"This case isn't so much about freedom from government-mandated broccoli or gyms. It's about freedom from our obligations to one another..." - Dahlia Lithwick, Slate
"Health care is interstate commerce. Is this a regulation of it? Yes. End of story." - Charles Fried, Solicitor General under Ronald Reagan, 1985 to 1989
San Pedro, CA - The United States' constitution was framed with several ends in mind. Chief among them, arguably, was preventing the US from repeating the history of Rome's decline from republic to empire. In that respect, it has obviously failed, as the WMD-less people of Iraq and the al-Qaeda-less people of Afghanistan understand perfectly well. The US' own imperial elites, however, take quite a bit longer to wise up.
Which is why it was simultaneously so touching and so absurdly humourous to see US Senator Richard Blumenthal (D-CT), a former attorney general of Connecticut, warn in a press conference with other Democratic Senators that the Supreme Court risked "grave damage to this court, in its credibility and power", if it were to strike down the Obamacare reform law as unconstitutional. Credibility? The court that gave us Bush v. Gore and Citizens United worried about credibility?
Citizens United was a poster child for unbridled and unpopular judicial activism. The Court's conservative majority, which pretends to abhor such activism, first ordered the parties to remake the case to enable a more sweeping ruling - a virtually unheard of move - and then overturned 100 years of precedent. Bush v. Gore was more lawless still - even the justices admitted it, when they wrote that the decision should not be used as precedent for any other case. At its heart, the decision held that the 14th Amendment's "equal protection" clause required the protection of an unknown number of yet-uncounted ballots by throwing them out - along with all other uncounted ballots (hence the "equal" part of the most dubious "protection").
That was hardly the only arbitrary and absurd aspect of the Bush v. Gore decision. Indeed, almost all legal observers despaired of making any sense of the ruling - even those who defended the results found the reasoning itself impossible to defend. One person who did attempt a thoroughgoing analysis was famed retired LA prosecutor Vincent Bugliosi, who argued (article, book, book review) that the complex maze of contradictory rationales all made perfect sense from one perspective: as a criminal enterprise to steal the election.
Prior to the Supreme Court hearings last week, there was good reason to think the case was neither close nor hard - if one looked only at the law. As Reagan Solicitor General Charles Fried put it in the quote above, the law stood squarely in the middle of the Congress' Commerce Clause power. And other conservatives agreed, including ones like Jeffrey Sutton and Lawrence Silberman - two appellate court judges who had already found Obamacare to be constitutional. But that assessment foolishly disregarded politics, as Fried himself regretfully noted in an interview with Ezra Klein, from which the quote above also comes.
Re-framing the context
When activist judges want to radically rewrite the law, a general strategy often comes into play revolving around re-framing the context in which arguments are made. First, the framework of existing precedent is set aside. Second, the question at hand is framed provisionally in terms of other issues that existing precedent has routinely dispensed with. And third, a new framework is developed to make sense of the problems created by getting rid of the old framework. This process usually takes several years and a series of cases to unfold, but this past week, the process appeared in highly compressed form, seemingly in the course of a single session of oral arguments on Tuesday, only to be further confirmed the following day.
The old framework was - as Fried noted - the Congressional power of the Commerce Clause. The new framework - at least as tentatively expressed by justices Kennedy and Scalia most pointedly - is that of seeking an ill-defined "limiting principle" - to wit, if Congress can pass this act, what Constitutional principle stops it from doing anything and everything? (As if that weren't already answered in the old framework.) In between, the provisional framing driving the pivot from Commerce Clause to "limiting principle" came not from the law, but from a wholesale influx of overheated Tea Party rhetoric. When asked by Klein, Fried argued against this hijacking process quite succinctly:
First of all, the limiting principle point kind of begs the question. It assumes there's got to be some kind of articulable limiting principle and that's in the Constitution somewhere. What Chief Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress.
Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is healthcare commerce among the states? Nobody except maybe Clarence Thomas doubts that. So healthcare is interstate commerce. Is this a regulation of it? Yes. End of story.
Here's another thing Marshall said. To regulate is "to make the rule for." Does this make a rule for commerce? Yes!
While Fried was making the point that there is not and ought not to be a "limiting principle" within the purview of the Commerce Clause, Yale Law School constitutional scholar Akhil Reed Amar took a broader view in fighting back against the conservative judicial activists. Amar detailed a number of limiting principles when Klein interviewed him. First, he said, "The limit is the Constitution. What Congress does, has to be in the enumerated powers." He then went on to discuss two of these specifically, the Interstate Commerce Clause and the Necessary and Proper Clause.
But above all, Amar argued, "The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That's the main check." Theoretically, Amar noted, Congress could raise taxes to 100 per cent - and some tried to use this argument against the income tax when it was first introduced. But the entire democratic nature of our government is a practical check against that purely theoretical possibility.
Amar compared this to the "broccoli argument," which brings us directly to the next issue at hand: the role of Tea Party rhetoric in shaping the provisional framing used by Scalia and others to grease the skids for their "limiting principle" wild goose chase. The "broccoli argument" is that if the government can force you to buy health insurance, then it can force you to buy broccoli (or join an exercise club, in another variant.) These arguments completely obscure and confuse the nature and purpose of insurance, among other things. The broccoli and exercise club arguments were just two of the top five Tea Party buzzwords Scalia used identified by Talking Points Memo. Another one was the "Cornhusker Kickback," an earlier provision that was stripped from the law before it was passed. On this point as well as several others, different commentators have argued over whether Scalia, among others, was ignorant, confused, indifferent or just plain lazy (he also echoed the Tea Party complaint of the bill running to "2,700 Pages"). Reporting for Talking Points Memo Brian Beutler wrote:
After oral arguments Tuesday - over the constitutionality of the mandate - and Wednesday morning - over how much of the law should stand if the mandate falls - conservative-leaning justices revealed a persistent lack of knowledge about the healthcare and health insurance markets, the structure of the law and its myriad provisions that have nothing to do with the mandate.
At a number of junctures Tuesday, justices seemed confused - or willfully obtuse - about the nature of risk pooling, and the health insurance market.
The justices then used their confusion and misunderstanding as the basis for questioning Obamacare. Whatever the reason for it, conservative justices were observably in over their heads. The infusion of Tea Party rhetoric into the proceedings signalled a dramatic drop in intellectual rigour, even basic competence, whatever the causal relationship might be.
Things only went from bad to worse after that. First, states also objected to the Medicaid expansion included in Obamacare, based on the notion that it constituted "coercion" - thus echoing the general Tea Party cry of federal government "tyranny" opposed to individual liberty. The central problem with this objection is that it's utter nonsense. The supposedly novel and unprecedented "coercion" involved is that the federal government simply wants states to spend money it gives them for the intended purposes - a perfectly normal, routine requirement, that's been going on longer than Scalia has been on the bench.
Second, was the argument over "severability" - what happens to Obamacare if the individual mandate part is struck down. Common sense would say that most of the rest should remain - particularly those parts already in place. As Samuel Sessions and Allan Detsky pointed out in The New England Journal of Medicine last week, "Many ACA provisions are already in effect and thus clearly can function without the mandate, which becomes effective in 2014."
According to how normal people think, the principle of judicial restraint would mean striking down as little of the rest of the law as possible. But Justice Kennedy proposed the exact opposite. He was worried if "one provision [the individual mandate] was stricken and the others remained to impose a risk on insurance companies that Congress never intended... That, it seems to me can be argued at least to be a more extreme exercise of judicial power than... striking the whole." It seems one needs to think novel thoughts, in order to be a "true conservative". Or a least a judicially active "restrained" one.
If the court were to strike down the healthcare law, "It would be more problematic than Bush v. Gore," Fried told the LA Times, "It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before."
Stepping back a bit, there are two over-arching points hovering over all of the above. The first is that Tea Party conservatism has clearly arrived in the Supreme Court, and that this means a substantial favouring of individual "freedom" from all social obligations. While libertarian thinking has long been justified by questionable readings of John Locke - who never seriously attacked traditional common law social obligations - the last few years have seen a decided shift towards Ayn Rand, who modelled her first incarnation of her ideal protagonist on a 1920s psychopathic multiple murder, William Hickman, as author Michael Prescott has explained. Prescott quotes an excerpt about this ideal protagonist, Danny Renahan, from Rand's journal:
[Renahan] is born with a wonderful, free, light consciousness - [resulting from] the absolute lack of social instinct or herd feeling. He does not understand, because he has no organ for understanding, the necessity, meaning, or importance of other people... Other people do not exist for him and he does not understand why they should.
The "organ for understanding, the necessity, meaning, or importance of other people" is what people aside from Ayn Rand know as conscience. Those who lack it are known as psychopaths, though not all psychopaths are killers. Some are the most beguiling of conmen, for example. In adopting a Tea Party/Randian notion of "freedom", this is where conservatives on the US' highest court now seem to be headed.
The second point is that - as with Bush v. Gore - the main purpose here may well be much more limited and immediate: conservatives on the Court may simply want to do everything they can to defeat Barack Obama, while making it seem like something else - even a matter of high principle. What better way to bolster the flagging Tea Party narrative in the era of Occupy Wall Street, than to stamp it with the authority of the highest court in the land? The rule here is the same as with any common criminal... or psychopath: Watch what they do, not what they say.
Paul Rosenberg is the senior editor of Random Lengths News, a bi-weekly alternative community newspaper.
Follow him on Twitter: @PaulHRosenberg
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.