Posts Tagged ‘Bush v. Gore’
Fear the Court?
TPM’s long “Is Health Care Reform Constitutional” post today says that Bush v. Gore and Citizens United aside the Roberts majority is unlikely to strike down any part of the health care bill.
Several respected conservative legal experts essentially agree that the court would have to radically break with past rulings to strike down the law. John McGinnis, a former Bush 41 administration Justice Department official and a past winner of an award from the Federalist Society, told TPMmuckraker that the court could rule in favor of the AGs only by taking a radical Originalist view of jurisprudence — one that all but ignores precedent. “I think the only person who shares [that view] is Justice Thomas.” said McGinnis, now a constitutional law scholar at Northwestern Law School. “It’s a very difficult argument to make under current precedent.”
Doug Kmiec, a former Reagan administration Justice Department official, and conservative legal scholar, echoes that view. “The idea that a regulatory requirement (whether to purchase insurance or to purchase a smoke alarm) violates the Constitution by exceeding the scope of the commerce power was rejected in the age when Robert Fulton’s steam ships were at the center of case controversy and the proposition has not gained validity with the passage into the 21st century,” Kmiec, now the Obama administration’s ambassador to Malta, told TPMmuckraker.
And Orin Kerr, a professor at George Washington Law School, who has served as a special counsel to Sen. John Cornyn (R-TX) and clerked for Justice Anthony Kennedy, likewise believes the bill is almost certain to pass muster. “I think it’s very very unlikely that the mandate would be struck down as unconstitutional,” Kerr told TPMmuckraker.
There’s another problem with the lawsuit. Many judges are often reluctant to hear a challenge to a law until it has actually gone into effect — what legal types call a “ripeness” issue. The individual mandate won’t go into effect until 2014 — by which time factors like the composition of the Supreme Court, and the underlying politics driving the lawsuit, may well have changed.
Esenberg and Balkin Play “Is Health Care Reform Constitutional?”
It’s time again for everyone’s favorite game, “Is Health Care Reform Constitutional?” Today’s contestants are (from the right) Marquette University Law School visiting professor Richard Esenberg and (from the left) Jack Balkin of Yale Law School. Esenberg doesn’t like the bill but thinks it will most likely be upheld: “Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate.”
Balkin, for his part, has no doubt, forcefully rebutting some of the agnosticism in the Randy Barnett piece I linked earlier in the week:
The most likely constitutional challenge will be that the individual mandate to purchase health insurance is unconstitutional because it forces people to buy insurance. Barnett omits to mention in his op-ed that the mandate is actually structured as a tax: if you don’t buy insurance, you are assessed a tax for each month you fail to pay premiums. Barnett argues that individual mandate must be unconstitutional because the government can’t require people to do anything; however, the government can make you pay taxes. It does so every year. Congress pretty clearly has the power to pass such a tax under its powers to tax and spend for the general welfare. This is an easy case for constitutionality.
Balkin goes on to tackle that huge elephant in the room, Bush v. Gore:
Barnett is ambiguous about whether he is actually advocating a second Bush v. Gore or simply arguing that the five Republican Justices on the Supreme Court might be shameless enough to attempt a second version of Bush v. Gore. (It’s sort of like he is saying, “nice health care bill you’ve got there; it would be a shame if anything happened to it.”)
I assume that Barnett actually isn’t advocating it. Bush v. Gore was widely derided as a travesty of legal reasoning, and the Supreme Court has avoided citing it or mentioning it in its opinions since. Whether or not the individual Justices viewed their actions this way at the time, many people saw Bush v. Gore as five conservative Justices making implausible legal arguments to benefit the interests of a particular political party which they happened to favor. And not to put too fine a point on it, Bush v. Gore helped smooth the way to the Bush Presidency, the dissipation of the federal budget surplus, the war in Iraq, presidentially approved torture, the cratering of the economy, and enormous budget deficits through reckless overspending by the Bush Administration. Bush v. Gore was, in hindsight, not only deeply flawed judicial reasoning, but led to a disaster for the country. Bush v. Gore is an example of what the Supreme Court and federal judges shouldn’t do.
If opponents of the bill are reduced to wishing for a second Bush v. Gore, they, and not their opponents, have truly given up believing in American democracy.
UPDATE: In an e-mail to me, Barnett confirms that his reference to Bush v. Gore “was simply about predicting 5 votes.” He writes: “If the conservative justices are as lawless as accused, the bill’s supporters should worry. But if not, not. Which is it?”
Is Health Care Reform Constitutional?
Last seen reminding state agencies how they can and should legally discriminate against homosexuals, Virginia Attorney General Ken Cuccinelli is already promising to file a legal challenge to tonight’s health care bill. This of course leads us to another exciting round of “Is Health Care Reform Constitutional?” Tonight’s contestant is Randy E. Barnett of Georgetown Law, writing in the Washington Post. Barnett appears much more agnostic on the specific legal questions involved than previous contestants like Erwin Chemerinsky, focusing instead on the aggressive radicality of the Roberts majority:
But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.
If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.
You might have heard of it: Bush v. Gore.
Of course I worry about this, because I think Roberts, Scalia, Alito, and Thomas would overturn health care in a heartbeat, on whatever spurious ground presented itself. But while I don’t always agree with him, I think Kennedy has integrity, and I don’t think he would go along with it. (Have to admit, though, I’ve never been more sad to have to say “no relation”…)
