AG's HCR Lawsuits Try For Case Law Nullification

When I was a six or seven, I asked my Dad to explain what political conservative was (yes, I was just as big a politics nerd as a child as I am now, it must be genetic). It was harder than he thought but he came down on the definition that a conservative was someone that wanted to keep things as much the same as they were or are today as possible. Dad was great in that he did not attach any negative connotations to this desire, in fact he made a point to say that it was important to have folks like this, lest the nation make big mistakes. It is sad to say, but the definition Dad provided 30 plus years ago does not seem to apply anymore.

"Originally posted at Squarestate.net

The actions of the current conservatives and the Republican Party where they make their home seems to be far more about turning back the clock then slowing the pace of change. The best example of this is their legal thinking. Any time there is a new law that they do not like, they run all the way back to the Constitution and say that it is not in that venerable 223 year old document.

Just take a look at the law suit that 13 State Attorneys General have filed against the Health Care Reform legislation. It rest on two arguments, both of them aimed squarely at the Constitution. The first is a 10th Amendment argument, which claims the individual mandate, infringes on the sovereignty of the States. This argument is the same one that crazed secessionist fantasies spring from.

The premise here is that the Federal Government is taking new rights for itself and that since the 10th Amendment gives all rights not claimed by the Federal Government to the States this is unconstitutional. This is a complete misreading of the Constitution. While the States do have all the rights not claimed by the Federal Government, when it does claim new rights (either through Constitutional amendments or legislation) the supremacy clause trumps the states.

The other argument the 13 AG’s are making is that the requirement to buy insurance is unconstitutional. This is probably not going to go anywhere either. The reason is not in the Constitution but in the case law that has sprung up over the last 200 years.

Various Supreme Courts have ruled on the application of the Commerce Clause that allows the Congress to regulate commerce that crosses State lines and affects the nation’s economy as a whole. It has been interpreted, time and again, as being quite sweeping. Given the fact that health care, as our Republican friends have told us ad infinitum, is about 1/6 of the nations spending there is very little doubt it meets those tests.

The AG’s are resting their argument on the requirement of purchase, but that is not what is going to be argued. As Lawrence O’Donnell pointed out last night on Countdown the implementation of the mandate is in the form of a tax credit. If you have insurance you get the credit, if you do not, then you have to pay the taxes the credit does not wipe out.

It is long established that the Federal Government can tax the people of the United States and provide incentives to behaviors in the form of tax credits. This is no different. If you want to keep your taxes as low as possible, then you will have or buy health insurance. Any citizen can choose not to do so, but there will be a monetary cost. In this way it is the same as choosing not to buy a house. The deduction for interest on a mortgage is an incentive to home ownership, but it is not a requirement that everyone buy homes.

This just illustrates an overall pattern for conservatives and Republicans, this idea of case law nullification. It is the root of the entire school of thought called Strict Constructionism. This idea (beloved of Justice Clearance Thomas) says that Constitutional issues should be framed by the intent of the people at the time the amendment in question was written.

Which is just great for conservatives; after all the main body of the Constitution was written at a time when only white, land owning, men could vote. Going back to a time when the most important rights were those of the wealthy and educated suits the conservative movement just fine.

If you subscribe to this point of view it is quite easy to wipe away decades and sometimes centuries of settled law. If the case law did not follow Strict Constructionism it is wrong and should never have been relied upon in the first place. Judgments like the recent Heller case striking down bans on hand guns are an example of this kind of thinking.

The problem with this idea is that it means the law can never evolve. It is stuck in the form which it is written and any changes would require either changes in the Constitution or changes in legislation, there would be no room for interpretation, no flex and bend to allow for changes in attitude or application; this also benefits the conservative point of view. If it is very difficult to change laws then things will stay the same for longer.

It is not just in the area of law that conservatives would like to turn back the clock. Yesterday TMP reported that Republican Senator Louie Gohmert of Texas is calling for the repeal of the 17th Amendment which allowed for the popular election of Senators instead of their appointment by the State Legislatures. From that article:

Ever since the safeguard of State legislatures electing U.S. Senators was removed by the 17th Amendment in 1913, there has been no check or balance on the Federal power grab for the last 97 years," Gohmert said in a press release, calling for a constitutional convention of the states. "Article V requires a minimum of 34 states to request a Convention which in this case, would be an Amendment Convention for only ONE amendment."

This is just another example of conservatives trying to turn back the clock to a time when the rules favored their point of view. The idea that elections have consequences is one that Republicans have been in deep denial of ever since they began to lose power in 2006. Instead of recognizing that it is their ideology that is being repudiated and adjusting to fit the new reality, they are going to work tirelessly to turn back the hands of time. It can be seen in their desire to undue the safety net programs of Medicaid, Medicare and Social Security. It can be seen in their constant desire to ignore case law and run all the way back to founding of the Republic as if our 234 years of history have never happened. It can be seen in their willingness to side with the powerful and wealthy over the needs of the people of their own nation.

The conservatives of today no longer match Dad’s definition. They are not interested in keeping the good things in the system as time goes on, they are trying to return to a time that never existed where they were always in control and things were slanted to the white, the Christian and the wealthy.

It is our job to make sure they fail in these efforts. There are many on the progressive side of the political spectrum who are unhappy with the pace of change, and often the direction of it. That can be understood, but the alternative is not just maintenance of the status quo. Conservatives have set their sights on turning back they will not compromise on this; it makes progress that much harder as we have to not only look for positive changes, we have to constantly defend the changes we have slowly gained.

This is the challenge we are presented with. The work will be hard and there will be set backs, but if we do not stand against this retreat from a liberal and pluralistic society, then no one will.

The floor is yours.