Wednesday, September 28, 2011

Never Before Has the Supreme Court Been Asked To Uphold The Acronym "PPACA"....

Commenting on the United States' cert petition in the PPACA litigation, the Justice Department wrote:
Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.

Randy Barnett replies:
Each of those laws enjoyed bipartisan support when enacted; none were passed on a straight-line party vote. In fact, enacting so massive a social-welfare measure that affects every man, woman, and child in the United States in so partisan a manner was ... wait for it ... unprecedented.

For starters, I'm not sure what the argument is here. Does the Constitution change because Republicans threw a temper tantrum about this bill that was ... wait for it ... unprecedented in American legislative history? For that matter, I don't even know what it means to pass a law in a "partisan manner". It's hardly the case that Democrats acted to specifically prevent Republicans from joining the legislation, or locked them out of negotiations. Indeed, given the scope and breadth of GOP intransigence, I'd say they made (wait for it!) unprecedented efforts to include Republican voices. There are laws which were drafted specifically so as to "box out" the other party so they couldn't join on to an otherwise salutary policy accomplishment (e.g., The Unborn Victims of Violence Act). But PPACA wasn't anything like that.

But the entire subtext here is misleading. The Civil Rights Act was "bipartisan" primarily because America hadn't undergone the massive realignment whereby the South shifted from Democratic to Republican. But the fact that Southern Dixiecrats split ranks with their soon-to-be-ex-colleagues hardly implies anything about that law being less controversial at the time of passage. It just illustrates that we live in a political climate where party label more accurately reflects polarization.


Ivan Ludmer said...

I don't know, David (sorry, Professor Schraub!) - Randy put that sentence together so shrewdly. Maybe the "in so partisan a manner" doesn't modify "enacting so massive a social-welfare measure," but instead modifies "affects every man, woman, and child in the United States"? Did you ever think of that?! The PPACA totally affects Americans in super-partisan manner. What else do you call taking away from rugged conservative individualists the opportunity to be denied insurance for preexisting conditions or run out of insurance under a lifetime caps? What else do you call requiring coverage of the overwhelmingly-liberal under-26 set under their parents' insurance plans? Wake up and smell the red, red roses of communist takeover.

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