Tuesday, June 26, 2012

Our Independent Judiciary

Ezra Klein at WaPo:
“Over the past two years, the Republican Party has slowly been building a permission structure for the five Republicans on the Supreme Court to feel comfortable doing something nobody thought they could do: Violate the existing understanding of the commerce clause and, in perhaps the most significant moment of judicial activism since the New Deal, overturn either all or part of the Affordable Care Act. The first step was perhaps the hardest: The Republican Party had to take an official and unanimous stand against the constitutionality of the individual mandate. Typically, it's not that difficult for the opposition party to oppose the least popular element in the majority party's signature initiative. But the individual mandate was a policy idea Republicans had thought of in the late 1980s and supported for two decades. They had to, in effect, persuade every Republican to say that the policy they had been supporting was an unconstitutional assault on liberty.”

1 comment:

  1. Yes. It's one thing for a GOP senator to claim he supported Dole's plan primarily because the alternative was Clinton's plan, so the mandate was a policy compromise that on its own merits conservatives don't like. This argument may seem thin, but it is certainly plausible.
    However, it strains reason to say that for the sake of defeating Clinton's legislation the GOP supported a policy that they deem unconstitutional. What kind of public servants does that make them?
    The other absurdity is that so much else is predicated on a robust interpretation of the commerce clause, and not just the EPA and the FDA that a lot of the GOP would love to toss out. To my mind, if the mandate is unconstitutional, regulating narcotics would be the next lowest hanging fruit.