By John Ballard
C-SPAN viewers already know that Supreme Court arguments are more tedious than anything that happens in Congress and with no cameras permitted those proceedings are even less entertaining. But this week's historic arguments about the two-year-old health care law will get national attention. Like a crowd in the hospital waiting room while a patient is in surgery peasants and pundits alike are trying to remain calm and everybody is mentally rehearsing I-told-you-so speeches.
After the Bush-Gore and Citizens United decisions I have no idea how the current Supreme Court will decide. At one extreme, some want the entire statue overturned, willing to disregard the difficult work, years of man-hours and tough compromises that went into its creation. And at the ponies and unicorns end are those who want the Court to give it's blessing to every part of the law. My guess is that the results will fall somewhere between these two extremes.
Welcome, then, to this year's real March Madness, the Assault on Obamacare. Here for your weekend reading is a four-part series by yet another pundit.
Ian Millhiser is a Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. His writings have appeared in a diversity of legal and mainstream publications, including the Guardian, the American Prospect and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox Business and many radio shows.
...Unlike most Supreme Court hearings, which focus on a single, narrow question of law or on a few closely related questions, the four issues now facing the justices involve wholly separate doctrines, wholly unrelated precedents, and � at least in one case � a statute that few people have ever even heard off. For this reason, it makes sense that the Court agreed to give each of these four issues a lengthy hearing, rather than requiring each issue to compete against the others for a few minutes of oral argument.
The least sexy of these four issues is the Tax Anti-Injunction Act, yet it could also wind up being the most consequential. If the Court decides that this obscure law applies to the Affordable Care Act, it would mean that no one would be able to challenge the law�s most targeted provision in court until 2015 � long after the law provided tens of millions of Americans with health insurance and, in doing so, gained a constituency that would solidly entrench the law�s support.
...attorney Paul Clement�s brief attacking the law pursues an unusual strategy � trying to convince the justices that neither our real Constitution nor the nearly 200 years of precedent interpreting Congress� power to regulate actually exist. As a new Center for American Progress issue brief (written by an author familiar to the readers of this blog) explains, Clement�s entire case falls apart unless the justices accept several entirely fabricated claims about the Constitution and longstanding precedent.[Two illustrations are cited.]
...the law�s challengers insist that the entire law must fall if just one piece is removed, a position that no judge has accepted except for the guy who included an explicit shout-out to the Tea Party in his opinion. They will regret this decision. In overreaching so severely, the law�s challengers also managed to concede that their entire lawsuit is without merit.
Go to the link to check out Scalia's delightfully straightforward and solidly Conservatively earlier remark in another case that �where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.�
...Because their entire legal argument has, in the words of conservative judge Laurence Silberman, no basis �in either the text of the Constitution or Supreme Court precedent,� it eliminates any bounds on what judges can do to impose their will on the American people. If the Supreme Court has the power to strike down the individual mandate, there is nothing preventing it from forcing you to eat broccoli.
And yet, the assault on the mandate is only the second scariest thing the law�s opponents want the Supreme Court to do....
Go to the link to read an even more frightening excess the ACA assault is unwittingly (or maybe not) advocating.