You Hold the Power in Your Vote

Armando writing for Daily Kos has an intriguing article about the Supreme Court decision regarding The Affordable Care Act (ACA) which was written by Justice Roberts.  Armando lays the premise that this decision sets forth the long term goals of Roberts and lays a foundation by the Court which will be the basis to restrict progressive values and undue the principles of the New Deal.

Many pundits and politicians were surprised that Roberts joined the four Justices who he generally disagrees with in order the author this opinion.  Unfortunately, the issue and the Court have been divided into two opposing views, either conservative or liberal. Of course the Supreme Court is suppose to be apolitical.  The rulings of the Court are to be based on the precedence of the Court which stems from the interpretation of the Constitution.   As Armando discovers, Roberts recognized prior decisions regarding the Necessary and Proper Clause paired with the Commerce Clause, while at the same time ignoring precedence.  That's right, he just ignored it!

So what does this mean?  It means that Roberts has laid the foundation to reinterpret the Supreme Court's prior decisions without overturning any decisions.  This will allow the Court to change progressive laws and principles merely by having a very conservative activist Supreme Court  rule in the majority.

John Roberts is a very clever man. Of course, he is incredibly gifted intellectually (easily the most intelligent of the conservative justices). But that does not always translate into cleverness.... He is a radical incrementalist, using the language of judicial minimalism to build, precedent by precedent, the structure to achieve, over time, what incendiary radical extreme conservatives want to achieve: the undoing of the New Deal. 

John Roberts is a very clever man. Of course, he is incredibly gifted intellectually (easily the most intelligent of the conservative justices). But that does not always translate into cleverness. But the chief justice is different from his fellow conservative travelers on the Court. He knows that open proclamations of fealty to the Constitution in Exile and to a return to the Lochner Era will never be accepted in one fell swoop. He is a radical incrementalist, using the language of judicial minimalism to build, precedent by precedent, the structure to achieve, over time, what incendiary radical extreme conservatives want to achieve: the undoing of the New Deal. 

In the ACA decision (PDF), the chief justice struck two blows against progressive values: (1) he gained five votes for a theory of limitation of federal power under the Commerce Clause and the Necessary and Proper Clause of the Constitution; and (2) he gained seven votes (two of them quite shocking, from Justices Breyer and Kagan) for the novel proposition that states have a constitutional right to federal funding from existing programs without condition (or "coercion" as the Court termed it) of the federal government.

In my post A dark cloud on this sunny day: Roberts Court embraces Constitution in Exile, I argued that the rule regarding the Necessary and Proper power expressed by the chief justice and agreed to by the other four conservative justices presented a radical change to our understanding of the Necessary and Proper power. The chief justice presents this change, as he so often does, as no change at all. He presents his de facto overturning of precedent (including the overturn of McCulloch v. Maryland, Chief Justice John Marshall's seminal opinion regarding the Necessary and Proper power), as fidelity to precedent. It is not.

Compare Chief Justice Roberts' formulation with that of Chief Justice Marshall. Roberts wrote:

[T]he individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. For example, we have upheld provisions permitting continued confinement of those already in federal custody when they could not be safely released, Comstock, supra, at _ (slip op., at 1–2); criminalizing bribes involving organizations receiving federal funds, Sabri v. United States, 541 U. S. 600, 602, 605 (2004); and tolling state statutes of limitations while cases are pending in federal court, Jinks v. Richland County, 538 U. S. 456, 459, 462 (2003). The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power. [Emphasis supplied.]

Of course, the chief justice's statement that "the individual mandate vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power" is blatantly false. The Affordable Care Act is not a bootstrap from the individual mandate. In fact, the opposite is true: The individual mandate was enacted solely because in Congress' judgment, the Affordable Care Act could only be effective if a mechanism such as the individual mandate was included in it. In other words, it was a classic example of congressional use of its Necessary and Proper power. As the chief justice puts it, "exercise[] of authority derivative of, and in service to, a granted power." Regulation of the health care and health insurance market is undoubtedly valid under the Commerce Clause. The individual mandate is undoubtedly a valid exercise of the Necessary and Proper power to make effective the Affordable Care Act. 

In McCulloch, Chief Justice Marshall stated:

If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.

Chief Justice Roberts' ACA ruling on the Necessary and Proper power cannot be harmonized with McCulloch. But he did not overrule McCulloch. Indeed, the chief justice claims fealty to McCulloch. As I say, Chief Justice Roberts is a clever man.

Yes, Chief Justice Roberts is a very clever man. And he is, to use the common parlance, playing "the long game." Today, the chief justice is hailed as a man of moderation, a pragmatic man, not the ideologue of the likes of Justices Thomas and Scalia. And this is what makes him the most dangerous threat to our progressive values. In the coming terms, when the chief justice shepherds the overturning of affirmative action and declares the Voting Rights Act unconstitutional, we will be reminded that the chief justice is a moderate, pragmatic minimalist by the usual suspects.

And we will look back at the cherished progressive values now under threat and wonder what happened. Unless we fight. We must also consider how the chief justice threatens the ability of the Congress to enact progressive solutions to our current and future problems.
In her dissent in the ACA case, Justice Ginsburg wrote:

Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion

Why indeed? Because the conservative project is to undo the New Deal. It is to impose severe restrictions on the ability of the national government to implement progressive solutions to our national problems. Climate change? The federal government may not be able to do anything about that. Income inequality? Could be a local problem. The progressive project understands how important it is that the national government can act to address our problems. The conservative project is hell bent on defeating this vision. Chief Justice Roberts is playing the long game to undermine the progressive project. To undermine the vision President Franklin Delano Roosevelt outlined in his 1937 Constitution Day speech:

In these days when the undemocratic concentration of economic power has brought with it a corresponding concentration of legal ability against the democratic purposes of the Constitution, only the utmost vigilance and the utmost willingness to fight for our Constitutional heritage will guarantee its continuance. 

Furthermore, a democracy cannot help counting, and seeking ways and means to avoid for the future, the terrible cost at which its ultimate triumphs have had to be achieved. […] We know that it takes time to adjust government to the needs of society and that deliberation upon the remedy is indispensable to wise reform. We also know that government must keep pace with changes in circumstances substantially as the changes occur. […] 

These unwarranted delays in the accommodation of the government of today to the needs of today have not been due, I cannot too often repeat, to any language that the Fathers used in the Constitution to bind their successors. […]
I know and every lawyer knows that you will find nothing in our Constitution which forbids the national government to do any of these things. They have been forbidden or jeopardized, not because of anything the Constitution says but because men with axes to grind have chosen to put their lawyers' own notions of policy upon the silence or the vagueness of the Constitution. [Emphasis supplied.]

Chief Justice Roberts is their man for our age. He is the man for those with "axes to grind" against progressive values. 

How can he be defeated? By denying him the votes necessary on the Supreme Court to enact his pernicious project. This is done by reelecting President Barack Obama and electing future Democratic presidents. There are no other options.

This is the most important progressive project of this election and future presidential elections.

Defeat the conservative activist Supreme Court by voting.  VOTE for Barack Obama, 2012!!!! 

Your vote will effect history for years!

Doomsday Republicans

 

GOP Tea Party politicians and pundits came out swiftly to comment on the Supreme Court's 5 to 4 ruling to uphold The Affordable Health Care for America Act.  The following comments are examples of fear mongering, outright lies, misrepresentations and generally a lack of comprehension regarding the Constitution and the reality of the Act.

Rep. Mike Pence (R-IN) compares Supreme Court ruling to 9/11

"Because really, isn't it pretty difficult to tell the difference between a horrific terrorist attack and a law saying that maybe people with preexisting health conditions ought to be allowed access to our health care system too?"

Sen. Rand Paul Reacts to SCOTUS Ruling on Obamacare

“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional." 

Rick Santorum Comments on Supreme Court Obamacare Ruling

"President Obama believes he is above the law, entitled to abusing his power to get what he wants, and willing to violate the constitution and the oath he was sworn to uphold. He has proven to be a very dangerous person to have this kind of power, and if he is not stopped this November, I am fearful that the make-up of this country as established by our founders will never be the same."

Mitt Romney’s Response to Supreme Court Decision

"What the court id not do on its last day in session, I will do on my first day if elected president of the United States.  And that is I will act to repeal Obamacare."

Setting the Record Straight 

To set the record straight, Mike Pence's comments were deliberately stoked in fear mongering and misrepresentations.  He eventually apologized.  According to Politico: "at the time he was just in a blind, half-mad rage, and whenever Republicans are mad about something it's exactly like 9/11. Every. Damn. Time."  Pence told POLITICO:

"My remarks at the Republican Conference following the Supreme Court decision were thoughtless. I certainly did not intend to minimize any tragedy our nation has faced and I apologize."  

Rand Paul's comments are based in a total lack of understanding of the judicial system  and the precedent regarding the rulings by the Supreme Court.  He is absolutely WRONG!


Rick Santorum's comment is is vitriolic, based on innuendo and fear and completely WRONG. Our government in based on the separation of powers.  The decision of the Supreme Court has no bearing on the President's actions.  He is stoking the fires of fear and ignorance.


Mitt Romney went on to profess the affects of the Affordable Health Act and continue to spew his lies and misrepresentations.  Here are the reasons Mitt wants to repeal the Act and the truth about his statements:

~  Obamacare raises taxes on the American people by approximately $500 billion. Obamacare cuts Medicare - cuts Medicare by approximately $500 billion. INNACURATE...

~ “Obamacare adds trillions to our deficit and national debt.” This is total fear-mongering.

~ Romney’s talking points have been debunked numerous times and found false. The CBO finds that the ACA is going to reduce the deficit, not add to it. Furthermore:

The key to this claim is the fact that the health care law does not take $500 billion out of the current Medicare budget. Rather, the bill attempts to slow the program’s future growth, curtailing just over $500 billion in future spending increases over the next 10 years.

Also, it ends the Medicare Advantage program, which cost the government a huge amount of money with few benefits. Likewise, the law doesn’t add “trillions to our deficits.”  By most accounts, the law reduces the deficit over the next decade and works to reduce the overall rate of health care spending by the federal government.

~ Obamacare also means that for up to 20 million Americans, they will lose the insurance they currently have, the insurance that they like and they want to keep. This assertion is a LIE! Under the law, you can maintain your current health insurance if you like it.

~ Along with Romney other politicians including Speaker of the House John Boehner and Rep. Eric Cantor have echoed Romney's talking point that "The president’s health care law is hurting our economy by driving up health costs and making it harder for small businesses to hire. Obamacare is a job-killer. Businesses across the country have been asked what the impact is of Obamacare. Three-quarters of those surveyed by the Chamber of Commerce said Obamacare makes it less likely for them to hire people. This is a bizarre and inaccurate claim.

~ And perhaps most troubling of all, Obamacare puts the federal government between you and your doctor. FALSE  The law would set minimum benefits packages, but medical services will not be government-run, nor does the law allow for rationing of care.

Republicans have retreated from reality and launched an assault of lies instead of facing the truth about the Health Act.


Here are the FACTS about The Affordable Care Act:

1. Expands healthcare coverage to 30 million uninsured Americans,
2. Requires many health insurance plans to cover prevention and wellness benefits with no co-pay or deductibles for 54 million Americans that have private insurance,
3. Eliminates the lifetime coverage limit for 105 million Americans already insured,
4. Gives 2.3 million elderly Medicare patients access to annual wellness checkups,
5. Provides prescription care “donut hole” coverage for 5.1 million seniors, and
6. Requires insurers to cover those with pre-existing conditions, including 17 million of the 74.9 million children ages 0-17 years old residing in the U.S., according to recent US Census figures.

Most people only know about three portions of the law that have already gone into effect:

1.  The part that closes the donut hole for prescription drug coverage;
2. The provision that has enabled 2.5 million kids up to the age of 26 to piggy back off their parents’ insurance; and,
3. The part which stops health insurers form denying coverage for children and other people with preexisting conditions.


Little is known about the other parts of the law but click HERE to go through a primer on who may benefit and who will lose if the law is upheld or struck down.

The bottom line is that it is important to have the correct information to understand this Act.  Politicians who use innuendo, misrepresentation and lies based on fear mongering should be held accountable for their inaccurate statements.