The Mandate And Commerce

Jeffrey Toobin on last week's hearings:

Kennedy’s last point, about the “heavy burden” on the government to defend the law, was correct—in 1935. That was when the Supreme Court, in deciding Schechter Poultry Corp. v. United States—a case involving the regulation of the sale of sick chickens—struck down the National Industrial Recovery Act, a principal domestic priority of President Franklin D. Roosevelt, on the ground that it violated the Commerce Clause. Two years later, however, the Court executed its famous “switch in time that saved the Nine” and began upholding the reforms of the New Deal. The Justices came to recognize that national economic problems require national solutions, and they deferred to Congress, usually unanimously, to provide those solutions, under the Commerce Clause.

For example, the Justices had no trouble upholding the Civil Rights Act of 1964, which used the clause to mandate the integration of hotels and restaurants. “It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination,” Justice Tom C. Clark wrote, for his unanimous brethren. “But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed—what means are to be employed—is within the sound and exclusive discretion of the Congress.” In other words, Justice Kennedy had it backward. The “heavy burden” is not on the defenders of the law but on its challengers. Acts of Congress, like the health-care law, are presumed to be constitutional, and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government.Last week, however, the conservative Justices were showing no deference to Congress, especially on economic matters. The questions from the quartet of Kennedy, John G. Roberts, Jr., Antonin Scalia, and Samuel A. Alito, Jr., amounted to a catalogue of complaints about the Affordable Care Act. (Clarence Thomas, their silent ally, presumably was with them in spirit.) In particular, they appeared to regard the law as scandalously cruel to one party in the debate—and it wasn’t the uninsured. The Justices’ own words revealed where their sympathies lie. Roberts: “If you’re an insurance company and you don’t believe that you can give the coverage in the way Congress mandated it without the individual mandate, what type of action do you bring in a court?” Scalia: “That’s going to bankrupt the insurance companies if not the states.” Alito: “What is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies?” Kennedy: “We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.”

This Court is extremely radical.  Expect Citizens United on steroids if they strike this law down.  The fallout would be immense.  Republicans have been extremely effective at helping the strong screw the weak.  This Supreme Court may be the greatest advocate for corporate and police power against the people in history.