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The ACA Decision

As I stated in a previous diary, Justice Roberts did far more damage by upholding the Affordable Care Act (ACA) than he would have done by merely rejecting the statute on Commerce Clause grounds. In its upholding of the law, the Court established three horrible precedents:

1) The “broccoli” argument that a statute which penalizes inactivity violates the Commerce Clause (hence the ACA did not pass muster under this Clause). Think of the implications of this precedent, from environmental remediation to child nutrition!

2) The states can reject an unanticipated expansion of an existing program, hence they have the right to turn down Medicaid funds under the ACA. This precedent has very broad application, as most federal programs are actually joint federal-state ventures.

3) The tax for non-purchase of health insurance coverage under the ACA is not a penalty (even though it manifestly is). Hence individuals can be forced to purchase the product of a private company under penalty of law. Not only are corporations the equal of flesh and blood humans (as Citizens United established) but corporations are now our superiors.

The subtlety of Roberts’ exposition, which expands the decision into much something much greater than it appears of first glance, is reminiscent of Justice John Marshall in Marbury v. Madison, which established the principle of judicial review through a dazzling tour de force of legal reasoning (though Robert’s turgid prose compares most unfavorably to Marshall’s clear writing). Adding to Roberts’ judicial subtlety is the political context: liberals have generally cheered the decision, ignoring its long-term consequences, because if achieved a substantive result they desired–upholding the ACA. But unlike Justice Marshall, Roberts uses his obviously vast judicial talents to destructive ends, working to undo the Constitutional framework that Marshall helped put into place.


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