Mike Huckabee’s presidential candidate forum on Saturday, and picked out this interesting exchange:
First, Perry presents his plan to impose term limits on Supreme Court justices – which he correctly points out would require a constitutional amendment. Then he explains why he wants to do this: because the Supreme Court (which happens to be the most conservative in decades) keeps on making decisions he finds “offensive.”
Perry’s advice to the Justices who keep on offending him: “Don’t use any of these different clauses, whether it’s the Commerce Clause or any of the other clauses to try to try to change what our founding fathers were telling us.”
The Commerce Clause, which gives Congress the power to tackle economic issues that affect the entire country, is at the center of the legal challenges to the Affordable Care Act. It has also played a major role in the formation of the country: according to a report by PFAW Foundation, the clause has been "the most important constitutional instrument for social progress in our history.”
Of course, there can be many different interpretations of the Constitution – that’s what makes so-called “originalism” more opinion than science – but Perry’s doing more than offering a differening interpretation. He’s outright telling us that he wants to ignore the parts of the Constitution that he doesn’t like. In other words, he doesn’t want judges to use the Constitution to interpret the Constitution.
Perry’s latest Constitutional law lecture places him solidly in the company of fellow GOP candidate Newt Gingrich, who has said he’ll urge Congress to subpoena judges who make decisions he doesn’t like and encourage his administration to flatly ignore unpalatable court rulings.
This morning, the Supreme Court granted review to three cases involving challenges to the Affordable Care Act. As a result, the political conversation on the American people's ability to address national issues via congressional legislation will be paralleled by a legal conversation at the nation's highest court.
The Court will address several specific legal issues:
SCOTUSBlog notes the significant amount of time the Court will be devoting to this issue:
The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours. The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments. (In its earlier years, the Court customarily held days of oral argument on important cases; the modern Court, however, ordinarily limits oral argument to one hour per case.)
It is worth remembering that the individual mandate was a Republican idea. Their opposition to it today has nothing to do with constitutional principle, and everything to do with damaging President Obama politically and sabotaging the American people’s ability to effectively address national problems through national solutions.
In an opinion written by conservative Judge Laurence Silberman, a three-judge panel of the U.S. Court of Appeals for the DC Circuit Court today upheld the individual mandate of the Affordable Care Act. In a carefully considered 2-1 opinion, the court rejected the argument that Congress lacks authority under the Commerce Clause to require Americans to purchase health insurance. Judge Silberman's opinion points out just how extreme the right wing's arguments against the law are. (The dissent was based on jurisdiction, rather than the merits of the case.)
The parties challenging the ACA argued that Congress's authority under the Commerce Clause is limited to people who are actively engaged in an economic activity. Thus, they say, Congress cannot require people to purchase health insurance. Although the Right Wing presents this argument as a conservative return to the original intent of the Framers, Judge Silberman recognizes that it is anything but:
Nothing in the text of the Constitution or relevant case law supports this constricted vision of congressional authority under the Commerce Clause. As Judge Silberman writes:
The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument.
People For the American Way Foundation Senior Fellow Jamie Raskin has written that "the conservative arguments assailing the individual mandate seem paper-thin from the standpoint of constitutional text, history, precedent and doctrine." Or, as the DC Circuit stated today:
The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.
The constitutional attack against the Affordable Care Act is part of the Far Right's larger efforts to peddle the idea that Americans are powerless to impose reasonable limits on large corporations and hold them accountable when they do wrong. They will not be happy with today's dose of reality from Judge Silberman and the DC Circuit.
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.
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.
Another federal district judge has found the healthcare reform law constitutional. Judge Gladys Kessler in the District of Columbia becomes the third federal judge to uphold the law. As the New York Times reports:
The judge suggested in her 64-page opinion that not buying insurance was an active choice that had clear effects on the marketplace by burdening other payers with the cost of uncompensated medical care.
"Because of this cost-shifting effect," she wrote, "the individual decision to forgo health insurance, when considered in the aggregate, leads to substantially higher insurance premiums for those other individuals who do obtain coverage."
Judge Kessler observed that the basic argument against the law's constitutionality "ignores reality."
As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress's power. [internal citation omitted] However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not "acting," especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.
Perhaps that is why many of those on the right screaming most loudly that the law is unconstitutional were expressing the exact opposite opinion before the corporate-funded Tea Party arose, with its bizarre version of the United States Constitution seemingly written for We the Corporations, rather than We the People. After all, the individual mandate was a Republican idea and originally championed by many of those who now scream that it is an unconstitutional usurpation of power by the federal government. For instance, Senators Orrin Hatch and Charles Grassley co-sponsored legislation during the Clinton Administration that featured an individual mandate. As recently as June 2009, Sen. Grassley expressed his belief that there was a bipartisan consensus for individual mandates in the health care legislation. Both have completely flip-flopped on the issue.
Whatever this debate is about, it certainly isn't constitutional principle. Pretending otherwise is, to use Judge Kessler's words, ignoring reality.
Justices Clarence Thomas, joined by Justice Antonin Scalia, issued an interesting dissent yesterday to the Supreme Court's decision not to hear a challenge to a federal law making it a federal crime for a convicted felon to buy, own, or possess body armor (such as a bullet-proof vest) that had ever been sold in interstate or international commerce, even if the felon himself did not obtain it through interstate or international commerce. Congress passed the law as an exercise of the power granted it by the Constitution's Commerce Clause.
The rejected challenge in Alderman v. U.S. asserted that Congress had gone beyond the power granted to it by the Commerce Clause - the same argument that opponents of the landmark healthcare reform legislation have made. Since the constitutionality of the healthcare law under the Commerce Clause will likely be decided by the Supreme Court, Thomas and Scalia's dissent in this case may be a window into how they will rule in that case.
The Los Angeles Times gives one interpretation of the Court's decision:
The Supreme Court may not be so anxious to rein in Congress' broad power to pass regulatory laws under the Constitution's commerce clause, the key point of dispute in the pending court battles over President Obama's health insurance law. ...
The majority's decision, rendered without comment, could make it more difficult for those challenging health insurance reform to win court orders overturning parts of the new law. ...
Thomas referred to a pair of decisions, beginning in 1995, in which the court's conservatives, led by Chief Justice William H. Rehnquist, sought to put clearer limits on Congress' power. ...
But since Chief Justice John G. Roberts Jr. arrived in 2005, the court has not moved to restrain federal power.
A Justice can have any number of reasons for not wanting to hear a case — perhaps the Justice agrees with the lower court, or the issue is not important enough, or the facts of the case make it an inconvenient vehicle to discuss the legal issue, or there has not yet been enough debate among the circuit courts. As in this case, the public rarely knows why the Court voted not to grant cert.
For any of the Justices to voice their disagreement when cert is denied is unusual, and it suggests that they feel strongly about the issue at stake. In the body armor case, Justices Thomas and Scalia wrote:
Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence. Joining other Circuits, the Court of Appeals for the Ninth Circuit [uses reasoning that] threatens the proper limits on Congress' commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States. ...
[The lower courts’ interpretation of the Commerce Clause] seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguably could outlaw the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile on the basis that the candy once traveled to the store from Hershey, Pennsylvania.
Such an expansion of federal authority would trespass on traditional state police powers. We always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power.
While the dissent addresses this case alone, the fact that they issued it may reflect a strong desire to limit the scope of the Commerce Clause across the board. That would likely have an impact on the healthcare case when it reaches the Supreme Court. It may also signal their willingness to strike down acts of Congress that would unquestionably have been found constitutional in the past.
Historically, the Commerce Clause has been one of the most powerful tools that the American people have to impose reasonable regulations on giant corporations — and to hold them accountable when they do wrong. Justices Thomas and Scalia have been reliable supporters of Big Business on the Corporate Court. Any narrowing of the scope of the Commerce Clause needs to be viewed with caution.
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."
Today, a Bush-nominated federal district court judge struck down the insurance mandate of the landmark health care bill. This is the bill that Republicans did everything in their power to derail - including creating the breathtaking lie that Democrats wanted to kill voters' grandmothers.
The modern Republican Party has a deep-rooted antipathy toward the federal government (unless they're running it). They have created all sorts of legal theories to reinterpret the Constitution - especially the Commerce Clause - so as to prevent Americans from using government as the founders intended to tackle our most serious nationwide problems. With a federal government made impotent by this revision of the Constitution, corporations will continue to pollute, cheat their consumers, discriminate against their workers, and put out fatally defective products with impunity.
Today, it is health care legislation on the docket. But that is just the opening salvo against a wide variety of government endeavors.
Talking Points Memo observes:
A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia -- that the federal health care mandate is unconstitutional -- is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.
Indeed, contrary to conservatives' long-standing anathema to "activist" judges who "legislate from the bench," that is precisely what Judge Hudson appears to be doing in this case.
For instance, on page 38:
However, the bill embraces far more than health care reform. It is laden with provisions and riders patently extraneous to health care - over 400 in all.
These are not the words of a neutral, apolitical judge, but of someone with a policy ax to grind and his own view of what the legislative process should have comprised. The activist ax comes out again on page 39, when discussing whether striking down the insurance mandate section of the bill requires the judge to strike down the entire law:
The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote. It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, with Section 1501.
If you didn't know better, you might think this was a talking points document put out by Congressional opponents of health care reform.
Yesterday, U.S. District Judge Henry E. Hudson refused to dismiss a lawsuit, filed by Virginia Attorney General Ken Cuccinelli, challenging the constitutionality of the recently passed healthcare reform bill. This procedural ruling will likely lead to years of litigation surrounding the law, which many constitutional law experts believe is well in line with the parameters of the Commerce Clause and Congressional authority.
But much as we have seen, this is just another example of right-wing judges pursuing an ideological agenda to harm progressive goals. Though Judge Hudson’s ruling (see career background here) did not explicitly discuss the merits of the case, it’s pretty clear which side he would rule on, according to Steven Schwinn at the Constitutional Law Prof Blog:
[H]e clearly framed the issues in terms of Virginia's theory of the case--that the mandate is a regulation of a decision not to participate in the interstate economy--and commented throughout on the "complex constitutional issues”. . . The federal government will likely have a tough time getting Judge Hudson to move away from Virginia's view of the case.
This is yet another reason why conservatives are so intently set on packing the courts with right-wing extremists. Time will tell if their strategy works with regards to ideological courts bending the law in order to strike down healthcare reform.
Although Elena Kagan’s nomination moved out of committee yesterday, almost every Republican committee member voted against her, and most Senate Republicans are expected to follow suite. Why? As an editorial in the New York Times pointed out , Republican opposition to the broad interpretation of the commerce clause in recent decades may partly explain their refusal to support Kagan:
[D]ozens of Senate Republicans are ready to vote against [Kagan], and many are citing her interpretation of the commerce clause of the Constitution, the one that says Congress has the power to regulate commerce among the states. At her confirmation hearings, Ms. Kagan refused to take the Republican bait and agree to suggest limits on that clause’s meaning. This infuriated the conservatives on the Senate Judiciary Committee because it has been that clause, more than any other, that has been at the heart of the expansion of government power since the New Deal.
The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil Rights Act of 1964, outlawing segregation in the workplace and in public accommodations. In cases like these, the Supreme Court has said Congress can regulate activities that have a “substantial effect” on interstate commerce, even if they are not directly business-related.
…Make no mistake that such a vote is simply about her, or about President Obama. A vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century, and some of the best things that lie ahead.
In voting against Kagan’s anticipated interpretation of the commerce clause, the “Party of No” isn’t just opposing the confirmation of extremely qualified Supreme Court Justice; they’re also opposing the government fulfilling its responsibility to protect clean air and water, fair labor standards, and civil rights for all.
After debating 1776, we move on to a conversation about 1980.
In his long complaint about the Commerce Clause, Sen. Coburn declared that Americans had more freedom 30 years ago than we do now.
Sen. Klobuchar then took the floor, and brought up a few interesting points in response.
“I think about whether people were more free in 1980,” she said, “it's all in the eyes of the beholder.”
Senator Tom Coburn just launched an . . . interesting line of questioning against Elena Kagan, claiming that the Supreme Court has a broad mandate to stop Congress from running up a national debt.
SCOTUSblog’s initial notes of Coburn’s statement:
The Commerce Clause has gotten us to a place where we'll have a $1.6 Trillion deficit for our kids to pay. We have this expansive cost, and we have to have some limit on it. If the courts aren't going to limit within original intent, we have to throw out most of the Congress.
Actually, Senator Coburn, the American people do have a way to “throw out most of the Congress” if we’re unhappy with what they're doing. In fact, we get a chance to do it every two years.
Senator Cardin, following Coburn, put it just right: “His definition of original intent is similar to some of my colleague’s definition of judicial activism . . . you use it to get results.”
President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.
"Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee," the letter warns. "And we will act to preserve this principle and the rights of our colleagues if it is not."
In other words, Republicans are threatening a filibuster of judges if they're not happy.
The letter talks about "bipartisanship" and, separate from the letter, several Republicans have been warning the president for some time against nominating "far left judges." But for all this talk about "bipartisanship" and throwing terms around like "far-left judges," what do they really mean?
Does bipartisanship mean nominating half right-wing judges who would overturn Roe v. Wade and don't believe in the Constitution's promise of equal rights under the law; half who agree that the Constitution makes certain guarantees in terms of people's rights and liberties and that it gives the government the authority and the responsibility to protect those rights, not undermine them?
Or does it mean that all of the president's judicial nominees must be "moderates," and if so, what is their definition of "moderate?" Is a moderate someone who is respectful of fundamental constitutional rights and principles like privacy, equality, the right to choose and checks and balances… as long as they are pro-corporate? We already have a Supreme Court that is overwhelmingly pro-business, much more so than many precious Courts, including the four supposedly "liberal" Justices.
Of course that's probably not the case (not that the president should feel compelled to nominate judges with a corporate-friendly bent anyway, especially now that we are in the middle of the havoc wreaked by corporate greed and excess, but I digress).
When it comes to this issue, what they really care about is pleasing their base. And when it comes to their base, the ONLY judges who are acceptable are extreme right-wing ideologues. So any actual "moderate," mainstream judges of course will be rejected -- and they will be cast as "far-left."
The Right sees the Judicial Branch in very black and white terms. They have accused the Democrats of having a litmus test on judges when it comes to Roe v. Wade. But that was obviously proven wrong by the fact that both Chief Justice Roberts and Justice Alito were confirmed even though they both, according to many experts, would vote to overturn Roe. No, it's the Right that has strict litmus tests on everything from Roe v. Wade and gay rights to free speech, the separation of church and state and, yes, how "business-friendly" a judge may be. Their base demands it! And Republican Senators -- even the so-called moderates like Snowe, Collins and Specter -- are unified on this one.
The judicial philosophies of the jurists respected by the Right are defined by extremism -- plain and simple. It's one thing for a judge to find legal exception with the way a certain case was decided (even if that decision protects a fundamental right, like Roe v. Wade), but quite another to subscribe to theories and views that fly in the face of mainstream judicial thought like:
This is par for the course for right-wing judges. While those of us on the progressive side are not devoid of ideology, and are proud to have our own ideology when it comes to the Constitution and the law, the Right is by far more ideological and Republicans need to be called out for doing the Far Right's bidding once again.
President Obama and the Senate Democrats should challenge these Republican Senators to define their terms more specifically -- to tell them and the country EXACTLY what they mean by "bipartisanship" in this case and what they would consider acceptable or "moderate" nominees. And the president should reject the GOP's attempt to force bipartisanship at gunpoint, by making threats and trying to use coercion to get him to appease their base on judges.