Economic inequality

by Jeremy Leaming

Despite upholding the Affordable Care Act, corporate America continues its winning ways before the nation’s highest court.

Specifically, the Chamber of Commerce, the nation’s biggest lobbyist for business interests has “prevailed in 68 percent of its cases before the Roberts Court,” writes Neil Weare for the Constitutional Accountability Center (CAC). He adds that the Chamber’s “success has grown significantly since the stable Rehnquist Court, when it was just 56” percent.

In close cases, Weare says “Chief Justice Roberts and Justice Alito have become the Chamber’s strongest champions.” Roberts has sided with the Chamber 84 percent of the time; Alito has sided with it 92 percent of the time.

“In sum,” Weare concludes, “the October 2011 Term yet again demonstrates the roaring success of the U.S. Chamber of Commerce has had before conservative Justices on the Roberts Court.”

The trend also shows liberals are making little headway in reversing the decades-long movement to destroy the nation’s social safety. While poverty continues to grow, and a small group of outlandishly wealthy people continues to consolidate its power, all three branches of the federal government, not to mention a slew of Republican-controlled statehouses, seem forever beholden to the wealthy few.

The Affordable Care Act, which the high court narrowly upheld, and did so by placing limits on Congress’s spending power, is also under attack by right-wing politicos who are bent on hampering even moderate efforts to create a decent social safety net in a wealthy country.

As noted here, Republican governors are loudly proclaiming they’ll work to undermine the Affordable Care Act, especially its provision calling for an expansion of Medicaid. TPM’s Brian Beutler reports that Louisiana’s right-wing governor, Bobby Jindal, says “we’re going to do everything we can” to trash the Obama administration’s health care law.

by Jeremy Leaming

Reading from the bench during the announcement of the Supreme Court’s decision on the Obama administration’s landmark health care reform law, Justice Ruth Bader Ginsburg declared, “In the end, the Affordable Care Act survives largely unscathed.”

Yes, the Obama administration’s signature legislative achievement and the strongest effort in many decades to repair the nation’s tattered social safety did survive Supreme Court scrutiny.

But as noted here yesterday, it did so barely, and not in the manner that many constitutional law experts and the high court’s four moderate to left-of-center justices had thought it would. And the opinion also included a shrill dissent that envisions a vastly ineffective federal government. As former U.S. Solicitor General Walter Dellinger said during yesterday’s ACS press briefing if the dissent had carried the day it would have marked and “extraordinary revolution” in constitutional law jurisprudence.

Although the federal government argued that the law’s integral measure, the minimum coverage provision, was constitutional on two major fronts, it was largely thought that it would be upheld as a valid regulation of commerce. The activity of the health care market represents nearly 18 percent of the nation’s economy.  

But that did not happen. And some constitutional law scholars say that fact should not be ignored.

Chief Justice John Roberts’ majority opinion provides some language suggesting the high court was not radically re-reading precedent on the commerce clause. But a careful reading of his opinion reveals that the libertarian argument for a vastly cramped interpretation of the commerce power carried the day.

As The New York Times’ Adam Liptak put it, “Five justices accepted the argument that had been at the heart of the challenge brought by the 26 states and other plaintiffs: that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want. That was a stunning victory for a theory pressed by a small band of conservatives and libertarian lawyers. Most members of the legal academy view the theory as misguided, if not frivolous.”

Justice Ruth Bader Ginsburg in her concurring opinion also took the chief justice to task for a “rigid reading” of the commerce clause that “makes scant sense and is stunningly retrogressive.”