Late last year, the Montana Supreme Court refused to follow the Supreme Court’s erroneous Citizens United decision and upheld that state’s longstanding ban on corporate money in politics. Although we criticized that decision shortly thereafter — a lower court must follow the Supreme Court’s decisions even when they are obviously and tragically erroneous — the Montana justices’ overreaching does not excuse the Supreme Court’s far greater sin in handing down Citizens United in the first place. As we said before, “[t]he U.S. Supremes will doubtless decide they need to review the Montana decision. They should do so, and they should reverse their error in Citizens United as soon as possible.”

The day has now come for the Supreme Court to fix its most egregious error since Bush v. Gore:

Challengers to Montana’s ban on corporate independent expenditures—recently upheld by the Montana Supreme Court—have asked Justice Anthony Kennedy to put a hold on the state court’s ruling and have urged the full Court to reverse it. . . .

“The Montana Supreme Court held the Ban constitutional despite the holding in Citizens United v. FEC, 130 S.Ct. 876 (2010), that `[n]o sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.’ Immediate relief is needed to prevent irreparable harm to the Corporations’ First Amendment free-speech right. Montana’s primary elections are on June 5, making it vital that planning begin now for independent expenditures before the election.”

Citizens United was wrong the day it was decided, and it has only succeeded in refuting itself during the two years it’s been in effect. One of the core conclusions in Citizens United was the majority’s statement that so-called “independent expenditures” — as opposed to contributions directly to campaigns — “do not give rise to corruption or the appearance of corruption.”

It’s unclear how anyone could have ever believed this was true, but it’s impossible to believe this now. Casino billionaire Sheldon Adelson’s family, for example, gave $11 million to a Super PAC intended to elect Newt Gingrich, and Gingrich met personally with Adelson after this money started flowing. Mitt Rommey has also met with Adelson, and, while it will never be known what the two men said to each other, Romney managed to extract from that meeting an assurance that Adelson “will be behind him 100 percent should he become the nominee.”

Maybe there really were five justices who didn’t understand that this was bound to happen when Citizens United was handed down in 2010, but, in the wake of these backroom meetings between top funders and their candidates, the justices cannot possibly deny the fact that Citizens United leads to corruption or at least the appearance of it. It’s time for the justices to simply admit they were wrong the first time around and overrule Citizens United.

Yesterday morning, presidential candidate Rick Santorum made the unambiguously false claim that the Obama Administration wants the government to force Catholics to ordain female priests — a brief the administration filed in the Supreme Court actually says exactly the opposite. Perhaps inspired by his surprising triple loss in three GOP primary and caucus states earlier this week, Santorum’s opponent Mitt Romney repeated Santorum’s fabricated claim at a campaign event later in the day:

This president is attacking religion, and is putting in place a secular agenda that our forefounders would not recognize. He, uh, he took a position which I thought was interesting which is he said, instead of a church being able to say who their ministers are, the government has to approve who you say your ministers are. He made that decision, and by the way, the church involved went to the Supreme Court, ultimately, to see if they could reverse that decision by the Obama Administration . . . did you know that the Supreme Court voted 9-0 against the president to retain religious liberty.

Imitation is the sincerest form of flattery, but Romney really shouldn’t ape Santorum’s inability to get his facts straight. For starters, the Obama Administration did not even come close to saying that the government has to approve church ministers. Rather, as conservative Chief Justice John Roberts explained in the unanimous opinion Romney refers to, the Obama Administration’s position is that “it would violate the First Amendment for courts to apply [anti-discrimination] laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary.”

Nor is it true that this Supreme Court decision ended some nefarious Obama plot to impose unwanted clergy upon churches. The case that Romney refers to, Hosanna-Tabor v. EEOC, dealt with a school teacher who spent most of her time teaching secular subjects, but who also spent some time providing religious education at a religious school. The school claimed this teacher was actually a minister — and thus unprotected from the federal law that makes it illegal to fire her because she has a disability — while the teacher (and the Obama Administration) believed that she should not be treated the same way as Catholic priests or Orthodox rabbis because the overwhelming majority of her job duties were secular. Ultimately, a federal appeals court agreed with the teacher, and the Supreme Court agreed with the school.

No one in this saga ever claimed that the government can pick and choose a church’s ministers. Rather, the most important issue in the case was a very narrow factual dispute over what a single woman’s job was. But, of course, for Romney to realize this, he would actually have to spend some time learning basic facts before opening his mouth. And he has much more important things to do, like finding ways to copy Santorum’s successful strategy of telling falsehoods to GOP primary voters.

For weeks, Republicans have pretended that President Obama is waging some kind of war on religion because his administration recently approved regulations requiring insurers to cover contraceptive care — spurred on in large part because the conservative U.S. Conference of Catholic Bishops opposes the contraceptive care regulations. Their claim is utterly absurd. The new rules exempt churches from the requirement to offer insurance that covers contraception. And they align closely with the beliefs of actual Catholics, 58 percent of whom believe that employers should be required to provide insurance that cover contraception.

On Fox News this morning, GOP presidential candidate Rick Santorum doubled down on this bizarre claim that Obama is going after religion — falsely claiming that the president wants to tell Catholics who they can hire as priests:

What they’ve done here is a direct assault on the First Amendment, not only a direct assault on the freedom of religion, by forcing people specifically to do things that are against their religious teachings. . . . This is a president who, just recently, in this Hosanna-Tabor case was basically making the argument that Catholics had to, you know, maybe even had to go so far as to hire women priests to comply with employment discrimination issues. This is a very hostile president to people of faith. He’s a hostile president, not just to people of faith, but to all freedoms.

Watch it:

It’s not clear exactly which First Amendment Santorum is talking about here, because he clearly isn’t talking about the First Amendment to the United States Constitution. As conservative (and Catholic) Justice Antonin Scalia explained in a Supreme Court opinion more than twenty years ago, a law does not suddenly become unconstitutional because someone raises a religious objective to it — if this actually were true, anyone at all could immunize themselves from paying taxes or from any other law simply by claiming they have a religious objection to being a law-abiding citizen.

Moreover, Santorum’s claim that the Obama Administration wants to force Catholics to hire female priests (something which, incidentally, 53 percent of Catholics support) is the opposite of true. The Obama Administration’s brief in the case Santorum cites expressly stated that it would be unconstitutional to tell the Catholic church to do so, a fact that Santorum would have been aware of if he had actually bothered to read the Supreme Court’s opinion in Hosanna-Tabor. That opinion explains that the administration “grant[s] . . . that it would violate the First Amendment for courts to apply [anti-discrimination] laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary.”

Ultimately, however, Santorum’s objection to the president doesn’t come down to some paranoid debate over whether President Obama is hostile to “all freedoms,” but a very important debate over what the word freedom actually means. President Obama does believe that women’s access to contraceptive care is fundamentally important to ensuring their freedom to participate in society and the in the workforce. Santorum, on the other hand, harshly criticized the Supreme Court’s longstanding decision saying that woman have a constitutional right to use birth control at all. Given that Santorum’s long history of radicalism on women’s health and the Constitution, it’s no surprise that he couldn’t be bothered to check basic facts before mouthing off about what the Obama Administration does and does not believe.

The most interesting thing about today’s decision striking down California’s unconstitutional Proposition 8 isn’t the fact that supporters of marriage equality won — that result was easy to predict from the judges’ comments during oral arguments more than a year ago. Rather, the most interesting thing about today’s decision is how narrow it is. The court crafted a rationale that applies to Prop 8 and probably only applies to Prop 8. While the opinion is firmly rooted in precedent, it expressly declines to consider the sweeping rationale employed by District Judge Vaughn Walker that is also grounded in precedent and the Constitution.

In 1996, the Supreme Court struck down an anti-gay Colorado constitutional amendment that stripped many gay men and lesbians of their existing legal rights in a case called Romer v. Evans. Today’s opinion relies heavily on Romer, honing in on the fact that Prop 8 stripped gay couples of a right they already enjoyed prior to its enactment — the right to marry a person of their choosing. As the Ninth Circuit explains:

The is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law. In 1992, Colorado adopted Amendment 2 to its state constitution, which prohibited the state and its political subdivisions from providing any protection against discrimination on the basis of sexual orientation. . . . The Supreme Court held that Amendment 2 violated the Equal Protection Clause because “[i]t is not within our constitutional tradition to enact laws of this sort” — laws that “single out a certain class of citizens for disfavored legal status,” which “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” . . .

Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Proposition 8 “single[s] out a certain class of citizens for disfavored legal status . . . .” Like Amendment 2, Proposition 8 has the “peculiar property” of withdraw[ing] from homosexuals, but no others,” and existing legal right — here, access to the official designation of “marriage” — that had been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place.

In other words, the court finds a constitutional violation that is unique to the state of California — only California once extended equal marriage rights to gay couples, then yanked them away through a subsequent amendment.

There are two upshots to this California-specific reasoning. The first is that it reduces the likelihood that the Supreme Court will hear the case, although Supreme Court review remains very highly likely. Had the Ninth Circuit applied Judge Walker’s much broader reasoning, the implication would be that every single state has a constitutional obligation to marry gay couples. The justices typically hear cases that present an exceptionally important legal question of national importance, and such a broad decision would certainly qualify. Today’s decision, by contrast, is narrow enough that there is an off chance the justices could pass on it.

The other upshot is that today’s opinion gives an out to the justices in case a majority of them find Prop 8 constitutionally offensive but aren’t yet ready to kick off a political firestorm by ordering Alabama to marry same-sex couples. The opinion is, at its heart, a decision that discretion is the better part of valor, and that the Constitution is best served by banking an easier victory today and putting off the big fight until tomorrow. Gay couples in Alabama — and indeed the Constitution itself — may suffer longer for that decision, but today’s decision also maximizes the likelihood that Proposition 8 will stay dead.

Last night, the Obama campaign announced that it would not “unilaterally disarm” in the face of the Supreme Court’s Citizens United decision unleashing a flood of unlimited corporate campaign spending and paving the way for unaccountable Super PACs. In an email to supporters, the campaign emphasized that President Obama opposes Citizens United and supports strong action “by constitutional amendment, if necessary” to roll back its license for wealth individuals and corporations to buy elections.

In a perfect world, the president’s campaign would never make this announcement, and Obama’s supporters should not be naïve about what this means. When casino magnate Sheldon Adelson and his wife spend $10 million in an attempt to buy Newt Gingrich the presidency, it is impossible to imagine that Adelson isn’t also buying himself special access to the president in a Gingrich Administration. Likewise, when big oil companies pump $1.2 million into Mitt Romney’s Super PAC, it is impossible to imagine that they don’t expect some quid for their pro quo. President Obama is somewhat immunized from this kind of influence buying because, as a second term president, he won’t need to worry about needing his big donors again to get reelected. But, at the very least, every policy a second term Obama supports that benefits a big dollar supporter will now open him up to allegations of corruption.

Ultimately, however, President Obama made the only choice he could. In 2008, all presidential candidates spent a record setting $1.7 billion during their campaigns. Yet this amounts to less than one fifth of what Exxon earns in three months, and it is less than 8 percent of Adelson’s massive fortune. If just one major corporation or modern day viscount decides to go all in against Obama, they could effectively drown out the president’s ability to complete in this election. The American people deserve a choice in 2012, not an auction attended only by big money Republicans.

It’s important that the Obama campaign does not decide that last night’s decision requires them to stop campaigning hard against Citizens United and the flood of money it has injected into our system — especially because his opponent will certainly advocate for a very different vision of how democracy should work. This must include throwing his full weight behind state ballot initiatives and legislation that will mitigate the harmful effects of the Supreme Court’s decision until the day when that decision can be overruled.
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As Judge Laurence Silberman, a leading conservative who once received the Presidential Medal of Freedom from George W. Bush, wrote last November, the case against the Affordable Care Act has no basis “in either the text of the Constitution or Supreme Court precedent.” Surprisingly, conservative superlawyer Paul Clement’s brief on behalf of the several states arguing that the Affordable Care Act is unconstitutional only really addresses one of these problems.

The most striking thing about the brief is how light it is on citations to cases. Normally, a brief filed in the Supreme Court will be absolutely riddled with case citations in an attempt to demonstrate that the result supported by the brief flows naturally from existing precedent. Clement’s brief, by contrast appears barren by normal standards. His entire summary of his argument includes only three citations to cases, and only one of those cases was decided after 1820.

Instead, much of Clement’s brief reads as if it were an exercise in how the Constitution could have been interpreted if it had never once been examined in the first 225 years of the Republic. He opens the brief with a lengthy argument that just one word in the Constitution’s text forbids Congress from passing a law requiring most Americans to carry health insurance (this passage omits citations, although there are no cites in the bolded part of the quote):

The Constitution grants Congress the power “[t]o regulate Commerce … among the several States.” While the term “commerce” has not always been “marked … by a coherent or consistent course” of interpretation, the term “regulate” has: For nearly two centuries, the Court has defined “the power to regulate” as the power “to prescribe the rule by which commerce is to be governed.” . . . It is axiomatic that the power to “regulate commerce” presupposes the existence of commerce to be regulated. It is not the power to compel individuals to engage in commerce so that Congress has something to regulate The difference between the two is self-evident. The power to regulate is far more modest and allows Congress to reach individuals only if they decide to engage in conduct that constitutes (or substantially affects) interstate commerce..

Unfortunately, for Clement, however, the Constitution has been examined many times by the Supreme and other courts, and it is clearly and unambiguously false that there is two hundred years of precedent defining the word “regulate” the way Clement describes it. To the contrary, Chief Justice John Marshall — a man who, unlike Clement, was actually involved in ratifying the Constitution — disagreed strenuously with Clement’s reading of the document.

In Marshall’s words, there is “no sort of trade” that the words “regulate Commerce” do not apply to. Moreover, Marshall wrote in the very first Supreme Court case interpreting Congress’ power over interstate commerce, the power to “regulate” something “implies in its nature full power over the thing to be regulated.”

Given John Marshall’s reading of the Constitution, it’s pretty obvious why Clement’s argument falls apart. If the United States can regulate any form of trade, that includes power over trade in health care services. Moreover, if this regulatory power includes “full power over the thing to be regulated” than Congress may do so however it chooses. That includes the power to require most Americans to pay for their health care through insurance rather than waiting until they become sick and then hoping they have enough money squirrelled away to ward off bankruptcy.

No doubt anticipating this flaw in his argument, Clement responds by splitting a very fine hair:

The federal government attempts to minimize the lack of constitutional grounding for a mandate to purchase health care insurance by recharacterizing it as something it is not: a “regulat[ion of] … the way in which individuals finance their participation in the health care market.” That is simply not true. The mandate does not regulate or even speak to how “individuals finance their participation in the health care market.” Nowhere in the mandate—or anywhere else in entire 2,700 pages of the ACA—did Congress require individuals to actually pay for health care services with the insurance that the mandate requires them to obtain. The mandate neither addresses the “health care services” market nor regulates the method of financing purchases in that market. All the mandate does is force individuals to purchase insurance, which they are free to use or not use in the event that they actually need health care services.

In other words, Clement argues, the ACA doesn’t actually regulate how people purchase their health care because it merely ensures that they have health insurance. It doesn’t actually require people to use it. Somewhere out there, Clement must assume, is a person who would rather buy insurance and pay for their own health care out of pocket rather than simply allowing the insurance company to cover their costs.

One doesn’t exactly have to have a Nobel Prize in Economics to understand why this argument is ridiculous.

In an excellent piece highlighting the impact a second Obama term could have on the federal judiciary, the AP’s Mark Sherman provides an important reminder of what is at stake in this election:

The next president, whether it’s Obama or a Republican, also has a reasonable shot at transforming the majority on the Supreme Court, because three justices representing the closely divided court’s liberal and conservative wings, as well as its center, will turn 80 before the next presidential term ends.

The three justices are Ruth Bader Ginsburg, the leader of the court’s liberal wing, conservative Antonin Scalia, and Anthony Kennedy, who leans conservative but on some issues provides a decisive vote for the liberals.

Kennedy, of course, does a whole lot more than simply “lean” conservative. Although his moderate views on issues such as gay rights and detainee treatment are welcome, Kennedy consistently places the interests of wealth individuals and corporations ahead of the more than 99 percent of Americans who cannot afford to buy and sell elections. Kennedy authored the egregious Citizens United decision that unleashed unlimited corporate efforts to buy elections and which led to the creation of Super PACs that empower billionaires to buy off candidates. He’s also consistently voted to allow corporations to force consumers and workers into a privatized, corporate-owned court system that overwhelmingly favors corporations.

If Obama is reelected, however, he could have the opportunity to replace Scalia or Kennedy and transform a Court that has bent over backwards for the one percent into a Court interested in enforcing laws enacted to benefit all Americans. Perhaps this is why super-wealthy donors taking advantage of Kennedy’s error in Citizens United are overwhelming using their vast fortunes to try to defeat Obama.

One of the oddest arguments made by the plaintiffs now challenging the Affordable Care Act before the Supreme Court is a claim that, if just one small part of the law is declared unconstitutional, the whole law must fall with it. The overwhelming majority of judges who have heard ACA cases rejected the ridiculous claim that any part of the law is unconstitutional. And, of the handful of judges to strike part of the law down, only one — the guy who included an explicit shout-out to the Tea Party in his opinion — accepted the legally indefensible position that the whole law must fall.

In their attempt to see the entire Affordable Care Act fall, however, several of the plaintiffs challenging the law committed what should be a fatal blunder — they effectively admit that their entire constitutional challenge to the law is garbage.

The primary attack on the ACA targets its provision requiring most Americans to either carry health insurance or pay slightly more income taxes — the so-called “individual mandate.” This insurance coverage provision exists because without it, the law’s other provisions ensuring that people with preexisting conditions can obtain insurance cannot be implemented. 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, massively driving up costs for the rest of the plan’s consumers.

This problem doesn’t just make the insurance coverage requirement good policy, it also makes it constitutional. The Constitution doesn’t just give Congress sweeping authority to regulate the national economy, it also authorizes it “[t]o make all laws which shall be necessary and proper for carrying into execution” regulations of interstate commerce. As conservative Justice Antonin Scalia explains, this means that, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”

So, with this background in mind, consider the following passage from the private plaintiffs’ brief arguing that the entire law must fall if the insurance coverage rule goes down:

The mandate was intended to be a direct subsidy to insurance companies, as compensation for requiring them (in the guaranteed-issue provision) to insure against “risks” that have already come to pass and forbidding them (in the community-rating provision) from using actuarially sound insurance premiums. The mandate thus works to counteract the powerful inflationary impacts of these other provisions, which would otherwise make premiums in the individual insurance market prohibitively expensive, thereby frustrating Congress’ goal of affordable health insurance. And Congress further viewed the mandate as necessary to prevent “adverse selection” to “game” the new insurance rules, which proponents warned would spark a “death spiral” in insurance.

The guaranteed-issue and community-rating requirements thus cannot operate without the mandate in the manner intended by Congress. Rather, “their associated force—not one or the other but both combined—was deemed by Congress to be necessary to achieve the end sought.” To strike the mandate alone would impermissibly eliminate a central quid pro quo of the Act. If the mandate falls, the guaranteed-issue and community-rating regulations must therefore fall with it, as the Government itself has conceded.

So the plaintiffs admit that, without the insurance coverage requirement, premiums will become “prohibitively expensive” and that the ACA’s provisions protecting people with preexisting conditions or who otherwise are highly likely to need health care (what are known as “guaranteed-issue” and “community-rating” laws in the jargon of health policy) “cannot operate without the mandate in the manner intended by Congress.” This is a flat out admission that the Scalia Rule applies in this case. Guaranteed issue and community rating are regulations of interstate commerce, and thus Congress has “every power needed” to make them effective — including the power to enact the insurance coverage requirement.

I discuss this rather breathtaking admission at greater length in an amicus brief I filed Friday on behalf of several health provider organizations, which also includes some more details about why the plaintiffs’ attempt to take out the entire ACA has no basis in law. Ultimately, however, there is no need whatsoever for the justices to consider how much of the law stands or falls without the coverage requirement. The private plaintiffs already gave away the farm when they admitted that their entire legal challenge rests on a crumbling foundation.