Looking For Supreme Victory

Opponent of health care reform are increasingly looking towards challenging legislation in the judicial branch in order to keep it from being implemented, and to eventually dismantle the measure entirely.  But the real issue isn't health care at all:  the forces behind this complete about face on the Republican-supported issue of insurance mandates want the Supremes to issue a sweeping ruling that will strictly limit the constitutionality of Congress to regulate the states.  They give the game away here in the Washington Post today.

"In the history of this country, the federal government has never required every American to enter into a contract with a private company," said Randy Barnett, a professor of constitutional law at Georgetown University Law Center.

Barnett and two co-authors made the case against the individual mandate in a legal memorandum published by the conservative Heritage Foundation in early December. To uphold the constitutionality of the individual mandate, they argued, the Supreme Court would have to find that the Constitution's Commerce Clause has "no limits."

"If Congress can mandate this, they can mandate anything," they wrote. "Congress could require every American to buy a new Chevy Impala every year, or pay a 'tax' equivalent to its blue book value, because such purchases would stimulate commerce and repay government loans."

When Congress and the White House was under Republican control, there was no issue about the constitutionality of Bush's plenary executive branch.  Now that the voters have thrown the Republicans out of office however, Obama is a fascist dictator who must be reigned in, and Congress's power to regulate the states must be curtailed in the name of freedom by the judicial -- the same judicial branch that Republicans constantly and consistently" accuse of being "activist judges" who "legislate from the bench" in an unaccountable way to the American people.

Needless to say, having the Supremes declare much of the Congress's current applications of the Commerce Clause as overstepping its authority, thus forcing the government to dismantle much of the federal government's regulatory powers, would be a dream come true for the Club For Growth goons.

From a legal standpoint however, they've got no leg to stand on.

(More after the jump...)

 Indeed, a number of legal scholars have come forward to rebut conservatives' arguments, saying the individual mandate easily passes constitutional muster. 

"There are many close constitutional questions. But this is not among them," Erwin Chemerinsky, dean of the law school at the University of California at Irvine, wrote in a recent online debate on the subject. "Congress clearly has the legal authority to require individuals to have health insurance."

Conservatives make two primary arguments against the mandate. The first is that an individual's inactivity -- in this case, the failure to buy health insurance -- does not qualify as interstate commerce, and thus Congress does not have the power to regulate it under the Commerce Clause. The second is that the financial penalty the law would impose goes beyond Congress's ability to lay and collect taxes.

"All of these arguments don't work, but they're interesting to debate," said Jack M. Balkin, a constitutional law professor at Yale Law School.

But gosh, that's not stopping the Teabaggers from trying to poison the well.

Florida Attorney General Bill McCollum (R), a candidate for governor, announced that his office will "conduct a review of the constitutionality" of the individual mandate. Conservatives have advanced other constitutional arguments against the reform plans, including that regulating insurance companies represents the illegal seizure of private property and that the Senate bill's excise tax on high-cost health plans impermissibly affects some states more than others.

Both sides say that if a bill becomes law, it will quickly be challenged in federal court.

"I don't think you'll be able to control the throng of test cases," Barnett said, adding that it is "unavoidable" the Supreme Court will eventually take up the individual mandate issue.

Balkin agreed that the law will be challenged, but he said the Supreme Court is unlikely to take the case; even if it does, it "will not overturn the individual mandate."

Republicans in other words are more than happy to let five of nine activist judges decide Congress has any real power to pass laws regulating the states.  They want the answer to be no, so they can have as many red states opt out of government programs as possible, thus assuring they are patchwork nightmares that fail to effectively regulate.

And that means large and powerful corporate interests can control the country unchecked, unregulated, and unchallenged.

Which is the entire point.