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Some thoughts about yesterday’s Supreme Court decision upholding the Affordable Care Act (NFIB v. Sebelius):
1) From a jurisprudential viewpoint, the decision could not have been worse. Not only did the Court establish the principle that individuals can be forced under penalty of law to pay for the services of a private business (and the tax for non-purchase, contra Justice Roberts is clearly a penalty) but a majority of the Court also indicated that it would strike down future regulatory legislation on Commerce Clause and Necessary and Proper Clause grounds. Under the Chief Justice’s “broccoli” reasoning accepted by a Court majority, any regulation requiring positive action, and penalizing inactivity, violates the Commerce Clause. Think of the areas of regulation, from environmental cleanup to child nutrition, to which this precedent could be applied! The Court also apparently established that the states can reject federal mandates on the ground of unanticipated cost increases, thereby dealing a huge blow to future federal efforts at comprehensive national legislation (which commonly operates through state governments). Had the Court merely struck down the ACA on Commerce Clause grounds, the impact would not have been so broad. A sly devil, Justice Roberts is!
2) The long-term jurisprudential harm of this decision has been hidden to many liberal commentators who have been exulting at the real, albeit limited benefits that the Act itself will bring about (no disqualification because of pre-existing condition, children under age 27 can continue on their parents’ insurance, etc.). The Court, in effect, used the ACA to operate under a smokescreen.
3) Bush v. Gore, Citizens United, and yesterday’s decision form a sort of grotesque trilogy, which together will inflict a possible death blow to our representative democracy. Of the three decisions, the impact of yesterday’s is the most subtle but perhaps the most devastating. The Court went beyond the Citizens United ruling that corporations are the legal equal of flesh and blood individuals. Yesterday, the Court held that flesh and blood individuals exist in a state of servitude to the corporations.
4) In all of the above decisions, the Court used what one commentator on FDL yesterday called a “pretzel logic.” But the goal of the Court is no longer legal analysis, it is ruthless politics.
5) With yesterday’s decision, the “liberal” wing of the Court blew itself up. 4 of the 5 votes to uphold the ACA came from the “liberals.”
6) We are back to the days of Dred Scott.
6 Comments
Thank you, Massa’s.
Can I have another nudge, please?
caleb, please post here the comment you made on the front paged thread by Swopa, ‘Please Act Like You Lost.’ I totally agree that Roberts is carving out a sinister legacy that most pundits don’t understand or else are ignoring. He is indeed a sly devil and there is nothing faintly liberal about what he has done.
The three decisions do indeed form a trilogy of retrenchment and an outrage upon the Constitution where surely folk wiser than me can see that the balance of powers has been completely destroyed.
I wonder if some silent war is not now going on at least between the Executive and the Judiciary branches, a war which has nothing to do with ‘conservative’ and ‘liberal’ designations but rather is all about naked power and who ultimately calls the shots.
We certainly know that since 2000 our votes are easily dismissed, only to be noticed when it serves the purpose. Like the apocalyptic battles of Biblical times waged beyond the ken of mere mortals, we may just have witnessed Round One in the Wall Street Wars.
Ruthless politics indeed. Thank you for this diary.
Recommended.
Excellent diary, caleb. Recommended.
Every now and then, I just stand back and look at the entire situation, and it hits me full force: how is it that a very small minority (1%) are able to enact whatever nonsense they want, and we are supposed to just accept it? They’re idiots. We’re letting idiots rule us. We’re not even allowed to talk about paying them back for all the harm they’ve done.
Sometimes I despair.
Each of the diaries on this ruling have demonstrated that there are many facets to it, and I find the ones you touch on here to be very troubling.
You mention Dred Scott, and also in the comment I mentioned from another diary, if I may take the liberty to quote from that:
“The subtlety of Roberts’ exposition, which expands the decision into something much greater than it appears of first glance, is reminiscent of Justice John Marshall in Marbury v. Madison, which established the principle of judicial review through a dazzling tour de force of legal reasoning (though Robert’s turgid prose compares most unfavorably to Marshall’s clear writing).
Adding to Roberts’ judicial subtlety is the political context: liberals have generally cheered the decision, ignoring its long-term consequences, because if achieved a substantive result they desired–upholding the ACA. But unlike Justice Marshall, Roberts uses his obviously vast judicial talents to destructive ends, working to undo the Constitutional framework that Marshall helped put into place..”[My paragraphing, in order better to digest these points.]
I think we immediately see that something new is happening here in terms of that concept, ‘judicial review.’ Aspects of the ruling have been agreed to by first one ‘segment’ of the Court, and then the other.
If indeed, as you say, caleb, this is going all the way back to reverse Justice Marshall, and it seems to me the Citizen United case reverses the Bill of Rights – as lefttown would have it, we are now faced with an ‘entire situation’ stemming from the Court’s decision in Bush v. Gore in which citizens of this country are no longer citizens of this country, since first and foremost their sovereign rights have been effectively eroded away.
My last paragraph badly stated what you put so well, caleb. The decision crafted by Roberts doesn’t reverse Marshall’s exposition of judicial review but uses that judicial power to reverse the Constitutional edifice Marshall, and we, hold to be fundamental to our democracy.
It’s a huge point, and thank you for making it.