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Justice Roberts’ Supreme Wrecking Crew

John Roberts (photo: mcconnellcenter, flickr)

John Roberts (photo: mcconnellcenter, flickr)

We were treated yesterday to arguments made by a former Solicitor General of the United States, and embraced by conservative justices of the Supreme Court, that may be the most disingenuous, destructive and dangerous attacks on the Constitution in our lifetimes.

The argument by opponents of the Affordable Care Act, who wish to see the entire Act struck down, claimed that if Congress passes a bill that includes dozens of different provisions relating to widely different portions of “health care,” covering 1/6 of the US economy, and combines them into a single bill, that the entire bill should be declared unconstitutional even if only one of the many different provisions packed into the same bill is found to violate the Justice’s collective view of the federal government’s powers. Let us put aside arguments about the mandate, per se, and consider what this argument says.

If accepted, that argument means that if you create an independent advisory board to inform Medicare about how to save money and achieve more effective treatment of Medicare recipients, something that is undoubtedly constitutional, that provision must be declared void because it’s in the same bill as a mandate that applies to people who aren’t even eligible for Medicare.

Similarly, it means Congress can’t fix problems in the Native American health service, or make improvements in the health insurance provided to Congress, or provide clarifications for the SCHIP program for kids, or heaven forbid, try to get several million more people covered by Medicaid in ways completely independent of the offending mandate for people not otherwise eligible for Medicaid. All of that must go, because of some offending but unrelated provision in a 2000 page bill.

And what reason did the conservatives embrace for this illogical and sweeping exercise of judicial unrestraint? “We’re lazy.” That’s it. Faced with the difficulty of actually reading a statute they are so anxious to strike down down and evaluating what its provisions actually do and how they align with the Constitution — which is the task the Court has assigned to itself since Marbury vs. Madison — Justice Scalia blasted one of the attorneys for even hinting he or his clerks might actually have to read the statute he wants to destroy.  None of his conservative colleagues disagreed, and appalled attorneys before the court were too stunned or too deferential to push back.

So what provisions do the conservatives find so offensive that they must take a meat axe to Congress’ work, never mind the collateral damage? Why they’re fundamentally conservative ideas, embraced by Republicans (all suffering now from amnesia) and accepted by Democrats as a way to achieve public goals while placating the conservatives’ sensitive feelings that the federal government not do too much to promote the general welfare.

Think about the conservatives’ attack on the constitutionality of expanding Medicaid, the health insurance/care program primarily for the poor and near poor. The federal government could simply say, “the central government will provide a health care system that covers all of you/them, and the central government will administer it and define all its terms and fund it accordingly.” But no, conservatives insisted that the federal government not do this; better to leave the matter to each state. States’ rights!

But some states did nothing and most didn’t do enough, and when there were recessions, some chose to do even less while lowering taxes on the rich. So those who wanted to ensure the poor could get access to health care said, “fine, we’ll create a Medicaid program for the poor (and SCHIP for kids) and let the states administer it and even let states help define criteria for eligibility. We’ll provide half or more of the funding if you do this.” That accommodation to the conservative/states’ rights preferences has worked to a degree, but it still leaves out millions of near-poor people and is spotty and underfunded in many states for the rest. What to do?

Again, the federal government could have solved this directly, but in deference to conservative sensibilities, the ACA expanded the existing Medicaid framework to cover millions more people living in or close to poverty levels. In deference to those who oppose “unfunded mandates,” it promised the federal government would fully fund any cost increase for a few years, and then fund 90 percent of the increase thereafter.  The assumption was that states are very hard pressed during the recession, but when economic growth resumes several years from now, they’ll be in better shape to handle the 10 percent.  On what possible basis is such a reasonable compromise unconstitutional?

There is none, but the opponents argue that the states’ fee fees are hurt, even though they are still allowed to administer the program, just as conservatives and states’ righters insisted, and will have all or most of the costs covered by the federal government, to mitigate unfunded mandates. This scheme, the opponents argue, is an infringement on states’ rights! Well, it was your damn idea, people.

And what about the dreaded individual mandate? Whose idea was that? If I recall correctly, the overwhelmingly preferred liberal position was, “Medicare works; extend it.” But the conservatives (in both parties), beginning in the 1990s, and lasting up until Barack Obama became President, insisted that the federal government should not have a government-sponsored insurance program. Instead, the private market of private insurers should solve the problem of 50 million uninsured that it had so far failed to solve (and had in fact exacerbated).

And the conservative solution to this failure, embraced back then by virtually every Republican and explained/supported by conservative think tanks, was this: Don’t expand Medicare. Instead mandate that those who aren’t otherwise covered at work or by Medicaid or Medicare, etc, contribute to the insurance pool by buying private insurance or paying a penalty, and then provide federal subsidies to help make the private insurers’ subsidized premiums affordable to the middle class.

The conservatives explained that the penalties will discourage free riders, make people individually responsible, and help pay for the health care costs of those who cannot or refuse to cover themselves.

That’s their “market” solution for 50 million uninsured. It’s the conservative solution. Moreover, we’ll even facilitate this “market” by setting up exchanges where people can go for information, and we’ll let the states administer them and give them federal dollars to get started, just as the states’ righters asked. So that’s what Congress did.

Now we have to watch the same conservatives argue that their own private insurance market proposal, their own state-administered exchange ideas, their own subsidy system that funnels billions through private insurers, are all parts of a government takeover, an egregious affront to personal liberty and blatantly unconstitutional because, if you do this, someone will demand that you eat your broccoli!

And because Justice Antonin Scalia is too damn lazy to actually read the statute, let alone carve out the offending conservative parts of this very large statute, a comprehensive bill covering dozens, maybe hundreds, of completely unrelated measures must be totally destroyed. Go judicial activism!

The conservative movement has become not just intellectually bankrupt and incoherent; it’s a moral abomination, and unless and until they are understood to be a menace to a democratic republic — and voters respond accordingly — the nation will continue to resemble a wrecking yard run by juvenile delinquents.

Update: See, Ian Millhiser, ThinkProgress, for a useful summary of the history and structure of Medicaid

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley