The last Monday in June, and we all expected the Supreme Court to get on with it and issue their ruling on the constitutionality of the Affordable Care Act – Obamacare – or at least rule on the constitutionality of that individual mandate making everyone put some skin in the game, so everyone could be covered with no one getting hurt too much, and also bring down the cost of healthcare insurance and healthcare itself, for everyone. But that wasn’t to be. They’re still tinkering with how they’ll say what about the Commerce Clause and how elegantly they’ll say it. The Court said Thursday – maybe – further delaying their summer vacation. No one knows what the nine of them do during their summer recess, or really cares, but whatever it is – fishing or tango lessons – must not interest them all that much. They are dragging this out. But seriously, political pundits – those insiders with their exclusive sources, who say they know everything about Washington – want to start their summer vacations too. The Hamptons await and there are only so many deep-background what-if columns you can write before New York Times or Washington Post readers escape to the sports section, or start doing the crossword puzzle. They need grist for their mill, so they can grind exceedingly fine, explaining it all.
But the Court did offer a Monday something – some minor grist for the mill. They ruled that states cannot set up any rules limiting massive campaign contributions from large corporations – so Montana can just pound sand, in spite of the long history there of Big Copper taking over the state government. Yes, that was corruption of the worse sort, but corporations have free-speech rights too, as this Supreme Court had ruled earlier in Citizens United. The last thing you want to do is abridge free speech. America will just have to live with massive amounts of mysterious money, from anonymous sources, spent secretly – or we won’t be free. At least that was the argument, which surprised no one. Justice Stephen Breyer wrote a scathing dissent – and it didn’t matter. The expected happened. No pundits wrote much about this matter.
The Court also ruled that laws requiring that those under eighteen convicted of murder to be sentenced to just die in prison really does violate the Eighth Amendment’s ban on cruel and unusual punishment – mandatory life-without-parole sentences for the underage are out. But that was close. Justice Samuel Alito felt strongly enough that he read a portion of his dissenting opinion from the bench – the majority decision here shows that Eighth Amendment cases are “no longer tied to any objective indicia of society’s standards” – and we have to have standards. You don’t make exceptions for kids. What is this world coming to? Let them rot in jail until they die of old age.
He was on fire, but no one listened to him either. This too was not a matter for outrage or intense national discussion. Alito doesn’t like kids, or he loves the law more than kids, or something. So what? Not much was said about this. Perhaps everyone was embarrassed for Samuel Alito. It’s a dinner party thing. Be polite. It’s best not to say anything when someone cuts a fart, and that seems to apply to brain-farts too.
But there was a surprise – the Court ruled that Arizona’s new immigration law – SB1070 – was entirely nonsense. In the New York Times, Julia Preston offers a thorough analysis of what they said, explaining that three of the law’s four provisions were shot down – including the “show me your papers” provision that allowed for massive sweeps of anyone who was funny looking. The one provision that was upheld said if you actually arrest someone for something else – like running a stop sign – you can hold them for as long it takes to clear up their immigration status, which might be a very long time. And the Court said that was probably unconstitutional – you don’t keep people in jail because you have a vague suspicion about them – but they couldn’t rule on that now. They need a test case. It hasn’t happened to anyone yet. So all in all it was a total win for the Obama-Holder team. The Court certainly did overturn the other three parts of the law, the provisions that would criminalize anyone’s presence in Arizona without documentation, and criminalize working or looking for work without legal status, and would permit police to arrest people without a warrant if there’s even a hint of suspicion that they’ve committed a deportable crime, or might at some time in the future.
It wasn’t so much that these were bad ideas – the justices offered no opinion on that. It’s just that the federal government gets to make the rules on immigration. States simple cannot invent their own. Case closed – save for Justice Scalia and his rant on states’ rights:
Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.
There’s more here – Scalia said it seems to him that that the Obama administration “desperately wants to avoid upsetting foreign powers.” But if Arizona wants to start a war with Mexico that should be their right, or something:
If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.
It seems Arizona didn’t really give up its sovereignty when it joined the union – at least in his mind. And Adam Winkler, a constitutional law professor at UCLA, said “Scalia has finally jumped the shark.” Scalia just lost it:
He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution. Back then, opponents argued that the Constitution denied states their sovereignty by giving too much power to the federal government, as with immigration. Now Scalia echoes their complaints that states are being denied their sovereignty. States are not sovereign when it comes to powers vested in Congress, such as the authority over immigration and naturalization.
This sort of thing led to the Civil War of course. But it was more than Scalia losing it. Arizona governor, Jan Brewer, spent most of the day saying this was a big win for her – the Court upheld the most important part of the law, holding folks in indefinite detention until you were as sure as sure could be they weren’t here illegally. She was all smiles, even if reporters did tell her that was not what the court ruled at all – hold anyone for even two minutes for no reason and you’re asking for trouble.
And then, late in the day, she found herself on CNN – she had been happy that the Supreme Court agreed the Arizona police can stop anyone who looks even vaguely Hispanic, anytime, anywhere, just for looking vaguely Hispanic – and hold them until they verify their papers, if they’re even carrying papers. This would sweep up a lot of Hispanic citizens, daily and maybe hourly – actual Americans who have been here for generations – and let them know they’re on notice – they’re not welcome here anymore. That was the whole point of SB1070 anyway. But it must have sunk in that this was not what the Court had held – and she was talking about Arizona’s big loss here, and how Obama had it out for Arizona. And she was angry that Obama had then pulled a fast one on her – after the decision he suddenly announced that the administration is withdrawing all 287(g) agreements with Arizona – “under which state and local law enforcement agencies entered into a partnership with the DHS’s Immigration and Customs Enforcement and were delegated authority for immigration enforcement within their jurisdictions.”
Obama doesn’t want the feds being part of anything that sets up any test case on that fourth matter. Let Arizona try to make that indefinite detention thing stick – with a Supreme Court itching to shoot them down. Brewer had been spinning it – she said she had won on the core issue. But she hadn’t. That was a “we’ll see later” non-decision. She was a most unhappy woman.
That made for an interesting news day, in spite of nothing happening on the other issue, the Affordable Care Act. And that led to a CNN item by Alan Duke on how Arizonans have had just about enough of this – all the sanctions and boycotts since Jan Brewer signed SB1070 into law woke people up. The tourism-convention business losing more than eighteen billions dollars will do that:
“Indicators are showing that we had an increase in tourism” in 2011, said Kiva Couchon, spokeswoman for the Arizona Office of Tourism. “The trend line is moving upward.”
An effort to pass even tougher anti-immigrant measures was rejected by Arizona’s legislature last year, she said.
“Arizona’s business community came out in force saying ‘Please don’t do this,'” said Marshall Fitz of the Center for American Progress, a Washington-based public policy think tank.
Those boycotts caused “a lot of heartburn for companies here that saw potential customers outside the state dwindle” Arizona Chamber of Commerce spokesman Garrick Taylor said.
Last November, voters recalled SB 1070’s architect, Russell Pearce, from his state senate post, replacing him in November with a Republican who opposed the immigration crackdown.
“Arizonans are coming together to undo the tarnished image of their state that was inflicted on them by their governor and Sen. Pearce,” [Clarissa Martinez of La Raza] said.
The controversy “galvanized communities in Arizona” and “served as a wake-up call to increase participation in the electoral process,” she said.
Jan Brewer is next to go:
The shift against the immigration measures came “because people realize they don’t want to be in a state that’s supposed to be a vacation spot or a place to retire, but has an international reputation of being inhospitable and a place of intolerance,” Fitz said.
Luring new businesses to the state is tougher with the “tarnished brand” caused by the immigration law controversy, he said. “A business trying to decide to open a new plant or new office in one of two places – either Arizona or New Mexico – (isn’t) going to think twice about.”
This fellow from the Center for American Progress sees Arizona at a tipping point. It could become another California – solidly Democratic. Who knew? The Supreme Court decision on SB1070 is the least of Jan Brewer’s problems. And no one expected that.
And now it’s time to move onto the ruling on the constitutionality of the Affordable Care Act, and whether anyone will be surprised by that. And in that case there are underlying issues, somewhat hidden, that might be considered, as Jonathan Chait discusses here:
There is one urgent, overriding moral question at the heart of the health-care fight. Paradoxically, and maddeningly, there has not been any open moral debate over it. That question is whether access to basic medical care ought to be considered a right or something that is earned.
That really is the crux of the matter:
Several reporters have recently filed dispatches showing in human terms what sort of conditions we would be perpetuating in the event that five Republican Supreme Court Justices, or a potential Republican-run government next year, partially or completely nullify the Affordable Care Act. A man will watch the tumor in his leg grow to the size of a melon, and his wife will sew special pants to fit the growing bulge, because he has no insurance. A woman will hobble around for four years on an untreated broken ankle she can’t have repaired. People will line up in their cars and spend the night in a parking lot queuing for a rare free health clinic.
Maybe these stories sound like cheap emotional manipulation. They are actually a clarifying tool to cut through the rhetorical fog surrounding the health-care debate and define the question in the most precise terms.
And by that he means this:
Opponents of the law have endlessly invoked “socialism.” Nothing in the Affordable Care Act or any part of President Obama’s challenges the basic dynamics of market capitalism. All sides accept that some of us should continue to enjoy vastly greater comforts and pleasures than others. If you don’t work as hard as Mitt Romney has, or were born less smart, or to worse parents, or enjoyed worse schools, or invested your skills in an industry that collapsed, or suffered any other misfortune, then you will be punished for this. Your television may be low-definition, or you might not be able to heat or cool your home as comfortably as you would like; you may clothe your children in discarded garments from the Salvation Army.
This is not in dispute. What is being disputed is whether the punishments to the losers in the market system should include, in addition to these other things, a denial of access to non-emergency medical treatment. The Republican position is that it should. They may not want a woman to have to suffer an untreated broken ankle for lack of affordable treatment. Likewise, I don’t want people to be denied nice televisions or other luxuries. I just don’t think high-definition televisions or nice clothing are goods that society owes to one and all.
But that, Chait argues, is precisely how Republicans think about health care:
This is why it’s vital to bring yourself face-to face with the implications of mass un-insurance – not as emotional manipulation, but to force you to decide what forms of material deprivation ought to be morally acceptable. This question has become, at least at the moment, the primary philosophical divide between the parties. Democrats will confine the unfortunate to many forms of deprivation, but not deprivation of basic medical care. Republicans will. The GOP is the only mainstream political party in the advanced world to hold this stance.
Of course they won’t say that:
The more ideologically stringent ones couch their belief in euphemisms, like describing health care as a matter of “personal responsibility.” But even such glancing defenses are too straightforward for most Republican leaders. Instead they simply rail against the specifics of Obamacare and promise to “replace” it, without committing themselves to an alternative path to universal coverage. It is to maintain this pretense of wanting some different solution that John Boehner warns Republicans to hide the unadulterated joy they will feel if the Supreme Court does their work for them.
But that’s the whole point:
The maintenance of mass lack of access to medical care is their cause. That is why the Republicans never offered an alternative universal-health-care plan and why the Paul Ryan–authored budget they have embraced repeals Obama’s coverage subsidies and throws millions more off their Medicaid, without any replacement.
Their reason for failing to defend their actual principles is obvious enough: That tens of millions of Americans deservedly lack a right to basic medical treatment is a politically difficult proposition. Thus, they oppose Obamacare without defending the indefensible conditions they actually favor. Their tactic of adding vague gestures toward unspecified future reforms has been so successful that news reports almost uniformly describe the Republican health-care stance as yet-to-be-determined, rather than an outright defense of maintaining health care as an earned privilege rather than a right.
And they hope the Supreme Court will agree. And the Atlantic’s James Fallows suggests they do know their court:
Pick a country and describe a sequence in which:
First, the presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.
Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
Meanwhile their party’s representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation – and appointments, especially to the courts.
And, when a major piece of legislation gets through, the party’s majority on the Supreme Court prepares to negate it – even though the details of the plan were originally Republican proposals and even though the party’s presidential nominee endorsed these concepts only a few years ago.
How would you describe a democracy where power was being shifted that way?
And Ed Kilgore comments:
James Fallows answers his own question by using the term “long-term coup” – that he later downgrades to “radical change.”
That’s appropriate, since “coup” implies tanks in the street rather than black-robed ideological cheerleaders. But it’s becoming more obvious each day that the judicial counter-revolutionaries of the Supreme Court don’t need the crisis atmosphere that they used to justify Bush v. Gore to continue its legacy. Indeed, it seems to have become the only precedent the majority reliably respects.
Maybe they will surprise us all on Thursday and step back from the brink. But without question, if another seat on the Court falls their way, the constitutional substructure of every 20th century social accomplishment from the New Deal to the Civil Rights Act to the Clean Air Act to the right to an abortion is in immediate danger. And anyone who remembers that strange night in 2000 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.
All this is rather over-the-top and this same Supreme Court did give Jan Brewer a very bad day, surprising everyone. And she wasn’t the only one:
Mitt Romney, in Arizona for campaign fundraisers, issued a guarded response to yesterday’s Supreme Court decision voiding most of the state’s crackdown on illegal immigration, highlighting the political peril for the presumed Republican presidential nominee on the issue.
For Romney, the ruling offered yet another reminder that the former Massachusetts governor took hardline stances on illegal immigration during his party’s primary, yet is now pledging to pursue a long-term bipartisan solution during his first year in office without specifying what that would entail.
“Mitt Romney has dug himself into a great, big hole with Latinos on immigration,” said Ana Navarro, a Republican strategist who advised the party’s 2008 nominee, Arizona Senator John McCain, on Hispanic outreach. Romney is not confronting President Barack Obama “in a real way, and if he doesn’t, Obama is going to get a free pass on this.”
And this was supposed to be a Republican Supreme Court taking part in a long-term coup. Sometimes the unexpected happens.