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Reflections on the Supreme Court Case and the Affordable Care Act



by Walter J. Kendall III, Board Member Citizen Action/Illinois and Professor of Law, John Marshall Law School


Friends. Last week during the oral argument before the Supreme Court on the constitutionality of the Affordable Care Act Justice Scalia referred to what he called "the Cornhusker kickback". It is a reference to  a deal made by the Senate leadership with Senator Nelson of Nebraska to include as part of the ACA certain concessions and benefits  applicable to Nebraska alone. As far as I know the incident is not part of the official  record before the Court, or mentioned in  the briefs of the parties. Because It is a partisan political characterization of what is more or less common legislative compromise it troublesome that a Justice would one even mention the incident, and two refer to it in such partisan terms.

Justice Scalia famously disapproves of the use of legislative history to determine the meaning of statutes. Yet here he suggests that the motive of a single legislator is relevant to determining the constitutionality of a statute. And as was said in a partisan manner.

In the same argument he also asserted as fact that one "needs" 60 votes to pass a bill through the Senate. Again, that is to assume that the politics of the Senate is particularly relevant to determining constitutionality. If the filibuster practice is relevant at all getting a super majority should weight in favor of constitutionality. Remember the members of Congress and the President all take an oath to follow the constitution.

This was distressing enough by itself. But it has been followed by an even more blatant and obviously partisan incident of a similar nature. Judge Smith of the 5th Circuit Court of Appeals referred to an out of Court statement of president Obama, a statement that was not part of the record by a person not a party to the proceeding. The case before the appeals court was brought in part by a spine and joint hospital in East Texas that is challenging the constitutionality of a portion of the health care law that restricts physician-owned hospitals from expanding or building new facilities. Judge Smith ordered the government's attorney  to submit a letter to the appeals court by Thursday stating the position of U.S. Attorney General Eric Holder and the Justice Department on the concept of judicial review. "The letter needs to be at least three pages, single spaced, no less and it needs to be specific. It needs to make specific reference to the president's statements," Smith said.

Federal Judges frequently appear before partisan groups expressing their opinions on legal questions that may come before the Courts. Justices Scalia and Thomas notoriously appear at partisan events, even fund-raisers for partisan causes.

It seems to me these kinds of  instances do great harm not only to the Court, but to the Republic itself. Without the Constitution we have no societal core beliefs to rally around; without judicial review we will have no rights, only what protection of our dignity and moral worth power gives us.