Archive for April 14th, 2012

How conservative, non-activist judges might rule.

Apr 14, 2012 in Health Care, Politics

Once one descends a little deeper than Fox talking points about broccoli, the legal pathway is actually rather clear, conservative, and minimalist.

Limited Commerce Clause Holding:
Even assuming arguendo that Congress cannot require any and every purchase of goods or services under any circumstances (but cf. Judge Silberman’s “regulate”-includes-”require” argument to the contrary in Seven-Sky), Congress does have the Commerce Clause authority to control the means and timing of payment for goods and services that persons will consume, particularly so as to assure that the consumers do in fact pay for the costs of such goods or services. Thus Congress can at a minimum require everyone either (i) to maintain insurance for goods or services that virtually everyone will consume, that the government guarantees, and that many of the consumers will not otherwise be able to pay for (which would thereby shift substantial costs to the public at large); or (ii) to make a modest payment to the government (IRS) to help cover the costs the public will incur if and when the individual consumes services for which she cannot pay.

Such a formulation would not commit the Court to holding that Congress can require any and every purchase. Nor would it even imply that Congress can require a purchase whenever “non-purchase” has a substantial effect of any kind on interstate commerce–the principle that Randy assumes Justice Kennedy would have to accept in order to uphold the statute, and one that might justify a required purchase of GM cars since the failure to do so “causes” Detroit’s economic woes.

The key legal question, of course, is do we have five Republican politicians on the bench, rather than conservatives? Will a health care plan invented by, adopted by, and implemented by Republicans be rejected by the Court as soon as a Democrat decides to compromise and go along with the idea? We already know how Republican politicians have acted, but can we hope from better from the court? I suspect Kennedy will agree with the other conservative judges who have agreed with the Obama administration previously, but people holding out for a Roberts concurrence seem mighty hopeful to me.

-hw