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Friday, June 29, 2012

A Corrupt Court Part II

All things considered, Thursday was almost a tolerable day for the Supreme Court. It doesn't change my opinion about the court, but it does leave me appreciating the intelligence of Judge Roberts, who wrote an opinion upholding the constitutionality of the Affordable Care Act, despite his feeling that it is bad policy. And indeed his decision left this open for readjudication, if and when someone actually pays the parts of the act that refer to revenues. His reason for not ruling those parts invalid was:
The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that thosesubject to a tax must first pay it and then sue for a refund.
So he left it open that this could be re-adjudicated later. He also left it open that the individual mandate could be re-adjudicated later as well:
CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.
He states:
The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.
So prohibiting the purchase of Marijuana is a valid regulation of interstate commerce, but ordering folks to purchase insurance is not valid? Despite the fact that George Washington ordered males to buy muskets and join a militia, or that the Government required Seamen to buy insurance, during the Washington/Adams terms. Ginsberg's dissent notes:
In 1790, the very first Congress — which incidentally included 20 framers — passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.
So, I'm not happy with Roberts decision, but I love the concurrence and partial dissent:
The Framers understood that the “general Interests of the Union” would change over time, in ways they could not anticipate. Accordingly, they recognized that the Constitution was of necessity a “great outlin[e],” not a detailed blueprint, see McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), and that its provisions included broad concepts, to be “explained by the context or by the facts of the case,”Letter from James Madison to N. P. Trist (Dec. 1831), in 9Writings of James Madison 471, 475 (G. Hunt ed. 1910).“Nothing . . . can be more fallacious,” Alexander Hamilton emphasized, “than to infer the extent of any power, proper to be lodged in the national government, from . . . its immediate necessities. There ought to be a CAPACITY to provide for future contingencies[,] as they may happen;and as these are illimitable in their nature, it is impossible safely to limit that capacity.” The Federalist No. 34, pp. 205, 206 (John Harvard Library ed. 2009). See also McCulloch, 4 Wheat., at 415 (The Necessary and Proper Clause is lodged “in a constitution[,] intended to endurefor ages to come, and consequently, to be adapted to the various crises of human affairs.”).
As usual it is the so-called "conservatives" who are being activists:
Rather than evaluating the constitutionality of theminimum coverage provision in the manner established byour precedents, THE CHIEF JUSTICE relies on a newlyminted constitutional doctrine. The commerce power does not, THE CHIEF JUSTICE announces, permit Congressto “compe[l] individuals to become active in commerceby purchasing a product.” Ante, at 20 (emphasis deleted).
And she quotes Raiche, where the Same judges criticizing the Affordable Care Act, insisted on the Government having the right to raid Medical Marijuana even when legal in the State where the raid occurs. Finally she seems rather grateful that despite the Chief Justices fabrications and innovations they can agree with him:
For the reasons stated, I agree with THE CHIEF JUSTICE that, as to the validity of the minimum coverage provision, the judgment of the Court of Appeals for the EleventhCircuit should be reversed. In my view, the provision en- counters no constitutional obstruction. Further, I would uphold the Eleventh Circuit’s decision that the Medicaid expansion is within Congress’ spending power.
So we breathe a sigh of relief. But we still need to do something about these activist and oligarchic judges.
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