Last week, the New York Times reported that Justice Clarence Thomas received a series of lavish gifts and other favors from a leading Republican donor, including $500,000 to allow Thomas’s wife to start a Tea Party group and a $19,000 Bible that belonged to Frederick Douglass. Additionally, Thomas received a gift worth $15,000 from the American Enterprise Institute, a conservative think tank that often files briefs in Justice Thomas’ Court. Justice Thomas did not recuse himself from at least three cases where AEI filed a brief.

Rather than acknowledge this ethical scandal — a scandal which is striking similar to the gifting scandal that forced Justice Abe Fortas to resign from the Court in 1969 — the GOP has decided to throw up a smokescreen. In a transparent attempt to distract from the very serious allegations against Justice Thomas, forty-nine GOP lawmakers signed a letter to the House Judiciary Committee leadership seeking an probe into utterly frivolous ethical allegations against Justice Elena Kagan:

Forty-nine Republican members of Congress on Thursday asked the House Judiciary Committee to “promptly investigate” Supreme Court Justice Elena Kagan’s role in preparing a legal defense for President Obama’s health care law, saying her prior work in the Obama administration should disqualify her from considering any challenge to the law before the high court. . . .

According to the law, they said, a justice should recuse in cases “where he has served in government employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.

First of all, there is absolutely, positively no case whatsoever supporting Kagan’s recusal from the Affordable Care Act cases. To have “participated” in a “particular case in controversy,” a judge must have been a lawyer, adviser or witness in the exact same lawsuit that is now before their court. Because none of the health care cases currently pending in federal court had been appealed before Kagan was confirmed to the Supreme Court, Kagan would not have done any work on those specific cases. Normally, the Solicitor General first becomes involved in federal litigation at the appellate level, if at all.

Second, the letter effectively accuses a sitting Supreme Court justice of perjury despite no evidence supporting that allegation. Kagan testified under oath during her confirmation hearing that she had no involvement whatsoever in the health care litigation. If the GOP actually has evidence that Justice Kagan is a felon, then they should produce it. Otherwise they should avoid making libelous accusations without proof.

Third, a hearing on Kagan wouldn’t even be the first time right-wing activists launched an unsuccessful witch hunt on this very issue. Earlier this year, a conservative news outlet filed a FOIA request seeking documents relating to Kagan’s involvement in the health care litigation. After examining the documents, National Review writer Carrie Severino, a former law clerk to Justice Thomas, was forced to conclude that the documents contain no evidence requiring Justice Kagan’s recusal.

Here’s what’s actually going on here: last week, Rep. Chris Murphy (D-CT) circulated a draft letter to his colleagues seeking an hearing on the many ethics scandals surrounding Justice Thomas and two of his conservative colleagues. The next day, he pointed out that Republicans won’t speak out against Thomas because “he’s doing their bidding on the Supreme Court today, and they don’t want to do anything that compromises his ability to enforce a political agenda in the United States judicial system.”

The GOP’s silence on Thomas is as unfortunate as it is predictable, but their baseless attacks on Kagan are particularly underhanded. Forty-nine Members of Congress just suggested that a Supreme Court justice committed a serious felony, and they appear to have made this accusation solely to distract from the massive ethics scandal plaguing one of their allies on the Supreme Court.

Yesterday’s decision rejecting a challenge to the Affordable Care Act was objectively the most important decision on this question to date. It was the first court of appeals decision to consider the issue, and the first case in which a judge crossed party lines — George W. Bush appointee Judge Jeffrey Sutton provided the key vote rejecting the plaintiffs’ claim.

Nevertheless, as Steve Benen demonstrates, major media outlets continue to treat pro-Affordable Care Act decisions as far less important than anti-Affordable Care Act decisions:

Washington Post
* 6th Circuit ruling (upholding the ACA): article on page A5, 1053 words
* Steeh ruling (upholding the ACA): article on page A2, 607 words
* Moon ruling (upholding the ACA): article on page B5, 507 words
* Hudson ruling (against the ACA): article on page A1, 1624 words
* Vinson ruling (against the ACA): article on page A1, 1176 words
* Kessler ruling (upholding the ACA): no article, zero words

New York Times
* 6th Circuit ruling (upholding the ACA): article on page A15, 853 words
* Steeh ruling (upholding the ACA): article on page A15, 416 words
* Moon ruling (upholding the ACA): article on page A24, 335 words
* Hudson ruling (against the ACA): article on page A1, 1320 words
* Vinson ruling (against the ACA): article on page A1, 1192 words
* Kessler ruling (upholding the ACA): article on page A14, 488 words

Associated Press
* 6th Circuit ruling (upholding the ACA): one piece, 832 words
* Steeh ruling (upholding the ACA): one piece, 474 words
* Moon ruling (upholding the ACA): one piece, 375 words
* Hudson ruling (against the ACA): one piece, 915 words
* Vinson ruling (against the ACA): one piece, 1164 words
* Kessler ruling (upholding the ACA): one piece, 595 words

Politico
* 6th Circuit ruling (upholding the ACA): one piece, 940 words
* Steeh ruling (upholding the ACA): one piece, 830 words
* Moon ruling (upholding the ACA): one piece, 535 words
* Hudson ruling (against the ACA): three pieces, 2734 words
* Vinson ruling (against the ACA): four pieces, 3437 words
* Kessler ruling (upholding the ACA): one piece, 702 words

Indeed, coverage of anti-ACA decisions has so overwhelmed coverage of the pro-ACA decisions that all but one outlet has published more total words on the former — despite the fact that twice as many courts have supported the law as have struck it down:

As Benen explains, “The news-consuming public doesn’t necessarily follow the details of these legal developments, and Americans find important what the media tells them is important. With that in mind, it seems very likely the public has been left with the impression that the health care law is legally dubious and struggling badly in the courts because that’s what news organizations have told them to believe — rulings the right likes get trumpeted; rulings the left likes get downplayed.”

The Affordable Care Act’s supporters are jubilant after yesterday’s decision rejecting a challenge to the law, and rightfully so. Former Scalia clerk Judge Jeffery Sutton’s total rejection of the plaintiffs’ legal theory is as good a sign as can be imagined that the case against the ACA will only convince a handful of outlier judges.

One of those judges was the dissenting member of the panel, District Judge James Graham, and Graham proved himself to be quite the outlier. At the conclusion of his opinion, Graham openly admitted that he was picking and choosing which Supreme Court cases he wanted to follow:

In Lopez the Supreme Court recognized that the direction of its existing Commerce Clause jurisprudence threatened the principle of a federal government of defined and limited powers, and it began the process of developing a new jurisprudence more compatible with the Constitution. That process was interrupted by Raich, where a majority of the Court was unwilling to expressly overrule a landmark Commere [sic] Clause case in Wickard, which had been the law of the land for over sixty years.

Notwithstanding Raich, I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so.

Lopez and Raich are two matching bookends surrounding Congress’ ability to regulate interstate commerce. Lopez struck down a federal law banning the act of bringing a firearm into a school zone on the grounds that the law had no connection to either economic matters or to activity that crosses state lines. Raich upheld part of a comprehensive economic regulation of illegal drugs. Taken together, the two cases stand for the proposition that nationwide economic regulation fits comfortably within Congress’ authority, while wholly local and non-economic regulations are far more constitutionally suspect.

Judge Graham apparently feels like Lopez set the nation on a positive path towards deregulation, and Raich wrongly “interrupted” our trip down that path, but this is an entirely inappropriate statement for a lower court judge to make in a legal opinion. Raich is binding precedent no less than Lopez, and judges are simply not allowed to pick and choose which laws they want to follow.

Lest there is any doubt that this is what Judge Graham is up to, the remainder of his opinion leaves no question that he has no intention of following Raich. Graham cites to Justice O’Connor’s dissent in Raich four different times — even though a dissenting opinion is, by definition, a view that departs from the controlling law that judges are required to follow. At one point, he even rejects one of DOJ’s arguments because it is inconsistent with an opinion Justice Thomas wrote that was joined by no other justice:

The government fails to show why a view of cost-shifting caused by risky conduct should fare any better. The problem with the government’s line of reasoning here is that it has no logical end point, and it illustrates precisely Justice Thomas’s concerns with the substantial effects test. See Morrison, 529 U.S. at 627 (Thomas, J., concurring) (calling the test “rootless and malleable”).

Judges are simply not allowed to ignore the views of eight Supreme Court justices because they’d rather follow the outlier view of just one. And the Thomas opinion Graham relies upon here is a particularly strange one to cite favorably. The “substantial effects test” is the constitutional doctrine which, among other things, allows Congress to prevent a barbecue restaurant in Alabama from only serving white patrons. Taken to it’s logical end, Thomas’ assault on this substantial effects test endangers the nationwide ban on whites-only lunch counters.

Simply put, Judge Graham’s job is to follow the law whether he likes it or not. He failed miserably at that basic task yesterday.

Controversy has erupted throughout the state as Alabama enacted the most draconian anti-immigration legislation in the nation. Freshman Rep. Mo Brooks (R-AL) has poured gasoline on the fire by making clear that he has no compassion for any undocumented person he encounters.

At a town hall recently, Brooks told constituents that he would do anything to an “illegal immigrant” short of literally shooting them to get them out of the country. Speaking with WHNT News, a local television station, Brooks repeated his threat enthusiastically:

“I wanted to ensure people that I have an intensity on this subject that we have to address the illegal alien issue,” said Congressman Mo Brooks. [...] “They have no right to be here. They are clogging up our emergency rooms, and making our education system more expensive. If you go to the Madison County Jail, there are far too many illegal aliens there because they have victimized Americans,” added Brooks.

Brooks’ intensity is clear. He did not flinch when asked to repeat what he said during a recent town hall meeting. “As your congressman on the house floor, I will do anything short of shooting them. Anything that is lawful, it needs to be done because illegal aliens need to quit taking jobs from American citizens,” added Brooks.

What is Brooks referring to when he says he will do anything short of shooting people? Does he mean he will cheat them, or defraud them, or exploit them in some way, as long as he’s not breaking the law but making their lives miserable? He already has no problem scapegoating tens of thousands of people just to score cheap political points.

Brooks may think that making threats against immigrant communities could help him politically, but he disgraces his office with such rhetoric. Undocumented immigrants have faced attacks, police brutality, and other forms of violence because of exactly the same type of dehumanization and hatred espoused by lawmakers like Brooks.

The most important part of today’s Sixth Circuit decision upholding the Affordable Care Act isn’t what the court said, although the court’s rejection of this utterly meritless challenge is quite significant. The most important part of today’s decision is who made it.

Judge Jeffrey Sutton is a George W. Bush appointee and a former law clerk to conservative Justice Antonin Scalia. He served as an officer in the conservative Federalist Society’s Federalism and Separation of Powers practice group, and was one of the nation’s leading crusaders for expanding the role of the states at the federal government’s expense. Prior to becoming a judge, Sutton 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 — even successfully arguing major states’ rights cases in the Supreme Court. So he is exactly the kind of person who would be extremely sympathetic to the conservative claim that the Affordable Care Act exceeds Congress’ lawful authority.

And yet, Sutton’s opinion today said something else entirely:

On the merits, this case presents two distinct questions: Does the individual mandate survive the substantial-effects test? And, if so, is there something about the novelty of this law—compelling the purchase of health insurance—that warrants striking it down nonetheless?

The initial question is the easier of the two, as the breadth of the substantial effects doctrine and the nature of modern health care favor the validity of this law. No matter how you slice the relevant market—as obtaining health care, as paying for health care, as insuring for health care—all of these activities affect interstate commerce, in a substantial way. [...]

Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No—for several reasons. First, the relevant text of the Constitution does not contain such a limitation. To the extent “regulate,” “commerce,” “necessary” and “proper” might be words of confinement, the Court has not treated them that way, as long as the objects of federal legislation are economic and substantially affect commerce. [...] Second, the promise offered by the action/inaction dichotomy—of establishing a principled and categorical limit on the commerce power—seems unlikely to deliver in practice. Level of generality is destiny in interpretive disputes, and it remains unclear at what level plaintiffs mean to pitch their action/inaction line of constitutional authority or indeed whether a workable level exists.

To translate a bit, Sutton concluded that the heart of the assault on the Affordable Care Act — the claim that a law encouraging people to buy insurance is unconstitutional because Congress cannot compel people to take this unwanted action — has no basis in the “text of the Constitution,” and it rests on a legal distinction that is utterly incoherent. And this comes from one of the most conservative members of the federal bench.

To be fair, Sutton also rested his decision on something known as the facial/as-applied distinction. The Supreme Court allows two kinds of challenges to a law: “facial” challenges, that claim the law must be effectively striken from the books, and “as applied” challenges, which claim that the law cannot be applied to a particular person or entity. In order to bring a facial challenge, a party must show that “no set of circumstances exists under which the Act would be valid,” and Sutton floated the possibility that someone who has achieved the miraculous task of avoiding the national health care market altogether may be able to exempt themselves from the law through an as-applied challenge brought at a future date. But Sutton’s harsh words for the basic legal theory underlying the plaintiffs’ case is a body blow to these lawsuits.

The case against the Affordable Care Act is so weak that one of the court of appeals’ most conservative judges — a judge who devoted much of his life to shrinking federal power — just rejected it. Now would be a good time for the nation to collectively stop pretending that these lawsuits have any merit whatsoever.

The debt ceiling is an unspeakably stupid idea. It writes a time bomb into federal law that will blow up the entire nation’s economy if it ever detonates, and then allows shakedown artists within the government to threaten to set off this bomb unless their political opponents agree to crippling cuts to programs like Medicare.

With disaster looming and no resolution in sight, several senators are studying the question of whether the debt ceiling may also be unconstitutional:

“The validity of the public debt of the United States, authorized by law… shall not be questioned,” reads the 14th Amendment.

“This is an issue that’s been raised in some private debate between senators as to whether in fact we can default, or whether that provision of the Constitution can be held up as preventing default,” Sen. Chris Coons (D-Del.), an attorney, told The Huffington Post Tuesday. “I don’t think, as of a couple weeks ago, when this was first raised, it was seen as a pressing option. But I’ll tell you that it’s going to get a pretty strong second look as a way of saying, ‘Is there some way to save us from ourselves?’”

By declaring the debt ceiling unconstitutional, the White House could continue to meet its financial obligations, leaving Tea Party-backed Republicans in the difficult position of arguing against the plain wording of the Constitution.

The 14th Amendment’s Public Debt Clause has never been tested in court, so it is anyone’s guess how it would apply if President Obama decided to save the country from economic ruin by continuing to spend the money Congress lawfully appropriated after we hit the debt ceiling. But it is not even clear that courts would take the case if someone sued to force the United States to default on its debts.

For one thing, no one is allowed to bring a lawsuit unless they can show that they have been personally injured by an allegedly unlawful action — a requirement known as “standing.” It is not clear who would have standing to claim that they were injured by the continued viability of the American economy, and the best candidate may be the most unsympathetic plaintiff imaginable: “those who purchased credit default swaps which would pay off in the event of government default.”

And if such a vampiric investor were to appear and successfully claim standing to sue, it is also not entirely clear that the courts wouldn’t deem this question to be beyond their reach. The Supreme Court has long recognized that certain matters — foreign relations or questions about when military hostilities begin or end, for example — are “political questions” that should be resolved by the elected branches and not by judges. In its seminal opinion laying out when courts should stay their hand, the justices also suggested that a political question may arise in cases that “risk…grave disturbance at home.”

Surely, a lawsuit claiming that the entire United States economy must be hobbled by a crippling default meets the definition of a “grave disturbance at home.”

Easily the most disturbing trend in constitutional law is the reemergence of tentherism, a states’ rights doctrine more radical than anything America has seen since George Wallace stood in a schoolhouse door. In its most radical form, tentherism would declare everything from Social Security, to Medicare, to child labor laws, to the ban on whites-only lunch counters unconstitutional, and tenthers have so successfully infiltrated the Republican Party that the House GOP’s so-called Pledge to America promised to honor the tenthers’ strange understanding of the Constitution.

Tentherism could receive its first big test in front of the Supreme Court next year, when the justices will be asked to decide whether to overrule nearly 200 years of precedent in order to declare the Affordable Care Act unconstitutional. In the mean time, however, there is little reason to believe that even many of the Courts most conservative members are eager to rewrite the balance between the federal and state governments.

For one thing, the Roberts Court’s conservative wing shows little interest in protecting the sovereign interests of the states. In one of its most important decisions this term, the five conservatives declared that federal law sweeps away state laws protecting many consumers who take potentially dangerous generic drugs through a doctrine known as “preemption.” Moreover, four of these conservatives would have erased a longstanding doctrine saying that most state laws come to the Court with a presumption against preemption. This kind of decision would certainly please corporate interest groups eager to see state consumer protection laws preempted, but it is the opposite of a decision respecting states rights.

In and of itself, this love of preemption isn’t terribly significant. Tentherism is almost certainly motivated by a desire to handicap government generally than it is by a real philosophical bent towards states rights, but the Roberts Court also handed down what is probably the most expansive interpretation of congressional power in American history. In last year’s United States v. Comstock, the Court upheld a law — with Roberts in the majority and Kennedy and Alito writing concurring opinions — allowing the federal government to detain “sexually dangerous” individuals long after they had completed a criminal sentence. Such a law has no connection to the national economy, a factor that casts the law’s constitutionality into grave doubt, yet the Court upheld this law. It is difficult to see how the justices could strike down the ACA after deciding the way they did in Comstock.

The ACA’s opponents tout a minor opinion called Bond v. United States as evidence the justices hate the ACA after all, but their argument claims far too much. Bond contains a great deal of flowery language explaining why individuals benefit from the 10th Amendment, but it says nothing whatsoever about just what the 10th Amendment actually does. More importantly, Bond was a unanimous opinion — so the only way to read the case as conservatives suggest would be to conclude that Justices Ginsburg, Breyer, Sotomayor, and Kagan are itching to kill two centuries of law to strike down Obamacare.

In other words, while radical states’ rights conservatism has become the defining feature of constitutional debates in Congress and on the cable news shows, this trend appears to have passed the Supreme Court by for now (at least outside of Justice Thomas’ chambers, that is). This fact shouldn’t prove surprising — all of the Court’s conservatives were appointed years before tentherism became the new black at Republican cocktail parties — but it reflects a very real divide between the GOP’s very public radicalism and the minds of the nine individuals empowered to interpret the Constitution. Hopefully, they will remember that neither the law nor many of their own previously expressed views justify rewriting the Constitution if the Affordable Care Act reaches their bench next year.