I appreciate it when Dahlia Lithwick writes more often for Slate Magazine. It’s hard arguing that Liberals lack any fundamental gravamen or intellectual perspicacity without compelling, in print, visual evidence. She entitled her 22 March missive “It’s Not About the Law, Stupid…. Next week’s health care argument before the Supreme Court is all about optics, politics, and public opinion.” In so doing, she just summed up her entire contribution as a legal analyst for Slate Magazine. Mention the word irony to Dahlia Lithwick, and she’s liable to tell you to iron your own [expletive] dress shirt. She is woman, and you can hear her pseudo-sapient roar!
Lithwick seems particularly miffed that anyone would imply that Individual Mandates could run afoul with the boring, stodgy and out-of-date United States Constitution. She displays her Aristotelian flair for reasoning below.
That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, “Are you serious?”
She then offers up a properly shamanistic bow to the Commerce Clause Cargo Cult. She mentioned the one paragraph of the Constitution still taught in the modern law school without a compulsory condescending sneer.
The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic.
So get with the pogram, oops, I mean program you silly conservatives. Who could possibly believe ObamaCare was a constitutional overreach? Lithwick continues with an ongoing appeal to authority. You see such and such a “CONSERVATIVE” jurist grumbled that ObamaCare probably drags itself coughing and sputtering across the finish line as constitutional. The science is settled you ignorant Tea-Bagger Hobbits. Go back to Middle-Earth and let the grown-ups like Nancy Pelosi administer the laws that they voted for without comprehending or even entirely reading.
Ever since Wickard v. Filburn (1942), with only a couple of minor exceptions, the courts have upheld the use of federal power under the Commerce Clause, which gives the federal government the authority to “regulate commerce.” Even the 1964 Civil Rights Act is considered constitutional as a regulation of commerce.….Maybe the federal government’s authority under the Commerce Clause is much narrower. Maybe that authority doesn’t extend to requiring individual citizens to have health insurance or pay a fine. But if so, it is not only the future of Obamacare that will suddenly be shaky. Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act. It includes laws protecting the environment and consumers.
Having failed to mention the Klan or Senator Bilbo once, Kinsley had to throw !Civil Rights! into his scare piece twice. Everything the government has ever done through The Commerce Clause could now be open to challenge. I hear they paid for D-Day and The Inchon Landing with the Commerce Clause. Repeal ObamaCare today, and your little grandkids will be licking lead paint chips off their Chinese toys tomorrow! Your are instructed to be very afraid.
Or maybe, just maybe, at least three of The USSC justices leaning towards complete ObamaCare nullification want there to be the equivalent of a CAT-5 legal feke storm. These jurists may have had it up to here with the government’s casual and ongoing usurpations that have been justified by the dexterous extension of the Commerce Clause. It almost seems to some Conservatives that the Commerce Clause has become a Trojan horse that is used to steadily and precipitously undermine the right of the average American to possess and enjoy their personal property.*
What I think happened is exactly what Speaker Pelosi was describing. “We have to pass the bill to find out what is in it.” Now the Supreme Court has this detestable sick man of postmodern constitutional overreach on the diagnosis table. Having seen what is in it; they are trying to decide whether they should chain-saw out a few of the more obvious cancer tumors or put it out of its own convoluted misery.
So Lithwick and Kinsley roll to disbelieve that the US Supreme Court could ever doubt the constitutionality of The Affordable Care and Patient Protection Act. Who could possibly be that crazy? This court case, like the 2010 midterm election, is all just an illusion that will go away. The practical people will reassert control, the Commerce Clause holds sway over all and the ignorant hicks will just shut up and go back to sleep. It could happen. Let’s just hope it couldn’t happen here in America.
*-It’s almost like these people are crazy enough to view their JDs as something other than a license to steal without consequence. How whack-job is that?!
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