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Anthony Kennedy
The "revolutionary" Justice Anthony Kennedy

The transformation of our federal government by FDR was made possible because the Supreme Court made a dramatic shift in view of how it should review congressional legislation. The Court adopted a policy of deference to the legislative judgments
of the Congress when it exercised its commerce power, requiring only that the means chosen bear a rational relation to the ends the Congress sought to achieve. Of course, the Congress could not act in a manner that was expressly prohibited by the Constitution, but absent that, its policy choice need only be rational.

With this freedom of action, our federal government has acted countless times to address problems that were national in character. Thus we have an Environmental Protection Agency, a National Transportation Safety Board, a Federal Emergency Management Agency and, yes, a Social Security Administration and Medicare.

This change of approach by the Court was famously described in the 1938 case United States v. Carolene Products.

(Continue reading below the fold)

Writing for the Court, Chief Justice Harlan Fiske Stone wrote:

The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," Gibbons v. Ogden, 9 Wheat. 1, 196 [...] The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 196. [...] it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states.
In its famous footnote 4, Carolene Products distinguished economic regulations by the government from those that impinged on fundamental individual rights stating that "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth [Amendment]." This has been the understood constitutional interpretation since 1937. But a change is afoot. And this change is being led, at least in principle, by Justice Kennedy.

In the oral argument regarding the constitutionality of the individual mandate, Justice Kennedy said:

“Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed [...] If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is a, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”
For 75 years, the answer has been a clear "no." Indeed, as recently as two years ago, the answer appeared to be "no." But Justice Kennedy may choose to change that in the ACA cases.

In my Sunday post discussing the oral argument on the ACA cases, I noted that in 2010, the Supreme Court issued a decision upholding a federal civil commitment statute in United States v. Comstock. In Comstock, the Court held that:

We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. Sabri v. United States, 541 U. S. 600, 605 (2004) (using term “means-ends rationality” to describe the necessary relationship); ibid. (upholding Congress’ “authority under the Necessary and Proper Clause” to enact a criminal statute in furtherance of the federal power granted by the Spending Clause); see Gonzales v. Raich, 545 U.S. 1, 22 (2005) (holding that because “Congress had a rational basis” for concluding that a statute implements Commerce Clause power, the statute falls within the scope of congressional “authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate Commerce … among the several States’ ” (ellipsis in original)); see also United States v. Lopez, 514 U. S. 549, 557 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276 (1981). [Emphasis supplied.]
The standard is not "has the Congress ever done this before?" The standard is what the Congress has done rationally related to the exercise of an enumerated power. In the case of the individual mandate then, the question is, "Is the individual mandate rationally related to Congress' exercise of the commerce power in enacting new laws regarding the health insurance market (ACA)?" I think we all know the answer to that. The answer is YES!

Justice Kennedy appears to believe otherwise. As stated before, he believes the question regarding the constitutionality of the individual mandate is, does it meet a "heavy burden of justification to show authorization under the Constitution"?

This would be a revolutionary change in our Commerce Clause jurisprudence. Justice Kennedy first hinted at this transformational formulation in his concurrence in Comstock:

Concluding that a relation can be put into a verbal formulation that fits somewhere along a causal chain of federal powers is merely the beginning, not the end, of the constitutional inquiry. See United States v. Lopez, 514 U.S. 549, 566–567 (1995) . The inferences must be controlled by some limitations lest, as Thomas Jefferson warned, congressional powers become completely unbounded by linking one power to another ad infinitum in a veritable game of “ ‘this is the house that Jack built.’ ” Letter from Thomas Jefferson to Edward Livingston (Apr. 30, 1800), 31 The Papers of Thomas Jefferson 547 (B. Oberg ed. 2004); see also United States v. Patton, 451 F. 3d 615, 628 (CA10 2006).

This separate writing serves two purposes. The first is to withhold assent from certain statements and propositions of the Court’s opinion. The second is to caution that the Constitution does require the invalidation of congressional attempts to extend federal powers in some instances.

Does Kennedy enunciate a limitation in Comstock? Beyond the rote federalism lines, not really. He stated:
The terms “rationally related” and “rational basis” must be employed with care, particularly if either is to be used as a stand-alone test. The phrase “rational basis” most often is employed to describe the standard for determining whether legislation that does not proscribe fundamental liberties nonetheless violates the Due Process Clause. Referring to this due process inquiry, and in what must be one of the most deferential formulations of the standard for reviewing legislation in all the Court’s precedents, the Court has said: “But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”  Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487–488 (1955) . This formulation was in a case presenting a due process challenge and a challenge to a State’s exercise of its own powers, powers not confined by the principles that control the limited nature of our National Government. The phrase, then, should not be extended uncritically to the issue before us. [Emphasis supplied.]
There is no due process or liberty challenge to the individual mandate. But what of Kennedy's admonitions regarding "the limited nature of our National Government"? What is Kennedy driving at? He continues:
The opinion of the Court should not be interpreted to hold that the only, or even the principal, constraints on the exercise of congressional power are the Constitution’s express prohibitions. The Court’s discussion of the Tenth Amendment  invites the inference that restrictions flowing from the federal system are of no import when defining the limits of the National Government’s power, as it proceeds by first asking whether the power is within the National Government’s reach, and if so it discards federalism concerns entirely.

These remarks explain why the Court ignores important limitations stemming from federalism principles. Those principles are essential to an understanding of the function and province of the States in our constitutional structure. [Emphasis supplied.]

So Kennedy has identified federalism as a limiting principle. And the Court adopted this limiting principle in the non-economic sphere in Lopez. But the individual mandate does not impinge on any federalism concerns. What more can he be thinking of?

Surely not personal liberty. In Comstock, Kennedy concurred in a judgment where the Court upheld a Congressional statute, based on the Commerce power, which provide for the involuntary detention of a citizen of the United States. Talk about impacting a liberty interest. If the Congress, through the Commerce power, can involuntarily and indefinitely detain a citizen, what liberty interest can the Commerce power not reach? Is Kennedy really of the view that the Commerce power empowers the Congress to enact legislation to indefinitely detain American citizens but not to impose a $500 penalty? Really?

In the ACA oral argument, Justice Kennedy asked the advocates to provide him with a "limiting principle." But Justice Kennedy cannot articulate a limiting principle that resides in our constitutional jurisprudence that is applicable to the individual mandate. The reason is there is none applicable.

It does not feel right to Justice Kennedy. This is the entire story. The law is not the problem. Justice Kennedy's "gut" is the problem. And herein we have a revolution of sorts—the Constitution's new limiting principle. One may think of it as an "equitable" principle of sorts: Justice Kennedy's "gut."

In my Sunday piece, I wrote:

Unlike many, if not most, legal commenters, I have no compunction in noting that Chief Justice Roberts is as unprincipled as his predecessor, Chief Justice Rehnquist. He is capable of any vote, even those that fully depart from his stated principles. See Parents Involved. As for Justice Scalia, he is even more unprincipled. [...] Justice Kennedy holds the answer. What Kennedy will do remains the key question, as it so often is. (See Kennedy's deciding votes in the recent 5-4 right to counsel decisions.) What can we expect from Kennedy here? Is he willing to overturn ACA? Does he believe ACA can be treated as sui generis? (To me this requires buying into the activity/inactivity nonsensical distinction.) Is Kennedy concerned about the political fallout of such an action?

[...] [W]hat does Kennedy want as a result here? Justice Kennedy does, in my view, enjoy legislating from the bench. And more so than most justices, he has less pretense about it.

Justice Kennedy, it seems to me, wants to strike down the individual mandate. He does not like it. And he seems willing to do it. Does the Constitution require it? It will if Justice Kennedy wants it to.

Thus, the Kennedy "revolution" is upon us. The consequences could be devastating.

Originally posted to Armando on Wed Mar 28, 2012 at 04:30 PM PDT.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics.

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Comment Preferences

  •  The Constitution is Them. (10+ / 0-)

    Unless a rightwing House will impeach a rightwing Court to stop a rightwing takeover of our country.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Wed Mar 28, 2012 at 04:41:37 PM PDT

    •  I want a pony too! (2+ / 0-)
      Recommended by:
      ER Doc, YucatanMan
      •  Armando - thank you very much (2+ / 0-)
        Recommended by:
        Armando, YucatanMan

        This was a very educational and enlightening diary.

        "let's talk about that"

        by VClib on Wed Mar 28, 2012 at 06:17:23 PM PDT

        [ Parent ]

      •  your hair is on fire, here have an extinguisher: (0+ / 0-)

        Former acting Clinton Administration Solicitor General Walter Dellinger:

        “The court understood that the alternatives being offered by the challengers were really not workable,” and that the most likely policy option if the mandate is struck is a more public system like single payer."  (emphasis added)

        Meanwhile you're pushing the "torture arguement," that if Congress can use its power to do something totally outrageous (Comstock, indefinitely detain a person) then surely it can do things that are less than totally outrageous (force everyone to write checks to the murder-by-spreadsheet industry).  

        Wonders never cease.

        "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

        by G2geek on Wed Mar 28, 2012 at 09:34:01 PM PDT

        [ Parent ]

        •  the most likely policy option (0+ / 0-)

          is that nothing happens and people won't even get to write checks to the murder by spreadsheet industry.

          either way, the point of the diary is that as long as a regulation is rationally related to an enumerated power, it's not the court's role to second guess it in the guise of demanding a "heavy burden" on those advocating it.  The way to overturn the law is to overturn the law.  If you have the votes to replace it with single payer, that would be great, but that's not the likely option. Unless the policy arguments against the mandate rise to the level beyond anything the opponents can imagine, it's constitutional.  

          Given how Kennedy evidently conceives of the judicial power, your hair should be on fire too.  Sometimes that's good, as in Lawrence v. Texas, but if he adopts a rule that sets up the Court as a superlegislature in the economic sphere, that's going back further than even Armando goes -- not to the new deal, but to Lochner v. New York, where fundamental liberties include the liberty to dispense with wage and hour regulations.

          The study of law was certainly a strange discipline. -- Yukio Mishima

          by Loge on Fri Mar 30, 2012 at 11:15:19 AM PDT

          [ Parent ]

    •  Too late (0+ / 0-)

      The radical Republican party is the party of oppression, fear, loathing and above all more money and power for the people who robbed us.

      by a2nite on Wed Mar 28, 2012 at 05:27:57 PM PDT

      [ Parent ]

  •  this is part of a long narrative arc (20+ / 0-)

    as the conservatives on the SCOTUS stop pretending to be about legal principles, and start legislating on their whims, unmoored from legal arguments made in earlier decisions.

    bush v. gore was a watershed in many ways. when the law becomes capricious, when judges become partisan (which is different from having general ideological approaches, if they're grounded in an interpretation of the law) and inconsistent, then the law ceases to be seen as legitimate. and thar be dragons.

    legislators and presidents are not the only aspects of government that derive their power from the consent of the governed. the law, too, can lose its moral and eventually legal force if it is perceived by enough of the population it governs as arbitrary and corrupt.

    perilous waters we swim in these days. and i don't even give a shit about the constitutionality of the mandate, and think it bad policy and bad politics.

    •  President's most lasting power (8+ / 0-)

      appointments to the Court.

    •  Justice Brandeis said much the same.:: sigh:: n/t (4+ / 0-)

      Information is abundant, wisdom is scarce. The Druid

      by FarWestGirl on Wed Mar 28, 2012 at 05:09:43 PM PDT

      [ Parent ]

    •  From TPM is this comment (9+ / 0-)

      which says if Kennedy, et al strike down the mandate, then we are ruled by men, not laws. (As if Bush v Gore didn't establish that already)

      The thing is, as of the time the law was passed, everyone across the political spectrum thought this thing was constitutional. The Heritage Foundation started it, the D’s finished it, and the whole way down no one thought it ran afoul of the Constitution (save for people considered fringe at the time).

      What this says is that Congress and the entire country were relying on the precedents SCOTUS set to pass the law—and they spent almost two years and untold legislative resources doing it. That’s the whole point of stare decisis, allowing for predictability with respect to what the law allows. Stare decisis is what makes sure the courts don’t act arbitrarily by constraining them to fit within precedent.

      Acting in ignorance or with disregard for precedent (and precedent’s practical attendants, like reasonable beliefs in the public about what the law is) undermines rule of law, makes it impossible to pass laws confident of their legality, etc. It is, in a word, arbitrary. It’s the kind of thing they do in developing countries.

      If SCOTUS ditches stare decisis here, sure their credibility will take a hit, but more importantly: we, as a polity and individuals, would have no reason to think we could pass any major regulatory legislation (unless, of course, we took the political commitments of the justices as our guide). SCOTUS would be potentially freezing the statutory law in place. What is Congress supposed to do with its time if everything it thought it knew about the law gets chucked out the window? How does it pass legislation? How does it change existing legislation? Are only Republican Congresses allowed to pass laws?

      One may live without bread, but not without roses.
      ~Jean Richepin
      Bread & Roses

      by bronte17 on Wed Mar 28, 2012 at 06:48:14 PM PDT

      [ Parent ]

      •  and if that in fact becomes the case (4+ / 0-)
        Recommended by:
        G2geek, Larsstephens, bronte17, semiot

        then the constitutional regime is in a very weak place, and we're looking at revolution. and those tend to break a whole lot of things, and end very badly as often as they produce new worthy political orders, generally.

        i don't care about the constitutionality of the mandate, but i care a great deal at any further erosion in any pretense of a constitutional democracy.

        •  well you should, because: (1+ / 0-)
          Recommended by:
          Angie in WA State

          If Congress gains an affirmative power to compel people to engage in commerce any time there is a "rational basis," then what we will quickly see is:

          = The replacement of Social Security with compulsory 401Ks.  That's the real prize:  Goldman et. al. are all drooling over that money.  

          = Every special interest under the sun lined up at the door of Congress offering a "rational basis" to compel Americans to consume their products or pay a penalty for refusing to do so.

          = One after another compulsory consumption law enacted on one excuse after another.  

          Mark my words.

          "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

          by G2geek on Wed Mar 28, 2012 at 09:41:44 PM PDT

          [ Parent ]

          •  G2geek... healthcare is a basic core component (3+ / 0-)
            Recommended by:
            semiot, xanthippe2, 57andFemale

            of civilization.

            Healthcare is what civilized people have to control infectious disease and keep their society clean.  

            It is not "compulsory consumption," but rather like the plumbing and roads and garbage pickups. You don't dump your waste out your windows onto the roads and people below, you don't dump your waste out in your backyard.

            And you don't deny your fellow citizens access to healthcare such that disease festers and spreads across the community.  

            One may live without bread, but not without roses.
            ~Jean Richepin
            Bread & Roses

            by bronte17 on Thu Mar 29, 2012 at 03:16:53 AM PDT

            [ Parent ]

          •  Objection, assumes facts not in evidence (0+ / 0-)

            "If Congress gains an affirmative power to compel people to engage in commerce . . . "

            NOT WHAT THE BILL DOES.  Nobody is acting "outside" commerce by not acquiring health care.  They're simply pledging to pay for health care later, which they likely cannot do.   Health care is somewhat unique in that there's a substantial effect on interstate commerce addressable by the individual mandate not present in other cases.  Congress is trying to solve a pricing mismatch that the minimum coverage provision does.  It's also not really compulsory -- the only compulsion is that if you don't get insurance, you're taxed the equivalent on the basis of the costs that not having insurance (and likely the inability to pay at point of service in the case of emergencies) impose on the rest of the system.  

            I am compelled to pay into social security by virtue of having taxable income.  I am actually less compelled to buy insurance as a result of this same set of facts (and one who does not file income taxes has no obligations).

            The study of law was certainly a strange discipline. -- Yukio Mishima

            by Loge on Fri Mar 30, 2012 at 11:21:15 AM PDT

            [ Parent ]

    •  so in 2000 they delivered us to Bush... (1+ / 0-)
      Recommended by:
      Angie in WA State

      .... and in 2012, we have a trainload of Corporate Democrats here who are rooting for them to deliver us to the murder-by-spreadsheet health insurance corporations.

      Whitewash on the outside, brainwash on the inside.

      Why put a person in prison, when you can put prison in the person?

      "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

      by G2geek on Wed Mar 28, 2012 at 09:36:01 PM PDT

      [ Parent ]

  •  Overturning the law (8+ / 0-)

    will cause the court (5 of them atleast) to lose even more legitimacy in the eyes of 50% of the country, but what good does that do.  They have the right to overturn any precedence they want and there is nothing we can really do about it.  History will not be kind to them but lets be honest this is the court that thinks corporations are people, until they have to be held accountable as one that is.  

  •  good discussion (9+ / 0-)

    i'm hopeful that kennedy's seeming rejection of the action/inaction is a good sign, and that he actually meant "assume for the moment" rather than using it as  rhetorical device, but being hopeful isn't quite the same as being optimistic.

  •  Could the 2012 election be more important? (5+ / 0-)

    I think not..we must reelect Obama for the possibility of a reverse of balance in scotus.

    Macca's Meatless Monday

    by VL Baker on Wed Mar 28, 2012 at 05:04:13 PM PDT

  •  Thanks for your analysis. (5+ / 0-)

    Nothing shows the need to elect Democratic Presidents and Senators than this!

    -5.12, -5.23

    We are men of action; lies do not become us.

    by ER Doc on Wed Mar 28, 2012 at 05:06:35 PM PDT

  •  Supply and demand is the justification! (2+ / 0-)
    Recommended by:
    Armando, semiot

    I don't know why this isn't understood!  Yes it's a heavy burden, but it can be justified. We know that health care does not follow free market principals.

    Insurance companies can discriminate, harass and bankrupt their customers. A dying man has very little bargaining power.

    Why is this not the justification given to Kennedy??

  •  Smart diary, but I doubt that Kennedy is (3+ / 0-)
    Recommended by:
    Geekesque, Armando, YucatanMan

    dwelling on his concurrence in the Comstock case.

  •  Regrettably, this is the (5+ / 0-)

    other side of the Lawrence coin when it comes to Justice Kennedy.

    Notice, though, the Roberts joined the majority opinion in full in Comstock. If Roberts votes the wrong way here, he will be revealed even more fully as a partisan hack. It will be practically as bad as with Scalia.

    Ok, so I read the polls.

    by andgarden on Wed Mar 28, 2012 at 05:21:43 PM PDT

  •  Kennedy is a conservative activist. (6+ / 0-)

    The survival of the ACA spells the doom of the conservative movement as we know it.

    Ergo, Kennedy and the 4 others will vote to void the entire ACA.

    Everything else is a post hoc rationalization, a distraction, a Potemkin debate.  Window dressing to impress the naive.  

    The ACA is a dead letter. Time to educate the public as to why (it has nothing to do with mandates).

    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

    by Geekesque on Wed Mar 28, 2012 at 05:55:14 PM PDT

  •  I just can't fathom how anyone could possibly (10+ / 0-)

    not see how this mandate argument does not flatly contradict the Supreme Court's entire commerce clause jurisprudence since the Great Depression (recently, e.g. Raich).

    No, I don't think the mandate is particularly good policy. But it's what Congress finally came up with after ... wait for it... about 100 years of trying.

    If it were made on some sort of passable legal argument, then ok. But something constructed out of whole cloth, that nobody who knows anything about constitutional law would have given credence to in, say, the year 2007? OK, so maybe the mandate violates some sort of right. That, is, after all, what lies behind that "gut feeling!" It's not that Kennedy has a gut feeling that Congress doesn't have a power. It's that he has a gut feeling that Congress just can't do that, because it infringes on fundamental liberty. If so, then make that argument. That would be a 14th amendment argument. But the argument that Congress doesn't even have the power to do it in the first place? Did everyone I miss the bus to the party where everyone's memory of intro Constitutional Law got wiped?

    Furthermore, and this is not a legal argument, but is the context of all this - this has been in the making for about a hundred years. How many presidents have tried and failed to pass Universal Health Care? Without actually looking it up, is it about 10 at this point? This was one of the central points of the 2008 the election. We had an election. Obama won, along with large Democratic majorities. It was not a secret that Health Care Reform was his priority; it's not like nobody knew what they were getting.

    If the Supreme Court strikes this (especially if they have the audacity to go beyond the mandate itself), I don't think it is an exaggeration to say that it will be the darkest day for the idea of democratic self-governance in the history of the United States. Yes, there have been worse days for the country as a whole (things like Pearl Harbor, Fort Sumter). But worse days for the idea of democratic self-governance? Hard to think of them.

    On a side note... What is with the idea that tort law is written into the constitution? If Congress wanted to pass a statute to change tort/common law to create a duty to rescue, does Kennedy somehow think that Congress couldn't do that?!?! On what possible basis?!?!?

    Very well written diary.

  •  Yah, but FDR threatened to pack the court. (0+ / 0-)

    a pretty messy time for the court to be sure.

  •  Since individuals without insurance (0+ / 0-)

    are more likely to be a threat in the great pandemics, they are a threat to national security.  So we should have indefinitely detained people instead of a small tax penalty.

    •  be careful what you wish for. n/t (1+ / 0-)
      Recommended by:
      Angie in WA State

      "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

      by G2geek on Wed Mar 28, 2012 at 09:46:35 PM PDT

      [ Parent ]

      •  I wasn't wishing for it (0+ / 0-)

        just being sarcastic about a justice that feels the Commerce Clause extends to indefinite detention but not to a mandate to either prove insurance coverage or pay a $500 fine, one that provides full due process to dispute and cannot even be enforced as a lien as other taxes.   Suspend the great writ, but heaven forbid everyone get health care insurance.

  •  so what was the governments answer? (0+ / 0-)

    I keep seeing Kennedys question beinging cited all over the net but nowhere do i see what the government answered to it

    ?“Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed [...] If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is a, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”
    was the governmeent mute to the question or did they attempt an answer?

    America could have chosen to be the worlds doctor, or grocer. We choose instead to be her policeman. pity

    by cacamp on Wed Mar 28, 2012 at 09:13:16 PM PDT

  •  What will the ruling imply? (1+ / 0-)
    Recommended by:

    Assuming they indeed strike down the individual mandate, as I think they will, and perhaps the entire law - as I think they very well might. Will they frame this as a narrow "technicality", insulating the rest of the social safety net from any effect? By saying "You cannot force people to buy insurance policies", implicitly leaving Congress the option to do what they should have done in the first place - implement a tax-funded single payer system. OR will they frame this in such a way as to open the door to challenges to the entire New Deal safety net?  

  •  If it is clear the Court is overreaching (0+ / 0-)

    Congress could fight back as in its failed flag burning legislation. But the Court openly speculates on Congress' votes and knows that there will be no political response, either from the people. Obama is a far cry from FDR who won that battle with the Court for which we should be grateful.

  •  I was incensed by that "heavy burden" question (0+ / 0-)

    and even more incensed by the response.

    There is no heavy burden on the government to defend the constitutionality of its enactments. In fact, the burden is the exact opposite, as you begin with a presumption of constitutionality.

  •  I am having a problem with everyone dismissing (0+ / 0-)

    the, what you describe as the "activity/inactivity nonsensical distinction."

    So far as I understand this proposition, it is that the government may regulate an activity, even an activity between citizens and private businesses, via the commerce clause.

    But that the government may not expand that power to regulate a lack of activity, or in effect require activity between a citizen and a private business via a mandate to purchase something from that private company.

    I've heard the argument derided, but not why.

    I don't find it nonsense or that I am unable to understand the distinction between the two.

    What I guess I'm saying is how can one regulate something that is not already happening and has, to date, never happened before? Especially when the outcome from the mandated action is all hypothetical at this point?

    You can regulate a factory before it starts, by requiring certain things via the building codes.

    But with the PPACA, the one issue that was mostly obscured during the entire congressional broughaha was the most important one: any changes to the law regarding healthcare must, of necessity, contain language which will enable the government to push down the costs of the care the insurance will pay for. Without costs controls the PPACA does little more than putty around the edges of a broken window, and most reasonable people know it.

    Yes, kids on parents plans until they turn 27, state offered plans for those denied coverage due to pre-existing conditions, those things are already happening.

    But what about costs?

    They are still rising, and once the 85% spending on care requirement kicks in, there is nothing to stop that continuing rise. So they can't keep more than 15%? If they charge more, their 15% gets larger, too, right?

    The terrible truth is our current system is broken. Even with the PPACA.

    Doctors and nurses know it.

    Patients know it.

    Actuaries who are predicting future costs know it.

    The only ones who don't seem to know it, or at least refuse to admit it? They are the only ones we have to make the changes we need to put our system of healthcare back on an even keel. Our legislators.

    They appear to believe that they can just fiddle around the edges forever, and nothing bad will happen.

    They are sadly mistaken.

    We will end up with a national healthcare insurance program sooner or later - or the country will end up spending half of our tax receipts on medical costs, and the Republicans and their insane shrieking that cutting our soon-to-be-not-at-War MilitaryIndustrialComplex costs by about 1/3 over ten years will destroy the country will have to STFU, because there is just not enough money in the world for all this shit anymore.

    Sane people know this.

    I wish the US Congress was still sane.

    * * *
    I like paying taxes...with them, I buy Civilization
    -- SCOTUS Justice O.W. Holmes Jr.
    * * *
    "A Better World is Possible"
    -- #Occupy

    by Angie in WA State on Thu Mar 29, 2012 at 01:30:56 AM PDT

  •  Fine diary with many - but not all - insightful... (0+ / 0-)

    ... comments.

    One observation from the diary stands out:

    "As stated before, [Kennedy] believes the question regarding the constitutionality of the individual mandate is, does it meet a 'heavy burden of justification to show authorization under the Constitution'?"
    Well, that is the question but it's not really "a heavy burden" after decades of the jurisprudence Armando mentions. Nor is there a realistic distinction between "activity" and "inactivity" although that's the rallying cry of many opponents, followed immediately by whether we can be compelled to buy something from a private company. (quarantines and vaccinations, anyone?) So, the Court must deal with these challenges and if it convinces itself that these are the determinative questions, we will have whole new tangents of reasoning about the Commerce Clause.

    Sitting right next to all this is, for me, the clear suggestion of bigger solutions such as Medicare without an age limit. Frankly, I'm not sure it's that simple or even if that's a good policy, but a solution more sweeping than the thorny hunks of ACA is well within the existing power of Congress.

    I detected some glimmers from questions on the Third Day the Court sat on this case, that the sea and waters were parting, that several justices might have realized how much they might be legislating as they decided this case.

    Obama and strong Democratic majorities in 2012!

    by TRPChicago on Fri Mar 30, 2012 at 09:15:18 AM PDT

  •  Money liberty has always trumped real liberty w/ (0+ / 0-)

    the 'economic substantive liberty' (i.e., 'the Constitution is only for the Rich') crowd, one of which Kennedy now appears to be revealed.  so yeah, to them the $ 500 mandate is catasclysmically more egregious than indefinite detention of an individual, especially one of 'those types, you know the ones'.

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