The Federal Courts Pander to the 1%

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          Last week's 2-1 decision by the D.C. Court of Appeals in Halberg v. Burwell,, No. 14-501 followed closely on the heels of the U.S. Supreme Court's decision in Burwell v. Hobby Lobby, 573 U. S. ____ (2014). In that earlier case, a 5-4 majority of the Supreme Court held that a contraceptive mandate set forth in the federal regulations that implement the Affordable Care Act, when applied to the Christian owners of closely-held for-profit corporations who claim to have sincere beliefs that life begins at conception, violated the Religious Freedom Restoration Act passed by Congress in 1993.


           In the Halberg, two judges with long-standing, publicly-identified relationships with the Federalist  Society and other rightwing groups opined that one hard-scribble, putative appellant,  David Klemencic, had legal standing to challenge a provision  of the Affordable Health Care Act that proposed to penalize individuals who refused to purchase health insurance on West Virginia's federally-operated Health Insurance Exchange. Klemencic, who claimed to oppose the Affordable Health Care Act, made approximately $20,000 a year and would have been able to obtain health insurance, according to the Appeals Court, at a subsidized "cost of less than $21 per year or pay a somewhat greater tax penalty." Sadly but not surprisingly, Klemencic's appeal was bankrolled by a smörgåsbord of rightwing think-tanks and political action groups.  

            In their decision, the two errant judges of D.C. Court of Appeals held that the plain language of the Health Care Exchange provisions that proposed to impose tax penalties under the individual mandate requirement applied only to state-operated exchanges, of which there are only sixteen, and could not be imposed upon the residents of the other 34 states whose governors and legislators refused to establish their own state-run exchanges.

             The two judges sought to minimize the enormous harm and mischief that their decision would do with a sanctimonious rationalization, "Thus, although our decision has major consequences, our role is quite limited: deciding whether the IRS Rule is a permissible reading of the ACA. Having concluded that it is not, we reverse the district court and remand with instructions to grant summary judgment to appellants and vacant the IRS Rule."

             The dissenting judge, Harry Edwards, challenged his colleagues' modest characterization of their role: He noted that the effect of their decision, if upheld, would be to deny coverage to millions of American families who reside in the 34 states that do not have their own state-operated health insurance exchanges. "This case is about Appellants not-so-veiled attempt to gut the Patient Protection and Affordable Health Care Act."

             No one who has studied the history of federal jurisprudence should be surprised that a federal court once again refused to vindicate the concept of equal rights and access for all citizens, or that unelected federal judges, who are accountable to no one but themselves, would be unable to hold in abeyance their ideological proclivities, or refuse to grant any deference to the Executive and Congress as elected officials.

             Article III, § 1 of the U.S. Constitution establishes a Supreme Court and vests in the Congress the authority power to establish "such inferior Courts as Congress may from  time to time ordain and establish."  Since its creation, the Supreme Court and the subordinate courts of the federal judiciary, with the rare exceptions of the courts presided over by John Marshall and Earl Warren, have done little to promote fundamental fairness or justice. Instead, the federal judiciary, by and large, has served throughout its history as an instrument determined to uphold 18th and 19th century notions of individualism, to protect the status quo and to promote the interests and rights of property owners and businesses over those ordinary citizens. 

             For those reasons, it was not surprising that in Dred Scott v. John F. A. Sanford , 60 U.S. 393(1856), Chief Justice Taney transformed the slave Dred Scott into a commodity - mere property - and repeated Thomas Jefferson's calumny that it was the British alone who were responsible for the introduction of slavery into the colonies and in  perpetuating that institution in this county.  

             Ironically, in the latter part of the nineteenth century, the Supreme Court chose to grant the equal protection of the laws long before the same civil rights were accorded to black Americans in the Southern States. In Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394(1886), the court, in some inscrutable way, divined that corporations were persons within the meaning of the Fourteenth Amendment. (Incredibly, that decision was introduced into the report of the decision by the case law reporter in the syllabus, and it appears nowhere in the text of the decision.) According to the observers, Justice Waite simply pronounced from the bench, sua sponte, before the beginning of argument that "This court does to wish to hear argument on the question whether the provision of the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the law, applies to these corporations. We are of the opinion that it does."

             That decision was especially perverse in that the Court was generally hostile to all claims for the enforcement of equal rights claims of the those recently freed slaves, as guaranteed by the Fourteenth Amendment, and ten years later would decide the infamous case of Plessy v. Ferguson, 163 U.S. 537 (1896). Once again the protection of property rights was held to be more vital than the protection of living human beings.

             At the beginning of twentieth century, the United States Supreme Court enthusiastically adopted Herbert Spencer's unequivocal defense of the rights of free contract in the infamous case of Lochner v. New York, 198 U.S. 45 (1905). Writing for the majority, Justice Peckham struck down a New York statute which prohibited employers from requiring employees to work in excess of a sixty hour work week. Disingenuously, the Court found that, "The employee may desire to earn the extra money which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it. The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer..." 

             Justice Holmes, in dissent, unsuccessfully sought to remind his colleagues that the law was supposed to be an even, impartial instrument, blind to prevailing ideology: "This case is decided upon an economic theory which a large part of the country does not entertain....The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."


            Later, the administration of Franklin Roosevelt found itself engaged in a tug-o-war with equally reactionary federal jurists. After three adverse decisions in Humphrey's Executor v. United States, 295 U.S. 602 (1935), Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935), and  Schechter Poultry Corp. v. United States,295 U.S. 495 (1935), in which the Supreme Court struck down New Deal legislation, Roosevelt filed legislation to increase the size of the court. In response to that threat, a majority of the jurists wisely chose to reverse course and opted not challenge subsequent legislation.  

              Since the 1970s especially, an increasingly reactionary federal judiciary has repeatedly announced its hostility toward government regulation, civil rights, and legislation in the public interest. The net effect of this jurisprudence has been to unravel the gains of the New Deal and the Great Society, to empower corporations and the disproportionately influential while ratifying the status quo.

             After having declared an almost theological commitment to the legal fiction of "original intent," a majority of the Supreme Court chose to breathe new life into the Tenth Amendment, the effect of which is to further drive American jurisprudence back into the early decades of the nineteenth century when even the idea of minimal government regulation, ostensibly in the public interest, was unimaginable. See, for example, Justice Rehnquist's decision in U. S. v. Lopez. 514 U.S. 549 (1995). In that decision, by a 5-4 struck vote, the U.S. Supreme Court struck down a San Antonio gun conviction which occurred within a 100 yards of a school on the grounds that the interstate commerce clause did not apply. See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), a case in which Justice Thomas and his equally determined colleagues within a "whisker" of returning American constitutional jurisprudence to the Articles of Confederation.

             In addition, since the beginning of the 1970s, a bare majority of these Supreme Court judges have not hesitated to impose their personal political preferences for free-market, anti-regulation policies through the judicial feat of federal preemption of state laws and regulations to the contrary. Most of the laws and regulations preempted were designed by state legislatures to protect the rights of workers and consumers. In Marquette National Bank of Minneapolis v. First of Omaha Service Corp.,439 U.S. 299 (1978), for example, the U.S. Supreme Court declared state usury laws to be unavailing against credit card companies engaged in interstate commerce. The effect of that decision, therefore, was to permit credit card companies to exact whatever interest rates they wanted, to the detriment of ordinary Americans.

             Equally unsettling, the U.S. Supreme Court's decision in Buckley v. Valeo, 424 U.S.1 (1976) severely undermined public confidence in the political system. In that decision, the court upheld some modest limits imposed by the U.S. Congress upon individual campaign contributions.  More importantly, however, the court held that campaign contributions by corporations and other large entities were protected by the U.S. Constitution. Congressional attempts to impose restrictions on the financial contributions by corporations and other organizations, because they conflicted with First Amendment guarantees of free speech, would, henceforth, invite strict scrutiny by the court and would require that a compelling state interest had to be shown to pass judicial muster.

             Thirty years after the Buckley decision, an even more reactionary court declared any restrictions upon campaign financing by corporations violate the free speech provision of the First Amendment. In  Citizens United v. Federal Elections Commission,  558 U.S. 310 (2010),   Justice Kennedy, writing for the majority in a 5-4 decision, reversed two previous precedents which had upheld modest campaign finance regulations. Justice Kennedy opined that the Court had previously recognized that First Amendment protection extended to corporations and that "under the rationale of these precedents cited, political speech does not lose First Amendment protection 'simply because its source is a corporation;" further "corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster."

             Students of the law understand that there has always existed a tension between fidelity to the letter of the law and the dictates of justice. The ancients reminds us that as human beings we are obliged to seek the summum bonum -i.e., the highest good, the ultimate end -  which is synonymous with justice.

             As the primary object of all human aspiration, true justice is something that can be achieved only through the law acting as an instrument of the social order. Thomas Aquinas remarks, quoting Isodore, "Laws are enacted for no private profit, but for the common benefit of citizens."  Further, "A law, properly speaking, regards first and foremost the order of the common good..." Finally, Aquinas invokes Cicero to the effect that "'the object of justice is to keep men together in society and mutual intercourse.' Now this implies relationship of one man to another. Therefore justice is concerned only about our dealings with others."

             Jacques Maritain, the French Catholic philosopher who followed in the footsteps of St. Thomas, has emphasized that "the primary reason for which men, united in political society, need the State, is the order of justice. On the other hand, social justice is the need of modern societies. As a result, the primary duty of the modern state is the enforcement of social justice."

             From the perspective of Maritain, Aquinas and the ancients, Judges Griffith and Randolph failed miserably in discharging their public responsibility as jurists in the D.C. Court of Appeals. By contrast, however, there remains a glimmer of hope that justice may yet triumph over ideology. A three judge panel sitting in the Fourth Circuit Court Appeals in Richmond, 109 miles away from Washington, D.C., saw the big picture - the reason why the Affordable Health Care Act was adopted in the first place. They got it exactly right three hours after the D.C. Court of Appeals released its decision on an identical set of claims.

             In denying the petitioners' claims in King v. Burwell, No. 14-1158 (7/22-2014), the three judges unanimously agreed that purpose of the act - to promote a common good - and Congress's intent must take precedence over pedantic, disingenuous arguments that rely upon linguistic and judicial feats of legerdemain. "The IRS Rule became all the more important a significant number of states indicated their intent to forego establishing Exchanges. With only sixteen state-run Exchanges currently in place, the economic framework supporting the Act would crumble if the credits were unavailable on federal Exchanges. Furthermore, without an exception to the individual mandate, millions more Americans unable to purchase insurance without the credits would be forced to pay a penalty that Congress never envisioned imposing upon them. The IRS Rule avoids both these unforeseen and undesirable consequences and thereby advances the true purpose and means of the Act."


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