Summary: As the Constitution nears the time for its Last Rites, its enemies become bolder. Reports of blows to the Constitution, even de facto repeal of specific provisions, become unremarkable blips in the daily news. But some blows are larger than others. June 2012 might be a historic month for the Second Republic, worth marking with a black border on your calendar.
“The single most important thing we want to achieve is for President Obama to be a one-term president”
— Mitch McConnell (Senate Minority Leader), interview with the National Journal, 23 October 2010
What price is the GOP willing to pay? What will they sacrifice? In the fourth year of Obama’s term we see the answers. America. The Constitution.
Contents
- Diluting the Sixth Amendment, a warm-up to the main event
- The main event: repealing ObamaCare
- For More Information
(1) A warm-up to the main event
“Diluting the Sixth Amendment“, Scott Lemieux (Asst Prof of political science at the College of Saint Rose), The American Prospect, 18 June 2012 — Excerpt:
The case today concerns the right to confront experts who produce forensic evidence. The Court has recently held — correctly, in my view — that the Confrontation Clause means that if states introduce forensic evidence compiled by experts it must make these experts available in court if the defense requests it. Today’s case represented Illinois trying to make an end-run around these precedents by having a state employee who was not involved in producing the forensic evidence — in this case, a DNA test of semen from a vaginal swab in a sexual assault trial — testify about the results. The defendant was not given the opportunity to cross-examine the private analysts who actually produced the evidence, and hence could not inquire in Court about whether proper procedures were followed. But the Court held that this did not violate the Sixth Amendment.
… As Justice Kagan says in a quite brilliant dissent, “Justice Thomas’s approach, if accepted, would turn the Confrontation Clause into a constitutional geegaw — nice for show, but of little value. The prosecution could avoid its demands by using the right kind of forms with the right kind of language.”
… Today, the Court preserves this {sixth amendment} in theory but guts it in practice.
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(2) The main event: repealing ObamaCare
The GOP has discovered the power of a total focus on politics. Defeating Obama takes precedence over the needs of America, no matter how pressing. Past beliefs, no matter how strongly held and often stated, get abandoned. Now they carry that strategy from Congress to the Courts. There are ample precedents for this is US history, but magnitudes matter — and seldom has politics been pursued so such a degree that Congress becomes impotent and the Courts become blatant political actors. At some point this will rip the social fabric of the Second Republic, the informal that support the Second Republic.
Kevin Drum tells the story of the evolution of Obama’s health care law. He skips the early stages, from conservative proposals to highly lauded GOP success in Massachusetts to its adoption by Obama. The story starts with its signing by Obama and the immediate, implacable opposition of the GOP — and how their victory might shape the Republic.
But first Kevin Drum explains the bottom line of these events. It’s not the specifics of ObamaCare, but the process that might be used to gut it.
(a) “Clock ticks down whether we’ve entered new era American politics“, Kevin Drum, Mother Jones, 18 June 2012:
This is, needless to say, a powerfully depressing analysis. For all practical purposes, Kerr is agreeing that conservative judges don’t even bother pretending to be neutral anymore. They listen to Fox News, and if something becomes a conservative talking point then they’re on board. And that goes all the way up to the Supreme Court.
… If the court does overturn the mandate, it’s going to be hard to know how to react. It’s been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can’t think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity.
… It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don’t like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that’s pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.
(b) “Unpopular Mandate – Why do politicians reverse their positions?“, Ezra Klein, The New Yorker, 25 June 2012
In 2007, both Newt Gingrich and John McCain wanted a cap-and-trade program in order to reduce carbon emissions. Today, neither they nor any other leading Republicans support cap-and-trade. In 2008, the Bush Administration proposed, pushed, and signed the Economic Stimulus Act, a deficit-financed tax cut designed to boost the flagging economy. Today, few Republicans admit that a deficit-financed stimulus can work. Indeed, with the exception of raising taxes on the rich, virtually every major policy currently associated with the Obama Administration was, within the past decade, a Republican idea in good standing.
… On March 23, 2010, the day that President Obama signed the Affordable Care Act into law, 14 state attorneys general filed suit against the law’s requirement that most Americans purchase health insurance, on the ground that it was unconstitutional. It was hard to find a law professor in the country who took them seriously.
- “The argument about constitutionality is, if not frivolous, close to it,” Sanford Levinson, a University of Texas law-school professor, told the McClatchy newspapers.
- Erwin Chemerinsky, the dean of the law school at the University of California at Irvine, told the Times, “There is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.”
- Orin Kerr, a George Washington University professor who had clerked for Justice Anthony Kennedy, said, “There is a less than 1% chance that the courts will invalidate the individual mandate.”
… Orin Kerr says that, in the 2 years since he gave the individual mandate only a 1% of being overturned, 3 key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. “That legitimized the argument in a way we haven’t really seen before,” Kerr said. “We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage.” Finally, he says, “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.”
Jack Balkin, a Yale law professor, agrees. “Once Republican politicians say this is unconstitutional, it gets repeated endlessly in the partisan media that’s friendly to the Republican Party” — Fox News, conservative talk radio, and the like — “and, because this is now the Republican Party’s position, the mainstream media needs to repeatedly explain the claims to their readers. That further moves the arguments from off the wall to on the wall, because, if you’re reading articles in the Times describing the case against the mandate, you assume this is a live controversy.” Of course, Balkin says, “if the courts didn’t buy this, it wouldn’t get anywhere.”
… At the Washington Monthly, Steve Benen (9 November 2011) kept track of the placement that the Times and the Washington Post (where I work) gave to stories about court rulings on the health-care law. When judges ruled against the law, they got long front-page stories. When they ruled for it, they got shorter stories, inside the paper. Indeed, none of the cases upholding the law got front-page coverage, but every rejection of it did, and usually in both papers. … the effect was repeated news stories in which the Affordable Care Act was declared unconstitutional, and few news stories representing the legal profession’s consensus that it was not. The result can be seen in a March poll by the Kaiser Family Foundation, which found that 51% of Americans think that the mandate is unconstitutional.
… All this suggests that the old model of compromise is going to have a very difficult time in today’s polarized political climate. Because it’s typically not in the minority party’s interest to compromise with the majority party on big bills — elections are a zero-sum game, where the majority wins if the public thinks it has been doing a good job — Washington’s motivated-reasoning machine is likely to kick into gear on most major issues. “Reasoning can take you wherever you want to go,” Haidt warns. “Can you see your way to an individual mandate, if it’s a way to fight single payer? Sure. And so, when it was strategically valuable Republicans could believe it was constitutional and good. Then Obama proposes the idea. And then the question becomes not ‘Can you believe in this?’ but ‘Must you believe it?’ ”
And that means that you can’t assume that policy-based compromises that made sense at the beginning will survive to the end, because by that time whichever group has an interest in not compromising will likely have convinced itself that the compromise position is an awful idea — even if, just a few years ago, that group thought it was a great one. “The basic way you wanted to put together a big deal 5 years ago is that the thoughtful minds in one party would basically go off and write a bill that had 70% of their orthodoxy and 30% of the other side’s orthodoxy and try to use that to peel off 5 or 6 senators from the other side,” Grumet says. “That process just doesn’t work anymore.” The remarkable and confusing trajectory of the individual-mandate debate, in other words, could simply be the new norm.
(3) For More Information
(a) Background information from the conservatives at the Volokh Conspiracy
Their brilliant analysis is always interesting to read, remembering that they’ll support without limit almost any expansion of government power (so long as it does not involve property, religion, or guns).
- “Legal Elites and Predictions of the Court: A Slightly Different View“, Orin Kerr, 2 April 2012 — “think it’s worth stepping back and recognizing that at the beginning of the debate over the mandate, everyone saw the mandate challenge as a serious long shot.”
- “The Different Meanings of Judicial Activism — and Why They Matter for the Individual Mandate Case“, Orin Kerr, 9 April 2012
(b) For all posts about this see these FM Reference Pages
(c) Some posts of special relevance