On Health Care, Justice Will Prevail - reject "political objection in legal garb." By Laurence Tribe

[jefferson_dem]

On Health Care, Justice Will PrevailBy Laurence H. Tribe
Cambridge, Mass.

THE lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.

<SNIP>

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.

http://www.nytimes.com/2011/02/08/opinion/08tribe.html?_r=1&src=tptw&pagewanted=print

[DrToast]

1. I hope so, but...

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.

...I'll believe it when I see it.

[MannyGoldstein]

2. Just like they did in Citizen's United

They'll do their Constitutional duty.

[LooseWilly]

3. Uhh- "Since the New Deal, the court has consistently held..."

Hehe... there's a writer positing an opinion based on precedent set during the New Deal? Good on him (?) for getting this feel-good tid-bit published... hope it was worth a fistful of cash.

But given recent Supreme Court rulings... "Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce." most likely ain't gonna make it.

Full disclosure... I'm personally glad. I, personally, say fuck the mandate. Just wanted to get that out there so I can be criticized for it.

That said, I think the writer of the article is imbibing a little too much faith from his/her "sources", to come to the conclusion: "This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets." is definitely applicable to the HCR.

The problem, if I'm judging criticisms aright, lies in that little detail of the mandate to buy privately provided health insurance. The argument of the article, at its heart: "In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out." ... seems to be missing, or willfully ignoring, that one little detail. Privately provided. Social Security is publicly provided, as is Medicate, not to mention income taxes (for which a Constitutional Amendment had to be passed).

I'm just saying... the private provider mandate may well be thrown out... in which case the Obama administration will likely shit bricks, because they might be seen by HMOs and Pharma as having "taken advantage" in whatever deals they made to ... "deliver the public unto the insurance rolls" ...in which case I'm guessing the WH will be scrambling to find other ways to make sure that the public is delivered, whether they can afford it or not, onto the insurance rolls.

Ironically, had it been a public plan that was mandated, precedent would've upheld it.

That might not've delivered a couple of dozen HMO/Pharma Republicans to the polls for Obama though... or some 50 million citizens' dollars to the HMO/Pharma A/R rolls...

[asphalt.jungle]

4. the "writer" is Laurence Tribe

google him if you don't know who he is, since you think he's "imbibing a little too much faith from his/her 'sources'"

jebus.

[DrToast]

5. Medicare isn't publicly provided

Private doctors treat patients, not government workers.

[ShadowLiberal]

6. Given how 2 conservative appointed judges have ruled I'm skeptical that the SC will be 'impartial'

Given that the 4 judges to rule on the health care law so far have ruled based on what party appointed them to the court, you'll understand why I'm still very skeptical of this guy's claims.

The conservative judges, for the most part, also haven't exactly been working their hardest to give a nonpartisan public impression lately, such as how 1 of them recently spoke at a tea party event. Another publicly disagreed with established law about the 14th amendment by saying that it's perfectly legal for congress to pass laws that make women second class citizens like they used to be a century or two ago, even though the 14th amendment has been ruled to protected persecuted minority groups in the past. Then another has a wife with a financial stake in repealing the health care legislation, yet her husband ruled that a judge is allowed to hear a case even if one of the parties just happened to pay a large sum of money (80% of the money spent in the entire campaign for the judge's seat) to get the judge who's deciding the case elected.