When Is a Hack a Hack?

Exclusive: Ronald Reagan’s Solicitor General Charles Fried sees “politics, politics, politics” at play in the apparent move by the Supreme Court’s Republican majority to kill health-care reform, but the Washington Post’s neocon editors say it’s unfair to call any of those five GOP justices a “hack,” reports Robert Parry.

By Robert Parry

So what has happened to many of those conservative “strict constructionists” who insist that only a literal reading of the Constitution is acceptable and that “activist” justices can’t simply “create rights” for Americans that the Framers didn’t write down?

Apparently, because these “conservatives” hate “Obamacare” – almost as much as they detest President Barack Obama – they’re celebrating the hypocritical spectacle of five Republican justices on the Supreme Court demanding that new limitations be placed on Congress’ constitutionally unlimited power to regulate interstate commerce.

U.S. Supreme Court Justice Antonin Scalia

These self-proclaimed “strict constructionists” can’t find limitations in the actual Constitution, since none are there, so the GOP Five apparently intend to insert some new words into the founding document to post-facto (or perhaps ipso facto) disqualify the Affordable Care Act as “unconstitutional.”

Maybe, the GOP Five should just drive down to the National Archives, pry open the case holding the Constitution and pencil in some new words. After the relevant section about Congress having the power to regulate interstate commerce, the GOP Five can scribble in “except for things like purchases of broccoli, gym memberships, cell phones and health insurance.”

More likely, the GOP Five – Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito – will come up with some more elegant wording that suggests a higher principle is involved.

After all, in December 2000, a subset of this group (Kennedy, Scalia and Thomas along with the late Chief Justice William Rehnquist and now-retired Justice Sandra Day O’Connor) dressed up its Bush v. Gore ruling with a lot of legal references.

Essentially, however, those five Republican partisans detected a previously unknown provision in the 14th Amendment requiring that when a Republican presidential candidate is in danger of losing an election, then all the voting procedures in the key deciding state must have been identical, precinct to precinct. If they weren’t – and they never are – the GOP candidate wins.

Post Editors to the Defense

On Friday, the Washington Post neoconservative editorial writers rallied to the defense of today’s GOP Five as men of undying personal integrity who simply have an honest difference over how to read the Constitution.

While praising the three days of oral arguments as “the Supreme Court’s civics lesson,” the Post’s editors expressed dismay over the “cynicism” of some liberals who “were preemptively trying to delegitimize a potential defeat at the court” by making the Republican justices look “partisan, activist and, essentially, intellectually corrupt.”

How unfair, wailed the Post’s editors. While the Post suggested that the five Republicans should show some “modesty and deference to elected legislators” who fashioned the difficult health insurance compromise, the Post seemed most upset that the integrity of the GOP Five was being questioned.

“We wouldn’t assume anyone who disagrees [with the constitutionality of the law] is a hack,” the Post declared.

And one might say the Post’s editors, who treated Saddam Hussein’s possession of WMD stockpiles as a “flat fact” in 2003 and who disparaged Americans who dared question the veracity of that casus belli, should know something about being hacks.

In Friday’s editorial, the Post also adopted the posture that most befits a journalistic hack, the cowardly and simpleminded framing of debates as both-sides-are-equally-at-fault. The Post suggested that the four Democratic justices were somehow behaving in a partisan manner by following the actual wording of the Constitution.

“We share the disappointment that the justices on both sides of their ideological divide are, for the most part, so predictable,” the Post lamented. “That’s not, in an ideal world, how judging is supposed to work.”

No, in an ideal world – or even a world where we expect a modicum of philosophical consistency – we might hope that Supreme Court justices would stick to interpreting the Constitution rather than demanding extemporaneous rewrites, or “limiting principles” that the Framers chose not to include.

Serious Conservatives

We also might expect in an editorial on this important topic a reference to what the Commerce Clause actually says or an explanation of why serious conservatives, like senior Appeals Court Judge Laurence Silberman and Ronald Reagan’s Solicitor General Charles Fried, came down solidly on the side of the law’s constitutionality.

Silberman, a Reagan appointee, wrote the Nov. 8, 2011, ruling, for the U.S. Court of Appeals in Washington affirming the constitutionality of the Affordable Care Act. Silberman took pains to note the unrestricted wording of the Commerce Clause.

He wrote: “We look first to the text of the Constitution. Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’” [Emphasis added by Silberman]

Silberman continued: “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’

“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.

Let’s hear that again: “There is therefore no textual support” in the Constitution for challenging the individual mandate as unconstitutional. At that point, “strict constructionists,” as all the GOP Five claim to be, should have begun folding their tent – or got to work on a constitutional amendment to rewrite the Commerce Clause.

Instead, the GOP Five got busy “legislating from the bench,” demanding that the Obama administration provide some “limiting principle” to apply to the Commerce Clause that would differentiate health insurance (or the hundreds of other federal provisions that hinge on this clause) from Justice Scalia’s goofy what-if question about buying broccoli.

Nor did the Post’s editorialists address former Solicitor General Fried’s comments in a March 28 interview with the Post’s Ezra Klein. When asked about the “limiting principle” issue, Fried responded:

“The limiting principle point kind of begs the question. It assumes there’s got to be some kind of articulatable limiting principle and that’s in the Constitution somewhere. What Chief Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress.

“Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.”

Tea Party Comments

Fried also criticized some of the specific comments by the Court’s Republicans. “Justice Kennedy,” Fried noted, “said this fundamentally changes the relationship of the citizen to the government. That’s an appalling piece of phony rhetoric.

“There is an important change between the government and the system. It was put in place in 1935, with Social Security. And it said everyone has to pay into a retirement fund, and an unemployment fund. It was done when Medicare came in in the ’60s.

“That’s a fundamental change. But this? This is simply a rounding out in a particular area of a relation between the citizen and the government that’s been around for 70 years. … Kennedy’s Tea Party-like argument that this fundamentally changing the relationship between government and the citizen? Well, I was very sorry to hear it.”

On policy substance as well as on constitutional principle, Fried was baffled by the Republican justices’ opposition to the law:

“I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them. I don’t get it.”

Fried also took aim at the right-wing Heritage Foundation, which originated the individual mandate idea as an alternative to Democratic proposals for either a single-payer system or employer-mandated insurance, but now heatedly opposes its own concept. Fried said:

“It was comical to read the Heritage Foundation’s brief attempting to explain why they were changing their position on this. Something needed to be done about this problem. Everyone understood that. So, the Heritage Foundation said let’s do an individual mandate because it keeps it within free enterprise. The alternative was single payer. And they didn’t want that, and I’m in sympathy with that.

“So now all of a sudden the free-market alternative becomes unconstitutional and terribly intrusive where a government imposition and government-run project would not be? I don’t get it. Well, I do get it. It’s politics.”

When asked if the Supreme Court observers, who had initially considered the constitutional challenge to the law frivolous, had “underestimated the politicization of the Judiciary,” Fried answered:

“Politics, politics, politics. You look at the wonderful decision by [federal Judge] Jeff Sutton, who is as much of a 24-karat gold conservative as anyone could be. He is a godfather to the Federalist Society. Look at his opinion [in the Sixth Circuit upholding the law]. Or look at Larry Silberman’s opinion. I don’t understand what’s gotten into people. Well, I do I’m afraid, but it’s politics, not anything else.”

Fried’s “politics, politics, politics” point would seem particularly clear given the fact that the individual mandate to buy insurance was first developed by Heritage and first adopted by a Republican governor (and current GOP presidential front-runner) Mitt Romney of Massachusetts as a way to prevent “free riders” from getting health care and passing the costs to others.

Indeed, President Obama embraced the mandate idea – after opposing it during Campaign 2008 – because he concluded that it was the only way he could hope to win the votes of some moderate Republicans and conservative Democrats. But once Obama supported the idea, Republicans denounced it as an “unconstitutional” affront.

Then, after the law’s difficult enactment two years ago, the Republicans ran to the courts to get it overturned – although conservatives have traditionally decried people who seek court intervention rather than working out policy differences through the political system.

Though serious conservatives like Silberman, Sutton and Fried judged the challenge to be without merit, it received a friendly hearing by the GOP Five on the Supreme Court. It’s now expected that the GOP Five will get busy behind closed doors drafting some ruling that will insert some newly invented “rights” into the Constitution.

Despite this rather obvious politicization of the federal courts, the Washington Post’s editors are more upset that “some liberals” would suggest that cynical politics is at work here. Yet, however you spin what the GOP Five is doing, it sure doesn’t look like the behavior of principled “strict constructionists.”

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.

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12 comments on “When Is a Hack a Hack?

  1. Eliza on said:

    “…however you spin what the GOP Five is doing…”

    I spin it simple. In the words of Mitch McConnell, Barak Obama will be a one-term president.

  2. Mike Lamb on said:

    If R.A.T.S. plus K (Roberts, Alito, Thomas, Scalia — purloined from a guy from North West Iowa who used it on the Bob kincaid show plus Kennedy) strikes down the MANDATE (originally a Republican idea supported by the likes of Nixon, George H. W. Bush, Bob Dole, Charles Grassley, Orrin Hatch, Nancy Kassebaum, Richard Lugar, Alan Simpson, Ted Stevens, Strom Thurmond, Newt Gingrich, the Heritage Foundation, and Mitt Romney (anyone dig out those old 2004 campaign commercials of John Kerry flip flopping and past in Mitt’s face?)

    see:
    http://www.washingtonpost.com/blogs/ezra-klein/post/a-lot-of-republicans-supported-the-individual-mandate/2011/05/09/AFi26Z0G_blog.html

    http://www.forbes.com/sites/aroy/2012/02/07/the-tortuous-conservative-history-of-the-individual-mandate/

    But if the Roberts Clown Court (I mean “corporations are people”) strikes down the MANDATE then what other MANDATES will it go after next?

    Is Social Security the NEXT MANDATE TO GO?

    Nominee for the post of Chief Justice of the Supreme Court John Roberts under OATH testified before Congress that as Cheif Justice he would be an UMPIRE and CALL BALLS AND STRIKES.

    With the Citizens United Case Chief Justice John Roberts, if acting as an UMPIRE essentially threw out the manager of one team, rewrote the lineup so that the short stop was now the pitcher, the pitcher was now the catcher, the catcher was now the first baseman, the first baseman was now the left fielder, and the left fielder was now the shortstop.

    By the end of 1972, four decades ago, President Richard Nixon had appointed the then four most conservative Justices to have served on the Supreme Court since the 1937 term of the Court (Landes / Poser study 2008). The 1973 Court had six Conservative votes with Burger, Blackmun, Powell, Rehnquist, Stewart, and White to the three liberals Douglas, Brennan, and Marshall.

    Hell, when Justice John Paul Stevens retired he claimed that he had not changed his judicial philosopy, that the Court had moved to the Right with every incoming justice since he joined the court, with the single exception of Ginsburg appointed by President Clinton, being more conservative than the one replaced.

    Somehow I think if there had been four decades straight of a liberal Court with justices such as Warren, Black, Douglas, Brennan, Fortas, and Marshall that there would be outrage in the land. But four decades of Conservative justices and I guess Norman Mailer was right, the Democrats and Republicans represent the same 4% of the population.

    • Gayle Hales on said:

      Why else would they make such a show of it all? Of course they will agree with the mandate because that WILL be the first strike to do away with Medicare and force all of us into paying into the private profit coffers of the wealthiest Americans once again while making us still pay for the poorest and least insurable because they will still not want those people.

  3. calzone on said:

    It’s a nice cottage industry to refute right-wing lunacy, but that doesn’t make for good journalism. A hack is a hack is a hack….

  4. Is it not amazing how the World turns ?
    Now the Washington Post & the New York Times have become the “Pravda” (Truth)& “Investia” (News) of American Newspapers & the laughing stock of the World.
    I would not believe today’s date printed on their mastheads !

  5. Here is to their striking down this aca for to force us to pay a private entity a fee smacks of undue coercion and the heavy hand will enrich a crony capitalist corporate structure making them enriched and passing off on us a crappy expensive plan that allows them to game the system.

  6. “The GOP 5″ has a ring to it and is handy in a tweet. WaPo did indeed claim that liberals were trying to make the Republican justices look “partisan, activist and, essentially, intellectually corrupt,” but, by my reading, they did not explicitly deny the truth of that claim. They deserve credit for that.

  7. claudsam on said:

    The idea that the word “regulate” does NOT cover the authority of Congress to compel actions is so incredibly twisted — it flies in the face of not just what our Founders thought, it breaks the plain definition of the word in the English language.

    I still can’t believe that the Court will ultimately strike this down. This isn’t even a close call. See: http://www.law.yale.edu/news/15183.htm

  8. chmoore on said:

    I have a disagreement with Solicitor General Fried when he says “So, the Heritage Foundation said let’s do an individual mandate because it keeps it within free enterprise. The alternative was single payer. And they didn’t want that, and I’m in sympathy with that.”

    First, the individual mandate by itself is conducive to enterprise, but without the ‘free’ part. It’s more likely that insurance company competition will be less about value for the money, and more about industry strategies to corner markets. Whether or not it’s fair and just depends on however further it’s regulated to discourage price gouging and monopolization.

    Second, “[THE] alternative was single payer” ??
    Wasn’t Public Option also an alternative?

    If there had been a Public Option (the ‘option’ part being a form of price competition by the way), we might still be in the Supreme Court anyway, but I think the arguments would certainly be different.

  9. If the meaning of the Commerce Clause in the original text is so clear, why did courts for the first 150 years of the U.S. read it in such a limited way? Why did it take FDR’s threats to enlarge the Supreme Court and pack it with his liberal cronies to get them to see the “plain meaning” that over a century of Constitutional scholarship couldn’t find?

    The fact is that the Commerce Clause meant one thing from 1789 until 1935 (more or less), and then suddenly the plain meaning of those words changed. If the author knew a single thing about history, he would realize that neither the authors of the Constitution nor 150 years of justices would have thought the Commerce Clause could possibly be pervertef to create the ACA mandate.

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