Affordable Care Act

by Jeremy Leaming

We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

Winkler, a law professor at UCLA, continued:

He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.

Once again, we see that Scalia’s orginalism is a charade.

There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

by Jeremy Leaming

The libertarian argument wielded against the Obama administration’s health care reform law was propelled quickly and effectively by a right-wing “infrastructure” that has its sights set on longstanding, but weakened social safety net laws.

Media Matters’ David Lyle says those concerned about the nation’s social safety net and the Constitution’s progressive values, “should remember how aggressively and efficiently the right was able to deploy its view of the Constitution as a weapon, and meet future attempts to do so head on.”

Lyle cites a recent Salon piece by Northwestern University law and political science professor Andrew Koppelman, which provides a detailed examination of the evolution of the wildly libertarian argument used against the Affordable Care Act’s minimum coverage provision. That provision of the law requires Americans who can afford it, to purchase a minimum amount of health care insurance starting in 2014.

Lyle writes:

Koppelman's research shows that within a few months in mid-2009 the constitutional argument against health care reform went from nonexistent to a subject of mainstream discussion. Koppelman was unable to find any published claim that the individual mandate would be unconstitutional prior to a July 2009 Federalist Society issue brief written by two former Bush administration officials. In August 2009, conservative lawyers David Rivkin and Lee Casey, who regularly write on issues the right-wing legal infrastructure wishes to move into the mainstream, published a Washington Post op-ed attacking the mandate on constitutional grounds. On September 18, law professor Randy Barnett, who would play a leading role in the subsequent litigation against the act, first weighed in on the issue with a post on Politico. Koppelman notes that days later CBS News reported that "[i]n the last few days, a new argument has emerged in the debate over Democratic healthcare proposals," and that CBS mentioned that the constitutionality issue had emerged on The O'Reilly Factor and Fox News.

The Right’s ability, Lyle continues, to define the constitutional debate “is all the more potent because it so effectively complements a highly ideological, bordering on politically partisan, conservative pro-corporate wing of the federal judiciary.”

He notes, among other instances, a recent concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, appointed to the federal appeals court bench by George W. Bush, used her opinion to launch a screed against the federal government’s efforts to battle poverty and provide a sturdy social safety net.