14 November 2011

This may put Scalia right over the edge.

The Supreme Court of the United States has decided to decide the fate of The Affordable Care Act, President Obama's health-insurance reform law, a/k/a "Obamacare."

As an ultraconservative Republican partisan, Justice Scalia no doubt loathes the commie nanny-state big-gubmint unfunded-mandate ACA, and is already trying to figure out how to nullify an Act of Congress without appearing overly hypocritical — given his history of insisting that unelected judges just have no business overriding the decisions of elected representatives who are simply expressing the will of the people.

But what's going to drive him into true torment is his so-called "originalism."

"Originalism" is Justice Scalia's remarkable belief he alone possess some unique insight into the hive-mind of the Republic's founders (as if they all agreed on everything), and only by applying his arcane knowledge can the Court accurately determine whether modern laws are congruent with the Founder's 18th Century worldview and America's place in it, which Scalia insists they intended to freeze in time with absolutely no express or implied accommodation for tomfoolery and shenanigans like social progress or evolving moral standards. I harbor precisely no doubt that had Scalia sat on the court 154 years ago, he would have cheerfully written the opinion in the Dred Scott case, concluding the Founders owned slaves, slavery was legal when the Constitution was signed, black people weren't citizens then, so shouldn't be now, case closed.

But here's the thing:
In July of 1798, Congress passed — and President John Adams signed  — “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.
Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.
And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.
Well, that's going to throw quite a wrench into Scalia's "originalism" unless he chooses to side with modern Tea Party whackadoos who insist John Adams was some kind of bolshevik.

But as Rick Ungar also points out:
it wasn’t only John Adams who supported the notion of government run health care. According to Georgetown University history professor and noted historian of America’s early days, Adam Rothman, Thomas Jefferson — the iconic hero of the Tea Party — also supported the legislation. 
Sargent reprints the following email he received from Prof. Rothan on the subject  — 
"Alexander Hamilton supported the establishment of Marine Hospitals in a 1792 Report, and it was a Federalist congress that passed the law in 1798. But Jefferson (Hamilton’s strict constructionist nemesis) also supported federal marine hospitals, and along with his own Treasury Secretary, Albert Gallatin, took steps to improve them during his presidency. So I guess you could say it had bipartisan support."
So I can't wait to see how Scalia resolves his "originalism" and "legislative deference" in the context of the ACA.

He'll have ample opportunity to exercise his usual dismissive sarcasm. SCOTUS has chosen to accommodate surprisingly lengthy oral arguments (allowing 5 1/2 hours, when they typically permit 1), promising a holding delivered in June.

As a sidebar, I was actually pleased to note that SCOTUS declined Liberty University's (a wretched hive of scum and villainy) petition to allow private entities (rather than state and federal attorneys general) to challenge the ACA. No doubt, the LU bigots were more interested in securing a ruling that would grant them special standing to challenge legislation that dispenses with, or fails to provide for, special rights for heterosexuals.

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