Will the Supreme Court Split the Difference on Health Care and Immigration?

"The High Court" (c) Charles Bragg

Last November, the U.S. Supreme Court announced it would hear one of many lawsuits by conservative officials challenging the new federal health care reform law championed by President Obama. At the time, you will recall, very few observers thought there was a serious chance that the high court would invalidate the legislation.

I was among them –until three weeks later, when the Supreme Court announced it would hear the federal government’s challenge to Arizona’s immigration law, which bars illegal immigrants from trying to get a job and gives state cops the power to arrest people suspected of being illegal immigrants. The Obama Administration argues the Arizona law interferes with federal authority to control the nation’s borders.

When I heard that the Court took the immigration case, I was pretty sure I saw a trade-off in the works.

Here’s how I reckoned it: extreme conservatives loathe universal health care (and the President) and want to stop it now, before it takes effect and becomes one of those successful federal programs, like Social Security, that becomes wildly popular and hence impossible to privatize or repeal.  Liberals, by contrast, aren’t crazy about the sorely compromised product that President Obama signed, but they believe that everybody should receive the health care they need, and that the government ought to at least mandate fair rules in the marketplace. Overturning the new law would set liberals ablaze, and give President Obama a powerful campaign issue – activist judges – in the Fall.

On immigration, many liberals are uncomfortable with the harsh and arguably unconstitutional provisions of Arizona’s law. And they remember how the “state’s rights” movement was once a thinly veiled euphemism for maintaining state laws that discriminated against African Americans. But conservatives strongly support the right of Arizona to take extraordinary measures to stop illegal immigration. Overturning the Arizona statute would anger the conservative base.

See where I’m going here?

By taking both cases within a few weeks of each other, the Republican majority on the Supreme Court gave itself the kind of political cushion it didn’t have when it handed the presidency to George W. Bush in Bush v. Gore.  The high court can grant conservatives the massive victory they seek by invalidating federal health care reform, and then disappoint them by ruling in favor of the federal government in the Arizona case.

“See! Impartial!” the pundits will trumpet;  “this proves that Supreme Court ‘judges are like umpires,’” as now Chief Justice John Roberts put it during his confirmation hearings on Capitol Hill in 2005.  “Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules,” he said at the time, and it sounded reassuring.

“Split the difference” maneuvering is a common feature in American politics. I've seen it in action ever since I first worked on Capitol Hill in the Seventies. The lawmaker votes against a bill – disappointing some – only to vote for a different bill a few days later, pleasing them. All is forgiven, or maybe not; either way, it's portrayed as proof of "independence": “If both sides are mad at me,” the politicians’ old saw goes, “I must be doing something right.”

That may fool some of the people some of the time, but such tactical machinations are of course completely improper in the judicial branch, where justice is supposed to be blind and decisions made based on the merits of the case, not whether “the base” will be thrilled or disappointed, or both.

As a lifelong student of the law, I hope I’m wrong about the U.S. Supreme Court. Those who devote their lives to justice, as most lawyers one way or another must, can only rue the public’s distrust of the judicial process.

That’s growing, and no wonder. Some conservatives indiscriminately berate “judicial activists” on the bench. Meanwhile, corporations spend increasingly vast sums of money belittling judges, juries and lawyers in the quest to pass legislation repealing the average American’s right to hold wrongdoers accountable in a court, which they call "tort reform."

And in a little noticed part of its infamous Citizens United decision, the Supreme Court granted corporations the First Amendment right to campaign for or against judges as if they were politicians. Super PACs are now targeting justices whose rulings aren’t pro-business enough – as if “pro-business” is a constitutional imperative unto itself.

I checked the Constitution – it’s not in there.

Unfortunately, what’s transpired since last winter gives me little reason to believe that the current Supreme Court will put respect for precedent over politics. During three days of hearings last month, the notion that the Supreme Court would invalidate the federal health care law went from being a right wing fantasy to a possible, even likely, outcome based on the questions and comments of the Republican justices.

In fact, after the hearing on the immigration law last week, it looked to many like the Supreme Court was prepared to rule in favor of Arizona.

The Conventional Wisdom now has the Court dumping heath care reform and upholding the immigration controls, making it a clean sweep for the anti-federal government conservatives. After all, members of the Supreme Court cannot be held accountable for their actions, short of impeachment. So why would they care whether they look like they’re “balanced”?

So much for my theory.

On the other hand, a political version of one of the laws of quantum physics may be at work on the Court at this very moment. The Heisenberg Principle posits that the mere observation of atomic particles changes their course. Since its astounding determination that the Constitution protects corporate money, the Supreme Court has come under a nearly unprecedented degree of criticism. Perhaps the public scrutiny is beginning to have an effect.

At least two members of the Court itself have said they want to reconsider it (PDF). Justice Anthony Kennedy, the “swing vote” on the bench, may end up unwilling to join in a wholesale re-engineering of constitutional law.  Some experts suggest that Chief “Umpire” John Roberts might be sensitive to how history will view his stewardship of the institution.

So I still wouldn’t be surprised to see a “split the difference” strategy play out in June, when the Supreme Court is expected to issue its decisions on both cases, just five months from the election.

Citizens United / Harvey Column / Supreme Court - 04/30/2012

The Health Care Games

Like the Hunger Games, in which leaders of the 1% connive to rig a contest so that a charismatic representative of the 99% is defeated, there’s lots of intrigue behind the US Supreme Court hearings on the federal health care law that begin today.

The ostensible issue before the high court is whether the universal health care system established by Congress in 2010 is constitutional. Like the systems in most other developed nations, that law requires all Americans to be covered – whether through their employer or by purchasing it directly. Now this is just plain arithmetic: you can’t have a solvent universal care program if participation is voluntary, because the young and healthy won’t bother to pitch in until they get sick, leaving the older and less healthy to cover most of the cost. Universal means everyone has to be part of it – both getting the medical benefits and paying for its cost.  Today, taxpayers end up bailing out people who don’t buy insurance and then get sick or in an accident.

But the corporate funded US Chamber of Commerce and other right wing entities, plus anti-government foes (including most of the Republicans candidates who want to run the government), argue it was unconstitutional for Congress to order everyone to pay for health insurance. My problem with that part of the law – known as the "individual mandate" – is that you have to buy the insurance from private insurance companies, and there is no limit on what they can charge you. That’s gotta be fixed, and a campaign is underway to do that in California. As everyone knows, however, Obama lifted his health care proposal from the law that Mitt Romney, then Governor of Massachusetts, enacted there in 2006. So its obvious that a big part of why the corporate Republican establishment opposes the law is that it was backed by a Democrat – Obama – and they don’t want him or any other elected Democrat to be able to claim any political victories.

There’s much more to the Supreme Court case than crass party politics, in any case. Many on the corporate right are hoping the US Supreme Court will issue a sweeping decision like they did in Citizens United, this time ratcheting back Congress’s regulatory authority across the board and therefore bolstering the power of big corporations – just as Citizens United did, in the guise of granting corporations a new right to corrupt elections under the First Amendment.

A decision limiting Congress’s power to regulate pollution would be a huge win for chemical manufacturers; drug and tobacco companies want to escape the Food and Drug Administration’s safety requirements; Wall Street wants taxpayer bailouts with no strings attached.  As I wrote a few weeks ago, the powerful elites in this nation think that the health care case is the Supreme Court’s best opportunity in decades to roll back constitutional rights to the deregulated era of excess that led to the First Great Depression eighty years ago. This will be done in the name of protecting Americans against the intrusion of government in their lives.

In the Hunger Games, the hundred thousand wealthiest people in “Panem” gather in their Capitol to watch as twenty-four randomly selected citizens fight each other to death. This is a yearly penance, we are told, imposed by the wealthy in response to an earlier, unsuccessful revolt by the 99%. The Games provide an excuse for a non-stop party for the powerful – like Mardi Gras only with unimaginable excess.  The citizens – known as “Tributes” – come two each from all twelve “Districts” in the country. Those Districts looked a lot like many parts of the United States. People trudge to poor-paying jobs and live in flimsy structures one step up from homelessness. They shop at flea markets where barter is common. They catch their own food. They help each other out because the Capitol has long since abandoned them.

There are other eerie similarities and ironies. In the Hunger Games, the entire game area is wired with cameras and the contest is continuously broadcast to the nation on enormous screens. This quickly turns to the disadvantage of the 1% in the Capitol, because the 99% become inspired by watching the heroine’s courage and humanity and start to rebel anew.  This is a lesson our Supreme Court has already learned: you can forget about seeing any of its hearings on the health care law on a screen of any size. Watching the Justices and corporate lawyers rework the Constitution into a weapon of the mighty might anger some Americans. So the Supreme Court has banned any video… but says it will release audio at the end of each day’s hearing.

It’s clear from the movie that the elites have powerful medicines that can instantly eliminate infections and heal wounds, but residents of the Districts have never seen that kind of health care. I guess the Panem Chamber of Commerce would argue that these citizens are fortunate to be “free from government interference in their lives.”

Citizens United / Congress / Harvey Column / Supreme Court - 03/25/2012

Occupy the Supercommittee

Well they can’t ignore income inequality anymore.

Thank you Occupy Wall Street.

But despite the faux populist tone and understanding emanating from the White House, I’m not convinced President Obama or the rest of our politicians are getting the message.

If they were getting it, they wouldn’t be continuing to pursue policies that place the costs of our continuing economic crisis squarely on the backs of the 99 percent, while the 1 percent uses their political clout to avoid any inconvenience.

For example, the Obama administration has allowed California to cut hundreds of millions of dollars to Medi-Cal, which provides health care to the state’s poorest residents.

If the president’s party was getting it, the Democrats on the so-called Super Committee wouldn’t be pursuing a host of draconian cuts including $3 trillion in cuts to federal health care programs as part of a so-called “grand bargain,” along with some modest tax increases for the country’s wealthiest, you know “job creators,” who are just chomping at the bit to stop outsourcing jobs as soon as they cut yet another tax cut.

As for the Republicans, they’re maintaining the position that their corporate and Wall Street benefactors should have to pay fewer taxes, while the rest of us should get along with less.

I don’t know who these politicians think this bargaining is so grand for, certainly not the 99 percent.

They talk gamely about having “skin in the game” as though they’d be doing the suffering as a result of their proposed cuts. Meanwhile, the House members of the supercommittee did exceptionally well in their service during the third quarter, raking in nearly $372,000 in fundraising from the nation’s financial sector.

This disreputable bunch have turned what is supposed to be a serious democratic process into a demonstration of what our legislature has become – an auction where the government is for sale to the highest bidder, behind closed doors.

As the weather gets frostier in the nation’s capital, the Occupy movement might want to consider the supercommittee’s digs as someplace to get in out from out of the cold.

Martin Column / Occupy / Supercommittee - 10/31/2011