The Fight Against The Radical Roberts Court

E.J. Dionne writes:

[I]magine the shock when President Obama decided last week to speak plainly about what a Supreme Court decision throwing out the health-care law would mean [... W]hen Obama went after the right’s willingness to use the power of the Supreme Court for ideological purposes, conservatives were aghast — and never mind that conservatives have been castigating activist judges since at least the 1968 presidential campaign.

Perhaps conservative pundits couldn’t stand the fact that Obama called them out explicitly. “I’d just remind conservative commentators,” he said, “that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.” Yes, it is.

I've been writing about the subject recently, and yesterday, in my Sunday Daily Kos article, I wrote:

Now what of the Affordable Care Act case? Let's remember who we are dealing with here—four extreme radical hacks (Thomas, Scalia, Alito and Roberts) and a fifth Justice (Kennedy) who thinks it is his job to legislate from the bench.

In a rather remarkable (to me at least) turn of events, some kossacks are heartened by the possibility that these five justices will create "limiting principles":

My concern is that we (both Kosters and liberal legal thinkers) are fooling ourselves on this point. The only way out of the problem -- both with the Justices and with the American people -- is to articulate a clear limiting principle. Verrilli didn't; neither do you, because preventative health also impacts the health care market. But you gave it a good try, which is valuable. [...] My life would be much easier and happier if I agreed with Armando that the other side is simply stupid, unreasonable, and vile. But I think that we're making a huge mistake here, and that we really need to think of ways to limit the damage.

There is something incongruous to me about a progressive expressing concern about the need for "limiting principles" from THIS Court with regard to the exercise of the Commerce power to regulate commerce. Those demanding "limiting principles" here argue that those of us who are of the view that the individual mandate is clearly constitutional are ignoring the "slippery slope." To the contrary, we are concerned about the "slippery slope," a declaration that ACA exceeds the Commerce power would lead us down. Especially considering the Roberts Court.

Here is an illustration: In the recently decided Florence v. County of Burlington (PDF), the Roberts Court (with Justice Kennedy writing the opinion) saw no need for limiting principles:

Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what new detainees may carry in on their bodies. Facility personnel, other inmates, and the new detainee himself or herself may be in danger if these threats are introduced into the jail population. This case presents the question of what rules, or limitations, the Constitution imposes on searches of arrested persons who are to be held in jail while their cases are being processed. [...] The case turns in part on the extent to which this Court has sufficient expertise and information in the record to mandate, under the Constitution, the specific restrictions and limitations sought by those who challenge the visual search procedures at issue. In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security. That necessary showing has not been made in this case. [Emphasis supplied.]

Coming from Justice Kennedy, who demanded a "substantial justification" from the government for the individual mandate, this is rich:

Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed [...] If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is a, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Think about that. Justice Kennedy demands "substantial justification" from the government for the individual mandate but a "necessary showing" from persons who are strip searched. Are we really concerned about "limiting principles" for economic regulation from THIS COURT? This "concern" strikes me as otherwordly. They, the Roberts Court, are who we thought they were.

Beyond that, the limiting principles of the Commerce power are clear. In U.S. v. Carolene Products, the Court stated:

The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," Gibbons v. Ogden, 9 Wheat. 1, 196 [...] The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 196. [...] it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. [Emphasis supplied.]

What's the limit? It is this:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California,283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242, and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n 2, and cases cited. [Emphasis supplied.]

Until the Roberts Court, these limiting principles were well understood. As for the Necessary and Proper Clause, as recently as U.S. v. Comstock, the Court said:

The question presented is whether the Necessary and Proper Clause, Art. I, §8, cl. 18, grants Congress authority sufficient to enact the statute before us. In resolving that question, we assume, but we do not decide, that other provisions of the Constitution—such as the Due Process Clause—do not prohibit civil commitment in these circumstances. Cf. Hendricks , 521 U. S. 346 ; Addington v. Texas , 441 U. S. 418 (1979) [Emphasis supplied.]

The assumption being that if the exercise of the Commerce power (in Comstock it involved the ultimate in denial of a liberty right—it involved a federal statute to civilly commit persons—indefinitely) does not violate other prohibitions of the Constitution, then the test of constitutionality is:

We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. Sabri v. United States, 541 U. S. 600, 605 (2004) (using term “means-ends rationality” to describe the necessary relationship); ibid. (upholding Congress’ “authority under the Necessary and Proper Clause” to enact a criminal statute in furtherance of the federal power granted by the Spending Clause); see Gonzales v. Raich, 545 U.S. 1, 22 (2005) (holding that because “Congress had a rational basis” for concluding that a statute implements Commerce Clause power, the statute falls within the scope of congressional “authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate Commerce … among the several States’ ” (ellipsis in original)); see also United States v. Lopez, 514 U. S. 549, 557 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276 (1981).

That's the law (and has been the law for nearly 80 years at least). And unless it is changed by the Roberts Court, the mandate and its enforcement mechanism are clearly constitutional.

Should a progressive REALLY be concerned about "limiting principles" regarding the Commerce power as opposed to the Roberts Court employing "limiting principles" to eviscerate our modern national state (Medicare, Social Security, EPA, etc.)? Really?

Here is what progressives should really be concerned about—the reversal of FDR's transformation of our national government by the Roberts Court. In 2001, Jack Balkin described it well:

I think the notion that conservatives want to restore a "Constitution in Exile" is helpful on the one hand but also a bit misleading on the other. What Republican constitutionalists seek, I would argue, is not so much a pre-New Deal Constitution but a pro-business Constitution. That means that the New Deal precedents will not be completely rolled back, but rather will be narrowed in order to facilitate a conservative domestic agenda. Indeed, some New Deal innovations-- particularly those regarding the increased scope of federal regulatory power, actually assist a pro-business agenda. Tort reform is a good example. The tort reform packages presently before Congress would have been unconstitutional according to the understandings of the pre-New Deal Constitution because they would have imposed too great an interference on state tort law, reaching, for example, both manufacturing and commerce.

They are who we thought they were. The process Balkin predicted is well under way. And progressives should be concerned about "limiting principles" for the Commerce power? Not in this reality. Sorry.

They are who we thought they were. And we must fight them. First battle is the presidential election - or, Why Obama: The Supreme Court.

Speaking for me only

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    I have to wonder what Kennedy's test for (5.00 / 1) (#15)
    by ruffian on Mon Apr 09, 2012 at 09:34:28 AM EST
    killing American citizens without a trial is -

    "substantial justification" or  "necessary showing"

    Well, I hope somebody on our side (5.00 / 2) (#19)
    by lilburro on Mon Apr 09, 2012 at 10:29:29 AM EST
    is bracing for possible defeat on the mandate issue and worse, the ACA as a whole.  Americans' trust in SCOTUS is not great (37 percent) but 51% of Americans also think the mandate is unconstitutional.  That seems like a tricky political needle to thread, and without a doubt there will be a tendency for the Beltway and for some Democrats to "put aside partisanship" and legitimate whatever SCOTUS comes up with.  People agree with us now, but how do you get them to agree with us if SCOTUS rules against the mandate?

    and by somebody on our side (5.00 / 1) (#20)
    by lilburro on Mon Apr 09, 2012 at 10:31:35 AM EST
    I mean party figures.  I think you as BTD have an answer but whether the Dems as a whole have a stomach for this fight, I still wonder.

    Jeffery Toobin writes (5.00 / 1) (#24)
    by DFLer on Mon Apr 09, 2012 at 11:10:20 AM EST
    in the April 9 issue of the New Yorker

    [...Acts of Congress, like the health-care law, are presumed to be constitutional, and it is--or should be--a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government....}

    Last week, however, the conservative Justices were showing no deference to Congress, especially on economic matters. The questions from the quartet of Kennedy, John G. Roberts, Jr., Antonin Scalia, and Samuel A. Alito, Jr., amounted to a catalogue of complaints about the Affordable Care Act. (Clarence Thomas, their silent ally, presumably was with them in spirit.) In particular, they appeared to regard the law as scandalously cruel to one party in the debate--and it wasn't the uninsured. The Justices' own words revealed where their sympathies lie. Roberts: "If you're an insurance company and you don't believe that you can give the coverage in the way Congress mandated it without the individual mandate, what type of action do you bring in a court?" Scalia: "That's going to bankrupt the insurance companies if not the states." Alito: "What is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies?" Kennedy: "We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended."

    In the more than seven decades since the New Deal, the Supreme Court has avoided this sort of line-by-line parsing of the policy choices made by legislators. As the Justices have said repeatedly, the courts should overrule the work of Congress only on the rarest occasions. "Conclusory second-guessing of difficult legislative decisions," Chief Justice William Rehnquist once observed, "is not an attractive way for federal courts to engage in judicial review." In recent years, the Justices have intervened in these matters solely to protect the rights of minorities shut out of the legislative process. (Insurance companies, though they are few in number, do not count as a "minority.") Now, instead, the Supreme Court acts as a sort of supra-legislature, dismissing laws that conflict with its own political agenda. This was most evident in the 2010 case Citizens United v. Federal Election Commission, when the five-Justice majority eviscerated the McCain-Feingold campaign-finance law (not to mention several of its own precedents), because Congress showed insufficiently tender regard for the free-speech rights of corporations.

    When you accuse someone of being (none / 0) (#1)
    by Slado on Mon Apr 09, 2012 at 08:30:26 AM EST
    hypocritical you yourself are usually being the same.  Especially when it comes to left/right partisan attacks.

    Not sure how the court upholding the constitution would be "radical".   BTD and progressive legal scholars may not agree with the court but it will be the law of the land and they will have to deal with it.

    It would not be the first time one side was upset with a 5-4 "radical" decision and it will not be the last.

    If it even happens that is.

    Assuming the answer (5.00 / 2) (#3)
    by Big Tent Democrat on Mon Apr 09, 2012 at 08:50:54 AM EST
    "Not sure how the court upholding the constitution would be "radical"."

    You did not really write that did you?


    Yes i did (none / 0) (#13)
    by Slado on Mon Apr 09, 2012 at 09:27:39 AM EST
    If five justices strike down the mandate they will because they don't believe it is constitutional.

    It's really a very simple legal question.   Does the mandate push the commerce clause too far?   You either think it does or it doesn't.    All the precedent doesn't definitively answer that basic question.  

    If it's too much then it's unconstitutional, if it isn't then it's not.

    To say this is a "radical" view is to me rather silly.  

    It's only radical if you don't believe that there is ever a limit to federal power when that power is attempting to accomplish what you want.   Is there a limit?  Can the federal government overstep it's bounds?  I would assume we'd all agree it can and has, hence the prior throwing out of legislation.

    As I've said in other posts all of the lower courts where in agreement that this basic question was a big one and that is why the court is hearing this case in the first place.   For all the chit chat prior to how big a slam dunk this was it seems that most of this "radical" talk is a fall back position for the left as the clear question of the mandate became obvious during legal arguments.

    When you loose the argument during oral deliberations can it really be that "radical" when you loose the final vote?

    Just doesn't add up to me.


    Again assuming the answer (5.00 / 1) (#14)
    by Big Tent Democrat on Mon Apr 09, 2012 at 09:33:36 AM EST
    "All the precedent doesn't definitively answer that basic question."

    Actually, it does.  


    Also not reading (5.00 / 2) (#16)
    by Big Tent Democrat on Mon Apr 09, 2012 at 09:35:56 AM EST
    See my excerpt from U.S. v. Carolene Products for one.

    Look, this is what you don;t want to understand - the precedents make it a very easy case.

    If people don't follow the precedents, then yes, it is an open question.

    But not following the precedents is radical.

    Which is not to say wrong. When Brown v Board did not follow precedent, Plessy,  it was radical and RIGHT.


    Brown vs. Bd of Ed (none / 0) (#28)
    by BackFromOhio on Mon Apr 09, 2012 at 11:55:54 AM EST
    was, as I recall, a unanimous decision & CJ Warren held out delivering opinion until he had all justices on board.  Momentous.  

    Another landmark case (5.00 / 1) (#31)
    by KeysDan on Mon Apr 09, 2012 at 12:38:34 PM EST
    where Chief Justice Burger worked to achieve a unanimous decision was the U.S. v Nixon. (Rehnquist, then an associate justice recused himself).  This crucial precedent limited the power of the president -relating to access to tapes and papers of meetings between the president and those indicted by the grand jury.

    Sure (none / 0) (#30)
    by Big Tent Democrat on Mon Apr 09, 2012 at 12:01:03 PM EST
    A 5 to 4 vote is always telling (none / 0) (#17)
    by christinep on Mon Apr 09, 2012 at 09:44:51 AM EST
    Should that be what happens in terms of upending substantial & lengthy precedent that would point to the ACA's constitutionality, the close split would suggest problems of its own as divided-Court dispositions on the big cases do not fare well in the long term.

    A matter of genuine concern here is that interrelationship of  presumption of constitutionality & burden.  You refer, Slado, to the realism school that acknowledges the ability to overturn precedent.  Of course...we know that.  But, how would you suggest that such an upending or abrupt reversal of precedent could be done in this case without long-term sustained damage to the reputation of America's Judiciary?
    And, while there are "limits" to everything, what--in your opinion--would be the linchpin that barks a step too far?


    Here is the applicable language (none / 0) (#18)
    by Big Tent Democrat on Mon Apr 09, 2012 at 09:47:35 AM EST
    "The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," Gibbons v. Ogden, 9 Wheat. 1, 196 [...] The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 196. [...] it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. "

    Are decisions by the Court really (none / 0) (#21)
    by Anne on Mon Apr 09, 2012 at 10:33:45 AM EST
    made or broken by oral arguments?  I'm no expert, but I don't think so.  Oral arguments are in addition to extensice and detailed briefs that could never be adequately covered in the time allotted for oral argument.

    Whether the government made a good or bad showing in oral arguments won't change the precedents the Court has before it; the Court has sufficient information to render a decision even if no oral arguments were ever conducted.  Well, except for the part that suggests they are woefully ignorant on the actual law itself, or how health insurance really works; I am tempted to suspect that ignorance may also have an element of willfullness, as well.

    For me, this is just the latest matter in which the Court seems to be carrying out an ideological agenda, instead of confining itself to the parameters of law and precedent; those who think this will only affect the life or death of the ACA are not paying attention to how the Court's potential decision - and the basis upon which it renders that decision - will quite possibly radically change the country's landscape.  And not in a positive way, either.

    If only we knew which Justice would be the next to retire; what I fear is that the conservative bloc will hang tough. with the most likely possibility being that (1) Ginsburg retires under a Democratic president and is replaced with someone who can maintain the current 4-vote liberal bloc, or (2) she retires under a Republican president, and is replaced with another solid conservative vote, which means liberals can say goodbye to holding on to some laws that are barely hanging on, and even more radical, ideological decisions.

    Best case scenario would be for one of the conservatives to retire and be replaced by someone who would shift the Court to a 5-4 split in liberals' favor; I really don't have any hope of that happening.


    Retirements (none / 0) (#33)
    by christinep on Mon Apr 09, 2012 at 12:55:46 PM EST
    Sometimes there are "want to" retirements & other times see "have to" leavings.  While no one can know what will happen...it would not be at all surprising to witness more than one leave-taking at the SCt prior to 2016 in view of the present composition.

    Telling you things you already know. (5.00 / 1) (#6)
    by Addison on Mon Apr 09, 2012 at 08:53:43 AM EST
    It would be radical because of the past 80 years worth of decisions on the Commerce Clause combined with the longstanding judicial tradition of stare decisis.

    The fact that you ignore that, while including a few unsubstantial truisms is telling. That radical rulings have to be dealt with by lawyers don't make them not-radical. That it's not an entirely unique case of radicalism doesn't mean it's not radical.

    The Court itself requires a "heavy burden of justification" to overturn most every Commerce Clause related decision made by previous SCOTUSes in the past 80 years. And, of course, as Justice Kennedy notes, laws are presumed Constitutional by tradition. So, if they instead hang their precedent-exploding ruling on the fact that the government defendants didn't prove Constitutionality "beyond a reasonable doubt" (i.e. locate a line that hasn't been required before, and then place the ACA where it was already presumed to be: on the constitutional side of that line), then the 5 SCOTUS justices are indeed being radical by any normal definition.

    But of course you already know all this.


    Indeed (none / 0) (#7)
    by Big Tent Democrat on Mon Apr 09, 2012 at 08:59:20 AM EST
    Lawyer had to deal with Dred Scott, Lochner, Hammer v. Dagenhart, etc.

    Hell (none / 0) (#9)
    by Big Tent Democrat on Mon Apr 09, 2012 at 09:00:24 AM EST
    The ultimate in "dealing with it," the Slaughterhouse cases.

    another way of looking at it (none / 0) (#5)
    by CST on Mon Apr 09, 2012 at 08:52:26 AM EST
    is that when you firmly believe in something you fight the people that oppose your beliefs wherever they are.

    This is not "both houses are the same".  They are not the same.  Yes, people on both sides think they are right.  That doesn't make everyone right, or everyone wrong for that matter.  The truth is still the truth.

    If it is the law of the land, we do what we always do when we strongly disagree.  Fight it, not "deal with it".  There are always future court cases, and future courts.  And elections have consequences, in the case of the court, very long-term ones.


    The ABA president chimes in (none / 0) (#2)
    by Abdul Abulbul Amir on Mon Apr 09, 2012 at 08:45:38 AM EST
    What an idiotic statement (5.00 / 1) (#4)
    by Big Tent Democrat on Mon Apr 09, 2012 at 08:51:55 AM EST
    Yep (none / 0) (#8)
    by Abdul Abulbul Amir on Mon Apr 09, 2012 at 08:59:50 AM EST

    Clearly radical and outside the mainstream no doubt.

    Unforutnalely no (5.00 / 5) (#11)
    by Big Tent Democrat on Mon Apr 09, 2012 at 09:01:00 AM EST
    The "mainstream" can be quite idiotic. See Debacle, Iraq.

    Hahaha... (5.00 / 2) (#10)
    by Addison on Mon Apr 09, 2012 at 09:00:43 AM EST
    In what world does "separation of powers" mean "immunity from trans-branch criticism"? In what world is the Congress not allowed to criticize the President, or the President the SCOTUS, or the SCOTUS the Congress? Is there a Federal Comity Clause in the Constitution that I've missed?  

    And did anyone really think that President Obama's statement on the SCOTUS and ACA meant he didn't believe that the SCOTUS had final say on the Constitutionality of our laws? Anyone? Anyone?! Bueller!? What a clown show.


    The ABA has been a clown show (none / 0) (#12)
    by Big Tent Democrat on Mon Apr 09, 2012 at 09:02:11 AM EST
    for some time.

    When the Right denounced the ABA you never saw me rushing to their defense.


    Republican presidential (none / 0) (#22)
    by KeysDan on Mon Apr 09, 2012 at 10:36:53 AM EST
    candidate (still), Newton Gingrich pronounced during his campaign that he would consider using US Marshals or Capitol police to arrest judges and force them to appear before Congress to explain controversial decisions.  Gingrich, putting on his historical cap, reminded the country that there are three equal branches of government---and, if congress and the president disagree on a Court ruling it should be considered invalid.    Maybe, Newt's big idea can be put into play, if needed, with the support of his fellow Republicans.  It would only have to be used once, no precedent in other cases (cf. Bush v Gore).  And, it would be fun to see those five men in black before congress, which does have television coverage.

    Maybe Newt (none / 0) (#23)
    by jbindc on Mon Apr 09, 2012 at 11:07:31 AM EST
    Should read the Constitution more carefully.

    If Congress doesn't like the outcome of a Court decision, they can rewrite the law so as to pass constitutional muster.

    And Newtie might not like it so much if oh, say, Obama were to "round up" conservative judges and justices to make them account for their decisions (if he can actually even do that).


    Indeed. (none / 0) (#29)
    by Addison on Mon Apr 09, 2012 at 11:57:29 AM EST
    Congress can also change the Constitution (along with the State Legislatures, of course) completely obliterating SCOTUS reach into certain issues.

    Congress could, if it wished, abolish or totally cripple the other two branches in this manner.

    For that matter, two-thirds of the states can bypass Congress entirely if they want and amend the Constitution to say whatever they want it to say. I'm surprised this hasn't occurred yet, and surprised it hasn't been a focus of Newt, the Tea Party, Norquist, et al given the current GOP dominance in the state legislatures.

    The spectacle of forcing SCOTUS justices to explain themselves in front of Congress (that's what the decisions are for) is ridiculous, however, not because Congress "can't" do it, but because it's so entirely pointless.


    TPM had a story about why Roberts might uphold ACA (none / 0) (#25)
    by magster on Mon Apr 09, 2012 at 11:33:19 AM EST
    that made little sense to me. Is the premise of the article that Roberts may be inclined to allow an expansive law and then carve out exceptions case by case?

    Heh (5.00 / 2) (#26)
    by Big Tent Democrat on Mon Apr 09, 2012 at 11:40:33 AM EST
    That's some straw they grasped at.

    I think his notion of the mandate really being about the penalty is the better straw.


    The individual mandate is not (none / 0) (#27)
    by MyLeftMind on Mon Apr 09, 2012 at 11:53:31 AM EST
    absolutely necessary for the successful implementation of universal health care. In fact, it may be the opposite of what we need. Forcing people to pay insurance companies reinforces and perpetually ingrains their chokehold on our health care systems.

    Throwing out the individual mandate might just be the best thing that happens to the ACA. Going back to the drawing board for the funding component this massive social program could give us the opportunity to expand the socialized medicine systems we currently pay for. For example, allowing people and companies the option of buying into Medicare would provide single payer savings that could be used to provide health care to the poor. If money is to be made by processing paperwork for health care, I'd rather that money returned to the system, not be siphoned off by rich investors.

    Even if universal health care is a great, progressive idea, solidifying wealth redistribution from the working and middle classes to the rich is not a good idea.

    Interesting constitutional interpretation (none / 0) (#35)
    by Big Tent Democrat on Mon Apr 09, 2012 at 01:48:41 PM EST
    or, maybe not.

    A great piece (none / 0) (#32)
    by CoralGables on Mon Apr 09, 2012 at 12:47:24 PM EST
    and yet somehow at the end I see you doing your best Denny Green imitation.

    We let em off the hook!! (none / 0) (#34)
    by Big Tent Democrat on Mon Apr 09, 2012 at 01:48:19 PM EST
    They are exactly who we thought they were!! (none / 0) (#36)
    by DFLer on Mon Apr 09, 2012 at 05:16:01 PM EST
    They are exactly who we thought they were!! (none / 0) (#37)
    by DFLer on Mon Apr 09, 2012 at 05:16:10 PM EST
    ooops... the computer TOLD me to post again (5.00 / 1) (#38)
    by DFLer on Mon Apr 09, 2012 at 05:16:47 PM EST