Ronald Dworkin has an article defending the constitutionality of the Patient Protection and Affordable Care Act in the New York Review of Books that offers an excellent primer on the relevant issues. There are two sections I'd recommend in particular. First, in Section II Dworkin does the most lucid job I've seen so far in explaining why the "activity/inactivity" distinction made by the challengers is so weak:
(Flickr/ Planned Parenthood Federation of America)
Texas health officials are telling low-income women not to worry. The Women's Health Program, the Medicaid program serving 130,000 women, will still be there for them. Of course, how it will be paid for and whether enough clinics will be left providing services are still subjects up for debate.
After weeks of pressure, the American Legislative Exchange Council (ALEC) appears to be backing away from long-term efforts at creating barriers to voting (voter-ID laws) and pushing "Stand Your Ground" legislation. The latter allows those who feel threatened in public places to use force; Florida's version is currently at the center of the Trayvon Martin case. Giving in to public pressure, ALEC announced Tuesday that it was disbanding its Public Safety and Elections Task Force, which promoted such legislation and helped see it proliferate.
She’s a single, unemployed mother with three children who finds out that she’s pregnant—just after the father has been sent to prison. She says she is distraught at the idea of hurting her kids by adding another child to the family, giving each of them less money, time, and attention, dragging them further into poverty. But she lives in rural southeastern Idaho, a two-and-a-half-hour drive from the nearest clinic in Salt Lake City—and getting an abortion would require two round trips there, because of the mandatory waiting period.
So she takes RU-486, ordered online, self-supervised. She freaks out at the fetus’s size, stashes it on her back porch, tells a friend, and gets reported to the police.
And, is promptly arrested for inducing her own abortion.
Liberals often complain about the Democrats’ seeming inability to message their ideas with the same consistency and verve as conservatives. It just never seems like the party has the same discipline in its talking points. Congressional Dems' messaging during the health-care reform legislation in 2009 is a case in point. Rather than taking their cues from Republicans (despite the atrocious polices it entailed, naming a bill the PATRIOT Act immediately after 9/11 was a genius tactic), Democrats went for the unmemorably named "Patient Protection and Affordable Care Act." It’s not like Democrats are clueless to such tricks—the campaign finance disclosure bill they’ve proposed after Citizens United had the fitting acronym DISCLOSE—they just didn’t bother in this instance.
Orin Kerr outlines a five-part test for whether a decision can be called "judicial activism" as a means of assessing whether the label could be fairly applied to a decision striking down the Affordable Care Act. Roughly, the criteria are: 1) whether the decision was motivated by the policy preferences of judges; 2) whether it expands judicial power for future cases; 3) whether it was inconsistent with past precedents; 4) whether it struck down a "law or practice"; and 5) whether the decision was "wrong." On three of the first four criteria, Kerr essentially agrees that a decision striking down the ACA would be "activist." On points No. 3 and No.
Last night while I was asleep, highly placed sources whom I cannot identify (because they don’t exist) assured me that Attorney General Eric Holder originally wrote this first draft of a letter he was ordered to submit to Judge Jerry Smith of the Fifth Circuit. The final letter has quite a different tone. But those of us who cherish the rule of law can dream that he might have actually sent Judge Smith the following instead.
Judge Jerry E. Smith Circuit Judge Fifth Circuit Court of Appeals
Sitting in the Supreme Court on March 27, I was stunned by the oral argument on the Affordable Care Act (ACA). From their first questions to Solicitor General Donald Verrilli, the conservative justices seemed to echo the arguments against the individual mandate that the opposing lawyers had set out in their briefs. When it was over, I was not 100 percent sure that Justice Anthony Kennedy would vote to overturn the mandate and related penalties. But if he does, the Court may well strike down the law’s other critical provisions, staging what amounts to a conservative judicial coup.
Someday, all Americans will have access to health care, just as all people in Germany and France and Japan and Sweden and every other advanced industrialized democracy do today. It may take a decade or two after the implementation of the Affordable Care Act in 2014 (if it survives the whims of Anthony Kennedy) to fill in the gaps the law leaves behind, or it may take decades beyond that. But it will surely happen eventually. And at some point after it does, we'll come to a consensus as a society that it was a collective moral failure that we allowed things to be otherwise for so long.
A few weeks ago, Teresa Sayward did the unthinkable. The New York state Republican assembly woman told a state news program that she'd consider voting for Obama. "I really, truly think that the candidates that are out there today for the Republican side would take women back decades," she said on Capitol Tonight.
Given the hostility the Republican appointees on the Supreme Court showed to the Affordable Care Act during oral arguments this week, some progressives are seeking a silver lining. At least, some have argued, striking down the ACA would substantially undermine the legitimacy of the conservative-dominated federal courts.
Today, the members of the Supreme Court will meet in private to begin deciding the fate of the Affordable Care Act, and the millions of Americans whose lives and futures stand to be made more secure because of the ACA. It's entirely possible that Anthony Kennedy will discover some place in his heart where integrity and a respect for the true role of the Court are supposed to be and the Act will be upheld, but at the moment you won't find too many people willing to bet on it.
So I'd like to spend a few moments working through what might happen if the Court takes the middle course, which could be the most likely—striking down the individual mandate, but leaving the rest of the law intact—both in the short and long term.