Wednesday, April 4, 2012

Scalia, Alito, Thomas for U.S. Congress

   "Scalia has a long history of calling for restraint on the part of unelected judges." — Associated Press

    Come on, AP. That was soooo four years ago.

    Now? The most senior Supreme Court justice, once a man of sack cloth and restraint, wishes to wear the emperor's clothes.

     If Antonin Scalia can't dress as an oligarch, he, Samuel Alito and Clarence Thomas want everything in Congress' coat closet.

     Fork over those threads, lawmakers. The new judicial activists intend to leave you naked, just as they did when they overturned campaign finance law.

   Now, if conservatives' wish is granted regarding the Affordable Care Act, 50 million Americans will remain unclothed as pertains to medical calamity or basic preventive health care.    

     We'll see in June whether Scalia's, Alito's and Thomas's political skills have won the two votes on the court they need to deliver to the partisans who say they revere them exactly for what they once denounced: judges serving as legislators.

    Nothing was worse than that — four years ago.

    That is, of course, a few months before a newly elected Democratic president and a Democrat-majority Congress decided to do what they campaigned to do the previous November.

    The tea party called what the Democrats did "ramming it down our throats." Odd, because one could also call it the representative process, which purportedly the tea party supports.

      Pursuant to their campaign promises, Obama and the Democrats cobbled together the barest majority to address a national shame: 47 million Americans without health insurance.

      That number now exceeds 50 million.

      Relative thereto, echoes rang through Supreme Court chambers the other day — echoes of a debate that went long and loud for months in the House and the Senate.

     Isn't this like making broccoli mandatory? Good one, Justice Scalia, if one attempts to compare diabetes to, say, croquet.

     As Nobel laureate Paul Krugman explains, "When people choose not to buy broccoli, they don't make broccoli unavailable to those who want it. But when people don't buy health insurance until they get sick – which is what happens in the absence of a mandate – the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn't work, and never has."

    But you see (need we remind Scalia and Co.) the Supreme Court isn't the place for this debate, bad analogies and all. The place for it is a lawmaking body.

    In that regard, back in 2009 when Congress actually debated and then did something. Imagine that. Yes, it's possible.

    Did Congress exceed expressed powers within the interstate commerce clause of the Constitution? This is the pivotal question before the court, although the matter seems to come down to a matter of political palate, not of constitutionality.

    Did "Obamacare" impose "coercive" powers on states by threatening to withhold Medicaid funds, as Justice Alito wondered?

     Well, maybe. But it did the same in 1984 when, with Ronald Reagan's signature, it told states it would withhold state highway funds if they refused to make 21 the legal drinking age.

     Again, this is and was an argument for a lawmaking body.

     As solicitor general Donald Verrilli told the court, if voters manage to repopulate the executive and legislative branches in revolt against the Affordable Care Act, it will become null and void.

    The irony is that the individual mandates in question were an idea birthed by Republicans who wanted middle men — the insurance industry — included when it came to cashing in on health coverage for all.

    If Obama had the votes in 2009, he might have engineered a dramatic expansion of Medicare, effectively choosing a single-payer plan that met the criteria of universal health care.

    The fact is, that possibility remains if Scalia, Alito and Thomas win the day with the court. A new Congress could say, "Medicare expansion it is." Individual mandates? Don't need 'em. Insurance industry? Don't need it, either.

    But, wait? Doesn't the justice dressed as emperor get the last word?

    Longtime Texas newspaperman John Young lives in Colorado. Email:

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