New York Times Room for Debate: Is the Court being Thoughtful or Partisan?

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

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.

For the full debate with Richard Epstein, Elizabeth Wydra, Ron Christie, Kermit Roosevelt III, James Blumstein, and Ilya Somin, please follow this link:

http://www.nytimes.com/roomfordebate/2012/03/25/on-the-health-care-law-is-the-court-being-thoughtful-or-partisan/activist-judges-with-a-clear-agenda

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Filed under affordable care act, America's Affordable Health Choices Act of 2009, clarence thomas, commerce clause, Department of Health and Human Services v. Florida, Florida v. Department of Health and Human Services, health insurance, insurance, liberty central, Liberty University v. Geitner, National Federation of Independent Businesses v. Sebelius, Thomas More Law Center v. Barack Obama

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