Just a few added thoughts on the Supreme Court's health care ruling

This morning's Supreme Court majority

by Ken

Thankfully, Howie already dealt this morning with the meat of today's big announcement from the Supreme Court regarding the Affordable Care Act (ACA). I just want to add a few random additional thoughts.

* I think now we have a better idea why Justice Nino "The Mushroom Cloud" Scalia went berserk the other day at the Court's announcement of the unexpectedly centrist Arizona immigration ruling -- knowing he had an even bigger loss in the hopper.

* It's intriguing, just in terms of the politics of the Court, that it was Chief Justice Roberts rather than "Slow Anthony" Kennedy who joined the four moderates to form the majority that upheld all provisions of the health care act except the threat to withhold existing Medicaid funds to states that decline to participate in the new expanded version of Medicaid (which version was itself upheld as within congressional prerogatives). I'm not saying that the chief doesn't believe the positions he took, since after all he could have voted to overturn if he wanted. It's just interesting that by voting with the majority he controlled both the legal reasoning and the writing of the majority opinion, in which he stresses that the Commerce Clause justification for the individual mandate doesn't pass constitutional muster -- using instead an argument that wasn't made in the act's defense, that it's justified within Congress's taxation powers. (Note that the four other justices who figured in that "majority" wound up being represented only in Justice Ginsburg's dissent!)

As The New Yorker's Jeffrey Toobin wrote back on June 5, assessing the various possible outcomes of the eventual ruling:

[A] new limit on congressional power under the Commerce Clause would represent a crucial new impediment to all attempts by the federal government to address national problems. That can’t be good for the political party of activist government. In the election of 2008, the party of smaller government lost at the polls, but the Supreme Court may yet trump the will of the voters. It’s happened before. [The link is to the Bush v. Gore decision.]

* Not surprisingly, within minutes if not seconds of the announcement, there was House Speaker "Sunny John" Boehner declaring that by gosh the House, as promised, will move to repeal everything of the ACA that's left standing after the High Court ruling. For once, though, it really shouldn't matter. Boehner's crackpot House majority has had immense power in this session of Congress because it has the power to prevent any legislation that requires approval of both houses from passing. This has meant that for all necessary budget legislation, legislating has been impossible without coming up with formulas acceptable to the crackpots. Do nothing, and they get their way, since in most cases their preference is to do nothing. It is, after all, what they're best at.

But this time nobody should care what they pass, because they're trying to repeal, not pass. The best they can do is try to hold other legislation hostage with it. Of course they'll be milking the ACA's unpopularity for all its worth, and perhaps they'll get their money's worth. But it's also possible that with the luxury of some breathing space, proponents of the better portions of the act can begin to inject some measure of reality into the public discussion.

* As for the discussion that has monopolized most of the response to the announcement -- who wins and who loses politically -- oh jeez, gimme a break.

* Speaking (as I was) about Justice Nino's bizarre tantrum on the bench, E. J. Dionne Jr. has a terrific column today ("Scalia must resign") in which he argues that if the justice truly wishes to be a political figure, as was the case in his rant, he has the simple option, indeed obligation, to resign from the Supreme Court. Amen, brother!

#