Hanging By A Surgical Thread: NYT Weighs In With Editorial CPR

THAT DOES IT. For those who believe a Times Editorial endorsement is like the kiss of death. But they couldn't very well come out in favor of the Court ruling 'Obamacare' unconstitutional, could they? The Times Editorial makes a point I haven't heard enough of, other than perhaps from Rachel: When will the extremist, activist right wing majority on this Supreme Court ever respect precedent and the limits of its authority to tip the scales of injustice toward consolidation of a ruling corporate oligarchy? The answer: NEVER. Not until one or more of the extremists retires, voluntarily or not, and a re-elected President Obama gets to appoint a justice or two who reflect the centrist-progressive will of the people. The alternative, too horrible to contemplate, is a court which mimics the kangaroo courts of fascist authoritarian regimes of 1930s Europe, codifying injustice, rubber stamping the ruling powers, and rewriting the law in its own image, not the Constitution's, for generations to come.

The Supreme Court’s Momentous Test

In ruling on the constitutionality of requiring most Americans to obtain health insurance, the Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress.

The skepticism in the questions from the conservative justices suggests that they have adopted the language and approach of the insurance mandate’s challengers. But the arguments against the mandate, the core of the health care reform law, willfully reject both the reality of the national health care market and established constitutional principles that have been upheld for generations.

The Obama administration persuasively argues that the mandate is central to solving the crisis in America’s health care system, which leaves 50 million people uninsured and accounts for 17.6 percent of the national economy. The challengers contend that the law is an unlimited — and, therefore, unconstitutional — use of federal authority to force individuals to buy insurance, or pay a penalty.

That view wrongly frames the mechanism created by this law. The insurance mandate is nothing like requiring people to buy broccoli — a comparison Justice Antonin Scalia suggested in his exasperated questioning of Solicitor General Donald Verrilli Jr. Congress has no interest in requiring broccoli purchases because the failure to buy broccoli does not push that cost onto others in the system.

Congress has indisputable authority to regulate national markets and provide for the general welfare through its broad power to tax. Nothing about the mandate falls outside those clearly delineated powers.

In fact, Justice Scalia has, in the recent past, declared Congress’s broad authority under the commerce clause to regulate activities with far less direct economic impact. In a 2005 case upholding a federal law prohibiting the growing of medical marijuana for personal use, he wrote that Congress may regulate even intrastate activities “that do not themselves substantially affect interstate commerce.”

The skepticism of Chief Justice John Roberts Jr. and Justices Scalia and Samuel Alito Jr. was also troubling because it seemed to accept an odd distinction of timing made by the opponents of the law.

Those critics concede that the mandate would be constitutional if it went into effect at the moment an individual actually needed health care. In other words, Congress could require the sick and dying to pay for insurance or for medical services when they show up in the emergency room, but it cannot require precoverage of medical costs through insurance.

The court has no authority under the Constitution to judge the merits or effectiveness of the health care law. That is Congress’s job.

Yet, as Justice Stephen Breyer remarked about the points made by a lawyer for the opponents: “All that sounds like you’re debating the merits of the bill.” To counter the challengers’ claims of alarm over a novel policy, he offered several examples in American history where the court has strongly backed new solutions to major problems, like the creation of a national bank in the early 19th century.

If the Supreme Court hews to established law, the only question it must answer in this case is modest: Did Congress have a rational basis for concluding that the economic effects of a broken health care system warranted a national solution? The answer is incontrovertibly yes.