But many observers of the court believe the GOP Five are now trying to write a ruling for killing Obama's health-care reform -- despite the fact that the clear language of the Constitution gives Congress an unlimited power to regulate interstate commerce, the authority upon which the law rests.
Even conservative jurists, such as U.S. Appeals Court Judge Laurence Silberman and Reagan's Solicitor General Charles Fried, found no textual basis in the Constitution for striking down the law. However, that apparently is having little influence on the GOP Five. [See Consortiumnews.com's "If the Supreme Court Goes Rogue."]
Though the five justices all claim to be "strict constructionists" -- bound by a literal reading of the Constitution -- some, if not all, the GOP Five appear determined to rewrite the nation's founding document to impose some "limiting principle" on the Commerce Clause.
They don't seem to mind that the Framers chose not to insert one (trusting in the wisdom of the Legislative and Executive branches to act responsibly when enacting laws as needed to promote American commerce and the nation's general welfare).
The GOP Five's ludicrous arguments comparing the health-insurance market with the markets for broccoli, gym memberships and burial insurance were less about constitutional reasoning than scoring partisan points. [See Consortiumnews.com's "When Is a Hack a Hack?"]
Denied Insurance
For the tens of millions of Americans without health insurance, many want to buy it but have been rejected because of pre-existing conditions or other indicators that suggest they might actually need health care. These Americans get turned down because for-profit insurance companies want to cherry-pick their clients to minimize payouts.
Nothing similar exists for the other markets cited by the GOP Five. People are free to buy broccoli, gym memberships and burial insurance without the sellers denying them the right to make the purchase -- or making it prohibitive by drastically ratcheting up the price -- based on whether a person has previously received a prescription from a doctor or might be overweight.
But the GOP Five -- like the earlier Republican subset in December 2000 -- are not making serious constitutional arguments. They are seeking excuses to justify a predetermined, partisan decision to overturn Obama's top legislative accomplishment.
In another parallel to December 2000, the mainstream news media is falling over itself to protect the "legitimacy" of the Supreme Court. The Washington Post has published two lead editorials denouncing "liberals" who would question the integrity of the GOP Five if they strike down the health-reform law.
And, much as some on Left sat out the Bush v. Gore fight because Ralph Nader had declared that there was no meaningful difference between the two candidates, some activists on the Left now are rooting for the GOP Five to strike down the Affordable Care Act as unconstitutional because they believe Congress will then pass a single-payer system.
This belief is as much magic thinking about what Congress will do as Nader's insistence was wrongheaded that Bush and Gore were essentially the same. Today, even many Nader voters agree that Bush undertook actions, including the bloody invasion of Iraq and opposition to climate-change initiatives, that Gore wouldn't have done.
But some of these same folks are now embracing a similarly fanciful notion that the Supreme Court's rejection of "Obamacare" would lead to a prompt enactment of "Medicare for all," though the last Congress wouldn't even include Obama's proposal for a "public option."
So, from both the mainstream media and parts of the Left -- for different reasons -- there is little alarm over what it means to have a partisan majority of the U.S. Supreme Court treating the Constitution like a malleable weapon to use against political enemies.
Much like December 2000, this is a moment of crisis for the American Republic with the court's GOP Five threatening key principles of democracy.
In Bush v. Gore, the principle was the need to respect the will of the voters. With the Affordable Care Act, it is whether a partisan majority of the Supreme Court can simply invent constitutional arguments to reverse a duly enacted law passed by the elected branches of government.
As with the dialogue in "Game of Thrones," the question is whether the United States will be a nation under "the rule of law" or a system where five men in black robes can simply assert that "power is power."
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