Politics

Barrasso Pledges To Make The Constitutionality Of Health Care A Major Issue In Kagan’s Confirmation Hearings

As soon as President Obama signed the Affordable Care Act into law, right-wing governors, attorneys general, and state lawmakers immediately began pushing measures to nullify the new health care benefits. However, even many conservative legal scholars acknowledged that their argument for the unconstitutionality of health reform was “weak” and nothing more than a political stunt. Nullification efforts around the country have largely lost momentum and failed to pass.

Nevertheless, this morning on Fox News, Sen. John Barrasso (R-WY) said that he wants to make this fringe view of health care reform a centerpiece of Solicitor General Elena Kagan’s Supreme Court confirmation hearing:

BARRASSO: The other issue is the health care bill that’s come out — there’s a mandate everybody in the country has to buy a product. That’s a 10th amendment issue. Twenty states right now, Martha, are suing the federal government, and she is going to have to make a decision if she’s on the court about how that goes forward with these 20 states suing. So where do states’ rights come in, where is the role of the federal government, what can they mandate to the American people, and I’m going to want to hear answers on that.

And this is very different than a year ago with Sotomayor. This was not an issue because we didn’t have this unpopular health care bill that’s been forced down the throats of the American people.

Barrasso also seemed to imply that he’ll make the second amendment into a litmus test for Kagan, saying, “The attorney general does not agree with my interpretation of the second amendment; I want to make sure this nominee does. So that will be another issue.” Watch it:

When Justice John Paul Stevens announced his retirement, Sen. Jeff Sessions (R-AL) also put out a statement indicating that he was going to make health care an issue, saying that “the court’s interpretation of the Constitution in the coming years could significantly affect the implementation of domestic polices approved by the president and Congress over the past year.”

The right-wing belief that health care reform is unconstitutional has no legal foundation. As University of California, Irvine law professor Erwin Chemerinsky has stated, “Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America’s health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.”

Transcript:

BARRASSO: The other issue is the health care bill that’s come out — there’s a mandate everybody in the country has to buy a product. That’s a 10th amendment issue. Twenty states right now, Martha, are suing the federal government, and she is going to have to make a decision if she’s on the court about how that goes forward with these 20 states suing. So where do states’ rights come in, where is the role of the federal government, what can they mandate to the American people, and I’m going to want to hear answers on that.

And this is very different than a year ago with Sotomayor. This was not an issue because we didn’t have this unpopular health care bill that’s been forced down the throats of the American people.

MACCALLUM: You bring up a very important point because a lot of people will be watching that as a case. How likely do you think it is we will see that case argued before the Supreme Court in the near term, that the constitutionality of health care reform will go before the court?

BARRASSO: I think that it will. Twenty states have already filed that suit. Everywhere I travel around my home state of Wyoming — but also around the country — I continue to hear how can Washington make us buy something we don’t want to buy, a product. They can’t tell us to buy breakfast cereal or something else — how can they do that? This is likely to get to the Supreme Court, and I think it’s reasonable to ask a nominee: Tell us about your view of the 10th amendment, tell us about your view of our second amendment rights, the right to own and bear arms. The attorney general does not agree with my interpretation of the second amendment; I want to make sure this nominee does. So that will be another issue. And you know, bill of rights has to do with what the American government can’t do to the American people. It has to do with our individual rights. I’ll be interested to see what her questions are.

She will clearly get a fair, open hearing. We need enough time so everybody gets a chance before the vote is cast and the question always comes up: Will there will be a filibuster of a nominee? I would hope not. Clearly President Obama when he was in the Senate, and Joe Biden when he was in the Senate, supported a filibuster of Judge Alito, so I’m hoping it doesn’t come to that but that’s an option that the Democrats have now taken.

MACCALLUM: You bring up a very interesting issue, the constitutionality of health care reform. I think she’s going to get a lot of questions on that issue in the ways that you mentioned.

UPDATE

Over on the Wonk Room, Igor Volsky writes that “if Kagan were to support the frivolous health care lawsuits, she wouldn’t just be breaking years of Supreme Court precedent. She would also be committing the conservative’s cardinal sin of disagreeing with Scalia.”

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