Thursday, June 28, 2012

Roberts May Have Voted to Uphold the Affordable Care Act, But His Maneuver Protects His Conservative Agenda

[This article also appears on You can access it from my author page here.]

The U.S. Supreme Court upheld the constitutionality of the individual mandate of the Affordable Care Act Thursday, and I, of course, am very happy about that. It means that tens of millions of Americans without insurance--from kids in their 20s who can stay on their parents' policy to people with pre-existing conditions who are denied insurance to those who can't afford coverage--will receive health care in the years ahead. The Affordable Care Act may not have been the best way to go (a system with a public option or simply offering Medicare for all would have been better in many ways), but the Affordable Care Act is vastly superior to what we had before.

The Court's decision has resulted in a steady flow of excited, congratulatory proclamations from those who support health care reform. I wish the story was as uniformly positive as it seems.

In the Affordable Care Act ruling (National Federation of Independent Business v. Sebelius), Chief Justice Roberts joined the Court's four liberal justices to uphold the individual mandate. But it's important to note that he did not do so under the Constitution's Commerce Clause, as the government asserted and as the four liberal justices accepted. Roberts explicitly found that the act would NOT be constitutional under the Commerce Clause, something on which the four other conservative justices agreed. Instead, Roberts found that the individual mandate was a constitutional exercise of Congress's power to collect taxes.

Some will ask: Who cares? That is, the Court let the act stand, people will get medical care, so what's the difference which legal principle the chief justice used to uphold the law? The answer is that while Roberts's approach worked in the Affordable Care Act case, it actually furthers the Court's politicization and increasing hostility to Congress's power to enact legislation.

The Commerce Clause is a tool through which Congress has traditionally been able to legislate on matters conservatives would rather they stay out of. Congress's taxing power covers only a limited array of issues. So it's clear that by choosing taxation over commerce, Roberts was able to vote to uphold the act without doing anything to endorse Congress's ability to make laws under the Commerce Clause, which would have gone against his conservative agenda.

Since Roberts took over in 2005, he and his allies--Antonin Scalia, Clarence Thomas, Samuel Alito and, often, Anthony Kennedy--have sought to move the Court not just to the right, but so far to the right that the rulings are reminiscent of the late 19th century/early 20th century era in which the Court was hostile to government and protective of corporations. The Court's limits on federal authority would have been viewed as being on the conservative fringe just 20 years ago.

The political/ideological question at the center of the Affordable Care Act challenge was the limit of federal power. The Tea Party-owned Republicans in Congress and state legislatures across the country have been pushing to limit the power of Congress to enact laws, especially those that affect business. And the Court, which has grown increasingly political under Roberts, has been doing everything it can to help.

As a recent study by the Constitutional Accountability Center found, the Roberts court, since he took over in 2005, has largely ruled in a manner that has been pro-business and anti-consumer/individual. While the Burger court's rulings upheld the position of the U.S. Chamber of Commerce in 43 percent of cases, and the Rehnquist court sided with the Chamber 56 percent of the time, the Roberts court has backed the Chamber on 68 percent of its cases, including every decision in the 2011-2012 term through the date of the release of the study (June 21, 2012).

The political nature of the Roberts court was on full display in 2010 in Citizens United v. Federal Election Commission, in which the Court, in the ultimate pro-corporate opinion, overturned decades of Court precedent on campaign finance regulation to give corporations virtually untethered power to spend money on elections. The majority opinion makes the laughable assertion that heavy financial contributions do not give rise to corruption or the appearance of corruption, and the Court stood by that laughable premise when it struck down a Montana campaign finance law last week without benefit of full briefing and oral argument in which the state was prepared to provide empirical evidence of corruption.

Even the manner in which Citizens United was decided was political in a way that would have seemed unthinkable in recent Supreme Court history. The original oral argument and briefing was on the exceedingly narrow question as to whether a documentary would fall under the purview of the challenged provisions of the Bipartisan Campaign Reform Act (also known as McCain-Feingold). But the Court instructed the lawyers to reargue and rebrief the case on the larger question of the provisions' constitutionality.

As Jeffrey Toobin put it in his account of how the Citizens United decision came together: "So, as the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party. Roberts’s choice was: a lot."

The blatantly political approach employed by Scalia (as well as his frequent allies Thomas and Alito) was on full display on his dissent in the Court's recent decision overturning key provisions of Arizona's draconian immigration law. Scalia's attack on President Obama was so direct and political (and non-judicial) that mainstream publications, which often are so uninterested in the inner working of the Court that they don't even name any of the justices in reporting on decisions unless they write the main opinion, started questioning Scalia's naked practice of politics. The Los Angeles Times reflected this sentiment when it asked in a headline: "Did Justice Scalia Go Too Far This Time?"

It seems to me that the negative public reaction to Citizens United and a recent New York Times/CBS News poll showing the lowest approval rating for the Court in decades might have played a role in Roberts voting to uphold the Affordable Care Act. After all, if the Court had found the mandate unconstitutional, it would have been largely viewed as an overtly political decision, an example of legislating from the bench. But even in upholding the constitutionality of the mandate, by basing his vote on Congress's taxing power, Roberts was allowed to dodge the charge of being political without impeding the Court's ongoing commitment to the Republican/Tea Party goal of limiting federal power (including under the Commerce Clause). Roberts was able to take a loss in this one case without hurting his larger pro-business, anti-federal agenda.

So through the lens of health care policy, the Court's decision upholding the individual mandate of the Affordable Care Act is both important and welcomed. But we shouldn't lose sight of what Roberts's maneuvering on the case means for the Court's future decisions. While Roberts might have reluctantly opposed the GOP on health care, his vote on the case did nothing to slow down his fringe right-wing, anti-federal, pro-business agenda from moving forward, full steam ahead.

Sunday, June 17, 2012

Why Republicans Punishing a Rep for Saying "Vagina" Matters

[This article also appears on You can access it from my author page here.]

When the Republican-controlled Michigan House of Representatives banned a Democratic representative from speaking because she used the word "vagina" in debating an anti-abortion bill (which has been called the "most extreme" in the nation), the story went national. Progressive sites like Huffington Post and TPM jumped on the issue, but even mainstream media like the Washington Post also covered the controversy. 

But the Michigan Republicans' reaction to the simple word "vagina" was more than just a quirky one-off story that would anger reasonable Americans and provide fodder for late-night talk show monologues. Rather, the aversion to a woman in a position of power daring to utter the word "vagina" during a debate on legislation meant to curb abortion rights is symbolic of one of the festering abscesses (yes, there are more than one) infecting the modern GOP: a destructive obsession with turning back the clock to the 1950s on the role of women in society. This obsession is not only damaging to women and our country, but it has had a disproportionate influence in directing the Republican policy agenda.

The context of Rep. Lisa Brown's use of the word is illuminating. She said: "I’m flattered you’re all so interested in my vagina. But no means no." Brown's comment was squarely at the center of the issue under examination, and the word was not slang or an expletive, but rather the anatomical description of a part of a woman's anatomy that the proposed legislation would directly affect.

There was nothing offensive, off color or controversial about Brown's remark, unless the listener has an unhealthy obsession with women's vaginas, as Republicans seem to (specifically, in controlling what they and their owners can and can't do).

This obsession is apparent in the GOP agenda after the 2010 elections, which led to the party taking control of the U.S. House of Representatives and many state legislatures. The Republicans campaigned on two primary claims: 1) health are reform would hurt seniors and others (based on lies about the legislation), and 2) Democrats were to blame for unemployment, but Republicans would create jobs. So they arguably walked away from the 2010 elections with a mandate to vote to repeal health care reform and to introduce measures to create jobs.

But that's not what happened. Instead, the House of Representatives offered nothing to address unemployment, but moved quickly to institute a decades-old, right-wing agenda, including what came to be known as a "war on women." The first bill offered by the new Republican-controlled House (H.R. 1) included a provision that defunded Planned Parenthood (which provides non-abortion-related health care, like mammograms, to millions of women), a move that would be followed by several states. H.R. 3 sought to ensure there would be no taxpayer-funded abortions. And the anti-abortion fervor was, again, followed in state legislatures across the country.

It wasn't just abortion, however, when it came to the GOP war on women. From dragging their feet and trying to weaken the re-authorization of the Violence Against Women Act, to blocking the Paycheck Fairness Act (again, also true at the state level), to holding a hearing on contraception coverage that primarily only included religious men (and opposing the Obama administration's decision to require health insurers to cover contraception), Republicans in Washington spent an awful lot of time, effort and political capital trying to control women's bodies, roles and options.

When Rush Limbaugh called a woman who testified in support of contraception coverage in health insurance a "slut," it was more than just a typical Limbaugh publicity-seeking, right-wing-riling stunt. The attack and the term Limbaugh used shined a light on how many Republican men think of a woman's role in society. To them, a woman who sits in front of a congressional committee and demands contraceptive coverage is a slut, because women should not be discussing such matters in public. These Republican men think women shouldn't demand equal pay, because, really, they should be at home. They can't say it out loud, but Limbaugh articulated what they think.

It's not a coincidence that three female Republican senators--Lisa Murkowski, Olympia Snowe and Kay Bailey Hutchinson--all expressed dissatisfaction with the Republican attacks on women.

The Tea Party-driven modern Republican party glorifies a 1950s role for women in society (not working, not having sex outside of marriage, not controlling their own bodies). It's inherent in their legislative priorities. And this vision was on full display with the Republicans in the Michigan House, who were so put off by a woman, who was serving as a member of the state legislature, using the anatomical/medical term "vagina," they felt they had to shut her up.

It makes one wonder: Would the Michigan Republican leadership have banned a male conservative representative for using the term "vagina" in the debate? Somehow I doubt it.

Voters will have to decide in November if this is the vision of women in America they want to be in control of the levers of government. Given that roughly half the electorate is made up of women, I'm guessing that the Republican obsession with women's sexuality and 1950s role in society won't go over too well. Many might take inspiration from Brown and say, "I’m flattered you’re all so interested in my vagina. But no means no."