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So Far Health Care Rulings Are Disturbingly Predictable

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Posted on Dec 16, 2010

By Ruth Marcus

I’m hoping for the moment when a federal judge picked by a Democratic president strikes down the health care law. Or when a Republican-appointed judge upholds it.

Either way. Because the current lineup of decisions, in which two Democratic-nominated judges have ruled in favor of the law, one Republican against, is not healthy for the judiciary or the democratic process.

It is facile to think of judges as umpires robotically calling balls and strikes. But it is also dangerous to think of judges as players on a particular team, still wearing uniforms under their robes.

The reality is more complex. Judges come to the bench with particular understandings of the role of courts and the reach of the Constitution. Democratic presidents tend to pick judges with a more expansive understanding of constitutional provisions and a broader conception of the federal government’s role. Republican presidents tend the opposite way.

And let’s not kid ourselves, getting to be a federal judge is in part a political exercise. It is the rare judicial nominee who arrives on the bench with no connection to the world of politics.

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So two phenomena coexist in inevitable tension with each other:

On the one hand, it would be surprising if the judicial tally so far had come out in a different direction on the constitutionality of the individual mandate. A judge nominated by a Democratic president is more likely than a Republican nominee to view the Commerce Clause as giving the federal government broad regulatory powers. Especially in a case like this, where the constitutional sketchbook has not been completely filled in by the Supreme Court, judges make choices reflecting these differing conceptions.

At the same time, it would be disturbing if judges were to automatically rule—or if the public were to assume that judges automatically rule—for their team. I happen to believe that the individual mandate passes constitutional muster but I also believe a credible argument can be made the other way.

Partisans on both sides view the situation through a more conspiratorial lens. Consider the statement issued by Nan Aron of the liberal Alliance for Justice after Monday’s ruling finding the individual mandate unconstitutional: “If anyone needed proof that judges matter and that the current battle in the Senate over judicial nominations is a fight worth having, they need look no farther than today’s ruling by Judge Henry Hudson, a former conservative Republican politician from Virginia, on a lawsuit filed by a current conservative Republican politician from Virginia, state Attorney General Kenneth T. Cuccinelli.”

I agree with the first half of this sentence—judges, and nomination battles, matter—but dissent from the cynical reductionism of the second. Hudson’s ruling was wrong but he was hardly doing Cuccinelli’s bidding. In fact, he declined the Virginia attorney general’s request to strike down the law in its entirety. 

Some judges, even some federal judges, are partisan hacks. Yet judges ought to be afforded the presumption of non-hackery—at least until proved otherwise. Which is why I think it was a mistake for Hudson to retain an ownership stake, valued at between $15,000 and $50,000, in a Republican political consulting firm, Campaign Solutions. Even worse, Cuccinelli has been a client of Campaign Solutions.

Note to Judge Hudson: Going on the bench means cutting ties with the team.

A point, by the way, that Justice Antonin Scalia might also consider. Scalia has accepted an invitation from Minnesota Republican Rep. Michele Bachmann to address the conservative Tea Party Caucus next month.

This is a terrible idea. Justices frequently address groups with ideological viewpoints—the conservative Federalist Society, the liberal American Constitution Society. I have no particular problem with such appearances, although it would be wise for justices not to limit themselves to organizations on a single side of the spectrum.

But there is a difference between ideological and partisan. Justices don’t belong at partisan gatherings, period. One illustration of why is the uncomfortable fact that Bachmann has filed a friend of the court brief arguing that the health care law is unconstitutional. 

That issue is headed, inevitably, for the high court, where, I suspect, Scalia will share Bachmann’s assessment. The justice’s tea party excursion fuels unfortunate suspicions that his vote, if it turns out that way, will be driven by partisanship. Because the truth, I think, would be less sinister: His understanding of the Constitution is flawed.

Ruth Marcus’ e-mail address is marcusr(at symbol)washpost.com.

© 2010, Washington Post Writers Group


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MarthaA's avatar

By MarthaA, December 20, 2010 at 6:40 pm Link to this comment

It is difficult to separate the liberals from the conservatives, but all Republicans are conservatives, because they will not allow a liberal that represents the greater populace to even be in their midst, but run them out as soon as they find out how they vote.  If they will not get into lock step with the conservatives, then they are black balled.

It would be far better if only liberals that represent a liberal agenda of the common populace were on the left side of the aisle in Congress, since all on the right are conservatives representing big business, big corporations, big insurance, big banks and the elite capitalists, but that would be less confusing and the 70% majority populace would be readily able to see that they are not being represented at all in the making and enforcing of legislated law and order.

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David J. Cyr's avatar

By David J. Cyr, December 20, 2010 at 11:03 am Link to this comment

QUOTE (Ruth Marcus):

“It is facile to think of judges as umpires robotically calling balls and strikes. But it is also dangerous to think of judges as players on a particular team, still wearing uniforms under their robes.”
____________

While they provide the appearance of difference sensibilities, all of the (R) & (D) judges are on the same team together.

Judges use the laws of the corporate state to Constitutionally punish those least criminal, while protecting those who are most criminal.

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Anarcissie's avatar

By Anarcissie, December 19, 2010 at 4:48 pm Link to this comment

You’re forgetting that the Democratic Party is heavily dependent on the medical industry and Wall Street for its money (as are the Republicans).  No bill was going to pass which did not seem profitable to them.

Reid, Obama and so on are politicians.  As long was the people put their votes where the money is, the politicians are going to follow or be out of work.

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By Inherit The Wind, December 19, 2010 at 1:46 pm Link to this comment

However, the Constitution is pretty much a dead letter in many areas.  I don’t know if this is a good thing; I think we’re going to miss stuff like the Bill of Rights.  Ironically, Single Payer could have easily been written up in an impeccably Constitutional law.
*********************

Yeah, if Reid had the stones to stifle Baucus, Nelson and the other DINOs.

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Anarcissie's avatar

By Anarcissie, December 19, 2010 at 9:33 am Link to this comment

ITW—a great many Constitutional objections were raised to Social Security.  The text of the legislation tries hard to avoid the idea of insurance and focuses on tax.  Unemployment insurance is administered through the states, which have more power in such matters than the Federal government.  The power to compel one private party to do business with another simply doesn’t exist for Congress under any rational interpretation of the text of the Constitution. 

However, the Constitution is pretty much a dead letter in many areas.  I don’t know if this is a good thing; I think we’re going to miss stuff like the Bill of Rights.  Ironically, Single Payer could have easily been written up in an impeccably Constitutional law.

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Anarcissie's avatar

By Anarcissie, December 19, 2010 at 9:17 am Link to this comment

The Commerce Clause has been distorted to cover crops grown exclusively for one’s own private use and in no way entering into interstate commerce or transport, so it can probably be distorted to cover anything including breathing.  The question will come down to whether the HCA benefits the medical industry and Wall Street or not.  I’m guessing they are okay with it and the Republican opposition is a sham.

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By Inherit The Wind, December 19, 2010 at 9:14 am Link to this comment

Gee, I’m forced to buy retirement insurance in every paycheck.  It’s called “Social Security”.
And I’m forced to buy unemployment insurance in every paycheck.
And I’m forced to buy disability insurance in every paycheck.
Plus, if I want to earn a living or be able to get to a grocery store and don’t live in a city with serious public transport, I am forced to buy auto insurance to be able to drive a car.  FORCED, under penalty of potential jail time if I don’t.

Nobody “patriotically” raises Constitutional objections to all these similar “outrages”

Yet, somehow, being forced to buy health insurance is “horrible”, “Unconstitutional”, “Socialist”...all loudly trumpeted by ads funded by…health insurance providers!

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MarthaA's avatar

By MarthaA, December 18, 2010 at 10:31 pm Link to this comment

It may be dangerous to think of judges as being on particular teams, but they are, as I noticed a few years ago on the ballot that all judges were Republicans, there was no Democrats whatsoever on the ballot for judges. 

Therefore, all the judges were Republican.  I questioned the Election Board as to why they were all Republican, then in the next election all judges affiliation was completely dropped from the ballot, so there was no way of knowing if any Democrats ever got in.

Since all Republicans are Conservative and many Democrats are Conservative, it is difficult to find a difference, but there are Democratic Liberals, therefore it is significant to have their political designation made known. 

The solution is not for judges to no longer publicly claim their political affiliation, so that the public won’t be able to balance conservatism and liberalism in the courts, since there is a Republican Team and a Democratic Team even though neither are working in the best interest of the Populace Team that have no representation in legislated law and order; [I spell populace with an ‘ace’ instead of an “ous” because populace has the proper meaning as ‘ace’, rather than ‘ous’.]  The Populace Team has a better chance with Liberal judges.

As long as judges do not show their political affiliation, I vote them all out, because as long as judges are ashamed of their political affiliation, they do not deserve to be judges, and everyone should do the same.

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By NABNYC, December 18, 2010 at 9:47 pm Link to this comment

The courts are packed with Federalist Society Republican ideologues, no doubt, and they favor corporations and the rich over the rest of us, and they are corrupt in every ruling they hand down.  But that doesn’t mean they are always wrong.

In this case, the judge is right.

There is nothing in the commerce clause that can be reasonably construed, or any other constitutional grant of authority, which would allow the federal government to compel citizens to purchase a product or service from a for-profit business which sets its own fees.  Just think about the implications of that policy by Obama, and how far it is likely to be stretched in coming years.

For example, can the federal government compel citizens to buy software from connected education software companies, at $1,000 per child, for each year of a child’s education?  2 kids, $24,000 paid to some useless corporate insider who would kick back a percentage to the politicians?  The theory would be essentially the same:  education (health care) is important for our future (commerce), and the only way we can afford to educate (provide healthcare to) everyone is to compel the citizens to pay for a part of it. 

The truth is that education and healthcare both are fundamental rights and should be provided to all citizens free of charge, and paid for out of the general income tax revenues.  Each citizen should be entitled to full medical (and dental), just as each citizen is entitled to 12 years of education at no direct cost to the citizens.

What this policy by Obama is doing is simply furthering the goals of privatization of basic government services.  All of our tax money is stolen and given to millionaires in tax cuts, used for corporate subsidies, and war.  So now they want the working people to begin paying out of pocket for basic services that should be provided by the government.  This is just a sneaky way to push through privatization of everything.  We should oppose it.

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Anarcissie's avatar

By Anarcissie, December 18, 2010 at 11:49 am Link to this comment

Class is war, but the helots don’t seem to be fighting back much these days.

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By jrundin, December 18, 2010 at 7:44 am Link to this comment

Ruth, there’s a class war going on in this country. It’s been accelerating for the last few decades. The oligarchs, (with whom, I think, your own interests and those of your well-paid husband are linked), so far appear to be winning. When you call for bipartisanship and for austerity in such an environment, as you are wont to, you are taking the side of the oligarchs.

There’ll be no kumbayah moments for quite a while now, as much as you might want them.

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By Kath Cantarella, December 18, 2010 at 5:46 am Link to this comment
(Unregistered commenter)

Re BBQ:

I don’t know about the twists and turns of the commerce clause, which I believe is the reason the bill was held unconstitutional, but the taxation power covers it anyway, IMO.

From Dorf: “...the individual mandate could alternatively be upheld as a valid exercise of the Article I power to “lay and collect taxes, duties, imposts and excises,” as bolstered by the Sixteenth Amendment’s authorization of an income tax. After all, in most versions of the individual mandate, Americans are not literally required to purchase health insurance: Instead, they are told to pay a tax from which they can be exempted if they have health insurance.

To be sure, as Casey and Rivkin observe, a 1922 case, Bailey v. Drexel Furniture Co., holds that Congress may not use taxation as a pretext for accomplishing a regulatory objective that it could not accomplish directly. But subsequent cases upholding “occupational taxes” on businesses that Congress clearly intended to discourage, have made clear that a tax that serves a revenue-raising purpose is not invalid simply because it also serves a regulatory purpose. And there is no doubt that the tax on uninsured income earners would serve a valid revenue-raising purpose—namely, to defray the costs of subsidizing health insurance for those who could not otherwise afford it.

Thus, even if Congress lacked the power to adopt the individual mandate under the Commerce Clause, the taxing power would separately authorize a properly-worded tax on the uninsured, despite its regulatory impact.”

I’m not from or in the US, I just find it interesting from a legal standpoint. But you shouldn’t be so ready to call your fellow citizens dumb because they don’t agree with you.

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By Kath Cantarella, December 18, 2010 at 3:36 am Link to this comment
(Unregistered commenter)

re: BBQ
This guy knows a lot more than I do and his assessment includes the opposing arguments:

http://writ.news.findlaw.com/dorf/20091021.html
http://writ.news.findlaw.com/dorf/20091102.html

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By hark, December 18, 2010 at 1:09 am Link to this comment
(Unregistered commenter)

Everyone has some form of health care, regardless of whether they carry insurance or not.  Emergency room care is one example.  No one can be denied this, regardless of their circumstances.

There is no mandate to buy health insurance from the private sector.  But there is a tax on those who don’t, to offset the cost of care they have implicitly.

This is a trumped up issue.  It’s about time we taxed the freeloaders, and that they paid their fair share.

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By Kath Cantarella, December 18, 2010 at 12:29 am Link to this comment
(Unregistered commenter)

Re BBQ: Where do I fit in? I’m just some dumbed down foreign chick with no agenda whatsoever. However, I’m a law student and I have spent a bit of time reading the relevant US laws, and you probably haven’t.
I don’t give a toss if you think I’m the Anti-christ or Obama’s pet monkey, so insult me as much as you like.

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Anarcissie's avatar

By Anarcissie, December 17, 2010 at 6:33 pm Link to this comment

I’d guess the HCA will get through the SC just fine, because of the mandates, assuming the Heath Care industry and Wall Street want them.  Although they may be Constitutionally dubious, they were effectively a bribe to the industry which was the crux of getting the Act through the very well paid-off Congress.  The rest of the drama should entail a lot of mindless polemic in which the Republicans claim to be fighting against the Act tooth and nail, followed by a 5-4 Supreme Court decision in its favor and general forgetfulness.  In short, you’re being played, as usual.

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By ocjim, December 17, 2010 at 4:33 pm Link to this comment

Hudson’s ruling was wrong but he was hardly doing Cuccinelli’s bidding. In fact, he declined the Virginia attorney general’s request to strike down the law in its entirety. 

Hudson should be impeached because he didn’t recuse himself, being compromised by connect to businesses that profited from his ruling.

But he believes in the tooth fairy so that’s alright.

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BarbieQue's avatar

By BarbieQue, December 17, 2010 at 3:32 pm Link to this comment

Sure Kath!

The Feds have mandated that Citizens purchase stuff all the time! It’s easy to name hundreds of times, just list one.

As for the rest of your post, it’s an example of how dumbed down most of the populace has become.

If you’re against the Feds mandating purchases from for profit companies then you’re for spending a trillion dollars invading foreign lands 8000 miles away.

Many in this country deserve to be ruled by despicable lying thieving slugs who wouldn’t know honor and integrity if they were shoved up their collective arses.

Where do you fit in?

(“just another form of tax revenue”= paying wellpoints ceo salary for 24 minutes with 1/2 year of your hard work-that’s where. If you’re a “democrat” you were tricked into supporting a republican wet dream. People should feel sorry for the likes of you)

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By ray, December 17, 2010 at 2:27 pm Link to this comment
(Unregistered commenter)

Obama showed & what a disappointment- a nice comfort zone & screw the masses who campaigned, donated, & voted for his presidential bid. What a let down! His fight for single payer option in the health care bill show the harm Americans bought into accepting O at face value.
Obama is a boy w/ foolish notions, not a seasoned veteran which America desperately needs in these crucial times but O’s over-sized ears are full of wax or he just doesn’t give a shit for the common people.
Obama has turned the Afro American race back 20 years in hate & disgust.

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Anarcissie's avatar

By Anarcissie, December 17, 2010 at 1:23 pm Link to this comment

It was my impression that the HCA was not faring well in the courts.  It is pretty obvious that the mandates represent a considerable extension of Federal power well beyond even such dubious cases as Gonzales, and consequently the controversy will go to the SC.  In fact, it would save a lot of time if they would take it there right now.

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By Kath Cantarella, December 17, 2010 at 11:59 am Link to this comment
(Unregistered commenter)

Re BBQ:

The healthcare bill is constitutional because it is just another form of tax revenue - one they can’t waste on anything else but ‘healthcare’. Maybe you should have have similar targeted tax-revenue bills for necessary things like education and infrastructure, which would cut the amount of income-tax that is squandered on pork-barrelling and military build-up for unprovoked wars. Something to think about.

However I no longer care.

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By Kath Cantarella, December 17, 2010 at 11:07 am Link to this comment
(Unregistered commenter)

I have been reading a lot of recent US cases lately, and I agree that your judiciary is no longer independent of government. Ihat means it is essentially useless. As it is one of the indispensible pillars of democracy, it is obvious that you no longer have a democracy, but some kind of oligarchy run by the richest families in the nation.
Oh, and that healthcare bill is not unconstitutional. That is like saying every US citizen has a constitutional right to get sick without having the money to pay massive corporations for the purposefully jacked-up price of healthcare in your country. The size and power of those corporations is one of the things the spirit of the Constitution was supposed to prevent.
But you know what is unconstitutional by the letter of the law? A government-controlled judiciary.

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BarbieQue's avatar

By BarbieQue, December 17, 2010 at 9:34 am Link to this comment

Reading Marcus column, I realized how easy it would be to fix homelessness!

How has this not been thought of before? Our elected representatives are, after all, mostly brilliant. Aren’t they.

Mandate that everyone buy a house!

And now that I let my mind wander a bit, I’m beginning to imagine how our “leaders” could fix a multitude of issues.

GM in trouble again? Next year, (maybe under a (R) to make it fair) Everyone could be mandated to buy a Chevy!

OMG!

And why would anyone go hungry when they could be fined by the IRS for not buying the proper amount of food! And why stop there? Kraft overextended in derivatives and needs a bailout? Just require proofs of purchase of cheese with your 2015 1040! If you don’t buy cheese and help rescue the needy, you should be harassed anyway. Don’t you agree?

DO YOU SEE WHAT I SEE HERE!

It’s over. All problems can be over. With a few votes! It’s so simple I’m beginning to wonder why the Feds haven’t required us peons to buy stuff before. Sheesh.

I’m so excited with my new found answer to everything I’m going off to some more Poli-Forums to spread the word.

Thank YOU Ruthie!

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