For Progressives, The Bloom Is Beginning To Fade From The Roberts' Obamacare Rose

 

 M2RB:  This Providence

 

 

 

Oh, you're throwing everything you have at me

 Cheap shots, low blows

Will you ever let it go?

You're so pathetic

Give it a rest

You're not gonna win

You're never gonna

You love the sound of your own voice

And the crown of death upon your head

Oh, c'mon

You in all your royalty only adds to infamy

You're going to taste my fist

You're so good at stretching the truth

Into a sugar-coated lie

Everyone takes a bite

I have been dining with the enemy

It was a wolf in sheep's clothing

Now it's so clear to me

 

 

 

 

"A Congress that can advance national priorities only through its taxing power is a Congress with little power at all.  That is the real legacy of the last term."

- New York Times, 1 July 2012

By PAMELA S. KARLAN

ANTON CHEKHOV once remarked that “one must not put a loaded rifle on the stage if no one is thinking of firing it.” In the term that ended last week, the Supreme Court reached a liberal outcome in cases involving President Obama’s health care law, Arizona’s draconian immigration statute and mandatory life sentences for juveniles. But the conservative majority also laid down a cache of weapons that future courts can use to attack many of the legislative achievements of the New Deal and the Great Society — including labor, environmental, civil rights and consumer protection laws — and to prevent new progressive legislation. Far from being a source of jubilation, the term may come back to haunt liberals. 

The immediate result of Thursday’s 5-to-4 health care ruling was a victory for the Obama administration and the millions of Americans who will get improved access to medical care. But four justices would have struck down every provision of the 900-plus-page act, and Chief Justice John G. Roberts Jr., who provided the fifth vote to uphold the mandate that individuals buy insurance or pay a penalty, distanced himself from the law. “It is not our job,” he wrote, “to protect the people from the consequences of their political choices.” The chief justice, who at 57 is likely to sit on the court for at least another two decades, made clear that government’s ability to address many of the nation’s most pressing problems is subject to some new limitations.

We take for granted that the federal government can forbid landlords to reject a tenant based on his race or religion; prohibit development on fragile wetlands; finance the Medicare program for the elderly; require public schools to give girls an equal opportunity to play sports; collect revenue to pay for the National Institutes of Health and the national parks; encourage energy conservation by taxing gas guzzlers; prohibit discriminatory voter ID laws; and vindicate the right of state government employees to take unpaid leave to care for sick relatives.

The conservative legal movement has already attacked many of these provisions, and the Roberts court has been steadily supplying it with ammunition to do so.  Conservative judicial rhetoric — for example, Justice Antonin Scalia’s denunciation last week of the Obama administration’s decision not to deport young, law-abiding illegal immigrants who came to this country as children — may be designed to change the political climate as well.

The federal government’s ability to regulate economic and social life stems largely from four powers in the Constitution. Under the commerce clause, Congress can “regulate” national economic activity. Under the taxing power, it can “lay and collect Taxes.” Under the spending power, it can “provide for the common Defence and general Welfare of the United States.” And under the enforcement powers, it can enact “appropriate legislation” to enforce the 14th Amendment’s equal protection and due process clauses and the 15th Amendment’s guarantee of the right to vote regardless of race.

From the 1930s through the Warren and Burger courts, the Supreme Court largely deferred to the political branches’ judgments about the scope of these powers; it was their partner, not their adversary. The court recognized — as Justice Ruth Bader Ginsburg pointed out in her opinion on the health care case — that the political process was the primary vehicle for limiting government’s powers.

Under the last chief justice, William H. Rehnquist, the court began to turn, particularly on Congress’s commerce and enforcement powers. The court limited some statutes — notably, a section of the Americans With Disabilities Act that allowed state workers to sue their employers and a section of the Violence Against Women Act that gave victims of gender-motivated violence the right to sue in federal court — but upheld others, including other applications of the disabilities law, a provision of the Family and Medical Leave Act, and a statute criminalizing possession of homegrown marijuana.

The Roberts court has intensified the effort to reduce federal power. That the individual mandate was upheld should not overshadow the court’s ruling on Medicaid expansion — the part of the ruling that is most likely to affect other legislation in the near future.

For the first time since the New Deal, the court struck down an exercise of Congress’s spending power. 

It held that Congress lacked the power to deny Medicaid funds to states that refuse to expand their coverage. Chief Justice Roberts — joined by the liberal justices Stephen G. Breyer and Elena Kagan — held that while the government can deny additional Medicaid funds to states that refuse to expand their coverage, it cannot penalize them by rescinding current Medicaid payments.

This is a loaded gun indeed.

MANY state and local governments, universities and nonprofit agencies build their operations around federal financing. If the federal government can deny them additional money only when it adds conditions the recipients must meet, it will be hamstrung in ensuring compliance with critical federal objectives. For example, the government gives grants on the condition that recipients will not discriminate on the basis of race, sex and disability. 

If Congress adds sexual orientation to the list — which seems likely at some not-too-distant point — must it maintain existing financing for groups that defiantly persist in discriminating against lesbians and gay men?

A 2000 law requires state prisons and local jails that get federal funds to accommodate inmates’ religious practices. But those facilities received money long before the law was passed. 

Can the government credibly threaten to cut off funds to facilities that violate the law, or are its enforcement tools now limited?

In less-noticed opinions, the court also curbed federal power in important ways...

It rejected the government’s view that drug company representatives should be entitled to overtime under the Fair Labor Standards Act. 

It seemed poised to severely restrict Congress’s ability to give private plaintiffs the right to enforce consumer protection laws, unless they could show direct economic injury. (On the final day of the term, the court said it wouldn’t decide the case after all.) 

In another health care case, the court refused to permit state workers to sue for violations of their right to take sick leave for themselves under the Family and Medical Leave Act. 

A 5-to-4 majority ignored evidence that although the act uses a gender-neutral leave model, it was designed in significant part to protect childbearing women against pervasive employment discrimination.

In the fall, the court will have further opportunities to advance the conservative agenda. It will almost certainly decide cases involving voting rights, race-conscious affirmative action and same-sex marriage. Three cases involving federal environmental law are already on the docket. And even before the court struck down Montana’s century-old ban on corporate political spending, there were already a slew of new challenges to campaign finance regulations working their way toward the court.

What, then, to make of the court’s landmark decision to uphold the individual mandate? Chief Justice Roberts construed the mandate not as a requirement that individuals purchase health insurance but as a choice: buy insurance or pay a tax. But the conservatives surely know that a Congress that can tax but not do much else — spend money, regulate the economy or enforce civil rights — will be hamstrung. Taxes are unpopular and nearly every Republican member of Congress has promised to oppose any additional taxes on individuals or businesses.

A Congress that can advance national priorities only through its taxing power is a Congress with little power at all.  That is the real legacy of the last term. The Supreme Court has given Americans who care about economic and social justice a reason to worry this Fourth of July. The court’s guns have been loaded; it only remains to be seen whether it fires them.

Pamela S. Karlan is a professor of public interest law at Stanford and a co-author of “Keeping Faith With the Constitution.”

Here are the opening words that must have made Professor Karlan's blood run cold:
 

Held: The judgment is affirmed in part and reversed in part. 648 F. 3d 1235, affirmed in part and reversed in part.

CHIEF JUSTICE ROBERTS delivered the opinion of the Court ...


2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.

The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” 


Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable CareAct’s other reforms. Each of this Court’s prior cases upholding lawsunder that Clause involved exercises of authority derivative of, andin service to, a granted power.


www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

 

A Sheep In Wolf's Clothing - The Providence

Oh, you're throwing everything you have at me
Cheap shots, low blows
Will you ever let it go?
You're so pathetic
Give it a rest
You're not gonna win
You're never gonna

You love the sound of your own voice
And the crown of death upon your head
Oh, c'mon
You in all your royalty only adds to infamy
You're going to taste my fist

You're so good at stretching the truth
Into a sugar-coated lie
Everyone takes a bite
I have been dining with the enemy
It was a wolf in sheep's clothing
Now it's so clear to me


I've had enough of your games
If you're not trembling, you better be
Cause we're gonna be the end of you
I've had enough of your games
I'm gonna show them who you really are
And I can tell you right now, it won't be pretty

You say, "I can convince anyone, anything."
Provoking the anger of a jealous God
Still you spin a web of lies, fear, lust, pride, greed, and shame
You say no one
Oh, you say no one escapes the pain

I've had enough of your games
If you're not trembling, you better be
Cause we're gonna be the end of you
I've had enough of your games
I'm gonna show them who you really are
And I can tell you right now, it won't be pretty

I'm coward, not a fighter
Disguised as a lover in disguise
For so long now, you've held me down
You held me, you held me down
You held me down, you held me down for so long
But it's not gonna last
Cause I can see right through your beautiful lies

I've had enough of your games
If you're not trembling, you better be
Cause we're gonna be the end of you
I've had enough of your games
I'm gonna show them who you really are
And I can tell you right now, it won't be pretty

Oh, you're throwing everything you have at me
Cheap shots, low blows
Will you ever let it go?
You're so pathetic
Give it a rest
You're not gonna win
You're never gonna