Jeffrey Toobin is a commenter sometimes billed as a “constitutional scholar.” He is instead a polemicist, and a rather sloppy one at that. In his latest contribution to the confusion called Obamacare (Heavy Burden) Toobin did what “progressives” do. He answered questions unasked, misstated his “enemy’s” arguments, and sneered at those who aren’t “progressive,” those who yearn daily for 70 years ago. (Please tell these folks: Franklin D. Roosevelt is still dead.)
He first smeared Donald Verrilli, the hapless Solicitor General who had the dubious honor of defending Obamacare, dismissing his performance as an “off day.” It can’t occur to Toobin that Verrilli had as good a day as could be had with a bad law and a bad argument for it and one can’t truly turn sow’s ears into silk purses.
Toobin writes:
“Consider, then, this question, posed to Verrilli by Justice Anthony M. Kennedy: “Assume for the moment that this”—the mandate—“is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?” Every premise of that question was a misperception. The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid.
In fact, no premise of the question is a misperception. The issue before the court is not whether the federal government is involved in “The health-care market.” It clearly is. And, it was long before “fifty years . . . of Medicare and Medicaid.” But, participation in Medicare and Medicaid is voluntary. That’s precisely why this matter is before the court, to answer the question not of the government’s voluntary participation, but the citizen’s involuntary participation.
Toobin cites an even sillier line in support of the all-enveloping Commerce Clause:
For example, the Justices had no trouble upholding the Civil Rights Act of 1964, which used the clause to mandate the integration of hotels and restaurants. “It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination,” Justice Tom C. Clark wrote, for his unanimous brethren. “But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed—what means are to be employed—is within the sound and exclusive discretion of the Congress.” In other words, Justice Kennedy had it backward. The “heavy burden” is not on the defenders of the law but on its challengers. Acts of Congress, like the health-care law, are presumed to be constitutional, and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government.
This was simply a minor argument explaining the role the Commerce Clause played in assuring the dignity of human rights for all irrespective of the immutable characteristic of race. The Civil Rights Act was not passed because human beings couldn’t buy clams at Howard Johnson’s or encounter bed bugs at the No-Tel Motel. It was passed to enforce the 13th, 14th and 15th Amendments to the Constitution over the fierce opposition of Democrat politicians for 100 years! The Civil Rights Act didn’t “mandate the integration of hotels and restaurants.” It mandated voluntary access, not to be denied by race, color, creed, or even bizarre “progressive” reasoning.
Sane and Insane 