Now that we know that our long national nightmare is almost at an end, it’s time to return to looking at the mess that he has left behind.  And on Tuesday, the Supreme Court will be looking at one of the messes that Trump created — the continued validity of the Affordable Care Act.

While the exact issue arises from the “Cut Trump’s Taxes” tax legislation passed in 2017 by some very unusual procedural maneuvers, the core of the issue comes from the Court’s decision upholding the Affordable Care Act, in part, in 2012.   Extreme conservative lawyers are partially right about that decision.  It was an atrocious decision, but not for the reasons identified by the far right.

For seventy-five years, from 1938 to 2012, the Supreme Court had taken a very expansive view of the Commerce Clause (which allows the federal government to regulate interstate and foreign commerce) and the Necessary and Proper Clause (which allows the federal government to pass legislation that is related to the fields expressly allocated to the federal government).  This interpretation is what allows the federal government to criminalize the growing of marijuana for personal use or street level drug offenses.  Somehow, the Supreme Court decided that even though people with health insurance (or without health insurance) may travel in interstate commerce and have to use that insurance in other states, the individual mandate was not authorized by either the Commerce Clause or the Necessary and Proper Clause.  Now, if the Supreme Court had struck down the Affordable Care Act (requiring the average American to purchase health insurance), Congress would have had to turn to an alternative like a single payer system.  So, the Chief Justice wanting to both deliver a victory for the far right (by selectively restricting the scope of the Commerce Clause) without destroying the insurance industry found an alternative justification for the Affordable Care Act — classifying the individual mandate as a tax authorized by Congress’s power to raise taxes. Continue Reading...