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Robert Creamer

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Overturning Obamacare Would Make Roberts Court Most Activist, Partisan in Modern History

Posted: 03/28/2012 12:17 pm

Time was, not long ago, when the right wing railed against the overreach of unelected judges with lifetime appointments who tried to usurp the power of Congress and impose their own vision of society.

That was before the Roberts Court. In fact, it turns out, many extreme conservatives didn't give a rat's left foot about the overreach of unelected judges. They simply wanted judges who would impose their vision of society on the rest of us.

Justices Roberts and Kennedy will likely be the deciding votes on the question of whether the individual responsibility provision of the Affordable Care Act passes constitutional muster. But they will also decide whether the Roberts Court goes down as the most activist, partisan court in modern history.

Up to now the Court's decision in the Citizens United case allowing corporations and billionaires to make virtually unlimited contributions to political candidates and "Super Pacs" stood out as its most glaring beacon of judicial activism. Citizens United reversed a century of legal precedent to reach a result that gives corporations the political rights of people, and distributes the right of free political expression in proportion to one's control of wealth. Not exactly what Thomas Jefferson had in mind.

It was, of course, exactly what the far Right had in mind. Extreme conservative voices found themselves strangely silent in the face of the Supreme Court's willingness to substitute its judgment for that of elected Members of Congress and to upend the bi-partisan McCain-Feingold law that had been passed to regulate federal elections.

But if the Court rejects the individual responsibility provisions in the Affordable Care Act, that will take the cake.

In fact, when Congress passed Obamacare there were very few serious constitutional scholars who questioned the constitutionality of this provision.

There is no question whatsoever, that government in America has the right to require our citizens to pay for public goods or for services that we decide can best be provided through government.

Clearly, government can tax homeowners to provide the community with fire protection, for example. You might not need fire protection for years -- or decades -- or ever -- but government can decide that you have to pay into the fire protection district because if your house catches fire, it could affect the entire community.

But, says the right wing, government can't require an individual to purchase a product from a private company they may not want or "need."

Now I personally believe that it would make much more sense to expand Medicare to all Americans, and maintain one, efficient government-run insurance system that covers everyone -- and cuts out the need to pay huge profits to Wall Street and the big bonuses to insurance company CEO's.

But some years ago, conservative Republicans like Mitt Romney proposed providing universal health care coverage by requiring everyone to buy insurance from private insurance companies that are regulated through state-based exchanges.

When Romney was Governor of Massachusetts he got the state legislature to pass this kind of system -- Romneycare -- which has been functioning in the state for many years and whose constitutionality has never been questioned by the Supreme Court.

There is no question that the government can require parents to pay private pharmaceutical companies for their kids' vaccinations before they enter school -- and it can also require them to attend school -- because both issues affect the welfare of the entire community.

And there is no question as to the the constitutionality of the many state laws that require anyone who drives a car to purchase private car insurance.

But, you say, the difference is that you don't have to drive a car -- you can simply decide not to get a drivers license if you want to avoid buying private car insurance.

True. But the need for health care is not elective. Last time I looked, everyone ultimately dies. I don't care how healthy you are, everyone inevitably has some health problem in their lives. The question is not whether you will need health care, the question is how you will pay for it when you do.

And in this respect, health care is entirely different than virtually any other commodity.

First, it is not entirely subject to the normal laws of economic activity. People can't determine how sick they can afford to be, or which diseases fit into the family budget. You don't come home one day and say: "Gee honey I just got a raise, now I can have cancer!" Health care needs are not elective purchases like cars or TV's.

And when it comes to health care, there is often little relationship between cost and value. A ten-dollar vaccine can add decades to your life, and hundreds of thousands of dollars of intensive care can add weeks or days.

But most important, while we might not agree that every American is entitled to a Cadillac (or in the case of Mitt Romney, two Cadillac's), we do agree -- as a society -- that everyone is entitled to the best health care that is available no matter their wealth or station in life. We don't believe that anyone should be left as roadkill after a traffic accident because he or she can't pay for health care.

That being the case, someone can be young and healthy and vibrant one minute, and in need of massive, costly health care services the next.

The individual responsibility provisions of the Affordable Care Act simply says that everyone be required to pay -- at a level they can afford -- for the fact that society won't leave them by the side of the road to die after an accident -- or when they are struck by cancer or a heart attack. It recognizes that in America everyone actually does participate in a form of health insurance system, whether they pay for it or not. It says that young, healthy people should not be allowed to be "free riders" in the system, until the moment they become sick or injured.

The fact is that in the current system, 40 million Americans are not formally part of health insurance plan -- most because they can't afford it without the kind of subsidies provided in the Affordable Care Act. Of course some are also uninsured because they think they are "immortal." But being uninsured often means that you don't go to the doctor because you can't afford checkups or preventive care. It often means that you only go to the emergency room of a hospital or a neighborhood clinic when you already need costly health care interventions that would have been unnecessary had you had the security of a formal health insurance plan.

That costs all of us money, and because they often wait too long, it costs many of our fellow citizens their health and often their lives. What's more, it places many American families one illness away from financial ruin.

And it could lead us all to financial ruin. The crazy-quilt way we pay for our health care in America has resulted in skyrocketing health care costs that include expenditures for administration and overhead that are far greater than in any other country on earth. These costs put our products and companies at a huge competitive disadvantage with our competitors abroad. That's because we were the only industrial country in the world that did not provide universal health care to its citizens -- until we passed Obamacare.

Well, you say, the states may have the legal right to require Americans to buy private insurance, but not the Federal Government.

Does anyone doubt that the massive health care industry is engaged in interstate commerce?

Congress' power to regulate interstate commerce is explicitly granted by the Constitution. That power has been interpreted expansively and has a long established history, fortified by scores of rulings by previous Supreme Courts.

If the current Supreme Court holds that the federal government has no right to structure the national health care market place, it will be reversing years of precedent. It will brand itself as a band of judicial activists who substitute the will of unelected judges for that of the representative body of Congress.

If the Supreme Court strikes down the Affordable Care Act, it will not be protecting a minority's right to refrain from buying health care. That is not possible, since everyone ultimately needs health care. If it takes that extraordinary step, it will simply be substituting its own political philosophy for that of Congress. Just as it did with Bush v. Gore, it will once again be turning the Supreme Court into an instrument of brazen partisanship.

Robert Creamer is a long-time political organizer and strategist, and author of the book: Stand Up Straight: How Progressives Can Win, available on Amazon.com. He is a partner in Democracy Partners and a Senior Strategist for Americans United for Change. Follow him on Twitter @rbcreamer

 
 
 

Follow Robert Creamer on Twitter: www.twitter.com/rbcreamer

Time was, not long ago, when the right wing railed against the overreach of unelected judges with lifetime appointments who tried to usurp the power of Congress and impose their own vision of soc...
Time was, not long ago, when the right wing railed against the overreach of unelected judges with lifetime appointments who tried to usurp the power of Congress and impose their own vision of soc...
 
 
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HUFFPOST SUPER USER
WillistonElkoAlum2002
Strongly favor abortion rights & less government.
08:06 PM on 03/29/2012
I have been railing against this activist court since Carhart v. Gonzales in 2007. About time others have started to realize what I have realized for nearly five years now.
HUFFPOST SUPER USER
Jim Pasterczyk
Banned!
06:51 PM on 03/29/2012
"That was before the Roberts Court." Correction: that was before the Scalia court. He has a robe and he intends to use it as long as there's breath in his body.
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HUFFPOST SUPER USER
Marc Lewis
A 'Wobbly' Progressive for 50yrs
06:08 PM on 03/29/2012
I would not describe this Court as "the best elements in the Country". Given that, I give you a quote from President James Madison; "The day will come when our Republic will be an impossibility because wealth will be concentrated in the hands of the few. When that day comes, we must rely upon the wisdom of the best elements in the country to readjust the laws of the nation". Madison did not say how this would be accomplished but remember, Madison (along with the other "founding fathers") was a revolutionary.
HUFFPOST SUPER USER
auntnoree
10:30 AM on 03/29/2012
Lol. A felon complaining about judges.
10:26 AM on 03/29/2012
Doesn't it bother anyone that the liberal side of the court has presumabley decided the case before oral arguments and without questions during oral argument? Isn't that the issue always leveled at Justice Thomas and why liberals consider him "stupid" and unworthy of being a Justice?
HUFFPOST SUPER USER
yorkie
10:13 AM on 03/29/2012
Excellent piece here by Creamer here! Could not ad more. This case should have reached the court until the full law has been implemented and challenged. What to do other than hoping and hoping voters will wake up to the fact the Repubs are not yr friend and only care about power and the $$$ they get from insurance and oil companies keeping us all paying more,,while earning less !
Zip Zinzel
If a Nation expects to be both Ignorant & Free . .
09:43 AM on 03/29/2012
SORRY MR. CREAMER, I HAVE TO CORRECT YOU
I'm a TR-style Progressive Dem, and I'd hate to see the ACA overturned
BUT IF IT WAS,
. . . that wouldn't make this ROBERTS Court the most Activist In History
THAT HONOR WOULD STILL GO THE REHNQUIST COURT for 2000's Bush v Gore

1) When 5 Conservative members of the court get together and order the State of Florida to stop examining ballots in the middle of an other wise valid recount during a valid contest of the votes,
AND THEN CLAIM, later that there is no time for a recount before the mandated certification date.
AND THEN select their politically preferred candidate knowing that nobody can legally overrule them.
THAT is, hopefully for all time, THE MOST ACTIVIST DECISION IN SCOTUS HISTORY

2) THIS CASE IS A GIANT SHIFT IN PUBLIC POLICY, and yet it passed on purely a party-line vote, even though it at one point got 60 votes in the Senate.

3) As I wrote in a previous post, SCOTUS has almost always been a very conservative body, favoring the Rich & Powerful over the little guy, often obviously at the expense of doing the right thing.
HOWEVER, what would shock the founders is to see a small group of lifetime appointed judges on SCOTUS, not serving the interests of the country, or even following their own consciences-
. . but instead engaging in raw, naked, politics
SIMPLY BECAUSE, they know that nobody can stop them.
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09:42 AM on 03/29/2012
"Time was, not long ago, when the right wing railed against the overreach of unelected judges with lifetime appointments who tried to usurp the power of Congress and impose their own vision of society."

So were the right wingers right back then?
09:41 AM on 03/29/2012
Well, if there's only one positive comment I can make about this piece, it's that it's refreshing to see that it's not only conservative partisans that shriek "legislating from the bench!" any time the court doesn't rule the way they believe it should.
09:23 AM on 03/29/2012
"There is no question whatsoever, that government in America has the right to require our citizens to pay for public goods or for services that we decide can best be provided through government."
- The goods and services will not be provided by the government. Individuals are being required to purchase insurance from private companies.

"Clearly, government can tax homeowners to provide the community with fire protection, for example. You might not need fire protection for years -- or decades -- or ever -- but government can decide that you have to pay into the fire protection district because if your house catches fire, it could affect the entire community."
- These taxes are levied by local and state governments. The federal government does not have this power. That's why Romney Care in Massachusetts is legal.

The merit of the individual mandate is not what is up for debate. The question is, does the federal government have the right to require individuals to purchase a product from a private company. The answer is clearly no. Think of the precedence it sets if we give the federal government this power.

This does not mean that the mandate is bad, it means that it needs a constitutional amendment in order to be legal.
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DMichaelElkins
08:55 AM on 03/29/2012
It is always amazing how many of the people who are so worried about being forced to purchase insurance already have insurance or Medicare or access to the V.A. Funny that they're usually the first to complain about undeserving people on welfare, illegal immigrants obtaining governmental services, etc. Yet they apparently have no problem with everyone having to share the burden of paying the costs of the uninsureds who show up at their local hospital and run up huge bills.
08:53 AM on 03/29/2012
Wow, talk about partisan. Your article reeks of partisanship with it's frequent references to "Right Wing", "Far Right", "Extreme Conservative", "Far Right" and artful re-branding of the mandate to buy insurance as the "Individual Responsibility Provision".

Saying that it's constitutional to force Americans to buy insurance is hardly a partisan view or an example of judicial activism.

I say this as someone who supports the concept of universal health care for all. I just think this approach (making people buy or be penalized) is a bit clumsy.
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HUFFPOST SUPER USER
cfisher000
08:24 AM on 03/29/2012
I am fairly sure that Thomas Jefferson did not advocate government thugs using their stong arm to stop rich people from giving their money to places they think it will do good.
12:12 PM on 03/29/2012
What are you talking about?
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HUFFPOST SUPER USER
cfisher000
02:38 PM on 03/29/2012
Type "Ctrl" + "F" and type in Thomas Jefferson.
07:49 AM on 03/29/2012
Heay Creamer do you get frequent flyer points for your frequent trips to dishonestville?
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HUFFPOST SUPER USER
Paul Is Right
09:33 AM on 03/29/2012
Ah, c'mon -- cut the guy a break. At least he's out of prison.
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JustMeinNJ
07:38 AM on 03/29/2012
But, says the right wing, government can't require an individual to purchase a product from a private company they may not want or "need."

THAT is the unconstitutionality of this law! Had the government collected a tax it would be different.

Just because there are only "4" liberal judges - I'd like to know why, if they uphold the mandate, that THEY are not activists. Why because there are only 4?

No matter what side you are on - clearly there IS a question of Constitutionality otherwise they wouldn't have been up there citing prior rulings to support their case.

I am tired of hearing that the government collects money for many things. Yes they do. The government has broad powers under the commerce clause. Well, that's only because they've bastardized its intent. "You will eventually enter the market". Well. NO. The MARKET they are regulating is INSURANCE. It is not medical care.

THIS IS NEW! Never before has the government forced an individual to buy a product that they may not want or need from a Private Company. A finite set of companies where they can only sell to you what the government decides you need.

No matter how you spin it. No matter how many stories people want to tell about people dying in the streets (which is odd-you'd think those poor folks wouldn't have to wait so long) - this has nothing to do with insurance!
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HUFFPOST SUPER USER
Paul Is Right
09:33 AM on 03/29/2012
Very well said.
Zip Zinzel
If a Nation expects to be both Ignorant & Free . .
10:04 AM on 03/29/2012
justmeinnj-

[YOU SAY] "Had the government collected a tax it would be different."

JUST LIKE IN 2000, in Bush v Gore
Where they made the ridiculous claim that it was the Florida Supreme Court and the Gore Legal Team, THAT MADE THEM RULE THE WAY THEY DID.
AS, FREAKIN' IF, Florida Supreme Court or Gore would have done anything differently that the Gang-of-Five would have ruled any other way.

IF ONLY IT WERE (called) A TAX???
1) The penalty is collected by the IRS
2) FICA Contributions are called Taxes, when they're not, THEY ARE INSURANCE PREMIUMS.