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“Congress Might Step In To Fix The Problem”: How Conservative Supreme Court Justices Harmed Their Own Anti-Obamacare Cause

Wednesday’s Supreme Court oral arguments made it evident that at least some conservative justices are worried about the disruption they’ll create if they rule for the challengers in King v. Burwell and void Affordable Care Act subsidies in 34 states.

The justices and lawyers themselves didn’t dwell on humanitarian costs, but those most hostile to the law repeatedly sought to downplay the consequences of an adverse ruling.

The plaintiffs’ lawyer, Michael Carvin, argued against all logic to incredulous liberal justices that eliminating subsidies wouldn’t leave states saddled with a punishing regulatory regime. Antonin Scalia got laughed out of court (sort of) for claiming Congress might step in to fix the problem. Samuel Alito even intimated that states might step in and establish their own exchanges. The Court could even lend them several months time to do so.

“It’s not too late for a state to establish an exchange if we were to adopt Petitioners’ interpretation of the statute,” Alito said. “So going forward, there would be no harm.”

If his suggestion was designed to appeal to skeptical conservatives, like Chief Justice John Roberts, and Anthony Kennedy, he may have harmed his own cause.

Alito’s comments evoke the image of many or most of the states that opted in to federally facilitated exchanges scrambling to reverse their decisionsto keep subsidies flowing and preserve the viability of their individual insurance markets.

That would stem the disruption. But it would also underscore the anti-federalist concerns Kennedy raised during oral arguments in dramatic fashion. What’s better evidence of coercion than sending a bunch of states into a blind panic to do something they weren’t originally inclined to do?

Supporters of the challenge might argue that the source of coercion in that case would be the disappearance of unauthorized subsidies, rather than the underlying scheme in the law. Essentially that this would all be the Obama administration’s fault. But Kennedy was explicit in his admonitions that the coercion problems with the challengers interpretation of ACA run deeper than money transferred by the federal government.

“The states are being told either create your own exchange, or we’ll send your insurance market into a death spiral,” Kennedy said. “We’ll have people pay mandated taxes which will not get any credit on on the subsidies. The cost of insurance will be sky­ high.”

To dull the implications of Kennedy’s concerns, conservatives enlisted Oklahoma’s Attorney General, Scott Pruitt, who banged out an op-ed arguing that his own state’s experience contradicts the premise that the ACA-as-written is unconstitutionally intrusive.

“Oklahoma knew the consequences of its decision but was not coerced into cooperating with implementation of the Affordable Care Act,” Pruitt wrote.

The argument lacks credibility coming from someone who adopted his position, on the advice of conservative activists, precisely because “in states that have not established their own exchanges, the structure of the ACA will crumble.” Seeking Pruitt’s guidance on the ACA’s impositions on states is a bit like taking flight lessons from a kamikaze pilot.

But Pruitt’s point also doesn’t allay Kennedy’s substantive concerns. His interpretation of the ACA arose not from its plain text, but, again, from the input of meddling activists trying to destroy Obamacare. It doesn’t follow from the fact that Pruitt is keyed in to conservative movement strategy that the ACA provides states clear notice that its subsidies come with major strings attached. Moreover, Kennedy’s problem isn’t just with states responding to the threat, but with the threat itself. “If petitioners’ argument is correct,” Kennedy said, “this is just not a rational choice for the states to make.” In other words, even if several states continue to resist ACA implementation after an adverse ruling, there’s still a problem here, because the federal government shouldn’t be allowed to confront states with such onerous choices in the first place.

Assuming Kennedy meant what he said about coercion, he has several options, most of which augur well for the ACA. He could allow the challengers’ anti-federalist construction of the law to guide him to a better available interpretation (i.e. the government’s). He could determine that the challengers’ construction should be avoided in favor of one that isn’t unconstitutional. He could essentially rewrite it, as the Court rewrote the ACA’s Medicaid expansion, to sever the offending phrase. Or, less auspiciously, he could find for the challengers, and leave the subsidy condition on the books, anticipating that a constitutional challenge will arise as a result.

But the fact that Alito and Scalia assumed a ruling for the challengers would send political actors scrambling for a fix doesn’t advance their ends with anyone concerned about coercion. It actually just proves the point.

 

By: Brian Beutler, The New Republic, March 6, 2015

March 7, 2015 Posted by | Affordable Care Act, Conservatives, King v Burwell | , , , , , , | Leave a comment

“Showdown Between God And Government”: Roy Moore And The Divine Right Of Nullifiers

With Roy Moore in the national headlines again–this time for defying and urging state courts in Alabama to defy a federal court order–reinforced by the U.S. Supreme Court–to begin licensing same-sex marriages–it’s a good time to consult Sarah Posner, who has an important remembrance of a speech by the Ten Commandments Judge a few years ago. She helps explain why and how a lot of “constitutionalists” and “states rights advocates” like Moore have theocratic grounds for their supposedly law-based views.

That Friday night [in June 2011] in Severn [Maryland], Moore was speaking to a gathering of the Institute on the Constitution, a fringe educational group run by Maryland lawyer, former Constitution Party presidential candidate, and current member of the Anne Arundel County Council, Michael Peroutka. Back in 2010 and 2011, I made an irregular habit of attending the IOTC’s First Friday gatherings, at which there was typically an out-of-town celebrity speaker (Moore’s was particularly well-attended, with a few hundred people in the audience), covering topics near and dear to the IOTC’s unorthodox view of the Constitution. The Constitution, they claim, is a divine document designed only to protect the rights conferred by God, not to create “new” rights by way of jurisprudence. For all you law school graduates shaking your head as you read this, Peroutka, Moore, and their followers claim that the law schools are teaching it all wrong—that’s why they’ve created their own law schools….

In presenting Moore with a “Spirit of Daniel” award for courage, Peroutka gleefully noted that he was doing so on Jefferson Davis’s birthday. (The award was given because Moore “resisted a government that thought it was God.”)

That showdown between God and government is at the heart of Moore’s claims that he is on the side of righteousness and the federal courts on the side of an anti-God, unconstitutional “tyranny.” Moore believes there is a separation of church and state—but he believes it’s one that distinguishes America from royal monarchies. In other words, the government is separated from the church in that the government is barred from running the church, and it can’t tell the church what to do. Public schools, in his view, are “controlled by government,” and impose secularism; he favors tax credits for homeschooling because that’s “the right of the parent….”

Moore, who graduated from West Point and served in Vietnam, is fond of reiterating that he has sworn to uphold Constitution against enemies, both foreign and domestic. He readily agreed that America has been overtaken by enemies within. “Our government is infiltrated with communists, we’ve got Muslims coming in and taking over where we should be having the say about our principles.” And more: “I’m not so sure some in government don’t want to destroy our country.”

Sarah has more, but you get the drift. The scary thing is that Moore is not some isolated radio crank or even a state legislator, but the elected chief judicial officer of an entire state. He’s a useful study because he’s a little less crafty than most “constitutional conservatives” in speaking in code when he talks about the connection between religion and the law. For him, the divine law fundamentalists derive from the Hebrew scriptures was incorporated into the U.S. Constitution by the Founders and by definition cannot be legitimately modified by human hands, regardless of the instruments for doing just that made available in the Constitution itself. And so the presumed right of state nullfication of federal laws and court decisions is rooted not just in a pre-Civil War idea of federalism, but in an aggressively reactionary notion of religion and its implications for secular law.

While Moore’s bizarre and dangerous world view is plain for all who go to the trouble of looking for it to see, it has some pretty respectable fellow travelers. The Paul family’s close connection with the Constitution Party is a good example; indeed, in 2008, that party’s affiliate in Montana placed Ron Paul at the top of its ticket with Michael Peroutka as his running-mate (Paul protested this action, but apparently only to protect the status of national Constitution Party presidential candidate Chuck Baldwin, whom he ultimately endorsed over Republican John McCain and Libertarian Bob Barr).

So Roy Moore may be as crazy as he sounds, but he’s not as exotic a bird as you might think.

 

By: Ed Kilgore, Contributing Writer, Political Animal,The Washington Monthly, February 11, 2015

February 12, 2015 Posted by | Alabama Supreme Court, Nullification, Roy Moore | , , , , , , , | Leave a comment

“Not So Braveheart”: Paul Walks Back His Disavowal Of Voter ID Laws

Well, that was quick. Barely three days after his comments suggesting that Republicans need to get off the voter suppression kick if they ever wanted to appeal to minority voters, there’s this “clarification” from the director of his PAC (via Dave Weigel):

Senator Paul was having a larger discussion about criminal justice reform and restoration of voting rights, two issues he has been speaking about around the country and pushing for in state and federal legislation.

In the course of that discussion, he reiterated a point he has made before that while there may be some instances of voter fraud, it should not be a defining issue of the Republican Party, as it is an issue that is perhaps perceived in a way it is not intended. At no point did Senator Paul come out against voter ID laws.

So it’s fine to push voter ID laws and (presumably) otherwise try to keep minority folk from voting. But just don’t make it a “defining issue of the Republican Party,” which I am reasonably sure not a single person has suggested.

For dessert, the walk-back statement uses the “federalism” dodge, an old favorite of the Paul family on controversial issues:

In terms of the specifics of voter ID laws, Senator Paul believes it’s up to each state to decide that type of issue.

That’s also true of felon disenfranchisement laws and for the most part criminal justice reform, topics on which Paul sees no constitutional bar to a U.S. Senator discussing.

For a brave truth-teller succeeded to the leadership of his father’s Revolution, Rand Paul is sure gun-shy when it comes to defying the conservative movement/GOP CW.

 

By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, May 13, 2014

May 15, 2014 Posted by | Rand Paul, Voter ID, Voter Suppression | , , , , , | Leave a comment

“On His Extremist Island”: Clarence Thomas Would Turn Back The Clock

In yesterday’s Supreme Court ruling on official government prayers at town-council meetings, Justice Anthony Kennedy wrote the 5-4 decision arguing that such practices are permissible under the First Amendment. There was a separate concurring opinion from Justices Samuel Alito and Antonin Scalia, but then Justice Clarence Thomas decided to go further than any of his colleagues.

As Dahlia Lithwick noted, Thomas made the case “that in his view the First Amendment religion clauses don’t apply to the states in the first place.”

Wait, really? Yep, that’s what Thomas actually believes.

…Thomas couldn’t get Scalia’s signature for another part of his dissenting opinion, in which Thomas – not for the first time – disputes the notion that the 1st Amendment’s ban on the “establishment” of religion even applies to state and local governments.

Here’s the deal: the first 16 words of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nearly a century ago, under something called the incorporation doctrine, courts ruled that most of the Bill of Rights applies to state and local government, too.

In other words, under the literal text of the Constitution, Congress can’t pass laws interfering in religion, abridging the freedom of speech, or undermining a free press, but once the Bill of Rights was applied more broadly, neither can states or municipalities.

Thomas, however, wants to turn back the clock. If policymakers in your state chose today to establish Christianity as the official state religion, Clarence Thomas believes that would be entirely permissible under the First Amendment. So long as Congress didn’t pass the law, he says, it’s kosher.

Even Scalia, hardly a moderate, seems to think that’s nutty, but Thomas just doesn’t care.

As Michael McGough’s report added, “Thomas has argued, the Establishment Clause ‘is best understood as a federalism provision – it protects state establishments from federal interference but does not protect any individual right.’”

This is clearly quite radical, even by contemporary standards, though Thomas isn’t entirely alone on his extremist island – it was just last year when North Carolina Republicans considered legislation that read, “The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.”

That bill ultimately failed, as did Thomas’ effort to find justices who would endorse his perspective, but as conservative politics moves sharply to the right, it’ll be worth watching to see just how many Republican officials end up embracing this argument.

 

By: Steve Benen, The Maddow Blog, May 6, 2014

 

May 7, 2014 Posted by | Constitution, Public Prayer, Separation of Church and State | , , , , , , , | Leave a comment

“When Serving In The Militia”: Justice Stevens, The Five Extra Words That Can Fix The Second Amendment

Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.

The adoption of rules that will lessen the number of those incidents should be a matter of primary concern to both federal and state legislators. Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce. It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.

The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.

Organizations such as the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans’ Second Amendment rights. Five years after his retirement, during a 1991 appearance on “The MacNeil/Lehrer NewsHour,” Burger himself remarked that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

In recent years two profoundly important changes in the law have occurred. In 2008, by a vote of 5 to 4, the Supreme Court decided in District of Columbia v. Heller that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense. And in 2010, by another vote of 5 to 4, the court decided in McDonald v. Chicago that the due process clause of the 14th Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens. I dissented in both of those cases and remain convinced that both decisions misinterpreted the law and were profoundly unwise. Public policies concerning gun control should be decided by the voters’ elected representatives, not by federal judges.

In my dissent in the McDonald case, I pointed out that the court’s decision was unique in the extent to which the court had exacted a heavy toll “in terms of state sovereignty. . . . Even apart from the States’ long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.”

“Across the Nation, States and localities vary significantly in the patterns and problems of gun violence they face, as well as in the traditions and cultures of lawful gun use. . . . The city of Chicago, for example, faces a pressing challenge in combating criminal street gangs. Most rural areas do not.”

In response to the massacre of grammar-school students at Sandy Hook Elementary School, some legislators have advocated stringent controls on the sale of assault weapons and more complete background checks on purchasers of firearms. It is important to note that nothing in either the Heller or the McDonald opinion poses any obstacle to the adoption of such preventive measures.

First, the court did not overrule Miller. Instead, it “read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” On the preceding page of its opinion, the court made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes such as self-defense. Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense, neither machine guns nor sawed-off shotguns satisfy the “common use” requirement.

Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the court’s decision in Heller.

A second virtue of the opinion in Heller is that Justice Antonin Scalia went out of his way to limit the court’s holding not only to a subset of weapons that might be used for self-defense but also to a subset of conduct that is protected. The specific holding of the case covers only the possession of handguns in the home for purposes of self-defense, while a later part of the opinion adds emphasis to the narrowness of that holding by describing uses that were not protected by the common law or state practice. Prohibitions on carrying concealed weapons, or on the possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or imposing conditions and qualifications on the commercial sale of arms are specifically identified as permissible regulations.

Thus, Congress’s failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything that the Supreme Court has said about that amendment. What the members of the five-justice majority said in those opinions is nevertheless profoundly important, because it curtails the government’s power to regulate the use of handguns that contribute to the roughly 88 firearm-related deaths that occur every day.

There is an intriguing similarity between the court’s sovereign immunity jurisprudence, which began with a misinterpretation of the 11th Amendment, and its more recent misinterpretation of the Second Amendment. The procedural amendment limiting federal courts’ jurisdiction over private actions against states eventually blossomed into a substantive rule that treats the common-law doctrine of sovereign immunity as though it were part of the Constitution itself. Of course, in England common-law rules fashioned by judges may always be repealed or amended by Parliament. And when the United States became an independent nation, Congress and every state legislature had the power to accept, to reject or to modify common-law rules that prevailed prior to 1776, except, of course, any rule that might have been included in the Constitution.

The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.

It is true, of course, that the public’s reaction to the massacre of schoolchildren, such as the Newtown killings, and the 2013 murder of government employees at the Navy Yard in Washington, may also introduce a strong emotional element into the debate. That aspect of the debate is, however, based entirely on facts rather than fiction. The law should encourage intelligent discussion of possible remedies for what every American can recognize as an ongoing national tragedy.

 

By: John Paul Stevens, Associate Justice of The Supreme Court from 1975 to 2010. This essay is excerpted from his new book, “Six Amendments: How and Why We Should Change the Constitution.”; The Washington Post, April 11, 2014

April 13, 2014 Posted by | Constitution, Gun Control, Gun Violence | , , , , , , , | 1 Comment

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