Friday, March 19, 2010

Chait's Fears

Jonathan Chait is worried that the Supremes might kill health care reform, and research showing that such a move would be highly unlikely on the merits does not convince him -- and for evidence, he cites Bush v. Gore.  If a five-person majority on the Court is willing to act arbitrarily in one instance, why not others?

I think, though, that it's an argument that assumes either too much or too little.  Accepting for the sake of argument that Bush v. Gore was arbitrary, I would say that if so it basically stands alone; I'm not aware of any other case in which the Court dropped in, made a decision for apparently pure political reasons, and then told everyone to ignore the logic and decision of the case as a precedent.  Could they do that again with health care reform?  Sure -- but if that, why not any other program that they disagree with?  In which case we all have much bigger problems than the fate of health care reform.

On the other hand, what if they simply find against health care reform by changing precedent.  The article referred to above is about "deem and pass," but there are also going to be legal challenges, or at least rumblings about challenges, on a whole host of substantive measures (such as the individual mandate).  If the Court goes after health care by changing doctrine, either over Congressional procedure or substance, once again there are bigger problems than health care reform.  In the one case, any bill passed with a self-executing rule would be in trouble, and there are lots of those; in the other, well, it would depend on what the court does, but it would be difficult to knock out health care reform without endangering plenty of other laws, many of which are very popular.  That doesn't mean the Court won't do it, but only that the real problem in that case is the Court, not health care reform.

But as for the one-shot method, well, I think Chait might as well be worried that they'd just rule the thing null and void on the grounds that Barack Obama isn't a legitimate president, what with being born in Kenya and all.  Chait doesn't think they'd do that, does he? 

(Yes, I'll admit it -- I'm just trying to give him nightmares.  Sorry).


  1. No way you would ever get Kennedy to sign on to an opinion that voids this reform, none.

    In any event there would be very real issues regarding who would even have standing to bring a suit to challenge the legislation.

    Assuming you could get over that mountain-sized hurdle,what would the constitutional cause of action be? An equal protection violation? Ok, if its an EP violation then what is the fundamental right that is being violated or the suspect class being discriminated against? The lack of either means that the bill would be viewed with extreme deference to the legislature. This is where Bush v. Gore would come into play, but even there (Where the standards were viewed under the Rational Basis Scrutiny Standard) the State government did not have in place sufficient standards to conduct a recount (The regs put too much discretion in the hands of recount officials - i.e. allowed for too much subjectivity), so the Florida process was deemed arbitrary. Here, the mandate and exchanges are completely rational and have been deemed necessary to cover the uninsured. They don't have to be the most rational, just that there is a some kind of connection between the two. Not only is Bush v. Gore not on point whatsoever, if the Court decided that it could overturn Health Care it would have to work so incredibly hard (focusing on technicalities of administration for instance) that it would smack of desperation ten times over, even for the activist Roberts Court.

  2. The above was written on the assumption that "Deem and Pass" is non-existent.


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