For weeks, Sens. Pat Roberts (R-KS) and Jerry Moran (R-VA) have blocked Tenth Circuit nominee Steve Six without deigning to explain why they were doing so. Yesterday, Roberts finally explained himself, citing Six’s unwillingness to rewrite the Constitution to advance the GOP’s legislative agenda:
[A]s Kansas Attorney General, [Six] failed to see any Constitutional defects with the newly passed health care reform law. While this view runs counter to the overwhelming belief of many Kansans, and the decisions by two federal judges, it points to a larger issue concerning the proper role of government in our lives. And with all due respect, the average person can identify the constitutional defects of Obamacare.
This is madness. Five of the eight judges who have considered the merits of the Affordable Care Act — including former Scalia clerk and George W. Bush appointee Judge Jeffrey Sutton — have all voted to uphold the Affordable Care Act. Does Roberts think that Sutton — a states rights crusader who devoted much of his career to preventing people with disabilities, religious minorities, and even children who are illegally deprived of Medicaid coverage from holding states accountable in federal court — is too much of a leftist to sit on the federal bench?
Indeed, the constitutional case against the Affordable Care Act can’t even be squared with Justice Scalia’s decisions. In a case called Gonzales v. Raich, Scalia explained that “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
The case against the ACA focuses on its provision that requires most Americans to either carry health insurance or pay slightly more income taxes, but this provision exists for a very good reason. The ACA also eliminates one of the insurance industry’s most abusive practices — denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.
In other words, the ACA’s regulation of the national insurance market cannot function without a requirement that nearly every American carry insurance. Accordingly, the coverage requirement is clearly constitutional under Justice Scalia’s statement that Congress possess “every power needed” to make it’s economic regulations effective, and Scalia is also disqualified from the federal bench under Roberts’ standard.
The bottom line is that conservative lawmakers like Roberts don’t particularly like the fact that the Constitution allows our elected leaders to solve national problems — they’d rather have a Constitution that ensures that only conservative governance is allowed — so Roberts has now decided to rewrite the Constitution by refusing to confirm any judges who insist up following it.