Health-care reform’s attack on the courts

at 09:17 AM ET, 05/10/2011


(Evan Vucci - AP)
There are 14 judges on the Fourth Circuit Court of Appeals, but only three will sit on the panel that hears today’s arguments over the health-care law. Those three are chosen by way of “a computer program designed to achieve total random selection.” And today, that computer program chose two Clinton nominees and an Obama nominee. Game over, says conservative policy reporter Phillip Klein. “ObamaCare is likely to be upheld by 4th circuit.”

I don’t disagree. As Klein says in a longer post at the Washington Examiner, “Democratic judges have upheld the law while Republican judges have declared it unconstitutional.” Which just goes to show that the legal channel here has become little more than politics by another name. Republicans know it and Democrats know it. Everybody knows it.

After all, what’s the alternative explanation? That in 2010, the Republican Party’s entire political and legal establishment suddenly realized than an idea they’d developed in 1991 and pushed through 2008 was an unconstitutional monstrosity? Did the Constitution get amended in 2009? Was the study of constitutional law transformed by a flood of new evidence on the original intent of the “necessary and proper” clause? Of course not. What changed is that Obama and the Democrats passed a health-care law including an individual mandate. And the GOP underwent reverse-Obamafication and turned, en masse, against a provision that many of them had supported for decades.

Of course, the courts aren’t supposed to care about the opportunistic wiggles of elected politicians. Which is why, when the campaign to redefine the individual mandate as unconstitutional began, conservative legal scholars laughed it off. “There is a less than 1 percent chance that the courts will invalidate the individual mandate,” said former Anthony Kennedy clerk Orin Kerr. But both sides were substantially underestimating the partisanship of the judiciary on a big, polarizing issue like this one. In the short term, that might be bad for the health-care law. In the long term, it’s bad for the judiciary, which looks less and less insulated from politics, and for the stability of future legislation, as the unexpected success of this campaign is going to lead to many more like it.

Further reading: The obvious constitutionality of health-care reform.

 
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