ACA case reveals a political Supreme Court

By Michael L. Altman

The Daily Record Newswire

Many commentators, some in support and some critical, argue that U.S. Supreme Court Chief Justice John G. Roberts Jr.'s decision in the Affordable Care Act case was politically motivated.

That is not something new: The Supreme Court's conservative justices, including Roberts, have been very result oriented -- even single minded -- in carrying out their political agenda to bolster states' rights at the expense of the ability of the federal government to establish national policy.

In the ACA case, the issue was whether the federal government could solve a serious national problem. It was a problem that the states could not deal with, and it was a problem that left 50 million people without access to health care other than in emergency rooms.

Consequently, we ranked last in measures of health outcomes compared to all other advanced countries, despite spending twice as much per person.

Almost all constitutional scholars initially believed it was obvious that it was necessary and proper for the federal government to respond to the health care crisis that the states and private sector had not resolved.

But perception changed, especially during oral argument in the ACA case. Instead of a focus on national need and the human tragedies being revealed every day by the failure of our nation to provide access to health care to those who are ill and sometimes desperate, the SCOTUS conservatives changed the focus to states' rights and broccoli.

A states' rights agenda is by itself troublesome. States' rights was the argument supporting slavery by Sen. Stephen Douglas in the famous Lincoln-Douglas debates of 1858. It was also the argument used to oppose civil rights legislation in the 1960s.

In the Affordable Care Act case decided in June, Roberts and the four conservative dissenters embraced a states' rights view of the Commerce Clause of the U.S. Constitution.

Roberts did not join the reasoning of the four conservative dissenters in the ACA case, but he did support their conclusion that the mandate in the ACA violated the Commerce Clause.

It is important to pay close attention to the dissent by the four conservative justices in the case. They say on page 8 that if the government's view of the Commerce Clause were upheld, "then the Commerce clause becomes a font of unlimited power, or in Hamilton's words: 'the hideous monster whose devouring jaws ... spare neither sex nor age nor high nor low, nor sacred nor profane.'"

The Federalist Paper #33 is then cited by the conservatives as the source of Hamilton's words.

Nothing could be further from the truth. In fact, Federalist #33 says exactly the opposite of what the four conservatives represent to us. Those inflammatory words cited in the dissent are not Hamilton's words. Hamilton tells us in the text of Federalist #33 that those words were used by the most extreme critics of the Constitution's supremacy clause to lambast the Constitution.

Hamilton therefore characterizes those words as "virulent invective and petulant declamation against the constitution." He concludes: "the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union."

In other words, Hamilton was actually warning against those who, like the present day conservatives, hype without basis the dangers of the power to regulate commerce set forth in the Constitution.

Hamilton was also very clear that the danger for the nation was not too much federal power but that the states would "sap the foundations of the Union." He reached that conclusion well aware that the Articles of Confederation, the predecessor to the Constitution, had failed in no small part because of too much power reserved to the states.

Was the quote from Federalist 33, relied on by the dissenters, inserted by a clerk for a conservative justice who knew exactly what result the justice wanted to reach and gave it to the conservatives to earn brownie points without revealing the context?

That is very unlikely because the conservative justices must know that Hamilton was an outspoken proponent of a strong national government. In fact, Hamilton fought with Jefferson who wanted more limited federal power.

This blatant perversion of Hamilton's words by the SCOTUS conservatives reveals that those justices are so hell-bent on forcing a new states' rights federalism on the nation that they will do anything and say anything -- even pervert language and history -- to get to their desired result.

The ACA case is a reminder that Bush v. Gore was not unique (despite the court's protestations to the contrary). Rather, it marked the beginning of a new era in which the last word is now with nine unelected judges, five of whom no longer aspire to interpret the Constitution by honestly applying precedent and history in the context of construing the meaning of words, phrases and concepts.

Instead, the five conservatives have embarked on a political mission to restructure the government. They are convinced that they have the right to impose their extreme views of the structure of our nation because they have a righteous cause.

They are only constrained to pretend that they are bound by the traditions that have historically limited a judge's ability to create policy.

Even worse, they are willing to try to impose their righteous vision of the allocation of governmental power while treating those who suffer without health care as collateral damage.

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Michael L. Altman is a part-time volunteer lawyer at Greater Boston Legal Services. From 2002 to 2010, he was managing partner of Altman, Riley, Esher in Boston.

Published: Thu, Aug 2, 2012

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