The good, the bad, and the downright ugly

Posted: 29 June 2012 in Uncategorized
Tags: , , ,

Yesterday’s Supreme Court decision concerning the Affordable Care Act contains elements that are good, some that are bad, and some that are downright ugly. (Here’s a link to the text of the decision [pdf].)

The good: the 5-4 majority decision establishes the principle (likened by Justice Ginsburg to the provision of Social Security in the 1930s that installed a federal system to provide monthly benefits to retired wage earners) that all Americans—regardless of employer or employee status, age, preexisting condition, and so on—have  a right to decent and affordable healthcare.

The bad: the opinion of Chief Justice Roberts, who found a way of construing the penalties associated with the individual mandate as a tax, was accompanied by a 7-2 decision to strike down federal authority to require states to expand Medicaid coverage for poor people.

The downright ugly: Chief Justice Roberts’s opinion suggests that, as Steven Rosenfeld put it, there is a majority on the Court that would vote to take the country back to “the so-called Lochner Era, where in 1905 the Court started issuing decisions reversing progressive healthcare and labor reforms, holding an individual’s freedom to have a ‘contract’ with their employer was more deserving of constitutional protection than societal concerns.” Justice Ginsburg wrote that the Chief Justice’s interpretation of the commerce clause was a “rigid reading of the Clause [which] makes scant sense and is stunningly retrogressive.”

Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm. See United States v. Darby, 312 U. S. 100, 115 (1941) (overruling Hammer v. Dagenhart, 247 U. S. 251 (1918), and recognizing that “regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause”); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937) (“[The commerce] power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it.” (internal quotation marks omitted)). THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it. See, e.g., Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330, 362, 368 (1935) (invalidating compulsory retirement and pension plan for employees of carriers subject to the Inter­ state Commerce Act; Court found law related essentially “to the social welfare of the worker, and therefore remote from any regulation of commerce as such”). It is a reading that should not have staying power.

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