Monday, March 26, 2012

All It Takes Is Five Votes

This Slate essay by Dahlia Lithwick previewing this week's Supreme Court argument on the health care sums up my fears perfectly:
The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument.


So that brings us to the really interesting question: Will the Court’s five conservatives strike it down regardless?
If you look at the legal precedents, the case for the constitutionality of the Affordable Care Act is close to open-and-shut. The idea that the ACA's regulation of the "inactivity" is a novel and unconstitutional use of the federal government's power under the Commerce Clause doesn't really pass the smell test. But when has that stopped the courts conservative Justices when they really wanted to do something? The Justices and Court clerks have tremendous ability to use the tools of legal reasoning to achieve a desired result; they just choose to exercise that ability sparingly. You see their talents on display most clearly in the abortion cases that have reached the post-O'Connor Court, but arguably one can see it in Parents Involved and other contentious decisions. And the stakes here are high enough that the Justices will almost certainly be influenced by the political atmosphere surrounding the case.

Another way to put this is that after Bush v. Gore, I'll believe anything.

5 comments:

Neil Sinhababu said...

My guess is: ACA survives 5-4, with Kennedy being the swing vote. But really, I'm caught between trying not to think about this and feeling kind of sick already.

Nicholas Beaudrot said...

I think it will either be 5-4 against or something like 6-3 or 7-2 for. If, for instance, Scalia believes his own precedents, it's pretty clearly constitutional. There's a passage in Gonzalez v Raich where he talks about the fact that homegrown not-sold marijuana is never more than an instant away from the commercial marketplace, and so it's within Congress's power to enact a ban on possession and not just sale. Well, the same can be said about an individual without health insurance!

So either it's a purely political decision and it's 5-4 against, or it's and it's 7-2 or 6-3 for, with the likelihood of dissenting going Thomas, Alito, Roberts, and Scalia, in that order.

Outsource Data Entry said...

* A tremendous amount of the shouting has tried to convince people that this is "too complicated" and so we should throw up our hands and give up.

suzuki fairings said...

There's a passage in Gonzalez v Raich where he talks about the fact that homegrown not-sold marijuana is never more than an instant away from the commercial marketplace.

Outsourcing Typing Services said...

There's a passage in Gonzalez v Raich where he talks about the fact that homegrown not-sold marijuana is never more than an instant away from the commercial marketplace, and so it's within Congress's power to enact a ban on possession and not just sale.