While discussing the upcoming arguments before the Supreme Court starting Monday on whether the Affordable Care Act is constitutional, ABC's Terry Moran and guest Matthew Dowd both pointed out the obvious, much to the chagrin of This Week regular George Will, that there is politics involved with the Supreme Court deciding to hear this case.
MORAN: They took it at a different time, in some ways. The Republicans, Michele Bachmann, are making this the number-one issue. Some of the biggest mistakes the Supreme Court has ever made is when they decided cases they didn't have to. And John Roberts as chief justice, loves the court, is very protective of its institutional authority. The more it gets involved in politics, the more that authority comes down.
WILL: I really disagree with Terry on this. I think the Supreme Court is composed of nine intelligent, conscientious judges who are prepared to judge in this case. Why did they take it? Because the circuits are in conflict, and the circuits -- some important circuit judges say -- in very persuasive opinions -- that portions of the law -- at least two portions -- are unconstitutional, the Medicaid expansion, which is a burden that eviscerates (ph) federalism and, of course, the mandate.
What Will, Moran or any of the rest of them on this panel failed to mention was the name Clarence Thomas and his wife Ginni and whether Thomas ought to be recusing himself from the case. It's been astounding to me to watch most of the media coverage over the last week and not see their names mentioned once.
If anyone needs a reminder of why Thomas should not be hearing this case and just how "political" his involvement is, I'll just refer you to these posts:
Clarence Thomas "Forgot" 20 Years of Disclosure? Really?
Justice Clarence Thomas Should Resign For His Egregious Conflicts of Interest and Unethical Behavior
Ginni Thomas as Lobbyist? Really?
Clarence Thomas Fails to Disclose Citizens United In-Kind Contributions
Full transcript below the fold.
STEPHANOPOULOS: And tax capital gains as regular income. Let's move on to health care. We heard from Michele Bachmann. She thinks that's the biggest issue in this presidential campaign. Want to go to the Supreme Court right now. People have been lining up for about three days waiting for these arguments, oral arguments at the Supreme Court, unprecedented three days...
(CROSSTALK)
STEPHANOPOULOS: ... starting on tomorrow, Monday. Terry Moran, you cover the court for us. And basically, the Supreme Court has four options that I can see, correct me if I'm wrong. They can uphold the law. They can overturn it in whole. They can split it. They can overturn the mandate, uphold the rest of the law. Or they can punt, just decide nothing until the tax takes hold in 2014. Which do you think is most likely and why?
MORAN: Well, the smart money is betting that the Supreme Court will uphold this law. Now, a lot of the same smart money bet that the Supreme Court would not declare corporations are people and have First Amendment or will award the 2000 election to George W. Bush.
That's -- I think that what -- one of the overlooked factors here is the politics, and not the impact that the Supreme Court can have on the presidential campaign, but the other way. What does the presidential campaign do the way the justices think here?
The people's representatives passed this law, whether you like it or not. Now the people are engaged in a great free democratic political debate. Why should the Supreme Court come in and call a halt to that debate preemptively and take the political...
(CROSSTALK)
MORAN: They can punt. They can punt. And I think they will.
ROBERTS: But why did they -- why did they take it, then? Why did they take the case if they were going to (OFF-MIKE)
MORAN: They took it at a different time, in some ways. The Republicans, Michele Bachmann, are making this the number-one issue. Some of the biggest mistakes the Supreme Court has ever made is when they decided cases they didn't have to. And John Roberts as chief justice, loves the court, is very protective of its institutional authority. The more it gets involved in politics, the more that authority comes down.
WILL: I really disagree with Terry on this. I think the Supreme Court is composed of nine intelligent, conscientious judges who are prepared to judge in this case. Why did they take it? Because the circuits are in conflict, and the circuits -- some important circuit judges say -- in very persuasive opinions -- that portions of the law -- at least two portions -- are unconstitutional, the Medicaid expansion, which is a burden that eviscerates (ph) federalism and, of course, the mandate.
They're going to decide -- try at long last to see if there is any limiting principle on the ability of Congress to act simply because it asserts that whatever they're regulating has a substantial impact on interstate commerce. If there is no limiting principle, then the Madisonian architecture of limited government is gone and the federal government has an unlimited...
(CROSSTALK)
STEPHANOPOULOS: And, George, the way they posed the question -- or the way a lot of the briefs pose the question is if we can -- if the government can force you to buy health insurance, why can't it force you to eat broccoli?
On the other hand, you look, Cokie, at a lot of the precedents, and if the court follows the precedents, even Justice Scalia and Justice Roberts in the past have voted for an expansive view of the Commerce Clause.
ROBERTS: (OFF-MIKE) Commerce Clause, which, of course, says that the Congress has the right to regulate interstate commerce. But the -- and everything now is considered interstate commerce.
WILL: That's the problem.
ROBERTS: Well (OFF-MIKE) President Kennedy and Mrs. Murphy's boarding house. If it's in interstate commerce, it'll be affected. Well, of course, the '64 civil rights law did affect every -- every institution, and that is the way it has been interpreted.
But the question here is, of course, the difference is that it's asking you to do something and to purchase something. And, of course, the answer is, well, health care is different, that we all will participate in the health care system one way or the other. And...
(CROSSTALK)
ROBERTS: ... people do is to go to the emergency room, which we all then end up paying for.
BRAZILE: Yes. The law is -- I believe -- I'm not a lawyer. I don't even pretend to be one. The law is constitutional. Multiple circuit courts have upheld the individual responsibility clause. Congress has broad authority under the necessary and proper clause and interstate commerce clause.
And the law is also fair. I mean, to require that people who can afford to purchase insurance, I think, it's going to be ruled constitutional.
STEPHANOPOULOS: Matthew, to go back to Terry's original point, this is coming in the middle of a presidential campaign. How does it play? If the Supreme Court upholds it, does it leech out all of the anger? Or does it just create a backlash?
DOWD: Well, that's what I think. The Supreme Court always acts like they're above politics, but these days, they can't be above the politics of anything. They basically have to enter into the middle of it.
To me, this -- if Mitt Romney's the likely Republican nominee -- I disagree totally with Michele Bachmann on this and many other Republicans -- the idea that this is going to be a big negative for Barack Obama -- first of all, Mitt Romney can't really make an authentic argument about this law, by having passed a version of this law in the state, and which...
ROBERTS: And, by the way, which is doing very well.
DOWD: ... the president copied. But even if this is overturned, which I have some doubts that it will, but even if it's overturned, I think that actually helps the president, because what happens then at that point, the president says, I tried to give you -- you know, get rid of sort of the clauses that you don't like. I tried to expand it so people could still keep coverage. I tried to do this, and I tried to do this, and this -- here we go with the Supreme Court, and the Republicans, and this what they did -- I actually think in the end this law, against Mitt Romney, at worst is neutral and at best could help the president.
WILL: I think Matt may be right about that, but, again, I think this is a serious argument about serious constitutional issues. Independent of the fact that the public doesn't like it or the fact that it is the president's signature achievement.
To the argument that health care is unique because everyone uses it, everyone uses food, shelter, clothing, energy, transportation. This is a comprehensive argument, if you let it loose in this case.
Second, a judge has actually said, well, we're not regulating the inactivity of not buying health insurance. We're regulating the mental activity of choosing not to buy health insurance. When you get into this kind of Orwellian language, you're doing something wrong.
