During my trip to Asia, I read a lot (because it is what I do, as my father-in-law pointed out to me). I used the time to catch up on my New Yorkers, and I absolutely must highlight Jeffrey Toobin's smack down of the justices' questions concerning the health care act. In the April 9, 2012, edition, Toobin wrote:
"The key issue in the case is whether congress, in passing the [Affordable Care Act], exceeded its powers under the Commerce Clause of the Constitution, which allows the government to regulate interstate commerce. Consider, then, this question, posed to [Solicitor General Donald] Verrilli by Justice Anthony M. Kennedy: 'Assume for the moment that this' -- the mandate -- 'is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?' Every premise of that question was a misperception." (Emphasis added.)
Ha! Toobin then goes on to explain that the national government has been involved with the health care market since the 60's since Medicaid and Medicare and that the heavy burden is actually on the other party (the challengers to the law) according to case law. Toobin then remarks on how previous cases have set up a deference to Congress on such matters but that these justices were taking it upon themselves to become legislators along with justices. He really seals his article with the zinger, "The awesome, and final, powers of the Justices are best exercised sparingly and with restraint. Their normal burdens of interpreting laws are heavy enough. No one expects the Justices to be making health-care policy any more than we expect them to be picking Presidents, which, it may be remembered, is not exactly their strength, either." ZAP! Way to go, Toobin!
I'm so glad that such a well-respected SCOTUS writer and critic has really taken the justices to the woodshed for trying to overstep their powers. Unfortunately, as is so often pointed out, the justices live in a very secluded life and often do not interact with true American humanity or culture. I hope that for this issue that will greatly save the country's long-term fiscal policies and sustainably provide for the people very much unlike themselves, the justices will step outside their ivory towers when issuing their decision.
"The key issue in the case is whether congress, in passing the [Affordable Care Act], exceeded its powers under the Commerce Clause of the Constitution, which allows the government to regulate interstate commerce. Consider, then, this question, posed to [Solicitor General Donald] Verrilli by Justice Anthony M. Kennedy: 'Assume for the moment that this' -- the mandate -- 'is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?' Every premise of that question was a misperception." (Emphasis added.)
Ha! Toobin then goes on to explain that the national government has been involved with the health care market since the 60's since Medicaid and Medicare and that the heavy burden is actually on the other party (the challengers to the law) according to case law. Toobin then remarks on how previous cases have set up a deference to Congress on such matters but that these justices were taking it upon themselves to become legislators along with justices. He really seals his article with the zinger, "The awesome, and final, powers of the Justices are best exercised sparingly and with restraint. Their normal burdens of interpreting laws are heavy enough. No one expects the Justices to be making health-care policy any more than we expect them to be picking Presidents, which, it may be remembered, is not exactly their strength, either." ZAP! Way to go, Toobin!
I'm so glad that such a well-respected SCOTUS writer and critic has really taken the justices to the woodshed for trying to overstep their powers. Unfortunately, as is so often pointed out, the justices live in a very secluded life and often do not interact with true American humanity or culture. I hope that for this issue that will greatly save the country's long-term fiscal policies and sustainably provide for the people very much unlike themselves, the justices will step outside their ivory towers when issuing their decision.
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