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The Roosevelt Rubicon

Posted in Clairvoyance, Law and Politics by Mike Sacks on March 24, 2010

Per the latest round of constitutional attacks on the now-passed Patient Protection and Affordable Care Act (PPACA), my original post from early January still holds.

The Roberts Court knows not to backpedal across the Roosevelt Rubicon.  Striking down the PPACA will be today’s equivalent of the pre-1937 Hughes Court’s sustained attack on New Deal legislation.

Any invocations of, say, Citizens United in fear (or support) of the notion that the Roberts Court will not hesitate to strike down the law are overheated.  We may expect the conservative bloc and Kennedy to chart rightward on conservative-libertarian issues, but as long as the Democrats hold at least one of the elected branches, the Court will invalidate neither landmark New Deal and Great Society legislation nor core components of the Obama agenda.

I cast the same suspicion over arguments citing Bush v. Gore as historical, if not legal, precedent for the Court’s capacity for rash, political meddling.  Challenges to the PPACA will simply lack the blinding immediacy of a Presidential election left unresolved a month before Inauguration Day.

Finally, all of this hand-wringing may be for naught: I think the circuit courts will uniformly uphold the law’s constitutionality against attacks, and without a circuit split, I doubt the Court will even grant certiorari.  And if there is a circuit split and the Court does hear the case, then I think we’re likely to see a near-unanimous upholding of the law.

In contrast, the Court will more likely reserve its blockbuster 5-4 decision to affirm or reverse whatever the Ninth Circuit will hold on the gay marriage case, an issue of grave importance to movement conservatives without the imprimatur of historical inviolability implicitly grandfathered into the PPACA from its LBJ- and FDR-era ancestors.

8 Responses

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  1. [...] Posted in Uncategorized by Mike Sacks on March 26, 2010 Linda Greenhouse echoes my previous post in her NYT Opinionator column filed last night: John Roberts is an acutely image-conscious chief [...]

  2. Thomas said, on March 26, 2010 at 12:37 pm

    Why would conservatives try to strike down the PPACA? I don’t think any real constitutional lawyer involved in the debate can argue against the governments ability to tax, however from what I’m reading there might be room to argue against the mandate to buy insurance. A lot of people are pointing out that if a state can mandate that a licensed driver buy auto insurance to drive a car, then the federal government should be able to mandate that everyone buy medical insurance. I think the disagreement with this comes up because the two issues really aren’t the same. While the federal government can use the powers of taxation like they do with medicare/aid and social security, none of those programs require you to use them, and then there is the question of whether or not the commerce clause gives the federal government the legal authority to force you to purchase goods from a private company.

    If they could strike down the mandate, then it would pretty much effectively neuter the PPACA because without a mandate, reducing rising costs becomes that more difficult.

  3. Joe said, on March 31, 2010 at 12:18 am

    You aren’t really required to use insurance either — if you don’t, you have to pay a tax penalty. The law can be easily adjusted if the exact way this is done is problematic. For instance, just tax everyone x amount, giving those with insurance the ability to deduct that tax (in effect, something like that is done for education in my area).

    Fact is over 80% already have government or private insurance already. A few who don’t are too poor to be taxed. A few more would get it with the help the law gives. “Forcing” people to get insurance that now is easier to get is not really a problem most people are really worried about.

    The ‘private company’ thing is weird — if done pursuant to its powers, why should that matter? Is it some sort of 9A right or something?

    The two insurance examples are basically the same thing. We are guaranteed certain health related services under the law. We are therefore a “risk” just as a driver of a car is, thus setting up the need to pay for insurance or some tax alternative.

    The law also is a means to protect insurance as a whole, a commercial issue that is a different issue, but the “forced insurance” angle is not really a bad comparison either.

  4. Joe said, on March 31, 2010 at 12:23 am

    P.S. the tax proposed above can be mainly income related, which should bring in most people; others can be taxed some other way … doubtful many will fall between the cracks here that would have paid under the law as it stands. Not enough to “neuter” the law to be sure.

  5. [...] Meanwhile, in The New Republic, Barry Friedman and Jeff Rosen support what I’ve written here several times over (or the other way around – as they are law professors who write books, not blogs): How will [...]

  6. [...] Of course, Roberts may have simply agreed from the start with Breyer and the liberals.  But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer.  However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon. [...]

  7. [...] the prudent captain of his man of war‘s voyage towards economic liberty without crossing the Roosevelt Rubicon. Tagged with: Adam Liptak, Chief Justice Roberts, NAMUDNO, PCAOB, Roberts Court, Roosevelt [...]

  8. [...] F1@1F in May, post-Comstock: Of course, Roberts may have simply agreed from the start with Breyer and the liberals.  But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer.  However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon. [...]


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