I know how happy I’m supposed to be with the Supreme Court approval of the health care mandate but little has changed when it comes to talking about impeachment for Supreme Court Justices who act more like politicians than constitutional interpretors. Justice Scalia has provided more than enough examples of his willingness to alter his opinions to meet the Republican agenda, Justice Thomas weighed in on the health care mandate despite a strong and clear financial conflict of interest, and Justice Roberts produced a convoluted opinion based more on threading a political needle than on providing an honest interpretation.
I’m glad that ACA passed but it should have passed under the commerce clause just as the Obama administration argued. The U.S. government has the right to regulate commerce. Health care is a fifth of our economy, a vital service on which our very lives depend, and has costs which have been rising out of reach for an increasing number of Americans because the wealthiest are willing and able to pay so much for it. It’s clearly under the purview commerce, but after the Affordable Care Act passed in congress, an idea emerged, the explanation of which could easily be followed by the phrase, “yeah, that’s the ticket!”. The idea was that the mandate was unconstitutional because it tells us what to do, instead of telling us what not to do. It was dismissed as ridiculous at first, but not wanting to overlook any opportunity to cause the president to fail, conservatives eventually began to support the ridiculous challenge.
There were no honest grounds for the challenge, and conservatives knew it. As Brad Delong explains, referring to Republican Governor Mitt Romney’s health care plan on which the ACA was modeled, and a similar “mandate” proposed by Republican president George W Bush,
No office-holding Republican complained that RomneyCare was bad policy, or would destroy the economy, or would be unconstitutional, or whatnot–for it was the signature policy initiative of a Republican governor. The mandate that was at its core? That was the conservative Personal Responsibility principle. And remember the centerpiece of the Bush administration’s Social Security privatization proposals: it was an individual mandate to regulate “inactivity”: to require that people who had not established their own private individual retirement accounts do so.
Had the issue of “inactivity” reached the justices in the form of a challenge to a Republican mandate to purchase retirement accounts rather than a Democratic mandate to purchase health insurance, the Republican justices would have voted the other way.
But when the same Republican policy became the signature policy initiative of a Democratic president, every single Republican in office changed their mind.
But despite the lack of any legal basis, conservatives pushed the idea. The CATO institute, always ready with an argument to protect the secure from the needy, said, “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.”
But it isn’t a radical departure. Consider two of the important historical cases which considered during the deliberations: Wickard vs Filburn and Gonzolez vs Raich. In the first, Roscoe Filburn was told that he couldn’t grow his own wheat (beyond a certain acreage) to feed his own chickens, because doing so effected commerce in wheat, and in the second, Angel Raich was told she couldn’t grow marijuana for her own medical use, even though her doctor said it might save her life and it was legal under California law.
In his opinion, Chief Justice Roberts wrote:
The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sus-tained under a clause authorizing Congress to “regulate Commerce.”
Conservatives contend that in earlier cases, the citizen’s activity was restricted, not mandated. But that argument isn’t completely true. The government didn’t expect Filburn to starve his chickens, they expected him to buy wheat. If he wasn’t expected to buy wheat when told he couldn’t grow his own, then growing his own would have had nothing to do with commerce. And Angel Raich, who can’t grow her own pot, is forced to purchase whatever medicine the marijuana would have replaced.
Technically, Filburn and Raich weren’t mandated into commerce, but realistically they were. So five Supreme Court justices made a falsely grounded interpretation based on a technicality in order to support a political attack on the president and on the millions of people who will be helped by affordable health care. Justice Roberts, of course, came halfway back and found a tricky way to support the ACA while apparently hoping to appease his conservative peers by upholding the silly technicality.
One crazy aspect about this situation is that right wingers are correct in saying that the commerce clause has been stretched beyond its written scope and used to justify actions that have nothing to do with commerce. But the decision of the Supreme Court, that the commerce clause can’t be used for a mandate, does nothing to reign in the abuses of federal power. A mandate to enter into commerce doesn’t effect my freedom nearly as much as a restriction on what I can grow on my own property; especially when the restriction prevents me from growing my own medicine to save my own life, and especially if I can opt out of the mandate for religious purposes.
If the conservatives on the Supreme Court wanted to reign in the overreach of the commerce clause, they would have to have chosen a case other than one which is clearly about commerce.
I’m not supposed to have a fit when the Supreme Court makes a decision that I don’t agree with, and in this case it made a decision that I do agree with. But the five justices who tried to strike down the ACA, including the one who changed his mind half-way, were motivated by politics rather than jurisprudence. And while there’s no chance of unseating any of those judges, the specter of impeachment might keep justices in line in the future.