Tuesday, December 14, 2010


There's a lot of learned commentary out there regarding Judge Henry Hudson's ruling on the health care law, but I tend to agree with Kevin Drum's gloss on Eric Cantor's reaction to the ruling:

...the Supreme Court will eventually provide a final determination. But Rep. Eric Cantor wants to cut out the red tape:
To ensure an expedited process moving forward, I call on President Obama and Attorney General Holder to join Attorney General Cuccinelli in requesting that this case be sent directly to the U.S. Supreme Court. In this challenging environment, we must not burden our states, employers, and families with the costs and uncertainty created by this unconstitutional law, and we must take all steps to resolve this issue immediately.
I'm not sure what the legal issues are here, but there have certainly been times in the past when I've wondered why we bother going through the whole rigamarole of lower court decisions in cases like this. I mean, everyone knows this is going to end up at the Supreme Court anyway, and everyone knows that the Supreme Court quite plainly couldn't care less what any of the lower courts say about it. All those lower court decisions are no better than waste paper.

Kevin's right -- the Roberts Court is going to conclude whatever the hell it wants to conclude, willfully disregarding and distorting arguments, precedent, and objective reality if these things get in the Court's way. An intellectually indefensible but binding decision is coming eventually. So why not just cut to the chase?

Um, because that could very well lead to the apocalypse? That's what Kevin's Mother Jones colleague Nick Baumann argues:

Most legal scholars agree with the Obama administration [that] the commerce clause allows Congress to regulate economic decisions, not just economic activity. Hudson, as you know by now, doesn't buy that argument....

Drastically limiting the scope of the Constitution's commerce clause (as Hudson would do) is the slippery slope to the libertarian paradise. Almost every meaningful action the federal government takes with regard to the economy rests on the commerce clause. In the past, the Supreme Court has read that clause to be incredibly constrained. During the
Lochner era (1897-1937), the court routinely struck down federal laws regulating working hours, child labor, and minimum wages as inappropriate interventions in individuals' "right of contract."

In that time, individuals' "rights" to do whatever they wanted in the market -- even if a 12-year-old "agreeing" to work 80 hour weeks for next-to-nothing made it more likely that other children would have to do the same -- were thought to outweigh the state's interest (and, you know, the moral imperative) in not having children being worked to death in textile mills.

(Emphasis added.)

That, quite possibly, is where we're headed -- and Cantor says he wants us to get there sooner rather later.

Now, maybe Cantor just wanted to make a demand that he assumed the White House wouldn't agree to, in order to give his right-wing base one more thing to be aggrieved about. Or maybe he wants Cuccinelli, his fellow Virginia Republican, to have a big win sooner rather than later, i.e., prior to his inevitable run for governor or the Senate (or, as I see it, prior to a possible appointment as the next GOP president's attorney general).

Or Cantor is impatient to have the Court invalidate a century of progressive legislation in one fell swoop, to spare him and his fellow members of the Congress the hard work of battling to eliminate or eviscerate the few remaining progressive accomplishments (Social Security, Medicare, the minimum wage) that the public and Democrats actually would battle to preserve. The gutting of those is what Republicans are going to be trying to accomplish once they have the White House as well as complete control of Congress -- but that's not going to be a popular fight once they're actually engaged in it. Much easier to have the Court level the entire 20th-century progressive edifice with one wrecking ball, and let Republicans in Congress be the blameless cleanup crew clearing away what's left of the wreckage.

No comments: