With a decision on the Affordable Care Act’s mandate looming, Chief Justice John Roberts has a rare opportunity. He has the ability to uphold the individual mandate as constitutional while breaking from his obviously politically motivated peers on the right wing side of the bench. In doing so he would virtually guarantee historical legitimacy to his tenure as Chief Justice. If he decides to side with Justices Alito, Scalia, Thomas, and in all likelihood Kennedy, he will delegitimize the court by overreaching the court’s authority of strinking down only clearly unconstitutional statutory law. The court must as a matter of course begin any deliberation with the assumption that a properly passed congressional act is constitutional. If the court does in fact determine that a law is to be struck down, it must do so using clear and unquestionably sound legal reasoning. The court simply can not meet this standard in this case.
While it is true that Chief Justice Roberts owes his very career to those now seeking to invalidate specific provisions–if not the entirety–of Obamacare, his legacy as Chief Justice of the most respected and powerful court in modern history also hangs in the balance. He must certainly be cognizant of the depth of the consequences his decision will have, exclusive of any of the practical affects his decision will have on the health insurance and health care markets.
Justices Scalia and Thomas cemented their legacy as tools of the right wing long ago, and quite frankly I would bet that they welcome that reality. But this isn’t the Scalia Court, it is the Robert’s Court, and even if Justice Kennedy removes the burden of ultimate adjudication in this matter from him, a decision of no less gravity for his legacy will be required.
Talking Points Memo has further analysis here.
In listening to the questions directed at Solicitor General Verrilli yesterday with regard to the Affordable Care Act and its individual mandate I was shocked by a comment made by Justice Scalia. He essentially intimated that the governmental mandate upon emergency rooms to provide basic care to individuals regardless of their ability to pay has itself created the very problem of those with insurance subsidizing those who do not. I could not help but take his view as entirely fundamental. Of course, I exclaimed loudly! If we do not require any medical facility to offer free care, nor force insurance companies to offer policies to those with pre-existing conditions, unhealthy lifestyles, or genetic propensity for disease, the insurance market would be clear and fair. Obviously one must set aside the long-standing principle of the medical professions to treat those suffering pain, regardless of socioeconomic status in order to reach this conclusion, but who really believes that physicians take this principle all that seriously anymore? I mean really, the new BMW 7-Series just hit showrooms after all.
Each one of us should sit down today and write Justice Scalia a sincere thank you note for his clarity on this matter. If you do not have any money, you do not get any care. It really is that simple after all. Health care, like Coca-Cola, automobiles, boysenberries, or playing cards is no different from any other commercial product, and we do not as a society go around expecting free Coke and cars. My only hope is that somehow Justice Scalia can somehow bring about the disbanding of Medicare, Medicaid and the Veterans Administration facilities. Most notably the free health care for veterans. I mean really, we as a society actually pay them! They pay nothing at all. Why are they getting free health care? No one should ever be forced to pay for anyone else’s products or services. If you are shot, mosey on down to the Walgreen’s and pick up a sewing kit. If you get old, find a nice warm place to rest while you slowly die of some degenerative disease otherwise easily arrested by modern treatments. We will all be better off.
JUSTICE SCALIA: It’s a self-created problem.
GENERAL VERRILLI: — to say that Congress cannot solve the problem through standard economic regulation, and that — and I do not think that can be the premise of our understanding of the Commerce Clause.
JUSTICE SCALIA: Whatever -
Here here Justice Scalia, whatever indeed.