Shifting boundaries

Since I started this some months ago, I’ve tried to stick to health policy.  Sure, I have opinions on other topics, but I felt more assured that on that topic I had credibility and experience.

Once in a while, though, health policy overlaps with other areas of interest.

Today, President Obama nominated Elena Kagan for the Supreme Court.  And, while I eagerly watched to see what the minority party would say about it, this was one of the first things I saw:

– SEN. JOHN BARRASSO (R-WY): “The other issue is the health care bill that’s come out — there’s a mandate everybody in the country has to buy a product. That’s a 10th amendment issue… she is going to have to make a decision if she’s on the court about how that goes forward with these 20 states suing.” [TP, 5/10/2010]

– REP. JOHN BOEHNER (R-OH): “On this, and other issues – including the Constitutional questions arising from Washington Democrats’ new health care law – Solicitor General Kagan deserves a fair hearing on her qualifications, and her commitment to fairness, the rule of law, and interpreting the Constitution as written.” [GOPLeader, 5/10/2010]

– GOP.COM: A research document published by the GOP asks, “Where Does Kagan Stand As Health Care Overhaul Faces Variety Of Legal Challenges?” [GOP, 5/10/2010]

I’m always amazed at the hypocrisy in Washington.  There should be no “litmus tests” unless you want one.  There should be no “judicial activism” unless you don’t like the law.  And, we should stick to the exact text of the Constitution, unless you don’t think it says what you want it to.

We’ve discussed this before.  No one had a problem with the mandate before this law.  But forget that.  Even other pretty conservative judges can make arguments that the law might be constitutional:

Here, though, my colleague Igor Volsky highlights a section of Justice Scalia’s concurrence in Raich v Ashcroft:

The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.

So first: That’s Justice Scalia. Second: Purchasing health insurance is clearly economic activity, and the state of the health insurance market in any given state clearly does substantially affect interstate commerce. As is generally the case with words in the English language, the phrase “regulate commerce with foreign nations, and among the several states, and with the Indian tribes” could be construed in a few different ways. But for a very long time now the Supreme Court—including its most conservative members—have construed it as authorizing general economic activity. The live legal disputes concern regulation of non-economic activity that’s alleged to have economic impacts.

Much of the press on the lawsuits to overturn the ACA hints that it’s an uphill battle.  But somehow, Republican Senators are already saying that if Kagan is not willing to say the law is unconstitutional, then that’s a problem?

So, basically, they want to apply a litmus test to check her willingness to be a judicial activist.  I’m not impressed.

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