What SCOTUS Conservatives Might Do to Health Care—and Why It Could Dismantle Congressional Power

I have to laugh at this passage from a Politico story about the possible fallout from the Supreme Court's health care decision:
Mark Tushnet, a Harvard law professor ... doubts the majority would assert their decision applies only to this case, as the court's unsigned majority opinion did in Bush v. Gore. In that seismic case deciding the 2000 presidential election, five conservatives said their ruling was "limited to the present circumstances."

That caveat drew widespread mockery from legal experts of various ideologies, who accused the justices of not having the guts to stand behind the consequences of their decision.

"They're not going to say that this time, that's for sure," Tushnet said in an interview. "They know how stupid they looked then."

I agree with Tushnet that the justices don't want to embarrass themselves again by saying something like that. But that doesn't mean they won't do something like that again. They've learned their lesson -- if they feel like establishing a precedent they may want to ignore in the future, they'll just do it and say nothing.

(That's basically what Scalia did in his previous opinion on the Commerce Clause in a marijuana case, Gonzales v. Raich. He didn't telegraph that his view of the clause in that case was "limited to the present circumstances." He's just flip-flopping now and saying that what applied to pot doesn't apply to health care, because it just doesn't.)


The Politico article is about possible consequences of the heath care ruling. I think the folks who are worried are worried for a good reason:

"A decision in the challengers' favor ... would lead to probably an array of attacks on different parts of the federal regulatory state because for the first time, you have five justices who are going to take very seriously limits on Congressional power," Tom Goldstein, publisher of SCOTUSblog, said at a POLITICO Pro briefing just before last week's oral arguments....

If the health care law goes down, [Simon] Lazarus [of the National Senior Citizens Law Center] said Superfund legislation imposing cleanup of environmental contamination and statutes aimed at preventing employment discrimination could be next in the cross hairs....

An "expansive" ruling could jeopardize laws including the Endangered Species Act and the Clean Water Act and might even rein in federal regulation of the labor market, Tushnet said....

After Citizens United, I think it's quite reasonable to imagine that the Federalist-Four-plus-Kennedy-as-useful-idiot might put 75 years of settled law back on the table. They clearly don't care how much chaos they cause, if oil billionaires are pleased.
But they'll overturn these precedents as soon as it suits them. They'll declare limits on federal control of commerce now, then, if a GOP president and Congress make it illegal to ban fracking, say, via local zoning, they'll do a 180 and say that's constitutional.
They don't care. That's why they need to be stopped. At the very least, they need to be made part of a permanent minority on the Court, which is all the reason you need to vote Obama in November.

No More Mister Nice Blog / By Steve M

Posted at April 2, 2012, 3:49am

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