Please Register or Log in to view the hidden image! Rob Tornoe, March 25, 2010 Legal scholar Linda Greenhouse explains, for The New York Times: Which of these assertions is the less plausible? 1. Representative Randy Neugebauer of Texas wasn’t aiming at Representative Bart Stupak when he interrupted Mr. Stupak’s floor speech during the closing hours of the health care debate by yelling “baby killer.” (Mr. Neugebauer said his target was the bill, not his colleague from Michigan, who had accepted a fig leaf of a compromise on the bill’s anti-abortion stance.) 2. The Supreme Court will find the new health care legislation unconstitutional. In my book, these two propositions are running neck and neck into the realm of fantasy. In addition to being "on the same side of the argument as cancer", the Republicans find themselves in a difficult position as relates to history. Greenhouse would suggest their argument falls on wrong side of history, as well. Fourteen state attorneys general — 13 in a coalition led by Bill McCollum of Florida and one, Kenneth T. Cuccinelli II of Virginia, going it alone — filed lawsuits this week asking federal judges to declare the new Patient Protection and Affordable Health Care Act unconstitutional. The plaintiffs do not exactly mince words. The new law violates “the core constitutional principle of federalism upon which this nation was founded,” the Florida complaint declares. It is “contrary to the foundational assumptions of the constitutional compact,” Virginia claims. The Web is filled with commentary and debate over the merits of the states’ arguments that the new law exceeds Congress’s authority to regulate interstate commerce and violates the 10th Amendment’s protection for state sovereignty. Interesting theoretical questions, to be sure. But the only real question is whether any of these arguments will find a warm reception from at least five Supreme Court justices. The answer, almost certainly, is no. (ibid) Greenhouse compares the situation to the "federalism revolution" of the late Rehnquist court, which struck down a gun law that failed the Commerce Clause, certain discrimination issues, and Washington's power to annex state officials for federal endeavors. Her analysis points out that Rehnquist "blinked when his revolution got too close to the core of issues that people really care about", citing his majority opinion in Nevada DHR v. Hibbs: Chief Justice Rehnquist surprised almost everyone in that case, not only voting to uphold the law’s application to state employees, but also writing a majority opinion displaying so much sympathy for the aims of the law it could have been ghost-written for him by Justice Ruth Bader Ginsburg. And with that decision seven years ago, the federalism revolution sputtered to an end. (ibid) She also considers the question in terms of Chief Justice Roberts and Justice Alito, finding that neither is likely to be tremendously sympathetic to the complaint abgainst health care. Noting Roberts' protective attitude toward his own reputation and that of the court, and considering his dissents in Gonzales v. Oregon (a 6-3 decision breaking the federal government's attempt to destroy a state's assisted-suicide law) and Massachusetts v. EPA (regulation of global warming), she does not expect Roberts to suddenly flip and sell out his own history and precedent. Alito, as a former prosecutor, DoJ attorney, and federal judge, is well-connected to the federal government. And if this seems a strange analysis devoid of the issues, perhaps it is. But Greenhouse appears to be banking on the mysterious and obscure nature of how the issue arguments will be constructed, and expecting that, with no clear, bright star to guide the court, it will be difficult to find a sympathetic ear for those constructions. She may well be wrong, but one does wonder what size cajones the Roberts court would have to strike down the whole of the health reform bill. Of course, it doesn't help if you're on the same side as cancer, either. ____________________ Notes: Tornoe, Rob. "GOP Health Care Lawsuits". Daryl Cagle's Political Cartoonists Index. March 25, 2010. Blog.Cagle.com. March 27, 2010. http://blog.cagle.com/2010/03/25/gop-health-care-lawsuits/ Greenhouse, Linda. "Which Side of History?" Opinionator. March 25, 2010. NYTimes.com. March 27, 2010. http://opinionator.blogs.nytimes.com/2010/03/25/which-side-of-history/
Justice Roberts may be the weak link in the supremes as he may be concerned about his legacy. However, I am not convinced Alito and Thomas are willing to draw a line between politics and the law.
