Question for debate:
While a political furor has surrounded the 2010health care overhaul, many have said the legal issues the Supreme Court will consider this week when it hears arguments about the law have never been widely disputed. Congress’s power to regulate interstate commerce, the legal foundation for the law’s requirement that all people get health insurance, has been settled law for 70 years. And no lower appellate court has ruled against the law’s expansion of Medicaid coverage. Yet the court has scheduled three days of arguments of these and other issues.
Are the justices giving due consideration to a complicated legal dispute, or preparing to engage in “judicial activism” to reduce federal power?
Response: Judges With a Clear Agenda
Patricia J. Williams is the James L. Dohr Professor of Law at Columbia University. She writes the column “Diary of a Mad Law Professor,” which appears monthly in The Nation.
UPDATED MARCH 26, 2012, 10:56 AM
In the face of seven decades of precedent, the Supreme Court’s grant of certiori to six cases attacking the constitutionality of the Affordable Care Act is an astonishing display of judicial activism. The decision to do so seems alarmingly consistent with the extremist philosophy of Clarence Thomas, who flatly does not believe in stare decisis. That the federal government’s power to regulate commerce is even being questioned is virtually inexplicable as a legal matter: the law deals with the $2.7 trillion health insurance industry, in a country in which 62 percent of all bankruptcies are occasioned by medical debt.
As political theater, however, the motivation becomes clearer. Clarence Thomas’s wife, Virginia, has been deeply involved in organizing nationwide opposition to the health reform. She even set up her own political action committee, Liberty Central, whose Web site says that the Affordable Care Act “tramples on the Constitution.” The group encourages readers to attend rallies and fund raisers for the plaintiffs in the pending hearings, from which Clarence Thomas refuses to recuse himself.
The claimants in the present cases consist of 26 states’ attorneys general, all but one of them Republicans; the National Federation of Independent Business; the Thomas More Law Center, which touts itself as “Christianity’s answer to the A.C.L.U.”; and Jerry Falwell’s Liberty University, which revoked the status of its Democratic Club in 2009 because “The Democratic Party platform is contrary to the mission of Liberty University and to Christian doctrine.”
Yet it’s puzzling on some level. After all, conservatives rail against “free riders” all the time, so one might have expected them to be supportive of a requirement that people buy into a health care system enabling greater efficiency by cost-spreading. Indeed, the first versions of the Affordable Care Act were hatched by the conservative Heritage Foundation and shepherded into being by Mitt Romney in Massachusetts. So what’s behind the turn of heart? Alas, it goes to yet larger political stakes. Limiting the commerce clause in the fashion pressed by these appellants would also undo the legal grounding for … well, everything: the Social Security Act, unemployment insurance benefits, Medicare, the National Labor Relations Act, the Occupational and Safety Health Act, the Clean Air Act, all federal disaster relief, the Anti-Trust Act, the Equal Pay Act, and all jurisprudence related to public accommodations, including the Civil Rights Act of 1964.
That, in a nutshell, is why Supreme Court validation of the Affordable Care Act will be so important. “Judicial activism” doesn’t begin to describe the havoc if the justices decide otherwise.
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Senator Edward Moore Kennedy
My family’s debt to the Kennedys’ America
Edward Kennedy was one of the ‘north east elite’, but his commitment to fairness and opportunity meant he was loved across the usual divides of class and colour
When I woke up to the news that Senator Ted Kennedy had died, I was taken by surprise; I had been so irrationally certain of merciful miracles. The railing of August cicadas rose shrill and unbearable. My head throbbed. It was a vivid green morning, the air muggy and sad.
It was 10 years ago this summer that John Kennedy Jr’s body was pulled from the sea off the coast of Martha’s Vineyard, the island from where I now write, his ashes returned to the sea days later. I feel a commingled grief; so much promise lost; the end of a legacy.
Flags fly at half-mast. The cardboard signs welcoming Obama to the island are amended to include messages of condolence to the Kennedy family, as well as defiant messages of support for universal healthcare.
There isn’t anyone who grew up in Massachusetts who doesn’t feel personally touched by the life of Kennedy. There’s the family legacy. His maternal grandfather was the amiably colourful mayor of Boston, John Francis Fitzgerald, the child of immigrants and the first Irish Catholic to achieve such power in the then-English – or “Boston Brahmin” – dominated-political landscape of New England.
The election of “Honey Fitz”, as he was known, was significant because this was the Boston of Henry James and the Irish were very much looked down upon. I remember my grandmother describing signs in the windows of certain establishments that read: “No Irish, no coloured, no dogs.”
Years later, when Mayor Fitzgerald’s daughter, Rose, married Joseph Kennedy, the son of a competing Irish politician, Honey Fitz saw to it that his grandsons grew up aiming to break the same barrier at every level of government, even the presidency.
And so they did. This past Thursday, when Senator Kennedy’s funeral cortege wound the 90 miles from the family compound on Cape Cod up to Boston, it made its way through a landscape littered with memorials to his siblings, his parents and his grandparents: Lt Joseph P Kennedy Jr Memorial School; the Kennedy Federal Building; Rose Fitzgerald Kennedy Greenway (which is built over the old John F Fitzgerald expressway); the Robert Kennedy School; the JFK Presidential Library.
The particular struggles of the Irish in Boston is largely forgotten today; indeed, the Kennedys are often characterised as part of “the north east liberal elite”. But the origins of their family success are rooted in a fight that spans all aspects of a broader civil rights movement that stretches back to the 1800s and included not merely African Americans but Irish and Italian immigrants, the descendants of indentured servants, the poor, the labouring classes.
In addition, Mayor Fitzgerald was one of 12 children, only three of whom survived to adulthood, an experience that marked his career by a particular commitment to bringing medical access for all.
It was a legacy that he passed on through the generations. It is no accident, therefore, that his granddaughter Eunice Kennedy Shriver founded the Special Olympics. It is no accident that Edward Kennedy helped pass Medicare and called universal health insurance his “life’s work”.
It is true that the senator’s life history was one of great human complexity. And just as the healthcare debates have been disrupted by an astonishing amount of hateful speech, so the national blogosphere is filled with bitter, ungenerous commentary about the time he cheated on an exam at Harvard; or how he called his political advisers before he called paramedics when his car plunged off a bridge on Martha’s Vineyard, leaving the body of Mary Jo Kopechne, a young campaign aide, submerged for nearly nine hours; or whetherhe drank to excess.
But here in Massachusetts, it is the political commitment that counts. It is his public service that means the most and the regional allegiance to this man crosses all partisan boundaries. The Boston Herald, a local tabloid that spilled oceans of ink denouncing him in life, remembered him with uncharacteristic mistiness.
Virtually all the callers to the normally right-wing, shock-jock local radio stations made tearful testimonials that began: “Although I disagreed with everything he stood for…” and ended with: “They don’t make men like him any more.”
Edward Moore Kennedy was a dogged player at the game of constituent politics. Flawed as he was, he never ever forgot the people with whom he came in contact. When my great aunt died, he sent a large bouquet of flowers. She had worked as a maid at Harvard when he was a student.
She adored him. He was “a good man”, by which she meant that he was a man who treated her – that is, people of colour – with respect. She became a lifelong campaign volunteer for every political race he entered. Yes, in all probability, someone in his office sent the flowers, but at her funeral we all wept harder at the very gesture. Aunt Sophie was no doubt smiling down from heaven, just bursting her buttons with pride.
As I write, President Obama is giving the eulogy at Senator Kennedy’s funeral. To African Americans, Obama is “our Kennedy”. I wept when I discovered that the funeral was to be held at the Basilica of Our Lady of Perpetual Help. Although many in the national press cite the church as one close to the hospital where his daughter Kara was treated for lung cancer, or one that is in a neighbourhood once inhabited by Irish immigrants, it is also in the neighbourhood where I grew up. It is in what most Bostonians know as a black neighbourhood, a “dangerous” neighbourhood, a neighbourhood “in transition”.
These days, it reflects the demographic that both Kennedy and Obama represent: a new generation of the American dream. It is a neighbourhood filled with hopeful immigrants from the Caribbean and West Africa and Bosnia and the Middle East. It is on the cusp of gentrification – a neighbourhood of college students and the underemployed, of medical technicians and starving artists.
There’s a black barbershop next door to the church, and a pizza joint and restaurant that serves Jamaican food. If some reporters were surprised when they set up the satellite feeds, those who knew anything about Ted Kennedy and the tradition from which he came were not.
There was a quote from Tennyson’s Ulysses that Senator Kennedy loved, a quote that he read at his brother Robert’s funeral, and one that is now being read as he is laid to rest: ” I am a part of all that I have met… ” begins the stanza. Senator Edward Kennedy lived his life precisely at the crossroads of all that he encountered – at the intersection of statesmanship, of history, of moral purpose, of tragedy, of compromise.
There are many who think that his passing means the end of an era. When I look at the unparalleled outpouring of those he met, whose world he touched, I am confident that the work he began lives on not only in the politics and presidency of Barack Obama, but in the dreams he ignited in so many, many others.
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Filed under America's Affordable Health Choices Act of 2009, Edward Kennedy, health, political commentary, public service, race, gender, class, ethnicity, ted kennedy