Justice Antonin Scalia will speak today to a group of Tea Party Members of Congress organized by ultra-conservative Rep. Michele Bachmann (R-MN), an arrangement that even President George W. Bush’s former ethics attorney finds questionable:
[T]he decision of U.S. Supreme Court Justice Antonin Scalia to speak at the first class on Monday has raised legal hackles about his participation in what turns out to be a closed-door event in conjunction with Bachmann’s Tea Party Caucus.
One of the most outspoken critics is University of Minnesota law professor Richard Painter, chief White House ethics lawyer under former President George W. Bush. Painter notes that Bachmann is among 63 House members who filed a brief in support of a lawsuit by more than two dozen states challenging President Obama’s health care overhaul. The case could easily end up before the Supreme Court.
Yet, if Bachmann is expecting Scalia to validate her comically wrong view that health reform is unconstitutional, she’s in for a rude awakening. Like most of the right-wing lawmakers challenging the Affordable Care Act (ACA), Bachmann’s brief focuses its ire on the provision requiring most Americans to either carry insurance or pay slightly more income taxes. But, in a case called Gonzales v. Raich, Justice Scalia practically drew a roadmap to a future opinion declaring this provision constitutional.
Scalia wrote in Gonzales that “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective,” and insurance coverage requirement easily fits this test. The ACA’s provision prohibiting insurers from denying coverage to patients with preexisting conditions 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.
Bachmann’s Tea Partying friends could also learn a lot about the Second Amendment from Justice Scalia. Although Scalia authored D.C. v. Heller, the first Supreme Court opinion ever to hold that individuals have a right to own firearms, Scalia also placed very real limits on that right. Among other things, Scalia said that it is perfectly constitutional to ban “weapons that are most useful in military service.”
Yet, during Justice Elena Kagan’s confirmation hearing, many of Bachmann’s right-wing allies in the Senate claimed that Kagan should be disqualified from the Supreme Court because she once worked on a presidential memorandum preventing foreign gun manufacturers from importing military-grade firearms such as Uzis into the United States. If Kagan’s belief that the Second Amendment allows an Uzi-ban disqualifies her from the Supreme Court, than Scalia is also disqualified.
Let’s be clear. Scalia is hardly a stalwart defender of the Constitution. Recently, Scalia has deservedly been under fire for his misguided claim that the Constitution does not protect against gender discrimination. He’s an outspoken defender of torture and once wrote that mere innocence is not a good enough reason to let an innocent man go free. Scalia voted with the majority in the egregious Citizens United decision that unleashed billions in corporate dollars upon American elections, and he once voted to give drug companies sweeping immunity from the law when their defective products poison a patient.
But it is a testament to how far off the deep end the Tea Party has fallen that they now accept as constitutionally orthodoxy views that make the Supreme Court’s most outspoken conservative cringe.