If the Supreme Court Goes Rogue

Exclusive: George Washington and James Madison, two key Framers of the Constitution, saw nothing wrong with issuing mandates to citizens (to buy muskets for a militia), but today’s Republican majority on the Supreme Court seems set on going rogue and rewriting the founding document to say otherwise, Sam Parry writes.

By Sam Parry

What happens to a Republic under a written Constitution if a majority of the Supreme Court, which is empowered to interpret that Constitution, goes rogue? What if the court’s majority simply ignores the wording of the founding document and makes up the law to serve some partisan end? Does that, in effect, turn the country into a lawless state where raw power can muscle aside the democratic process?

Something very much like that could be happening if the Supreme Court’s five Republicans continue on their apparent path to strike down the individual mandate at the heart of the Affordable Care Act. In doing so, they will be rewriting the Constitution’s key Commerce Clause and thus reshaping America’s system of government by fiat, rather than by the prescribed method of making such changes through the amendment process.

U.S. Supreme Court Chief Justice John Roberts

The only way the five Republicans can strike down the individual mandate – and with it probably the entire law – is to ignore the literal and traditional interpretations of the Commerce Clause by redefining the word “regulate” to mean something it has never meant before and that the Framers of the Constitution never intended.

The plain text of the Commerce Clause – Article 1, Section 8, Clause 3 – is so straightforward that a middle-school child should be able to understand it. Here it is: “Congress shall have Power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

And the word “regulate” means today what it meant then, as was noted in a Nov. 8, 2011, ruling written by Judge Laurence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia Circuit, a conservative appointee of President Ronald Reagan.

In upholding the individual mandate as constitutional, Silberman wrote: “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.”

So, for the individual mandate to clear the Commerce Clause hurdle it must be a regulation of commerce among the states. Everyone agrees that health care and health insurance are interstate markets. Check. Everyone also agrees that health care and health insurance are commerce. Check. There’s also no dispute that the individual mandate is a form of regulation. Check.

Judge Silberman went through the same check list and concluded that there was “no textual support” in the Constitution for striking down the individual mandate because the word “regulate” has always included the power to compel people to act.

But the law’s opponents insist that the individual mandate is a unique and improper form of regulation because it forces an American to do something that the person might not want to do it, i.e. go into the private market and buy health insurance.

Yet, in other enumerated powers, this idea of Congress having the power to compel people to act is widely accepted. Take, for example, the draft. While there is not currently a draft, there has been at many points in U.S. history and even now every male citizen, when he turns 18, is required to register for selective service. And, should the draft come back and should you get drafted, you would be legally compelled to serve.

If compelling individuals to risk their lives in war is an accepted use of congressional authority, it is hard to see the logic in striking down the power of Congress to compel individuals to get health insurance.

Washington and Madison

And, despite what the Affordable Care Act’s critics have said repeatedly, this is not the first time the federal government has ordered Americans to buy a private product.

Indeed, just four years after the Constitution’s ratification, the second U.S. Congress passed the Militia Acts of 1792, which were signed into law by President George Washington. The militia law ordered white men of fighting age to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets and a knapsack so they could participate in militias.

If one wants to gauge whether a mandate to buy a private product violates the original intent of the Framers, one probably can’t do better than applying the thinking of George Washington, who presided at the Constitutional Convention in 1787, and James Madison, the Constitution’s architect who served in the Second Congress and argued for the militia law. [For more, see Consortiumnews.com’s “Madison: Father of the Commerce Clause.”]

So, it would seem to be a rather clear-cut constitutional case. Whether one likes the Affordable Care Act or not, it appears to fall well within the Constitution and historical precedents. By the way, that’s also the view of Ronald Reagan’s Solicitor General Charles Fried who said this in a March 28 interview:

“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.”

However, if Chief Justice John Roberts and the Court’s four other Republicans go in the direction they signaled during oral arguments and strike down the individual mandate, they will not merely be making minor clarifications to the noun “commerce” and the adjective “interstate” — as the Court has done previously — but they will be revising the definition of the verb “regulate” and thus substantially editing the Constitution.

Amendment Process

When it comes to editing the Constitution, there is a detailed process spelled out for how you do that. It’s in Article 5 of the Constitution and it’s called the amendment process – something in which the Judicial Branch plays absolutely no role. The process for revising the founding document requires votes by two-thirds of both the House and the Senate and the approval of three-quarters of the states.

Besides representing an affront to the nation’s constitutional system, an end-run by a narrow majority of the Supreme Court taking upon itself to rewrite an important section of the Constitution would drastically alter the balance among the three branches of government.

Such an action would fly in the face of the longstanding principle in constitutional cases that the Supreme Court should give deference to legislation passed by the government’s Legislative Branch and signed into law by the President as chief of the Executive Branch. Under that tradition, the Judicial Branch starts with the assumption that the other two branches have acted constitutionally.

The burden of proof, therefore, should not be on the government to prove that the Constitution permits a law – but rather on the plaintiffs to demonstrate how a law is unconstitutional.

Yet, during oral arguments this week, Republican justices pressed the government to prove that the Affordable Care Act was constitutional and even demanded that Solicitor General Donald B. Verrilli Jr. put forward a limiting principle to the Commerce Clause – to speculate about what couldn’t be done under that power.

Justice Anthony Kennedy several times raised the point that the individual mandate changes the relationship between citizens and the federal government in, as he put it, “fundamental ways” and thus the government needed to offer a powerful justification. In his questions, however, it was not entirely clear why Kennedy thought this, given the fact that Congress has previously enacted many mandates, including requirements to contribute money to Social Security and Medicare.

In the March 28 interview, former Solicitor General Fried took issue with Kennedy’s question about this “fundamental” change, calling the line “an appalling piece of phony rhetoric” and dismissing it as “Kennedy’s Tea Party-like argument.”

Fried noted that Social Security in the 1930s and Medicare in the 1960s indeed were major changes in the relationship between the government and the citizenry, “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.”

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

A Noble Rationale

But Kennedy seemed to be fishing for some noble-sounding rationale for striking down the individual mandate. He was backed up by Justice Antonin Scalia who proffered the peculiar argument that if Congress could mandate the purchase of health care, why couldn’t it require people to buy broccoli – as if any outlandish hypothetical regarding congressional use of the Commerce Clause disqualifies all uses of the Commerce Clause.

This line of reasoning by the Republican justices also ignored the point that the Court’s role is not to conjure up reasons to strike down a law, but rather to make a straightforward assessment of whether the individual mandate represents a regulation of interstate commerce and is thus constitutional.

In searching for a rationale to strike down the law, the Court’s Republicans also ignored the true limiting principle of any act of Congress – the ballot box. If any congressional majority were crazy enough to mandate the purchase of broccoli, the voters could throw that bunch out and vote in representatives who could then reverse the law.

In the case of the Affordable Care Act, Democrats won Election 2008, in part, because they promised the voters to tackle the crisis in U.S. health care. If the voters don’t like what was done, they can vote the Democrats out of office in November. The pendulum of democracy can always undo or modify any law through legislative action.

However, what the Republican majority on the Supreme Court seems to be angling toward is a radical change in the longstanding principles behind the Constitution’s checks and balances. The five justices would bestow upon themselves the power to not only undo legislation, which has been lawfully enacted by Congress and signed by the President, but to rewrite the founding document itself.

Sam Parry is co-author of Neck Deep: The Disastrous Presidency of George W. Bush. He has worked in the environmental movement, including as a grassroots organizer, communications associate, and on the Sierra Club’s and Amnesty International’s joint Human Rights and the Environment campaign. He currently works for Environmental Defense Fund.

Share this Article:
  • Print
  • Digg
  • StumbleUpon
  • del.icio.us
  • Facebook
  • Yahoo! Buzz
  • Twitter
  • Google Bookmarks
  • NewsVine
  • Technorati
  • email

46 comments on “If the Supreme Court Goes Rogue

  1. TurboKitty on said:

    The Supreme Court Five need to be removed with prejudice NOW

    • Shari on said:

      The whole concept of requiring insurance or getting a tax penalty was put in the healthcare regulations to pacify insurance companies and help defray costs for those of us who have insurance. The insurance companies were upset about not being able to turn people down for preexisting conditions. putting lifetime maximums, and parents insuring their kids until 26 whether they were in school or not. So in return they are getting more people insured with this mandate. Why are people so against it? The ones choosing not to buy insurance are ripping the rest of us off. Do you think we aren’t paying for them with our premiums and bills? Wrong. Hospitals have to up their costs to cover the billions of dollars that they just absorb from the bills of the uninsured. Those people hit the ER’s and hospitals when they are sick and expect to get treated and they are. It is just their bills are never paid and the rest of us pay it with our bills. As for not being able to afford it, more people will qualify for government insurance under this bill. If you can blow a hundred on a bar bill or for a new TV you can buy health insurance instead of making the rest of us pay more because your bills are left unpaid. I don’t want to buy car insurance either. Is that unconstitutional too? Next fight if healthcare mandate is.

      • Lorenzo LaRue on said:

        So if my take home pay is $1700 month and my health insurance would be $800 month, you would still want me to buy this insurance? If your answer is yes then I’m obviously asking the wrong question.

        • Sam Parry on said:

          First of all, the point you raise is not a constitutional point. Your ability to pay has no relevance to the constitutionality of the ACA and the individual mandate.

          But, to your point, anyone earning 400% of poverty level will be heavily subsidized to help obtain affordable health care. If you are living by yourself, this provision would cover you if you make up to roughly $44,000/year. If you are in a household of four, this would cover you if you make up to roughly $92,000.

          And, if you can’t find an affordable plan, you will be able to choose from government approved plans in the exchange program.

          We have to stop with the Chicken Little sky is falling and I’ll have to eat broccoli nonsense. Let’s debate the facts.

          • Sam Parry on said:

            Sorry, checked my math and I’m a bit off in the specifics. There is a great chart on how these costs would break down here: http://en.wikipedia.org/wiki/Patient_Protection_and_Affordable_Care_Act

            Basically, a family of four earning $88,200 would have to pay premiums capped at $8,379 per year. That would be before tax income of $7,300/month against an premium insurance cost of $698/month.

            In other words, your scenario where you would have to pay nearly half of your monthly income on insurance premiums would never happen under the ACA.

            To take your example, with a salary of $1700 per month, the ACA would give you a tax credit so that you can purchase insurance at almost no net out of pocket cost.

          • Chuck Doberneck on said:

            “But, to your point, anyone earning 400% of poverty level will be heavily subsidized to help obtain affordable health care.”

            In other words, people who could not afford health insurance pre-Obamacare (and thereby shifted costs to taxpayers and those who bought health insurance) will CONTINUE to shift costs…..to taxpayers and those who buy health insurance. Meet the new boss, same as the old boss—-except that Obama and Democrats hope to buy the votes of the newly subsidized who will forever be dependent on Democrats for their health care. Niiiiiiiiice!!

      • Frances in California on said:

        Shari must’ve taken over Wendell Potter’s old job at Cigna; what do you think?

        • Shari on said:

          No I actually work in healthcare. I see the bills, I see the uninsured being turned away at Physician’s offices until they hit our ER’s really sick. Sick enough to be admitted to get the care they should have had weeks ago. The bill is usually eaten by the hospital. Therefore everyone else’s has to pay for it in some way. Even non profits have to make their bills.

          • Chuck Doberneck on said:

            If people are largely or fully subsidized in their Obamacare premiums (by taxpayers), where are they “paying for it in some way”, where are they paying their “fair share”?

  2. TrishaJ on said:

    The GOP five are a disgrace. Their penchant for convoluted rather than critical thinking is a clear indication that they are not qualified to be on the Supreme Court. If they want to legislate,they need to resign from the court and run for election to the House or Senate. They have set themselves
    above the Constitution, and endowed themselves with dictatorial powers. It is time to remove them from the bench so the judicial branch of our government can be returned to the position of one of three branches as intended by the founders. They are not the Head Branch as they seem to see themselves.

  3. Marty Heyman on said:

    The distinction here is that the Constitution’s Commerce clause gives the government the right to regulate Interstate Commerce but that is not the same as giving the Government the right to regulate the purchasing decisions of a Citizen within the commercial regime as regulated. I’m afraid you’re suggesting otherwise.

    The example, Washington and the order to white males of age to purchase a rifle and supplies, was in the context of arming a militia which was, effectively, conscription of every white male of age 18 to 45. The militia laws were in effect until superseded by the National Guard legislation which eliminated the automatic conscription. I think that the example of forming a universally drafted militia and demanding that they self-arm is hardly regulation of commerce. (I wonder who verified that all theoretical conscripts were, in fact, registered and had this equipment? Don’t you just love unfunded mandates?)

    However, one might better use the examples of Motorcycle Helmet laws and the Federal seat belt and similar regulations which are mandates on citizens to purchase goods which have been upheld by prior courts. I think you can also argue that this is comparable to State-mandated auto insurance (and quite similar in both intent and benefits).

    I’m afraid, though, that it would not be TOTALLY unreasonable for the Court to question the Government’s right to mandate such Citizen purchasing behavior and in many ways, I would be hard pressed to come up with a defense in the strict Constitutional language. I don’t see anything like it in the original body or in any of the Amendments. Where does it say the Government gets to tell me WHAT I MUST buy? It is a shame nobody wanted the Militia Acts challenged at the time, it would have been interesting to have that (those) SCOTUS case(s) on the record now.

    • Sam Parry on said:

      But, the Constitution does say that Congress has the power to compel action. The only limitations are:

      – Commerce
      – Inderstate
      – And Congress must be trying to solve a real problem that the states can’t solve on their own.

      All three conditions are met under the individual mandate.

      You may want the Constitution to say that Congress can’t compel action or force people to buy something, but that’s not what the Constitution says.

      • calzone on said:

        With 50 million uninsured Americans, it seems to me that there is something fundamentally flawed with these products that we call health insurance policies. Sixteen percent of the American population has opted not to purchase these products, either because they are too expensive, or the products themselves are flawed, or both. This is despite the fact that as everyone knows, going without these products carries enormous risks.

        I can’t imagine any other government intervention into the market that is comparable to the individual mandate. While the SCOTUS Justices’ questions last week about mandating the purchase of broccoli or cell phones might have struck some as absurd, in fact, I think those are fair questions to ask. How can the government mandate the purchase of anything, especially a product that 50 millions Americans have opted not to buy? I would actually rather be mandated to purchase broccoli than one of these insurance policies, because at least I know that broccoli is reasonably priced, and I know what I am getting with broccoli. I have never heard horror stories about the broccoli companies defrauding their customers the way the insurance companies have become notorious for doing.

        And honestly, your reading of the Commerce Clause seems to imply that the government CAN force you to purchase broccoli. You say that the Constitution grants Congress the right to compel action or force people to buy something, so where does it all end? The insurance peddlers have obviously failed the American consumer, but instead of abandoning this racket and trying another approach such as Medicare for All, the government instead doubles down and forces everyone to buy these products that 50 million have already rejected. I can’t imagine how this can be considered constitutional, let alone moral or ethical.

        • TrishaJ on said:

          So if you do not buy health insurance, how do YOU pay if you become seriously ill or are seriously injured in an accident? Have you prepared a legal document declaring you do not want any medical attention and absolving doctors and hospitals of all responsiblility for your death?

          The answer of course is, YOU don’t pay, you get emergency treatment and the rest of us pay for it through increased costs for the insurance and medical services we buy. It is all fine and well to proclaim your rights, but when they begin to infringe on the rights of the rest of us then why should your rights be more important?

          • calzone on said:

            You seem offended that I would proclaim a right not to purchase one of these overpriced, defective products, but don’t you realize that removing the profit motive from the health care equation would be the single most effective way to bring down costs? Your argument essentially places the blame on the uninsured for the fact that your premiums and your co-pays are too high, but have you thought to look at the CEOs and other executives at the top of these companies making billions in profits by overcharging and screwing over their customers left and right?

            Speaking of rights, what gives them the right to make themselves obscenely wealthy at the expense of others?

          • dasilva on said:

            So, the question is…How would YOU pay? If you have no coverage, how do you cover your cost and not pass it on to the rest of the country? You say you don’t want to buy a bad broduct or over priced. Me either, yet I still pay my way. How will YOU pay? I would love to hear where you get the money and NOT screw over your fellow Americans!

          • Lmaris on said:

            How one pays is no concern of yours, since you don’t seem to question where they would come up with the funds to purchase insurance from for-profit companies, filling their coffers.

            I’d have no problem requiring insurance coverage if there was a public option. Since there is not, the government seems to want to drain individual coffers to fill corporate ones.

            How is this not stealing from others to pay for YOUR health coverage?

            This health care reform was fatally flawed in that it does little to nothing to reduce costs, but everything to ensure insurance companies, doctors, and big pharma continue to gouge the American public. We still won’t have the best health care in the world, just the most expensive.

          • What would YOU pay if you became seriously ill? Those who ask this question are talking out of both sides of your face. You argue that others are forced to pay for your health care for someone who is not covered while you are proposing heavy subsidization of a vast number of individual’s insurance companies (i.e., you’re proposing that everyone pay higher insurance rates to cover those who can’t afford insurance). I don’t see the difference. The crux of the problem with healthcare in the U.S. is the profit motive. I’m a republican and a capitalist yet can’t help but think that if a pharma company actually found a CURE rather than a forever treatment for a serious disease then they would destroy it. There’s an inherent disconnect there between profits and the public good that should be resolved.

        • Sam Parry on said:

          It’s not just my reading of the Commerce Clause. Republican Judge Silberman has the exact same reading. So does Reagan’s Solicitor General Fried.

          All of the arguments against the constitutionality of the individual mandate play games of sophistry. They say our Founders believed in limited government. The finer points of this claim can be debated forever, but whatever you believe, it’s totally irrelevant since regulating interstate commerce is one of Congress’s enumerated powers.

          They say that if we allow the individual mandate, broccoli or cell phones or burial plots would be next. But this ignores one of the most obvious limits on Congress’s ability to regulate commerce — i.e. the ballot box. If you don’t like a law, elect candidates who will overturn it.

          It also ignores another limiting principle, that a law has to meet the necessary and proper clause, which has long been interpreted to mean that Congress has to be trying to solve a real problem that cannot be solved by the states.

          Finally, the judicial branch is supposed to assume that Congress acted constitutionally. The burden of proof is on the plaintiffs to show otherwise. But this Court seems to be fishing for reasons to overturn the mandate. And to do so, they seem willing to redefine the word “regulate” to exclude the meaning that includes “compel to act.” I think you know you’re on shaky constitutional ground when you have to redefine words.

          This individual mandate was not the way I would have liked to reform health care if I had my way. A single payer system is much more efficient and effective at delivering health care services to the broad citizenry. But, that’s a different question than whether the individual mandate is constitutional.

          I encourage folks to watch these debates. The conservatives in each of these debates get quite upset, but they aren’t winning the argument.

          http://www.youtube.com/watch?v=JDwWvGXsPa8
          http://www.youtube.com/watch?v=B2lnTbD8Zvc
          http://www.c-span.org/Events/Health-Care-Reform-Law-Debated/10737428366/

        • Estimated Prophet on said:

          “Sixteen percent of the American population has opted not to purchase these products, either because they are too expensive, or the products themselves are flawed, or both.”

          This is the fundamental flaw in your premises. Are you sure that these people are opting out by their own free will? do you know how many of them have been denied coverage because of pre-existing conditions? this is one of the problems that the ACA addresses.

          “I can’t imagine any other government intervention into the market that is comparable to the individual mandate.”

          Enough cases have been listed on this page to use as examples.

          “And honestly, your reading of the Commerce Clause seems to imply that the government CAN force you to purchase broccoli.”

          Nonsense. There is one basic point this argument ignores: not everyone is in the broccoli market; you can grow your own if you want, or simply not eat that vegetable. EVERYONE is in the healthcare market. There is no case in existence of someone who never gets sick, ever. Since it is guaranteed that everyone is going to be sick and die at some point, they will be in need of healthcare at some point, regardless, and Congress has the right to regulate this with a mandate.

          • calzone on said:

            Perhaps I should have chosen my words more carefully. It’s not that everyone has simply opted not to purchase a policy, but that the product is either not offered to them or out of their reach — or simply not attractive for them to shell their money out for. Essentially it is a massive failure of the market, and rather than simply acknowledge this failure and admit that health care is not something that should be left to the market, the government has instead decided to force everyone into this market.

            When it comes to your argument on how everyone is in the health care market, I think that this is actually contradicted by your other point about how the market has failed those who have pre-existing conditions. With 50 million uninsured Americans, obviously not everyone is in the market, unless you expand this concept to mean something that it normally doesn’t mean. (For example, when you say, “I’m in the market for a new car,” you mean that you are actively seeking to buy a new car, right?)

            Saying that since everyone gets sick at some point means that they are all “in the market” for health insurance policies just doesn’t follow.

            What’s amazing about all these arguments for the individual mandate all seem to agree that the health care is a socialized cost — i.e., if I don’t purchase insurance, it will raise the cost of your insurance, etc. If everyone agrees that health care is already socialized one way or another, why don’t we just take it one step further and agree to socialize the cost fully? Removing the profit motive and the corresponding costs for marketing, etc., would be the single most effective way to bring down health costs. But instead, liberals seem to be placing all the blame on the uninsured, as if it is all their fault that you are paying $2,000 deductibles, and not the fault of the insurance companies themselves.

  4. Pingback: Covert History » If the Supreme Court Goes Rogue

  5. francesco ferraro on said:

    I believe that the Obama administration would have been much better off sending Sam Parry for debating at the Supreme Court instead of Solicitor General Verrilli.

  6. Michael on said:

    “What happens to a Republic under a written Constitution if a majority of the Supreme Court, which is empowered to interpret that Constitution, goes rogue?”

    Who “empowered” the Court to interpret the Constitution? Why the Court empowered the Court. Judicial review as a power of the Court makes the Court a potentially rogue branch, and so it goes.

  7. Pingback: If the Supreme Court Goes Rogue « roger hollander

  8. This article reflects poorly on this site, and an example of why noon-lawyers should not try to be lawyers.

    I am not engaging in commerce when I do not buy health insurance. Or don’t buy broccoli. Or corn. So commerce and the commerce clause is not involved.

    The health care law is unconstitutional for 2 more reasons that I will be raising in the event the SCOTUS does not invalidate the forced mandate. The law unconstitutionally violates the freedom to associate, or not associate, with who you want, in this case by forcing me to associate with a greedy for profit insurance company who lobbied against the single-payer plan I supported during the debate leading to this unconstitutional law. It likewise violates the freedom to contract, or not contract, with who you wish. These 2 additional flaws are especially acute in states where there are only a limited number of insurance companies to chose from.

    • Sam Parry on said:

      You are misreading the Commerce Clause. You personally do not need to be engaging in commerce for Congress to compel you to engage in commerce. That’s not my reading of the Commerce Clause. That’s Republican Judge Silberman’s reading. That’s Reagan’s Solicitor General Fried’s reading.

      Let’s put it another way. If President Washington could compel male citizens of military age to purchase guns, flints, pouches, and the like, why CAN’T Congress compel citizens to purchase insurance? What right in the Constitution would permit Congress in Washington’s era to compel citizens to make purchases, but not allow today’s Congress to compel citizens to make purchases?

    • Shari on said:

      I would love to not associate with the greedy insurance companies that insure my auto. Oh yeah if I don’t they put me in jail for driving. Where is my freedom. Mass transit doesn’t go to my work from my house. See the problem. If one is unconstitutional the other is too. I have a cousin in Norway. They save a lot of money with their single payer system because of the HUGE reduction in paperwork. But face it, with this congress a single payer system won’t happen. So what is the compromise?

  9. chmoore on said:

    It sounds like a lot of the folks who would like the Mandate struck down, either object to the available choices, or else just don’t like being told what to do.

    I always thought that requiring a Mandate without a Public Option was a dumb idea – just asking for trouble. However, dumb ideas are NOT unconsitutional.

    I don’t particularly care for the limited choices of profit-insurance companies, but improving legislation is a far cry from allowing the Supreme Court to effectively ammend the constitution. I think some of these GOP-5 could use a good smack in the ass, impeachment style; which by the way IS constitutional.

    Also, it’s naive and hypocritical to pretend that there’s some kind of self-evident right to refuse to participate in today’s health care system, which did not exist at the time of the founders. I imagine Washington might have been reluctant to compel folks to buy wooden teeth just because he had them, but nowadays health care is a more integrated part of the necessities of life.

    A person could theoretically go out and live off the grid in the remote wilderness where only the bears and wolves would care if they live or die, but living in today’s society, how is it reasonable to claim a right to non-participation and then expect emergency response units to come running every time there’s a 911 call?

    Speaking of which, there are places in the country which have privatized their fire department, and as a result, non-subscribers have been denied service when their house was on fire. Like most things, “unlimited” freedom of choice has a point of diminishing returns.

  10. A couple of decades ago, I bought a phone answering machine that didn’t do what the salesman at the store I bought it at told me that it would do. When the store wouldn’t refund my money, I took it to small claims court.

    The judge asked me “why should the store refund your money when it’s offered you a store credit?” I was irritated with his question, but I calmly replied that it’s my right to buy whatever machine I want and buy it from who I choose to buy it from.

    The point of this story that relates to this discussion is that I got the impression that due to the nature of the judge’s questions, he was going to rule against me and say that I had to accept a store credit rather than a cash refund.

    But the judge ruled in my favor. He told the store that since it couldn’t provide the product I was looking for that it was indeed my right to buy it from wherever I choose to get it. Do you see the comparison that I’m making? Just because a judge’s questions appear to put him/her at odds with the plaintiff or defendant, you never know what conclusions will be drawn.

    We may be rushing to judgement on the court’s decision.

    • I meant to say that we may be rushing to prediction on the court’s decision, not rushing to judgement.

    • I hope you’re right, but in this age of hyper-partisanship, and with money having so much influence, I am not optimistic.

      Any court that can rule the way this one did on Citizens United is obviously capable of doing the logical gymnastics necessary to strike down the health care reform legislation.

      The whole point of lifetime appointments is to prevent partisanship, but after Citizens United, I wonder if those five justices’ palms weren’t greased a bit.

  11. R.E. Garner on said:

    Mr. Parry’s argument might have more force if the Congress had actually passed a healthcare reform bill closer to what Obama actually campaigned on, healthcare reform with a government funded alternative to private health insurance, a public option as it later was called, and even though Obama claimed after it was clear that it was not going to be in the bill that he had not promised it. And Obama repeatedly stated that he was against an individual mandate in his campaign. I agree that the conservative five are highly partisan but it’s not terribly convincing to say the Court is overruling the will of the people when Obama himself went against the only possible indication of what that will was, his position on the issue prior to their voting for him. After Obama sent his proposal to the Senate Finance Committee he failed to make any real effort to fight for what he had said he was for.
    I do agree that the Affordable Care Act was worth passing and has save lives and money, but spare us the lectures on democracy.

  12. rosemerry on said:

    A well written article and thoughtful comments. I agree with calzone and R E Garner, and am appalled at the whole partisan “judiciary” in the USA. The KRATS five are completely corrupt and incompetent, but with political appointments, why would that not happen?
    “Is health care commerce among the states?” is the crux of the matter. If the USA with its muskets, war games and individual mandates, was a civilised country caring for its people, this would not arise. Health depends on luck and lifetyle, as well as medical care, and illness and accidents can happen to anyone. Decent laws would mandate for care needed by all. Money for this, rather than paying grasping insurance companies and big pharma profits (and full spectrum dominance of the globe!)would make the USA a better and safer place.

  13. Hilarious. An appeal to military emergency and war socialism. It does not matter if a President, a Founder, an Ivy league academic tick or some leftover scribbler believes slavery or censorship or anything else is good. The Constitution and the Bill of Rights exist to articulate individual rights are protect them from fascists like you.

    • Sam Parry on said:

      And yet, you cite no text from the Constitution to make your point. If the individual mandate was so unconstitutional, you would think it would be easier for opponents to cite the Constitution. Instead, we get name-calling and broad, imprecise statements about the Constitution you don’t seem to really understand.

  14. Barbara Noble on said:

    the title is missing a word.
    it should read If the Supreme Court Goes Rogue ‘Again’
    (re: the 2000 coup)

  15. One word: Whores.

  16. Alan8 on said:

    “If?!”

  17. kaptinemo on said:

    The Supremes ‘went rogue’ in 1937 after capitulating to FDR under the threat of his Court packing scheme. They twisted the Commerce Clause from its’ original meaning to whatever the Court and FDR wanted it to be, and we’ve been suffering with the results, ever since.

    Raich would have helped to dismantle a huge portion of the vast federal bureaucratic octopus that’s grown up since then, but the Supremes knew that that would mean the end of the burgeoning of Federal power – and their power, as well – and ruled against it.

    • Sam Parry on said:

      It is a perversion of our history to suggest that a broad interpretation of the Commerce Clause started in 1937. I am not aware of a Supreme Court case at any time in our history that limited Congress’s power to regulate interstate commerce. As I pointed out in the article, there have been Commerce Clause cases that have helped clarify what “interstate” and “commerce” mean. But, I am not aware of a case where the verb “regulate” has ever been redefined in the way it would have to be redefined for the Court to strike down the individual mandate.

      Don’t get me wrong, I’m not a fan of the individual mandate. But, my support or opposition to this law is immaterial to the question of whether it’s constitutional. I think many opponents of the ACA are having a difficult time differentiating between these questions.

      • kaptinemo on said:

        The perversion of our history was committed by the Supremes in 1937, not by me. After they buckled, the door was flung wide open, and traditional reservations used by the previous Supremes to prevent Executive Branch over-reach regarding ‘checks and balances’ were jettisoned in favor of whatever the Executive Branch wanted…such as demanding all US citizens turn in any gold specie, which then enabled the debauchery of the currency to suit the Keynsians. For the sake of imperial experimentation, ‘federalism’ was made a paper tiger.

        This abandonment of the traditional ‘fire brakes’ by the Supremes led to the execrable Wickard decision which essentially made ‘federalism’ a joke as far as being able to say ‘No!” to the Fed colossus when it encroached on individual liberties.

        What’s happening lately is a Supreme Court that has made an extreme swing to the Right that has come decades after an extreme swing to the Left occurred in 1937. Whether there will ever be any kind of leveling or balance after this will depend on whether there’s a country left.

        • Sam Parry on said:

          I’m sorry, but this reading of history is not supported by facts. The plain text language of the Commerce Clause is extremely broad. It gives Congress the virtually unconditional power to regulate commerce among the states.

          The larger point is that while I realize that conservatives don’t want the Commerce Clause to be a broad power, our Founders did. That’s why there are no limiting principles built into the ability of Congress to regulate interstate commerce.

          Perhaps George Washington was directing this to you when he said:

          “The [commerce] proposition in my opinion is so self evident that I confess I am at a loss to discover wherein lies the weight of the objection to the measure. We are either a united people, or we are not. If the former, let us, in all matters of a general concern act as a nation, which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”

          • Shari on said:

            The reason the Constitution was written with so many checks and balances was so no group could seize total power. I really truly believe that this country is rich enough to figure out how to keep our citizens in healthcare. It is not how much money we spend but where we choose to spend it. Healthcare is expected to be provided in this country. So why not expect people to carry it if they can. Do you know how many jobs keep people part time so they don’t have to pay it. They are the ones that will get in under the new laws. If this goes down, the limits will go back on insurance, your kids won’t be insured until 26, and they will be able to turn people down if they are sick previously. The healthcare companies actually want this to fail. They don’t make money on sick people, just healthy ones. If non profit hospitals keep absorbing so much loss, they could go under. If this happens you will have for profit hospitals that can and will turn you away not just because you don’t have insurance, but because they don’t want to take your insurance.

  18. Pingback: GOP Five’s Rule: ‘Power Is Power’ | Consortiumnews